December 2, 2013
by Sonia Sharma
The case of Zurich Australia Insurance Ltd v Cognition Education Ltd  NZSC 82 is one of the rare, anticipated instances where the interplay between arbitration and other domestic rules comes to the fore. In a set of appeals stemming from an application for summary judgment, the Supreme Court granted leave to appeal on the question of whether a dispute did not need to be referred to arbitration under sch 1, art 8 (1) of the Arbitration Act 1996 (the Act), unless a defendant could prove that there was an arguable basis for disputing the plaintiff’s application for summary judgment.
Cognition Education Insurance Ltd (Cognition) brought an action against Zurich Australia Insurance Ltd (Zurich) in the High Court on the basis of a contract frustration insurance policy issued by Zurich. The claim arises out of Zurich refusing to indemnify Cognition, thereby prompting Cognition to launch an application in the High Court seeking summary judgment on the dispute. In response, Zurich filed an application for a stay of proceedings on the basis of the arbitration clause in the insurance policy. Continue Reading →
November 25, 2013
by Rachael Steller
On 19 September 2013, the Supreme Court dismissed the appeal (with the Chief Justice dissenting) in West Coast ENT Inc v Buller Coal Ltd  NZSC 87. This case involved resource consent applications by two mining companies to two consent authorities, both of which are subject to appeal in the Environment Court. At issue in both appeals was whether the consent authorities needed to take into account the impact that the end use of the coal mined under the resource consents would have on climate change. The mining companies applied to the Environment Court for declarations on this matter. West Coast ENT and the Royal Forest and Bird Protection Society (both environmental organisations) applied for a declaration to the opposite effect. The companies were successful in the Environment Court and High Court.West Coast ENT was then granted leave to appeal directly to the Supreme Court.
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November 17, 2013
by Anna Powell
On 19 September 2013, the Supreme Court issued its judgment in the case of R v Akulue  NZSC 88. This case clarified the boundaries of the defence of compulsion, and its interaction with the common-law defence of necessity.
Ifeanyi Jude Akulue was charged with importing and conspiring to supply methamphetamine, after he contacted a drug courier who was under police supervision. He admitted that he knew she had the drugs and that he intended to obtain them and pass them on. He stated that the reason he did this was because his cousin in Nigeria, Zuby, threatened to kidnap and kill members of his family if he did not do so. His father had been kidnapped in 2009, and not released until a ransom of $20,000 was paid. Various affidavits supported this narrative, including one from Akulue’s wife that referred to a phone call from Zuby on the night Akulue was arrested.
In the Supreme Court, Akulue contended that he should be able to lead this affidavit evidence in support of a defence either of compulsion or of necessity.
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September 12, 2013
by Andrew McIndoe
The Supreme Court has granted leave to appeal the Court of Appeal’s decision in Kakara Estate Ltd v Savvy Vineyards 3552 Ltd  NZCA 101. The case concerns whether the substitution of one party for another in a contractual relationship, without the consent of the other original party, amounts to a mere assignment, or a novation. Continue Reading →
September 4, 2013
by Sonia Sharma
The case of Kapa v R  NZSC 119, (2012) 25 CRNZ 845 concerned the vexing issue of an offender claiming a reward for his crime. In considering the delicate position of a reward donor who has rewarded the criminal, the Supreme Court majority concluded that a reparation sentence under s 32 of the Sentencing Act 2002 was limited to persons within the definition of a victim under s 4 of the Sentencing Act 2002.
