In 1999 Simon & Carolyn Scannell
purchased 124 Queen Street, Hastings and in the last year they have given it
some much needed attention and converted the top floor to a self-contained
apartment which is now available on Airbnb for inner city accommodation.
Airbnb link to 124 Queen Street
Inside this edition
Changes to building
The Dog Control Act 1996 explained
What does Restraint of Trade mean?
Employment changes in regards to working from home
Relationship Property and the necessity of full disclosure
vendor have to remove rubbish?
is a testamentary guardian?
new exemptions to the Building Act 2004 ("the Act") have been added, along
with the expansion of four existing exemptions.
Homeowners, builders and DIYers will now have an easier time making basic home
improvements as the Act has removed the requirement of building consents for
low-risk building projects such as sleep-outs, sheds and carports and porches.
These new exemptions are predicted to save homeowners up to $18 million a year
and reduce the number of consents by approximately 9,000. It will mean that
councils can focus on higher risk building consents which will boost the
construction sector and assist with New Zealand's economic recovery from
The new and expanded building exemptions include those outlined below.
Single-storey detached buildings such as sleepouts, sheds and greenhouses up
to 30 square meters do not require a building consent. However, kitchen and
bathroom facilities in such buildings are not included in the exemption and
any plumbing work will still require a building consent and electrical work
will need to be carried out by a registered electrician.
Carports up to 40 square metres, ground floor awnings up to 30 square metres,
ground floor verandas and porches up to 30 square metres are also exempted.
These types of buildings will not require a building consent if the design has
been carried out or reviewed by a Chartered Professional Engineer or if a
Licensed Building Practitioner carries out or supervises the design and
Permanent outdoor fireplaces or ovens built up to a maximum of 2.5 metres and
with a maximum
cooking surface of 1 square metre are exempted. The fireplace or oven must
also be at least one metre away from any boundary or building.
Flexible water storage bladders up to 200,000 litres in capacity, which are
supported on the ground, for irrigation or firefighting purposes are exempted.
Ground-mounted solar panel arrays up to 20 square metres in an urban zone can
be built without the help of a professional and there is no restriction on
size in rural zones.
Small bridges up to a maximum of 6 metres in length will not require consent,
provided the bridges do not span over a road or rail, and the design has been
carried out or reviewed by a Chartered Professional Engineer.
Single-storey pole sheds and hay barns in a rural zone with a maximum of 110
square metres will not require building consents. However, the design needs to
be carried out or reviewed by a Chartered Professional Engineer and the
construction needs to be carried out or supervised by a Licensed Building
The building work included within the exemptions will still have to meet the
requirements of the Building Code as well as any other relevant legislation.
The exemptions were introduced in August of this year along with guidance
information issued by the Government. You can access this information by going
to www.building.govt.nz and search
'Exempt building work guidance'.
Dogs are one of the
most common domestic pets in New Zealand. Dogs provide companionship, are used
to assist people with disabilities and assist law enforcement apprehending
people. A dog is a very special animal, and rightfully so, there is a specific
Act, the Dog Control Act 1996, ("the Act") which is in place to empower local
authorities to promote responsible dog ownership and the welfare of dogs.
The major change that is found within the Act, which was not evident in the
repealed Dog Control and Hydatids Act 1982, is that there was no reference to
the care, feeding or exercise of dogs. Section 5 of the Act lists the
obligations of dog owners which are:
(a) To ensure that the dog is registered in accordance with this Act, and that
all relevant territorial authorities are promptly notified of any change of
address or ownership of the dog.
(b) To ensure that the dog is kept under control at all times.
(c) To ensure that the dog receives proper care and attention and is supplied
with proper and sufficient food, water and shelter.
(d) To ensure that the dog receives adequate exercise.
(e) To take all reasonable steps to ensure that the dog does not cause a
nuisance to any other person, whether by persistent and loud barking or
howling or by any other means.
(f) To take all reasonable steps to ensure that the dog does not injure,
endanger, intimidate, or otherwise cause distress to any person.
(g) To take all reasonable steps to ensure that the dog does not injure,
endanger, or cause distress to any stock, poultry, domestic animal, or
(h) To take all reasonable steps to ensure that the dog does not damage or
endanger any property belonging to any other person.
(i) To comply with the requirements of this Act and of all regulations and
bylaws made under this Act.
Further details and obligations can be found at section 52-60 of the Act.
Dogs are required to be registered on the dog register, which is held at the
local authority. Registration fees vary between local authorities. If you fail
to register your dog, at section 42 of the Act, it is found to be an offense
which could amount to a fine of up to $3,000.
