canterbury tales - law society · canterbury tales is the official newsletter of the canterbury-...

Inside:2 President’s column

3 Retirement lunch

4 Financial and physical fitness

5 A career in law

5 Women and millennials

6 NZLS mentoring pilot programme update

6 Interview with Lacey Fulford

6 Two New Zealand lawyers elected to the Trans-Tasman notaries organisation

7 Remarks at ceremonial opening of the Christchurch Court

9 Barefoot Bowls

10 E-dealing – attorney queries

11 Kiwisaver First Home withdrawals

13 Library News

15 Education

16 South Canterbury Lawyers enjoying their Christmas Function

Canterbury talesFebruary 2020

Vol. 26 No. 1

Canterbury tales

The Council of the Canterbury West-land Branch of the New Zealand Law Society records with regret the death of Michael James Timings, on 29 December 2019. Michael was a Partner at Kannangara Thomson.

With Regret

Young Lawyers Wine Tour

On Saturday 30 November a contingent of young lawyers from the Canterbury West-land region embarked on their annual pil-grimage to the Waipara wineries, this time visiting Waipara Springs, Waipara Hills and Torlesse.

A great day was had by all soaking up the sun (and the wine) and the festivities continued after the tour with one young lawyer kindly providing a private wine tasting for the group.

The event punctuated what was a busy and successful year for the young lawyers’ committee and we look forward to another successful year in 2020.

Please keep an eye out for our events which will be advertised in the notices. Those in their first seven years of practice are encouraged to come along and get involved.

By Jack Brown

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V I N O F I N OPhoto CaptionEach month we have a photo caption competition where we invite you to submit a caption. The winner will receive two bottles of wine sponsored by Vino Fino (www.vinifino.co.nz, 188 Durham Street). Send your entry to the Canterbury Westland Branch New Zealand Law Society, P. O. Box 565, Christchurch. Or email to [email protected]. All entries must be received by February 14th 2020. The winner will be announced in the next edition of Canterbury Tales.

President’s ColumnBy Grant Tyrrell

As there was no photo in last edition there is no winner this month. See how you go with the photo below and remember if you have any suitable photos that can be placed in this competition please send them through to us.

I hope that you have all had an opportunity to spend some time over the festive season relaxing with family and friends and have returned (at least partially) refreshed!

Michael TimingsSadly, our colleague Michael Timings passed away in December 2019. A partner at Kan-nangara Thomson, Michael’s association with the law dates back to his employment at the (then) Magistrates’ Court in 1975. Michael has had a significant involvement with the community including as Honorary Solicitor of the Christchurch Yacht Club and through Community Law. My thoughts are with his family, friends and colleagues at Kannangara Thomson.

South Canterbury Christmas functionI was fortunate to be able to join our south-ern colleagues for their Christmas function in Timaru. I can report that the South Canter-bury profession remains in good heart and that the commitment to catering remains unparalleled.

Family lawyers’ advocacy skills workshopThe generosity of many of our colleagues in assisting our colleagues is a hallmark of our profession. A highlight of the many semi-nars run by our colleagues last year was the advocacy workshop organised by the Family Law Committee led by Colin Abernethy and Rachel Walsh with sponsorship support from Harmans Lawyers and Clark Boyce. Twenty-four junior family lawyers had the opportunity to hear from James Rapley QC

on advocacy, prepare a mock family violence case and appear before judges with video and in-person feedback from the judges and senior colleagues.

The feedback from the participants has been overwhelmingly positive and, based on the lawyers I observed, the quality of our up-and-coming colleagues is excellent.

Dave and Anne ClarksonChristchurch Criminal Lawyers, in particu-lar, will be well aware of the Clarkson Court News duo who have, for over 17 years, with accuracy and compassion (including for nervous junior lawyers) faithfully reported the events in the Christchurch Courts. Their well-deserved retirement at the end of last year will be a loss for the “eyes and ears of the public” but a gain for the Clarkson grandchildren. I wish them all the very best in their retirement.

Malcolm Wallace

Malcolm is available to accept appointments as an Arbitrator or Mediator. To discuss terms of appointment and availability contact Malcolm on:[email protected] 03 3796 976 027 260 3431

AMINZ Fellow (Arbitration)BARRISTER

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Canterbury tales is the official newsletter of the Canterbury- Westland Branch of the New Zealand Law Society and is published 11 times per year.Editor: Zylpha KovacsE [email protected] 03 366-9184 F 03 366-9977 The Branch Manager, Canterbury-Westland Branch New Zealand Law Society, Level 1, 307 Durham Street, Christchurch. PO Box 565 Christchurch, DX WX 10074.

Canterbury talesAdvertising$35 per column/cm exclusive GST.Contact: Jim KennedyE [email protected] 03 342 5457 M 027 577 7139Disclaimer: Canterbury tales is published by the Canterbury-Westland branch New Zealand Law Society. The opinions expressed herein may not necessarily be those of the branch and have not been expressly authorised. The branch accepts no responsibility whatsoever for any error, omission or statement.

Comings & Goings

Information for this column must be sent directly to the Canterbury-Westland branch due to privacy issues. We assume that by the firm supplying the information that the individual people have agreed to their names being published.Please send information regarding changes to firms or practitioners to [email protected] or [email protected].

Taking effect from 1 January 2020, Lane Neave announces the promotion of:

Mike King, Christchurch, Litigation – Senior Associate

Alex Stone, Christchurch, Corporate – Senior Solicitor

Lane Neave also welcomes Cameron Hart who is joining the Christchurch Corporate team.

