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Media

Litigation

​Chapman Tripp comments on recent cases of interest.
 

Make-over for courts imminent

21 September 2016

The judicature modernisation reforms – now awaiting third reading – represent the most significant revamp of the court system since enactment of the Judicature Act 1908. We outline the key changes. Most provisions will commence in March 2017.

Nine new appointments at Chapman Tripp

05 September 2016

Chapman Tripp is pleased to announce the promotion of eight new senior solicitors and one new senior legal advisor in the firm’s Auckland and Wellington offices.

Appeal court keeps parent company on the hook

17 August 2016

The Court of Appeal has dismissed an appeal by Steel & Tube Holdings Limited (STH) against the legal basis and quantum of a $750,000 judgment based on a “de facto amalgamation” with its subsidiary company. The ruling reinforces the message from the High Court that directors must be careful to maintain a subsidiary’s independence if they are to protect the parent against liability for the subsidiary’s debts.

Your chance for input on the new fire service regime

10 August 2016

Public input has been invited on the Fire and Emergency New Zealand Bill (FENZ Bill) to create a unified fire service and on the regulations which will inform the regime. Submissions on both close on 18 August 2016. The levy rate will be consulted on separately later this year.

The South China Sea decision – a platform for resolution or fuel to the fire?

20 July 2016

The successful Philippines legal challenge against Chinese maritime claims in the South China Sea has been described as “the most significant international legal case for almost the past 20 years”.

Chapman Tripp acts in proceedings against Athletics New Zealand and NZ Olympic Committee

18 July 2016

Leading law firm Chapman Tripp is acting for London-based New Zealand marathon runner Paul Martelletti in Sports Tribunal proceedings against Athletics New Zealand and the New Zealand Olympic Committee.

New fire service levy regime

07 July 2016

Higher levies and stronger compliance measures will be key features in the new unified fire service to be created by the Fire and Emergency New Zealand (FENZ) Bill, now before the Government Administration Committee. The submission deadline and report back dates have yet to be set but the Government wants the legislation to come into force on 1 July 2017.

A timely reminder on litigation disclosure requirements

04 July 2016

A decision last week by the United Kingdom Supreme Court on when a final judgment may be set aside because a party failed to disclose relevant information provides a timely reminder of the importance in litigation of properly locating and disclosing all relevant documents.

Apparent judicial bias - a hard argument to win?

24 June 2016

The England and Wales Court of Appeal has declined to find apparent bias despite an extraordinary case of judicial indiscretion. The decision confirms the approach adopted by the New Zealand Supreme Court in Saxmere but also reflects a reluctance to uphold allegations of apparent judicial bias.

Supreme Court leaves door open to trust-busting litigation

20 April 2016

The Supreme Court has ruled that some family trust structures will be ineffective in protecting assets from claims by former partners and, potentially, other creditors.

Six new senior solicitors and one new senior legal advisor at Chapman Tripp

03 March 2016

Chapman Tripp is pleased to announce the promotion of six new senior solicitors and one new senior legal advisor in the firm’s Auckland, Wellington and Christchurch offices. The appointments are effective from 1 March 2016.

Inland Revenue – a duty to treat taxpayers consistently

10 February 2016

In a recent judgment the High Court has found it arguable that the Commissioner of Inland Revenue owes a duty to act consistently in her treatment of taxpayers who have entered into similar arrangements, and that this ground of challenge can be brought in tax challenge proceedings. We look at the decision and at the reasoning behind it.

Chapman Tripp announces four new partners and two new senior associates

01 December 2015

Chapman Tripp is pleased to announce the appointment of four new partners and two new senior associates effective 1 December 2015.

Supreme Court allows limited protection of ‘digital data’

21 October 2015

The Supreme Court has this week made a small dent in the proposition, upheld by the Courts of Appeal in New Zealand and England last year, that digital data is not property for the purposes of the law. The Supreme Court held digital data is property for the purposes of the criminal law. But civil reliance on property rights will not suffice to protect electronic information – at least for now.

Substance over form in equitable tracing – Privy Council

28 September 2015

A recent Privy Council judgment may make it easier for victims of fraud to trace property through complex money laundering schemes and enforce against constructive trustees. The decision is persuasive rather than binding but, if followed in New Zealand, has the potential also to affect third parties – in ways which may or may not be beneficial.

