Tim Conder

Everyone knows about the Consumer Guarantees Act 1993 (CGA), which provides a “consumer” with remedies if a business has failed to provide goods or services to a reasonable standard. But what happens if you are a business purchasing goods? The answer is not found in the Consumer Guarantees Act 1993; it is found in the Contract and Commercial Law Act 2017 (the CCLA). The CCLA implies seven conditions and/or warranties in a contract for the sale of goods: right to sell; conformity with description; fitness for purpose; merchantable quality; conformity with samples; rights of examination, and; acceptance. Not every breach of contract allows for rejection, but a trivial breach of a condition does. This means that a buyer can return goods supplied to a seller. Importantly, whether a term is a condition or a warranty depends on the construction of the sale of goods contract. An important implied condition is “fitness for purpose”. This means that goods must be reasonably fit for purpose. But, unlike the CGA, this condition will only apply where the buyer makes known to the seller the particular purpose for which the goods are required, and that the goods are of a description that it is in the course of the seller’s business to supply. What this means is that when a buyer of a vehicle makes known to the seller that they will be using a vehicle to tow a caravan, then there is an implied condition that the vehicle is fit for that purpose; towing a caravan. This was the case in Finch Motors v Quinn (No 2) [1980] 2 NZLR 519. Mr Quinn, the buyer, told the seller that he wanted a car for towing a boat on extended trips. The seller, Finch Motors, told Mr Quinn they had the ideal car for the job. Not long after the sale, Mr Quinn used his car to tow the boat when it overheated. This, the Court found, was a breach of the implied condition that goods are fit for purpose. There is also an implied condition that goods are of a “merchantable quality”. This is similar to “acceptable quality” under the CGA. The test for whether goods are of a “merchantable quality” is found in an old case, Taylor v Combiner Buyers [1924] NZLR 627. In that case, the Court asked the following question: Are the goods of such a quality and in such a state and condition as to be saleable in the market, as being goods of that description, to buyers who are fully aware of their quality, state, and condition, and who are buying them for the ordinary purposes for which goods so described are bought in that market? Unlike the CGA, the CCLA allows contracting parties to vary or exclude the implied conditions and/or warranties. This includes fitness for purpose and merchantable quality. To do this, the contract must be clear as to the conditions and/or warranties that it purports to vary or exclude. In Wallis, Son & Wells v Pratt & Haynes [1911] AC 394 (HL), for example, the seller’s terms and conditions stated that there is “no warranty express or implied”. The Court found that this did not exclude implied conditions, only implied warranties. If the seller wanted to exclude the implied conditions, including fitness for purpose and merchantable quality, they had to do so expressly. Holland Beckett has experience advising buyers and sellers. This is a complex area of law and Holland Beckett is available to assist.

Lawyers are used to talking about historic cases by referring to the main parties to a proceeding.  Names like Crown v Brown and Collins v Smith are common place, even for important cases.  However, in the history of the law there are a handful of cases that are referred to with special names.  Some of these names are descriptive, like the so called Ship Money Case that in many ways triggered the English civil war, while others carry the name of an important participant.  This is the case with the example of Baigent’s case. Legal origins Baigent’s case was an important step in the development of New Zealand’s human right law.  It was the case that first recognised the Courts power to award compensation to people who had been the victim of government actions in breach of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).  Its official description is Simpson v Attorney-General, but it has long been called “Baigent’s case”.  The Baigent of Baigent’s care was Mrs Baigent.  Although she had passed away by the time the Court of Appeal released its judgment in July 1994 it was her experience during an unlawful police search that lead the Court of Appeal to confirm that claims for damages for breaching the Bill of Rights were available in New Zealand. Mrs Baigent’s story has a simple beginning.  She was the victim not of a mistaken of identity but of a mistaken address.  A police officer, acting on a tip about a tinny house, mistakenly identified her address as the address of a suspected drug dealer.  A search warrant was issued for the address and the police went to search it.  When the police arrived at Mrs Baigent\'s home she was not there, but her son informed them that they had the wrong address.  He spoke to his sister (a Wellington lawyer) who also explained that the address belonged to Mrs Baigent.  Despite this the police were heard saying “we often get it wrong but while we are here we will have a look around anyway”, and this is exactly what they did.  The police searched the address and found nothing. The Court of Appeal was asked to answer the question of whether Mrs Baigent’s claim for compensation for the unlawful search should be struck out as having no proper legal basis.  Ultimately, the Court found that it was open to New Zealand Courts to give an award of damages for breaches of the Bill of Rights.  Although not required to make a decision in that particular case, President Cooke of the Court of Appeal suggested that an award of something less than $70,000.00 would probably be appropriate.  The Court was never required to decide the question as the matter was (it is understood) confidentially settled some time later.  Despite this, the case has become an important part of New Zealand’s Bill of Right jurisprudence. Baigent’s place Since Baigent’s case there have been dozens of claims for compensation after breaches of the Bill of Rights.  The breaches cover a wide variety of state actions.  