A retirement lunch was held for Jan Avery at Winnie Bagoes Rangiora. Jan was a Senior Associate at Corcoran French and

had worked for them for 35 years as their senior family lawyer.

We wish Jan all the best for a happy and fulfilled retirement.

Retirement lunch

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February · Vol. 26 No. 1 · Canterbury tales

Financial and physical fitnessBy Andrew Nuttall

Andrew Nuttall,Cambridge Partners

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Did you set any New Year’s resolutions? It seems like it’s a good time to do so, being the start of a new decade.

But have you ever been successful with your resolutions? It seems most us have forgotten them by the end of January.

Much has been written about New Year’s resolutions, and perhaps even more so on how useless they can be. This is because when we do not achieve what we set out to a sense of failure can become more ingrained and we become even less motivated.

Many of us find it difficult to set goals, or don’t bother to. Maybe we are too busy to stop and think or maybe performance anxiety limits us? Are we reluctant to put ourselves under pressure and run the risk of failure once again?

Many resolutions centre around either

shedding some kilos, saving more money or reducing debt. Why do we find these things so difficult when all we need to do is exercise more, eat less and spend less than we earn? There is so much to be gained from being fit and healthy and from having our financial house in order.

How can we get both physically and financially fit? To achieve anything you must take action and be prepared to repeat those behaviours. First we need to create an envi-ronment that helps support what we desire to achieve and then put a system in place.» If you want to lose 5kg remove all the bis-

cuits and Christmas cake from the pantry and don’t buy any more. That way you will save money as well!

» Set up separate bank accounts and automate as much as you can. To reduce

your mortgage, increase your fort-nightly or monthly payments.

» To improve well-being do some enjoyable exer-cise every day with a friend or colleague and eat more fruit and vegetables.

» To save more, increase your regular KiwiSaver contributions and/or add to your bank savings account automatically every pay day.

Spending less, saving more, eating less and exercising more are easier said than done, but by arranging your environment and doing something every day you will soon make progress. Be prepared to get fit and rich slowly by taking small steps more frequently.

Very best wishes for 2020.

Andrew Nuttall is an Authorised Finan-cial Adviser with Cambridge Partners, an independent financial advisory practice based in Christchurch. Andrew has worked with members of the legal fraternity for over 30 years. His disclosure statement is available on request and is free of charge. www.cambridgepartners.co.nz telephone 3649119.

LIFE IS TOO SHORT FOR THE WRONG JOBLET YOUR NEXT JOB FIND YOU

Phone Leonie 021 205 [email protected]

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Canterbury tales · February · Vol. 26 No. 1

Having recently spent time visiting a sick relative in hospital, I was struck by the work the hospital orderlies do. I imagine the remuneration they receive for performing their duties would be rather meagre by most reader’s standards.

During my time there I observed them having to deal with patients who were tired, irritable and often grumpy (patients about to or undergoing difficult treatments). Yet, as a general rule, most orderlies were cour-teous and efficient. Often, after delivering my relative to whatever part of the hospital they needed to be, the trip would end with a “look after yourself” or “I hope you have an enjoyable rest of the day”. On the whole I would say that most of them were quietly happy as they went about their tiring work of walking up and down those concrete corridors.

It was also apparent that most did not consider their jobs low-skilled or unfulfilling. Instead, they felt they were part of a team that was helping people get better. They may not have been performing surgery or prescribing drugs, but they believed their job was an important part of a bigger process.

Helping a patient get to where they needed to be to get a scan, to diagnose a problem and ultimately get better.

People often fail to reach their true poten-tial in law because they focus too much on the money they are earning. The money you’re being paid is generally related to your contribution to something more important, more meaningful, and much larger than yourself. When you focus on what you are doing for the world and the value of this contribution, you become energised. As a result, this energy brings more and better work your way – which ultimately leads to greater earnings. The money is a by-product of your contribution to your job.

In legal recruitment I get to see many people who stick with jobs that don’t provide meaning – because “it’s about the money”. Don’t get me wrong, working “for the money” is not all bad. Having the finan-cial security so you can provide for yourself or your family is obviously a laudable reason. However, as important as money is, feeling that the work you do is meaningful matters too. When you feel better about your work you will notice an improvement in your

health and your relationships with others. Also, getting up in the morning becomes more enjoyable!

The good news is there are proactive things you can do to derive more meaning from your current role. It could be as simple as reframing how you think about your role or finding new ways to engage your talents. Your job might provide opportunities for expression, connection and creativity that you never realised were there. Try to recon-figure your approach to daily work tasks around these opportunities. It’s easy to get so bogged down in the things you have to do that you lose sight of why you do them. As such, it can be helpful to your sense of purpose to consider the end result of your work, especially as it impacts other people. Try to focus on the WHY, not the what.

For some of us, finding that meaning in work might require a change of employer and that is where I can help – and ultimately where I get my job satisfaction from.

Leonie Queree can be contacted at [email protected] or phone 021 205 7342.

A career in law — “it’s about the money”By Leonie Queree, Leo Recruitment Ltd

The New Zealand Law Society has revealed its latest data for the gender and gener-ational makeup of the legal profession in the country.

Women and millennials now account for most of the 13,765 lawyers based in New Zealand with practising certificates as of 10 December, the Law Society’s Geoff Adlam said. Of those, 7,167, or 51%, were women, while 6,596 or 49%, were men, and two identified as gender-diverse.