On 2 December 2007, the appellant (James Kapa) burgled the National Army Museum at Waiouru and stole 96 gallantry medals worth over $5 million with his partner in crime, Ronald van Wakeren. Following the burglary, Lord Ashcroft and Mr Tom Sturgess offered a reward of up to $300,000 for the return of the medals. The award was to be administered at the discretion of the Commissioner of Police. In an ingenious move, Mr Kapa and van Wakeren proceeded to anonymously return the medals via their lawyer and claimed a reward of $100,000 each. Both defendants were eventually arrested and charged with burglary. Both defendants pleaded guilty. However unlike Mr van Wakeren, Mr Kapa refused to repay his share of the award. Continue Reading →
August 27, 2013
by Campbell Herbert
Tannadyce Investments Limited v Commissioner of Inland Revenue  NZSC 158 was an appeal from a decision of the Court of Appeal striking out an application for judicial review of a tax assessment made by the Commissioner of Inland Revenue. The Court was unanimous in concluding that the Court of Appeal had been correct to strike out the judicial review proceeding. Continue Reading →
August 19, 2013
by Rachael Steller
This case concnerd the mandatory warning that a Judge must give a jury in relation to the use of identification evidence in s 126 of the Evidence Act 2006, as the only evidence against the appellant was identification evidence from the complainant. At issue was the warning given by the District Court Judge to the jury in the summing up, which the appellant alleged did not comply with s 126. While the Court of Appeal had dismissed the appeal, the Supreme Court found unanimously in favour of the appellant because the District Court Judge did not make it clear in summing up that there was an actual risk of a serious miscarriage of justice due to mistaken identification, and that mistaken witnesses can be convincing. Continue Reading →
August 15, 2013
by Sam Jeffs
The Behavioural Management Regime (BMR) was an intensive high security unit that operated in Auckland Prison from 1998 to 2004. The BMR had the dual purpose of deterring prisoner misbehaviour and controlling prisoners that were considered especially problematic. Prisoners admitted to the BMR moved through four phases over a period of six months. Prisoners would progress or regress through the four phrases largely as determined by the subjective appraisal of the guards charged with monitoring them.
The conditions of the BMR were the most punitive found anywhere in the New Zealand corrections system. Prisoners were isolated for 22 to 23 hours per day. While the conditions were slightly relaxed according to progress through the four phases, even the most relaxed BMR conditions were far more severe than what prisoners were otherwise exposed to. Continue Reading →
August 13, 2013
by Alice Chan
On 2 July 2013, the Supreme Court granted leave to appeal on the question of whether an arbitral award, awarded in light of a clause that conferred jurisdiction of appeal contrary to statute, should be set aside.
Otago based law firm Gallaway Cook Allan acted for Mr Ewan Carr on a series of complex commercial transactions. Carr was unable to settle on time and the settlement agreement in question was cancelled by the other party. After failing to successfully sue the other side for unjustified cancellation, Carr alleged that the firm had acted negligently. The firm denied liability and the parties agreed to refer the dispute to an arbitrator. The arbitration agreement contained a clause stipulating that the parties are to carry out any award without delay subject only to rights under the Arbitration Act 1996. More specifically the clause referred to arts 33 and 34 of the First Schedule (judicial review) and cl 5 of the Second Schedule (appeals subject to leave), but was amended to apply to “questions of law and fact.” However the Arbitration Act 1996 only confers jurisdiction to appeal on questions of law, as set out in cl 34 of the First Schedule to the Act.
At arbitration, the arbitrator gave a heavily fact dependent partial award with the effect of exonerating the law firm. Carr appealed to the High Court on questions of fact. Gallaway Cook Allan opposed on the ground that the Arbitration Act limits rights of appeal to “questions of law” only, so the amendment in the arbitration agreement did not have the power to extend this. As a result, Carr filed an amended appeal and sought to set aside the partial award on the ground that it was invalid. This was because the parties had agreed to submit their differences to the arbitral jurisdiction on the express basis that each would have a right to appeal against factual findings. Continue Reading →
August 5, 2013
by Caleb Liu
The high profile collapse of Blue Chip (New Zealand) Ltd and its subsidiaries and associates in 2008 has had enormous impact on the many small-time investors who had chosen to invest into the Blue Chip investment scheme. One of the litigations spawned in the wake of the collapse is the case of Hickman v Turner and Waverly Ltd, which deals with disputes, in the fallout of Blue Chip’s collapse, between the investors of the scheme and the developers of the apartments.
Blue Chip devised investment strategies whereby development sites were sold to independent developers who would erect apartment buildings on these lots. Blue Chip then arranged for sale and purchase agreements of these apartments (before they were built) between short-term investors and the developers, which helped to generate funding for construction of the apartment buildings. In general, the short-term investors would earn “fees” which were functionally similar to interest. Once the apartments were completed, Blue Chip would arrange for the sale of these apartments to another party, enabling the original short-term investors to recoup their investment. Continue Reading →