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Buddle Findlay

Following last night's Budget, the Housing Accords and Special Housing Areas Bill was introduced...

New Zealand Law Society

The Ministry of Justice has provided information to the New Zealand Law Society about the...

New Zealand Law Society

The Crown Law Office has released a booklet on its website, setting out the process which will...

New Zealand Law Society

The New Zealand Law Society has reminded lawyers that the introduction of mandatory Continuing...

New Zealand Law Society

The government is giving the Ministry of Justice $4.4 million in operating funding over two years...

New Zealand Law Society

The Legal Complaints Review Officer (LCRO) says managing the office's increasing workload...

Lawyers Weekly

Less than half of the 218 firms surveyed in the 2013 Australian Legal Industry Salary Survey...

Deloitte

Finance Minister Bill English has delivered Budget 2013 to the nation against the backdrop of...

New Zealand Law Society

The New Zealand Lawyers and Conveyancers Disciplinary Tribunal has suspended Hamilton lawyer...

guardian.co.uk

Almost a quarter of jurors in England and Wales currently misunderstand the restrictions on...

beehive.govt.nz

Justice Minister Judith Collins says the fact that political parties cannot agree makes it...

beehive.govt.nz

Environment Minister Amy Adams today announced the appointment of two new Fiordland Marine...

beehive.govt.nz

The Government will launch an update of its Budget app for smartphones and tablets on Thursday...

beehive.govt.nz

Commerce Minister Craig Foss today welcomed the Commerce Select Committee report on a Bill to...

beehive.govt.nz

The Government is aware of financial institutions’ compliance concerns about the FATCA tax...

Out-Law.com

A Supreme Court ruling on the circumstances in which courts can set aside decisions made wrongly...

New Zealand Law Society

Parliament's Commerce Committee has released its report on the Commerce (Cartels and Other...

New Zealand Law Society

The New Zealand Lawyers and Conveyancers Disciplinary Tribunal has ordered that Hugh Edward...

Otago Daily Times

The Queenstown Lakes District Council's bill for leaky homes has topped $3.6 million, but the...

New Zealand Herald

Landowners having to pay the council a share of profits on rezoned properties and developers...

Law Society Gazette

Research has highlighted the need for solicitors to learn British Sign Language (BSL) so that...

Law Society Gazette

Sir Alan Ward in Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 234, a case which concerned...

Josh Mc Bride

The American Bar Association has recently updated its Rules of Professional Conduct to require...

Russell McVeagh

On the back of proposed changes to the tax treatment of lease inducement and lease surrender...

Russell McVeagh

The Commerce (Cartels and Other Matters) Amendment Bill, which represents the most significant...

Buddle Findlay

The first article in this series discussed the main types of preliminary agreements, including...

Simpson Grierson

In our October 2011 FYI, we updated you on the Government's introduction of the Commerce (Cartels...

Kensington Swan

The Commerce Committee has reported back on the Cartel Criminalisation Bill suggesting some...

Kensington Swan

The Unit Titles Act 2010 (‘Act’) and Unit Titles Regulations 2011...

Baldwins

In response to concerns from local ICT industry sources that the currently worded Patents Bill...

Bell Gully

The Select Committee has now reported back on the Commerce (Cartels and Other Matters) Amendment...

Kensington Swan

International trade continues to play a significant role in the New Zealand economy. New entrants...

Kensington Swan

A recent High Court judgment has ruled Christchurch City Council cannot require earthquake-prone...

DLA Phillips Fox

A weekly overview of recent judgments, legislation, press releases and news items from around the...

Bell Gully

A party to an application for judicial review has a duty to be candid with the Court and any...

Lawyers Weekly

The Tristan Jepson Memorial Foundation is seeking to introduce a set of guidelines in a bid to...

Chapman Tripp

A High Court decision arising out of the Mainzeal receivership confirms that a construction...

Martelli McKegg

In December 2011 we published a blog in relation to the High Court's ruling that an appeal from...

Glaister Ennor

The two key New Zealand land professional parties authorised to lodge, alter and search land...

Gibson Sheat

For most homeowners in New Zealand, their home insurance has always been an unspecified...

Commercial, Company

Appeal and cross-appeal from a High Court (“HC”) decision which determined the fair market value of shares acquired by the appellant from the respondent and the award of interest under s87 Judicature Act 1908 (“JA”) (power of Courts to award interest on debts and damage) – respondent brought proceeding under s165 Companies Act 1993 (derivative actions) against the event management entities for preferring the interests of the appellant – respondent went into receivership which the appellant alleged triggered a pre-emption clause in Trust deed – HC declared that there was a nil value on the derivative proceeding when valuing the shares as no rational buyer would pay anything for the right of action represented by the derivative proceeding - whether the liability to pay the fair value of the shares was an inchoate liability and not a debt so no interest arose under s87 JA - whether the HC erred by placing a nil value on the derivative proceeding for the purposes of determining the fair market value.