Women first outnumbered men in the profession in January last year, when the Law Society said that out of the 13,103 practising

lawyers in the country, 6,553 were women and 6,550 were men.

Despite women accounting for more of the profession, law firm leaders are still more likely to be men. While women made up 55.6% of all lawyers working in law firms, just 39% of partners and directors are women, Mr Adlam said.

The Law Society also unveiled the gen-erational makeup of the profession as of 10 December. It classifies lawyers born before 1946 as part of the Silent Generation, those born from 1946 to 1964 as baby boom-ers, those born from 1965 to 1980 under

Generation X, those born from 1981 to 1995 as millennials, and those born from 1996 onwards under Generation Z.

Just 1% of the profession are from the Silent Generation. Baby boomers made up 18.2% of the profession, Generation X 35.6%, millennials 44.4%, and Generation Z 0.9%, it said.

Earlier this year, the Law Society also released a generational breakdown of the profession. It said then the Silent Gen-eration made up 1% of the profession, baby boomers 19%, Generation X 36%, and mil-lennials 44%.

Women and millennials

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Have you had a mentor or been a mentor? Please can you describe the experience in a few words.Yes, I was part of the AULSS mentoring programme at Auckland Law School. I was a mentee in my second year and a mentor in third year. It was a fantastic programme for integrating students into law school in second year and getting everyone involved in the social events.

How do you think mentoring assists with career and personal development?I think that mentoring could assist by con-necting people with role models within the legal industry to provide realistic advice on career development and opportu-nities. Sometimes it can be difficult to have honest discussions within your

own workplace and therefore mentors can provide a useful outside perspective.

In a recent NZLS Lawyer Survey only 36% of lawyers reported feeling well connected to others in the profession, and just 29% of lawyers agreed that the legal profession values diversity and inclusion and meets the needs of diverse groups. In your view, how can mentoring programmes help?Mentoring programmes can be an excellent tool for expanding your network, especially in the context of the legal profession where people tend to stick to friends they made in law school or colleagues they have met in their jobs. Mentoring can bring people from dif-ferent backgrounds together and encourage inclusivity, particularly for those who might

feel isolated in their roles or find it hard to reach out. I also hope that this programme will encourage more young lawyers to attend the educa-tional and social events organised by the Auckland Young Lawyers (AYL).

How can mentees drive the mentoring relationship?By not always leaving it up to the mentor to reach out. If mentors are busy, propose times and places that are convenient for them – maybe lunches, coffees or drinks after work. Mentees should keep in mind that mentorship programmes are also really beneficial and enjoyable for mentors, it’s not just about mentors providing advice.

NZLS mentoring pilot programme updateThe NZLS would like to thank everyone who has signed up for the mentoring pilot pro-gramme. We are pleased to report over 460 lawyers have signed up to the pilot programme that was launched in Canterbury Westland and Auckland branch areas in early September.

Access to and availability of high-quality

mentoring/mentee opportunities for law-yers across New Zealand is an important objective of the programme. We encourage you to sign up.

“The mentoring programme is an oppor-tunity to create more diverse and inclusive relationships which will benefit those

involved and strengthen the profession overall,” says New Zealand Law Society President Tiana Epati.

For more information about the men-toring pilot programme please contact: [email protected] We welcome your participation in the programme.

NZLS Mentoring Programme — Interview with Lacey Fulford, Solicitor at Simpson Grierson

Lacey Fulford

Two New Zealand lawyers have been appointed to the board of the Australia and New Zealand College of Notaries (ANZCN).

Ken Lord and Stewart Germann have been appointed to the ANZCN board with

Two New Zealand lawyers elected to the Trans-Tasman notaries organisation

their terms commencing at start of this year. Ken Lord is a consultant at Parry Field Lawyers in Christchurch, while Stewart Germann is a sole practitioner based in Auckland.

ANZCN is an independent learned society

that aims to complement the activities of the societies of notaries in New Zealand and Australia, aiming to establish and maintain common standards for notarial education and practice in Australasia.

Congratulations to both Ken and Stewart.

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Remarks at ceremonial opening of the Christchurch Court, 31st January 2018

The speech below given by The Hon Justice Wil-liam Young at the opening of the Christchurch Law Courts gives an interesting “potted” his-tory of the courts buildings in Christchurch.

E te Kaiwhakawā Matua, tena koeE te iwi maioha o tenei rohe, tena koutou Otira, te hunga ora e huihui neitena koutou tena koutoutena koutou katoa

The first court in Canterbury was convened on 11 August 1840. It was at Green’s Point in Akaroa Harbour, just south of the current town and where the Britomart Monument stands today. Presiding were Messrs Murphy and Robinson, the two magistrates who had been appointed to exercise jurisdiction in the South Island. There was, of course, no building; illustrating the reality that the oper-ation of a court does not require a grand setting. Indeed, as it turned out, the absence of a building was of no practical moment because there were likewise no cases. So, sovereignty having been asserted, the court adjourned.

Comparatively little judicial work was required in Canterbury until 1850 with the first session of the Supreme Court not being held until 1852. Presiding on this occasion was Justice Stephen. He sat in a temporary

school room in Lyttleton. Subsequent hear-ings in Lyttleton were in the Immigration Barracks. The first sitting in Christchurch was in February 1857 in the Town Hall. On this occasion, the judge was Justice Wakefield.

