FAQs

Whether you're seeking guidance as a first-time client or have a history of legal engagements, we understand that clarity is paramount. Our list of comprehensive frequently asked questions cover a wide spectrum of legal topics, aiming to provide clear and concise answers.

Should you find your question unanswered or require further clarification, we encourage you to reach out to our experienced team. Don't hesitate to contact our office to speak directly with an expert in your specific legal field.

FAQs About Downie Stewart

We set our fees in accordance with the New Zealand Law Society guidelines. Fee estimates take into account the time required, the complexity of the matter, risk to the firm, value to the client, whether the matter is urgent, and a number of other factors set out by the Law Society.
Where possible we will provide a fee estimate at the beginning of a transaction, such as common transactions like conveyancing, where we know from experience how long those files generally take. All fees are estimated on a case by case basis as no two files are the same.
If you would like to discuss a fee estimate for work you are considering, call us today.
We are required by law to obtain a lot of basic but personal information about all our clients. This may include proof of identity, address, source of wealth (if money is passing through our trust account), your IRD number if we are dealing with land, and a number of other things.
Where you use a name that is different to that shown on your identification, we may ask to see a marriage certificate or deed poll, and we may need you to sign a statutory declaration to explain the difference.
We work with people all over the country and all around the world. For established clients we can do most work remotely, meeting via zoom or similar, and witnessing documents via audiovisual link. A small number of documents still require in-person witnessing and we can help make arrangements for that, depending where you are and what the document is.
For new clients, we can complete client onboarding remotely as long as you have a NZ driver’s licence and cellphone number. Where you are required to sign a document in front of a JP or lawyer, we can help arrange that in your town, or you are welcome to come in to the office.
Most of our lawyers and legal executives are experts in more than one area of law. For example, we might advise on conveyancing with relationship property matters, or rural transactions with succession planning. Not many files are only about one thing!
The easiest way to get the best fit lawyer for your work is to call our receptionist Briar and give her an idea of the sort of work you need. She will put through to the right person, and if necessary we will put together the right team of lawyers for you.
Downie Stewart is a modern firm with a very long history. We value integrity, hard work and relationships. Our staff have lived and worked all over the world, with many coming to law as a second career. Their maturity and depth of experience is very helpful when analysing a legal issue and giving practical legal advice.
We are very privileged to work with the clients that we do, we love being their trusted advisors.
We encourage our staff to live well and implement various wellness initiatives for them. This is reflected in the number of long-term staff that we retain.

Property FAQs for Buyers and Sellers

We will be asking you all the standard client on-boarding questions. In addition, we will need to know about your New Zealand residency or citizenship status, because not everyone can buy residential land in New Zealand. In particular, there are some houses and sections that resident visa holders cannot buy under current Overseas Investment rules.
We will also have a number of questions about the house you are interested in. Those will likely include:
How old is the house? Has it had renovations? Does it have a woodburner? Has there been any rewiring? Have you checked you can insure this property? Has there been any flooding at this property? Any earthquake damage claims? How will you pay for it? Will you be using savings, kiwisaver, homestart, a family loan or gift? If you are using a mortgage advisor, who?
All of these answers help us do a better job for you and be accurate with our fee estimate for your work. Some of these make a nice list of questions you can ask the agent.
Start with a call to Jane Fletcher. Jane heads our property team and specialises in subdivision work including fee simple, cross lease and unit title developments. Jane will help you put together the team you will need for an efficient, well-organised project, including your surveyor, valuer, accountant and lender.

Commercial and Business FAQs

In general, a director of a company can sign any document that is not a deed. There are exceptions to this rule where it is for instance not reasonable to assume that only one director would sign an agreement of that particular nature and importance.
If the document is expressed to be a deed then if there is only one director that director must sign and have their signature witnessed. If there are two or more directors then two directors must sign the document. Their signatures need not be witnessed.
A company also can appoint attorneys. A document creating a power of attorney must be signed as a deed.
Most leases have what is called a holding-over period. This means that unless the lease expressly says otherwise the lease will continue on a month-to-month basis. This means that either party can terminate the lease by giving the other party one months notice.
A broad range of laws apply to businesses in New Zealand. Which ones apply will depend on the individual business involved and therefore it is worthwhile to discuss any concerns with a lawyer in advance of establishing a business.
Generally speaking, the main laws that will apply to your business are likely to be the laws relating to employment contracts (including rules relating to entitlements of employees), Fair Trading Act matters (such as ensuring that you do not make misrepresentations), tax laws (to ensure that you pay the correct amount of tax), intellectual property, consumer laws (such as the Consumer Guarantees Act and the law relating to contract generally (eg supply agreements and terms of trade).
If you also form a company to operate your business then there are additional laws to consider such as the Companies Act.
You can give notice to the creditor canceling a guarantee but you will remain liable for monies owing as at the date of cancellation. There may also be implications for the person whose obligations you have guaranteed.
Prior legal advice should be sought before giving any notice.
A constitution is a document filed with the Companies Office and is freely searchable by the public. A Shareholder Agreement however is a private contract between shareholders of the company is generally confidential.
Shareholder agreements are generally used to govern more complex and specific matters (and private) than a constitution, which is typically used to deal with more mechanical issues.
We recommend the use of Shareholder Agreements before business relationships are entered into.
Great care needs to be taken when entering into restraints of trade in even greater care needs to be taken when seeking to enforce them.
It is important for instance that if a restraint of trade is sought adequate consideration is provided for that restraint. Employment agreements regularly contain restraints of trade that have far-reaching and often unenforceable restrictions. It is more likely outside of an employment contract, that a restraint is able to be enforced (eg. upon the sale of your business).

