James McDougall

Qualifications

LLB Canterbury University 2011
Admitted to the Bar in New Zealand 2011

Community Activity

Trustee of the Rotorua Bike Festival Trust
Professional advisers committee, Geyser Community Foundation

Contact

DDI: +64 7 349 5566
M: +64 27 418 4315
E: james.mcdougall@hobec.co.nz

James is a Partner at Holland Beckett and leads our Rotorua litigation team. He is an experienced litigator advising clients on a broad range of contentious issues.

James regularly appears in Court and various tribunals, and has a particular skill identifying and bringing appropriate cases to early resolution, or otherwise ensuring they are determined by the Courts or at arbitration in a strategic and efficient manner.

Before joining Holland Beckett in 2017, James specialised in insurance litigation and professional indemnity defence claims, both in New Zealand and London. He maintains an interest in professional negligence cases and regularly acts against negligent advisors, while also taking defence instructions for insureds. An additional specialty is unit title advice, both contentious and non-contentious, for body corporates, their committees and individual unit owners. Other areas of expertise include shareholder disputes; insolvency and director claims; property, lease and Māori land disputes; trustees and estate claims; and aviation regulation.

Since 2018 James has been a trustee of the Rotorua Bike Festival, an annual event celebrating all forms of biking in Rotorua, which focusses on increasing the community’s access and ability to bike.

James McDougall's Expertise

Civil Litigation & Dispute Resolution

James McDougall's News & Resources

Privacy requests – how to respond to a request for personal information?

Organisations and businesses are obtaining and retaining more and more personal information from customers, employees and third parties. Requests for access and disclosure of personal information are also becoming more common. If you receive a request for access to personal information held in your systems, either by a third party, or by the person themselves, multiple factors will need to be considered to ensure compliance with the Privacy Act 2020. If an organisation receives a request for personal information, it needs to move quickly as there are statutory time limits. It should quickly evaluate whether the information sought is held, whether disclosure is required, and how it should be disclosed. Complying with the Privacy Act, requests and association obligations can be complex. This is especially the case where the request is unwelcome. The Privacy Commission publishes general guidance for organisations and individuals. We are available to assist in providing specific advice on privacy obligations, privacy policies and responding to requests for personal information. Timeframes and Extensions Organisations have time frames they must meet under the Privacy Act when responding to requests. Once a person has made a request for personal information, the organisation has 20 working days to respond. At a minimum, the decision as to whether the information will be released must be communicated within this period. If you believe that the request is more appropriately directed to another organisation, as you do not hold the information, you must advise the requestor within 10 working days. Extensions may be available in some circumstances, for example if there is a large quantity of information requested. Grounds to withhold private information The Privacy Act limits the ability to disclose information held about individuals. It may be necessary to withhold personal information for the following reasons: You did not collect the information in question for the reason you are being asked to disclose it. There are readily identifiable people in the information. The individual concerned has not authorised disclosure. Disclosure is unnecessary, in that there is no reason, such as to prevent serious threat to public safety or to assist in the conduct of proceedings before the Court. Your privacy policy does not require the information to be disclosed. The information is being sent overseas, and that country does not have adequate privacy laws. Redaction/disclosure Information disclosed should be limited to only that which was requested. Where the information sought does include identifiable information, or information irrelevant to the request, it may be appropriate to remove, redact or blur that information before disclosing. When redacting information, only redact information which actually needs to be with-held. Provide a clear explanation as to why this has been done. Disclosure breaches Organisations should be wary of breaches, as they are obligated to report any potential breaches that have caused or are likely to cause serious harm. Notification to the Privacy Commissioner should occur as soon as possible after becoming aware of the breach. This includes incorrect or inadvertent disclosure of personal information. Privacy breaches can be investigated by the Privacy Commissioner and the Human Rights Review Tribunal. The decision will be published. Financial penalties and negative publicity can occur. Can you claim your costs for this process? In some circumstances organisations can charge for the costs incurred in assessing and providing information. This should be the exception, not the rule. Organisations should advise the person requesting the information of the cost prior to conducting the work.