Many relate to excessive use of force or degrading treatment by government agencies, like the police or the Department of Corrections.  Others relate to unlawful seizures and breaches of fair trail rights.  The awards that have been given for these claims vary.  The largest – for a criminal defendant who was sentenced to a long prison term for minor offending under the former three strikes law – was $450,000.00.  Other awards have tended to focus on emotional harm and often measure in the thousands or tens of thousands. Baigent’s case and what are often called “Baigent’s damages” are an important part of holding the government to account and upholding the Bill of Rights.  While a range of other remedies exist – for example, declarations that either a particular law does not comply with the Bill of Rights or that government actions have breached the Bills of Rights, and orders to reverse or stay decisions in breach of the Bill of Rights – many of these tools only prevent breaches from continuing.  In cases where the parties have suffered real harm, the availability of financial compensation is the only tool that really exists to remedy what has gone wrong. How we can help Holland Beckett has experience acting for claimants in Baigent’s damages cases resulting in both Court ordered compensation and confidential settlements.  Holland Beckett has also advised government bodies about compliance with the Bill of Rights to ensure damages claims cannot be made. This is a complex area of the law and Holland Beckett is available to assist both in advising people who feel their rights have been breached and agencies that want to ensure they comply with their legal obligations.

Frequently, when a prominent New Zealander is being sentenced for criminal offending, there will be discussions about Discharges without Conviction.  Discharges are commonly misunderstood and this article sets out what a discharge is and when it is likely to be available. A Discharge without Conviction is an Order that Court can make when a person has either pleaded guilty or been found guilty of a criminal offence.  Despite the finding of guilt, the Court may consider that the“direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”.  This language comes from section 107 of the Sentencing Act 2002 which is the current test for a discharge without conviction. What this means is that there are situations where even a conviction (whether or not a sentence is also imposed) will have consequences for a person that are too serious to be justified by what they have done.  This can be either because the offending itself is so minor or because the consequences that the person will face if convicted are so significant.  Often, it is a combination of both of these factors that will mean that a discharge without conviction is appropriate. When deciding whether to grant a Discharge without Conviction, a Court will first determine how serious the offending is.  This is referred to as the “gravity of the offence”.  The gravity of the offence is more than just the seriousness of the act itself – it also considers how it came about, the personal circumstances of the offending and steps that they have taken subsequently.  For this reason, people who are seeking a Discharge without Conviction will often plead guilty and show remorse, both of which help reduce the seriousness of the offending in the Courts eyes. Once the Court has determined how serious the offending is, the Court will consider the consequences that the person will face if convicted.  In very low level cases, the Court may be satisfied that the ordinary consequences of the conviction (things like it being harder to get employment and the shame associated with a conviction) are enough that a conviction should not be entered.  More commonly, the Defendant will provide evidence showing that a conviction will have a particularly severe impact on them.  This commonly involves the loss of employment, consequences for their immigration status or consequences for their ability to travel in the future. Courts will not easily be persuaded that consequences are out of proportion to the gravity of offending.  Defendants must show both that the consequences are likely to occur and that the impact on them is severe.  For things like travel, they will need to show both that they have no path way to continue the travel they had planned and also that the travel is something that they were actually intending to do.  This is to prevent people from making speechless arguments that they will be impacted when in reality a conviction will not impact on their life.  Likewise claims of employment consequences or immigration consequences will generally need to be backed up by evidence from a person who can comment on the likelihood of those outcomes. In a handful of cases, defendants have pointed to the impact that it will have on their professional registration status as a reason why they should be discharged without conviction.  However, these arguments are commonly rejected.  This is for two reasons.  First, the Court is always very hesitant to prevent a professional registration body (such as the Law Society, the Medical Council or the Licenced Building Practitioners Board) from considering whether criminal offending has an impact on that person’s ability to fulfill their role.  Secondly, in most cases, the professional registration body will follow a detailed process to determine the outcome.  The removal of a practicing certificate is far from a foregoing conclusion in these cases, especially where the offending is minor.  For these reasons, Courts will usually refuse a Discharge without Conviction solely on these grounds and will require that person to face their professional body to determine the appropriate outcome for their registration. There are certain kinds of offences where discharges are more difficult to obtain – famously drink driving.  This is because the Courts review certain kinds of offending as inherently serious.  When this is the case, the Court must be persuaded that there are clear consequences before the Court will be persuaded that Discharge without Conviction is appropriate.  It is for this reason that many applications for Discharge without Conviction in cases like this fail. If a Discharge without Conviction is granted, then the legal effect of this is to treat the person as though they were acquitted of the charge.  