June 10, 2013
by Anna Powell
On 11 March 2013, the Supreme Court granted leave for Jamie Ahsin to appeal her conviction for murder. The question for appeal was whether the trial judge should have directed the jury as to withdrawal from an offence in relation to s 66(1)(b) of the Crimes Act 1961 (party liability). Continue Reading →
June 4, 2013
by Paul Comrie-Thomson
In 2008, Parts 4, 4A and 5 of the Commerce Act 1986 (“the Act”) were substituted with a new Part 4 introduced by the Commerce (Amendment) Act 2008. Part 4 effectively deals with the regulation of sectors characterised by little or no competition, such as electricity lines services, gas supply services and certain airport services. The appeal to the Supreme Court in Vector Limited v Commerce Commission concerned one of the Commerce Commission’s (“the Commission”) first decisions under this amended part of the Act. Continue Reading →
May 27, 2013
by Joanne Lee
A 3-2 split in the Supreme Court is never the ideal outcome. This is even more so where the bench-turning issue involved a defence first heard at the final appellate level – in a summary judgment application. Such was the case in Symons v Wiltshire  NZSC 70 where the Supreme Court was swayed by a last minute, and arguably speculative, defence of non-disclosure.
All five parties to this action were guarantors of loans to Opus Fintek Limited (Opus) and Fibroin Initiatives Limited (Fibrion). Mr Wiltshire and Mr Gregory and Robert Symons were directors of both companies.
In April 2008, Opus and Fibrion defaulted on their loan agreements. The bank called on Fibrion, Opus and Mr Wiltshire to settle the debt owing. When the two companies failed to do so, the bank entered into a deed of assignment with Mr Wiltshire. As part of this agreement, Mr Wiltshire (through his company Wiltshire Investments) assumed all the rights of the bank in regard to the loan agreements, guarantees and the securities. Mr Wiltshire was also discharged from his guarantee. Continue Reading →
May 22, 2013
by Sonia Sharma
On 8 April 2013, the Supreme Court granted leave to appeal in the case of Credit Suisse Private Equity LLC v Houghton  NZSC 25 on the issue of the application of the Limitation Act 1950 to a representative action. While there is overseas authority on the matter (albeit conflicting), the issue is largely untested in New Zealand (Saunders v Houghton (No 2)  NZCA 545 at ). The question in the case can be formulated as: whether the Limitation Act applies collectively to all named and unnamed claimants on the date at which a representative claim is filed, or whether the Limitation Act continues to apply individually to each representee in a class action. Continue Reading →
May 20, 2013
by Lana Ye
Parties in any litigation case are always concerned with the costs. In the case Manukau Golf Club Inc v Shoye Venture Ltd, the Supreme Court has addressed the issue on Court order of costs in the context of a breach of a venture agreement.
Procedural History and Facts
The claims and counter claims on part of the appellant Manukau Golf Club (“the Club”), and the respondent Shoye Ventures (“Shoye”) proceeded on normal trial route. Associate Judge Bell in the High Court ruled in favour of Shoye and granted summary judgment plus costs.
The Club appealed to the Court of Appeal. In accordance with r 41(10)(c) of the Court of Appeal (Civil) Rules 2005, details of the costs in the event of success had been set out in their submissions. The costs were calculated on the basis of a “standard appeal” (Court of Appeal (Civil) Rules 2005, r 53B(1)), and each step should have a band A time calculation. The claim came to $12,220 and the disbursements were $5,051.73.
Notwithstanding the Club’s success in the appeal, the Court of Appeal did not award the costs to the Club and provided no reason. The Court of Appeal’s decision that there would be “no order for costs” formed the central issue for the Supreme Court to consider. Continue Reading →
May 14, 2013
by Sam Jeffs
Paul Hansen had the misfortune of being found with 375 grams of clipped cannabis and 1520 grams of other cannabis plant material at his home. Mr Hansen was by all accounts in a difficult position, as s 6(6) of the Misuse of Drugs Act 1975 (“the Act”) provided that anyone who possessed more than 28 grams of cannabis was “presumed until the contrary is proved” to supply that drug. His misfortune only increased when he was convicted for being in possession of cannabis plant for the purpose of supply under s 6(1)(f) of the Act.
Mr Hansen appealed, contending that s 6(6) was inconsistent with the right to be presumed innocent until proven guilty enshrined in s 25(c) of the New Zealand Bill of Rights Act (BORA). The Court of Appeal, following their prior decision in R v Phillips  3 NZLR 175 (CA), held that s 6(6) is clear in applying a persuasive burden upon the accused. The accused must prove, on the balance of probabilities, that the drugs were not possessed for the purpose of supply. The appeal was dismissed and Mr Hansen was granted leave to apply to the Supreme Court. Continue Reading →
May 13, 2013
by Fergus Whyte
Charco, a developer, applied to the North Shore City Council in 2000 seeking consents to construct an 18 storey building which was to include both hotel rooms and penthouse apartments. Each room in the hotel was to be individually sold to owners who would enter into a ten year agreement with the hotel to lease the rooms. Ownership of the property in the building fell under a unit title scheme and a body corporate was constituted for the development.
Charco successfully obtained the consents it had sought and architects and a construction company were engaged. The Council served as the inspector of the building works under the Building Act 1991 and, towards the end of development, issued code compliance certificates in respect of the building. However, the building as constructed was found to be leaky.
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May 9, 2013
by Asher Emanuel
The compulsory acquisition of privately-held land, in the form of takings, is a profound exercise of sovereign power. In Seaton v Minister for Land Information, the majority of the Supreme Court held that the various provisions empowering compulsory acquisition of land were distinct from one another, and should not be construed to overlap. Procedural clarity was essential. Continue Reading →
May 6, 2013
by Alice Chan
Women who fall pregnant as a result of failed sterilisation are now entitled to cover from the Accident Compensation Corporation (ACC) following a landmark ruling by the Supreme Court. Whereas previously it was held that pregnancy did not fall within the definition of “personal injury”, the Supreme Court in Allenby v H held that impregnation as the result of a failed sterilisation was a personal injury resulting from medical misadventure (now known as treatment injury). This case effectively overturns the 2008 Court of Appeal decision in Accident Compensation Corporation v D  NZCA 576 and will undoubtedly have wide implications for ACC as women in similar circumstances seek to recover under this ruling.
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April 29, 2013
by Sam Bookman
What can and cannot be put before a decision-maker in a Court is a complex question. The consequences for lawyers and judges of making the wrong decision can be significant. In the criminal law context convictions may be set aside. In order to be effective, trial lawyers and judges must be intimately familiar with the intricate workings of the Evidence Act 2006 (“the Act”) and its corresponding case law. With 216 sections — many of which interrelate and overlap — confusion is inevitable. It is therefore not surprising that in Hannigan v R, in a 4-1 split (Elias CJ dissenting), the Supreme Court provided two divergent yet well-reasoned opinions on the same set of procedural facts.
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