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Monday 8:30am - 5pm Tuesday 8:30am - 5pm Wednesday 8:30am - 5pm Thursday 8:30am - 5pm Friday 8:30am - 5pm

Inder Lynch Lawyers, 1 Hall Street, Pukekohe East (2026)

12/10/2025

Join the team on Saturday 1 November for what will be an insightful seminar for First Home Buyers. Register today: https://www.eventbrite.co.nz/e/1736170415449?aff=oddtdtcreator

13/12/2023

CAUTION WITH RELATIONSHIPS OF SHORT DURATION

The Property (Relationships) Act 1976 (PRA) outlines how relationship property should be divided when a couple separates. The PRA establishes the ‘equal sharing principle’ which means that, as a starting point, the couple’s property is to be divided equally upon separation. The idea behind this principle is that all contributions to the relationship, whether financial or not, should be recognised as equal.

The equal sharing principle typically applies to relationships which have lasted for 3 years or longer. Different rules apply to relationships of short duration. The PRA defines relationships of short duration as marriages, civil unions and de facto relationships of 3 years or less, or where despite the relationship having lasted 3 years the relationship was so unduly limited in quality that it would be just to consider it as a relationship of short duration.

Division of relationship property in De Facto Relationships of Short Duration

If a de facto relationship lasted for less than 3 years, it is unlikely that an order for the division of relationship property can be made. However, the PRA can apply, and determine the division of relationship property on the basis of the contributions made by

the parties in the following scenarios:

1- where there was a child of the relationship; or
2- where a substantial contribution towards the relationship has been made and serious injustice would be caused if the Court failed to make an order.

Division of property in marriages of short duration
The PRA outlines how property is to be divided where there is a marriage of short duration. It states where there has been a disproportionately greater contribution by one party, then the shares in the relationship property shall be determined based on the contributions of each party. The contributions of each party is not limited to just financial contributions, but also care of any children of the relationship, household duties, earning an income for the household, amongst various other aspects.
A recent High Court decision

In the recent case, the decision of the High Court highlighted that caution is still required when in a relationship of short duration. This case demonstrated the various factors that the Court will consider when determining the contributions of each party. The outcome highlighted that one party’s financial contributions is not the sole determining factor in dividing relationship property following a marriage of short duration.

In that case, the parties created a family trust together. Z contributed $1,200,000 towards the trust assets, whereas L contributed $260,000. After repayment of those initial contributions, the Trust still held equity of approximately $1,500,000. The dispute was about how the equity should be divided considering the drastic difference in the parties’ initial contributions.

The Court decided that the equity should be split 60:40 in Z’s favour. The Court took into consideration the parties’ expectations of the Trust property and the position that each party would have been in if the relationship had continued. Counteracting that and allowing the basis for unequal division was consideration that the relationship was of short duration, and Z had contributed significantly more into the relationship than L.

Conclusions
This case serves as a reminder that where you are entering into a relationship, caution and legal advice is warranted, particularly where assets are being acquired during the course of that relationship.

13/12/2023

DANGEROUS DRIVING

A clarification on the law

Dangerous driving is an offence against the Land Transport Act falling between the lower level offence of careless driving and the more serious charge of reckless driving. It is punishable on conviction by a maximum penalty of 3 months’ imprisonment or a fine of up to $4,500.
For a charge of dangerous driving to be proven, the prosecution must establish beyond reasonable doubt that the standard of driving fell below that of a competent and reasonable driver, and that when viewed objectively, the driving created a situation that was dangerous to other actual or potential road users.
A recent Court of Appeal decision
Earlier this year in its judgment in McCoy v Police, the Court of Appeal clarified the circumstances that may be taken into account when considering whether a charge of dangerous driving is proven.

