Graduates & summer clerks
Get ready for a great experience
Applications for Graduate and Summer Clerk positions for 2024/2025 across all of our offices are now live! To apply please click here.
Graduates and summer clerks, get ready for a great experience in an enterprising law firm! You’ll be working alongside our lawyers and partners from day one — giving you the best insight into your future career in law.
You’ll be allocated a buddy from your first day who will be there to support you and help answer any questions; let’s not forget they’ll take you for coffee too!
Diverse graduate programme
Every year we welcome graduates into our national programme which is designed to ensure you get maximum support and exposure to a wide variety of work.
- You can expect to be involved in client work from day one, as a member of our specialised teams of solicitors, associates and partners all working together to achieve the best outcome for our clients.
- You’ll receive plenty of support and guidance from our senior staff.
The High Court has recently handed down the decision of Tauranga City Council v Harrison Grierson Holdings Ltd and Constructure Auckland Ltd [2024] NZHC 714. The decision has confirmed the position that engineers and other design professionals can rely on limitation of liability clauses contained in their contracts.
This is a big decision for the construction and insurance sectors, which rely on these limitation clauses regularly when defending claims for breach of contract or negligence.
Background
Tauranga City Council (TCC) purchased land in Tauranga to build a car parking building. It entered into a contract with Harrison Grierson (HG) for the structural design of the building using a Long Form Agreement issued by Engineering NZ (HG Contract). The HG Contract contained a standard limitation of liability clause stating that the maximum amount payable shall be:
- five times the fee, with a minimum amount of $500,000 and maximum liability of $2,000,000 for professional liability, and
- $10,000,000 for public liability.
Constructure was subsequently engaged to undertake a peer review of the structural design and entered into a Short Form Agreement in the ACENZ/IPENZ format (Constructure Contract). The Constructure Contract contained a similar limitation clause:
“The maximum amount payable, whether in contract, tort, or otherwise, in relation to claims, damages, liabilities, losses or expenses, shall be five times the fee (exclusive of GST and disbursements) with a maximum limit of $NZ500,000.”
Throughout the project, HG and Constructure also signed various producer statements in relation to the design and its peer review which contained a standard producer statement limitation clause:
“Note: This statement shall only be relied upon by the Building Consent Authority named above. Liability under this statement accrues to the Design Firm only. The total maximum amount of damages payable arising from the statement and all other statements provided to the Building Consent Authority in relation to this building work, whether in contract, tort or otherwise (including negligence), is limited to the sum of $200,000.”
An issue with the design was encountered during construction. The work required to correct the design issues was substantial, and TCC abandoned the project. It sold the land for $1 due to the cost of demolishing the partly built structure, and claimed damages of around $27 million from HC and Constructure. TCC alleged breach of contract, negligence, breach of the Building Act, breach of the Fair Trading Act and negligent misstatement.
The application of the limitation of liability clauses was dealt with as a preliminary issue.
Breach of the Building Act
TCC claimed that a duty arises from the statutory requirements of the Building Act 2004 (BA04), which includes a requirement that building work comply with the Building Code. TCC argued that parties cannot contract out of BA04 and that limitation of liability clauses are therefore illegal under the Contract and Commercial Law Act (CCLA).
Justice Tahana examined the history of building law in New Zealand and found that:
- Each defendant owes a duty to TCC to exercise reasonable care and skill to ensure the design (or review of the design) complies with the Building Code.
- Design work is included within the definition of building work at ss 17 and 18 BA04.
- It is settled law that BA04 gives rise to a common law duty by those who undertake building work to owners of commercial or non-residential buildings (in addition to residential owners) to exercise reasonable care and skill with a view to ensuring building work complies with the Building Code. This duty is owed under the statutory requirement in s 17 BA04, and applies to each defendant.
- Limitation of liability clauses are not agreeing to a lesser standard of building work than the minimum standard set out in BA04. Rather, they simply allocate risk and agree the sharing of financial consequences of a breach of BA04 above the value of the liability cap. The clauses are therefore not in breach of s 17 BA04.
- Limitation clauses are not contrary to public policy.
Breach of Fair Trading Act
The Fair Trading Act includes a general prohibition on contracting out, unless the parties are in trade and meet the requirements of the exception in s 5D. For this, the parties must have agreed to contract out, and it must be fair and reasonable that the parties are bound by the clause.
