Welcome to 2022

Dear *|FNAME|*,

Welcome to 2022. We are back on deck and looking forward to another busy year.

While we might have hoped for a little less disruption in 2022, already we're faced with new Red light restrictions. It's another reminder to ensure your legal affairs are up to date, both personal and business, and you're aware of your obligations and rights. Let us know if we can help.

Our office is operating under the Red rules. You are not required to have or present a Vaccine Pass to visit, but we encourage you to take appropriate care. 

No legal shortcut to Supreme Court for antivax groups

In November 2021, the High Court rejected a challenge that the Government's latest vaccine mandate was not legally valid. Justice Palmer held that the Order with which the mandate was made stood, and that legislation may be made that limits rights and freedoms under the New Zealand Bill of Rights Act, so long as the limits are reasonable and demonstrably justified.

The groups that brought the challenge sought to appeal the decision. Usually this would go to the Court of Appeal, but with the belief that the matter was urgent, they attempted to bypass this stage and go straight to the Supreme Court. This is possible under s75 Senior Courts Act 2016 if "it is necessary in the interests of justice for the court to hear and determine the appeal" and "there are exceptional circumstances that justify taking the proposed appeal directly to the court".

The Court held that while "there would be benefit in resolving the question of the validity of the Order with urgency," no such "exceptional circumstances" existed to satisfy the threshold of s75. 

"We do not consider that this benefit outweighs the detriment of this  Court being required to resolve the issues that arise in the proposed appeal without the benefit of the views of the Court of Appeal and the refinement of the issues which often results from the hearing of the issues in that Court."

Noting that a future appeal might reach the Court after going via the Court of Appeal, the Court expressed no views on the issues.

Succession law likely to change

Changes to the law which governs how a person's property is distributed when they die are on their way if Parliament accepts a recent report put forward by the Law Commission.

The existing Succession law is currently spread amongst a number of sources and statutes, including:

• wills
• estate planning mechanisms, such as trusts
• the Family Protection Act 1955, which allows some family members to claim against an estate
• the Property (Relationships) Act 1976
• the Administration Act 1969, which addresses situations where someone dies without a will
• testamentary promises
• constructive trusts

The Commission described much of this existing law as "old, out of date, and inaccessible," and concluded new law is required to "better reflect the diversity of family relationships in Aotearoa New Zealand and contemporary understandings of the Treaty of Waitangi."

Their recommendations include:

• introducing a new Inheritance (Claims Against Estates) Act to be the principal source of law regarding entitlements to and claims against estates;
• continuing surviving partners’ rights to a division of relationship property when their partner dies;
• revising the rules for how estates should be distributed when a person dies without a will (intestacy rules);
• clarifying the legal test for when certain family members can claim further property from an estate despite what the will or the intestacy rules say;
• providing that tikanga Māori should determine succession to taonga;
• enabling a court to recover property when it has passed from the deceased to a third party in a way that leaves the estate without sufficient property to meet awards made against it;
• supporting efficient and effective dispute resolution both in and out of court.

The review came at the request of the then-Minister Responsible for the Law Commission in July 2019. It's now with the Government for their consideration.

Monthly Housing Update

The latest data from realestate.co.nz shows New Zealand's national average asking price for a property hit a 14-year high in December. 

• The national average asking price in December was $985,246 - a 23.4 percent increase from December 2020, and 0.2 percent from November 2021.
• The homes available for purchase across the country rose by nearly 30% since the year before, giving buyers more choice nationally in 2022.
• However, homes available for purchase in Canterbury dropped 13.6 percent in the same period. This may well translate into further price increases in the region.

Do you feel it's the right time for you to buy or sell? Get in touch with us for advice and assistance.

Credit Contracts and Consumer Finance Act to be revisited

Changes to the Credit Contracts and Consumer Finance Act went into place on 1 December, with the aim of helping protect consumers and regulate predatory lenders.

Unfortunately, the reality seems to be that it has become much harder for borrowers to obtain mortgages, with banks and lenders taking "ultra conservative" approaches.  This has included nit-picking over coffee purchases, gym memberships, Netflix subscriptions, Christmas shopping - even spending on pets.

All this, along with a request from Act Party leader David Seymour to Parliament's Finance and Expenditure Committee chair Duncan Webb, has prompted Commerce and Consumer Affairs Minister David Clark to order an inquiry into whether banks have overreacted to the law changes.

“I have asked the Council of Financial Regulators (Reserve Bank, the Treasury, Financial Markets Authority, MBIE and Commerce Commission) to bring forward their investigation into whether banks and lenders are implementing the CCCFA as intended,” Clark said.

In the meantime, some financial advisers suggest prospective borrowers reign in their spending in the three months leading up to an application.

Thanks *|FNAME|*.

That’s it for our first edition of Legalchat this year. As always, we’re just an email or phone call away for any questions, help or advice. We look forward to chatting next time.

Regards,

Clive, Grant and the Team at Canterbury Legal