it’s your website, but do you own all of it? adlsi forms...

www.adls.org.nzISSUE 18 12 JUNE 2015

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LAWNEWS

THIS ISSUE:

It’s your website, but do you own all of it?Sport and sponsorship – game, set and tax!

ADLSI forms amended to reflect CCCFA changes

+ Technology and the law

LEGAL OWNERSHIP IN WEBSITES – SOME MISCONCEPTIONS

By Anthony Liew

Introduction

Businesses all over the world have realised that if they wish to increase their reputation and bring their products or services to a wider target audience, then they must have a dynamic e-commerce website that will attract customers to visit, purchase or inquire about their products and/or services.

According to an article published in 2013, “Strong connection between ICT and business-growth activities” (available at www.stats.govt.nz), Statistics New Zealand found that businesses that use the Internet to collect sales orders have higher rates of growth activity.

In 2014, approximately 571 websites were created every minute worldwide, and that number is growing (http://www.designbyconet.com/2014/06/ever-wondered-how-many-websites-are-created-every-minute/).

There is widespread assumption that once a website is built, and the commissioning party has paid the website developer for the work undertaken on the website, the commissioning party becomes the owner of the website and all the elements in that website. Nothing could be further from the truth. Ownership of a website is a complicated subject and very little attention is given to it.

In order to appreciate the problem, one has to

understand the anatomy of a website and the process involved in building it.

Anatomy of a website

A website is made up of many assembled parts, each having a special role to play. When one visits a website, what appears on the computer screen or, in the case of a responsive website, on a mobile device, is but an element or a combination of several elements of that website. Websites may be “static” or “interactive”.

A static website is akin to a printed marketing brochure where the information presented is

Commercial litigator and IP/IT specialist Anthony Liew says that ownership of a website is a complicated subject and that generally very little attention is given to it.

pre-defined and static. In an interactive website (also known as a “dynamic” website), the content changes frequently and automatically and permits interaction with the visitor to the site. It follows that an interactive website will have more assembled parts than a static website.

An interactive website that has proliferated in recent years is the ubiquitous e-commerce website that facilitates online sales of goods and services direct to consumers, business-to-business buying and selling, and marketing to prospective and established customers to name

ISSUE 18, 12 JUNE 2015

but a few.

Typically, in addition to the all-important domain name i.e. the component of a uniform resource locator (URL) used to access the website, an e-commerce website will have:

• the homepage, which is the first page that appears when a visitor types in the website address;

• the landing pages, which are the pages that a visitor to a website “lands” on when the visitor clicks on an advertisement or hyperlink and is a technique used in online advertising to bring a visitor to dedicated landing pages in a website without first having to go to the homepage;

• pre-sales pages that provide relevant and quality information to the visitor about the business, its reputation and expertise e.g. “about us”, customer feedbacks and case studies;

• direct sales pages that are focused on selling or generating leads for a product or services;

• lead generation pages that are designed to generate new leads for the business by offering to provide free information in return for the visitor’s contact details;

• product pages, which have all the products in categories to enable the visitor to easily browse the range of products on offer;

• the shopping cart, which is an integrated software that collects the various products that the customer wishes to purchase from the category pages; and

• the checkout, which manages the payment and delivery details.

When a client commissions a website build (in this article, “the commissioning party”), the website planner will first obtain an understanding of the commissioning party’s objectives for having a website, which invariably are to introduce the products and services offered by the business and persuade a visitor to the site to make an enquiry and purchase those products or services. Once those objectives are established, a blueprint or plan that provides an outline of the website will be prepared.


LEGAL OWNERSHIP IN WEBSITES – SOME MISCONCEPTIONSContinued from page 1

Editor: Lisa Clark

Publisher: Auckland District Law Society Inc.

Editorial and contributor enquiries: Lisa Clark, phone (09) 303 5270 or email [email protected]

Advertising enquiries: Chris Merlini, phone 021 371 302 or email [email protected]

All mail for the editorial department to: Auckland District Law Society Inc., Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010. PO Box 58, Shortland Street, DX CP24001, Auckland 1140. www.adls.org.nz

Law News is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLSI, and

available by subscription to non-members for $130 plus GST per year. If you wish to subscribe please email [email protected]

©COPYRIGHT. Material from this newsletter must not be reproduced in whole or part without permission. Law News is published by Auckland District Law Society Inc., 2 Chancery Street, Auckland.

LAW NEWS is an official publication of Auckland District Law Society Inc. (ADLSI).

The build then progresses to the design stage, which is the process of creating a clear visual of how the new website will look and feel. Using a process called “wireframing”, a simple sketch or diagram will be completed for each of the major pages to outline exactly where and what key persuasive elements will be located on the page and the type of content that needs to be included in each major content block that will appear on the page. Once the designs are approved by the commissioning party, the website build commences.

Copyright in the content

Often, there is widespread belief that, because the content is part of a commissioned work, the commissioning party “owns” all that content by virtue of section 21(3) of the Copyright Act 1994. That is a false premise.

Take, for example, the photographs that appear in a product page. If the photographs were

The issue of legal ownership in a website, in particular the various elements that make up a website, is complex. What may often be assumed to be owned by the commissioning party may not be the case, and what the commissioning party may have actually ended up with is nothing more than a non-exclusive licence to use. Common misconceptions as to ownership rights in a website can potentially lead to unattractive outcomes including unwelcome financial consequences.

taken by or on behalf of the website developer as part of the website build, then, as long as the requirements of section 21(3) and (4) of the Copyright Act 1994 are met, the commissioning party will own the copyright in those photographs. However, more often than not, the content page will comprise works that may have been sourced from specialist providers and used under a licensing/relicensing arrangement. Typical examples are stock photographs, images and videos, which are less expensive than specially commissioned works.

An aspect that is often misunderstood relates to the copyright in the written content of a web page. Section 21(3) applies only to certain works including photographs, computer programs, paintings, drawings, diagrams, and sound recording, but not literary works. It is becoming common practice for website developers to provide content writing as part of their website development services. In the absence of an express stipulation to the contrary, the commissioning party may find that they do not own the copyright in the commissioned written content.

