July 2010 - Limited Licences
The following article was written by Craig Mundy-Smith:
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A sentence which imposes a disqualification from driving is intended to be an inconvenience. But for certain persons whose occupations involve driving the results could potentially be disastrous. It is not the intention of the Court in these circumstances to deprive the convicted person of their livelihood and for this reason the Court may agree to grant such persons a limited licence. Such limited licences allow driving only for the stated purpose and restrict the geographical area and hours within which driving may occur. The order requires the driver to keep a log book of all journeys and to produce the log book to any police officer upon demand.
There are two factors to be considered when applying for a limited licence:
First, the applicant must show that they would suffer extreme hardship if they were to be prohibited from driving. They must show that being able to drive is a requirement of their employment and that alternative options (for example use of public transportation or re-deployment to a ‘desk’ role) are not available to them. If they are employed, their employer must provide evidence that if they are unable to continue driving their employment would be terminated. If they are self-employed they must provide evidence that their business requires them to be able to drive and would not be able to be sustained otherwise.
Alternatively, the applicant may show undue hardship (a lesser test) to other persons. This is typically family members who rely on the applicant for transport.
The second ground is that public safety is not to be compromised. For this reason persons who have been convicted of driving in a particularly dangerous or reckless manner may be declined a licence even extreme hardship is made out. Persons who have been convicted for breath alcohol offences may have special restrictions put in place including prohibitions on consuming alcohol or entering licensed premises.
For all applicants, the areas and hours within which they are permitted to drive will be restricted to the minimum required for them to carry out their occupation. In limited licenses the emphasis is on the fact that they are limited. Limited licences are not intended to allow individuals who have been disqualified from driving by the Court ‘free rein’ to continue driving.
All limited licence applications, other than those imposed for accumulated demerit points, require a 28 day stand down period from the date of conviction before the application may be made.
For further information about applying for a limited licence please contact Craig Mundy-Smith from our litigation team.
June 2010 - Motor Vehicle Tribunal - Beware expensive cars not covered!
The following article was written by Graeme Riach:
A recent court case on which Harmans acted has exposed a surprising deficiency in the law surrounding defective motor vehicles. Most people are aware that there is a specialist Motor Vehicle Disputes Tribunal set up by legislation to deal with disputes surrounding the sale of vehicles. Most of these disputes concern defects or problems with the vehicle and for that reason the Tribunal has a specialist assessor available who can sit with the Tribunal and advise on technical or mechanical issues.
The Tribunal has a monetary limit of $50,000 for claims and this would tend to take in most claims for the cost of repairs to a vehicle. However, where the defect is so substantial as to allow rejection of the vehicle by the buyer (and this is in dispute) then for cars bought for over $50,000 the Tribunal cannot deal with the claim.
This point arose in a case concerning a well known European brand of vehicle which was purchased second hand but only 6000kms on the clock. After 2 years of further use (but only 20,000kms), the gearbox flew apart. The Tribunal (and the District Court on appeal) found that, for this type of vehicle, this was a defect entitling the purchaser to reject the vehicle - even after that amount of time had elapsed – and claim a refund. But the District Court held that because the purchase price of the vehicle was $53,000 the Tribunal did not have jurisdiction to hear the claim in the first place!
As it happened, the Court found that the purchaser had lost the right to reject by having the gearbox repaired (and paying for it!). But the message is clear – for cars bought for over $50,000 (and there are many in that category today) you cannot use the specialist jurisdiction of the Motor Vehicle Disputes Tribunal to resolve the dispute if you have sought to reject the vehicle and claim a refund of the price.
May 2010 - Leaky Buildings
The following article was written by Craig Mundy-Smith:
We rely on our homes to keep us dry and protected from the elements. Some home owners are now finding that their homes are failing to keep out the elements and are literally rotting from the inside. This can result in health concerns from damp, mould and mildew as well as obvious structural problems.
In any dwelling, the roof and cladding are designed to form a protective envelope around the structural elements of the building. Sloped roofs, gutterings, flashings and eaves are all designed to channel and direct water away from the interior of the building. This is because once water gets trapped beneath cladding it can be difficult for it to easily escape or evaporate, particularly in cases where there is no cavity between the cladding and the framework.
During the late 1980s and early 1990s with changes in the Building Code, designers and builders were given considerably more freedom to innovate with different construction materials and house designs. In some cases, the materials and designs used were not appropriate for New Zealand weather conditions. Sometimes, poor workmanship meant that roofing, cladding or joinery did not keep moisture out.
Homes that have a dampness problem may contain walls or carpet that are damp to touch, discoloration or stains in painted areas, cracking or splitting of plaster surfaces, swelling or discoloration of wooden surfaces, and in extreme circumstances mould and fungal growth and timber decay. These types of problems can indicate serious structural damage which may require repairs costing up to hundreds of thousands of dollars and potentially re-cladding or re-roofing of the dwelling.
The government recently set up the Weathertight Homes Resolution Service. If you are the owner of a residential property which has been built or altered within the last 10 years and the house is being damaged because of leaks, you may lodge a claim with the WHRS. If your claim is accepted, the WHRS will appoint an assessor to prepare a report on whether the property qualifies as a leaky building. The assessor’s report will cover both surface and interior leaks and usually involves some form of invasive testing (for example the drilling of holes in walls or the taking of samples of wood).
If the dwelling is a leaky building the assessor will set out in their report the person or persons he or she believes are responsible for the problems. The home owner can then bring proceedings under the Weathertight Homes dispute resolution process to attempt to recover money from the people responsible. It is advisable that you seek the assistance of your lawyer prior to taking this step, because the procedure can be a complex and involved one.
At Harmans we have three lawyers who are experienced in conducting leaky building cases – for homeowners and for building contractors. If you have any queries please contact Graeme Riach, Brian Burke or Craig Mundy-Smith who will be pleased to assist you.
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