Transparency New Zealand

Delegation, calculation of penalties and applying penalties to Rates  A dogs Breakfast

By Grace Haden

I ask for these notes and the attachments to be appended to the minutes.

I have been assisting Penny Bright in making sense of her rates demand, this has given me cause to look at the processes involved and the manner in which the penalty regime has been approached. In doing so I have noted a number of issues which require resolution.

Delegation
Serious issues arise with the delegation of the powers under the Rating act

The annual plan in 2013 & 14 both state

Delegation of decision-making
Decisions relating to applying the rates under the rates related policies will be made by council officers.

The legislation Local Government (Rating) Act 2002 however states

132 Delegation
(1) A local authority may delegate the exercise of functions, powers, or duties conferred by this Act on the local authority to—
(a) its chief executive officer; or
(b) any other specified officer of the local authority.
(2) A local authority must not delegate—
(a) the power to delegate; or
(b) a function, power, or duty conferred by subpart 2 of Part 1 or subpart 1 of Part 5.

The question therefore is who ultimately has the delegated powers and who can lawfully make decisions with regards to the rates and consequently the penalty regime.

It is important to resolve the matter of delegation before we consider whether or not rating polices are legal

Applying penalties to Rates

The sequence of events is also crucial
1. The person who holds the delegated powers or powers has to be identified.

a. I have been unsuccessful in getting this information Mr Town responded this morning Rates and their setting is not delegated but is adopted by the Governing Body as required by law. Therefore no staff member has this delegation. However, delegations for different parts of the implementation of the rating system rest with different staff members depending on what is required.

b. It appears to me that what we have in the annual report and what is required by law is not expressed clearly also the act makes it clear that responsibilities can be delegated to A specified officer not “different staff members depending on what is required”

2. A resolution must be made to authorise penalties to be added to rates no later than the date when the local authority sets the rates for the financial year, It follows logically that this resolution must be available to be produced and one would think in this day an age available for public inspection on the internet. And

a. It has to stipulate how the penalty is calculated
b. the date that the penalty is to be added to the amount of the unpaid rates
c. and must not exceed 10% of the unpaid rates.

3. Section 58 sets out the various types of penalties which the council can impose and it would follow that these are the only penalties which can be imposed .

4. This penalty regime MUST be conveyed in the assessment notice.  see  assessment notice 

There is much confusion as to who really holds the responsibilities as to setting the penalty regime and there is also confusion as to the regime itself.

The annual plans all state: The council must use the special consultative procedure set out in the Local Government Act 2002 to adopt and amend the rates related policies.

The act on the other hand is specific in that it states that the policy must be set “By resolution no later than the date when the local authority sets the rates for the financial year “

This implies that this policy must be set or adopted by resolution annually

In the annual plan 2013-2014  states

The council will apply a penalty of 10 per cent of the amount of rates assessed under each instalment in the 2013/2014 financial year that are unpaid after the due date of each instalment. Any penalty will be applied to unpaid rates on the day following the due date of the instalment.

and 2014-2015

The council will apply a penalty of 10 per cent of the amount of rates assessed under each instalment in the 2014/2015 financial year that are unpaid after the due date of each instalment. Any penalty will be applied to unpaid rates on the day following the due date of the instalment.

A further 10 per cent penalty calculated on former years’ rate arrears will be added on the first business day of the new financial year (or five days after the rates resolution is adopted, whichever is the later) and then again six months later.

The words applied to do not necessarily mean that the penalty will become part of the rates and incorporated into the rates. The wording is not specific as to how the rates and penalties are calculated.

Further :The act requires the invoices to show the amount of the penalty on any unpaid rates for the rating unit and the amount of any unpaid rates owing from a previous financial year for the rating unit. The connotation is therefore that the rates and the penalties are two separate amounts and not one.

This brings about the question of whether or not penalties can be applied to penalties, if there is no resolution that penalties are added to the previous year’s rates then the next lot of penalties applied can only be applied to rates and not rates plus penalties.