The Court reiterated that the limitation of liability clauses seek to limit liability with regard to the right of recovery, not as to required conduct. Whilst a limitation of liability does not authorise the contravening conduct, it evidences an agreement that should the conduct occur, liability is to be limited to the value of the liability cap.
The Court reviewed other judgments that have considered this point, including last year’s decision in Tadd Management Ltd v Weine (as trustees of the Ruth Weine Family Trust) [2023] NZHC 764, and concluded that the limitation of liability clauses meet the requirements of s 5D for contracting out of the FTA. Any liability of each defendant for breach of s 9 of the FTA is therefore limited to the amount specified in each limitation of liability clause in the contracts.
Negligent misstatement in producer statements
Justice Tahana found that the limitation of liability clauses also apply to the negligent misstatement claim. Each defendant’s issuing of a producer statement is governed by the contracts (and therefore the limitation clauses found within those contracts) as opposed to the terms of the producer statement. The Court rejected the argument that a producer statement constituted a separate contract between the TCC and each defendant, or that the producer statement cannot be relied on unless the limitation clause contained therein also applies.
The Court noted that the limitation of liability clause in the producer statement is directed to TCC as the building consent authority and not to the TCC as building owner. This means that the contracts govern the relationship between building owner and the defendants, and the limitation of liability clause in each producer statement cannot override the limitation of liability clause in the contracts.
What this means for us
Together with the decision in Tadd Management, this is the second judgment in twelve months where Duncan Cotterill has successfully argued the application of limitation of liability clauses. This is a great result for those in the construction industry, as it provides much greater certainty about liability. The decision may be appealed, but in the meantime:
- It is important to continue pleading affirmative defences for design professionals who have a limitation of liability clause in their contracts. For claims where liability is likely to exceed the liability cap, you could consider making a Calderbank offer for the liability cap and seek to settle on that basis.
- It is also important to continue pleading producer statement limitation defences if appropriate. The Court left open the question of whether they can be relied upon to limit liability in relation to design professionals defending a claim brought by a building consent authority, however the current line of decisions is certainly in favour of enforcing limitation of liability clauses.
If the decision is overturned this will have significant ramifications for the insurance and construction industries generally. It would prevent parties from effectively limiting their risk which will increase insurance premiums and those will ultimately be passed onto the end consumer. This may also mean more uninsured losses or insurers declining to provide insurance for some projects or types of work in its entirety, particularly innovative or highly complex work.
If you have any questions about this decision, or about limitation of liability clauses in your agreements, please contact Duncan McGill or Aaron Sheriff.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
1. Legal and regulatory risks
Compliance burdens are growing for Not-For-Profits (NFPs) with more stringent and detailed regulatory requirements being introduced through new legislation (for example the Charities Amendment Act 2023, the Trusts Act 2019, and the Incorporated Societies Act 2022).
NFPs often need to balance compliance across different pieces of legislation, for example where they are both an incorporated society or charitable trust board and a registered charity.
NFPs must ensure that their legal and financial obligations are complied with, including filing financial reports on time, meeting auditing requirements, and following best practice policies that will not expose them to additional risks. This is especially relevant with the new requirements of the Incorporated Societies Act and the Charities Amendment Act.
Failure to meet legislative requirements can have serious potential consequences. Depending on the type of NFP, it may risk officer/trustee liability, loss of charity status, and/or de-registration.
What should your organisation do about it?
Officers/trustees and key personnel of NFPs must be aware of the structure of their entity and the legal and financial obligations that follow. Careful attention should be given to these obligations during drafting and amendment of governing documents, and officers/trustees should remain aware of their legal obligations and duties (for example trustee duties in respect of a charitable trust, and officer duties in respect of an incorporated society).
NFPs should have in place robust processes for keeping financial records, obtaining appropriate financial and legal advice (including an audit if required), and filing statements/returns on time.
2. Privacy and cybersecurity risks
NFPs often hold a large amount of personal information about their supporters as well as their own staff, members, and finances, some of which is likely to be sensitive in nature. Recent increases in phishing and cyber-attacks mean it is increasingly necessary for NFPs to maintain strong security protections and be vigilant about risk areas – both internally and in terms of any third parties they interact with.
The Privacy Act gives individual rights to access personal information held by organisations, such as NFPs, about them. Increasingly, other legislation adds additional information requirements, such as the Incorporated Societies Act 2022 which requires incorporated societies to retain personal information about their members and officers, and gives members rights to request access to society information.