Five new senior solicitors at Chapman Tripp

01 September 2015

Chapman Tripp is pleased to announce the promotion of five new senior solicitors across our Auckland, Wellington and Christchurch offices

Bush lawyer lights fire under parliament

21 August 2015

The High Court of New Zealand has, for the first time, declared an enactment of Parliament inconsistent with New Zealand’s Bill of Rights.

The Asia-Pacific Arbitration Review - The New Zealand chapter

27 July 2015

Daniel Kaldermis has contributed the New Zealand chapter to The Asia-Pacific Arbitration Review 2016

Contract interpretation – the pendulum swings back

22 July 2015

A long-running dispute in a Welsh caravan park is the unlikely catalyst for a UK Supreme Court judgment that will have far-reaching ramifications for the interpretation of commercial contracts, including in New Zealand. Arnold v Britton may mark a shift away from liberal recourse to a court’s view of “business common sense” in contractual construction, in favour of a more traditional approach.

Construction Contracts Act changes - is the tail wagging the dog?

01 July 2015

No-one who undertakes architectural, design or surveying work can afford to ignore the Construction Contracts Act (CCA) Amendment Bill - and neither can their insurers. The Bill also changes dramatically the law relating to retentions. Views will differ on whether the changes are pretty. We sketch that picture below, but note a strong sense of unease that the issues relating to retentions have not been properly understood or evaluated.

Edward Scorgie interviewed on NZ disputes trends

19 June 2015

Chapman Tripp partner, Edward Scorgie, discusses the firm's disputes report with business media.

Dispute resolution in New Zealand - trends and insights

17 June 2015

The rise of the regulator, and the emergence of new litigation options, have the potential to increase litigation risk and cost for New Zealand businesses.

The Prince, the mother, and the principle of legality

15 June 2015

Two recent judgments – one relating to the release of Prince Charles’ letters to members of the Blair Cabinet, the other to an anti-discrimination claim brought by the mother of a profoundly disabled son – have engaged appellate courts in an analysis of fundamental principles underlying the rule of law.

15 new appointments at Chapman Tripp

02 June 2015

Chapman Tripp is pleased to announce the promotion of 12 senior associates across its Auckland, Wellington and Christchurch offices, and to welcome a new senior associate in the Auckland office. The firm has also recently welcomed two new senior legal advisors* to its tax and competition & regulatory teams.

DOING BUSINESS IN NZ: Dispute resolution

01 June 2015

The District Court is the court of first instance for most criminal prosecutions and civil cases. In criminal cases, whether the District Court has jurisdiction often depends upon the nature and seriousness of the alleged offence. In civil cases, the District Court will have jurisdiction if the amount in dispute is $200,000 or less. Above that amount, the claim must be advanced in the High Court. The High Court also has exclusive jurisdiction in certain matters as directed by statute, e.g. under the Companies Act 1993.

Commerce Commission lays out approach to unfair contract terms

03 March 2015

The Commerce Commission has finalised the approach it will take toward the implementation of the new unfair contract term provisions in the Fair Trading Amendment Act 2013, to come into effect on 17 March 2015. There will be no grace period for compliance. We outline the main changes since the draft guidelines were released for consultation in August last year.

Three new senior solicitors at Chapman Tripp

03 March 2015

Chapman Tripp is pleased to announce the promotion of three new senior solicitors in the firm’s Auckland and Wellington offices. The appointments are effective from 1 March.

Chapman Tripp obtains first NZ subpoena of witness for foreign arbitration

02 March 2015

In a first for New Zealand, Chapman Tripp has obtained a High Court order of subpoena requiring a New Zealand-based witness to provide evidence for an international arbitration tribunal sitting in London.

Court delivers subbie "a win for the little boys"

15 January 2015

The importance of communicating clearly when choosing whether to exercise a contractual election in a construction contract has been reinforced by the Court of Appeal in a decision which was welcomed by the subcontractor as “a win for the little boys”. We look at the Court of Appeal judgment and reprise the history of the case

Parent company made to pay its subsidiary's debts

15 January 2015

Directors beware – unless you are careful to maintain a subsidiary’s independence, the parent company may be liable for the debts of its subsidiary. That is the effect of a recent High Court decision invoking a rarely used provision in the Companies Act. We analyse the judgment and draw some practical advice from it.

