Regulatory investigations, like crises in their many forms, entail both risk and opportunity. They require very careful handling.

The risks are many and obvious: potential fines and penalties; exposure to damages claims, including the prospect of follow-on ‘class’ actions; enforceability of contract implications; reputational and commercial risk for the organisation and key people implicated; and in some legal contexts the risk of criminal prosecution and sanction.

The opportunities are perhaps less obvious: the opportunity to demonstrate good corporate conduct, compliance intent through policies, systems and processes; the opportunity, where there is an issue, to acknowledge and respond appropriately and responsibly, to take the learnings, and lead industry change.

Through our 2017 Regulator Series we offered the commercial regulators we, for our clients, work most closely, the opportunity to talk directly about their enforcement programmes, priority focus areas and ‘hot topics’. We hosted engaging and insightful sessions with the Commerce Commission, the Financial Markets Authority, WorkSafe New Zealand, and the Overseas Investment Office.

Busy regulators are often no less resource-constrained than many businesses. They too must focus resources on the most important matters, prioritise, and use enforcement tools available to them. It is a hallmark of maturity that these regulators are prepared to make transparent, their areas of strategic focus. This will be where the hammers are likely to fall the hardest.

Some common themes emerged across the Regulator Series: A consistent focus on consumer outcomes, and a common message to businesses to truly put customers at the heart of what they are trying to achieve, both as a path to compliant conduct and a path to business success. Having compliance programmes, policies and processes in place is critical if issues are to be avoided, but are merely a starting point in fostering a compliance culture. Tone comes from the top. Skilled and customer-focussed complaints handling can resolve matters before they become bigger issues and, used well, can detect wider issues early.

Many of the key points from the Regulator Series are reflected in this forecast for 2018. The regulators we hosted all have active enforcement programmes. Clearly, their active work programmes is a trend that is set to continue.

Our team is adept at assisting with regulatory investigations, prosecutions and civil proceedings, and related litigation. We work closely, for our clients, with these regulators. We are here to help if the need arises.

10 top predictions for 2018

Financial services

Preserving New Zealand’s trade reputation is a top priority, with more enforcement action expected in 2018. Cracking down on Ponzi schemes remains a focus for the Serious Fraud Office, with any enforcement action being well-publicised. The Financial Markets Authority will continue its hard line with misconduct, and actively scrutinise secondary markets.

After a period of leniency, expect the Department of Internal Affairs to take a “no excuses” stance to non-compliance with the Anti-Money Laundering and Countering Financing of Terrorism Act. Many businesses and those affected by the Phase 2 changes will have a steep learning curve to ensure compliance.

Read more

Consumer law

The forceful approach to consumer and credit law enforcement will continue in 2018, with more prosecutions, test cases and higher fines and penalties. The New Zealand Commerce Commission has signalled its largest programme for enforcement in years, prioritising public safety, pricing claims and requests to traders to substantiate claims.

Read more

Competition

After a significant year of litigation and legislative change, we expect a bedding in period and increased compliance activity as clients and advisers adjust to new competition and antitrust provisions planned for May 2018.

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International arbitration

The recent rise of Singapore and Hong Kong as jurisdictions of choice for international arbitration will continue in 2018, with both well positioned with modern arbitration rules, supportive judiciaries and allowing third party funding. New Zealand and Australia will continue to strengthen and modernise their respective arbitration laws in the year ahead.

Gender diversity in arbitrator appointments will remain a key challenge throughout 2018, and beyond.

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Group (“class action”) litigation

Group litigation is becoming more established in New Zealand’s litigation landscape, despite the lack of a developed framework catering for true ‘class actions’. The Law Commission’s review of the regime will result in a more formalised approach in the not too distant future.

What is clear is that group litigation is here to stay.

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Third party funding

Litigation funding is fast becoming an established feature of the country’s litigation environment. This funding approach is attractive to a claimant who may not have the individual means to pursue a claim, and pay nothing if the claim is unsuccessful. With no significant common law or statutory barriers to litigation funding in New Zealand, expect increasing involvement from funders and more of this type of litigation making news in local media.

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Cyber security

The constantly evolving and ever-present cybercrime threat, international statutory and regulatory regimes governing data storage and security will continue throughout 2018, while the numbers of reported cyber-crime (and resulting cost) will keep increasing in New Zealand. With the European Union and Australia both imposing mandatory obligations to disclose data breaches, expect renewed impetus for the reform of New Zealand’s data and cyber security framework.

A strong push towards pre-planning incident responses and increased use of “breach coaches” is also expected in the year ahead.