Building and weathertightness defects: Information for Body Corporates and owners

The apartment building is suffering from building defects, what should be done? Defects (whether workmanship, or materials) commonly lead to weathertightness issues and further deterioration of the building and materials. Depending on when the building was constructed, or previous remedial work carried out, there may also be various warranty periods that are important. Where an owner or the body corporate is aware of possible defects, the first steps are to commission an independent inspection by a registered building surveyor/inspector to determine the nature and extent of the defect and identify whether any warranty or limitation periods are about to expire. Deterioration of materials, potential defects, and maintenance issues, are likely to be identified through the process of a body corporate preparing or reviewing its long term maintenance plan, by an owner noticing the potential problem or by the body corporate and/or building manager. Encouraging regular reporting on these matters may be helpful. Who should commission the report/investigation? Both owners and the body corporate have obligations to repair and maintain. Whether the body corporate or an individual unit owner should commission the inspection and report depends on the type and location of defect or concern. An owner can commission the investigation if the defect is confined to an individual unit and not a “building element” or “infrastructure”. However, the owner is unlikely to have any obligation to share the report and findings with the body corporate or other unit owners. Where the defect is believed to be widespread or systemic, the body corporate is likely to be better placed to commission the report. If the investigation concerns common property, building elements, or infrastructure, then the body corporate has a responsibility to repair and maintain and should therefore commission the report. The investigation report has identified building defects, what should be done? This creates two separate issues. Depending on the nature of the defect, the body corporate or owner(s) may need to repair it. If the defect is a result of material or workmanship failure and within a warranty period and/or limitation period, the body corporate and owners are likely to have a claim against the responsible parties (building contractors, developers, local authorities, architects, etc) for the costs of repairs, together with other costs (such as general damages for loss of rent or use, alternative accommodation; investigation costs and legal expenses). The process of repairing extensive defects and bringing claims against responsible parties are complex, particularly for body corporates. It is critical that professional advice from building and construction specialists and lawyers is sought to ensure the correct processes are followed and necessary evidence obtained to prove the damage and losses. Generally it will be necessary to obtain multiple building reports. The first report is likely to be a visual inspection identifying potential defects. A further invasive inspection will normally be conducted (particularly where internal linings, framing or membranes may have deteriorated) to identify the extent of the issues. After that it may be possible to prepare a remediation methodology, preliminary scope of works and have the repairs costed/tendered. Who pays the cost of remediation or litigation? Assuming the body corporate is undertaking the remediation work or bringing a claim against the liable parties, owners will be levied the cost of doing so. Generally this is on a unit entitlement basis, like other levies. However, the nature of the repairs may mean that it is fair and appropriate to use a different levying method/proportion. Any alternative method needs approval of owners, and possibly a s74 order. Remediation is often contentious. It is important that the body corporate and committee/project team appropriately share information with owners, take into account their views and have the necessary authorisations and approvals in place to progress the project. If litigation is successful (either through court judgment or settlement), the body corporate may be reimbursed its legal costs. The amount depends on various factors, but in both cases it is unlikely that the body corporate would recover all of the legal costs incurred. How long will this process take? Unfortunately, from when a defect or leak is identified, until when it is repaired and/or the costs of repairing recovered from any liable parties can be many years. This is largely due to the need for the body corporate and owners to investigate, identify the cost of repairs, and then resolve a claim through the court or negotiation. The extent and complexity of the defects and the cost of repairs usually has a significant bearing. If it is a relatively minor issue in which owners have a common interest, like replacing a roof, that may be resolved quite quickly. However, if there are multiple issues, caused by different and multiple parties and it is necessary to issue court proceedings, then it is likely resolution could take several years.