The law catching up to cyber-bullying

01 January 2015

Cyber-bullying and internet smear campaigns became a major theme of this year’s election campaign. Judith Collins, Whale Oil, Nicky Hager, Kim Dotcom – these names remind us that online communications have a degree of permanence and spread that casual chat around the water cooler does not.

Supreme Court supports arbitration agreements

22 December 2014

Just in time for Christmas, the Supreme Court has clarified New Zealand’s arbitration jurisprudence by ruling that parties generally cannot avoid promises to arbitrate by seeking High Court summary judgment instead.

Revision Bill programme for 2015 to 2017

19 December 2014

Commercial, contract and civil liability law are in the cut for modification and amendment in the Revision Bill programme for the 2015 to 2017 Parliamentary term.

Chapman Tripp advises EQC on landmark High Court decision

19 December 2014

Chapman Tripp has represented EQC in a High Court case that has helped to clarify the settlement process for around 13,500 Canterbury land claims.

Even breaches which can't be undone can be remedied – UK Supreme Court

19 November 2014

Many contracts allow for termination if a breach remains unremedied, or is irremediable. But the UK Supreme Court’s judgment in Telchadder v Wickland Holdings Ltd provides an important reminder that redress is possible on a broken contractual promise - even where the breach cannot be undone.

Match-fixing bill - Select Committee removes a loophole

11 November 2014

A potential loophole in the Crimes (Match-fixing) Amendment Bill will be mended by making it clear that any sporting manipulation done with the intent to influence a betting outcome will be a crime. The proposed amendment is the only change which the Select Committee has recommended in its report back released last Friday.

Bound to be friendly – enforcing tiered dispute resolution clauses

04 November 2014

In a departure from the orthodox English approach, the English High Court recently held that an agreement to participate in “friendly discussions” was enforceable as a condition precedent to arbitration.

Court of Appeal confirms your word is your bond

01 September 2014

A recent Court of Appeal decision confirms that a promise may become binding, even if non-contractual. The Court did not clearly establish the circumstances in which it will enforce such promises. Each case will turn on its facts. But the reminder for commercial players is clear: don’t think that you’re not bound by a commitment just because you’ve not contracted to perform it. At the least, you could find yourself liable for the other person’s expenses incurred in relying on your word. Worse, you may have to follow through – even though you may no longer want to.

Win to ASIC in responsible lending regime

29 August 2014

The Australian Securities and Investment Commission (ASIC) has flexed its muscles in relation to the responsible lending regime and obtained a significant victory in the Federal Court of Australia. The judgment reinforces the importance of accurate and complete record keeping by lenders.

Top UK Court underscores focus on bribery and corruption

29 July 2014

A recent UK Supreme Court judgment underscores the rising judicial intolerance among Western jurisdictions of bribery and corruption. The decision resolves a question which has been long-unsettled in UK law and brings the UK into line with New Zealand.

So you think you own your electronic data, do you? Think again

18 July 2014

A consensus has emerged from the Courts of Appeal in New Zealand and the UK that digital data is not property for the purposes of the law. The two courts used different reasoning but arrived at the same conclusion. This issue is important because it runs to the protection and remedies available to an innocent party against misuse of electronic data.

Confidentiality agreements and mediation – Canada lights the way?

14 July 2014

A recent decision from the Supreme Court of Canada holds that a confidentiality clause in a mediation agreement can displace default common law rules on without prejudice privilege. For now, New Zealand law takes the opposite view. There remains, however, a case for change.

Law Commission sticks with joint and several liability

25 June 2014

The Law Commission is strongly of the view that New Zealand should retain joint and several liability but has suggested some changes to make the system fairer for both sides.

Because match-fixing just ain't cricket

09 May 2014

The Crimes (Match-fixing) Amendment Bill, introduced this week, clarifies that match-fixing to influence a betting outcome - rather than for tactical sporting reasons - is a crime in New Zealand.

Financial Markets Conduct Act key to Supreme Court Lombard decision

08 May 2014

The restriction of criminal liability for false disclosure in the Financial Markets Conduct Act to deliberate dishonesty or recklessness was a key factor in the Supreme Court’s decision to set aside the home detention sentences against the “Lombard Four”. The convictions stand, however, as the Court declined to hear an appeal by the former directors to have them overturned.