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Employment

Scrutiny regarding “equal pay” and “pay equity” is set to continue through 2018, and the Government has signalled new legislation to address the gaps.

With the change in Government expect changes to employee entitlement and rights. This is likely to see some employers opting to settle employment disputes over litigation. Collective bargaining and intervention by the courts as changes are made to the role of unions.

An increased cost of employment will be passed on to the consumer and we can expect to hear plenty more about it in 2018.

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Environment

Environmental litigation continues to become more complex and litigious as new statutory provisions and regulations are tested, and New Zealand’s natural and physical resources come under greater pressure.

Litigation relating to infrastructure and house consenting will dominate, as well as further increases in environmental prosecutions.

Read more

Construction

Recent legislative amendments and decisions from the courts point to a likely increase in the number of parties referring disputes to adjudication under the Constructions Contracts Act in 2018. This will see reduced level of formal court action.

Read more

Who can help

Briony Davies

Partner - Public Law

Briony is an experienced advisor and advocate in public law and regulatory matters. Her expertise is in the development and application of regulatory frameworks, public law litigation and dispute resolution, privacy and data protection, regulatory compliance and enforcement, and crisis management.

Briony has provided a wide range of strategic, legal and litigation advice across the airports, electricity, gas, telecommunications, primary production/processing, transport and financial services sectors. Her clients have included large regulated corporates, government agencies, quasi-regulatory bodies, industry groups, political parties and educational institutes.

Briony Davies

Partner


Public Law
Wellington

P: +64 4 498 5134
M: +64 27 444 9736
Email

Rachel Devine

Partner - Environment and Planning

Rachel provides advice on all aspects of environmental and resource management law for private and public sector clients – from design through to approval, implementation and operation.

Rachel has advised extensively on requirements for resource consents, including major industrial and infrastructure projects, and implications of planning requirements. She has significant experience in obtaining complex environmental and project approvals for developers, and advises on other environmental issues including pollution licensing and contaminated land.

Her commercial experience means Rachel can provide practical, down-to-earth solutions to environmental problems in any context – corporate transactions, planning projects or site management.

In recognition of her environmental expertise, Rachel is President of the New Zealand Resource Management Law Association.

Rachel Devine

Partner


Environment and Planning
Auckland

P: +64 9 353 9912
M: +64 21 521 299
Email

Sean Gollin

Partner - Dispute Resolution and Litigation

Sean is an experienced commercial litigation lawyer. His practice spans a broad range of commercial and contract disputes. Particular areas of expertise include banking and financial services litigation, product liability, corporate and shareholder disputes, claims against directors and other fiduciaries, property and trusts litigation, cross-border issues and maritime law.

Sean has appeared as counsel at all levels of the courts system and before various arbitral and other tribunals. He has also completed the Oxford Programme of Negotiation and regularly engages in mediation and other forms of alternative dispute resolution.

In addition to his commercial litigation practice, Sean is a leading receivership, insolvency and restructuring lawyer. Significant transactions he has acted on include Central North Island Forest Partnership, Crafar Farms, Kawarau Falls, Reef Shipping, Solid Energy, Yarrows Bakers, Torchlight LP, and Dick Smith. He advises secured and unsecured creditors, lending syndicates, insolvency practitioners, boards and other stakeholders, and regularly acts for banks and all major insolvency advisory firms.

Sean Gollin

Partner


Dispute Resolution and Litigation
Auckland

P: +64 9 353 9814
M: +64 21 610 867
Email

Richard Gordon

Partner - Dispute Resolution and Litigation

Richard is a highly experienced civil and commercial litigator. In addition to his expertise in the resolution of commercial disputes, he has a particular background and experience in banking and securities law and insolvency. Richard has appeared as counsel in a large number of defended hearings in the District Court, High Court and Court of Appeal. As a member of MinterEllisonRuddWatts Band 1 Insolvency team, he is a well-known and trusted advisor to trading banks and key New Zealand insolvency practitioners.

Richard has acted on some of the most significant corporate insolvency cases in recent years, including for the receivers appointed to Capital + Merchant Finance, and for the Crown (Secretary to the Treasury) for various disputes arising out of the collapse of South Canterbury Finance and the wider Crown Deposit Guarantee Scheme (including pursuit of recovery of transferred assets from the Hubbard family).  A particular niche insolvency expertise of his is advising on voidable transaction claims, where amongst many other cases Richard has been the successful counsel in two of the most significant precedent-setting Court decisions of recent time – Timberworld v Levin and Ebert Construction v Sanson.