Construction of a dedicated Supreme Court commenced in 1869, with the build-ing, not quite complete, being first used in 1869. The handsome bench and canopy were, as I understand it, gifted by the City of Nottingham. This is suggested in Portrait of A Profession. There is said to be a brass plaque on the back of the structure which will soon be revealed and presumably will record its provenance. There were exten-sions in 1874 and a library was added in 1896. The Magistrates’ Court building was constructed on the site in 1880 and was added to in 1908.

The Supreme and Magistrates’ Court buildings which emerged from all of this were not unattractive in terms of external appearance. As well, the No 1 Supreme Court was an impressive courtroom, very much in the grand old style – and the Law Library was simply splendid.

More generally, however, the court buildings, were far from satisfactory places in which to work and there were many associated complaints. Thus The Press of 21 April 1938 noted that they were “cramped,

inconvenient, poorly furnished and wretch-edly ventilated”. This article was prompted by the laying of a foundation stone for a new court building, an event which occurred on 20 April 1938 and at the same time as the New Zealand Law Society conference was being held. This was a grand occasion. Amongst those present were Lord Galway, the Governor-General, Rex Mason the Attor-ney-General, the Chief Justice Sir Michael Myers and Justices Kennedy and Northcroft. The latter three were in their scarlet robes, which attracted some interest as it was the first time that judges so attired had been seen outside Wellington. As a matter of interest – at least to me – also present were my grandfather, Harry Young, a stipendiary magistrate, and my father, then a youngish lawyer.

The building proposed was of modern design, which was said to “harmonise with the classic and gothic buildings in the vicin-ity”. It was to be faced with white marble. The intention, as explained by Mr Mason, was to meet the needs of the community for at least 75 years, but with the Second World War intervening, construction never started.

The next Law Society conference in Christchurch was held in 1957. At this conference, my father, then a not quite so young lawyer, referred to what he called

By Justice William Young, Judge of the Supreme Court

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the “pomp and circumstance” which had surrounded the laying of the foundation stone and the 19 years which had subse-quently elapsed without progress, save that the foundation stone had been encased in metal to protect it from the elements. He referred pejoratively to the Supreme Court as an “edifice” which leaked and was cold and draughty.

The limitations of the building became even more apparent when, from the late 1950s, a second Supreme Court judge became resident in Christchurch. A small No 2 court was created upstairs as was a second set of chambers. There was no lift; not an inconsiderable problem when the judge who occupied them had an extremely painful and limiting hip condition – and in hot conditions, the second court was almost intolerable.

Planning for a new court complex started in 1966-67, but this was a stop-start affair with a number of interruptions and changes of thinking. Improvisation was required. From at least the late 1960s and perhaps earlier, the Magistrates’ Court, and very occasionally, the Supreme Court, made use of the Provincial Government Buildings. In the early 1970s, the Society of Arts building on the corner of Armagh and Durham Street was converted, with two courtrooms being created for the use of the Supreme Court with the old caretaker’s white cottage at the back being used as the chambers initially, I think, by Justice Macarthur. The old Supreme Court building was still used occasionally when more than two courtrooms were required and I can recall appearing in it on a few occasions in 1975.

A little later, in the 1980s, the High Court and Family Court had some far from satis-factory facilities in a building on the western side of Durham Street.

Of the buildings planned for construction in the late 1960s, the first to be constructed was the administration building which was completed in 1978 and which also housed the Law Society Library. Finally, in 1985 the decision was taken to locate the High and District Courts in a single tower block. This was opened in 1989 and it housed the courts until late last year.

The tower block had advantages over what had gone before; the courts oper-ated, and judges were able to be accom-modated, in what, in conjunction with the old Magistrates’ Court and the Society of Arts’ buildings, could be regarded, perhaps loosely, as a single location. The court rooms were modern and there was a reasonable security where required. Circulation areas had been properly thought through. As well, the No 1 High Court was built on a scale which enabled the old bench and canopy from the 1869 building to be used and for the portraits of former judges to be appro-priately hung. It was a courtroom in which I enjoyed appearing and sitting. Further, the building was strongly constructed and thus stood up well to earthquakes.

There were, however, some major dif-ficulties. Perhaps the most significant of these was that space was limited. This was obvious from the start and was noted by Chris McVeigh QC, president of the Canter-bury District Law Society at the time of the building’s opening. Space limitations meant that facilities for counsel, witnesses, parties and jurors were limited. From the point of view of judges, the vertical way in which the building was organised was awkward and impeded collegiality. High Court chambers were spread over four floors. It was quite a claustrophobic place in which to work.

The lot of court designer is not an easy one. Of the 1869 design, a member of

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the then Provincial Council described the building as a “double distilled atrocity”. At its opening, its architect, Alexander Lean – who was also a well-known musician – fishing for compliment asked Justice Gresson what he thought of his “symphony in stone”. The judge replied dismissively, “Too many crotchets in it”.

So it is today.When the plans for this building were first published and open for consultation, I asked one of the local District Court judges what he thought of them. He was not impressed. He said, “It’s light and airy. But I didn’t want ‘light and airy’, I wanted ‘dark and scary’.” I am old enough to be sympathetic to this viewpoint. I was, as will be apparent, very comfortable in the old No 1 court, with the portraits of past judges on the walls and sitting on the bench which, by the end of last year, had been in use for nearly 150 years.

My friend’s contrast between “dark and scary” and “light and airy” is a caricature of two views about court design: one empha-sising the projection of authority; the other focusing on the experience of court users, which include, but are not confined to, judges and lawyers.