Top Australian court finds wriggle room in "reasonable endeavours" test

11 March 2014

A contractual obligation to use “reasonable endeavours” to supply gives the seller significant wriggle room, according to a recent decision in Australia’s highest court which we expect will be used as a precedent in this country. Purchasers wanting an obligation to supply that is less than absolute but provides some certainty may be best advised to adopt alternative wording – “all reasonable endeavours” or “best endeavours”, or clearly-defined required steps – and avoid giving suppliers the benefit of subjective performance criteria.

Five new senior solicitors at Chapman Tripp's Auckland office

28 February 2014

Chapman Tripp is pleased to announce the promotion of four new senior solicitors and to welcome a new senior solicitor to the firm’s Auckland office.

Supreme Court D&O decision affects all liability insurance

20 January 2014

All cost-inclusive insurance liability policies need to be reviewed following a Supreme Court judgment late last year, the effect of which is to deny insured persons access to defence costs where the money may be subject to a third party claim.

Law to give court procedures modern make-over

02 December 2013

Court processes will be streamlined and modernised, including the use of electronic technology, through legislation recently introduced into Parliament. The Judicature Modernisation Bill implements the Government’s response to the Law Commission review of the Judicature Act 1908.

Litigation funding agreements – in from the cold?

24 September 2013

Third-party funding agreements, an established part of civil litigation overseas, have so far been little used in New Zealand but are becoming more common.

Trans-Tasman Proceedings Act in force next month

06 September 2013

If you do significant business in Australia, you may be affected by the Trans-Tasman Proceedings Act 2010. After a 3 year delay, rules passed last week in Australia and this week in New Zealand bring into effect a new harmonised regime on 11 October 2013.

Market manipulation – a suspect form of human ingenuity

07 August 2013

A recent High Court of Australia decision has held that conduct with a dominant purpose of maintaining a price level of public securities constitutes unlawful manipulation. It sheds potential light on how the New Zealand courts may interpret market manipulation prohibitions as they apply to on-market trades. That guidance may be timely as the Financial Markets Authority has just filed its first market manipulation case.

Steigrad – the Australians agree

23 July 2013

Directors and insurers can take heart from a recent Australian judgment that defence costs can be paid out of D&O policies - even where third parties may have claims on the money and the pot is not big enough to cover both. This reinforces the Court of Appeal’s ruling last year in the Steigrad case, and should increase the chances of that decision being upheld by the Supreme Court later this year.

Domestic (mis)trust and the corporate veil

28 June 2013

Some say that limited liability companies are the spark plugs (or their silicon equivalent) of western capitalism. Others say that treating a company as a separate legal person (as the famous – to lawyers – case of Salomon decided in 1897) is a damnable fiction when, as an old saying has it, it has no body to kick and no soul to harm.

Eight new senior associates at Chapman Tripp

10 June 2013

Chapman Tripp is pleased to announce the promotion of seven new senior associates in our Auckland, Wellington and Christchurch offices and to welcome a new senior associate to our Auckland Finance team.

Evidence Act gets Law Commission tick in compulsory review

18 April 2013

The Law Commission has given the Evidence Act 2006 a warrant of fitness in the first of the mandatory five year reviews provided for in the legislation. The Commission proposes some fine tuning but generally finds that the Act has “overwhelmingly met” the purposes it was designed to achieve and the needs of those who use it.

New anti-protest protections for off-shore mining

17 April 2013

The Crown Minerals Amendment Bill, passed yesterday, provides new protections for deep sea mining operations against protest activities. These are in addition to the existing provisions in the Maritime Transport Act (MTA), which the High Court has recently confirmed apply to New Zealand registered vessels beyond New Zealand’s territorial seas.

Court upholds Rena owners' right to create a limitation fund

08 April 2013

The High Court has authorised the Rena’s liability insurer to create a limitation fund. The fund will provide security for claims – within a prescribed cap – in the (highly likely) event that the ship’s owners and managers are entitled to limit their liability to parties affected by the Rena grounding.

