Stephens Lawyers

An on-going difficulty we see New Zealand businesses facing is knowing whether their workers are classed as employees or contractors. It is an important distinction to make as the rights and privileges allowed to each are very different and only an employee will have the protection of the Employment Relations Act.
One of the first traps employers fall into is believing that their intention will provide the answer. While the Employment Court and Tribunal will take this into consideration, it is by no means the deciding factor. Just because you intend for your worker to be an employee or a contractor does not make them so. Similarly, the language used by either party or the wording used in contracts does not provide a definitive answer either, calling your worker a contractor will not necessarily make them one.
The answer to the question comes from determining “the real nature of the relationship”. As well as taking industry practice into consideration, there are 3 tests which the court will look at.
The control test asks questions relating to if the worker or the employer sets the hours of work, the work content and the level that the employer supervises the worker. The assumption is that the more control an employer has over the worker; the more likely they are to be an employee.
The integration test asks whether or not the worker is part and parcel of the organisation and whether or not they are necessary for the running of the business. The less integral the worker, the more likely they are to be a contractor.
The fundamental test looks at whether or not the worker is able to make a profit for themselves, if they are able to bring in independent contractors and who would be liable if something went wrong. These questions help determine if the worker is in business on their own account. Someone in business on their own account will more than likely be a contractor.
These tests are not clear cut and are by no means an exhaustive list. This highlights the importance of making sure that both parties are in agreement from the beginning and that the real nature of the relationship is in line with the intention of the parties and the contractual language used.
For further information please contact Jane Traynor on jane.traynor@slaw.co.nz

For most New Zealanders, the purchase of their home is their biggest investment in their life. To make sure that the property you buy is worth what you pay for it, we always recommend your agreement to purchase (or contract) is subject to a number of conditions so you can research the property before you commit to buying it. If you don’t have these conditions in your offer, then you don’t have the protection of being able to pull out of the contract if your investigations raise anything which would later make you change your mind about buying the property. The current leaky building problems are just one of a number of matters that need to be looked into before you commit to a purchase. If you don’t have conditions you don’t have the protection of an “out”. Talk to your lawyer before you sign.
To discuss your requirements or for further information, contact Chris Field on 04 9159586 or by email chris.field@slaw.co.nz

You may have had thoughts about whether or not you need to have a will. Under New Zealand law, if you are 18 years or over and you own anything, that will become your estate when you die. If you do not have a written will, the law will make assumptions about who is to receive your estate (typically your closest living relatives) and who is to administer or arrange this.

A will is an ideal document for you to have your say about what you wish to happen to your possessions on your death and how you would like matters regarding your estate to be dealt with. You can appoint who you want to be in charge of your estate, make provisions for your family and gift items of sentimental value or money. It is all about what matters to you. You can include directions about your funeral arrangements, whether you wish to donate any organs, and similar matters. A lot of people have a reluctance to formalise their will, but we find that by doing so you lessen the anxiety and uncertainty of your surviving family members and close friends.

To discuss your requirements or for further information, contact Chris Field on 04 9159586 or by email chris.field@slaw.co.nz

There has been quite a lot of publicity given to the upcoming abolition of gift duty. Formal assent has now been given, and the abolition will take effect from 1 October 2011. This means that anyone who has a family trust, and who has a loan to the trustees of the trust needs to consider whether they wish to forgive all that debt in October, or whether there may be tax or accounting reasons why it would be helpful to retain that debt.

Where a family trust is part of a more complex asset arrangement, you will certainly need to consider taking accounting advice. Otherwise, for many other people, this will be a welcome opportunity to forgive all the debt owed by the trustees to them personally so all the trust assets are ring fenced and wholly in the hands of the trustees. This will also lessen on-going trust administration costs. To discuss your requirements or for further information, contact Chris Field on 04 9159586 or by email chris.field@slaw.co.nz

 The Unit Titles Act 2010, which came into force on 20 June 2011, requires every unit title body corporate to hold a “first” Annual General Meeting before 20 December 2011.  This is irrespective of whether the development was established under the Unit Titles Act 1972, and has already held an AGM in the current calendar year.  However it can be combined with any AGM scheduled to take place before 20 December.

While there is only one thing absolutely required to be dealt with at that AGM, which is the appointment of a chairperson of the body corporate, there are a range of other matters that can only be dealt with at a general meeting (or by resolution in lieu of that meeting) that a body corporate needs to consider.  We have identified over 59 matters that the body corporate needs to think about.

From a day to day perspective, some of the most important of these are delegations to the body corporate committee.  A body corporate must establish a committee if there are 9 or more units, or resolve not to do so.  A body corporate may establish a committee if there are less than 9 units.  There are at least 30 different matters that could be the subject of delegation, and these need to be individually considered. There are also matters that cannot be delegated.

Stephens Lawyers has developed a checklist of matters that a body corporate needs to think about bringing before the mandatory AGM.  To discuss your requirements or for further information, contact Alan Henwood on 04 915 9584 or by email, alan.henwood@slaw.co.nz.