Front end and back end of a website

A website has two distinct parts to it: the “front end” and the “back end”. The front end of the website is what a visitor to a website sees and interacts with on his or her screen, for example, the home page, the product pages, the shopping cart and the checkout. It is an interface between the visitor and the back end. The back end is the “server-side” of the website, which the visitor to the website does not see, for example the servers and the databases, the programming that generates pages that the user views and creating the “server-side” content of the site such as scripts, directives, databases, and other automated functions the server performs – in other words, the “engine room”.

That “engine room” will include a content management system (CMS). A CMS is a software application that provides capabilities for multiple users with different permission levels to create, edit, archive, publish, collaborate on, report and distribute website content, data and information. In an e-commerce website, the CMS may have capabilities that create, edit, publish, archive web pages, articles, blogs, add or edit events in an event calendar, add or

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edit product inventories, product descriptions, product specifications, prices, photos, enter or edit orders, and print packing slips and invoices for products purchased. A CMS may either be proprietary or open source, and this is where copyright ownership can be complex and often misunderstood.

Proprietary system

The term “proprietary” refers to software whose source code is a closely guarded secret. In contrast, the source code for open source software is freely available on the Internet.

Where a proprietary system is used for the website build, the code and the copyright in the code relating to that system will be owned by the copyright holder of the code. Except in very special circumstances, such as a bespoke build where the contract expressly specifies otherwise, ownership of the copyright in that code will not be transferred to the commissioning party on completion of the website build.

However, even if the contract for a bespoke website build does provide for the assignment of the copyright in the website, it does not necessarily follow that the commission party will end up with the copyright in all aspects of the source code. The website developer will want to retain ownership of the copyright in the “library code” for reuse in other website builds. The practice of retaining library codes for use in other projects was regarded by the Court of Appeal in Pacific Software Technology Ltd v Perry Group Ltd [2004] 1 NZLR 164 (CA) as of “distinct practical importance”.

In that case, the Court observed: “Software developers ... are obviously storing routines developed for prior projects in what amount to virtual libraries, and then reusing them by cobbling them into new programs. The philosophy of ‘write once, use many times’ is efficient in economic terms, and indeed has historical parallels in such things as lawyers’ use of written precedents for commercial, conveyancing and Court forms.”

Accordingly, all that the commissioning party will be entitled to is a non-revocable and non-exclusive licence to use the library code. In the absence of an express contractual provision to that effect, the courts will, as was done in the Pacific Software case, imply such a licence in favour of the commissioning party.

Open source system

There is widespread misconception that when an open source system is used for a website the commissioning party gets to “own” the copyright in the website including the elements that make up the website. That is fallacious. Ownership of the copyright in the open source code will never pass to the commissioning party. At best, the commissioning party will only be entitled to a non-exclusive licence.

Open source is not synonymous with public domain. With regard to copyright ownership, open source software is very similar to proprietary software. Open source software will often have a number of different contributors and, as the software continues to develop, that ownership will become more and more complex.

Licensing of the software can then become a nightmare. To get around that problem, ownership of the copyright in the various contributions may be assigned to a centralised body that will then license out the use of those contributions. If the contributors chose to retain ownership they may grant a licence to a centralised body that will then re-license out the use of the contributions. In either case, the open source software will be made available to the public at large under a licence that has been approved by the Open Source Initiative, such as the widely used GNU General Public Licence (GPL).

Website developers often have very little knowledge or understanding of the complexity of open source licences. The GPL, for instance, stipulates that all software created by modifying the original software must also be licensed under the GPL. What this means is that when a website developer adds its own efforts to a piece of open source software, the website developer cannot then relicense the modified software under terms that are more restrictive than those of GPL.

Customisation

Websites are often customised to increase their functionality and/or their performance. A functionality may have been purpose-built and unique to the website in question. In that case, the commissioning party may be able to obtain ownership of the copyright for that particular functionality, subject to the developer retaining ownership of the copyright in the library code embedded in that functionality.

However, if the customisation includes the website developer’s proprietary software and an open source software or its derivative, then, under the licence for that open source software, for example the GPL, the website developer has an obligation to provide the source code of the proprietary software to the public.

In the majority of cases, third party plug-ins

would be used as they can be less expensive than having a bespoke functionality built. A plug-in is a software component that provides added functionality or services to a website, for example a photo gallery, social media integration, ratings systems or events management. Plug-ins are licensed to the end user, which means that the party commissioning the website customisation will not own the copyright in the plug-ins that were incorporated in the website.

Domain name

One element of a website that will not be owned by the commissioning party is the domain name for a website. The terms of trade or the registration agreements of domain name registrars will often expressly state that registration of a domain name confers no property or ownership rights to that domain name.

Conclusion

The issue of legal ownership in a website, in particular the various elements that make up a website, is complex. What may often be assumed to be owned by the commissioning party may not be the case, and what the commissioning party may have actually ended up with is nothing more than a non-exclusive licence to use. Common misconceptions as to ownership rights in a website can potentially lead to unattractive outcomes including unwelcome financial consequences. It is imperative that website developers and commissioning parties understand that legal ownership in websites is not simple and straightforward.

Ownership rights will differ from website to website, and what may be relevant to one website may not be applicable to another website. For the commissioning party, there is a need to have an educated understanding of the website building process and the elements that will go into the proposed website. Once the commissioning

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quantum of GST output tax and input tax can be determined.

The agreed value should be equal unless (as is quite common) the sponsor also provides some cash, in which case the value of the VIK will not equal the value of the rights granted by the sponsored organisation. If the arrangement is well structured, net GST should only need to be

+ Tax law, sports law

Sponsorship – don’t drop the ball on GST!By Barney Cumberland (Partner), Peter Stubbs (Partner), Ashton Welsh (Senior Associate) and Paul Windeatt (Senior Associate), Simpson Grierson

Kiwis love sport – as do Kiwi businesses, who often supply their product for use by the sport’s participants, on or off the field.

The GST implications of such sponsorship need to be addressed and this goes not just for sport, but for any sponsored event or organisation. This aspect of sponsorship arrangements can be overlooked or inadequately dealt with, leaving the sponsor and/or the sponsored potentially exposed on an IRD audit.