Contracts – Judges 2, Simplicity 0

28 March 2013

The enforceable written contract is usually a damn fine thing. The parties can perform or, if not, pay damages (unless liability has been excluded). Simple? Sadly, not – as two recent English judgments and an article on the state of contract interpretation in Australia demonstrate.

Let the home buyer beware

04 March 2013

Follow your head not your heart when buying your dream home. That is the effect of a recent decision in which the High Court slashed the claim of a couple who bought a multi-million dollar property despite clear evidence that it had leaky building issues. We explain the Court’s thinking and set out the steps purchasers should take to avoid finding themselves in a similar predicament.

Limited liability - "the greatest single invention of modern times"

25 February 2013

Limited liability has been described as “the greatest single invention of modern times” - a bold claim obviously but, in our view, defensible. We provide a refresher on what the concept entails, how it is buried deep within the DNA of Western style capitalism, why it is important to the New Zealand economy and why it must not be compromised.

Limited liability - the pulse of our economy

22 February 2013

New Zealand is a highly entrepreneurial society. Even during the sluggish economic growth of the past three years, we have maintained an average company registration rate in excess of 45,000 a year.

Supreme Court's top five hit list for 2013

18 February 2013

As New Zealand’s top court, the Supreme Court hears only matters of general importance or commercial significance or which involve significant Treaty of Waitangi issues, or require an appeal to prevent or reverse a substantial miscarriage of justice. We outline some interesting and relevant upcoming commercial cases (in chronological order).

The Court of Appeal on D&O policies: the "Steigrad decision"

14 February 2013

In the hectic run up to Christmas last year, we sent you a brief advisory note on the reversal by the Court of Appeal of the High Court’s controversial decision relating to the level of protection offered by directors’ and officers’ (D&O) liability policies. We promised you then that we would produce a more detailed analysis in the New Year of the judgment and its effect. This is it. However this may not be the last word as the Bridgecorp receivers and Eric Houghton (in the Feltex proceeding) have applied for leave to appeal to the Supreme Court.

The Supremes' greatest hits

22 January 2013

For those with an appreciation of classic music from the 1960s, the Supremes were the outstanding vocal group on the Tamla Motown label. For those (fewer in number) with an interest in New Zealand jurisprudence, “The Supremes” is shorthand for the judges of our Supreme Court: the five judges sitting on our court of final appeal. In the spirit of the seasonal tendency to identify highlights of the past calendar year, we offer our selection of the (legal) Supremes’ five greatest hits of 2012, below.

Insolvent transactions – prior consideration is enough for the good faith defence

11 December 2012

The High Court has clarified the extended good faith defence introduced into the Companies Act in 2007 for creditors facing ‘claw back’ of a payment by liquidators. The Court’s interpretation, while good news for creditors, may make it more difficult for liquidators to recover insolvent transactions.

Litigation funding agreements - not so private anymore

10 December 2012

Key details of litigation funding agreements (LFAs) may now have to be released to the other party or parties as well as to the court. This is the effect of a recent Court of Appeal decision and brings New Zealand in line with Australian practice.

Court of Appeal reinforces PPSA lessons from Crafar receivership

09 November 2012

The lessons to be drawn from the Crafar receivership in relation to the Personal Properties Securities Act (PPSA) have now been distilled by the Court of Appeal, which has largely confirmed the High Court’s reasoning. We discuss the implications of the litigation.

Phoenix directors need to act quickly

01 November 2012

Directors wanting to use the phoenix company provisions in the Companies Act 1993, to continue in a governance or a management role, need to apply to the court as a matter of urgency. The High Court, in the first contested application of the rules, penalised the director for delay.

PPSA priority set by date of registration, not perfection

04 October 2012

The Court of Appeal has reversed the High Court’s decision in Healy Holmberg Trading Partnership v Grant on a PPSA issue it describes as being of “practical significance”. The Court of Appeal is very clear that, as between competing registered security interests, the Personal Property Securities Act determines priority according to the order of registration, not the order of perfection.

Privacy – what personal data protection really requires

26 September 2012

Privacy - particularly the protection of personal data - is a hot topic both here and internationally, as organisations struggle to cope with the quantity and transferability of electronic communications. This Brief Counsel provides some tips for businesses on how to manage privacy obligations in relation to collecting, storing and distributing personal information.