Amendments to the Unit Titles Act and Regulations: What owners need to know

After much delay and consideration, amendment of the Unit Titles Act 2010 and associated regulations have been approved. The amendments modify the law in many significant ways. These amendments were designed to improve the transparency and accountability of bodies corporate in their day-to-day running, ensure that potential buyers of unit titles obtain appropriate information from a vendor, establish professional standards and requirements for body corporate managers and committee members, and enhance the processes around long-term maintenance plans. We outline below a number of owner-specific changes. Decision-making The amendments clarify that a matter must be decided by ordinary resolution (simple majority of eligible voters present) at a general meeting unless the Act requires the matter to be decided by special resolution (75% of eligible voters present) or the body corporate committee has exercised a delegated authority to decide that particular matter. It is, however, open for the body corporate to decide matters within its functions and powers regardless of whether they have been delegated to the committee. The matters that must be decided by special resolution include, for example, a reassessment of ownership interests for each unit, a proposed sale of common property or a decision not to establish a long-term maintenance fund. These reserved matters cannot be delegated by the body corporate to its committee. Owners are now also expressly allowed to remotely attend and vote at a general meeting, even if the body corporate operational rules say otherwise. However, the Act also clarifies that an owner can only vote once they have paid their levies. Committee governance Although common practice, a body corporate committee must have a written agenda and keep written records of its meetings and decisions. Minutes must be promptly disclosed to all unit owners and no later than one month after the meeting. If a unit owner requests a physical copy of the minutes, the body corporate committee must provide the copy within a reasonable time. Members of the committee must now comply with a code of conduct: to act honestly, fairly, in confidence, in the body corporate’s best interests and in accordance with the Act and regulations. Members must also commit to understanding the Act and the code of conduct. Members of the committee must also declare any conflicts of interest to the committee. The committee must then record these declarations in a register and produce these upon request to owners and other interested parties (depending on the operational rules). A member who has a conflict of interest cannot vote on the issue, but may take part in any discussion relating to the issue or matter of interest and be present for any vote, unless the committee decides otherwise. If a conflict of interest was not disclosed, the committee’s decision is still valid, but the member’s behaviour may be censured. Disputes The Tenancy Tribunal’s jurisdiction has increased from $50,000 to $100,000. There is also a significant reduction in filing fees for proceedings at the Tribunal, from a maximum of $3,300 down to $500. When a body corporate attempts to recover reasonable costs from owners relating to recovering unpaid levies, legal costs are now a fixed amount. These changes are likely to increase efficiency and reduce costs when it comes to pursuing and resolving disputes in the Tenancy Tribunal. Buying and selling a unit title property If you are looking to sell your unit title property, as part of the sale process you must provide a pre-contract disclosure statement (before any agreement is signed) and a pre-settlement disclosure statement (before the settlement date). Under the new law, a buyer can no longer ask for additional disclosure. This is instead replaced by the requirements on the vendor to provide complete and accurate disclosure statements. Compared to the previous law, there are additional matters that must be included in both the pre-contract and the pre-settlement disclosure statement. These include, for example, whether the body corporate is involved in any legal proceedings, the body corporate’s financial statements and audit reports, minutes of general meetings, the body corporate levies and whether there has been any changes in the operational rules since the pre contract disclosure statement was provided. There are also separate requirements for statements of “off-the-plan” units which acknowledge that many of the matters will only be estimates at that stage. The new law recognises that pre-contract and pre settlement disclosure statements should only contain information to the extent that an owner is able to provide it at that time. Disclosure statements A buyer can cancel a contract to purchase a unit title property if the vendor fails to provide a complete and accurate pre-contract or pre-settlement disclosure statements, subject to strict notice periods. However, the buyer cannot cancel if the vendor has done what they reasonably can to provide a complete and accurate statement or if the information does not exist or if the missing or wrong information does not substantially alter the benefit or burden of the parties. If the vendor provides a complete and accurate pre contract disclosure statement at any stage, but it comes within five working days of settlement, the buyer can delay settlement by another five working days from the date of disclosure, presumably to have enough time to assess the information. What now? If you intend to sell your unit title property in the future, buy a unit title or be a part of a body corporate committee, it is important that you are aware of your obligations and duties, as well as your body corporate manager, real estate agent or solicitor, who may be assisting you through this process.

