Canterbury earthquake residential damage, limitation period looming

The Limitation Period issue for some claims for earthquake damage to residential property is looming.  Are you affected? 

4 September 2017 is a potential deadline for some homeowners to file claims in Court to protect their claim for earthquake damage to their homes/ residential rental properties, even if their claims are still with EQC.  

Depending on the insurer at the time of the September 2010 earthquake, if you have an unresolved claim and have not received written confirmation from your insurer that they will not plead the Limitation Act as a defence to your claim, this may be a significant issue for you. If they successfully plead the Limitation Act as a defence, that means your claim against them would be at an end, because of how much time has elapsed since the September 2010 quake.

 If you have unresolved damage to your residential property arising from the September 2010 earthquake, we would urge you to contact us to discuss what steps you may need to take to ensure your insurer cannot ‘walk away’ from your claim after 4th September 2017 on the basis of expiry of the limitation period.

This is particularly the case if you were insured with AA, FMG, MAS or Vero. Other insurers (including Southern Response, IAG and Tower) have indicated that they are working to a later date, but we would recommend that you discuss your particular situation with one of our helpful team. This also applies if your claim is still with EQC.

If you'd like to know more, please get in touch with  our helpful team. 

 

 

 

Ingredients + vision

T+P hosted Peter Cullinane of Lewis Road Creamery and 140 guests at the Hagley Oval on Friday 2 June. The theme of the lunch and Peter’s presentation was Ingredients and Vision.
 
Clients were delighted to be invited to hear a world class and home grown success story about how Peter built the Lewis Road Creamery brand from humble butter beginnings into the product range we all love to indulge in.  He had a clear vision and spoke with passion about NZ’s potential and products.  He was quietly entertaining and humble.  The Lewis Road Creamery story is a darling of social media and Peter was very proud to say that they have almost 200,000 “Roadies” supporting them online.
 
Peter’s 10 top lessons were also very insightful, and spelled out his view of the key ingredients for success.  They included:

  • Back yourself!  The biggest impediment to success is fear of looking foolish.
  • Have confidence and laser-like focus
  • Branding has to be brilliant; your product or service has to be better.

The TP vision for the event included celebrating with the Lewis Road Creamery ingredients. Our team created a bespoke cheesecake for all our guests to enjoy. The recipe is on our Facebook page.

Take a sneak peak inside our event by clicking on the photos, viewing our videos below or reading a little about what Peter had to say in over on stuff.co.nz.    

Stadium decision appealed

The legal wrangle between the insurers of Stadium Southland and the Invercargill City Council has just been appealed to the Supreme Court.

We will update you when the hearing has happened and the decision is out - which will be many months away.

A little knowledge can carry a wealth of legal responsibility

Many will recall the shocking photos of a broken Stadium Southland when its roof literally collapsed under the weight of heavy snow back in 2010. The collapse has subsequently been attributed to defective remedial work undertaken to address a previously identified construction issue, and has sparked years of legal wrangling between insurers for the Stadium and the local Council over where the ultimate liability lies.

The Court of Appeal has recently issued a landmark decision that, when it comes to ‘duty of care’, has significant implications for trustees and for Councils all over the country.

Stadium Southland, Invercargill, was built in 2000 under a project and lease agreement between the Invercargill City Council (ICC) and the Southland Indoor Leisure Centre Charitable Trust (the Trust). During construction, a lighter gauge steel was used for the roof than the design required; as a result the roof visibly sagged. Remedial work was completed, but not as the engineer had specified, yet both the engineer and ICC failed to check that the work meet specifications before signing it off.

In 2006, the Trustees raised concerns about the roof’s flexibility when subjected to wind load and expressed concern over its potential for collapse after heavy snow. They sought advice from the engineer involved in the Stadium design, he recommended further remedial work, but the Trustees failed to ensure that the required changes were indeed delivered to standard.

While the High Court found the Council negligent for issuing the code of compliance for the works, on appeal the focus of the legal debate centred around whether or not a local authority (whose contracting agents had built a defective building) owed a duty of care to the Trust as developer of the stadium.

The Trustees’ legal position argued that the Invercargill City Council was liable in negligent misstatement for issuing a code of compliance certificate which itself required proof of structural resilience. The ICC, in turn,  denied that it owed a duty of care at all.

The Court of Appeal issued a surprising but logical decision.  They looked at all the evidence around the stadium planning, repairs, and in particular, whether the Trustees had relied solely on the Council’s actions. The Court determined that the Trustees had, in fact, sufficient prior knowledge about the vulnerability of the structure not to be solely reliant on the Council compliance process.

The Trust was, in effect, put on notice by the fact they had raised concerns about the roof in the first place and therefore the Trustees had they failed to deliver on their duty of care by not having had an engineer inspect the trusses and welds after the 2006 remedial work.

 The Court found that the Trustees were remiss in thinking they could simply pass their responsibility as owners and developers of the Stadium over to the ICC, who were only fulfilling a statutory duty.  