This means that no sentence can be imposed on them.  It also means that they will have no criminal record for any purpose going forward.  The Court can, however, order a disqualification from driving or reparations in appropriate cases.  It also does not mean that a person is not required to report what has happened to a professional body or a government agency if they have a separate obligation to do so.  It does, however, mean that a person does not need to disclose a criminal conviction on job applications or travel applications either within New Zealand or internationally. For people who are unable to get a Discharge without Conviction, the Clean Slate legislation provides a useful alternative.  This legislation means that where a person has been convicted of a relatively minor offending (meaning they were not sentenced to imprisonment and if it is not of a specified class of offenses, such as sexual offending) that person will only have a conviction on their record for 7 years.  If at the end of 7 years they have had no further convictions of any kind then they may tell employers and other people within New Zealand that they have no criminal convictions.  This legislation only applies in New Zealand however, and so it does not impact on international obligations. Holland Beckett regularly advises clients on the availability of Discharges without Conviction for a range of offending.  Our lawyers have successfully argued discharges for drink driving, minor criminal offences and even offending under the Resource Management Act 1991.  If you would like to understand more about this process, please contact one of our legal specialists.

Like all technological changes, the recent explosion in the use of Chat GPT and similar AI models creates new legal and regulatory issues. New Zealand is yet to adopt a specific legal regime to govern the use and control of AIs like Chat GPT, but existing laws will continue to apply. In this article, we explore some factors to consider in embracing the opportunities widely available AI brings. But first, what is Chat GPT? Chat GPT is a large language model. This is code that allows a computer to understand patterns in language. By analysing 175 billion examples of human communication from the internet, textbooks and elsewhere, it can predict the likelihood of the ‘correct’ next word in a sentence. Doing this, Chat GPT can answer questions from users in a conversational manner. It can also produce text in any conceivable format on request, within seconds. For example, it can write articles, draft a business plan, write and debug computer code, draft an article or essay, provide a recipe for a cake or cocktail, and even attempt poetry and song lyrics. These uses have caused widespread speculation about the possible uses of AI to replace internet search engines and many reference texts, and that it may threaten content creation type roles. A number of major companies like Alphabet (Google), Meta (Facebook), and Alibaba have announced competing models will be released in the near future. Some of these are based on alternative AI technologies that will increase the power and possible uses for large language models. What we say here about Chat GPT will equally apply to any of these other engines. How accurate are these large language models? Like all computer systems, Chat GPT’s output is only as good as its input. As computer engineers have long said “garbage in, garbage out”. While having 175 billion examples to draw on allows Chat GPT to be impressively accurate in dealing with familiar topics, it is limited to drawing on that data set. Much of this comes out of the United States, reflecting what is available online. This means that Chat GPT has limits answering questions dealing with New Zealand specific conditions and situations. Also, Chat GPT is less accurate providing information about specialist and technical topics not comprehensively discussed in publicly available sources. Chat GPT (and all similar models) carry clear warnings about not relying on its output as a substitute for professional or expert advice. Open AI (Chat GPT’s creator) accepts no liability for harm caused by relying on Chat GPT’s answers. Users should be careful to verify the information from Chat GPT, and seek relevant advice, before relying on it. This will be especially true of information about living people and current events. If the user is intending to pass on the information from Chat GPT to others, they may find themselves held liable for any inaccuracies in the output. Who ‘owns’ the input and output from Chat GPT and similar models? AI language models like Chat GPT are not people and do not “own” the content they generate. Who owns that content will depend on the licence user agreement for the particular model being used. In the case of Chat GPT, Open AI (the creator) assigns its intellectual property rights in the output to the user. This means users are not at risk from Open AI claiming copyright infringement from the use of Chat GPT output. That may differ with other models, and it will be necessary to review the terms and conditions in each case. However, Chat GPT does draw on copyright material from others and may include this in its answers. Users should check their output is not plagiarised before using it, especially in any commercial contexts or where using that material for profit. Confidentiality and privacy Users of Chat GPT and similar models need to be aware their inputs become part of the model’s data set, and can appear in outputs provided to other users. This is particularly important with commercially sensitive information. Samsung workers in Korea looking to have Chat GPT debug their computer code inadvertently cost their employer trade secrets protection when the code they submitted later appeared in responses to other users. Similar concerns exist around disclosing personal details and other private information to Chat GPT. The Canadian Privacy Commissioner has launched an investigation into Chat GPT concerns. In New Zealand, users and businesses’ obligations under the Privacy Act 2020 around the release of information to third parties will apply when using Chat GPT.  