Value-in-kind sponsorship

Sponsorship can have a significant contra or value-in-kind component (VIK), as well as a cash component. Examples of VIK include a sponsor providing vehicles to be driven by name players, clothing to be worn by team members and officials, and products to be used as prizes or “giveaways” at events.

VIK sponsorship: a barter transaction

Where a sponsor provides VIK in full or part exchange for advertising displays and rights to link its product to the sport or event, a barter transaction occurs: the sponsor gives VIK and receives marketing rights and other benefits, while the sponsored organisation gives marketing rights and receives VIK. For GST purposes, assuming both parties are GST registered, that barter transaction is analysed as the making of taxable supplies both by the sponsor and by the sponsored.

Taxable supply of VIK by the sponsor

The sponsor’s supply of its VIK is a taxable supply and, as with any taxable supply the sponsor makes in its business, GST is charged on that supply. The fact that the VIK is not paid for in cash does not alter the fact that a taxable supply is made by the sponsor.

Taxable supply of marketing rights by the sponsored

The sponsored organisation is not able to treat the receipt of the VIK (and any cash provided) as an unconditional gift for GST purposes because it provides the sponsor with consideration (the marketing rights) in return. The supply of those marketing rights by the sponsored organisation is also a taxable supply, on which GST is charged. (See diagram at bottom right of page 4.)

Who pays the IRD?

For both the sponsor and the sponsored, GST output tax has to be accounted for on the value of the taxable supplies made, net of the GST input tax deduction for the taxable supplies received and invoiced.

Since the sponsored organisation does not pay cash for the VIK, but instead grants rights to the sponsor in exchange, the value of the VIK supplied and the value of the rights granted have to be agreed upon, in order that the

Continued on page 5

paid to IRD by the sponsored organisation on the GST fraction of any sponsorship paid in cash.

GST time of supply

Even if the total value of what is exchanged is equal over the term of the arrangement, there may still be a GST output tax liability for a GST

Barney Cumberland Peter Stubbs

Ashton Welsh Paul Windeatt

Sponsor provides sporting apparel (agreed value in kind of $120K + GST) and cash of $80K + GST

Sponsored organisation grants sponsor the right to use organisation’s name/logo on sponsor’s apparel for sale to public (agreed value $200K + GST)

SPONSORSPONSORED

ORGANISATION

Taxable supply

Taxable supply


VIK supplied/invoiced $100 + GST ($15)

Rights granted/ invoiced $150

+ GST ($22.50)

SPONSORSPONSORED

ORGANISATION

Net GST deduction $7.50

Net GST payable $7.50 (cashflow strain)

return period if the value of supplies made in that return period by either the sponsor or the sponsored organisation is greater than the value of supplies received in that period. If so, the arrangement is not optimally structured, as that party will have to pay that GST liability in cash – with cashflow implications, until that party is entitled to a net input tax deduction in a later GST period. For the sponsored, that cashflow strain can reduce the value of the sponsorship arrangement. For the sponsor, it can increase the cost of the sponsorship.

Therefore it is vital that the timing and value of supplies is addressed, utilising provisions in the GST Act which allow for periodic supplies and deem a supply to be for the amount invoiced, enabling invoices issued and received to be for the same amount (less any cash component of the sponsorship). This can ensure that any net GST output tax liability only arises in any GST return period to the extent that the sponsorship has a cash component (if any), paid in that return period. (See diagram at top right of page 5.)

Interest and penalties if the ball is dropped

As well as the feel good factor, the rewards for a business sponsoring an organisation, team or

an event include increased brand recognition, alignment with a brand marketing strategy and (if all goes well) allying the business with success. However, if GST is not properly accounted for at the time it is due, there is exposure to use of money interest, late payment penalties and potentially a tax shortfall penalty – in addition to the underlying GST. That exposure could outweigh a later entitlement to a GST input tax deduction under the sponsorship arrangement, and potentially render the sponsorship

The ADLSI Documents and Precedents Committee is pleased to announce the release of updated versions of the following documents:

• Agreements available in WebForms and in hardcopy from the ADLSI website:

– 8008 – Term Loan Agreement – CCCFA;

– 6301 – General Security Agreement (GSA);

– 6303 – Purchaser Security Agreement (PSA); and

• Registrable Memoranda available for purchase from the ADLSI website:

– 6302 – Memorandum of General Terms (RGL 2015/4326);

– 8005 – Mortgage Memorandum – Fixed Sum (RGL 2015/4327); and

– 8010 – Mortgage Memorandum – All Obligations (RGL 2015/4328).

The changes have been made to accommodate the provisions of the Credit Contracts and Consumer Finance Amendment Act 2014. Information on the impact of the Credit Contracts and Consumer Finance Amendment Act is available on the Consumer Affairs website (www.consumeraffairs.govt.nz) and an ADLSI CPD paper on the reforms is available for purchase on the ADLSI website (www.adls.org.nz/adlsi-store/cpd/cpd-seminar-papers).

All the updated documents were released on Monday 8 June 2015.

The GSA and PSA have received only very minimal changes. More significant changes have been made to the Term Loan Agreement. A highlighted version of the Term Loan Agreement is now available on the ADLSI website.

An important addition to all three registrable Memoranda (6302, 8005 and 8010) has been made at the final clause. This clarifies the correct protocol for users seeking to incorporate the provisions of those memoranda under the provisions of section 155A of the Land Transfer Act 1952.

The effect of the new clause is that the mortgagee will be acknowledging that, upon registration of the mortgage instrument incorporating the terms of the memorandum, the mortgagee has paid the required licence fee and has acquired the right to incorporate the terms in the mortgage instrument. By purchasing the Memoranda via the ADLSI website, users will be acquiring the right to incorporate their terms in all transactions from there on in. All three Memoranda (6302, 8005 and 8010) are now available for purchase from the ADLSI website.

Purchasers of the Term Loan Agreement (8008) will automatically acquire a single use licence to utilise the three Memoranda (6302, 8005 and 8010) with that particular transaction.

Updated Cross Lease Addendum to Agreement for Sale And Purchase

On Monday 22 June 2015, we will be releasing updated versions of:

• 4003 – Addendum to Agreement for Sale And Purchase (Clauses for Staged Development Work Where VENDOR Carrying Out the Development Work); and

• 4005 – Addendum to Agreement for Sale And Purchase (Clauses for Staged Development Work Where PURCHASER Carrying Out the Development Work).