Section 25 of the Act explains that a local authority will disqualify a person
from being an owner of a dog if that person commits three or more unrelated
infringement offences within a 24 month period, or is convicted of an offence
under this Act or other Acts such as the Animal Welfare Act 1999, the
Conservation Act 1987 or the National Parks Act 1980.
However, if the local authority is satisfied that the circumstances of the
offence are not justified by disqualification, the local authority can
classify the person as a probationary owner instead. A probationary owner, at
council's direction, will undertake dog education programs and/or dog
obedience courses. Disqualification can last up to five years.
As this is just a brief overview of the Act, it is recommended reading the Act
in its entirety or contacting your local authority to provide further
information if required.
A restraint of trade is a provision
generally found in employment contracts, which prohibits an employee from
working directly or indirectly with a competitor business for a specified time
and within a limited geographical area, after their employment ends.
A restraint of trade can be included in other agreements such as a
shareholders' agreement, where shareholders agree they will not be interested
or engaged in another business similar to the business of their company while
they are a shareholder and after they cease to be a shareholder for a
specified time and within a limited geographical area. This article focuses on
a restraint of trade in the context of employment.
Employers are increasingly striving to protect their confidential commercial
information such as trade secrets, client information and product development
ideas to maintain a successful business. A restraint of trade assists
employers with achieving this by prohibiting employees from using such
information after they leave their employment for the benefit of a competitor.
However, a restraint of trade does not always provide full protection to an
There are two main types of restraints: non-competition, which prevents a
former employee from working in the same or similar industry as their former
employer, and non-solicitation, where a former employee can work in the same
industry but cannot contact their former employer's clients about their new
The Courts take a prudent approach when assessing the enforceability of a
restraint of trade clause and may disregard such a clause from the outset,
depending on its reasonableness. Generally, restraints of trade are only
enforceable if they are reasonable and not against public interest.
This involves assessing the following
factors; whether the:
* time period and geographical limitations are reasonable for a particular
industry. A time period in the range of 2 to 6 months has commonly been viewed
as a reasonable period of restraint, of course this depends on the particular
circumstances of each case.
* specified activities (the employee's job) may be restrained reasonably.
* former employer has an exclusive interest capable of being protected, such
as a trade secret or patent.
Depending on whether the courts find a restraint reasonable, an employer may
seek an injunction to stop an employee from breaching their restraint of
trade, and/or damages for the loss as a result of the breach, together with
penalties for breaching their employment contract.
It is suggested that restraint of trade provisions are included in employment
agreements from the outset of employment negotiations. However, if an employer
wishes to add a restraint of trade clause into an employment agreement after
it is in place, the employer must consult the employee about this and give
them the opportunity to seek independent advice together with consideration in
return. Consideration can be in the form of a higher wage or specific payment
from the employer to the employee for allowing the employer to enter a
restraint of trade clause into the employment agreement.
It is important to understand the implications of a restraint of trade clause
as both an employer and employee. The key is to find the balance between
protecting your business while ensuring the restraint is reasonable and
It is advisable to get in touch with your lawyer to discuss restraints of
trade either at the outset, during or the end of employment, whether you are
an employer or employee.
The global spread of COVID-19 and
subsequent lockdown in New Zealand changed the way that many organisations
Employers and employees needed to work together to slow the spread of COVID-19
and keep each other safe. This meant that normal employment obligations to act
in good faith were more important than ever.
The implications of COVID-19 and working arrangements meant that if businesses
were required to close during the lockdown, they needed to consult with their
employees in good faith in order to reach an agreement in the way the
workplace would carry on remotely.
In addition, employers needed to adopt a more flexible approach to work hours
and productivity and implement stricter policies around staff staying at home
when they are sick.
Employers and employees may have wanted flexible ways of working during this
time (for example, staggering start times). Parties should have discussed
these matters and agreed to arrangements in good faith.
These changes may have been temporary or permanent and the length of time for
this change must have been recorded in the employment agreement variation. Any
changes had to be recorded in writing and signed by both parties, and the
parties given reasonable time to consider the proposal. During the COVID-19 period,
there may have been circumstances where consultation on changes could
reasonably have been shortened if the employer genuinely needed to make rapid
adjustments to cope with their circumstances.
Shortened processes must still
occur in good faith and provide opportunity for workers to seek advice.
As we are now in the COVID-19 recovery phase, normal consultation processes
should be followed for any workplace changes proposed during the COVID-19
recovery period. This includes normal consultation timeframes and provision of
New Zealanders are notorious for the 'she'll be right' approach when it comes
to being sick, however this is no longer appropriate in the post COVID-19
climate. The slightest of runny noses are now considered more seriously and
employees are generally told to stay at home, in order to keep the rest of the
workplace safe from illness.
It is likely that more New Zealanders will split their time between working
from home and from the office in the wake of the pandemic. Where a day away
from work was once considered a burden, it is as simple as logging in remotely
and continuing to work from home now.