The next issue which arises is the rates due for the financial year.
The invoices tates Total rates payable for 2014-2015.

Unless the resolutions to set dates for instalments can be shown to have been made legally and with the proper consultation they cannot be enforced.

The invoice shows the sum due for the year but nowhere on the invoice is there a date by which that sum is due .

There an ability to pay a reduced sum in one payment and getting a hefty 1.1% discount if the payment is made by the first instalment date, the other options available are to be penalised or to pay instalments.

Every one paying their rates on time effectively pays a full month prior to the end of the financial year. Nowhere does it state that the full rates are due by that date.

Penalties are not equal

People living in higher priced areas pay higher penalties as can be seen by the two different invoices I have produced. The penalty for late payment in Epsom is $112.70 per quarter and In Kingsland $58.10 per quarter. This is significant and a flat penalty fee should be considered due to the ever increasing property prices.
calculation of penalties
Unlawful penalties
The act allows penalties of up to 10% of the rates to be added, it does not say per annum and this allows the council to continually add 10% the rates at 6 monthly intervals if an amount is a year old. This is in excess 20% and makes loan sharks look good.

While 10 % is legal the e reality is that a penalty in excess of 10% is added.

10 % is being added to the GST inclusive price, this price is already 15% more than the set rate.

While council through legally set penalty regimes can charge up to 10% penalty on rates they have no legal ability to charge 10% penalty on GST.

This also raises the question of the GST which the council then declares to IRD as having been received but that is a matter for you.

Taking Penny’s rate bill for example the rates instalment is $581 of which $75.78 is GST by charging 10% on the GST inclusive sum a further $7.57 of unlawful penalties is charged per quitter.

In the Epsom example the sum is an extra $14.70 per quarter
It would appear that the rates are a dogs breakfast , they are hap hazard and not done according to the legislative requirements.

While Council appear to ignore the law which they have to comply with, they enforce penalties which have been imposed without any legal basis and against the rule of law.

Council is required to act according to section 14 Of the local government act
a) a local authority should—
• (i) conduct its business in an open, transparent, and democratically accountable manner;

I have not even been able to get questions answered let alone find relevant documents on the council web sites which would enable me to follow the tail of consultation, delegation, resolutions and implementation.

If this is what happens in the process of collecting rates, then we really do have to wonder about the process of spending them.

I have personal experience of seeing the council allow council officers use council resources infrastructure for self-enrichment. There is a deliberate turning of a blind eye to his while rate payers are seen as a bottomless pit of revenue. Questioning this has cost me  more than $300,000   . we have persons in council on wages of $600,000 per year  what are they being paid for.  I would hope   it is to get this kind of thing  right.

This will also be posted on www.Transparency.net.nz

Grace Haden

In this  the  final instalment of the Auckland council rates investigation we explore  delegation.

The  Local Government (Rating) Act 2002 states

132 Delegation

• (1) A local authority may delegate the exercise of functions, powers, or duties conferred by this Act on the local authority to—

  • (a) its chief executive officer; or

  • (b) any other specified officer of the local authority.

  (2) A local authority must not delegate—

  • (a) the power to delegate; or

  • (b) a function, power, or duty conferred by subpart 2 of Part 1 or subpart 1 of Part 5.

Now lets look at the annual  plan again, it states

Delegation of decision-making

Decisions relating to applying the rates under the rates related policies will be made by council officers.

The question  we  need to explorer here is whether  “council officers.”   is   the same as specified as required by the act.  .

There appears to be no definition for Council officer  in any  legislation

Is the lady on the  front desk  there is a receptionist, she is a council officer  , the guy  who overseas the council car park  he is a council officer , I guess you could say that any council employee is a council officer.

Further the annual plan states  that it is  “Decisions relating to applying the rate”  that is delegated to “Council officers ” but the act is specific that   Council cannot delegate the power to delegate  . So without a specific person  being handed the responsibility  the  delegation is  left  rather wide open . There is only one thing for certain and that is that the responsibility still rests with the governing body .