Civil Procedure, Defamation, Tort

Interlocutory applications seeking direction for Judge alone trial of defamation claim and for review of Associate Judge’s decision dismissing an application to strike out parts of the statement of defence – plaintiffs alleged defendant made false and defamatory statements about their role in finance company that had implemented a debt restructuring proposal - whether proceeding involved consideration of difficult questions of law or prolonged examination or investigation of documents or accounts in which difficult questions in relation to business matters would arise as per s19A(5)(a) or (b) Judicature Act 1908 (certain civil proceedings might be tried by jury) - whether the alleged misconduct by the plaintiffs particularised in the statement of defence, related to an aspect to which the proceedings related under s30 Defamation Act 1992 (misconduct of plaintiff in mitigation of damages).

Judicial Review, Medical Practitioners

Application for judicial review of exercise of statutory powers by Medical Council of New Zealand under Health Practitioners Competence Assurance Act 2003 – plaintiff was medical practitioner who had entered into relationship with complainant’s partner shortly before their relationship ended – plaintiff had interacted with complainant on three occasions when she was in hospital – complaint arose out of complainant’s concern at prospect of plaintiff having access to her medical records – Council found that plaintiff’s actions had represented a breach of trust in a doctor-patient relationship – whether the disciplinary context required greater deference to the decision making body’s view and therefore a less intense approach on review – whether the Council had been obliged to adopt the reasoning of the Professional Conduct Committee and the plaintiff should have challenged the Committee’s decision but failed to do so - whether Council’s decision was unreasonable.

Employment

Challenge to determination of Employment Relations Authority that plaintiff had not been unjustifiably dismissed – plaintiff had been employed in business for over 40 years and was active union member – proposed restructuring of respondent which resulted in plaintiff’s dismissal (redundancy) was coincident with industrial action – principal allegation was that there had been discrimination against plaintiff as per s104(1)(b) Employment Relations Act 2000 (“ERA”) (discrimination) – whether this was a case of current or prima facie union activity discrimination (taking place no more than 12 months after relevant union activity) with regard to s107 ERA (prohibited grounds of discrimination for purposes of s104) – whether redundancy was a result of the actions of a fair and reasonable employer.

Employment

Challenge to Employment Relations Authority’s conclusion that a provision relating to public holidays in a collective employment agreement complied with the requirements of the Holidays Act 2003 (“HA”) — employer ran a 365 day a year business — every day of the year was a potential working day — employees worked in equal rotating 28-day, time on/time off periods on employer’s vessels — the employment agreement provided that employees could take any alternative holidays which were earned while working on board the vessel, in the proceeding time off period — whether or not agreement complied with the requirements of the HA.

Civil Procedure, Property

Application by plaintiffs as purchasers, for an interim injunction to prevent the defendants as vendors from cancelling an agreement for sale and purchase of rural property — after agreement became unconditional, fire damaged shelterbelt trees and surrounding area — vendors’ insurance did not cover full reinstatement - agreement was 9th edition REINZ/ADLS agreement – parties could not agree amount to be set aside for diminution in value - lawyer was appointed under the contract to determine matter but purchasers argued he had misinterpreted the clause as not requiring complete reinstatement — settlement notice was due to expire the next day and effectively gave notice that vendors could cancel agreement — purchasers said that cancellation would limit their remedy to damages as specific performance would not be available to them - whether there was a serious question to be tried that the clause had been misinterpreted — whether the agreement should be allowed to run its course as parties had followed the dispute resolution procedure in contract - whether the overall evaluation favoured the granting of the injunction.

Civil Procedure, Construction, Contract

Application to set aside statutory demand — defendant issued payment claim and issued statutory demand for amount due under the Construction Contract Act 2002 (“CCA”) two years after work was completed — plaintiff did not file a payment schedule in response to the payment claim or take any appropriate steps under CCA — plaintiff argued that parties settled the dispute at a meeting and by a letter which defendant had not responded to – plaintiff said defendant was estopped from issuing demand — plaintiff argued there was a substantial dispute which gave rise to a right of set off or counterclaim and as the contract had been settled, the CCA did not apply and s290 Companies Act (“CA”) (court may set aside statutory demand) applied — whether defendant was estopped from issuing statutory demand - whether s79 CCA (proceedings for recovery of debt not affected by counterclaim, set-off, or cross-demand) trumped s290(4)(b) CA (set aside a statutory demand if substantial dispute, counterclaim or set-off, or on other grounds) - whether the alleged deficiencies in the payment claim precluded recovery.

