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Phil Monahan

Forum Replies Created

  • Hi there,

    Would need to look at the words of the restraint itself, but potentially you are in breach (in may come down to whether you are “selling” online by procuring sales online, then taking orders over the phone). In a business sale context, there is typically no exception for COVID as the purchaser has paid $ for the benefit of the restraint. Without seeing the wording, I’d say there is certainly a risk that you are in breach. Happy to discuss further. Phil 021 705 914

    Hi Nick

    Who is your market? Will you provide this model to businesses or individual customers (or both)? If to individual customers, there is a bit of detail to think about in terms of the Consumer Credit Contracts Act, Fair Trading Act and Consumer Guarantees Act. Happy to chat and steer you in the right direction – 021 705 914. Phil

    Hi Lorna,

    AdviSME (a legal tech offering developed by Tompkins Wake) sell automated terms and conditions online for $250 plus GST (see http://www.advisme.co.nz).

    Happy to chat about these on 021 705 914

    Phil

    Hi Steven,

    Take a look at the article below:

    https://www.tompkinswake.co.nz/covid-19-hub/covid-19-legal-updates/covid-19-employment-considerations/

    The legal and contractual obligations section of this article sum it up.

    In short, changes to terms of employment (including hours of work and pay) can only lawfully be made by agreement, generally speaking. There may be exceptions to that but those would be specific to the circumstances and the terms of the employment agreement so would require more specific advice than possible in this forum.

    I believe that there is redundancy support for employers available through Work and Income at the moment – 0800 778 008.

    Hope that helps,

    Phil

    Hi there,

    Great that you are thinking about the best course for your staff at such a difficult time. You can terminate staff by reason of redundancy where you have genuine business reasons for doing so, which it certainly sounds like you have. Before making any decisions, you will need to work through a consultation process which will involve, in short, putting your proposal to staff, providing them with any relevant information, discussing it with them and keeping an open mind to all possible alternatives. There is no legal issue with rehiring redundant employees in the future, but be aware that they will be under no obligation to accept any future offer of employment. There are potential issues with the legality of an unpaid stand down which you may wish to seek further advice on if you intend to continue down that path.

    Happy to chat.

    Phil

    Hi Clint,

    We offer NDA’s, terms, conditions and privacy statements for free at http://www.advisme.co.nz. Also happy to do a free consult. Over and above that, we offer fixed pricing after the initial consult.

    You can find out a bit about me here – http://www.tompkinswake.co.nz/people/philip-monahan/ (Tompkins Wake). Tompkins Wake is Waikato’s largest law firm, top 15 NZ, winner of innovation titles last 2 years running. In short, we are pretty neat.

    And here – https://www.advisme.co.nz/meet-the-team (AdviSME, which is a start up legal tech venture I founded and lead).

    Phil

    Hi Shelley,

    If you are on an ADLS lease the tenant is responsible for repairs and maintenance. As the lights have reached the end of their ‘life’ and can no longer be economically repaired and maintained by the tenant and require replacement these are the responsibility of the landlord to replace.

    Phil

    Hi Matt, some of the free documents on AdviSME may be of help too (we have free website terms of use and privacy policies for example). See http://www.advisme.co.nz

    Phil

    Hi there,

    This will depend on your creditors terms and conditions, what they say on this point and whether you have agreed to them. I’d ask for more information and go from there.

    Phil

    Hi Nick,

    In general, having a work visa doesn’t give you any extra or super rights in employment situations. Migrants must be treated the same as New Zealanders. So, the short answer is yes – the accredited employer can make his client redundant just the same as if he was a NZ citizen.

    The issue for the migrant becomes the validity of his visa. As it stands, once his employment ends his visa (and that of his family) becomes invalid. Technically he needs to apply for a visitor visa to remain in New Zealand and find another job. Both are way easier to say than do. We have had nothing from the Government for the 1000’s of others in a similar situation as to whether there will be any grace or easing of conditions. Its an uncertain time and we are telling people not to panic as they will not be deported or held accountable if they can’t leave voluntarily.

    Your client should get some advice about what to do next. You yourself should not give any kind of immigration advice, even for free during your sessions. That’s a breach of the Immigration Advisors Act and you could be sanctioned for it. If your client wants some free advice, point him at the Citizens Advice Bureau who have the national contract to such advice.

    Hope that helps.

    Phil

    Hi there,

    Moving to level 3 will give you an opportunity to review the abatement for next month (unless you have already agreed this in writing? – check what you have agreed, if anything).

    At level 3, the interpretation for clause 27.5 will focus around the extent to which a tenant can “fully” conduct business from the premises. If they can fully operate, but choose not to, I would argue that there is no (or very limited) abatement.

    It will depend on the individual circumstances and to the extent the tenant can “fully conduct” their business. It sounds like they can conduct 2/3rds of the business during level 3 (which might only be 2 weeks) – so could a 2/3rds reduction for this 2 week period be a compromise?

    You should also consider the long-term implications of the decision: what will be the long-term impact of a refusal to allow a meaningful rent abatement?

    – Does it mean that you will have to go to arbitration to determine what a fair and reasonable amount is? The cost of arbitration is likely to outweigh a short term rental abatement.

    – Does it mean that the tenant might default on the lease? The costs of pursuing the defaulting tenant and guarantors is likely to outweigh a short term week rent abatement. Sounds like this is unlikely if they are a big outfit.

    Hope that helps, but happy to chat on 021 705 914.

    Phil

    Hi agree with Averill,

    Clause 4 of the agreement to lease normally says:

    4.1 The Tenant shall enter into a formal lease with the Landlord to be prepared by the Landlord’s lawyer using the current Auckland District Law Society Inc Deed of Lease form amended in accordance with the provisions of this Agreement (“Lease”). Each party will pay their own costs of the negotiation and preparation of the Lease and any deed recording a rent review or renewal.

    4.3 Notwithstanding that the Lease may not have been executed, the parties shall be bound by the terms, covenants and provisions contained in this Agreement and in the Lease as if the Lease had been duly executed.

    If so, as Averill says, then the terms of that lease (including the No Access clause) still apply.

    Phil

    I agree Julie -its not enough for most businesses at present. The loan is just a loan. Have you looked into the tax credit scheme?

    Hi there,

    First, talk to your landlord. Even if you don’t have a right to an abatement in your lease most decent landlords are providing one (especially if you have been a good tenant). At worst, you should get a deferral while no income is coming in. Again, talk to your landlord.

    Are the two girls employees or contractors? If they are renting a chair they sound like contractors? If they are contractors, not sure if you are responsible for their subsidy or topping it up? One of the employment lawyers on here may be able to clarify.

    Stay strong – lots of people will want to go to the salon when they are able!

    Phil