The two documents (more commonly known as the “Cross Lease Addenda”) are designed as further terms to be used with the Agreement for Sale and Purchase of Real Estate when a cross lease property is to be developed. The two variations cater to the situation when the vendor or the purchaser is undertaking the development work.

The forms have received only very minor formatting changes. In the previous version, their numbering was out of sync with the current Agreement for Sale and Purchase of Real Estate – this has now been corrected.

Please do not hesitate to contact the ADLSI Documents and Precedents Manager, Ben Thomson, on [email protected] if you have any questions in relation to these new documents.

arrangement detrimental.

Such exposure can be avoided if careful attention is paid to the GST aspects of any sponsorship arrangement at the outset.

If you need further information or advice regarding GST and sponsorships, or any other aspect of sponsorship arrangements, please contact one of the authors at Simpson Grierson.

Continued from page 4

+ Update from ADLSI’s Documents and Precedents Committee

Changes to ADLSI forms affected by the Credit Contracts and Consumer Finance Amendment Act 2014

LN

LN


Further to the item entitled “Law Commission releases Issues Paper on use of security-sensitive information in the courts” which featured in Law News Issue 15 (22 May 2015), the Law Commission is conducting a review of the procedures available to protect information relating to national security in civil and criminal proceedings.

This relates to the recent publication by the Law Commission of its Issues Paper on this topic, which is available on the Law Commission website. (For more, please visit: www.lawcom.govt.nz/our-projects/protection-classified-and-security-sensitive-information.)

ADLSI has arranged for a consultation meeting with Professor Geoff McLay, who is leading this project, along with Jo Dinsdale and Eliza Prestidge Oldfield, Senior Legal and Policy Advisers, to discuss the issues and provide feedback on the proposals in the paper prior to the end of the consultation period on 30 June 2015.

The meeting will take place at Chancery Chambers, 2 Chancery Street, on Monday 22 June 2015 at 1pm and you are welcome to attend.

Please contact ADLSI Professional Services Manager, Helen Young to confirm your attendance at [email protected].

+ Notice to the profession

Meeting to consider use of security-sensitive information in the courts

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www.adls.org.nzISSUE 18 12 JUNE 2015

Continued on page 2

LAWNEWS

THIS ISSUE:

It’s your website, but do you own all of it?Sport and sponsorship – game, set and tax!

ADLSI forms amended to reflect CCCFA changes


LEGAL OWNERSHIP IN WEBSITES – SOME MISCONCEPTIONS

By Anthony Liew

Introduction

Businesses all over the world have realised that if they wish to increase their reputation and bring their products or services to a wider target audience, then they must have a dynamic e-commerce website that will attract customers to visit, purchase or inquire about their products and/or services.

According to an article published in 2013, “Strong connection between ICT and business-growth activities” (available at www.stats.govt.nz), Statistics New Zealand found that businesses that use the Internet to collect sales orders have higher rates of growth activity.

In 2014, approximately 571 websites were created every minute worldwide, and that number is growing (http://www.designbyconet.com/2014/06/ever-wondered-how-many-websites-are-created-every-minute/).

There is widespread assumption that once a website is built, and the commissioning party has paid the website developer for the work undertaken on the website, the commissioning party becomes the owner of the website and all the elements in that website. Nothing could be further from the truth. Ownership of a website is a complicated subject and very little attention is given to it.

In order to appreciate the problem, one has to

understand the anatomy of a website and the process involved in building it.

Anatomy of a website

A website is made up of many assembled parts, each having a special role to play. When one visits a website, what appears on the computer screen or, in the case of a responsive website, on a mobile device, is but an element or a combination of several elements of that website. Websites may be “static” or “interactive”.

A static website is akin to a printed marketing brochure where the information presented is

Commercial litigator and IP/IT specialist Anthony Liew says that ownership of a website is a complicated subject and that generally very little attention is given to it.

pre-defined and static. In an interactive website (also known as a “dynamic” website), the content changes frequently and automatically and permits interaction with the visitor to the site. It follows that an interactive website will have more assembled parts than a static website.

An interactive website that has proliferated in recent years is the ubiquitous e-commerce website that facilitates online sales of goods and services direct to consumers, business-to-business buying and selling, and marketing to prospective and established customers to name

Online magazine version of now available to subscribers.

LAWNEWS subscribers who prefer to read LAWNEWS online, can now switch their weekly subscription from the printed format, to the new, online magazine format.

Simply email [email protected] and let us know you’d like to switch your weekly print subscription to online, and we’ll arrange to send you an email every Friday with a link to the latest issue of LAWNEWS.

If you’d like to start a subscription to LAWNEWS, it’s free for ADLSI Members and $130+GST per year for non-members. To enquire about subscribing, email [email protected] or visit www.adls.org.nz/adlsi-store

ADLSI is continuing its successful Lawyers’ Lunch series for 2015, with an upcoming Lawyers’ Lunch in Takapuna on Tuesday 30 June 2015 at GPK Bar & Grill.

Practitioners from across the North Shore are invited to join us for a relaxed lunch and enjoy a short presentation by ADLSI and Lawyers’ Lunch sponsor OfficeMax.

Held regularly across Auckland, these gatherings offer lawyers the opportunity to meet and network with fellow practitioners in their local area.

The lunch will be $24.95 (incl. GST) from a set menu, but we are pleased to offer ADLSI members an exclusive Lawyers’ Lunch rate of

$14.95 (incl. GST). Numbers are limited, so register now to avoid missing out.

Time & date: 12 – 2pm, Tuesday 30 June 2015

Venue: GPK Bar & Grill 162 Hurstmere Road Takapuna 0622

Registration: $13.00 + GST ($14.95 incl. GST) per person for ADLSI members

$21.70 + GST ($24.95 incl. GST) per person for non-members

Register before 24 June 2015 to secure your spot, subject to availability. Visit www.adls.org.nz to register and pay online; alternatively, contact

adls.events @adls.org.nz or (09) 303 5287.

ADLSI’s standard cancellation policy applies for this event.