Administrative , Employment, Judicial Review

Application by Commissioner of Police to strike out a judicial review application — plaintiff was a serving police officer who raised a personal grievance because of the confirmation by the Commissioner of the promotion of another officer to police sergeant under a policy implemented to recognise competency of officers to hold ranks where the other officer had not completed the requirements for those ranks within the allowable time — plaintiff abandoned personal grievance claim and filed for judicial review, challenging the lawfulness of policy — plaintiff argued policy was ultra vires as being contrary to principles in s8 Policing Act 2008 or unreasonable — whether the application for judicial review was untenable — whether plaintiff’s dispute with the Commissioner was an employment relations problem – whether plaintiff had standing to bring judicial review proceeding.

Contract

Appeal against a District Court decision awarding $24,700 to respondent in respect of a time and materials contract for repairs on the appellant's boat — respondent gave estimates and promised in correspondence to keep appellant updated about the progress of the work and the costs — initially updated appellant but thereafter did not honour the promise and ultimately invoiced appellant for almost twice the estimates — whether the estimates had been near-quotes – whether the promise to update was a term of the contract which preceded its formation – whether appellant had been obliged to file a counter-claim in order to put the accuracy of the estimates and failure to update in issue – whether appellant had suffered a loss – whether appellant had relied on estimates.

Civil Procedure, Insurance

Summary judgment application by plaintiff seeking payment under a reinsurance contract – application by defendant for stay on the basis that the reinsurance contract contained an arbitration clause – plaintiff provided insurance to local authorities and the defendant provided reinsurance – defendant was liable to indemnify the plaintiff for a fixed proportion of all claims payable - claims which exceeded the limit of indemnity of $39.6m were covered, to the extent of that excess – whether summary judgment or stay application should be considered first - whether defendant had an arguable case that the plaintiff had not complied with art 20 of the reinsurance contract (loss settlements) - whether the reinsurance contract provided unlimited reinstatements of the limit of indemnity for each loss occurrence - whether the reinsurance covered risks with an insured value in excess of $100m.

Intellectual Property

Appeal from High Court decision which held that the appellant was the owner of a copyright, but that there had been no copyright infringement – shareholder in appellant company had developed a machine for the automatic grading of asparagus spears – part of the grader involved a cup assembly – it was alleged that the respondents manufactured and sold a cup assembly that was a substantial copy of appellant's copyright works – respondents said that copyright had been transferred by operation of law to an associated company which then had assigned the copyright to the second respondents - whether appellant owned the copyright works – whether by implication of a term, the copyright had been transferred with the goodwill by operation of law to another entity – whether appellant's “design features” or “technical parameters” were actually functional constraints, imposed by the technical parameters of the grading machine – whether there was substantial objective similarity between the cup assemblies and reproduction of a substantial part of the work.

Environment, Resource Management

Appeal against Environment Court (“EC”) decision granting Foodstuffs (South Island) Ltd consent for its proposal for a Pak’nSave supermarket on the Frankton Flats – decision to be read together with appeal decision on the same issue concerning Cross Roads Properties Ltd and a proposed Mitre 10 Mega – land was identified for urban development under objective 6 of operative District Plan – plan change 19 (“PC19”) proposed to implement objective 6, including to provide for industrially zoned land – proposal was not permitted under PC19 – Council declined consent but EC held supermarket would only have “minor” adverse effects on the environment in terms of s104D(1)(a) Resource Management Act 1991 (particular restrictions for non-complying activities) – whether EC had considered PC19 when considering if application would have adverse effects on environment – whether EC erred in law in application of s104D(1)(a) – whether EC erred in its calculation of “minor” by applying an alternative numeric analysis that did not take PC19 into account.

Environment, Resource Management

Appeal against Environment Court (“EC”) decision granting Cross Roads Properties Ltd consent to its proposal for a Mitre 10 Mega on Frankton Flats in Queenstown – this decision to be read with appeal decision on the same issue concerning Foodstuffs (South Island) Ltd and proposed Pak’nSave supermarket – both proposals were in areas that were the subject of objective 10 in plan change 19 which sought to create additional zoning for light industry and related business activity in the area – whether there was an error law in EC’s interpretation of s104D(1)(a) Resource Management Act 1991 (particular restrictions for non-complying activities) – whether there was an error of law in interpretation of objective 10.

Civil Evidence, Insolvency

Application for examination of employee of respondent bank under Schedule 1 art 21(1)(d) Insolvency (Cross-border) Act 2006 (relief that might be granted upon recognition of a foreign proceeding) – application previously adjourned for further evidence to be obtained about relevant Australian law relating to when Australian liquidators of a solvent company might be entitled to examine someone such as employee in this case – affidavit evidence filed by experts – dispute arose to whether affidavit of one of experts went further than was permissible - whether expert evidence on foreign law had to be confined to matters of “content”, as opposed to “application”.