Are your subcontracting arrangements as loose as a goose?

14 August 2012

The importance of clear and careful subcontracting arrangements has been underscored by two recent High Court decisions. We look briefly at the cases and draw some practical advice from them. This is particularly timely given the Christchurch rebuild.

The Law Commission on vexatious litigants

05 July 2012

The Law Commission is reviewing the treatment of vexatious litigants as part of its review of the New Zealand court system and to improve life for the litigiously oppressed. We think it is about time. We believe that the rules need an overhaul to allow victims the right to apply for restraining orders and to lower the initial threshold for intervention.

Damages in tort and contract claims - who pays first and how much?

09 May 2012

Most of the commentary around Marlborough District Council v Altimarloch Joint Venture Limited & Ors judgment focussed on the duty of care owed by local authorities for some statements they make in Land Information Memoranda. But the decision also highlights the risks of making statements before a contract is concluded (whether a party to the contract or not) and provides guidance on the litigation strategy to adopt if things go wrong.

Law Commission on the commercial list and judicial specialisation

20 April 2012

The Law Commission is reviewing the commercial list and judicial specialisation as part of its review of the New Zealand Court system. Submissions in response to the Commission’s discussion paper are due on 27 April. This Brief Counsel is one of a series Chapman Tripp is writing on various aspects of the review.

Open justice may be open season, but not here - not yet

18 April 2012

The easier public access to court documents given under High Court Rules issued in 2009 has been reinforced by recent court decisions, here and in England. That is good news for the media and good news for “follow on” damages claimants. But it may be bad news for applicants for leniency from the Commerce Commission.

Trusts – a good port in a storm but design is key

29 February 2012

The take-out from the latest round of litigation between the Financial Markets Authority, Mark Hotchin and two family trusts associated with him is that the Trust is an effective asset protection tool – but that good design is essential.

Pending law change may have saved Lombard directors

28 February 2012

Had the Financial Markets Conduct Bill been in force, criminal proceedings may not have been issued against the Lombard directors and – even if charges were laid – the outcome would probably have been very different. This is because the Bill reserves criminal sanctions for misconduct which is deliberate and reckless – and the Judge acknowledged that it was not any part of the Crown’s case that the Lombard directors had been “other than honest”. However, the decision contains some useful reminders for directors which should continue to be relevant when the Bill becomes law.

2012: Are you in the cross hairs for creditor claims?

13 February 2012

Recent decisions from the courts have raised the legal risk for directors and underlined the exposure to third party liability of auditors, trustees and promoters. As a result, we can probably expect this year to have more claims made by receivers, liquidators and out-of-pocket investors against those involved in: company governance and management; prospectus preparation; and the provision of professional services. So who is potentially in the gun, and why?

Court says hyperlinking to a defamation is not defamatory

31 October 2011

The emergence of the Internet has raised new questions around the law of defamation – most recently, whether hyperlinking comes within the scope of the publication rule. The Canadian Supreme Court, in a decision released this month, has given freedom of the Internet a boost by concluding that to hyperlink is not to publish and therefore that simply to hyperlink to a defamation is not to defame. This Brief Counsel looks at the judgment and its implications.

FMA Enforcement Policy – as you'd expect but it's nice to be told

16 September 2011

The Financial Markets Authority has released an Enforcement Policy setting out its enforcement priorities and the approach it will take toward the use of its powers. This is a useful initiative which will provide welcome clarity and transparency. We summarise the main points of the Policy and provide a brief commentary.

Directors and officers lose cover for defence costs

16 September 2011

A shock ruling this week by the Auckland High Court casts doubt on the extent to which directors can rely on their liability cover to help pay for defence costs in criminal and civil proceedings. This Brief Counsel summarises the decision and comments on its implications for directors.

Comply with your discovery obligations or face the consequences

03 June 2011

A recent US appeal court decision – where a firm was stripped of a positive US$400 million verdict because it had destroyed documents unhelpful to its case – provides a useful reminder to New Zealand businesses that their discovery obligations may arise earlier than they think and that they need to have robust systems in place.

Asset freezing orders - a powerful weapon in a tight spot

02 June 2011

Freezing orders can be used to stop debtors from spending or hiding assets which are under claim. This Brief Counsel discusses how and when they can be an option in litigation and the benefits they offer the claimant.