In McCoy, the appellant had been convicted in the District Court on a charge of dangerous driving following an apparent road rage incident. The complainant had just exited his vehicle when McCoy drove past. McCoy apparently considered that the complainant had exited his vehicle in an unsafe way, and hurled abuse at him before performing a U-turn and headed back towards the complainant’s vehicle. McCoy then stopped his vehicle on the wrong side of the road just past the complainant’s vehicle and threatened to damage the complainant’s vehicle by smashing into it. He then started to reverse his vehicle towards the back of the other vehicle but stopped when the complainant stepped between the two vehicles.
The question was whether this constituted dangerous driving. The District Court held at first instance that it was, finding that the aggression that McCoy had exhibited before, during and after the incident were such that he was driving in a manner which could have been dangerous to the complainant and two nearby onlookers. The High Court upheld the conviction, finding that while the District Court might have focused too much on McCoy’s aggressive feelings, it was open to the Judge to have regard to the broader circumstances.
The Court of Appeal upheld the conviction on a second appeal by McCoy. The Court referred to well-settled law that a defendant’s state of mind is irrelevant to establishing a charge of dangerous driving, and that a defendant’s general state of mind cannot convert otherwise lawful driving into dangerous driving. However, that did not mean that observable conduct, such as an utterance or gesture, is necessarily irrelevant. The act of reversing a vehicle, even on the wrong side of a road, may not be dangerous in itself, but when accompanied by a threat to cause damage in a targeted way, that threat can form part of the observable circumstances to be taken into account.
The Court held that McCoy’s apparent intention, disclosed by his statements, could not be excluded from consideration. It was satisfied that McCoy drove dangerously when, consistent with his stated purpose of causing a collision, he reversed towards the complainant’s vehicle where there was at least one person who could be placed into danger. The conviction was upheld.

13/12/2023

CONSULTATION & CONSIDERATION OF REDEPLOYMENT IN REDUNDANCY SITUATIONS

A recent decision of the Employment Court has emphasised the importance of employers adhering to the requirement to consult in good faith with employees and of considering redeployment in redundancy situations. In the case, the employer challenged a decision of the Employment Relations Authority (“ERA”) that had found that H’s dismissal for redundancy was unjustified and ordered his reinstatement. Not only was the challenge by the employer unsucitcessful, but the award of compensation made by ERA was increased from $15,000.00 to $25,000.00.

The background
H had worked as Process Computing Manager for some seven and a half years. The employer wished to restructure its IT Department. Amongst other things, the restructure resulted in the disestablishment of H’s position and the creation of three new managerial roles for which H along with others, was invited to apply. Due to being on leave for a period of time H had been unaware of discussions about the proposed restructuring of the department until the process was well advanced. H applied for all three roles but indicated a preference for one of those roles. However, he declined to be interviewed for any of the roles as he considered that the employer should simply appoint him into one of those positions. He also alleged that despite his suitability for the roles, it had become apparent to him that interviewing would be pointless.

H was not appointed to any of the roles, with the employer adopting the position that in the absence of H making himself available for an interview, it was not able to determine his suitability for any of the new roles and it was entitled to appoint the best person for the job. H’s employment was then terminated on the grounds of redundancy. H challenged his dismissal in the ERA and was successful being awarded reinstatement, three months lost remuneration and with compensation of $15,000.00.

The employer challenged the decision, asserting that there was no obligation to deploy H into a role that was substantially different from the one that he had held previously. It argued that having disestablished H’s role, it was justified in terminating his employment when he declined to engage in the interview process for the alternative roles.

The decision
After the considering the evidence, the Employment Court found that by the time the employer had purported to consult with H over the disestablishment of his position, the decision had already been made. The use of the word “proposed” was semantic only and there was no evidence of the employer having an open mind or discussions. Ultimately, it was found that the dis-establishment of H’s position had been predetermined by the time the employer had commenced consultation with him and, as such, the consultation was flawed and failed to meet the obligations of good faith required by the Employment Relations Act.