What should your organisation do about it?
When it comes to protecting your data and privacy, prevention is key! It is vital to review your current processes to ensure that you have robust plans for privacy protection in place, including how to prevent and respond to privacy breaches or cyber-attacks.
Often organisations are not aware of privacy breaches or cyber-attacks until well after they have happened, which gives cybercriminals extra opportunity to cause harm and utilise the stolen data. It is essential that officers and employees are not only aware of the risks of poor privacy hygiene but also trained in how to recognise and respond to privacy breaches or cyber-attacks. Through regular training and maintaining robust protocols in the case of a breach or attack, NFPs can be keep on top of their compliance obligations and ensure that they safely handle personal information.
3. Governance failures
Governance failures relate to a wide span of operational and legal obligations undertaken by officers and personnel within a NFP organisation, and may include (among many other possibilities):
- breaches of trustee/officer obligations;
- financial mismanagement and/or poor financial decision-making;
- failure to identify and manage risks; and/or
- improper handling of conflicts of interest.
Failures within NFP governance can risk legal action against the organisation and potentially personal liability for trustees/officers. The NFP’s legal status may be at risk, as well as causing potentially serious damage to reputation.
What should your organisation do about it?
NFPs must ensure that any person in the position of governance or influence over the management and administration of the organisation is aware of and compliant with their legal obligations, including compliance with the organisation’s governing document.
Legislation applying to NFPs is increasingly seeking to define the scope of the ‘officer’ role to cover not only the governing group (e.g. the board or committee) but also other roles which exert influence over the organisation’s management. NFP governors must have a clear sense of who holds legal duties within the organisation, and how those duties are complied with.
4. Financial gain
A defining feature of a NFP is that financial gain is not a purpose for which the organisation exists. Prohibiting profit or personal gain of members, the people who run the organisation, and any other people is crucial to maintaining legal status (for example, incorporation as an incorporated society, and charity status). Failure to prevent financial gain can also damage the reputation of a NFP and have significant consequences for relationships with funders/sponsors, and the wider community.
What should your organisation do about it?
Ensure that the organisation’s governing document clearly prohibits profit or personal gain, and that the management and organisation of the NFP is carefully monitored by to prevent any financial gain other than what is permitted in the governing document or at law (e.g. honoraria, remuneration, paid staff).
5. Terrorism financing
NFPs are at risk of being abused to facilitate terrorism financing. This can occur in different ways depending on the nature of the NFP, for example being used to launder money, conceal proceeds of crime, or solicit false donations.
What should your organisation do about it?
Understand the risk of terrorism financing to your NFP. The extent of the risk will be impacted by the likely value of your NFP organisation’s activities to a terrorist entity, the type of activities your NFP carries out, where in the world it operates, and with whom it affiliates or partners. You should ensure that there are clear controls and processes in place to conduct ongoing risk assessments and appropriate due diligence (in line with New Zealand’s anti-money laundering legislation).
If you have any questions about the content of this article or would like further information, please contact a member of our not-for-profits & incorporated societies team.
Special thanks to Special Counsel Louisa Joblin for preparing this article.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
Delivering on its pre-election commitments, the Government repealed (under urgency) the Natural and Built Environment and Spatial Planning Acts in December 2023. A short innings for this legislation, that only received royal assent in August 2023. The NBA and SPA were introduced by the previous government to overhaul the existing Resource Management Act 1991.
For now, it is again, BAU under the RMA, with a second tranche of reform to come. The Government has signalled that replacement legislation will focus on:
- Prioritising regionally and nationally significant projects, including renewable energy
- Green lighting new infrastructure and housing
- Enabling primary industry/ activities
- Preserving the enjoyment of property rights; and
- Cutting red tape in relation to the creation and compliance with environmental regulation
All positives for the primary sector.
Despite repeal of the NBA and SPA, there are some hangover provisions, which include:
- The fast-track consenting regime for specified eligible activities. Although these provisions will soon be superseded, as the Government has announced that it will introduce a new fast-track consenting Bill in early March 2024, as part of its 100-day action plan.
- Environmental offending which occurred during the lifetime of the NBA is subject to an extended two year period in which a regulatory authority can decide to bring a prosecution. Good news is that fines will be assessed under the NBA and the RMA, so we are unlikely to see a material increase in status quo sentencing outcomes.
