Many important documents require an oath, affirmation or declaration to validate their authenticity, be used as evidence in Court, or to comply with legislation/rules surrounding their use. It is, under normal circumstances, integral that these oaths, affirmations and declarations are taken in person. With the requirements of COVID-19 Alert Levels – including physical distancing – the ‘normal’ approach is not possible.

Parliament therefore issued an Immediate Modification Order (IMO) under section 15 of the Epidemic Preparedness Act 2006. IMOs take the form of Orders in Council and essentially rewrite parts of the law where there is a statutory requirement or restriction that is impossible or impracticable to comply with during an epidemic. The IMO relevant to oaths, affirmations and declarations was the Epidemic Preparedness (Oaths and Declarations Act 1957) Immediate Modification Order 2020.

The purpose of this IMO was to temporarily amend the Oaths and Declarations Act 1957 which sets out the requirements for making oaths, affirmations and declarations. The amendment allows oaths, affirmations and declarations to be taken and witnessed remotely using audio-visual or audio links. Despite this fundamental change, the person taking the oath, affirmation or declaration must still ensure that the person making the oath, affirmation or declaration:

• Is the person signing the document;
• Has read and understood its contents and believes its contents to be true; and
• That the exhibits attached to the document are those referred to in the oath, affirmation or declaration.

This IMO also allows entities that receive statutory declarations to authorise members of their staff to take statutory declarations instead of a lawyer, JP, Deputy Registrar in a Court or other person who would normally do it. This is due to the possible difficulty in finding someone to take statutory declarations as Court counter services are closed to the public and the temporary suspension of Justices of the Peace.

Note these changes made by the IMO are temporary; once the Epidemic Notice is lifted in New Zealand the law will go back to the position prior to COVID-19.

How can a person take an oath, affirmation or declaration remotely?
The best approach is to set up a meeting for the oath, affirmation or declaration via an audio-visual link such as Skype/Zoom/FaceTime/Messenger. With the audio-visual link it usually becomes possible for the person taking the oath, affirmation or declaration to ensure the identity of the person is established, that the right document is being looked at, that any attachments referred to are attached, and that the person understands it in its entirety.

Since this approach is not as secure as it would be in person, the person taking the oath needs to be satisfied that all usual requirements are satisfied. It’s important that the quality of the audio-visual link enables the oath, affirmation or declaration taker to clearly witness both the person making the oath, affirmation or declaration and the document with attachments (if any).

If the person making the oath, affirmation or declaration is unknown to the person taking it, it is essential they first check reliable photographic identification (normally driver’s licence or passport). It is also vital that both parties are reading the same document(s) and that each page being signed or initialled is clearly visible.

How should a written oath, affirmation or declaration be signed?
The person making the oath, affirmation or declaration should sign the document during the audio-visual or audio link.
The signed document then must be sent to the person taking the oath, affirmation or declaration as soon as possible after the audio-visual or audio link so that they can also sign it. This can be done electronically through scanning or photograph. At Alert Levels 1-3 this could also be done through post or courier. At Alert Level 4 the document can only be posted or couriered if it is an essential “good”.

Although not mandatory, it would be wise for the person taking the oath, affirmation or declaration to note on the document that it was taken by audio-visual link.

If audio-visual communication is not possible?
This IMO also allows the use of an audio-link such as a telephone to take oaths, affirmations or declarations. If this method is used however, precautionary measures are once again necessary to satisfy the usual requirements.

The person taking the oath, affirmation or declaration over the phone should:

• Read out the document(s) in full;
• Be fully informed about the contents of the oath, affirmation or declaration; and
• Ensure that the person making the oath, affirmation or declaration is known to them or has some way of verifying their identity.

Final Notes
It is not necessary for the person taking the oath, affirmation or declaration to also sign a certificate setting out the circumstances in which the oath, affirmation or declaration was made. Nonetheless it might be a good idea to do so to give the entity receiving the oath, affirmation or declaration confidence that the requirements have been complied with.
The New Zealand Law Society has provided a template for lawyers showing what a certificate could look like as well as other guidance on:

https://www.lawsociety.org.nz/practice-resources/the-business-of-law/legal-practice/opinion-administration-of-oaths-and-declarations-in-circumstances-of-mandatory-self-isolation.

A lawyer has a duty to inform you up front of any costs associated with taking (witnessing) your oath, affirmation or declaration and to charge only a fair and reasonable fee.

If you are still finding it difficult to arrange for an oath, affirmation or statutory declaration you should talk to the entity you are providing the oath, affirmation or declaration too. Some flexibility has been given to some entities to do things a little differently during COVID-19 and your circumstances might be workable.

If you need advice or assistance in dealing with an oath, affirmation or declaration, then contact the Barter Law team.

 

This blog is published for general information purposes only and is not intended to constitute regulated services under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. The blog posts should not be relied on as legal advice. If you require legal advice you should always contact a lawyer to provide you with specific legal advice on your situation.