Employment FAQs

Under the Employment Relations Act employers and employees are required to deal with each other in good faith. When an employer makes a decision about employment, their decision making will be considered against the standard of what a fair and reasonable employer would do in the circumstances.
Except in extreme circumstances, like allegations of violence or theft (serious misconduct), an employer is generally required to undertake an investigation process into the alleged misconduct.
That requires the allegations being put to you, you to have time to consider them and take advice, and an opportunity to respond. If the employer decides to terminate your employment based on the allegations, they need to give you notice of the end of your contract.
In employer has not acted fairly and reasonably, they may be liable for a personal grievance by their former employee. This is usually based on an unjustified dismissal. There are other grounds too, however, like unjustified disadvantage and constructive dismissal.
Facing accusations in the workplace is incredibly stressful. Instructing a lawyer may feel like an escalation, but there is nothing more important than your livelihood.
Under the Employment Relations Act employers and employees are required to deal with each other in good faith. When an employer makes a decision about employment, their decision making will be considered against the standard of what a fair and reasonable employer would do in the circumstances.
This does not prevent the employment relationship being terminated. It does, however, require the employer to undertake a thorough process before reaching any decision. That includes meeting with the employee, giving them an opportunity to take advice, and respond to any allegations you raise. If there is an issue with performance, this needs to be communicated to the employee with them having an opportunity to address the issue.
The best way to avoid employment issues is to be proactive from the start – detailing expectations, ensuring a contract is adequately drafted, and communicating clearly. Sometimes, despite these efforts, an employment relationship must come to an end. If you require advice in relation to terminating employment or ensuring your contracts and policies are legally compliant, please contact our employment team.

Estate and Will FAQs

Under the Family Protection Act, children and some other relatives of the deceased are owed a duty of “proper maintenance and support.” In assessing this duty, the court puts themselves in the shoes of the deceased and asks what a fair and just will-maker would do.
Beneficiaries under a will or people who were disinherited (cut from the will) may make an application alleging a breach of this duty. The broad legal test means that each case turns on its own facts.
However, some general points are consistently applied. First, only in rare circumstances is it appropriate for a child regardless of their age to be disinherited. Even if that child is financially comfortable there should be nominal provision for them recognising their status as a family member. Second, young children or adult children with disabilities are likely to be owed a greater duty than those children with lesser needs. Third, if the deceased and child are estranged and the deceased is responsible, the child’s claim is strengthened.
Claims against estates need to be made 6 months after probate is granted. If you are considering making a claim against an estate you need to seek advice as soon as possible.
This is a situation that may warrant a claim under the Law Reform (Testamentary Promises) Act.
Under the act a claim can be made for the rendering of servies or the performance of work for the deceased during their lifetime.
Claims against estates need to be made 6 months after probate is granted. If you are considering making a claim against an estate you need to seek advice as soon as possible.

Family and Relationship FAQs

Under the Property (Relationships) Act, couples that have been together for more than 3 years generally have joint ownership of the family home as relationship property. The same goes for other property, for example, bank accounts and income. This is called the principle of equal sharing.
When people separate they will divide their relationship property in accordance with this principle. That involves each party having their own lawyer and entering an agreement that records who retains what property after the relationship. If parties cannot agree, they will need to ask the court to decide.
Dividing your relationship property formally is normally the most crucial step following a separation.
It is not true that separate property becomes relationship property as soon as a party is married.
Under the Property (Relationships) Act, a marriage or de facto relationship generally needs to have lasted 3 years for separate property to become relationship property. There are several exceptions to what separate property becomes relationship property.
Whether you are getting married, have been living together for some time, or have only just met, there is always the option for you and your partner to agree on what property is separate and what property is relationship property. This is commonly called a “contracting out agreement” or a “pre-nup”.