Information that could identify individuals should only be released for purposes reasonably necessary for the user’s business. It must also fall within the specific uses for the information identified at the time the information was collected. Being honest about using AI at work and school Even if copyright, confidentiality and privacy issues do not arise, people should be cautious using Chat GPT and other models and presenting it as their “own work”. There has been particular concerns from universities and schools about students using AI models like Chat GPT to produce assignment work. Some systems, like the International Baccalaureate, have said use of Chat GPT is acceptable so long as it is cited correctly. Meanwhile, the Queensland government has banned it from schools there. New Zealand schools and universities are each developing their own response. Students will need to follow their own institution’s guidelines. In the office, a range of other legal issues can arise from employees using Chat GPT without telling their employer. Surveys indicate large numbers of employees are already using Chat GPT surreptitiously. Employers and employees are required to deal with each other in good faith. Employees could be seen to be acting deceptively in using Chat GPT to substitute for their own work: especially if in a role where their own creativity or judgement is a key part of their function. Employers should turn their mind to creating formal policies about the use of Chat GPT by staff to make the most of new opportunities while setting clear boundaries. Since 1937, Holland Beckett Law has been helping New Zealanders navigate the ever-changing world with timely and practical legal advice. Our dispute resolution and employment law teams can help you understand how the existing law will map onto tomorrow’s world.

Holland Beckett Law today announced the promotion to partnership of three of its associates, Joel Murphy, Jeremy Sparrow and Tim Conder effective from April 1st. The Bay of Plenty wide law firm has offices in Tauranga, Rotorua and Whakatāne with over 130 staff. The firm caters to a vast range of legal needs including property, commercial, trusts & estates, resource management, civil litigation, employment, and family law. Holland Beckett Law also has a specialised Māori Legal Unit. While many provincial law firms are struggling with succession planning we are proud to say that our recruitment strategies of the past 10 years have produced the next generation of Holland Beckett Law leaders. They are true experts in their respective specialities, and we are thrilled to announce their promotion to partnership. Joel Murphy, Partner Joel joined Holland Beckett in 2019 after returning from the United Kingdom, working as an in-house counsel for one of the world’s largest large scale solar developers. He has 12 years of legal experience and, prior to his experience in the United Kingdom, he worked at Meredith Connell in Auckland. Joel advises clients on all aspects of property, including acquisitions and disposals, leasing, developments, financing, subdivisions and related transactions. He has particular expertise in solar farms, kiwifruit orchards and residential developments. Joel is an advocate for the growth of the Bay of Plenty and is a committee member of the Central Regional Committee for Property Council New Zealand. Outside of work Joel enjoys spending time with his young family, fishing, diving and playing touch rugby. Jeremy Sparrow, Partner Jeremy joined Holland Beckett Law as a graduate in January 2012, and has become the first law clerk to Partner of Holland Beckett Law. Jeremy started in the wider litigation department, where he acted on some of the firms major cases including businesses affected by the Rena sinking. Jeremy then spent two years working as a lawyer in London. Upon his return to the Bay of Plenty, Jeremy has developed into a specialist employment lawyer. Jeremy has grown a substantial employment practice and continues to be sought after by clients for his effective and practical advice: this is from some of the firms biggest clients to the smallest. Outside of the office, Jeremy is an avid tennis fan and a passionate traveller. Jeremy is also the President of Tauranga Musical Theatre, and spends most of time outside of work volunteering in this capacity. He is also the Honorary Solicitor for Musical Theatre New Zealand. Tim Conder, Partner Tim joined Holland Beckett Law in January 2016 after two years as a Judges’ Clerk in the Auckland High Court. Like Jeremy – Holland Beckett is the only firm that Tim has worked at while practicing as a lawyer. Tim has driven the creation of a specialist public and local government team within the firm, that serves both local government and private clients who are involved in government related matters. Tim’s work has included assisting insurers and private clients defending regulatory charges in a range of settings (such as environmental offending, export offences and health and safety matters), as well as working for Council prosecutors and acting as an amicus curiae, to assist the Court during a challenging environmental trial. He has also appeared in the Court of Appeal on numerous occasions, on diverse issues such as Māori Land Trusts, Fair Trading Act cases and murder sentencing. More broadly, Tim has been heavily involved in advising clients about regulatory compliance and engaging with central and local government. Throughout the changing landscape of Covid-19 restrictions, Tim was frequently called in at short notice to advise businesses on the way that new laws would impact their business and was involved in keeping essential projects for Tauranga’s development moving during periods of lockdown. He has also helped clients transition through changes to privacy and environmental law, while helping lobby on their behalf for well thought out legislation that will meet the policy objectives of central government while allowing businesses to thrive. Tim’s practice is marked by his efforts to use his knowledge of the law and his creativity to achieve positive outcomes for clients. For Tim, success if about finding the best way through the law for individual clients – even if it means thinking outside the box.