The case highlights the fact that Trustees’ duties are indeed very broad. The fact that the Trustees, in this instance,  were volunteers, is somewhat irrelevant. Their actions were still subject to review particularly because “the trustees were community and business leaders — representatives from banks, retail, local government and the Community Trust of Southland”.  Arguably, they weren’t devoid of commercial nouse and therefore their voluntary status wasn’t a justification for passing over responsibility to Council.

This decision doesn’t absolve Councils of duty, but the ambit of that duty is less than many may assume. Councils simply do not have a duty to a developer/building owner who is responsible for the defects in the first place, either through its own actions or those of its negligent professional. 

So in the case of Stadium Southland, the message is clear – the Trustees knew enough to do more. And by failing to do so, the renegged on their statutory duty of care to the Trust.

If you’re involved in a trust related insurance claim and wish to know more about your responsibilities and obligations as a trustee, then please contact us on 64 3 374 68888 or visit www.tp.co.nz.team

HELP WITH LAND + WATER

T+P are hosting seminars on water & nutrient management in Christchurch, Ashburton and Timaru once Plan Change 5 has been released.

Please pre-register your interest here and we will contact you as soon as the dates are confirmed.

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If succession planning were a cake…

A will would be your flour.  Plain or wholemeal, no matter, so long as you have a cup or two to start with. Without a will you’re at the mercy of the Administration Act 1969: it dictates who gets what and how much. Whilst the provisions of the Act are sensible – a widower receives his wife’s property, for instance – they are not necessarily reflective of the best outcome for your family and its farm or business. Without a will, the legal process to be followed after you lose a loved one also tends to be more expensive, and can be more complicated than it needs to be.

Baking powder, an essential
A good will should cover off: who is in charge of your estate (your executor); who will look after your children (if they are under age); and who is to receive which of your assets. While this sounds straightforward enough, these appointments and the treatment of your legacies need to be worded accurately and appropriately to ensure your wishes are met. Don’t buy a will off the internet – it may fail to rise.

Cake.jpg

Keep it sweet Sugar
As with carbohydrates, I have a love/hate relationship with family trusts (or, more specifically, the endemic way in which Kiwis employ them). Admittedly, not all sugar is bad: if you’re after a treat for the diabetics, you’d best steer clear, but if you want to bake a gateau, you’re going to need some. Settling assets upon a trust can result in complexity, administrative costs, and perceived (and actual) loss of control. However a trust can also provide a wonderful succession planning tool in the right circumstances: trusts can offer asset protection against creditors, a vehicle for collaboration between family members and advisors, and sustained ownership in the face of a bereavement. Crucially, a trust can also help to secure your family capital against relationship property claims that your children could be vulnerable to in the future, promoting protection of family capital for succeeding generations.

Binding agent
If you do have a family trust, then you’ll definitely be wanting some eggs to make sure everything sticks together just right. A Memorandum of Wishes gives your surviving trustees directions as to how the trust is to be operated after you pass away. It should set out who are to become trustees, and how assets are to be dealt with. For example: is the farm to continue in operation or is it to be sold and the proceeds distributed. If the former is the case, who is to run the farm – and how should any non-farming children be tended to?

 Greasing the pan
Discussing your intentions with your children – and where appropriate other family members – is an important part of your succession planning. Are your executor and/or your intended trustees happy to take on that responsibility? Are the intended guardians of your children agreeable – and do they understand your wishes for the care of your children? If your children are adults – or approaching that age – have they a desire to begin or continue farming? And if not do they have other business aspirations you want to assist them with?

A Deed of Family Arrangement may be just the baking paper you are after – a document which records agreement among family members. These can be used to set out the family’s plan going forward and are signed by all relevant parties, ensuring everyone is aware of and agrees to the programme. They are also used in the settlement of disagreements following the death of a family member, but the aim is – of course – to avoid that scenario through adequate planning and disclosure.

To mix
You’ll need some good utensils – a sieve, a whisk. Your accountant will perform the vital role of sifting through the books and setting out your fiscal position. They’ll also proffer advice as to taxation implications arising from your structuring and anticipated succession plan. Bankers, farm advisors, and succession planning mentors are other crucial members of the team.

mix.jpg

Meanwhile your lawyer wears the chef’s hat, and will fold together your wishes and knowledge, the contributions of your advisors, and their own legal expertise. In preparing your succession plan we need to gain a sound understanding of your family and its vision for its future:  your taste in cake will determine the ingredients we use.  In other words – if we can forget the carefully sustained analogy for a moment – the pivotal thing is that we understand what you want to achieve for your family. It’s important that we all work in conjunction with each other to ensure that everyone is on the same page (and the oven is the right temperature).

Let it cool
Documenting your succession plan brings with it peace of mind: your house is in order. But don’t forget to review things periodically. As time passes, and your family grows and changes, tastes change too.

Anna O’Callaghan

Tavendale and Partners