ADLSI North Shore Lawyers’ Lunch sponsored by OfficeMax

+ ADLSI event

North Shore Lawyers’ Lunch, Tuesday 30 June 2015

The ADLSI Immigration and Refugee Law Committee is again holding its annual dinner with the Minister of Immigration, the Hon Michael Woodhouse.

Immigration lawyers, licensed advisers and other senior figures in the immigration sector are invited to this valuable opportunity to meet and build rapport in a convivial setting. The evening will include pre-dinner drinks and a three-course dinner, plus a short address from the Minister.

Date: Monday, 27 July 2015Timing: 7.00pm arrival and drinks 7.30pm dinnerDress code: Business attireVenue: Northern Club, 19 Princes Street, Auckland Tickets: $83.00 + GST ($95.45 incl. GST) for ADLSI members and the judiciary $95.00 + GST ($109.25 incl. GST) for non-members

To register for this dinner visit www.adls.org.nz; alternatively email [email protected] or phone (09) 303 5287. Spaces are limited, so register before Wednesday 22 July 2015 to secure your spot, subject to availability.

ADLSI’s standard cancellation policy applies for this event.

+ ADLSI event

Annual Immigration and Refugee Law dinner, 27 July 2015

The Hon Michael Woodhouse

LN


+ Appointments

Retired High Court judge to review Pora claimLeading former High Court judge the Hon Rodney Hansen CNZM QC has been appointed to conduct the inquiry into Teina Pora’s claim for compensation for wrongful conviction and imprisonment, which was submitted to Justice Minister the Hon Amy Adams earlier this year.

In announcing the appointment, Ms Adams noted that, after careful consideration, she had concluded that Mr Pora’s claim merited further assessment, and that the Hon Mr Hansen QC’s “distinguished legal career makes him well-placed to consider the claim objectively”.

“His experience includes sitting on the bench in a number of high-profile criminal cases, and I’ve no doubt he will take to this important task diligently,” Ms Adams said.

Mr Pora lodged an application for compensation for wrongful conviction and imprisonment in April 2015 in respect of convictions for murder, sexual violation and aggravated burglary for which he spent just under 20 years in prison.

Mr Pora’s convictions were set aside by the Privy Council in March 2015. As his convictions were quashed without order of a retrial, Mr Pora is eligible to apply for compensation under the Cabinet Criteria for Compensation and Ex Gratia Payments for Persons Wrongly Convicted and Imprisoned in Criminal Cases.

The Hon Mr Hansen QC was admitted to the bar in 1969. He spent fifteen years spent as a litigation partner at a large commercial law firm before he commenced practice as a barrister at Shortland Chambers, specialising in civil litigation and family law. He was appointed Queen’s Counsel in 1995 and to the High Court bench in 1999, where he sat on a number of high-profile criminal cases.

The Hon Mr Hansen QC retired from the bench in March 2014, returning to Shortland Chambers to practise as a mediator and arbitrator. He has since sat on the Court of Appeal of Tonga and the Court of Appeal of the Pitcairn Islands.

The Australasian Therapeutic Communities Association (ATCA) is holding a conference on “Partnerships in Treatment” in Auckland later this year, from 12-14 October 2015.

+ Event

ATCA Conference, 12-14 October 2015

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+ ADLSI Council

Contact details for ADLSI CouncilHere are the contact details for your ADLSI Council. They welcome your queries and suggestions.Brian Keene QC (President) Ph. 09 366 0306 E. [email protected] Pidgeon (Vice-President) Ph. 09 337 0826 E. [email protected] Brandts-Giesen Ph. 03 313 4010 E. [email protected]

Vikki Brannagan E. [email protected] Hagen Ph. 09 309 1689 or 021 452 326 E. [email protected] Nicolson Ph. 09 309 2500 E. [email protected]

David Roughan Ph. 09 435 2261 E. [email protected] Anne Shanahan Ph. 09 827 6106 or 09 827 2783 E. [email protected] Spring Ph. 09 486 1609 E. [email protected]

The Hon Rodney Hansen QC

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Featured among the speakers will be Judge Lisa Tremewan of the Alcohol and Other Drug Treatment Court (AODTC). Judge Tremewan will speak about the unique ways in which therapeutic jurisprudence practices are being applied in the context of the AODTC pilot.

Other keynote speakers include:

• Dr Ken Robinson – Dr Robinson hails from the United States and will speak about “Breaking the chains of trauma” and “Moral Reconation Therapy”. His work will be of significance to Therapeutic Communities as PTSD and legal issues for residents are often present.

• Mike Trace – Mr Trace has worked for the last 20 years in various roles in the international drug control system, including as “Deputy UK Drug Czar” to Tony Blair. He is currently CEO of one of the biggest providers of drug treatment services in the UK prison system.

• Kathryn Leafe – Ms Leafe is CEO of CARE NZ. Initially trained as a lawyer, she became a probation officer before moving into the alcohol and other drug treatment sector. She was involved in the early development of prison drug treatment and criminal justice-based alcohol and other drug treatment interventions in the UK.

Dates: 12-14 October 2015

Venue: Rendezvous Hotel, Auckland Central

For further information, conference updates and registration, please refer to the ATCA website www.atca.com.au or email Johnny Dow on [email protected].


Selected CPD CPDTo view all ADLSI CPD & register: www.adls.org.nz/cpdEmail us: [email protected] Phone us: 09 303 5278

Featured CPD

Monday, 29 June 2015 4pm – 6.15pm

Live streamed | Auckland (venue TBC)

2 CPD HOURS

Perspectives on Group Litigation and Litigation FundingRepresentative actions are growing in New Zealand. With potentially large numbers of plaintiffs, the complexities of procedure, case management, funding and insurance must be carefully managed. This seminar will dispel misinformation and provide key information on the representative action legal landscape, explain how you can secure funding and insurance for these actions, and include practical tips from those involved in running and defending such claims.

Learning outcomes• Gain insight into the utility and risks of representative actions.

• Understand the current legal issues relating to representative actions and litigation funding in New Zealand.

• Learn, from experienced personnel, how to effectively build, manage and defend a representative action.

• Become better positioned to secure funding for your clients for payment of your fees, by understanding the legal position.

