March 25, 2014
by Anna Powell

B v R [2013] NZSC 51

The “rape shield” provisions are some of the more controversial parts of the Evidence Act 2006. In B v R [2013] NZSC 151, the Supreme Court looked at just how far those provisions can shield a complainant.


B was tried in the District Court for sexual violation by rape and sexual violation by oral connection. Both charges arose out of the same incident. The complainant came home from a pub at about 9:30pm at night, changed into her nightwear, and then discovered a mouse caught in a trap in her kitchen. She telephoned her daughter, who was still at the pub, to ask her to deal with the mouse. The daughter refused. According to B, the daughter handed him the phone, and the complainant agreed for him to come over to deal with the mouse. He came to the house, dealt with the mouse, and then, according to the complainant, performed oral sex on her and raped her. At trial, he admitted the sexual connection, but maintained it was consensual.

He was found guilty of sexual violation by rape, but innocent of sexual violation by oral connection.

The appeal concerned the exclusion of evidence at trial. The evidence in question was that the complainant had, on a previous occasion, invited a man into her house to deal with a mouse caught in a trap, and on that occasion, she had answered the door wearing only a nightgown. Continue Reading →

March 18, 2014
by Augustine Choi

Waterhouse v Contractors Bonding Ltd [2013] NZSC 89


A third party provided funding for the Waterhouses to sue Contractors Bonding Ltd (CBL) in relation to a failed business overseas. On learning this, CBL sought a stay on the grounds of abuse of process pending the Waterhouses’ disclosure of the funding agreement.

Procedural history

The High Court ordered the Waterhouses to produce the litigation funding agreement to the Court and stayed the proceedings in the meantime. Allan J inspected the agreement and concluded it contained nothing that needed to be disclosed to CBL. Importantly, the funder did not have an unacceptable level of control over the proceedings.

The Court of Appeal considered the degree of appropriate oversight by the courts. It rejected the need for curial preapproval of an agreement. However it accepted that the court and the non-funded party should be given notice of a litigation funder and should have disclosed to them in the first instance (at [8]):

(a)    the identity and location of the litigation funder;

(b)   its financial standing/viability;

(c)    its amenability to the jurisdiction of the New Zealand courts; and

(d)   the terms on which funding can be withdrawn and the consequences of withdrawal.

The High Court’s inspection of the agreement was insufficient for the Court of Appeal. So that CBL could argue the appropriateness of the agreement the Court of Appeal also ordered a redacted copy of the agreement to be disclosed, subject to a claim of privilege. Continue Reading →

March 5, 2014
by Rachael Steller

McNamara v Auckland City Council [2012] NZSC 34

In this case, the Supreme Court held that:

  1. Territorial authorities do not have a duty to go beyond a seemingly valid certificate and check the plans or inspect the house certified, as this would be contrary to the purpose of the Building Act 1991. “Good faith” did not require that such steps be taken.
  2. Due to this limitation on a territorial authority’s ability to go behind a seemingly valid certificate, aggregating the knowledge of Council officers could not surmount the good faith immunity.
  3. If the Council did not have a duty to check whether the private certifier was authorised to issue the certificate, then the mere receipt by the Council of the certificate, and representation by a Council officer that a certificate had been issued, could not be negligent. Continue Reading →

February 27, 2014
by Sam Bookman

2013 NZSC Blog Inaugural Prizewinners!

The NZSC Blog is delighted to announce the winners of our two inaugural prizes.

The Sir Robert Chambers Prize for the best contribution to the NZSC Blog

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Sir Robert Chambers Prize winner Augustine Choi (C), with Lady Deborah Chambers (L) and NZSC Blog Editor Sam Bookman (R).

The recipient of the 2013 Sir Robert Chambers Prize is Augustine Choi, Clerk at Bankside Chambers in Auckland. Augustine was awarded the prize for his case preview of Alesco New Zealand v Commissioner of Inland Revenue.

The Sir Robert Chambers Prize celebrates the best contribution to the NZSC Blog in 2013. It is judged on the basis of excellent legal insight, accuracy and writing style, and includes a cash prize.

Sir Robert Chambers was a Supreme Court judge until he tragically passed away in 2013. He was a regular reader of this blog.

The prize was kindly donated and judged by Lady Deborah Chambers, and selected from a shortlist decided by the Blog’s editors.

NZSC Blog Editors’ Prize

The NZSC Blog Editors’ Prize for the most-read post on the blog in 2013 is awarded to James Ruddell of Oxford University, for his preview of United States of America v Dotcom.


Congratulations to both winners!

February 24, 2014
by Walker MacMurdo

Burgess v Beaven [2012] NZSC 71


In Burgess v Beaven, the New Zealand Supreme Court determined the date upon which the value of relationship property should be calculated for the purpose of the Property (Relationships) Act 1976. The Court held in a judgment given by William Young J, that the value of relationship property is to be determined in accordance with s 2G Property (Relationships) Act 1976 (the Act), upon the initial hearing of the substantial dispute before the court. Continue Reading →

February 20, 2014
by Rachael Steller

New Zealand Pork Industry Board v Director-General of the Ministry of Primary Industries [2013] NZSC 154

On 15 May 2013, the Supreme Court granted leave to appeal on the following issues:[1]

On 20 December 2013 the Court, by majority, found in favour of the Ministry of Primary Industries (MPI)[4] on these issues.[5]


The Porcine Reproductive Respiratory Syndrome virus (PRRS) affects a pig’s disease defence mechanisms, increases vulnerability to disease, and causes still births, higher mortality rates, and lower body weight. A 2001 study found that PRRS could be transmitted by feeding pigs raw pig meat infected with the disease.[6] Due to a concern that scraps of raw pig meat might end up in pig feed, MPI promulgated provisional import health standards (IHS) under the Biosecurity Act 1993 allowing only cooked or treated pig meat from certain countries in which PRRS was present to enter New Zealand.[7] Continue Reading →

February 10, 2014
by Jia Meng

Planet Kids v Auckland Council [2013] NZSC 147

The Planet Kids education centre burnt down in 2010.


