Winter 2012 Newsletter

Defamation

Defamation claims have been a topic of interest lately with high profile figures such as Chris Cairns and Judith Collins taking legal action because they believe their reputations have been attacked.

What is Defamation?
Defamation in New Zealand is governed by the Defamation Act 1992, which is designed to protect a person’s reputation against unjustifiable attack. This requires a fine balance between the protection of reputation and the freedom of expression as contained in Section 14 of the New Zealand Bill of Rights Act 1990.

Proving Defamation
A defamatory statement may be either written or verbal. To be successful, the plaintiff must show she or he has been defamed by proving the following three elements:

Publication is a crucial aspect of this test. It must be proven that the defamatory statement was “published” to at least one person other than the plaintiff. If the statement was “published” to the plaintiff alone then the test for publication will fail. “Publication” of defamatory statements includes the making of verbal as well as written statements to third parties.

Defending Defamation
The four defences in a defamation case are:

Defamation and the Internet
The existence of the internet has created a further medium for publication. The recent English case of Chris Cairns against Lalit Modi was the first of its kind in England where a ‘tweet’ made on the social networking site Twitter was held to be defamation. The resulting award in damages was equal to approximately £3,750 per word for a 24 word publication. Although this case was decided in England, it provides a valuable lesson in terms of publications on social networking sites. Defamation actions are not common in New Zealand and require specialist lawyers with the appropriate experience.

Welcome to Newcomers

A big welcome to Fi Reeves who has joined us as assistant to Graeme, and is a qualified legal executive. Fi has wide experience in the courts, government departments and private practice. Judith Graham, who also works with Graeme McLelland is still on board with us and is available to those clients who know her well.
Also due to join us in August is lawyer Louise Smith, who, with her husband Scott and family has moved back to Kerikeri from Auckland, where Louise worked extensively in commercial law, finance, trusts, wills and property law.

Marriage and Name Changes

Spouses may assume a partner’s name immediately after the wedding without any formal procedure. It is not necessary to register a name change. Both the previous name and new name of a person will be recognised but using two names may cause practical problems.

When changing names on bank statements for example, a marriage certificate will be sufficient evidence to validate the change. Passports can remain unchanged and carry a previous name but any travel document (insurance, tickets) must be in the passport name.

However for those wanting to record a name change formally, an application can be made to the registrar of Births, Deaths and Marriages by making a statutory declaration and completing a name change form. If you were born in New Zealand, changing your name by this method will result in your birth certificate being amended to record the new name.

Provided there is no intention to deceive, a person may adopt a new name for any reason.

It is also important to ensure formal documents and records (land ownership, insurance policies, bank accounts, for example) show names correctly spelt, as discrepancies may cause confusion or delays if you wish to deal with those assets in circumstances where ID is required, or following a death. For advice or help if you want to formalise the use of a name you have used for some time, phone Sarah Jury 4070176 or email sej@mcleods.co.nz

Joint Tenants vs. Tenants in Common

In New Zealand, when purchasing a property with another purchaser you may own the property as joint tenants or tenants in common. Deciding which form of ownership to use depends on your personal circumstances. The differences between joint tenants and tenants in common are significant and the wrong choice may have unexpected consequences.

Joint Tenancy
Joint tenancies occur when two or more people (‘joint tenants’) own land or other assets (such as a car or bank account) together and their shares in the asset are undivided and undefined.

One important feature of a joint tenancy is the right of survivorship. This means when one of the joint tenants dies, their share in the property will transfer to the surviving joint tenant(s). The interest of the deceased owner in the property is not available for disposal under a will or under an intestacy.

Joint tenancy ownership is most commonly seen in purchases by spouses/partners who intend owning the property equally and passing their share to the survivor on death.

Tenants in Common
Tenancy in common allows for owners to hold a distinct share of an asset. There is no requirement that a tenancy in common must result in equal shares of ownership. The amount of a person’s interest in the property will most likely be recorded on the title, for example: “Mark Smith as to a 1/3 share and Jane Brown as to a 2/3 share”.
An advantage of owning property as a tenant in common is that the owners are able to dispose of their share in the property in accordance with the terms of their will. If a person does not have a will, their share in the property will be distributed in accordance with the provisions of the Administration Act 1969. It is important that owners have a valid will which clearly sets out how the asset is to be dealt with after their death.

Severance
A joint tenancy can be severed unilaterally to become a tenancy in common. This may be opportune in a bankruptcy of one of the joint tenants or the breakdown of a relationship. Where a relationship ends, it is often crucial that an existing joint tenancy is severed to prevent a share of the property being transferred to an ex-spouse if either spouse dies before resolution of relationship property division.

Summary
For couples wanting to buy a property together, or in the acquisition of assets by business partners, it is important to consider the effect each type of ownership will have on them. Relationship property and family protection implications on death are significant. We recommend a contracting out agreement under the Property (Relationships) Act 1976 or a property sharing agreement to set out more detailed terms and provisions regarding the ownership of the property.

All information in this newsletter is to the best of the authors’ knowledge true and accurate. No liability is assumed by the authors, or publishers for any losses suffered by any person relying directly or indirectly upon this newsletter. It is recommended that clients should consult a senior representative of the firm before acting upon this information.

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