New Zealand Law Society - Courts roundup 10 October - 16 October 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Slavich v R [2024] NZSC 133 (7 October 2024)
Unsuccessful recall application – Self-represented S had applied for recall of 2020 judgment – SC treated latest application as recall also – Said no basis for recall – Application dismissed.
Nicholson v Lowther [2024] NZSC 135 (8 October 2024)
Unsuccessful leave application – Self-represented N applied for leave to appeal CA decision dismissing application to review Deputy Registrar’s decision to not accept for filing application for leave to appeal HC – HC had said neither appropriate, nor in interests of justice, to proceed on without notice basis under s 250 Companies Act 1993 to terminate liquidation of company with which N associated –
On review, CA said Deputy Registrar right to reject application – Said CA jurisdiction set out in s 56 Senior Courts Act 2016 – Jurisdiction to hear and determine appeals from HC order constrained – Relevant constraint s 56(3), no appeal from interlocutory application in civil proceedings unless HC grants leave to appeal to CA – HC decision N sought to appeal was interlocutory application –
SC said matters N wished to advance not directed to jurisdictional issue CA identified – Nothing advanced gave rise to appearance of error in CA approach adopted – Insufficient prospects of success to warrant appeal to SC – Not in interests of justice for SC to hear and determine proposed appeal – Application dismissed.
Ponsonby Chambers (On Behalf of Dunstan) v Attorney-General [2024] NZSC 136 (9 October 2024)
Unsuccessful filing application – “Ponsonby Chambers” sought to file application for leave to appeal from HC decision seeking to bypass CA – Registrar referred to SC for direction, having regard to apparent irregularities –
Ponsonby Chambers not barristers’ chambers – Appears to refer to Ponsonby Chambers Ltd, limited liability company D owned and directed by Tanya Dunstan – Leave application said to have been brought on behalf of “the appellant”, D – Appeared “Mr X” signed, while HC decision recorded “M Rolls” as solicitor – Melanie Rolls name D used – Appears to have used name to file HC decision she now wished to appeal to SC –
SC said application plain abuse of process – D subject to order under s 166 Senior Courts Act 2016 – Could not bring proceeding without first obtaining leave – Could not evade that order by device of using Ponsonby Chambers to file application on her behalf and what appeared to be alias – Appeared to have attempted to mislead Registrar by doing so – Court will not consider application for leave to appeal – Registrar is directed not to accept for filing.
Fakaosilea v R [2024] NZSC 137 (9 October 2024)
Unsuccessful leave application – F convicted of conspiring to import large quantities of methamphetamine – Crown case included evidence from covert tracking devices placed in two vehicles which F used – Tracked vehicles on near-continuous basis over many months – Vehicle movements relied on to show vehicles stopped at certain addresses at certain times, linking F (with other evidence) to co-conspirators –
Before and during trial, defence counsel raised concerns about data – Trial judge refused to abort trial after holding voir dire about data disclosure – Issue was one ground of F’s unsuccessful appeal to CA –
SC said disclosure issue did not raise matter of public or general importance – No reason to think miscarriage of justice – Application dismissed.
Pomana v R [2024] NZCA 511
Unsuccessful appeal by Pomana against a sentence of six years imprisonment for aggravated robbery involving a gun and two further charges following three incidents at service stations over the course of one evening - Sentencing judge considered gun was loaded and treated as an aggravating factor in setting the starting point - Starting point adopted of six years imprisonment for the lead charge, with uplifts for the other charges -
Judge had not erred in inferring that the pistol was loaded - Pistol being loaded was an inference available to the Judge - Acquittal on the charge of unlawful possession of a firearm was not inconsistent with the inference - Starting point not too high, it was consistent with the examples provided in the guideline judgment and comparable cases - End sentence was not manifestly excessive.
Solicitor-General's Reference (NO 1 OF 2022) v FROM CRI 2021-463-55 ([2022] NZHC 556) [2024] NZCA 514
Question of law referred by Solicitor-General relating to the application of s40 Building Act 2004 (the Act) (building work not to be carried out without consent) to producer statements issued following or resulting from construction monitoring - Question of law arose from Cancian v Tauranga City Council [2022] NZHC 556, in which the HC allowed the conviction appeals on the issue of producer statements in connection with a residential subdivision and development near Tauranga known as The Lakes -
Issue of producer statements (following or as a result of construction monitoring) in relation to non-compliant building work gave rise to liability under s40 - Although the Act did not provide for producer statements, the issue of producer statements fell within both “building work” and “sitework” as defined in the Act - A producer statement contained reasonable statements of professional opinion that building works had been completed in accordance with the building consent and the building code - A statement by a qualified professional that there had been compliance when that was not the case would itself be building work that was not in accordance with the building consent - There was therefore a breach of s40(1).
[G] v R [2024] NZCA 507
Peramune v Savage Garage NZ Ltd [2024] NZCA 512
Unsuccessful appeal by Peramune (P) against a HC decision which set aside a statutory demand on the grounds there was a substantial dispute over the purported debt - P issued a statutory demand against Savage Garage, a car-customising business, for payment of $65,000 purportedly owed under an arrangement to sell six vehicles on his behalf - Parties disputed terms of arrangement, which was informal and verbal - P claimed he supplied vehicles for pre-determined sale prices and that he never asked Savage Garage to undertake work on them - Savage Garage claimed vehicles were brought in for detailing and it agreed to sell the vehicles on P’s behalf -
There was a substantial dispute as to arrangement and whether Savage Garage owed money – Savage Garage could point to evidence showing a substantial dispute: it was not a car retailer, it was unclear why it would agree only to on-sell vehicles for a fixed price, and a communication between the parties suggested P had agreed to pay for work in relation to at least one of the vehicles.
