Edition Twenty Two - 1 April 2011

News

More lawyers should sell real estate

By Craig Sisterson

LAWYERS HAVE to take advantage of the opportunity they’ve been given to sell real estate, because it will mean clients get a much fairer and more cost-effective service, while being legally protected throughout the entire process, experienced Auckland practitioner Mike Tolhurst told NZLawyer extra. “It’s a total no-brainer, particularly for property lawyers. Real estate agencies have been a monopoly, but ... it’s going to be good for the industry that they’ve now got competition.”

Glaister Ennor Special Counsel Joel Fotu noted that New Zealand lawyers, under the provisions of the Lawyers and Conveyancers Act 2006 and the Real Estate Agents Act 2008, are allowed to market and sell real estate as long as they don’t charge a commission on the sale of the property. Tolhurst and Fotu, who has experience working for the Land Transfer Office, are part of a team that has recently established ACRES (A Complete Real Estate System), a web-based initiative developed over the past two years, that Tolhurst said offers “a true alternative” to the services currently offered by real estate agents and agencies.

Students' project fosters community spirit

COMMUNITY SPIRIT is alive and kicking at Victoria University’s Faculty of Law. At the recent annual launch of the Wellington Community Project, Principal Family Court Judge Peter Boshier said, “We have seen over the past few weeks that New Zealand has an enormously strong community spirit. Your project reflects everything that is noble in a true community spirit because you are helping others for no cost and for the greater good.”

Justices praise students' advocacy skills
By Craig Sisterson

THE STUDENT finalists of the 2011 Sentencing Advocacy competition were both excellent advocates who will do well at the bar, said Justices Courtney and Wylie, who presided over the final of the competition held at the Auckland High Court on 21 March. Now in its fourth year, the competition involves law students from the University of Auckland and the University of Waikato, and was presented by the Ministry of Justice and the New Zealand Bar Association.

Open Polytechnic students’ prize-winners in NZLS  exam

THE OPEN Polytechnic is celebrating the achievements of its students in the 2010 New Zealand Law Society’s Legal Executive Diploma examinations with students winning four out of seven prizes for top marks in their individual exams.

Each year, students from seven different tertiary providers around the country sit one or more of the six examinations that make up the New Zealand Law Society Legal Executive Diploma.

Sally Steven, an Open Polytechnic student living in Canterbury, was particularly surprised with her mark in the “Property Law and Practice” exam, as partway through the exam, they sustained a substantial aftershock, following on from September’s 7.1 Canterbury earthquake. “It was very frightening and our desks were shaking. It was 40 minutes before the end of the exam too, so I thought I had done very badly. I was very surprised to see I had passed the exam, let alone received the highest mark,” said Steven.

All four winning Open Polytechnic students will each receive a $150 prize from the New Zealand Law Society for their efforts.

Looking forward at The College of Law – reaching the new independent constitutional status

THE COLLEGE of Law will soon begin creating and offering a more diverse range of recognised degree and diploma courses for ongoing legal training, following its move to become a wholly independent education institution.  The College has launched TCOL, a public company which will be comprised of members drawn from legal communities and stakeholders across Australia and New Zealand.

Petition calls for repeal of ACC threshold

THE NATIONAL Foundation for the Deaf (NFD) presented a petition with 5,552 signatures to Parliament on 23 March calling for the repeal of the ACC six per cent threshold for hearing injury.

“The threshold is discriminatory, it is immoral, and is clearly an infringement of human rights,” NFD chief executive Louise Carroll said in a statement.