Having determined that the employer had failed to follow a fair process, the next issue that the Court considered was whether the employer met its obligations in relation to the redeployment. The employer argued that in the absence of an express contractual requirement, it had no obligation to re-deploy H. The employer commented on a case that had been decided under the previous legislation that held that a failure to offer an employee a different position could not constitute an unjustified dismissal. However, the Court found that the introduction of the Employment Relations Act 2000 had substantially altered the law in this area. In particular, the Employment Relations Act 2000 represented a shift in emphasis from the contract between the parties to a recognition and promotion of the requirement for the parties to deal with each other in good faith in all employment relations. Therefore, where an employer was proposing to dismiss an employee for redundancy, the employer must consider whether to redeploy the employee.

The Employment Court noted that “the proper approach for employers when considering redeployment is that, when considering to dismiss an employee after their position has been made redundant, an employer must consider whether to redeploy the employee. When considering redeployment, the employer must comply with the good faith obligations….and, in particular, must consult with the employee…. Finally, when deciding to re-deploy the employee, the employer must be active and constructive in maintaining the employment relationship…including being responsive and communicative.”

Ultimately, the Employment Court held that the employer had not met these obligations on the facts of the case.

The remedies
The ERA had ordered that H be reinstated into his former position or another position which was no less advantageous. There was no serious argument that reinstatement was not practical or reasonable and the Employment Court confirmed the decision to reinstate. Similarly, the Employment Court confirmed that H was entitled to be awarded the remuneration that he had lost in the period from when he was made redundant. Essentially, he was entitled to remedies that would restore him to the financial position he would have been in had he not been dismissed.

Finally, on the issue of compensation for loss of dignity and injury to feelings in respect of which H had been awarded $15,000.00 compensation by the ERA, the Court considered that the employer’s breach of faith was serious and had a devastating affect on H and his family. The Employment Court considered that compensation of $25,000.00 was appropriate, an increase of $10,000.00 of the amount awarded previously.

No reinstatement after post termination allegations

The Employment Court has upheld a preliminary Employment Relations Authority determination declining an application for interim reinstatement. The Employer had terminated VMZ’s employment after he refused vaccination against Covid-19. The Court found that there were significant barriers to permanent reinstatement.

Someone had been appointed into VMZ’s role and there was no applicable vacancy. Statements by VMZ post-employment and his conduct towards the company and its employees were very serious and extreme. These included a letter of alleged murder and conspiracy and demanding $90 million in gold bullion or equivalent.Permanent reinstatement was therefore not seriously arguable. The balance of convenience favoured the employer and this was not displaced by the overall interest of justice. VMZ seemed to have a relatively weak case for unjustifiable dismissal and his post-employment conduct had almost certainly caused reparable harm to his relationship with the employer.

Employer’s attempt to avoid payments

The Employment Relations Authority (“ERA”) had found the employee (G) had been unjustifiably disadvantaged and unjustifiably dismissed by the employer (P Ltd) and had ordered payment of lost wages and compensation.

P Ltd appealed and applied for a stay of proceedings. The stay application was effectively an application for a stay of ex*****on of the ERA orders (to pay the amount awarded). The Employment Court found that “as the successful party, G was entitled to the fruits of her success unless there were good grounds otherwise”. Requiring G to defend the appeal while not allowing her to seek payment of the monies due cut across that and exposed her to additional legal costs. The stay application was unsuccessful. In the course of this proceeding, it became apparent that the stay application was an attempt by P Ltd to avoid paying any money as P Ltd was not in a position to do so – it could not afford to pay the amount awarded let alone costs for its appeal.

13/12/2023

THE NEED FOR ENDURING POWERS OF ATTORNEY

Taking practical steps before your health may seriously deteriorate

Everyone should have a Will. A Will effectively speaks from the moment of death. However, what if your health deteriorates but you are still alive? Medical science can now keep most people alive for a considerable length of time but whether there is a quality of life and whether you have the legal (mental) capacity to make decisions for yourself may be a vexed question. Enduring Powers of Attorney (“EPOAs”) are intended resolve that issue if your health deteriorates to such an extent that you are unable to make decisions for yourself.