Other decided commercial cases Richard has argued include for breach of contract, professional negligence, Fair Trading Act and Companies Act actions, and a broad spread of general property and insurance disputes.  For examples see Sinclair v New Zealand Racing Board, Svitzer Salvage v Z Energy Limited, Hydro Developments v Coll and Tiroa E and Te Hape B trusts litigation (the Crafar farms/OIO judicial review proceeding).

Richard also acted for the Ministry of Education in successfully pursing its $200 million insurance claim for school buildings damaged by the Canterbury Earthquakes.

Being a litigator is about more than arguing the legal issues and Richard prides himself on his ability to build meaningful business relationships with his clients, and his reputation for providing pragmatic and results-focused advice.

Richard Gordon

Partner


Dispute Resolution and Litigation
Wellington

P: +64 4 498 5006
M: +64 27 705 5113
Email

Andrew Horne

Partner - Dispute Resolution and Litigation

Andrew specialises in commercial litigation and dispute resolution and leads our insurance practice. He has particular expertise in commercial and contract disputes, corporate and regulatory issues, financial services, insurance, technology and telecoms.

Andrew has acted for major listed companies and financial institutions in New Zealand and around the world. He is experienced in managing complex, high-value disputes, including taking cases to trial and resolving disputes through mediation. He also helps clients avoid disputes by resolving issues at an early stage.

Andrew began his career as an associate lawyer in MinterEllisonRuddWatts’ dispute resolution team before spending nine years with Clifford Chance in London, the last three as a Partner, where he specialised in commercial disputes with a particular focus on corporate, financial services and technology litigation.

Since his return to MinterEllisonRuddWatts in 2009, Andrew has been recognised as a leading individual in Chambers Global and Chambers Asia-Pacific.

Andrew Horne

Partner


Dispute Resolution and Litigation
Auckland

P: +64 9 353 9903
M: +64 21 2451 545
Email

Zane Kennedy

Partner - Dispute Resolution and Litigation

Zane is an experienced advocate and trial lawyer who regularly argues cases against Queens Counsel.

He has particular expertise in contract, financial services, intellectual property and insurance litigation.

Zane is also experienced in alternative dispute resolution processes including mediation and arbitration.

He has been recognised as a leading litigator in The Legal 500 every year from 2010 and in Chambers Asia-Pacific and Chambers Global every year from 2011.

Zane Kennedy

Partner


Dispute Resolution and Litigation
Auckland

P: +64 9 353 9893
M: +64 21 350 660
Email

Aaron Lloyd

Partner - Dispute Resolution and Litigation

Aaron is a partner in the firm’s dispute resolution division. He advises clients on a range of litigious and risk related matters, with particular expertise in the areas of white collar criminal and regulatory affairs, sports law and employment law.  Aaron leads our sports law practice, and is a member of the firm’s health and safety and public law teams.

Aaron is well regarded by clients for his ability to analyse and strategise complex situations. He is recognised by both clients, and his peers, for being able to implement pragmatic and commercial strategies to minimise risk and create opportunity for our clients. His ability has resulted in clients avoiding significant litigation and commercial consequences.

In 2017 Aaron was named by Chambers & Partners (Asia Pacific) as one of New Zealand’s leading sports lawyers, and has been recognised for his employment and sports law expertise in other legal directories including Asia-Pacific Legal 500 and Who’s Who.

Before joining MinterEllisonRuddWatts Aaron practiced as a barrister with Paul Davison QC, and has lectured at the University of Auckland.

Aaron Lloyd

Partner


Dispute Resolution and Litigation
Auckland

P: +64 9 353 9971
M: +64 21 532 000
Email

Oliver Meech

Partner - Dispute Resolution and Litigation

Oliver is an experienced general litigator and specializes in handling complex commercial litigation, and competition, regulatory and consumer law matters.

Oliver advises on contentious and non-contentious aspects of competition, regulatory and consumer law. He advises on mergers and acquisitions, restrictive trade practices, unilateral conduct and regulation. He advises clients in Commerce and Fair Trading Act investigations and with their interactions with the commercial regulators. He advises on front-end compliance and, in the consumer law area, has represented clients before the courts and before the Advertising Standards Complaints Board.

Chambers Asia-Pacific 2018 describes Oliver as “a well-reputed competition and consumer law specialist, with one client praising his ‘expert strategic advice on engagement with competition and consumer regulators.’” He is also a published contributor to publications such as “The Private Competition Enforcement Review“.

