Settling can be the best option – if your agreement is secure and tax efficient. Start with the essentials of structuring your Calderbank offer to ensure enforceability and effectiveness, then examine the nuances of a ‘without prejudice’ conversation and when conversations might not be covered by the exclusion. Tax considerations are key; learn when lump-sum payouts may be taxable and how to manage this risk. Get insider insights on effective settlement discussions to bring cases to a close with confidence.
2.00pm to 2.45pm Calderbank Offers: Getting the Structure Right and Avoiding an Ineffective Offer
- Establishment of the rule in Calderbank v Calderbank [1976] Fam 95, [1975] All ER 333 (EWCA)
- Practical tips for structuring an offer and avoiding traps for new players
- What happens when it all goes wrong: cautionary tales from the courts
Presented by Kate Rouch, Senior Associate, and Jeremy Bell-Connell, Senior Associate, Dentons
3.30pm to 3.45pm Break
Learning Objectives:
- Understand how to get your Calderbank offer right to avoid an ineffective offer
- Learn what content is and isn’t covered under a Without Prejudice exclusion
- Know when settlement payments are taxable or non-taxable
- Hear how to do settlement discussions well during mediation
Description
Attend and earn 3 CPD hours
Chair:
Damian Chesterman, Barrister, FortyEight Shortland
2.45pm to 3.30pm Without Prejudice Conversations: When What is Said is not Covered by the Without Prejudice Exclusion
- What are the basic rules about without prejudice communications?
- What content is protected by the without prejudice umbrella?
- Is a communication actually without prejudice just because it is labelled or agreed to be?
- Can you dissect out parts of without prejudice communications as on the record and susceptible to being admissible evidence? (This includes documents that may be sent on this basis)
- What are the dangers and concerns for lawyers as counsel engaging in without prejudice communications directly with the other side?
Presented by Paul Dalkie, Barrister
3.45pm to 4.30pm Income Tax: Treatment of the Receipt of Lump Sum Settlement Payments
- Determining whether settlement payments are taxable or non-taxable
- The origin of the claim
- Compensatory payments
- The taxation of payment for humiliation, loss of dignity, or injury to feelings under section 123(1)(c)(i) of the Employment Relations Act 2000
- The tax treatment of settlements partly capital and partly revenue in nature
- Potential GST consequences of a settlement payment
Presented by Mary Nelson, Director, Crawford Nelson
4.30pm to 5.15pm How To Do Settlement Discussions Well: Commercial Mediation
Gain an insider’s guide to: ‘the haggle’, getting creative with settlement, getting past impasses, dealing with difficult people, and sealing the deal.
Presented by Mark Kelly, Barrister, Bankside Chambers; Commercial Mediator
Presenters
Damian Chesterman, Barrister, FortyEight Shortland
Damian is a senior commercial and civil barrister and arbitrator based in Auckland and Queenstown. Throughout his career Damian has been entrusted with complex and difficult litigation by his clients. Since his first jury trial as lead counsel in 1996 he has led numerous High Court trials and appeals including in the Supreme Court. Damian’s qualifications include an LLM (Hons) from the University of Cambridge, England; an LLB with First Class Honours; a B.Com; New Zealand’s highest qualification in arbitration (FAMINZ (Arb)); admission to the New York Bar and admissions in Australia and England.
Jeremy Bell-Connell, Senior Associate, Dentons
Mary Nelson, Director, Crawford Nelson
Mary Nelson was admitted to the bar in 2008. As a lawyer she specialises in representing businesses, trusts, partnerships and individual taxpayers who have found themselves in the awkward position of disputing unpaid tax and penalties with the Inland Revenue Department. Mary works with a team of trusted experts including accountants and other advisors in the tax arena. Her approach is to take over all communications and negotiations with the IRD, to remove stress from her clients while representing their best interests. Anti-Money Laundering laws are another area where individuals and businesses can inadvertently find themselves in legal jeopardy. Mary and her team are experts in assessing, auditing and ensuring compliance with AML/CFT regulations.
Mark Kelly, Barrister, Bankside Chambers
Mark is one of New Zealand’s leading commercial mediators, mediating full-time, throughout New Zealand. He has over 30 years of experience in dispute resolution. Mark is the immediate past President, and a Fellow, of the Arbitrators' and Mediators' Institute of New Zealand. He is also a Distinguished Fellow of the International Academy of Mediators. Mark has extensive experience successfully mediating high value disputes involving: general commercial issues, construction, insurance, intellectual property, trusts and estates, relationship property, rural and farm debt, sports, earthquake, weathertightness and international issues. Mark won the Mediator of the Year Award at the 2019 and 2022 New Zealand Law Awards. In 2023 he was named as one of New Zealand’s 26 most influential lawyers. He practices from Bankside Chambers, Auckland.
Kate Rouch, Senior Associate, Dentons
Paul Dalkie, Barrister
Paul Dalkie has practised as a barrister for more than 24 years in New Zealand and Australia. He appears in and has appeared in a wide range of civil and commercial cases and arbitrations. Prior to becoming a barrister he practised as a solicitor in Queensland for more than 8 years including at two global firms Blake Dawson Waldron (now Ashurst) and Cannan & Peterson, Sly & Weigall (now Norton Rose Fullbright). He has appeared and argued cases and conducted trials and appeals at all Court's levels, including the Privy Council. His practice has particular emphasis on contract disputes of all kinds, and corporate law, especially insolvency and shareholders and directors disputes. He is admitted to practice in New Zealand, Queensland and Victoria, and in the Federal Courts of Australia.
