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The Latest

... AML

 

Why?

Globally, good governments want to make it harder for criminals to launder money, and are attempting to restrict the flow of money to terrorist organisations.  AML does this. 

 

But “that’s got nothing to do with me”, you say?

Almost certainly true.  But there are some in our communities who engage in those activities and, like every other piece of law, in order to catch the bad guys the good guys have to put up with some increased scrutiny.

 

Why lawyers?

Lawyers are seen as a target for money laundering.  That’s because we transfer properties for you and handle large amounts of your funds.  A criminal could, say, try and put some dirty money into our trust account to buy a house, then a year later sell it, collecting the cash, which would then be cleaned or laundered and so not linked back to their original illegal activity.

We’re not the only ones.  Through 2018 and 2019, we’ll be joined by accountants, real estate agents, sports betting agencies (TAB) and dealers in certain high value items (vehicles, antiques, jewellery, etc).  AML is very far reaching. 

 

So, what does it all mean for me?

The law says that we have to know all of our clients.  That’s easy, you say.  You’ve been with us for a while – of course we know you!  Not so.  In many ways yes, but AML tells us that we must have proof of your identity when we take instructions from 1 July 2018, such as copies of your ID and documents verifying your address.  If you have a company or trust, we will need more information still.  If you’ve had to open a bank account in the past few years, you’ll know what it’s like having to provide documentation.  The same rules will very shortly apply to us.

So, the next time you come in to see us, or contact us to act for you, our lawyers will need to sight your ID and proof of address.  It’s called CDD – Customer Due Diligence, so if we tell you that we need to conduct CDD, that’s what we’re talking about.

We’ll likely ask for that required information the next time we see you (closer to, and from, 1 July), even if we might already hold some of it.  If you have difficulty producing some of what we ask for, please talk to us.  If, for example, you don’t have a passport or photo ID driver’s licence, there may be other ways we can meet our AML obligations.

We’ll make it all just as easy for you as we can, but we do need your co-operation.  If we’re unable to complete our required CDD, we are by law unable to continue to work with you, and we wouldn’t want that.

For more information on all this exciting AML stuff feel free to contact your usual Corcoran French lawyer, or our AML Compliance Officer AMLCompliance@corcoranfrench.co.nz

 

Restraint of Trade - The Lowdown

 

... Trade restraints are regularly used to restrict the way in which entities or individuals conduct business. They’re often found in commercial contracts, such as agreements for the sale and purchase of a business, franchise agreements, partnership agreements to name a few examples. 

They can also be included in commercial leases to protect the business of neighbouring tenants, or by landlords wanting to increase the value of their investment by restricting the business use at the particular location. The owner of a shopping complex for example may wish to prevent tenant businesses conducting similar activities to their own, or from changing the type of business in future.

Many employees will also see them if they check their employment agreement, particularly if they occupy a senior role or have access to confidential information or client relationships that are sensitive to their employer’s operations.

A lesser known, but still important, example of a restraint of trade is the encumbrance that can be registered on a property’s title to prevent a future owner from using the property for a particular commercial activity.

As you can see from all this, trade restraints are varied and often used.

Are they enforceable?

This is the main question we get asked. Many people think such restraints are unenforceable and they can do what they want regardless of them being subject to one. That isn’t necessarily true. Whether a particular restraint of trade is enforceable will often come down to reasonableness. That is a term that has long been the subject of legal debate and can vary on a case by case basis.

Geographical restriction, the nature of the activity restricted, the timeframe of the restriction and whether benefits have been given for the restraint that reflect the obligation imposed are all relevant to reasonableness and its enforceability. These are all important, as the courts have wide powers to modify or remove restraints of trade, or to decline to enforce them altogether in the absence of reasonableness. This last power was interestingly referred to as the “blue pencil rule” in the past and is now found in section 83 of the recently enacted Contract and Commercial Law Act 2017.

Restraints of trade clauses often say that the parties agree they are reasonable, that consideration has been provided for them, and that they are separate from other obligations in the contract. However, there is no such thing as a standard restraint of trade, and the particular context should be carefully considered before parties agree to such a restriction or when considering enforcement.

The best legal advice we can give here is to have us review a contract containing a restraint of trade, or when you think it could be worthwhile putting one in it prior to signing.  We are best placed at that point to identify potential fish hooks and protect your best interests for the future. Getting our advice on enforceability, if this becomes live, is also important.

 

Helen Williams

 

In 1977 a young school leaver joined EJ Corcoran Thwaites and Brown as an office junior and law clerk. This December Corcoran French celebrates and congratulates Helen Williams, Registered Legal Executive on her 40 years with the firm. Helen is based on our Kaiapoi office and her areas of expertise include property conveyancing, estates and wills. Helen has seen a number of changes will over her time with the firm both in terms of the partnership as well as in her area of legal practice. We congratulate Helen on her anniversary and thank her for all her commitment and years of excellent service.