Oliver Meech

Partner


Dispute Resolution and Litigation
Wellington

P: +64 4 498 5095
M: +64 21 605 021
Email

Stephen Price

Partner - Construction

Stephen is a highly-regarded construction disputes lawyer, and leads MinterEllisonRuddWatts Construction Division in New Zealand.

Stephen’s expertise is in resolving large scale construction contract disputes particularly regarding claims for variations, delays/disruption, and the like, as well as defective works claims. He is very experienced in bringing and defending adjudications under the Construction Contracts Act 2002. He appears regularly in the New Zealand Courts at all levels (including the appellate Courts) and arbitrations, as well as in dispute resolution processes such as mediation and Dispute Resolution Boards.

Stephen’s team is also one of the largest “leaky building” specialist teams in the country, representing parties involved in all aspects of such claims (plaintiff owners and bodies corporate at one end of the spectrum, and builders, subcontractors, consultants, product manufacturers and the Council at the other).

Stephen is named by the Chambers Directory as one of five ranked lawyers in the New Zealand construction field, and by the Asia Pacific Directory as a recommended lawyer (in which MinterEllisonRuddWatts is ranked as tier 1 in Real Estate and Construction). He has previously lectured on Construction Law for the AUT Masters of Construction Management degree, and now lectures on Construction Law for the AUT Law School Masters of Laws degree.

Stephen Price

Partner


Construction
Auckland

P: +64 9 353 9961
M: +64 21 521 244
Email

Megan Richards

Partner - Employment and Public Law

Megan leads both the public law team and the Wellington employment team and acts for both public and private sector clients. She has practiced law for over 20 years in top tier firms in New Zealand, Australia and London, and sits on the partnership’s board.

Her practice traverses strategic, litigious and time-critical day-to-day advice on all aspects of Public law and Employment related law. Megan regularly acts for numerous government departments and crown entities (including central government education agencies).

Bringing significant experience to all employment related matters, Megan regularly advises on drafting employment agreements and HR policies, managing poor performance, restructuring and redundancy, disciplinary investigations and dismissals, leave entitlements, minimum standards compliance, secondments, fixed term employment, KiwiSaver, collective bargaining, independent contractor arrangements, establishing business in NZ and recruiting staff, and restraints of trade and other post termination obligations.

As a recognised expert in Employment law, Megan is on the Editorial Boards of employment publications and is also the co-author of the Laws of New Zealand Employment chapter. As a recognised expert in Public Law, Megan is also an external member of the Legislation, Design and Advisory Committee (which is an appointment by the Attorney General).

Megan is also a Public Law expert and advises on exercise of statutory powers, legislative drafting, discrimination and judicial review proceedings, risk management and legal compliance and governance.

Megan’s leading expertise across Employment and Public Law is consistently noted in independent national and international peer guides, including Chambers Global and Chambers Asia Pacific.

She also has specialist expertise in PPPs having acted for the Ministry of Defence (UK) on their defence procurement and Railtrack plc on the privatisation of the UK railway.

Megan Richards

Partner


Employment and Public Law
Wellington

P: +64 4 498 5023
M: +64 21 676 430
Email

Mark Sandelin

Partner - Dispute Resolution and Litigation

Mark is a leading commercial and contract litigation lawyer, and a member of the partnership’s board.

He has specialist knowledge and experience in banking and finance recoveries, creditors’ remedies, receivership and insolvency law, Securities Act litigation, relationship property disputes, and commercial and contract law.

Mark represents major banking and financial institutions in New Zealand as well as many receivers and liquidators. He has acted for a range of clients facing investigation by the Financial Markets Authority and Serious Fraud Office. He also has a significant practice representing clients in relationship property disputes. Mark also has extensive experience in other forms of dispute resolution with a particular emphasis on mediation. He has acted both as mediator and as counsel in numerous mediations involving commercial disputes.

Mark Sandelin

Partner


Dispute Resolution and Litigation
Auckland

P: +64 9 353 9813
M: +64 21 610 206
Email

Gillian Service

Partner - Employment

Gillian is an experienced advocate with a pragmatic approach that is highly valued by clients. She helps clients manage risks and protect business proprietary interests. Gillian negotiates executive severance arrangements and represents clients in personal grievance claims through all levels of the New Zealand court system.

Her broad employment practice includes advising on restraints of trade and protection of confidential information; industrial relations and collective bargaining matters; restructuring programmes including outsourcing, redundancy and consultation processes; and health and safety matters.

Gillian is an internationally recognised employment law specialist, with significant experience practicing in top tier law firms in New Zealand, Scotland and England.

Gillian Service

Partner


Employment
Auckland

P: +64 9 353 9817
M: +64 21 366 760
Email

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