The risks of not having EPOAs
When clients come to see us about their Wills, we always ask about EPOAs for them. Some clients instruct us to prepare EPOAs; some don’t. What often happens is that we will receive contact from family members as a result of failing health of their parent (and frequently the contact is from hospital) asking if “Mum” or “Dad” has had us prepare EPOAs for the parent. If the answer is “no” then the next question is can the EPOAs be prepared “immediately”? Often it is too late by that stage as the parent’s mental (legal) condition has deteriorated to such an extent that the parent would now not be able to give full and meaningful instructions. The result then is that the family would have to make Court applications to obtain Orders to have similar effect to the EPOAs but at a much greater cost and with a much greater time delay.

The ideal time
The ideal time to instruct us to prepare EPOAs is when you are fit and healthy. Like insurance policies, the EPOAs can then be put away (hopefully never to be used) but if the worst were to happen then the EPOAs would be in place ready to be activated.

Our recommendation
We strongly recommend that you should have EPOAs – the sooner they are prepared, signed and put away the better. From that point onwards, you and your attorney/s can relax and know that if your health were to seriously deteriorate then you have taken all of the steps necessary to avoid the need for Court applications. We can assist in advising regarding EPOAs and can draft the required documentation providing the necessary legal advice throughout.

13/12/2023

CHRISTMAS/ NEWYEAR HOLIDAYS

Our offices will close for the Christmas/ New Year vacation on Friday 22 December 2023 with a partial reopening on Monday 8 January 2024 and full reopening on Monday 22 January 2024.

13/12/2023

THE TIMES ARE CHANGING

As summer is arriving and we look back over the past year, the challenges have changed but not diminished from previous years.

Covid-19 has receded, and lockdowns are a thing of the past. The cost of living has come to the fore with higher inflation, higher prices and higher interest rates. Consumer confidence has dived in the past 12 months and the economy is struggling. The change in Government in October was a reflection of all of those issues.

For many, including us here at Inder Lynch, the year has had its challenges, and we continue to adapt and look for ways to streamline our business. We remain heartened by the continued support from our loyal client base and our dedicated staff.

Changes for Papakura
We wish to advise clients that during the 2024 year we will be vacating our current Papakura office on the corner of East & Wood Street, Papakura. Those premises have been our Papakura ‘home’ since 2002. However, the changing nature of legal practice over the years has been such that our current premises no longer suit our requirements. Therefore, our Papakura-based staff will be gradually relocating to our other offices at Manukau (Corner of Great South Road and Cavendish Drive, Manukau) and Pukekohe (1 Hall Street, Pukekohe) from early 2024. Although our staff will be based at our Manukau and Pukekohe offices, we will be maintaining a physical office in Papakura to enable us to continue to serve the needs of our Papakura-based clients who need to meet with us in person at Papakura.

Full details of our new Papakura premises will be provided nearer the time but in the meantime, we wanted to advise clients of the forthcoming change, which we are confident will enable us to continue to provide the high-quality legal service that has been our benchmark since we first commenced practice in 1946.

To all our clients and associates we wish you a very Merry Christmas and a prosperous New Year.

20/10/2023

Slip Ups between marketing a property for sale and signing of an agreement

One of the clearly defined and longstanding requirements regarding the sale and purchase of land in New Zealand is that the agreement must be in writing and signed by both the seller and purchaser.

When the seller of the land uses a real estate agent to assist with the sale, that agent is the seller’s agent. Under the law of agency, any representation made by the seller’s agent is deemed to be on behalf of the seller. However, within the parameters of the marketing and selling of land there are opportunities for slip ups to occur. If a misrepresentation, made by the seller or their agent, occurs between the commencement of the marketing program and the signing of an agreement for sale and purchase, then an issue may arise. This issue links what is purported to be on sale (the marketing representations) and what is actually recorded in the agreement. The facts are very important here. The misrepresentation made must directly affect the purchaser’s decision to buy the land. The test is that the purchaser made the decision to buy, with the misrepresented facts being part of the marketing facts presented - with those facts not having been amended, clarified or rectified along the way.

If any issues arise in this area, it is wise to consult us as soon as possible. Time frames apply and everyone involved needs to be put on notice.

