Going out on your own

Company structure or sole trader for business?

You have decided to quit your job, and go out on your own to run your own business. Do you form a company or trade in your own name? We outline some of the pros and cons of these two options to help you make a decision.

Trading through a company

Brown Biscuits Limited: owner Jackie Brown

Brown Biscuits Ltd (BBL) is a separate legal entity. There are some significant advantages of trading through a limited liability company.

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Property Briefs

There have been a number of developments around property investment by overseas investors and also on residential tenancies.

If you are an overseas investor or a landlord, you should ensure you are up-to-date with the latest changes and/or proposals.

Update on Overseas Investment Act 2005

An overseas investor attempting to circumvent the requirements of the Overseas Investment Act 2005 has received the first criminal conviction under that legislation. In February 2020, Dr Won Joo Hur was fined $100,000 for falsely stating to the Overseas Investment Office (OIO) that a property was not purchased on his behalf and providing a false loan document to support his version of events.

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Gypsy day is all go

Gypsy Day will go ahead as planned this year, but with strict controls to help prevent the spread of COVID-19, Agriculture Minister Damien O’Connor announced today.

On June 1 each year, the first day of the dairy season, a large number of dairy farming families, sharemilkers, contract milkers and employees move to new farms to commence new employment and milking contracts. This movement of people, their possessions, livestock and machinery is known as ‘Gypsy Day’ or ‘Moving Day’. “This annual movement is a critical part of the dairy industry – an industry that contributes over $18 billion dollars a year in exports to our economy and provides jobs for around 46,000 people in our rural communities”, Minister O’Connor said. “It’s also an industry that will play a critical role in New Zealand’s economic recovery after COVID-19, so it was vital that Moving Day went ahead.

Since the Alert Level 4 lockdown was announced, and dairy farming was deemed an essential service, the Government has been committed to finding a way to enable it to proceed. “The Government has been working with sector leaders from organisations including DairyNZ, Fonterra, Federated Farmers and FMG to find solutions which work for those in the sector and protect the economy without jeopardising anyone’s health and safety. MPI then worked with the Ministry of Health and MBIE and found solutions that allow Moving Day to proceed under any alert level.   “Activities need to be restricted to just those that are absolutely necessary though and any movement around New Zealand must ensure people’s “bubbles” are maintained”.

DairyNZ say this announcement will be a great relief to farmers. “Moving Day is a key time in the dairy calendar so it’s great that a solution has been secured with Government which will provide peace of mind for thousands of farmers. It means we’ll move into the next dairy season in a way that keeps them and the public as safe as possible,” said DairyNZ chief executive, Dr Tim Mackle. “Industry groups will be providing further guidance and information to support those dairy farmers who are shifting this season, including ensuring their moves are safe and within their bubbles”. Minister O’Connor says New Zealand farmers are no strangers to disease eradication programmes with strict movement controls. “There were already really strong precautions in place around Moving Day as a result of the Mycoplasma bovis Programme. This gives me confidence that farmers will apply very careful behaviour to Moving Day. “I want to thank all of those sector groups and famers across the country who have worked together and shared some really solid and innovative thinking about potential solutions which will allow these crucial farm movements to go ahead safely and efficiently.”

Latest COVID-19 legal update

cld

Commercial lease disputes

Many leases signed after 2012 contain a clause which permits the tenant to pay a reduced rent during period in which they are “unable to gain access to the premises to fully conduct the Tenant’s business.” The expression fully conduct is important where a business may be able to operate at COVID alert level three but not in its usual manner (such as only being able to deliver rather than have customers enter the premises). We have seen Continue reading “Latest COVID-19 legal update”

Agreement for Sale and Purchase of Real Estate

10th edition contains significant changes for buyers and sellers

The Auckland District Law Society and the Real Estate Institute of New Zealand (ADLS & REINZ) are the authors of the most common template Agreement for Sale and Purchase that is used by the majority of lawyers and real estate agents throughout New Zealand. In November 2019, ADLS & REINZ released the 10th edition of the agreement with changes that impact and benefit both buyers and sellers.

The 10th edition makes a number of changes to the agreement that include:

  • Simplifying the terminology so it is consistent with the wording in the Land Transfer Act 2017
  • Clarifying the obligations of the parties when fulfilling conditions, and
  • Setting a clear distinction between chattels that have an operational function and those that don’t.

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Use the lockdown to your advantage…

Time1Running a business? Think about using this downtime to update your business documents (employment agreements, policies etc.)

Have you found since the lockdown that you have now got a lot more time on your hands unexpectedly? We encourage you to use this extra time efficiently and to get around to some of those jobs that haven’t been pressing but are still important to complete.

Now is a good time to review and update your business documents, such as terms of trade, debt recovery procedures, employment agreements and workplace policies. It is vital to keep all business documents up to date, to ensure they reflect the recent legal developments. We can assist you with this (you do not need to leave your couch) and is a great way to plan ahead, for business beyond the lockdown period.

Our team would be happy to review your business documents and advise you of any that should be updated, during a free 15 minute online consultation. Feel free to get in contact with our team and we can talk you through specific recommendation to update your business documents. By having up to date business documents, this will assist your business to hit the ground running as soon as possible.

Adapting the agreements can help property developers

Helps mitigate risk

There has been recent media attention on the way property development contracts are structured following the cancellation of a number of Agreements for Sale and Purchase by the developers of a project in Tawa, just north of Wellington. Reportedly, the developers said that without being able to cancel the existing agreements, the companies establishing the development would have otherwise faced liquidation and the development would have been halted.

In this article we look at how agreements can be adapted to suit the specific characteristics of a property development and how they can help mitigate the risks (and costs) to developers. As well, we address some of the questions you should ask to determine where the risks and burdens of the development will fall.

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Claims on an estate

How much can a disinherited child expect?

The Family Protection Act 1955 allows children to bring claims against the estate of a deceased parent on the basis that their parent did not adequately provide for their ‘proper maintenance and support’. Exactly what constitutes ‘proper maintenance and support’ is the subject of considerable litigation, as well as extensive commentary in the media.

Since a trio of Court of Appeal decisions in the early 2000s, a general understanding has emerged that awards under the family protection legislation can be quantified by referring to a percentage of the relevant estate. It has long been said that a financially-stable adult child might expect to receive between 10%–20% of the estate of their deceased parent, depending on a number of factors including the size of the estate and the position of others under the will or those people who are entitled to make a claim. In many cases, the 10%–20% threshold has become an informal benchmark when assessing the position of a financially-stable adult child making a claim against a modest, but not insignificant, estate. Continue reading “Claims on an estate”

Enduring powers of attorney

How many people should you name as attorneys?

In previous articles, we have explained why it is important to have an enduring power of attorney (EPA) and the problems that can be created if you do not have one when the need arises. You should have two EPAs – one for property, and the other for personal care and welfare.

EPA

In your EPA, you should also take care to name appropriate people as your attorneys. Ideally you should name two people to manage your property, which also includes your finances and investments.

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