When Privacy Controls Fail – Lessons from the Manage My Health Breach

When someone close to you dies, you expect grief — but you do not expect to feel erased. If the will leaves you out, or treats you as an afterthought, it can land as a final dismissal: I wasn’t important enough to be recognised. Being left out of an estate can feel personal, even when people around you tell you to ‘let it go’. If you were a spouse, partner, or child and the will does not reflect the relationship you had (or the support you reasonably expected), it is normal to want more than the money. You want recognition that you mattered. A Family Protection Act claim is the main way New Zealand law responds to that problem. In plain terms, it allows the Court to step in where a will (or an intestacy outcome) leaves a close family member without proper provision, and to adjust the distribution of the estate to better reflect the responsibilities the deceased owed to their family. What is a Family Protection Act claim — and when do people bring one? People usually consider a claim when they have been left out entirely, left with a token amount, or when what they have received does not match the nature of the relationship or their circumstances. These claims are especially common where there are blended families, competing expectations, or uncertainty about whether children will ever receive meaningful provision. The Act can be used by a range of close family members. Commonly, that includes spouses/partners and children, and sometimes grandchildren, stepchildren (in limited circumstances), and parents. It is also worth knowing one practical point early: the Court’s ability to help depends on there being estate assets available to meet any adjusted provision. That is one reason early advice matters — it helps you understand what is in the estate, what options exist, and whether it is sensible to proceed. Making the claim practical: ‘no win no fee’ and litigation funding Cost is often what stops people taking the next step. In many cases, there are ways to structure costs so a claim can be pursued without having to fund the litigation month to month. One option is litigation funding. Litigation funding involves an external third‑party funder (not your law firm) paying some or all of the legal costs in return for an agreed share of any recovery. In the right case, it can remove the need to fund the litigation yourself as it progresses, and it can make the process feel closer to a ‘no win no fee’ arrangement in practical effect. Litigation funding is one tool, sitting alongside pro bono work and civil legal aid, that can help provide access to justice. Holland Beckett actively works in all three areas. Where litigation funding may help, our lawyers will look for options to facilitate it, including working with external litigation funders, so that people with genuine estate claims can pursue recognition and fair provision without the process becoming financially disruptive. Talk to us If you are considering a Family Protection Act claim — or even if you are simply asking yourself, ‘Was I treated fairly?’ — we can help you understand your position, your options, and whether litigation funding may be available for your case.

Have you ever felt you have a strong claim, but no clear way to fund it? The cost, the risk, and the uncertainty can make it feel out of reach. You are not alone. Many people and businesses step back from good claims simply because the financial burden feels too high. That reaction is common, and it is understandable. What litigation funding is and what it achieves Litigation funding allows a third party to pay some or all of the costs of a legal claim. That includes legal fees and the expenses that come with running a case. In most arrangements, the funding is provided on a “no recovery, no return” basis. This means the funder carries the financial risk. If the claim does not succeed, the funded party usually does not need to repay the funding. Funding often also protects against adverse costs. That can remove the risk of having to pay the other side’s legal costs if the claim does not succeed. In return, the funder is paid if the claim succeeds. That payment usually takes the form of either a multiple of the costs they have funded, or a share of the proceeds recovered from the claim. The result is a shift in risk. Claims can be pursued on their merits, rather than on who can afford to pay for them. When people use litigation funding Litigation funding is often associated with people who cannot afford to bring a claim at all. That remains an important use. It can open a path to justice that would not otherwise exist. But that is only part of the picture. Businesses and individuals also use funding where they could pay, but the cost would place too much pressure on cashflow or distract from other priorities. It is a way of managing risk. Even strong claims carry uncertainty, and funding can reduce the financial exposure that comes with taking that step. How the process can be made practical Funding is not available for every case. Funders usually look for claims with a good chance of success and a clear recovery at the end. They will carry out their own assessment before agreeing to fund a claim. As part of that, they may require information about the case and its prospects. A funder may also have some input into how the case is run. That can include oversight of key decisions, although the claim remains in the hands of the client and their legal team. The key is structure. A well-prepared claim, with clear evidence and a defined outcome, is far more likely to attract funding and proceed smoothly. Talk to us Litigation funding can change what is possible. It can remove barriers, manage risk, and allow claims to proceed that might otherwise sit unresolved. Holland Beckett has experience working with litigation funders and structuring funded claims. Our team can help you assess whether funding may be available and how it could work in your situation. If you would like to explore your options, contact us for a confidential discussion.