Who should attend?All lawyers who deal with large-scale disputes. Accountants, insolvency practitioners and CFOs may also benefit from attending.

Presenters: Oliver Meech, Partner, Minter Ellison Rudd Watts; Catherine Levermore, Senior Associate, Minter Ellison Rudd Watts; Patricia Mills, Barrister, Redmond Chambers; Adina Thorn, Principal, Adina Thorn Lawyers Chair: The Honourable Justice Asher

Wednesday, 24 June 2015 12pm – 1pm

At your desk or on your portable device

1 CPD HOUR

Drafting Better Pleadings The ability to draft pleadings well is a core skill of any litigator and increasingly so given that pleadings have recently been re-introduced into the District Court. This presentation provides an opportunity for litigators to receive invaluable practical guidance from the Bench to assist in drafting better pleadings.

Learning Outcomes• Acquire strategies to help you prepare pleadings expertly.

• Acquire some practical tips for drafting common court documents, such as statements of claim, statements of defence.

• Learn about some fundamental errors and how to avoid them.

• Learn what to do if faced with a poorly pleaded case.

Who should attendJunior to intermediate civil litigators as well as those wanting a refresher.

Presenter: The Honourable Justice Duffy

Thursday, 18 June 2015 4pm – 6.15pm

Live streamed | Auckland (venue TBC)

2 CPD HOURS

Cartels or Lawful Collaborations? What Your Clients Need to KnowSignificant wide-ranging pending amendments to the Commerce Act 1986 mean your business clients will need to review their agreements and relationships with competitors to ensure they do not breach the revamped cartel regime.

Learning outcomes:• Learn when and how the new cartel regime will affect which of your clients.

• Discover what this new regime will mean for formal and informal joint ventures, franchises, trade and professional associations, vertical supply contracts and joint buying and promotion agreements.

• Gain insights into the Commerce Commission’s draft Competitor Collaboration Guidelines which reflect the Commission’s approach.

• Get guidance on the advantages of applying for a collaborative activity clearance.

• Identify the types of provisions in arrangements that may be at risk under the new regime.

Who should attend?Lawyers whose clients are in franchises or buying groups, are manufacturers or distribute products, or have relationships with their competitors; in-house counsel; commercial and company lawyers; litigators.

Presenters: Katie Rusbatch, Manager, Competition, Commerce Commission; David Blacktop, Principal Counsel, Competition, Commerce Commission; Alan Lear, Barrister Chair: Geoff Hardy, Principal, Madison Hardy

Wednesday, 1 July 2015 12pm – 1pm

At your desk or on your portable device

1 CPD HOUR

Research Skills for Lawyers II: Best sources of free legal information – techniques and tips for using them The Internet offers lawyers a wealth of free legal sites, a steady flow of news feeds and updates, and endless information relevant to client files of every description. However, the Internet can also expose the unwary researcher to a minefield of mis- and dis-information. This webinar will arm you with resources and disciplines to help you get the most out of the best free resources.

Learning Outcomes• Become aware of the range of free legal resources on the Internet.

• Discover legal update services you can subscribe to for no cost.

• Acquire more sophisticated research techniques to get better results.

• Learn how to assess the reliability of websites.

Who should attend?Any lawyer wishing to update their Internet research skills. Legal executives would also benefit from attending.

Presenters: Therese Duffin, National Information Services Manager & Amanda Wall, Research & Information Librarian, Bell Gully

7. 10 hour 8. On demands6. Webcast5. Forum

1. Seminar 2. Webinar 3. Workshop 4. Conference

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Selected CPD CPDTo view all ADLSI CPD & register: www.adls.org.nz/cpdEmail us: [email protected] Phone us: 09 303 5278

CPD in Brief

Commercial Law Series: Thanks for Sharing: Offers of Equity Securities under the Financial Markets Conduct Act Tuesday 21 July 2015 | 4pm – 6.15pmThis seminar will cover the legislative context for offers of new and existing shares, including the regime under the Financial Markets Conduct Act 2013, and key messages.

Presenters: Stephen Lowe, Partner, Chapman Tripp and Jeremy Gray, Senior Solicitor, Chapman Tripp

Chair: Andrew Lewis, Principal, Andrew Lewis Law

Rural Law Series: Best Practice for Tailored Succession Planning Tuesday 28 July 2015 | 12pm – 1pmRural properties (including farms) stand apart from other realty and income-generating assets in that they are frequently the culmination of lifetime investments. Careful attention and expertise are therefore required when advising clients. Presenters: Warwick Deuchrass, Partner, Anderson Lloyd, Queenstown and John Adams, Director – Tax, KPMG, Hamilton

Self-Represented and Vexatious Litigants – Civil Cases: Judicial Perspective & Practitioner’s Dilemma Wednesday 29 July 2015 | 1pm – 2pmCivil litigators need strategies and skills to deal with increasing numbers of self-represented High Court litigants. This webinar gives insights into the Court’s role and how it balances the interests at play. Litigators will also learn how to advocate effectively against self-represented persons.

Presenters: The Honourable Justice Wylie and Noel Ingram QC

Strategies Around the Use and Analysis of Dispute Resolution Clauses Thursday 30 July 2015 | 12pm – 1pmRecent Supreme Court judgments have highlighted the importance of having knowledge of Dispute Resolution clauses when including them in contracts. Learn how best to advise clients on what form, if any, Dispute Resolution clauses might take and gain insights into how best to tailor them to suit clients’ needs.

Presenters: Paul Cogswell, Principal, Cogswell Law and Nick Gillies, Partner, Hesketh Henry

Bankruptcy: Uses and Abuses Wednesday 22 July | 12pm – 1pmThis webinar will explore some of the key issues when advising debtors and creditors on bankruptcy.

Presenters: Gareth Neil, Partner, Meredith Connell and Nick Moffatt, Senior Associate, Bell Gully

ADLSI LIVE STREAMINGBringing seminars to you,

wherever you are.Visit www.adls.org.nz/CPD

CPD On Demand

Communicating Effectively with Clients – 1 CPD HOURCommunicating effectively with clients is core to what lawyers do. The importance of understanding the client’s business needs and becoming more client-centric cannot be underestimated. This On Demand webinar focuses on the process of communicating effectively.