Planet Kids Limited operated a childcare business on a premises leased from the Auckland Council. The Council had sought to acquire the lease under the Public Works Act 1981 (“the Act”), intending to use the land for a roading project. 

On 3 June 2010, the two parties entered into an agreement. Planet Kids agreed to receive compensation for the lost goodwill stemming from the closure of its business, and the Council agreed to forego a disputed claim for owed rent. The Council was to receive, inter alia, a surrender of lease and vacant possession. The agreement provided that the business was to remain at the sole risk of the Lessee until the settlement date (cl 8), and that the Council was not engaged in a purchase of Planet Kids’ business (cl 9).

However, before the settlement date of 20 December 2010, a fire burnt down the Grey Lynn premises. By the effect of cl 40.1 of the lease agreement, Planet Kids’ leasehold immediately terminated as a result of the fire. Planet Kids’ could no longer meet its obligations to tender a formal lease surrender and hand over its chattels to the Council under the settlement agreement. Despite paying the deposit, the Council refused to pay the remaining balance, arguing that the fire had frustrated the settlement agreement.

Planet Kids issued proceedings seeking summary judgment for the balance, but was denied at both the High Court and the Court of Appeal. In three separate judgments, the Supreme Court unanimously overturned both decisions. The decision clarifies the law concerning frustration of contract. Continue Reading →

February 3, 2014
by Anna Powell

Wood-Luxford v Wood [2013] NZSC 153

The question to be addressed on the appeal is whether the applicant is a person entitled to claim under the Family Protection Act 1955 against the estate of John Luxford, either as a child of the deceased or a step-child of the deceased within the meaning of the Family Protection Act 1955.

The question of who is a “living person” can, in law, be surprisingly difficult. A foetus is a person for the purposes of the Family Court’s jurisdiction, for example, but not under criminal law. When it comes to Accident Compensation Corporation claims, a foetus is not a person until it is born, but once born alive its personhood is backdated to conception. This case deals with the question of whether a child who was a foetus when its mother was married was a “living stepchild” at the time of that marriage. Continue Reading →

January 30, 2014
by Sam Bookman



The NZSC Blog is incredibly excited to announce the creation of two new prizes.

The first is the Sir Robert Chambers Prize for the best case note of 2013. The Prize has been kindly donated by Lady Deborah Chambers in memory of the late Sir Robert, who was a frequent reader of the Blog. The prize has been judged on the basis of a shortlist submitted by the editors, and finally judged by Lady Deborah on the basis of style, substance and adherence to writing conventions. The prize is accompanied by a cash award.

Case notes shortlisted for the prize were:

James Ruddell’s preview of United States of America v Dotcom [2013] NZSC 51;
Augustine Choi’s preview of Alesco New Zealand Ltd v Commissioner of Inland Revenue [2013] NZSC 66;
Phoebe Harrop’s case note on Takamore v Clarke [2012] NZSC 116;
Alice Chan’s case note on Allenby v H [2012] NZSC 33;
Fergus Whyte’s case note on Body Corporate 207624 v North Shore City Council (Spencer on Byron) [2011] NZSC 82; and
Sam Jeffs’s case note on Taunoa v Attorney-General [2007] NZSC 70.

The second prize is the Readers’ Choice Award for the post with the most “hits” in 2013.

The winners of both prizes will be announced shortly!

January 28, 2014
by Jia Meng

Couch v Attorney-General No 1 [2008] NZSC 45


Susan Couch fought an extended court battle for compensation from the Crown. Photo from

Susan Couch fought an extended court battle for compensation from the Crown. Photo from

The plaintiff, Susan Couch, was the lone survivor of the ‘RSA Killings’ of 2001. She was seriously injured when William Bell robbed the Panmure Returned Services Association where she worked. At the time, Bell was a parolee, having served time for the aggravated robbery of a petrol station. Ms Couch now claimed exemplary damages against the Probation Service, asserting that it had failed to exercise reasonable care in supervising Bell.

Ms Couch’s claim was struck out in both the High Court and the Court of Appeal on the basis that it disclosed no cause of action (Hobson v Attorney-General [2007] 1 NZLR 374 (CA)). It was held that the Probation Service owed no duty of care to Ms Couch. In the Court of Appeal, both William Young P and Chambers J (Hammond J dissenting) had found the claim untenable, with no relationship of sufficient proximity between the plaintiff and defendant so as to give rise to a duty of care. Further, the Court of Appeal found significant public policy barriers to Ms Couch’s claim. However, leave to appeal to the Supreme Court was granted. Continue Reading →

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