- Freshwater resource consents applied for and granted since 24 August 2023 are subject to a short-term duration consent. Resource consents applied for since 24 August 2023 but not yet decided will be determined in accordance with the 35-year maximum duration provided for in the RMA.
- The Spatial Planning Board lives on, however, its role and responsibilities remain uncertain. The Spatial Planning Board is an independent executive board responsible for providing advice to ministers on spatial planning.
Freshwater
The Government has signalled change to the National Policy Statement for Freshwater Management 2020 and related freshwater regulations. This comes at a time when councils around the country are significantly advanced in delivering up plan changes to give effect to the current NPS-FM by the end of the year. The NPS-FM calls for a non-negotiable nationwide improvement of degraded water bodies and a requirement to avoid further loss or degradation of natural wetlands and streams. The Repeal Act extends the time limit for plan changes to be notified a further three years – now due 31 December 2027. This buys much needed breathing room, which should deliver a better informed and balanced (between competing water users) planning framework.
A new ministerial position – Minister responsible for RMA reform, currently held by Chris Bishop – has been created, locking in the fire power to deliver on the Government’s promises for further reform. The roadmap to change is not without challenge for the primary sector, and it will be important to participate in plan and policy development, to stake a foothold in the future use and management of New Zealand’s natural resources.
Article written 10 February 2024
This article appears in Angus New Zealand Autumn 2024 edition.
If you have questions or would like further information, please contact the Resource Management Team.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
Welcome to the first issue of our Employment Newsletter for 2024!
This newsletter takes a dive into some of the key employment law trends and developments we are seeing across our national team.
Click here to read issue one.
For more information, or for specialist advice on any employment matter, please contact a member of our employment law team.
On Sunday 7 April, the Minister of Immigration announced immediate and significant changes to the Accredited Employer Work Visas (AEWV) scheme.
What are the main AEWV changes?
- Immigration New Zealand has re-introduced the Australian and New Zealand Standard Classification of Occupation (ANZSCO) requirements to visa applications.
- Many migrants who are filling lower-level ANZSCO roles, those at ANZSCO 4 and 5, will now only be able to stay a maximum of three years in New Zealand. As of 7 April, visas for these roles will be issued for an initial period of two years, with the ability to obtain a further 12 month visa.
- Any migrants applying for a visa to fill an ANZSCO level 4 or 5 position must provide evidence that they meet a minimum English language requirement.
- Any employer seeking to fill an ANZSCO skill level 4 or 5 position must advertise the vacancy for 21 calendar days and also engage with Work and Income.
- Employers must now take reasonable steps to check that a prospective migrant meets minimum skills requirements to be granted an AEWV, which is at least three years of relevant experience or a Level Four qualification. It may be necessary to obtain an assessment of a migrant’s qualification from the New Zealand Qualifications Authority.
- Employers must also now take reasonable steps to ensure that a prospective migrant has the necessary skills or qualifications to undertake the job in question.
- New AEWVs will be issued with a condition requiring employers to employ migrants for at least 30 hours per week.
Changes to resident visa pathways
From 7 April, Bus and Truck Drivers cannot obtain a Transport Work to Residence visa. Therefore, those migrants will not have that pathway to residence available to them.
However, the government has added six new roles to the Green List, which enables pathways to residence. These occupations are:
- Aviation Engineer (Avionics, Aeronautical, Aerospace Engineer)
- Naval Architect (aka Marine Designer)
- ICT Database and Systems Administrator
- Mechanical Engineering Technician
- Aircraft Maintenance Engineer
- Corrections Officer
Disappointingly, for many employers, the government has rescinded its plans to add the following roles into the Green List:
- Paving Plant Operators
- Metal Fabricator
- Pressure Welder
- Welder
- Fitter (General)
- Fitter and Turner
- Fitter-Welder
- Metal Machinist (First Class)
- Panel Beater
- Vehicle Painter
- Road Roller Operator
Also, the government has rescinded its plans to add the following roles to the Construction and Infrastructure Sector Agreement:
- Driller’s Assistant
- Earthmoving Labourer
- Earthmoving Plant Operator General
- Linemarker
- Machine Operators not elsewhere classified.
- Mechanic’s Assistant
- Road Traffic Controller
What other changes do we need to know about?
- From now on, any employer being actively investigated for any breach of their accreditation may have their accreditation suspended.
- From 7 April 2024, accredited employers must also notify INZ within ten working days if an AEWV holder leaves their employment more than a month before their visa expires. Accredited employers must also notify INZ of any respective changes to its Key People within ten working days.