Dates for the diary

Thursday 14 April 2011:
Symposium: “Tax avoidance: A view from Crown Law and other perspectives”

Friday 15 April 2011:
Inaugural meeting of the Justice Forum, Wellington

Monday 18 to Wednesday 20 April 2011:
Conference: Justice in the Round: Perspectives from Custom and Cutlure, Rights and Dispute Resolution

Wednesday 20 April 2011:
AWLA Dame Silvia Cartwright Lecture: Dame Hazel Genn, DBE, QC (Hon)

Wednesday 20 April 2011:
Te Piringa Faculty of Law - Twentieth Anniversary: Reunion for students and staff (past and present)

Tuesday 26 to Friday 29 April 2011:
University of Otago and Buddle Findlay present a professional education intensive on Health Systems Law in Wellington

Thursday 12 to Friday 13 May 2011:
2011 CLANZ Conference: Getting the recipe right

Features and Opinion

LEGAL AID
Red tape lament
By Steven Zindel, principal, Zindels, Nelson

Lawyers are turning off legal aid in droves. More changes lie ahead that will potentially accelerate the trend. Dame Margaret Bazley’s report of November 2009 (Transforming the Legal Aid System) has ironically led to more rigidity and prescription in the system. Overall, there appears to be less trust. Added to this is the fact that all the rules are taking even more administrative time, with more and more things being passed over to lawyers to do.

Legal aid rates have been a continual source of concern, but in talking to my colleagues around the country, the greatest bugbear is bureaucracy rather than poor pay. Legal aid work tends to be hard anyway, with disorganised clients who have difficulty telling their stories coherently, and where the volume of work (which lawyers are taking to make ends meet) is leading to trench fatigue.

CANTERBURY EARTHQUAKE
The Rock
On 22 February 2011, Christchurch and its surrounding areas were shaken by New Zealand’s most destructive earthquake since Napier in 1931. The quake was centred on the Port Hills’ suburb of Heathcote, known to many simply as the Valley. Anthony Russell, Martelli McKegg’s employment law expert, comes from the Valley. He shares his thoughts on the lead-up to the 22 February earthquake and its effect.

I was at home in Auckland when my brother called. He said there had just been an earthquake in Christchurch and there seemed to be a lot of damage. He said it was a 6.3 shake. I thought, “Okay, there will be damage, but it should not be too bad”, and did not even contemplate loss of life. Just to check, I turned on TV3 and within a few minutes the local reporter was walking down Colombo Street, approaching the Square from the north. People were fleeing the opposite way, from the centre of the City. Their expressions spoke of something awful. But what? In the distance, I thought I could see the Cathedral, but there seemed something wrong with the camera angle. When it finally came into shot, it dawned upon me. The steeple was gone, collapsed inwards and outwards. Rubble piled up around it. Then, my thoughts immediately turned to my mum in Heathcote Valley.

RULE OF LAW
Cambodia: focusing on the big picture
By Denise Arnold, partner, Lyon O’Neale Arnold Lawyers Ltd

At 1 am on Boxing Day, full of multiple Christmas dinners, we boarded the plane for Cambodia. Three of us were spending the two weeks of the ‘stat hols’ following up on the projects of the Cambodia Charitable Trust (CCT). First, we needed to see that our donors’ money is all getting to exactly where we want it. We’ve all heard the horror stories of development money and resources shrinking in a waterfall of corruption, mismanagement, and misguided ideas, until only the last few drops reach its intended destination. At CCT, we will not let that happen. One hundred per cent of our donors’ money goes to Cambodia and our programmes. Secondly, we were working with our Khmer representatives to see what else is needed, what next, how to further develop our programmes, and so on. It’s important to us that the projects are driven by Khmer for Khmer.

NEW ZEALAND LAW JOURNAL - MARCH 2011 ISSUE
Charity, politics and agitation
David Brown discusses the Aid/Watch case

Despite limited amendment in s 5 of the Charities Act 2005, the definition in New Zealand law for tax (s YA1, Income Tax Act 2007) and other purposes, of what constitutes charitable purposes, is still based, as in many other Commonwealth jurisdictions, on common law, and ultimately grounded in the “modern” encapsulation of the list of charitable objects in the Preamble of the 1601 Statute of Elizabeth into the “four heads” of charitable purpose set out in Commissioners for Special Purposes v Pemsel [1891] AC 531.