COVID-19 has forced New Zealand into the future and it is likely that it will
never be the same again.
In the previous August Newsletter
article on relationship property agreements, matters of relationship property
under the Property (Relationships) Act 1976 ("the Act"), and the difference
between a contracting out agreement ("COA"), commonly referred to as a
"pre-nuptial agreement", and a separation agreement ("SA"), were dealt with.
This article will discuss a vital provision of the Act, which requires the
completion of full disclosure by both parties before the agreements can be
signed and certified.
Disclosure is the process during preparation of a COA or SA, whereby both
parties are required to obtain or provide evidence of all their assets and
liabilities. This may be in the form of property valuations, bank statements,
company annual accounts, car valuations, investments portfolios, mortgage
statements etc. Before either party can sign the agreement, disclosure is used
so that the solicitors, and in some cases, the accountants, can assess the
value of each party's assets and liabilities, whether joint or separate. Once
they have received this information, on the basis that they have received full
and complete disclosure, the solicitors should be able to adequately advise
their client of their legal position and entitlements under the Act, if they
proceeded to sign the agreement and can sign-off the agreement confirming this
advice has been given.
Without disclosure, both the parties and their solicitors are unable to
accurately assess what their entitlements under the Act may be, and in turn,
the parties may receive less than what they are entitled to. This is
important, as not only can a client miss out on improving their financial
position, but also, where a party has not received sufficient advice and/or
information in the disclosure, or there has been deliberate withholding of
information or misinformation from the other party, the agreement can be set
aside by the court for "serious injustice".
It is the role of the solicitors to protect their clients in this situation,
by ensuring the other party and their solicitor have provided full and
complete disclosure to the best of their knowledge. Disclosure is not only
used for transparency for the parties, but also as a 'check and balance' on
the actions of the solicitors who must sign off the agreements.
Full and frank disclosure is offered to both parties to allow for full and
final settlement of the agreement and transparency of assets. When signing
these agreements, except where deception has unknowingly occurred by one
party, the parties can
gain a relative amount of peace from the fact that they
have entered into this agreement with their 'eyes wide open' as to what they
are negotiating, even if they have elected to negotiate an agreement which
departs from the principles of equal division under the Act.
Given the potential intricacies of these agreements and finality once signed,
it is strongly suggested that you contact a solicitor to discuss these matters
further. In any event, in order to sign either agreement, you will require
independent legal advice.
Does the vendor have to remove rubbish?
Buying a new house is a positive experience and looked forward to by all
purchasers. The Vendors too are looking forward to moving on to a different
The actual shift is the least enjoyable aspect. It is always difficult to
manage and always under time constraints.
Included in the scenario is often the situation where the Vendor runs out of
time and energy to completely remove all rubbish from the property as they
leave. Common sense tells us all what might reasonably be left behind, but
what if there is an unreasonable amount remaining?
There is no legal obligation ultimately.
If you notice rubbish inside and outside when you are making your decision to
buy, then on making an offer to do so, put a clause in the agreement
requesting that the property being left in a tidy condition and rubbish free.
This clause would normally be deemed a warranty.
So while the purchaser cannot refuse to settle because of it, following the
pre settlement inspection the purchaser may request that a compensation amount
be retained until the rubbish is either satisfactory removed or those funds
retained are used to do just that.
What is a testamentary guardian?
Everyone should have a will. When making that will, those
who have children should ensure that all possibilities are covered in the case
of the will makers untimely death while his or her children are still minors.
Hence the inclusion of a testamentary guardian clause in that will.
The clause should clearly state who the guardian or guardians are. It should
also state that if there is more than one child then the preference is that
those children remain living together at all times.
As both parents are the natural guardians of a child, this testamentary
guardianship clause shall not become operative until the second of the parents
have died. The clause should go in both parents' wills.
The guardianship issue is an often overlooked but very important provision in
any will together with the thinking around it. A big decision for parents to
make, and for the testamentary guardians to accept the potential
S J Scannell & Co
Would like to wish you
and your family a Merry Christmas and prosperous New Year
We advise our offices
will be closing on Tuesday, 22nd December 2020 at 5pm
and re-opening on
Tuesday, 12th January 2021 at 8.30 am
If you have any questions about the newsletter items,
please contact me, I am here to help.
Scannell & Co - 122
Queen Street East, Hastings
(06) 876 6699 or (021) 439 567 Fax: (06) 876 4114 Email:
information in this newsletter is to the best of the authors' knowledge true
and accurate. No
liability is assumed by the authors, or publishers, for any losses suffered
by any person relying directly or indirectly upon this newsletter. It
is recommended that clients should consult S J Scannell & Co before
acting upon this information.
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