The slack  wording of the annual   plan   and the lack of specificness brings about  the question whether or not the  penalty regime set  by council is even legal in the remotest sense.

But wait there is more

The rates assessment is  sent out at the  beginning of the financial year and  is a document  which is  produced to comply with section sets out the  details as required by legislation , in this case section 45

So we have gone back to the rates assessment notice  that we have before us   and start ticking off the requirements as set out by the legislation.

Item

(k) the total amount of rates payable on the rating unit for the financial year:

we have already seen that  the total amount payable is  $4510.81 .

But if the payment is  made by instalments and each instalment is one day late  then  the  amount paid by the end of the financial  year  ( paid up  by 28 May 2015  when due date is 30 June  2015 )  will be  $4961.61  , an extra $450.81  under the councils  penalty scheme which is not supported by legislation .

On top of that   the $450.81  includes   a total of $58.80 penalties on GST

(l) whether or not the local authority has a remission policy, a postponement policy, or a rates relief policy for Māori freehold land and, if so, a brief description of the criteria for rates relief under each policy:

There is nothing on  our notice which  refers to this at all .

(l) whether or not the local authority has a remission policy, a postponement policy, or a rates relief policy for Māori freehold land and, if so, a brief description of the criteria for rates relief under each policy:

There is nothing on the rates assessment notice which states when the rates must be paid by , the  installment dates are given but there is no indication that  the payments must be made by those dates  it simply states ” amount payable by “.

(n) if applicable,—

(i) the penalty regime of the local authority; and

(ii) a warning that, if rates are not paid on time, a penalty may be added under that regime:

There is nothing on the rates assessment notice with regards  to penalty regimes   and there are no warnings with regards to failing to pay by any due date .

(o) if an early payment of rates has been made in accordance with a policy adopted under section 56(1),—

(i) the rates paid and any balance remaining to be paid; and

(ii) the amount of any discount allowed for the early payment of the rates; and

(iii) any credit balance remaining after payment of all rates due, adjusted for any discount allowed:

None of the above are shown on the rates assessment notice  .

(p) the right of ratepayers to—

(i) inspect the rating information database and rates records; and

(ii) object to any of the information included in the rating information database and rates records.

There is no mention  of these details either .

The Rates assessment notice  which we have before us  does not comply with the legislation Contents of rates assessment.

Perhaps the  council should  tidy up its act with regard to rates

1. Have penalties which are fair and reasonable  based on the   ever increasing value  and ever  rising rates   of our homes
2. Have a rates penalty regime which makes sense and  can be interpreted in the same way by every one reading it.
3. Apply   Penalties legally and only to the portions  which   penalties can legally be applied to
4. Live by the law which  council so strictly imposes on the rate Payers.

I would  like  to Acknowledge Penny Bright  . It is because we looked at  the rates bill she had that  these issues have been raised.    Her  penalty bill is now  significantly larger than   her   rates demands . While Auckland council wants to sell her house for effectively $13,000  in   arrears rates and more than  $20,000  in penalties.

Auckland council the time to be open and transparent with your rates  penalty regime is now.

As if the past two days have not given you enough  to think about,  here is another major issue for council

The  Local Government (Rating) Act 2002 at section 58   provides for the ability to impose penalties

(2) The amount of unpaid rates to which a penalty may be added includes—

 (a) a penalty previously added to unpaid rates under this section; or
(b) additional charges added to unpaid rates under section 132 of the Rating Powers Act 1988; or
(c) rates levied under the Rating Powers Act 1988 that remain unpaid.

Going back to section 57

(1) A local authority may, by resolution, authorise penalties to be added to rates that are not paid by the due date.

(2) A resolution made under subsection (1) must—

 (a) be made not later than the date when the local authority sets the rates for the financial year; and
(b) state—

 (i) how the penalty is calculated; and
(ii) the date that the penalty is to be added to the amount of the unpaid rates.

In the 2014-15  resolution in the annual plan   there is no mention  f penalties being cumulative or added on to the rates  so as to attract penalties on penalties. it simply states .