Two new senior appointments at Chapman Tripp

02 June 2011

Chapman Tripp is pleased to congratulate two new Principals from the firm’s Auckland property and litigation teams on their promotions, effective 1 May.

Liquidators’ liability for litigation costs

10 November 2010

The longstanding view that liquidators are not personally liable for litigation costs has been reaffirmed in two recent decisions, one from the Supreme Court and the other from the High Court. This Brief Counsel looks at the two cases.

Privilege update – two new decisions from the UK

29 October 2010

Two recent English cases have further addressed legal privileges discussed in two previous Brief Counsels: the operation of “without prejudice” communications and the ambit of legal professional privilege. These decisions are significant and are likely to be considered in due course by the New Zealand courts.

Testing the boundaries of legal privilege

27 September 2010

The appropriate boundaries of legal privilege have been considered recently by senior appellate courts both here and in Europe, with markedly different outcomes. The judgments deal with different types of legal privilege – the European Court of Justice (ECJ) with legal professional privilege and the New Zealand Supreme Court with litigation privilege. Taken together, however, they illustrate some important underlying differences in approach between the different jurisdictions.

Trans-Tasman Proceedings Act 2010 passed

22 September 2010

The Trans-Tasman Proceedings Act 2010, which implements the Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Court Proceedings and Regulatory Enforcement, passed its third reading on 24 August 2010. Australia passed its corresponding legislation in March 2010. The new regime creates a legal framework for trans-Tasman cooperation relating to civil proceedings and will enable disputes to be resolved more efficiently and effectively.

Supreme Court sets seal on competition law

01 September 2010

The Supreme Court’s judgment today in The Commerce Commission v Telecom on Telecom’s 1999 dial-up internet package definitively confirms the test for liability under section 36 of the Commerce Act 1986. This Brief Counsel draws the salient points from the decision.

Your bank wrongly bounces your cheque. Can you sue?

11 August 2010

The High Court of Australia recently found Westpac liable for defamation for dishonouring 30 cheques when there were sufficient funds to cover them. However, the Court divided 3-2 over whether the defence of qualified privilege applied, with the majority holding that it did not. This Brief Counsel analyses the Australian decision and its potential impact on New Zealand law.

Confidentiality and Crocodile Dundee

13 July 2010

A recent High Court of Australia decision, involving actor Paul Hogan, confirmed that private financial and taxation documents disclosed in connection with a court proceeding can be accessed by third parties, including the media. This approach may well be imported into New Zealand’s confidentiality regime. This Brief Counsel briefly reviews the relevant law and considers the implications for business.

English Court of Appeal attracted by NZ defamation law

24 May 2010

The English Court of Appeal has suggested that the UK adopt the terminology used in New Zealand and other jurisdictions and reframe its ‘fair comment’ defence against defamation to an ‘honest opinion’ defence to better protect the free expression of sincerely held value judgements. The Court delivered this view when supporting a science writer’s right to make a series of strong criticisms of the British Chiropractic Association. This Brief Counsel looks at the decision, and its possible implications for New Zealand.

Buck stops with lender in oppressive contracts

19 May 2010

The Court of Appeal judgment in favour of Blue Chip victims, the Bartles, carries a caution for lenders in the finding that the loan contract entered between the Bartles and GE Custodians Ltd is oppressive within the meaning of the Credit Contracts and Consumer Finance Act and can be re-opened.

The invidious position of in-house counsel in Europe

10 May 2010

Aspirations by European in-house counsel to secure the same recognition as their counterparts in law firms have been set back by an influential opinion from the Advocate-General for the European Court of Justice, delivered at the end of last month. The Court found that legal professional privilege does not apply to communications between a firm and its in-house counsel. New Zealand, fortunately, does not take the same view.

Pete Bethune expected to be charged with piracy - John Knight comments podcast

19 March 2010

John Knight, specialist in maritime law, comments on the likely consequences for Pete Bethune for boarding a Japanese whaling vessel at sea.

So you want your child in that special school?

04 February 2010

In a decision that will be of general interest to parents, religious groups and educators; the United Kingdom’s new Supreme Court has recently considered the ability of a Jewish Faith School to refuse entry to a Jewish boy who did not meet the School’s definition of an ‘Orthodox Jew’.