Taxation

Application for summary judgment for $594,000 consisting of tax refund due under the Goods and Services Tax Act 1985 (“GSTA”) – claim arose primarily out of a GST return a trust made in 2011 – Commissioner of Inland Revenue (“CIR”) had withheld payment under s46 GSTA (CIR’s right to withhold payments) while the return was investigated – plaintiff trustee claimed (1) the CIR was “relevantly satisfied” that the return was in order (s46(1)(b) GSTA)), and alternatively (2) that the refund was payable because the CIR did not initiate an investigation within 15 working days of receiving the information requested under s46(4) GSTA – whether CIR was under a statutory duty to pay a refund to the trust but had not done so.

Family, Law Practitioners

Review of decision to take no further action in respect of complaint that applicant’s counsel (the respondent) had acted in a conflict of interest situation by signing a notice of claim in favour of the applicant’s wife (pursuant to loan refinancing agreement) while acting for the applicant in a relationship property dispute – respondent signed notice as “solicitor for claimant” - notice of claim registered in return for transferring ownership into applicant’s sole name so that applicant could obtain mortgage refinancing – applicant alleged a conflict of interest in breach of r6 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (client interests) – Standards Committee had already dismissed another complaint by applicant against the respondent involving the same course of dealing – whether signing notice of claim resulted in a more than negligible risk – whether issue estoppel applied to disciplinary hearings.

Civil Procedure

Appeal from High Court (“HC”) decision denying appellants, as non-parties, access to documents on a HC civil proceeding file – proceeding initiated by Commerce Commission under the Commerce Act 1986 alleging various airlines had engaged in anti-competitive behaviour by fixing certain elements of the prices of in-bound and out-bound air cargo services for New Zealand – appellants were a large freight forwarder operating on an international basis and had been involved with various of the respondent airlines through freight-forwarding contracts – request made under r3.9(4) High Court Rules (“HCR”) (relating to access to documents during the substantive hearing phase) and r3.11 HCR (access by a person not otherwise eligible) – only reason given was that appellant might have suffered loss as a result of the alleged conduct in the proceedings – r3.9(6) HCR conferred broad discretion on Judge – exercise of discretion informed by r3.16 HCR (matters to be taken into account) – whether Judge correctly approached task under r3.9 and r3.16 HCR.

Criminal Evidence

Appeal against conviction for arson – Crown case was that H started a fire in the kitchen of a house he and his wife owned, to generate an insurance claim to fund a better kitchen. Crown alleged Mr H started two earlier fires – H’s wife made an statement during cross-examination which was inconsistent with her earlier statement to police - statement to police then became admissible as to the truth of its contents – prosecutor then re-examined wife – whether course adopted was inconsistent with s94 Evidence Act 2006 (“EA”) (cross-examination by party of own witness) in that the prosecutor had been permitted to cross-examine wife on her prior statements without the Judge having first determined that she was hostile – whether prosecutor had been permitted to challenge veracity of wife in absence of a determination of hostility and s37(4)(a) EA (veracity rules) therefore had been breached.

Property, Resource Management, Statutory Interpretation

Appeal from a Court of Appeal decision which allowed the respondent (Minister of Land) to compulsorily take easements for electricity lines and supporting towers under s23 Public Works Act 1981 (“PWA”) (notice of intention to take land) over land owned by the appellant - easements were sought by respondent using powers under the PWA but were to be transferred to a network utility operator under s4A PWA (powers of Minister of Land) – New Zealand Transport Agency wanted part of land owned by utility operator for road widening purposes - utility operator required appellant’s land to enable relocation of its towers - whether s4A PWA contained a power enabling the respondent to transfer the easements - whether the easements to be taken were required for the Government work of roading and were therefore within the compulsory acquisition powers of the Minister under s16(1) PWA (empowering acquisition of land) or whether they were required for a work of the network utility provider so that any acquisition should be undertaken under s186 Resource Management Act 1994 (compulsory acquisition powers).

Administrative , Judicial Review

Judicial review application from a decision of the respondent (Coroner) which found that the applicant's decision not to call the police was a contributing factor in a young woman’s (Iraena Asher) death – applicants found Asher in a distressed state and took her home – Asher left their home during the night and disappeared – Coroner ruled her death was probably accidental drowning – applicants alleged they were not given reasonable notice of the proposed adverse comment, nor given a reasonable opportunity to be heard under s15(2)(b) Coroners Act 1988 (purpose of inquests - shall not comment adversely on any living person without taking all reasonable steps to notify the person of the proposed comment, and giving the person a reasonable opportunity to be heard) – whether the Coroner's finding amounted to adverse comment for the purposes of s 15(2)(b) CA.

Transport

Commercial, Competition

Company, Trusts

Parliament

Technology

Local Government

Animals

Transport

Company

Company

Environment

Environment

Animals, Environment

Environment

Environment

Environment

Environment

Competition, Infrastructure, Technology

Employment

Employment