My take on all of this may seem rather lim-ited: it is now primarily that of an occasional user of spare chambers and associated facil-ities on the fourth floor. I have, however, a particular longitudinal perspective reflecting the fact that I have appeared as counsel in the 1869 building, the Magistrates’ Court as built in 1880 and extended in 1908, the Society of Arts’ building, various courtrooms in the Provincial Council Chambers, the Durham Street building and the tower block in which I also sat for six years.

The reality is that since, at least the 1930s, until the opening of this building, those administering justice have had to operate within the constraints of buildings which were not fully fit for purpose. This was sig-nificantly exacerbated by the disruptions caused by the 2011 earthquakes. So, despite this building being light and airy and thus largely eschewing tradition, it is incommen-surably better suited to the administration of justice than anything that has gone before. Accordingly, I see this opening as an occa-sion for great celebration.

No reiratena koutou, tena koutou, ara tena tatou katoa.

Continued from previous page...

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Barefoot Bowls — it may not be the answer to Lawyer wellbeing but it’s a bloody good start! The stress of being a lawyer has been well documented and is something we have all experienced - perhaps even gotten used to. The New Zealand Law Society has highlighted its concerns about the level of stress we cope with by including a “Mind and Body” tab in their online Practice Resource focusing on how lawyers can improve their health and wellbeing.

Closer to home, in September 2019 the Canterbury Westland branch formed a Legal Culture Committee which (among other aims) will focus on providing our local lawyers with opportunities to consciously detach from work, de-stress, and connect with colleagues on a social level.

Welcome to the Barefoot Bowls Stress Buster Afternoon! An opportunity to share some laughs, food and practise some ques-tionable bowling skills - simultaneously in Ashburton, Timaru and Christchurch. A great chance for all practitioners to come together whether as singles, firms or friend groups. So, rally your firms and contact your colleagues to form teams for what is going to be a marvellous afternoon enjoying the lighter moments of life.

Partners - don’t forget you really do have an obligation to care for the wellbeing of your lawyers and inviting them to attend this event is a great start – they may even get in some good old-fashioned networking.

When Thursday 20 February, from 5pm

WhereIn Christchurch - at the Elmwood Bowling Club In Ashburton – at the Allenton Bowling ClubIn Timaru - at the Westend Bowling Club

Cost$25 per person (includes a lesson, green fees and barbecue)

A cash bar is available

RSVPwww.bookwhen.com/nzlscanterburywestland

9


E-dealing — attorney queries

We all like to think that we are immortal and bullet proof, but the realities of human frailty can catch us unawares sometimes!While this commentary is primarily intended for sole practitioners it is equally relevant for anyone who is an attorney for a sole practitioner. Put simply, it’s too late to put things in place once the sole practitioner is incapacitated.

Incapacitated sole practitionerTo summarise, we know that every sole prac-titioner must have a primary and alternate attorney pursuant to Schedule 1 of the Law-yers and Conveyancers Act 2006. While you will undoubtedly have those in place, did you appreciate that you should also have your attorney ‘linked’ to your e-dealing Licence to enable access for certifying and signing etc?

If you are an attorney, the last thing you want to do is recreate every transaction in your firm’s Landonline Workspace at the last minute. That would also be quite impractical where the other side has already certified and signed. So how is that achieved? You need to create a Multiple Firm Association between granting the attorney access to the sole practitioner’s e-dealing Licence and Workspace. There are various processes and forms to complete on both sides and LINZ can only act once it receives the hard copy form (an emailed scan is not acceptable). There is a minimum 5 working day process-ing time from when LINZ receives the form and letter. The following is a summary of the steps involved:1. Access the link www.linz.govt.nz/kb/705

to understand the process

2. Access the online form www.linz.govt.nz/land/landonline/change-your-details/add-individuals

3. Select ‘Add Individual’4. Enter the attorney’s ID user name in

Landonline and click on ‘allow certify and sign’ rights.

5. In the Landonline Relationship sec-tion, select ‘Yes’ to ‘Previous/Current Landonline user’ and ‘Yes’ to “Has the user taken their Digital Certificate with them to their new firm”. (Even though they are not actually joining the sole practitioner’s firm – it’s just the way the system is set up.)

6. A covering letter is also required by the applicant stating that they require Mul-tiple Firm Association. The letter must state the user’s main Landonline firm for Digital Certificate invoicing purposes, and confirming email/phone/fax con-tacts for the main firm.

7. Post the signed contract, covering letter, Proof of Identification/Annual Practising Certificate (if required) to: Landonline Sign Up, LINZ, Private Bag 3028, Ham-ilton 3240

Once the process is completed the attorney will be given the option of which e-dealing Licence to access at the time of logging into Landonline. This means that if something untoward occurs, the attorney can access that sole practitioner’s Workspace and deal with the relevant matters. The process can be reversed at any time by the sole practi-tioner by completing the ‘Remove Individual’ online form.

The attorney can rely upon the signed Client Authority and Instruction Form (A & I) addressed to the sole practitioner (assuming it is correctly executed with necessary wit-nessing and ID). This is the only permissible exception to the rule that an A & I cannot be delegated to anyone other than the named lawyer or firm.