The announcement made by the New Zealand Prime Minister on Monday 23 March to prepare to move to Alert Level 4 – Eliminate, by midnight Wednesday, made an immediate impact on the New Zealand business landscape. Projected revenue, projects and financial forecasts went out the window for the majority of businesses.

One of the first questions we were asked from our commercial tenant and landlord clients’ was “How does this affect me?”

It depends on the terms of your lease agreement. Some agreements simply do not have any terms that refer to a situation like the COVID19 Alert level 4 lock down. If this is the case, the tenant is likely to feel the brunt of the commercial pressure the restrictions are having. One example is the reported situation of the shop owners at Sylvia Park Mall where their landlord Kiwi Property Group Limited, is said to have told tenants “we wish to remind our tenants that their obligation to pay rent and other usual charges continues throughout this period unless the lease expressly states otherwise.”

Luckily, since the Christchurch Earthquakes the Auckland District Law Society (“ADLS”) Standard agreement (6th edition) does have a clause that refers to the current situation. Clause 27.5 states that:

“If there is an emergency and the Tenant is unable to gain access to fully conduct the Tenant’s business from the premises… then a fair proportion of the rent and outgoings shall cease to be payable…”

The definition of Emergency includes an “epidemic” so clearly Level 4 COVID-19 qualifies as such an Emergency. The effect is that a “fair proportion of the rent and outgoings ceases to be payable”. What “fair” means is for agreement by the Landlord and Tenant.

The Courts have not yet had to decide any cases that relate to this clause so there are no authorities to assist people with the interpretation of this clause. ‘Fairness’ is a subjective concept – what is fair for one may not be fair for another.

What may help people to understand how a Court may look at the clause is to think about the situation of the Christchurch earthquakes and why this clause made its way into the ADLS commercial leased agreements. During the Christchurch earthquakes the army and Police were deployed to enforce a complete restriction on any access whatsoever into the red zone. If the premises were in the red zone, the premises may well have not existed – it was a fait accompli.

During the COVID19 lock down, there is arguably the ability to utilise the premises to a greater extent than those affected by the earthquakes.

Therefore in assessing ‘fairness’ some suggested factors to look at are:

• What is the business “use” of the premises?
• Is the business “use” considered an essential service?
• If so, what proportion of the business is considered an essential service?
• If not, is the tenant still receiving any benefit from the lease while the lock down is in effect (i.e. warehousing, storage, cool stores, remote access to computer servers/telephone systems, etc.)?
• What are the respective financial positions of both the tenant and landlord?
• What are the outgoings of the premises?

The financial effects of the agreements you reach now can have long-lasting affects to your business.

Ultimately, every situation is fact specific. It is important to seek advice early and ensure that you have put forward your best position while negotiating an outcome. A negotiated agreement now will definitely reduce the level of uncertainty your business faces and will mean that you are not paying legal costs when the outcome is uncertain. Finding yourself as a “test case” for the interpretation of this clause will undoubtedly be an unenviable position to be in.

If you need advice about this issue then call one of the Barter Law team now.

The Business Finance Guarantee scheme is part of the more-than $25 billion of economic support the Government has so far announced to help mitigate the damage the COVID-19 pandemic is having on the New Zealand economy. The scheme is intended for small and medium-sized businesses, and its stated aim is to protect jobs and support the economy. In effect the Crown will pay 80% of any loss incurred by a bank on a loan it makes under the scheme, after the bank has completed its normal enforcement procedures.

Finance Minister Grant Robertson said, “For most businesses their most important relationship is with their bank. The Government is using its balance sheet to give businesses and their banks space to work together through this crisis”.

The burning question for business owners is, “am I eligible for a loan under the scheme?”

To be eligible a business must:

• Be New Zealand-based
• Be able to show annual turnover between $250,000 and $80,000,000.
• Not to have been on the bank’s credit watch list (nor you personally) before the COVID-19 crisis

Finally, the loan cannot be used to fund:

• Capital assets/projects other than business as usual expenditure which does not exceed 5% of the principal amount of the loan
• Dividends to be distributed outside the Borrower’s guaranteeing group
• Re-financing existing debt advanced before March 16th
• On-lending outside the Borrower’s guaranteeing group, or
• Excluded activities

The advice from the Government is that the Bank will decide whether the financing can be supported under the scheme through its normal credit assessment process and the Bank will also take into account your circumstances due to COVID-19.

How this is implemented in practice is likely to vary from Bank to Bank.

For business’s that need an injection of liquidity due to the COVID-19 crisis, the scheme needs to be considered seriously as does any application under it. However it should be noted that any business finance guarantee scheme loan will still be subject to your Bank’s repayment terms, interest rates and other customary commercial loan terms. Therefore, the scheme should not be seen as a Government hand-out nor even as a Government loan. Instead it should be seen as a Government guarantee to the Bank, which will be the lender. Having a solid commercial relationship with your Bank will therefore stand you in good stead when entering into the scheme. It will also be essential to have good legal and accounting advice before making an application and entering into any loan agreement under the scheme.

If you need advice about this issue then call one of the Barter Law team now.