Presenter: John Mackintosh, John Mackintosh Consultant Ltd

Pitfalls Around Trustees’ Execution of Contracts: Cases and Practical Advice – 1 CPD HOURIn New Zealand an estimated one in four persons has a connection to a trust, making it essential that practitioners remain updated in this area. Many lawyers are involved in transactions entered into by trusts in their capacity as independent trustee (either alone or through a firm corporate trustee structure), or otherwise advise client trustees on agreements for sale and purchase of properties.

Presenters: David Bigio, Barrister, Shortland Chambers and Tim Jones, Partner, Glaister Ennor

CPD Pricing

Delivery Method Member Pricing Non-Member Pricing

Webinar $75.00 + GST (= $86.25 incl. GST) $95.00 + GST (= $109.25 incl. GST)

Seminar (in person) $125.00 + GST (= $143.75 incl. GST) $180.00 + GST (= $207.00 incl. GST)

Seminar (live stream) $125.00 + GST (= $143.75 incl. GST) $180.00 + GST (= $207.00 incl. GST)

On Demand (1-hour recording) $85.00 + GST (= $97.75 incl. GST) $110.00 + GST (= $126.50 incl. GST)

On Demand (2-hour recording) $95.00 + GST (= $109.25 incl. GST) $130.00 + GST (= $149.50 incl. GST)

For group bookings for webinars & CPD On Demand, see the ADLSI website at: www.adls.org.nz/cpd/help-and-faqs/group-bookings/.











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+ New book

Proceeds of Crime Law in New Zealand

Author: Dr Heather McKenzie

In a fundamental shift from the preceding Criminal Proceeds Act 1991, the Criminal Proceeds (Recovery) Act 2009 does not require a conviction.

In this setting, criminal and civil forfeiture is increasingly being invoked by the Commissioner of Police as an additional tool to help target organised crime.

This book will provide practitioners with a vital, practical reference resource in this new and still relatively unfamiliar area of New Zealand’s criminal law.

Price: $86.96 plus GST ($100.00 incl.GST)*

Price for ADLSI Members: $78.26 plus GST ($90.00 incl. GST)*

(* +Postage and packaging)

To purchase this book please visit www.adls.org.nz or contact the ADLSI bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: [email protected].

A range of preferential offers, available to

ADLSI members, from carefully selected partners.Member BenefitsProgramme

To view the latest offers visit www.adls.org.nz

Consumers in the market for a loan can expect to see significant changes to lending practices after the coming into force of changes to the Credit Contracts and Consumer Finance Act 2003 last week.

The Commerce Commission says that one of the key changes is the introduction of lender responsibility principles. These new rules require lenders to make reasonable enquiries before entering into a loan or taking a guarantee to be satisfied that the credit provided will meet the borrower’s needs. The lender must also be satisfied that the borrower or guarantor will be able to make the payments under the loan, or comply with the guarantee, without suffering substantial hardship.

Commissioner Anna Rawlings said: “Lender responsibility will change the way loans are made. The new rules will give New Zealand consumers more protection and better information when borrowing money and require all lenders to act responsibly. This is particularly important for vulnerable borrowers.”

“Lenders must ensure loan documents are clear, concise, and intelligible so that borrowers can understand them and make informed decisions. Borrowers will also need to be prepared for more thorough questions and provide evidence to ensure the loan is suited to them.”

The following example illustrates the difference between the old and new regimes. A man bought a used car from a South Auckland car dealer he needed for a new job. The man already had significant debt he was struggling to repay. The car was $14,000 but after nearly $5,000 in fees and 28% interest were added over a four year term the car was going to cost him over double the price – just under $30,000. He questioned this but the lender reminded him of his less than ideal credit score, implying he would struggle to get credit elsewhere.

With his existing debt problems, the weekly $140 payments were unsustainable. He soon defaulted, incurring further fees and interest, and was unable to catch up. Eventually the car was repossessed and sold for less than $5,000. He still had a loan of over $20,000 to pay off, no car and the prospect of losing his job.

In this situation, the lender did not breach the old law, which placed the responsibility on the borrower. But the new “Lender Responsibility Principles” require a lender in a similar position to make reasonable enquiries about the borrower’s ability to make repayments without suffering substantial hardship.

The changes also mean that lenders must publicly display their interest rates and fees as well as their standard form contract terms. This allows consumers to shop around, whether online or in-store when choosing the best loan for them.

These new stricter rules apply to all lenders who provide consumer credit, take security over consumer goods, or enter into buy-back transactions, including banks, car dealers, pawnbrokers and payday lenders.

Repossession laws are also updated under the changes, with an increased

+ Update from the Commerce Commission

Law change creates new climate for borrowingfocus on consumer protection. Lenders are no longer able to take security over essential goods such as beds and fridges. Repossession Agents must also now be licensed or can be fined up to $200,000 for individuals or $600,000 for companies. The Commerce Commission acquires a new enforcement role in relation to unlawful repossession practices.

More information on the changes can be found at www.comcom.govt.nzconsumer-credit/changes-to-the-cccfa/.

Source: www.comcom.govt.nz


Continued from page 3, “Legal ownership in websites – some misconceptions”

party understands that process and the elements that will make up the website, the issue of ownership rights in any aspect of the website can be addressed properly.

As for the website developer, there is a need to understand what (if any) ownership rights can be assigned to the commissioning party. In particular, if the website developer requires the “library code” for other website builds the website developer must take appropriate steps to ensure the commissioning party understands (and agrees in writing) that the commissioning party will only be entitled to a non-exclusive licence to use the “library code”.

Where open source software is utilised in the website build, website developers should carefully review and understand the applicable licence for the software that they use or incorporate in a website. Failure to understand the terms of the applicable licence for the open source software that was used in the website build could spell disastrous consequences for the website developer, especially when proprietary code is incorporated with an open source code.

Anthony Liew is a commercial litigator with a special interest in IP and IT issues. He is also a member of ADLSI’s Technology & Law Committee. LN

+ New book

It Was All Legal

Author: Graham Wear

It Was All Legal: The Auckland District Law Society and its members 1879-2009 is a fascinating story of Auckland’s colourful lawyers and the District Law Society to which they all belonged.