20/10/2023

VACANT POSSESSION

The importance of complying with the agreed terms of an Agreement for Sale and Purchase of Real Estate

Clause 3.1 of the Agreement for Sale and Purchase (11th edition) provides: “Unless particulars of a tenancy are included in this agreement, the property is sold with vacant possession and the vendor shall so yield the property on the settlement date”.

In a recent Court of Appeal decision, the Court upheld the decision of the High Court which found the Vendor was obligated to provide vacant possession to the Purchaser. The Vendor had shown through its conduct it was not prepared to do so.

The background
• The property in question (“the Property”) was advertised for its development potential, noting that resources consent had been issued for the development of seven terrace houses.

• However, what was not mentioned in the advertisement was the Property was subject to an existing tenancy.

• The sale and purchase agreement signed by the parties made no mentioned of a tenancy for the dwelling house and the Vendor would not permit the land agent to allow any access to the dwelling house. The Purchaser’s intention was to redevelop the property. The agreement became unconditional and a deposit of $155,000.00 was paid.

• A few weeks prior the settlement date, the Vendor’s lawyer wrote to the Purchaser’s lawyer advising of the fixed term tenancy. Settlement was fixed for the 16 September, but the fixed term tenancy was only due to end on 6 July the following year.

• The Vendor alleged, due to an oversight by the agent, the details of the tenancy were not included in the Agreement but claimed the Purchaser was aware of the existence of the tenancy and had agreed to purchase the Property with the tenancy in place. The Vendor insisted that Purchaser had to complete the sale subject to the tenancy and it would not complete the sale on any other basis.

• The Purchaser denied agreeing to purchase the property with the tenancy and it would not settle until confirmation of vacant possession was received.

• It is noted that the Vendor advised the Purchaser that the tenants were agreeable to vacate the Property by 20 November provided they were paid $18,000 in compensation. The Vendor was not prepared to pay that amount as it did not believe it was obligated to do so.

• Settlement did not occur, and the Vendor issued a settlement notice and later terminated the Agreement on that basis.

Vendor’s position
1. The Vendor claimed that notwithstanding what the Agreement said about the tenancy (or in this case the absence of its mention), the Purchaser was obligated to acquire the Property subject to the tenancy and if necessary, seek compensation from the Vendor under the Agreement.

2. The Vendor argued because the Purchaser had failed to settle, the Vendor was entitled to issue a settlement notice and, subsequently, cancel the Agreement.

Purchaser’s position
1. The Purchaser denied any agreement to purchase the Property subject to the tenancy.

2. The Purchaser relied on the signed Agreement, referring on the Vendor’s obligation to provide vacant possession and that it had been ready, willing and able to settle on the Settlement Date.

The decision
1. The Court noted that clause 3.1 of the Agreement provides that unless particulars of the tenancy are included in the Agreement, the property is to be sold with vacant possession and the Vendor shall so yield the property on the settlement date.

2. The Court found that the Vendor was obligated to provide vacant possession and had shown that the Vendor was not prepared to comply with that provision by its conduct - noting that the Vendor had refused to make payment of the compensation sum of $18,000.00 to the tenants which would have secured vacant possession. Accordingly, the settlement notice issued by the Vendor was invalid and it was not entitled to cancel the Agreement.

3. The Court found that the Purchaser was not obligated under the Agreement to settle the purchase of the Property subject to the tenancy and then claim compensation from the appellant.

4. Accordingly, the High Court Judgment granting the Purchaser the remedy of specific performance was upheld.

Final Outcome

The case was remitted back to the High Court for any further orders necessary to ensure that the property would be transferred to the Purchaser with vacant possession.

20/10/2023

No reinstatement after post termination allegations

The Employment Court has upheld a preliminary Employment Relations Authority determination declining an application for interim reinstatement. The Employer had terminated VMZ’s employment after he refused vaccination against Covid-19. The Court found that there were significant barriers to permanent reinstatement.