What happens when a mortgagor defaults and when can a mortgagee exercise a power of sale: In circumstances where a loan advance is secured by a mortgage over land and the borrower (Mortgagor) defaults in their payment or other obligations owed to the lender (Mortgagee), the Mortgagee’s right of action against the Mortgagor becomes exercisable, entitling the Mortgagee to take steps to enforce its mortgage security to recover the outstanding loan amount. The exercise of a Mortgagee’s rights and powers against a Mortgagor in default are governed by strict requirements under the Property Law Act 2007 (Act) and are subject to the terms of the underlying loan agreement and/or security documentation (together, the Loan Agreement). Importantly though, any term of a Loan Agreement that conflicts with certain provisions of the Act is considered ineffective and unenforceable – these provisions of the Act cannot be contracted out of and will prevail over any inconsistent terms in a Loan Agreement. Notice Requirements When a Mortgagor is in default of the terms of their Loan Agreement, the rights and powers conferred on the Mortgagee are considerable and can have a significant impact on a Mortgagor. Therefore, a Mortgagee may only exercise its powers of enforcement after giving valid and effective notice to the Mortgagor of the default, or defaults, (Default Notice) and the Mortgagor has been given an opportunity to remedy the default(s) within a specified period of time from service of the Default Notice (the Remedial Period). Thus the Act provides statutory safeguards against arbitrary enforcement action by a Mortgagee against a defaulting Mortgagor, whilst preserving and codifying a Mortgagee’s rights and powers. The Act specifies that a Default Notice must “adequately inform” the Mortgagor of: the nature and extent of the default; the action required to remedy the default (if it can be remedied); the timeframe in which the default must be remedied, being not less than 20 working days (or 60 working days in certain circumstances) after service of the Default Notice on the Mortgagor; and the consequences that will follow if the default cannot be or is not remedied within the timeframe specified. Mortgagee’s Powers If a Default Notice has been issued, and following expiry of the Remedial Period the default remains unremedied, the Mortgagee becomes entitled to exercise its “powers” by doing any or all of the following: selling the mortgaged property or any part of it (commonly known as a mortgagee sale); entering into possession of the mortgaged property; appointing a receiver to manage the mortgaged property and recover income from the mortgaged property; and/or calling up as due and payable all amounts secured by the mortgage prior to the term expiry date (in circumstances were the term of the loan has not yet expired). Any attempt by a Mortgagee to exercise such powers prior to issuance and expiry, without remedy, of a Default Notice will be unlawful and can expose a Mortgagee to a claim for damages and/or injunctive relief by the Mortgagor. For this reason, a Mortgagee seeking to exercise its powers against a Mortgagor in default must take care to ensure strict compliance with the notice requirements in the Act. Acceleration Most standard form loan agreements contain an “acceleration clause” providing that on default by the Mortgagor all amounts secured by the mortgage become payable, or may be called up as payable, earlier than would be the case if the Mortgagor was not in default. So, for example, a Mortgagee and a Mortgagor have agreed that the term of a loan is 20 years from the date of advance of the principal sum, meaning the Mortgagor has 20 years to make scheduled repayments of the principal sum plus interest, costs and any other charges. The Mortgagor agrees to make fortnightly repayments to the Mortgagee during the term of the loan. However, five years into the 20 year term, the Mortgagor defaults in their obligations by failing to make the agreed fortnightly repayments when due. This means the Mortgagee is contractually entitled to “accelerate” the repayment of the loan by requiring the Mortgagor to repay the full principal sum (together with interest, costs and other charges) immediately, without having to wait for the 20 year term to expire. However, before a Mortgagee can rely on an acceleration clause, a valid and effective Default Notice must first be issued to the Mortgagor and have expired without remedy. Extended Remedial Period In most cases, the minimum Remedial Period will be 20 working days after the date of service of the Default Notice. However, in situations where the Mortgagor has defaulted in repayment of the principal sum on the term expiry date but has continued to pay interest, and the Mortgagee has accepted those interest payments, for a period of three months or more after the term expiry date (and so long as there are no other defaults existing) then the Default Notice must allow a Remedial Period of at least 60 working days after service, before the Mortgagee may exercise its powers of enforcement. Service A Mortgagee will be expected to prove that it has formally served the Mortgagor with a Default Notice, which has expired without remedy, before the Mortgagee is entitled to exercise any of the powers. In addition to service of the Default Notice on the Mortgagor, the Act requires that other specified parties be served with a copy of the Default Notice, but only if the Mortgagee as actual knowledge of those parties’ names and addresses. The parties required to be served include any former mortgagor, covenantor/guarantor, subsequent mortgagee, any holder of any other subsequent encumbrance, caveator or any person who has lodged a notice of claim under the Property (Relationships) Act 1976. Because a Mortgagee’s right to exercise its powers only becomes available following service of a Default Notice and expiry of the Remedial Period, the Default Notice must be validly and effectively served on the Mortgagor (and any other person required to be served). Compliance with the service provisions of the Act is mandatory and failure to adequately serve a Default Notice has the potential to restrict or delay the Mortgagee exercising its powers. Such a failure also allows scope for a Mortgagor to challenge the Default Notice and/or seek to prevent or injunct the Mortgagee’s exercise of the powers. Such steps can result in a Mortgagee having to restart the process of serving a Default Notice, costly delays, Mortgagee liability and/or litigation. A Mortgagor served with a Default Notice should contact the Mortgagee and seek legal advice without delay. Usually by the time a Mortgagee issues a Default Notice the Mortgagor has been in default of its obligations under the Loan Agreement for some time and the Mortgagee’s previous requests for remedy have been ignored. In our experience, proactive engagement by a Mortgagor is much more likely to lead to the parties being able to find mutually acceptable solutions. Holland Beckett can provide advice and assistance to Mortgagees and Mortgagors in respect of their rights and obligations under the Act.