Insights & Articles

The current 'lockdown' is unprecedented. In times like these your first priority is to ensure you take care of yourselves, friends and family. However, while it is important to protect those close to you, you should also give consideration to the protection of your assets. Accordingly, it may be an opportune time to review your current estate planning to ensure everything is 'as you would like' and, if you have a trust, to make sure that it aligns with the provisions of the Trusts Act 2019 ("the Act") which was enacted this year but comes into force at the beginning of 2021.

Section 55 of the Credit Contracts and Consumer Finance Act 2003 ("CCCFA") provides that a person who is unable reasonably, because of illness, injury loss of employment, the end of a relationship, or other reasonable cause, to meet their obligations under a consumer credit contract and who reasonably expects to be able to discharge their obligations if the terms of the contract were changed as provided for under the CCCFA may apply to a creditor to agree to that change. In the present Covid-19 lockdown, we expect these provisions to be tested and both debtors and creditors need to know their rights and responsibilities in these sorts of situations.

A trust exists to hold assets for a certain purpose. For an ‘ordinary’ family trust, commonly conceptualised as a ‘mum and dad’ trust, the ‘mum and dad’ settlors ordinarily transfer their main home to trustees to hold that property for the benefit of their immediate family group. In this scenario it is common for ‘mum and dad’ to be appointed as trustees. They are additionally named as discretionary beneficiaries to ensure they may benefit from the trust assets throughout their lifetimes as well.

The Covid-19 Lockdown is a unique situation that continues to change rapidly and this raises a number of questions and concerns for people, especially in the employment space. The situation surrounding Covid-19 requires flexibility from both employers and employees.

In the wake of the Covid-19 lockdown, many employers are assessing options available to them to save their business and are contemplating cutting staff. This decision should not be taken lightly as the underlying requirements for proper termination of employment still apply.

In response to the Covid-19 outbreak the Government has announced a $12.1 billion support package to support the economy. If you are an employer, contractor, sole-trader or self-employed, you may be eligible to apply for financial support.

The Covid-19 level 4 alert lockdown is having a significant impact on the way people work during this time. Whilst the Government is providing assistance to businesses such as the wage subsidy to pad the landing for employers, there are numerous challenges facing employees in the coming weeks.

The Chief Justice of the Supreme Court, the Right Honourable Helen Winkelmann, has assured the legal profession and members of the public that the Courts will be operational during all Covid-19 alert levels, including lockdown during alert level 4: "Courts are an essential service. New Zealand courts must continue to uphold the rule of law and to ensure that fair trial rights, the right to natural justice and rights under the New Zealand Bill of Rights Act are upheld."

The Covid-19 pandemic and the announcement of the Level 4 Covid-19 threat level in New Zealand has meant that many businesses may be forced to default on their commercial obligations, especially as non-essential businesses are told to close. However if their contracts contain a "force majeure" provision, this may provide them with a way out.

At a press release on 24 March 2020 at 1.00 pm a spokesperson for the Ministry of Business, Innovation and Employment (MBIE) said: "If you are in doubt whether you are an essential service, you're probably not".

We have been fielding an unprecedented (but understandable) number of queries from both tenant and landlord clients wanting to understand the legal position in respect of either termination of commercial leases, and obligations in respect of rental/outgoings payments.

During this unprecedented and unsettling time, there is an opportunity here to take advantage of the phone calls and emails slowing down (for some) and use your time to address those things you have been putting off – a bit like that painting job most people have been meaning to get to.