Penalties on rates not paid by the due date
The council will apply a penalty of 10 per cent of the amount of rates assessed under each instalment in the 2014/2015 financial year that are unpaid after the due date of each instalment. Any penalty will be applied to unpaid rates on the day following the due date of the instalment.

A further 10 per cent penalty calculated on former years’ rate arrears will be added on the first business day of the new financial year (or five days after the rates resolution is adopted, whichever is the later) and then again six months later.

The  resolution is actually quite specific  it states that “A further 10 per cent penalty calculated on former years’ rate arrears” it does not  say including penalties , and rates has not been redefined to mean rates plus penalties.

In going through this exercise we have  come to realize several things.

1. the rates penalty  policy is not very clear  and the average person   will struggle to sort it out, We did, and we are not even sure if we got it right.
2. Give it to  half a dozen accountants and we are sure that you will get as many  variants  in calculations
3. Give it to a dozen lawyers and you will get a dozen interpretations possibly more  depending on case law
4. The legislation is 12 years old , House prices  in Auckland have gone up  massively  yet council has not reconsidered   its rating penalties either percentage  wise or  in line with the legal provisions. 10%  on or  rates when we paid $1,000 per year is very different to 10%   when you are paying $4,000.
5. Just because   we allow  the world to buy up Auckland to  get rich quick , launder money, land bank  etc  does not mean that the  residents need to be  bankrupted so that their houses  can be put on the market.
6. You would  do better going to a loan shark than to  default on rates.
7. Live alone pensioners based on the   rates demand referred to above  ( receiving live alone  super  of $21,931.52 would  be parting with nearly 25% of their super  to live in the  family  home .  We are being forced out of our homes  by rates and penalties .

It is therefore most important that rates  and penalties are applied in a open transparent democratic manner and above all  Compliant with the law.

Dare I say it .. yes there are other issues.. more tomorrow

Open letter to Greg Stewart

Dear Greg

I respond to your letter sent by email on the 22 September but dated 4 September 2014

1. I am uncertain as to what you mean by the comment “ my behavior” I have at all times promised Transparency , is that what you are objecting to ?

2. I am unaware of any “damage” and no one has provided any evidence of damage, which Transparency NZ or I have caused. If there is any damage caused by reporting facts it is purely unintentional.

3. your client/ business partner was a Human Rights lawyer and your client  law firm  promoted Human Rights. Even recently your client  used the Bill of Rights to defend his own right to express his opinion of High Court Judges.

• He cannot possibly promote the concept, and you could not support the concept, that there is one law for him and that we cannot be afforded the same rights.

4. You allege that there are many web sites which are connected, you are being vague   and we have no idea which web sites you are referring to, if you make allegations please be specific.
   1. If you or your client considers out material to be offensive please tell us where it is, what it is called and what makes the article guilty of any offending.
   2. There has at all times bene an offer on the table to you and your clients to make corrections/ alterations and state why the   matters are wrong , you have never availed yourselves of this but want a blanket take it down.

5.  We have tried to appease your clients and yourself, ( you are a director of one of one of your clients, Equity trust International ) and   in an attempt to   resolve the matter we took down  everything which we had control over , however this gesture of good faith and assurances from us that we would not put   anything back up if we had finality , did not appear to satisfy your client who singularly   appears to have the ability to   negotiate for all parties including the company which you are director of.

6.  Negotiations require gestures of good faith from both sides and there was none forth coming and no resolutions in sight by the dead line we set, we have been true to our word and reposted all materials as we stand by the truth which is contained in them and the honest opinions expressed. As you would be aware truth and honest opinion are never defamatory.