Set against the history of Auckland and New Zealand as a whole, it spans from the mid-19th century to the first decade of the 21st century.

The Auckland District Law Society was replaced in 2009 by an incorporated society, which has published this book as a record of an eventful 130 years.

Price: $43.43 plus GST ($49.95 incl. GST)*

Price for ADLSI Members: $34.73 plus GST ($39.95 incl. GST)*

(* + Postage and packaging)

To purchase this book please visit www.adls.org.nz or contact the ADLSI bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: [email protected]. LN

WILL INQUIRIES LAW NEWSThe no-hassle way to source missing wills for

$80.50 (GST Included)Email to: [email protected]

Post to: Auckland District Law Society Inc.,PO Box 58, Shortland Street, DX CP24001, Auckland 1140

Fax to: 09 309 3726 For enquiries phone: 09 303 5270

+ Wills

Please refer to deeds clerk. Please check your records and advise ADLSI if you hold a will or testamentary disposition for any of the following persons. If you do not reply within three weeks it will be assumed that you do not hold or have never held such a document.

Preciosisima Noblejas DAYRIT, late of 3A St Leger Close, Huntington Park, Auckland, Retired, Aged 72 (Died 09’03’2015)

Bill Tautu KIMI (also known as Bill KIMI), late of 32 Jordan Road, Mangere, Aged 47 (Died 15’02’2015)

Thomas Robert MASEFIELD, late of 185 Lowry Road, R.D.1, Bombay 2675, Aged 92 (Died 01’06’2015)

Michael Lyn SHELFORD, late of Freemans Bay, Auckland, Aged 60 (Died 24’04’2015)

The Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) has been selected as a finalist in the tenth annual AUT Faculty of Business and Law Excellence in Business Support Awards.

Recognised for excellence in the “Not For Profit” category, AMINZ will join finalists across ten categories at the 2015 awards. The other finalists in the “Not For Profit” category are Tourism Industry Association New Zealand and the Equal Employment Opportunities Trust.

“AMINZ has worked resolutely to be the pre-eminent provider of dispute resolution support services in New Zealand and to be internationally recognised as a centre of excellence,” Executive Director Deborah Hart says.

“The selection of AMINZ as a finalist in the AUT Excellence in Business Support Awards underscores the work of AMINZ in supporting the businesses and work of its growing number of members,” Ms Hart says.

Winners will be named at a gala dinner on 29 October 2015.

+ Legal profession

AMINZ in AUT Excellence in Business Support Awards

LN


Increase your firm’s revenue and profit from Conveyancing Deals!

Call us NOW on 0800 KeyTrackor (09) 533 4422 for a

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KeyTrack with unlimited online

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Senior AssociateProperty, commercial and private client We have an excellent opportunity for an experienced senior lawyer to join our growing firm.

Neilsons Lawyers has an immediate vacancy for a dynamic solicitor with minimum 10 years PQE in general property, commercial and private client work. Relationship property experience is preferred but not essential.

We are looking for a natural leader who can supervise a team of several solicitors and relate well to a diverse client base. The successful applicant will have uncompromising and exacting standards and be motivated and ambitious. Effective communication skills and meticulous attention to detail are essential.

The successful candidate will have a clear progression to directorship.

All applications will be treated in strict confidence.

Please email your application and CV to [email protected]

Initial enquiries welcome, please phone Aaron Dower on 09 634 7740

Booking deadline is 12pm Thursday, 6 working days prior to publication date.

Email [email protected] or call 021 371 302 to book your advertisement.

Get your message in front of 5500 legal professionals.

Senior Solicitor General Practice – Birkenhead, Auckland – Full Time Senior General Practitioner (minimum 7 years’ PQE) required for a full time permanent role. With the Principal moving toward semi-retirement this is a unique opportunity for a generalist with the skills, experience, commitment and personality to work with the existing team and lead the practice.

The right candidate must: • Possessstrongacademics,excellentcommunicationskills,initiative and judgement; • Possessprovenabilitytodeliverlegalworktoahighstandard, independently,efficientlyandacrossawiderangeincludingproperty, relationship property, asset planning / protection, commercial property, trustandbusinesstransactions;• Beenthusiastic,confident,meticulousandorganised;• Bepreparedtosupportmarketinginitiativesandadministrativefunctions;• AssumeresponsibilityformanagingthefirmduringPrincipal’sabsences;• Ideallybringamodestcompatibleclientbase;• HavestrongITexperience.

You will be supported by a team including the following: • Aqualifiedsolicitorandaqualifiedlegalexecutivehandling regularconveyancingandsmallbusinesstransactions;• Avirtuallyautonomouslegalexecutivehandlingestates,willsandtrusts.

Generousholidayswithadegreeofflexibilityaroundworkinghours.LocatedincentralBirkenhead(15minutesfromCBD);carparkingprovided.Spaciousofficesandmodernsystems(LawbaseandLexisNexis).

Experience required in dispute work (civil and relationship property). Acommonlaworlitigationbackground(asanadjuncttoaproperty/generalpracticebackground)isanadvantage.CurrentlyCourtwork/litigationisbriefedout.

Written applications with CV and referee details should be forwarded by email only to [email protected]. All applications will be treated as confidential and should preferably be received by 30 July 2015. Starting date negotiable.

Visit www.kinglegal.co.nz for our firm history and profile.

KING LEGAL

Book your next meeting or event at Chancery ChambersLet Chancery Chambers look after your next meeting or event.

With four distinct meeting rooms suitable for planning sessions, board meetings and workshops, plus a stunning Rooftop Terrace available to book for drinks at the end of a session, or as a venue for cocktail parties, team drinks, Christmas parties and weddings,

we’ve got you covered.

Located in the heart of Auckland CBD’s legal district, in a heritage building, Chancery Chambers has a dedicated floor for meeting rooms, supported by an

experienced venue co-ordinator to ensure your event runs smoothly. Full catering services and equipment hire are also available.

Discounted rates are available for ADLSI members, upon enquiry.

For further information on room capacities, pricing and catering options, visit our website www.adls.org.nz or contact us to discuss your requirements on

(09) 303 5270 or email [email protected]. Bookings are subject to availability at time of enquiry.