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.

People making a Will normally think that they can do what they want with their own property. Since this is true for people during their lifetime, many are surprised to learn that their Wills can be challenged after their death if they do not meet certain requirements. This article talks about the main ways that Wills are challenged in the Courts. Family Protection Act One of the most common kinds of challenges to a Will is a claim under the Family Protection Act. This 1955 piece of legislation allows certain family members (particularly children) to make a claim for “maintenance”. A Court deciding this kind of claim will ask whether the person writing the Will has properly considered their moral duty to look after their family and may adjust legacies if the Court considers the Will to be unfair. For small estates, maintenance is normally ordered for children or other dependents who have special needs. This can be a medical condition or financial circumstances that mean they need a greater share of assistance than other children. In larger estates (particularly those over $500,000) the Courts may order maintenance in favour of any child who did not receive a reasonable share of the estate. Awards of between 10% and 20% of an estate are often made in favour of a Will-maker’s biological and adopted children. This does not mean that it is impossible to make a Will that does not provide for all children. Sometimes a child will have acted in such a bad way toward their parent that they are “disentitled” from receiving any gift, however, the standard for this is very high and needs to be properly documented. Likewise, while there is no presumption that the Will-maker will share assets amongst children equally, the larger the disparity, the clearer the justification for it needs to be. It is very important when making a Will to consider how any unequal distributions are justified. Testamentary Promises Act A second kind of claim is found in the Testamentary Promises Act. That legislation allows potential beneficiaries to sue the estate for promises about gifts that would be left to them in a Will. These claims are significant because the applicant does not need to establish that there was a formal contract. So long as the promise was made in return for some value (even for past good works or familial affection) they may be able to receive what they say was promised to them. Talking about your Will with family can be difficult and embarrassing especially when children are being treated differently. However, the best way to prevent a Testamentary Promises Act claim is to be clear with the family as to what they are likely to receive under the Will and to explain the reasons for these decisions. When circumstances change, sometimes promises that have been made will also need to change and this should be discussed openly. Undue Influence A final kind of claim that can be made against a Will is based on a direct attack on the Will itself. Where the person writing a Will has been influenced by a family member (such as a child who is involved in their care) this can lead to a Will being disregarded. Like cases where the Will-maker did not have the legal capacity to write a Will, cases where a person has been unfairly influenced by a person can mean that a Court treats a Will as not representing the Will-maker’s intentions. The Court may look to earlier Wills or make adjustments to ensure that the Will-maker’s true intentions are recognised. Where a Will is made by a person in poor health or with the assistance of a very close family member, the chances of this kind of claim increase. It is very important in these circumstances that the Will-making process is property documented and a lawyer should be engaged to give independent advice to the Will-maker. This kind of claim is unique because it is about protecting the Will-maker and reflecting their true intention. However, it can also be open to abuse. Conclusion Making a Will is a very important decision and Will-makers should be able to expect that their wishes are carried out. For this reason, it is important that you obtain good legal advice when writing your Will. It is also a good opportunity to talk with family about your wishes and expectations for once you have passed on, so that you know your desires will be respected. Holland Beckett Law’s team are qualified to give advice on ensuring that your Will is safe and can also assist you with resources and support to allow you to have these difficult conversation with family. Our team of experienced lawyers are more than happy to discuss any of these matters with you further.   Online Tools We provide an obligation free online tool to provide you with further information based on your specific circumstances. Relationship Property Agreement or Contracting Out Agreement (Pre Nup) Click here to get started Will Preparation Click here to get started Estate Administration Click here to get started