That leads to the next obvious question, can anyone else with Certify and Sign rights in the attorney’s firm sign the e-dealing instruments? I agree with the Registrar-Gen-eral of Land’s view that you cannot, because

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For practitioners working in the area of residential conveyancing, Kiwisaver First Home withdrawals are now common-place. According to the Financial Market Authority’s (FMA) Annual Kiwisaver Report 2019, 39,600 members withdrew approximately $953 million under the First Home Withdrawal scheme, up 32% on the previous year. Despite the rising number of withdrawal transactions, the mechanics of the withdrawal process seem commonly misunderstood by clients and other players in the transaction such as real estate agents, mortgage brokers and even sometimes the practitioners

acting for the other party. To add to the confusion, the policies and documentation used varies between Kiwisaver managers (the manager). The Banking Ombudsman reports they field a number of complaints each year from purchasers who hoped to use their KiwiSaver funds for a first home but found they couldn’t. In many decisions the Banking Ombudsman has suggested that the information supplied to custom-ers regarding first home withdrawals could be improved. This article summarises the emerging issues encountered by prac-titioners when dealing with KiwiSaver withdrawals.

Trust purchasesMost first home buyers are aware that they can use a portion of their KiwiSaver balance to contribute towards the purchase price of the house. It is not commonly known that it is possible to use the KiwiSaver funds and have that house owned by a trust, part owned by a trust, or even owned in part shares by other people, for example parents or friends.

The ability to buy in a trust may also come as a surprise to many solicitors as until 2017 most managers took the position that the KiwiSaver member had to complete the purchase personally. This eligibility is not free from restrictions though. Managers that do accept trust purchasers want to connect the KiwiSaver member to the purchase and will usually require that:1. The trust must be purchasing the KiwiS-

aver member’s first home. The KiwiS-aver member cannot be a beneficiary of another trust that owns property, where that property is the KiwiSaver member’s current principal place of residence;

2. The KiwiSaver member is a trustee

Kiwisaver First Home withdrawalsBy Kristine King

the delegation is personal to the named attorney.

If the attorney is unavailable for some reason, then a new A & I form should be obtained or, as an absolute minimum, some form of written authority authorising another lawyer in that attorney’s firm to certify and sign the instruments noted in the A & I.

Remember that by signing and certifying the instruments in the dealing that you take personal responsibility for the certifications made. Accordingly, you need to be satis-fied from your review of the client file (be it electronic or manual) that the statutory certifications being made are accurate. That inevitably includes checking Land Transfer Tax Statements, OIO forms, IR1101 and any others as may be necessary for the trans-action and instruments involved.

Documents signed by client’s attorneyWhere a client A & I is signed by an attorney for the client, the certifying lawyer may rely upon that provided the requisite certifi-cate of non-revocation is signed and the original Power of Attorney is sighted. The attorney’s identity needs to be verified in these circumstances.

It is also permissible for a Land Transfer Tax Statement form from a transferor to be completed for the purposes of section 78(1)(a) LTA, and signed under section 79(a) by an attorney appointed by the transferor. The attorney determines what is within their authority under the particular Power of Attorney, and whether they can provide the correct information.

On another recent query, I am not aware of any reason the tax statement should

become invalid if the transferor dies after their attorney signed it; section 79(1)(b) requires the statement to be dated on the date on which it was signed, so it presum-ably is treated as a valid statement from that date unless it is changed at a later date.

We note that the certifying lawyer who is given the tax statement by a transferor or transferor’s attorney, and gives the tax information in the e-dealing, is not respon-sible for the correctness of the information unless they are on notice that their client is giving false or misleading tax information.

SummaryIf you are a sole practitioner or attorney for one, please review what arrangements you have in place for e-dealings and add the attorney to the sole practitioner’s Landon-line Licence.

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personally of the trust;3. The KiwiSaver member is a beneficiary

of the trust;4. The KiwiSaver member intends to live

in the property as their principal place of residence; and

5. The KiwiSaver member’s name must be on the sale and purchase agreement.

Don’t assume that all managers now will permit a withdrawal for a purchase in the name of a trust however. Many managers still do not accept a trust purchasing, while a select number now confirm they are accept-able. Schedule 1 of the KiwiSaver Act 2006 sets out the KiwiSaver scheme rules that are to be implied in the trust deed of a KiwiSaver scheme (Scheme Rules). Clause 8(3)(c) of the Scheme Rules requires that both the following apply:i the land is, or is intended to be, the prin-

cipal place of residence for the member or for the member and members of the member’s family; and

ii the member is a qualifying person under the regulations

As the clause states the purchase may be by the member alone or as a joint tenant or tenant in common, some managers have interpreted this to allow trust purchases and have from this designed their require-ments to accept such applications. With a lack of a standardised approach across managers, it is advisable to check the position with each manager and well in advance of the date by which the KiwiSaver withdrawal is required.

Kiwisaver withdrawal for depositsFrom 1 June 2015, KiwiSaver first home with-drawals could be used to make a payment towards a deposit before the agreement for the purchase of a first home becomes unconditional. Under the previous rules, eligible KiwiSaver members who wanted to withdraw their savings to purchase their first home were unable to do so until the agreement for sale and purchase became unconditional.

The Scheme Rules were amended to allow KiwiSaver members to withdraw their savings to purchase their first home before the agreement is unconditional and this was achieved by making the withdrawal condi-tional upon two stages of undertaking to be provided by the purchaser’s practitioner to the manager.