Limitation period under Fair Trading Act clarified

04 December 2009

The Supreme Court judgment in Commerce Commission v Carter Holt Harvey provides important guidance on the applicable limitation period for civil claims brought for breach of the Fair Trading Act 1986. This Brief Counsel looks at the Supreme Court’s decision, how it has clarified the law, and what it means for claimants and defendants in Fair Trading Act litigation.

Litigation as a social reform tool

15 October 2009

Litigation as a tool to achieve social reform may have a place in New Zealand, Chapman Tripp principal Daniel Kalderimis suggested during a Fulbright Alumni Seminar in Wellington on 21 August. “Whilst political lobbying in New Zealand has become rapidly more sophisticated over the past 15 years, we have not, yet, embraced the part of US legal culture which seamlessly incorporates ends oriented litigation into social reform strategies,” he said.

Contract interpretation: context is everything, but not everything is context

11 August 2009

New Zealand courts may feel more emboldened to prefer the intended meaning of a contract over the precise wording following a recent decision in the United Kingdom. In this Brief Counsel we look at the judgment and its implications.

Supreme Court decision good news for industry

30 July 2009

New Zealand's highest court last month handed down a decision which brings new certainty to the Quota Management System by finally dealing to the romantic rhetoric of the recreational fishing sector. Bruce Scott gets to the heart of the result.

New District Courts rules

19 June 2009

New District Courts civil procedure rules will come into effect from 1 November 2009, forcing parties to file more fact-specific pleadings, conduct time-limited hearings, and adhere to stricter discovery and expert evidence rules. This Brief Counsel outlines the changes and provides a short commentary on them.

Freer access rules to Court documents

10 June 2009

Media and the general public will have better access to Court documents from this Friday, 12 June, when the High Court (Access to Court Documents) Amendment Rules 2009 come into effect.

Trans-Tasman cooperation for civil proceedings – one step closer

04 May 2009

Plans by the Australian and New Zealand Governments to introduce legislation this year to implement the Trans-Tasman Court Proceedings and Regulatory Enforcement Treaty (signed on 30 July 2008) were the lead agenda item when the Standing Committee of Attorneys-General met on 17 April 2009 in Canberra.

Revisiting "without prejudice" communications: the New House of Lords decision

25 March 2009

The "without prejudice" rule is a legal concept which is easy to state, but surprisingly difficult to apply in practice. What does the decision in Ofulue v Bossert mean for New Zealand?

The Du Fresne refrain

18 April 2008

The High Court has further clarified medical privacy and informed consent, reports Justin Graham.

An ever-decreasing privilege?

18 October 2007

We are all expected to comply with the law. In many circumstances this requires candid disclosure of objectives in order to receive legal advice before a course of action is selected. The protection of such disclosure and advice is “legal privilege”. In this issue of Counsel we examine two recent overseas cases which may potentially impact on the ability of clients to claim legal privilege for certain communications with their in-house counsel.

Conflicts of interest – careful management is needed to safeguard major commercial transactions

01 May 2007

Conflicts of interest and the proper management thereof is a hot topic. The heat has been generated by the recent decision in the Diagnostic Medlab case, where the High Court concluded that a board member had been conflicted and had misused confidential information. The errors at board level were seen as so grave as to warrant a $560-million contract being set aside.

Law Lords open up public debate: good news for investigative journalists

20 October 2006

The House of Lords has upheld freedom of speech over a public person’s reputation in a precedent-setting defamation case.

Taking over a takeover: the Oyster Bay case

01 December 2005

Chapman Tripp acted for David Rankin, one of the combatants in the first-ever High Court scrutiny of a contested takeover. The three resulting judgments in Takeovers Panel v Delegat’s Wine Estate Limited & Oyster Bay Marlborough Vineyards Limited (Oyster Bay 1,2 & 3)1 provide important guidance in resolving Takeovers Code breaches, and the role of the High Court in doing so.

In the hot seat: are chairmen subject to a higher standard of care than other directors?

12 May 2003

A recent decision by Austin J. of the New South Wales Supreme Court highlights the potential for some company chairmen to be subject to a higher standard of care than other directors because of their additional responsibilities.

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