Someone had been appointed into VMZ’s role and there was no applicable vacancy. Statements by VMZ post-employment and his conduct towards the company and its employees were very serious and extreme. These included a letter of alleged murder and conspiracy and demanding $90 million in gold bullion or equivalent.

Permanent reinstatement was therefore not seriously arguable. The balance of convenience favoured the employer and this was not displaced by the overall interest of justice. VMZ seemed to have a relatively weak case for unjustifiable dismissal and his post-employment conduct had almost certainly caused reparable harm to his relationship with the employer.

20/10/2023

Retirement Villages and Occupation Rights Agreements

Buying an Occupation Right Agreement (“ORA”) in a retirement village is a major decision. It can feel overwhelming to go through all the paperwork that retirement villages are required to provide. Here is a summary of the important aspects of life within a retirement village.

The Act
Retirement villages are governed by the Retirement Villages Act 2003 ("the Act"). This Act ensures the protection of residents and of the retirement village by establishing a legal framework for financial reporting, regulation, monitoring, oversight provisions, and the security and protection of rights. All retirement villages must be registered, and you can verify the registration of your chosen village on the Companies Office website.

Right to occupy
Most villages offer a contractual license to occupy, which is different from owning a freehold house. It is crucial to understand that this contract grants you the right to occupy the premises but does not give you any ownership rights to the land or buildings. However, some villages do provide unit title ownership, and in such cases, the usual body corporate rules apply.

Retirement villages typically do not allow ownership in the name of a family trust; you must enter into the license agreement personally. If the ORA is held jointly and one owner passes away, the license will automatically transfer to the surviving joint owner. However, if you have a blended family, you should consider how you want to hold the ORA, especially if there are unequal contributions to the purchase price. Some retirement villages may provide a document called "Directions as to Payment" for the sale proceeds after termination of the ORA. This document will be associated with the ORA.

A Will and Enduring Powers of Attorney are required
All retirement villages require you to confirm that you have a valid Will in place and also require you to have Enduring Powers of Attorney in relation to both Property and Personal Care and Welfare. As your lawyer, we will be required to provide copies of your Enduring Power of Attorney to the retirement village for their records.

Termination of the ORA
You have the right to terminate the ORA at any time by providing written notice to the retirement village in accordance with the provisions and timeframe specified in the ORA (usually 30 days). The ORA will also terminate automatically upon your death. The retirement village can terminate the agreement on your behalf if there is a significant breach, abandonment of your unit/villa, intentional or reckless harm to the property, or if an independent medical practitioner certifies that you can not safely live in your unit/villa.

Each retirement village has a "Deferred Management Fee" structure, which is your contribution to the overall management of the village, including your villa/unit and the provided amenities. This fee is only paid when your ORA is terminated. Consequently, the estimated financial return on termination will be reduced by the deferred management fee, which can vary but is typically around 25% of the initial purchase price. For example, if you bought your ORA for $500,000 and the maximum deferred management fee is 25%, you would pay $125,000 to the retirement village upon termination. The specific terms and duration of the deferred management fees vary for each ORA, so it is essential to carefully review all documentation and seek our legal advice.

In addition to the purchase price of the ORA, there are also weekly fees and/or service charges depending on the type of care you require.

It is important that you also share this information with your children or other family members so that they understand that the purchase of the ORA is not an investment, it is a lifestyle choice and that when you cease to occupy your unit/villa you will receive substantially less than what you paid for it and majority of the time only once the retirement village sells the unit/villa to another resident, the retirement village retains any capital gains and payment is not made until the new resident moves in.

Conclusions
For ORA’s, the Retirement Villages will require the intended residents to obtain legal advice with the lawyer being required to sign a Certificate regarding such legal advice. We can assist.

When we are acting for a client regarding an ORA, we discuss the terms of the intended Agreement in detail with the client (and their family, where appropriate) to ensure that they fully understand the terms that they will be bound by. And only then will we allow them to sign the documentation.

We emphasise that living in a Retirement Village has many upsides but should always be seen as a lifestyle choice, not an investment.

Inder Lynch Lawyers

12/10/2025

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