Mandatory Farm Debt Mediations – What you need to know

A new law has come in affecting how creditors can take enforcement steps against borrowers and guarantors of farm debts. The Farm Debt Mediations Act 2019 (FDMA) came into force in 2020, which prevents secured creditors from taking enforcement action in relation to farm debts without taking certain steps. What is a farm debt? A “farm debt” is defined as being: a debt owed by a farmer (a person involved in a primary industry or a debtor where the debt was incurred to conduct a primary production business) as principal debtor or guarantor; incurred for the purpose of conducting a primary production business (eg. horticulture, agriculture, aquaculture, including businesses such as sharemilking but does not include forestry, mining or providing labour/materials to a primary production business) or related activities; and secured wholly or partly in farm property (being any property used in connection with a primary production business. Property can include vehicles, animals, resource consents) What is an enforcement action? “Enforcement action” includes appointing a receiver, serving notice under s119 of the Property Law Act 2007 to exercise powers of sale, taking possession or assuming control of the farm property or applying to liquidate or bankrupt the farmer. A letter advising of a default and reminding the debtor to make payment is not an enforcement action. When can ‘enforcement action’ be taken by a creditor? A secured creditor can only take enforcement action in relation to the farm property when either: an enforcement certificate is in force in relation to the relevant farm debt. A creditor can apply to MPI for a certificate if the farmer declined to attend mediation or the creditor attended mediation with the farmer in good faith. An enforcement certificate lasts for 3 years; or the parties have entered into a mediation agreement in the past 3 years. If any of enforcement steps are taken without an enforcement certificate or mediation agreement, the enforcement steps will be void. If the farmer obtains a “prohibition certificate”, a creditor cannot take any enforcement action for 6 months. The farmer can apply to MPI for a prohibition certificate if the creditor declined to mediate or did mediate but not in good faith. Action could be taken against non-farm property (of the farmer) secured under a farm debt, or potentially against farm property (of the farmer) if the farmer is insolvent or subject to insolvency proceedings. However, action cannot be taken against a guarantor in relation to any kind of property, farm or non-farm unless an enforcement certificate or mediation agreement is in place. If there is an urgent need to protect a creditor’s interests, the creditor can apply to the High Court to appoint a receiver. Mediation Generally, farmer and a creditor can both request mediation, although a farmer can request one at any time and the creditor can only request one once the farm debt is in default. The mediation process is confidential. There are specific formalities and procedures under the FDMA, including that: the request must be in writing; the other party (‘respondent’) must respond to the mediation request within 20 working days. If they do not reply, they are deemed to have declined mediation; if the respondent responds by declining to attend, they must set out the reasons why; a creditor must agree to mediation unless there is good reason; and unless the parties agree, the mediation must occur within 60 working days of the request. A farmer can only be asked to contribute up to $2,000 towards the cost of the mediator, and a creditor must meet it own costs of the mediation process. The legislation indicates that any of the creditor’s mediation related costs cannot be recovered from the farmer in any way, which would override standard contractual cost indemnities. The parties must mediate in “good faith”. If a creditor declines to attend mediation without good reason or without setting out its reasons, that will be evidence of ‘bad’ faith. The legislation also indicates that a creditor refusing to reduce or forgive a debt, or alter the loan terms, could be evidence of bad faith, but not on its own. What now? The FDMA applies to all farm debts, irrespective of when the debt was incurred. The FDMA cannot be contracted out of. As this legislation is brand new, it has not yet been interpreted by the Courts, so it will be interesting to see it work in practice. Holland Beckett has expertise in rural law and can advise you on the impact of the FDMA on any farm debt, and assist you to navigate the mediation and enforcement process.

Update on trust law – can a trustee consider settlor wishes or other trust benefits?

Trustees and beneficiaries of trusts should be aware of a recent court decision, which clarifies two factors that trustees can take into account when deciding whether to distribute trust assets. In December 2021, the Court of Appeal’s decision in Kain v Public Trust [2021] NZCA 685 has given trustees some guidance on whether two types of factors can or should be considered by trustees. These are: A settlor’s wishes after the trust was established; and If a beneficiary has received (or can expect to receive) a benefit from a separate but related trust. Settlor’s later wishes When establishing a trust, a settlor expresses their intention (or wish) for how the trust’s property is to be used. Later on, a settlor may convey further or different wishes for the way in which they want the trust property to be used. The Court of Appeal held that: A trustee is entitled to take into account wishes and subsequent wishes if they are consistent with the terms and purpose of the trust. To do this, a trustee can read and understand these wishes; and If the more recent wishes are inconsistent with the settlor’s original wishes, a trustee can consider the more recent wishes, however it is a matter for the trustee’s discretion to actually give effect to those recent wishes (in effect overriding the original wishes). An example would be, as in the Kain case, if there is a statement by the settlor wanting equality between beneficiaries that is not contained in the trust deed. Depending on the circumstances, this wish for equal treatment may be able to be taken into account by a trustee, but those wishes do not have to be followed. Interrelated Trusts The Court of Appeal confirmed the general principal that a trustee must take into account all relevant considerations, and not take into account any irrelevant ones. The Court then held that where there are multiple trusts that are related (ie. are connected to one family group), it can be relevant what a beneficiary has received (or might be expected to receive) from a related trust. But it is not a requirement to do so. For example: There are two trusts relating to the Smith family, Trust A and B. Peter is a beneficiary of both. Mary, the trustee of Trust A, wants to make a decision in relation to Trust A’s assets. Peter has received a house from Trust B. Mary can take account of the house which Peter has received from Trust B when making her decision, but she does not have to. At Holland Beckett, our litigation and estate lawyers can guide trustees through making difficult decisions, or can give advice to beneficiaries about decisions that have been made by trustees if you think the decision is wrong. Please do not hesitate to get in contact.