Kiwisaver Act 2006, Schedule 1: KiwiSaver Rules8 Withdrawal for purpose of purchase of first home7. It is a condition of subclauses (3) and

(3B) that–…

c) the manager must require from that practitioner, before payment of the withdrawal,–

…iii) an undertaking that the agreement

is unconditional at the time the manager makes the request or, if the agreement is conditional, an undertaking that–

(a) payment of any amount of the with-drawal will be held by a stakeholder; and

(b) the stakeholder is obliged to hold the amount while the agreement is conditional; and

…(v) if the agreement is conditional at the

time the manager makes the request, an undertaking that–

(a) the stakeholder is obliged to repay the amount to the practitioner if settlement of the agreement is not completed in accordance with the

agreement by the due date or any extended date (non-completion), but excepting non-completion due to the purchaser’s default; and

(b) the practitioner will repay the amount that the practitioner receives from the stakeholder to the manager on account of the member.

The objective is for KiwiSaver savings that are withdrawn under this rule to be used to purchase a home or returned to the KiwiSaver funds manager.

It is widely agreed that this amendment was a great step forward to assist first home buyers with the “pain point” of a first home purchase where the usual diffi-culty is having available funds to pay the deposit. However, the ability to withdraw for deposits is a source of frustration and concern for practitioners. In the November 2017 Issue of The Property Lawyer (Volume 18 Issue 2) concerns regarding the under-takings required to be given by practition-ers for KiwiSaver Deposit withdrawals were canvassed. Those issues are still live and many practitioners simply refuse to deal with KiwiSaver withdrawals for deposits as a consequence. The problems do not only arise from the workability of the undertaking requirements but also from

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A “Canterbury Tale”The Library has acquired a biographical memoir of Sir Arthur Telford Donnelly: A Canterbury tale: the bachelor barrister’s grand innings – Sir Arthur Telford Donnelly 1890 -1954.

The biography is an unpublished manu-script written by Sir Arthur’s daughter Ann Elder, a historian, who writes: “This sketch of Arthur’s life uses familiarity with his house-hold from my early childhood and has been done in the belief that, as a Canterbury tale, the story will sink into oblivion unless told”.

Sir Arthur Telford Donnelly joined the office of the Crown Solicitors for Christchurch in 1919 when Samuel G Raymond was Crown Prosecutor, in what became the firm of Raymond, Stringer, Hamilton and Donnelly (later Raymond Donnelly). Ann Elder records that “Arthur Telford Donnelly was awarded a knighthood for services to law and cricket in New Zealand when aged 59, although he did

not hold high judicial office, nor had he ever played first-class cricket for his country. He was widely respected in his role as Crown prosecutor in Christchurch from appoint-ment in 1920 until the time he died.

As he matured, he earned a reputation for scrupulous fairness, wise practice of law and plain common sense. Concurrently he was cheered by cricket lovers for his proactive role as chairman of the New Zealand Cricket Council in the run-up to kiwi cricketers playing their first test match at Lord’s in 1931, despite his efforts being thwarted to persuade Aus-tralian teams to tour New Zealand regularly”.

The manuscript provides a well-re-searched record of Sir Arthur’s life within the context of his social and professional milieu. Stories and anecdotes illustrate this lively account of the life of a lawyer, described in Portrait of a Profession as having “… one of the best brains in the country … one of the scholars of the time, loving his books”. (E S

By Julia Wartmann, Librarian

Library News

Bowie, QC, p 279)A copy of the manuscript is now held in

the Library’s collections in both Canterbury and Wellington.

Signing offThis will be my last “Library News” item for Canterbury Tales as I retire at the end of February 2020.

I have had the good fortune of working in a role where each day is varied and inter-esting due to the wonderful intricacies of the law, or “never a dull moment” as we often say. My work has been made even more rewarding because of the great people I work alongside. I also want to mention how much I have enjoyed working with regular users of the Library. Thank you for all your support. The Library is a taonga of the profession and it has been an absolute privilege to work as Librarian at the Law Society Library in Canterbury for the past 12 or so years.

New booksSee the “New titles” tab on our Library cat-alogue on the Law Society website to find titles recently ordered or added to the Law Society Library collection nationally.

Contact LibraryFor further information or for any research or document delivery requests, email [email protected] or phone 377 1852.

misunderstandings about the withdrawal process and conflict with standard convey-ancing procedures.

ApplicationsMany of complaints fielded by the Banking Ombudsman to date centre on applications made after settlement and the inability for the application to be processed after the land is purchased. Adding to this are now the numbers of KiwiSaver members who are

aware that they have the ability to apply for a withdrawal for their deposit but do not understand that if the funds are to be used prior to settlement that the agreement must still be conditional.

For clauses 8(7)(c)(iii) and 8(7)(c)(v) of the Scheme Rules to apply the agreement must be “conditional at the time the manager makes the request.” If this is not the case and the agreement is unconditional then clause 8(7)(c)(iv) of the Scheme Rules will

dictate the procedure and the practitioner may only withdraw the funds by giving an undertaking that the amount will be paid to the vendors as part of the purchase price or will be repaid if settlement of the agreement is not completed in accordance with the agreement by the due date or any extended date.

To continue reading, please see The Property Lawyer magazine, Vol. 20 Issue 2.

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One of Christchurch’s oldest law firms, Harmans, has recently returned to its roots in the central city after an absence of some 8 ½ years following the 2011 earthquakes.

Established back in 1888 when Thomas De Renzy Harman first put up his shingle, the firm has since that time become a top tier Christchurch firm and, as managing partner Graeme Riach says, it always intended to return to the city centre. “While we have established a large profile and presence in Papanui, both before and particularly after the earthquakes, we have always been a central city firm… and when the time was right for us, we have made the move back into what is the best location we could have possibly hoped for.”