7. Your clients   solution offered in your letter is not acceptable to us   because
   1. You are attempting to obtain undertakings from legal entities which are not involved in the proceedings in favour of your clients as well as yourself, your wife and the   proxy lawyer Julia Leenoh who acting out ofyour clients  office and as indicated by your letter working from the premises of yourthe  client  law firm.
   2. The fact that you are seeking to cover yourself in the undertaking   shows that there is no independence on your part and that you are acting in gross conflict of interest and you must cease acting on all matters before the court where you are conflicted.
   3. We hereby give notice that in all proceedings we will be calling on you and Ms. Leenoh to give evidence, by affidavit will be sufficient.
      1. From your self -that you wrote the letter
      2. By Ms Leenoh that she is employed by you and asked you to ask for those conditions on her behalf, attaching the employment contract.
      3. We will also require your wife to   give evidence that she instructed you to include her in the request. – You might wish to add what   right she has to do this.. Why not include the world oops you have “about our clients or any structures or persons associated with the Plaintiffs, nor myself, Ms. Leenoh or my wife.”- Wee bit wide and non-descript don’t you think?

8. A public retraction and apology which we are happy to give is “sorry for speaking the truth we are truly sorry that truth is inconvenient to you. We had no control over the fact that  UNIHOLD Limited which was involved in international money laundering was ultimately owned by y0ur clients  wife,. In tracing UNIHOLD back to its origins through public record we had no control over the outcome.
   1. We also apologize to your wife Alice Marjorie Steward previously known as Alice Marjorie Murrell   for the connections we have made between the company she is director of ,to the renowned Money laundering facilitators GT group and company Net ( 69 Ridge road ) as posted on   Transparency International Finally uses the C word. She should read the news item about a previous Proxy director Lu Zhang.   She has to know what she is getting herself into.

9. There will be no liquidated damages clause, we have given an agreement which we are prepared to sign and we have acted in good faith and kept our word at the deadline.

10.  drafted a document it is here Deed of Settlement , it   appears to us to be too much of an attempt to hog tie us than beat us up , it is a total gaging order one which persons who know they are engaged in dodgy activities would use.

11. Your statement “We do however require some discussion with you about the damages you have caused to our clients” confuses us   the claims in the statement of claim are pretty wide   and we cannot see how any truthful comment   by us could have made a difference given that your clients are mentioned in a massive number of publications un related to us and in court action unrelated to us.

12. We removed all material as a gesture of good faith   but as mentioned earlier it appeared to be a tactic of impairing our freedom of speech and there was no reciprocation.

13. The entire matter could have been resolved but it appears that your client does not trust me for my word , those who know me well will tell you that I am true to my word.

14. We consider your settlement   offer to be bullying and oppressive and as such   cannot   accept it. we will be filing papers   to   object to the restraining order. This letter will form part of the evidence.
    1. To that end please advise who the new instructing solicitor is to be, it is also not appropriate for Mr. Bogiatto to be involved   as he has been part of the issue and will also be called on to give evidence with regards to the   court order which he failed to serve and he one he had sealed despite knowing it was wrong.
    2. It may as such be appropriate for me to deal with the newly appointed solicitor as   by not being personally involved they may have a better and Independent view of the issue and he she may be able to act independently and as an officer of the court as the law requires.

15. You also included in your “ settlement offer “ that we provide “a full description of all the parties you have written to about the Plaintiffs including, but not limited to, government organisations, government agencies, international press, etc. so that the Plaintiffs are fully aware of the complaints, emails and campaigns you have engaged in.”
    1. Please provide a legal basis for this?
    2. Now that we know that this is your clients fear we will initiate enquiries far and wide to establish why this is.
    3. BTW a complaint will be forwarded to the companies register   with regard to fraudulent signatures of proxy director’s associates to the plaintiffs and in the interest of transparency we have included a distribution list at the bottom of this letter.