- Franchisee accreditation will end later in 2024. Franchisee employers will be able to apply for standard, high-volume, or triangular accreditation, depending on their specific circumstances.
Is this the end of the changes?
Unfortunately, not. There is likely to be further change to the scheme in the near future, as well as changes to other visa categories. The immigration team will continue to monitor any announcements and provide updates.
Special thanks to Special Counsel Nicky Robertson for preparing this informative article.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
The firm is delighted to announce the following promotions. These individuals deserve to be proud of their integral role in our clients’, and firm’s, success.
To Partner*
- Juliet Short, Commercial, Auckland
- Nick Laing, Litigation, Nelson
- Chris Thomas, Commercial, Wellington
- Edwin Boshier, Litigation, Auckland
To Senior Associate
- Billie Zagni, Litigation, Auckland
- Charlotte Kerr, Litigation, Auckland
- Jessica Wei, Commercial, Auckland
- Tracey Kelderman, Commercial, Auckland
- Dion Morley, Litigation, Auckland
- AJ Julian, Commercial, Christchurch
- Racheal Allison, Family, Christchurch
- Isabella Gorringe, Commercial, Christchurch
To Special Counsel
- Kirsty Wallace, Litigation, Wellington
- Louisa Joblin, Commercial, Wellington
To Associate
Alex Bennett, Litigation, Auckland
Caitlin Sargison, Employment, Auckland
- George Mander, Litigation, Christchurch
- Sandra Iskander, Commercial, Christchurch
- Lisa Fussey, Commercial, Christchurch
- Jess Hope, Commercial, Christchurch
- Hagen Neumegen, Litigation, Wellington
- Caleb O’Fee, Litigation, Wellington
- Emma Kittelty, Litigation, Nelson
- Jamie Robertson, Commercial, Queenstown
To Senior Solicitor
- John Gray-Smith, Employment, Auckland
- Samantha Chow, Litigation, Auckland
- Po-Yen Liu, Immigration, Christchurch
- Rabia Mofassir, Litigation, Christchurch
- Sydney Caughey, Employment, Christchurch
- Praveena Sathiyanathan, Commercial, Christchurch
- Nick Meates, Commercial, Christchurch
- Lauren Duggan, Commercial, Christchurch
- Isobel Tennent, Commercial, Wellington
- Madeleine Holmes, Litigation, Wellington
- Ben Gatting, Commercial, Queenstown
- Cassie Dayman, Commercial, Queenstown
To Senior Registered Legal Executive
- Tessa Hansen, Commercial, Christchurch
- Amanda Murray, Commercial, Christchurch
- Summer Shalders, Commercial, Christchurch
Non-Legal / IT Team
- To Applications Engineer – Hamish McDonald, Christchurch
- To Systems Administrator – Alex Webby, Christchurch
Congratulations to you all on this great achievement!
*As soon as Law Society approval is obtained.
Why did you join duncan Cotterill?
Training and development
We’re committed to providing a variety of education and training opportunities with topics relevant to starting out your legal career. For rotating summer clerks and graduates, you are supported to attend all internal training opportunities giving you exposure to a wide range of topics. With a firm focus on development and so many opportunities for training you’ll never go short of CPD hours to meet the NZLS requirements!
For summer clerks and graduates, training may look like:
- Induction into the firm – a full programme to ensure you’re onboarded and familiar with the DC way. This will include in person, online and recorded training.
- On the job learning – this could be your buddy, supervising partner / senior or colleagues guiding you through you work and tasks.
- The national graduate programme – this is an in person programme where the national cohort of graduates meet together in one office for in person training across three days. A great way to build strong connections and learn more about the firm and different areas of work.
- The solicitor development programme – this programme helps our solicitors continue their development in the firm through to the next stage in their career. The topics covered are wide ranging and support your continued progression through to senior solicitor.
- Lunch and learns – these could be local ones in your office or national ones where our own specialists share updates and interesting developments in their area of work.
- And many more!
Inclusive summer clerk programme
Our summer clerk programme is the best way to gain a true appreciation of what it’s really like to be part of a legal team at Duncan Cotterill.
- You can expect to work hard, have fun and put some of that theory into practice as you contribute in client team discussions.
- You’ll also have plenty of opportunity to chat with our solicitors, associates, partners and business support team to explore your particular areas of interest.