The commercial, family law and litigation teams are in the new city office which is on the second floor of the Westpac Building – on the corner of Cashel Street and Oxford Terrace. This provides easy access to the nearby Courthouse as well as proximity to other law and accounting firms. “The bars and restaurants are also quite handy!” Riach grins. “And the Riverside Market which opened its doors the same day we did at the end of September, is a

huge drawcard to bring the crowds back into the city.”

The firm’s private client, property, seniors law and estates departments remain in the Papanui office – giving ease of access for the clients in these areas of the practice and flexibility for staff. In this respect the firm encourages mobility between the dual offices and many of the partners and other staff will work in the “other location” on various days when this suits clients or their own commitments.

In terms of fit out Graeme explains, “We had only in the last few years carried out a full office fit out in the Papanui premises and the environment there for both clients and staff is still modern and comfortable. We did not want to waste this investment nor the materials used and accordingly, with an eye on sustainability, we have utilised many of the office walls and glass doors from Papanui in the city fit out. Unlike many of our colleagues and other

professionals we have continued to provide offices for many of the legal staff as we prefer that environment to full open plan.”

Harmans celebrated its return to the city with a function on 1 November – attended by the Minister of Justice, Hon Andrew Little who generously gave a speech in which he officially opened the office, as well as Mayor Lianne Dalziel and Dr Duncan Webb, MP for Christchurch Central. Those attending also included members of the High and District Court judiciary as well as colleagues from other firms and barristers chambers together with professionals from other disciplines. The office layout and location earned glowing praise from all who attended and Graeme Riach says the partners were delighted with the feedback and the numbers who attended. “It was certainly a fitting celebration and reflected the immense pride and excitement we have in rejoining our colleagues in the central city.”

Return to the Central City for Harmans

www.harmans.co.nz

T (03) 352 2293 E [email protected] P PO Box 5496, Christchurch 8542Central City 79-81 Cashel Street, Central City, Christchurch 8011 Papanui 485 Papanui Road, Papanui, Christchurch 8053

Hon Andrew Little

Jeremy Daley & Mayor Lianne Dalziel

Amy Hyland, Tom Appleton & Harriet Daley

Harmans address details are now:

Education Programme

NZLS Continuing Legal Education (CLE Ltd) To register and for other information check the CLE website, www.lawyerseducation.co.nz

Christchurch

February 2020» 11 Feb – CPD top up day – conference» 11 Feb – Webinar – Amalgamations –

getting the application right» 14 Feb – Duty Lawyer Training - CHCH» 15 Feb – Evidence and Trial Preparation» 19 Feb – Webinar – Construction - Case

Law Update» 20 Feb – Webinar – Trusts & Offshore

Beneficiaries - Taxation» 21 Feb – Duty Lawyer Training – Timaru» 24 Feb – Webinar – Converting Cross

Lease to Free Hold and Unit Title

March 2020» 4 March – Webinar – Franchising – Essen-

tials & Updates» 10 March – Webinar – Immigration & Pro-

tection Tribunal – Humanitarian Appeals» 11 Mar – Webinar – Agreement for Sale &

Purchase – vendor warranties» 12 March – Webinar – Retirement Village

Option» 16 March – Webinar – Professional

Indemnity Insurance» 18 Mar – Update on Contract» 19 Mar – The Art of Happiness» 20 March – Speaking with Impact – Talking

so that People Listen» 30 March – Webinar – Disclosure – Crim-

inal Law» 31 March – Webinar – Earthquake

Strengthening Issues – Impact on Com-mercial Buildings

Out of Christchurch» 13-15 Feb – Auck – Stepping Up» 18 Feb – Auck – Drafting Wills s 55 PPPR

Act applications» 25 Feb – Auck – PRA Creditors Remedies» 25 Feb – Auck - Relationship Property –

Debts and Third Parties» 3 March – Auck – Tax Snapshot for

Non-Specialists» 6 March – Wgtn - Duty Lawyer Training» 18 March – Wgtn – Trust Account

Administrators» 25-27 Mar – Wgtn – Lawyer for Child

Alzheimer’s Canterbury Inc has recently changed its name to Dementia Canterbury Inc.

Lawyers in Canterbury or the West Coast who become aware of any bequests to be distributed to Alzheimer’s Canterbury Inc can ring Dementia Canterbury Inc at 0800 444 776 or write to PO Box 20567, Bishopdale, Christchurch 8543.

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A reminder that the CPD year ends on 31 March 2020 and your CPD declaration is due no later than five working days after this date. Now is a good time to check your CPD requirements and ensure that your CPD learning plan and record (CPDPR) is up to date. If you would like any tips or remind-ers on the CPD process, there is a range of resources at www.lawsociety.org.nz/cpd.

You can complete your online CPD decla-ration at any time once you have met your requirements. If you have any questions about your CPD requirements, how to make your declaration, or wish to apply for a deferment of your CPD requirement, please contact [email protected]

CPD Declarations due soon

Email or call us for more details. Phone 03 348 6960Email [email protected]

Reaching those who can’t reach out

Anglican Care provides critical social services in the Canterbury area:

• The City Mission• Anglican Living (Care of the Aged)• Community Development• Anglican Care, South Canterbury

We do this vital non-denominational work with financial support from the community. This includes bequests. Can your clients help us to help others and leave a lasting legacy?

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South Canterbury Lawyers enjoying their Christmas Function

JOHN MATTHEWSMediation Arbitration Negotiation

For details, please go to: jgmatthews.co.nz Phone: 0272276104

Member of Canterbury ChambersHigh Court Associate Judge 2011 – 2019

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