16. On the issue of costs, we have not instructed a solicitor as we are aware that your client has his house on the market and the indication on the advertising was that “ owner is moving overseas “ he is already indebted to me due to the false invoices , he is just trying to make me incur costs and   hardship . My way of fighting back is by doing it in a way which counts. We are all allowed to defend ourselves and I do it publicly.
    1. All of your clients assets are owned by his wife and in court this week he spoke of the need for the Law society to bankrupt him if they wanted their costs further in court documents he claims to be impecunious and has asked for legal aid. He also advised the court that he is   leaving the country in November.
    2. We also notice that under his former name  that he went missing from Fiji in   2003 and 2004   when discussion of debts   that he had the arose.   You can find the relevant   judgments on the internet. here and here
    3. According to our chronology his name change   came into effect at about the same time when a court noted “The company attempts to shoulder its responsibility onto one Eugene Narodertsky who may well be a person living in some remote part of the world.” Little did they know that he was right here in NZ living under his new name  and practicing law.

17. We hope that by our response, you have a better understanding of our perspective. It is nothing personal with your client, we are transparency and anticorruption lobbyists and I have just had my petition for a commission against corruption presented in parliament.
    1. The fact that New Zealand companies are involved in international money laundering is a serious matter which affects us all.

18. The manner in which your company and your clients have been involved indicates that they are well aware of their involvement in the international money laundering business and I will not become party to such a plot by concealing it as to me that makes me complicit to international crime.

19. It is your choice to use the very same proxy directors as those who have been proved to have been used by the money launderers and Russian Mafia.

20. Those who run a legitimate operation would make certain that they would steer clear of such associations. The services which my company Verisure supplies is due diligence , you may wish to avail yourself of our services to prevent such embarrassing connections.

21. I  wrote a letter to your client along a similar vein , his lack of concern would indicate that he knows who and what he is dealing with and does so   willingly but   would probably not like the spotlight shone on it .

22. I similarly bring the connections of your company and the companies which   your wife is associated with   to your attention. If you were not aware of what has happened then I suggest you read New Zealand: The Shell Company Incorporation Franchises: Round-Up and look at the news items relating to those companies by way of indication this is what your wife is tied up with .. does she know ?

EUROSTONE HOLDINGS LIMITED directed by Alice STEWART owned/owns

• ALTON SYSTEMS LIMITED (2187863) (Struck off) – originally part  of the GT group
• AVALON BUSINESS LIMITED (3053634) – about to be struck off   also  originally part  of the GT group
• BISTRANS INVEST LIMITED (3340091) – originally part of the  THE COMPANY NET TRUST-Glenn SMITH
• DIRECT SOLUTIONS LIMITED (3768614) (Struck off) – set up by equity trust after  the identically named GT Group  company was stuck off
• DITEC UNION LIMITED (3265215) – originally part of the  THE COMPANY NET TRUST-Glenn SMITH
• IMTRADE GROUP LIMITED (3221791) (Struck off) -originally part of the  THE COMPANY NET TRUST-Glenn SMITH
• INVESTA AGRO LIMITED (3658591) (Struck off) – set up by equity trust after  the identically named GT Group  company was stuck off
• KORPTECH SERVICES LIMITED (3682662) (Struck off) – set up by equity trust after  the identically named Glenn Smith   company was stuck off
• LANGTRANS LIMITED (2388545) (Struck off) – originally part  of the GT group
• MILL TRADE LIMITED (3213854) (Struck off) – originally part  of the GT group
• NASORO LIMITED (1601001) (Struck off) – originally part  of the GT group
• PRIMAX TRADING LIMITED (3155726) (Struck off) – originally part  of the NZCI part  of the GT group
• RENTON PROFIT LIMITED (3682635) (Struck off) – set up by equity trust after  the identically named Glenn Smith   company was stuck off
• THW GROUP LIMITED (3539594) – set up by equity trust after  the identically named GT Group  company was stuck off

23. We trust that this clarifies our concerns , if you are concerned   with what we have provided you with and was unaware of the implications before now then you will no doubt act in a manner which   does not bring any adverse comment on your profession.
24. If you are asking me to conceal such serious matters you need to take a good hard look at yourself.
25. We will agree to the   offer we have made to your client or welcome negotiations. While the matters are before the court we will continue to investigate for our defence and anything obtained from the public realm will be published.

Grace Haden For defendants

Copy to law society, company’s office, OFCANZ, international press, local press

Copy posted on www.transparency .net.nz