R v Amson [2024] NZHC 2910 (8 October 2024) Downs J
Sentencing – A pleaded guilty to manslaughter and reckless driving causing injury – Consumed alcohol and cannabis, drove at extraordinary speeds, overtook vehicles recklessly, including on double yellow line and caused significant injury – HC said very bad example of its kind – Starting point six and half years' imprisonment – Discounts 25 per cent for guilty pleas, six per cent for remorse and 10 per cent for rehabilitative efforts – One-month uplift for previous convictions – End sentences: three years and 11 months' imprisonment for manslaughter; two years' for reckless injury, to be served concurrently – Disqualification period four years.
R v Pora [2024] NZHC 2951 (11 October 2024) Downs J
Sentencing – Following jury trial P guilty of kidnapping R, not guilty of manslaughter – Sentenced for kidnapping, refusing to provide blood specimen and driving while prohibited – P forcibly restrained R from getting out of P's car – R frightened of P and vulnerable – Starting point two years nine months for kidnapping – One month added for driving offending – 15 per cent discounts for age and prospect of rehabilitation, five months for time on electronically monitored bail – Home detention appropriate because of P’s age and prospect of rehabilitation and because P experienced incarceration in consequence of offending – End sentence 12 months' home detention – Disqualification period six months.
Aquino v Bondfield Construction Co [2024] SCC 31 (11 October 2024)
Unsuccessful appeal from Ontario CA – Appeal addressed when court could attribute senior officer’s or employee’s intent known as “directing mind”, to corporation –
A president of two family-owned construction companies working on large-sale construction projects – When companies began experiencing serious financial difficulties, investigations revealed A and several others had been fraudulently taking tens of millions of dollars from companies through false invoicing scheme – For years they created fake invoices from fake suppliers for services never provided, then directed construction companies to pay invoices – In bankruptcy proceedings against companies, payments challenged under s. 96(1)(b)(ii)(B) Bankruptcy and Insolvency Act (BIA) 1985 – Provision allowed for recovery of money if transaction “transfer at undervalue” and debtor intended to “defraud, defeat or delay a creditor” –
Application judge said false invoice payments transfers at undervalue – Said payments involved several “badges of fraud” which are suspicious circumstances helping prove fraudulent intent – Rejected argument construction companies could not have had fraudulent intent because paying creditors in full and on time at time of payments – Considered bankruptcy legislation purpose, to provide remedy to creditors and concluded that A’s intent should be attributed to companies – Ordered A and others to pay money received under scheme – A and others involved in scheme appealed judge’s ruling – Both before CA and SC, repeated arguments made before application judge – CA upheld judge’s ruling –
SC dismissed appeal – Said judge did not misapply badges of fraud approach to inferring fraudulent intent – Said court might find debtor intended to defraud, defeat, or delay creditor under s. 96(1)(b)(ii)(B) BIA, even if debtor not insolvent at time of transfer at undervalue – No basis to interfere with judge’s conclusion A intended to defraud, defeat or delay creditor under false invoicing scheme – Furthermore, A’s fraudulent intent should be attributed to debtor companies because A was their directing mind and acted in sector of corporate responsibility assigned to him – Appeal dismissed.
Scott v Golden Oaks Enterprises Inc [2024] SCC 32 (11 October 2024)
Unsuccessful appeal from Ontario CA – L owned and operated Golden Oaks Enterprises Inc, rent-to-own residential property company (Company) – S, one of appellants, real estate agent paid interest and commissions to recruit new investors – Company appeared to be successful, but was Ponzi scheme – Scheme collapsed in July 2013 – Doyle Salewski Inc served as trustee in bankruptcy under Bankruptcy and Insolvency Act (BIA) 1985 –
Trustee started legal proceedings against investors to recover illegal interest and commissions Company paid, saying investors unjustly enriched – Investors said actions statute-barred under Ontario Limitations Act, 2002 (Limitations Act), because L knew of illegal payments when payments made – Limitations Act said legal proceedings generally could not be started more than two years after person making claim knew or ought to have known of claims –
Trial Judge attributed L’s knowledge to company – However, said trustee’s actions against Company not statute-barred for other reasons – Ordered investors to return illegal interest payments received – Investors appealed trial judge’s decision saying had wrongly concluded actions not statute-barred – Trustee appealed trial judge’s decision that L’s knowledge should be attributed to Company –
CA did not accept investors’ arguments – Agreed with trustee that trial judge should not have attributed L’s knowledge to company – Said were public interest reasons to ensure those who benefitted from Ponzi scheme could not avoid being held responsible in legal proceedings by attributing L’s knowledge to Company – Legal proceedings therefore not statute-barred because Company did not have knowledge to bring actions at relevant time – Investors appealed to SC, primarily on grounds that L’s knowledge be attributed to Company because was one-person corporation and both were essentially same –
SC majority dismissed appeal – Said trustee’s actions not statute-barred – Said principles of corporate attribution doctrine, summarised in companion appeal Aquino – Corporate attribution doctrine to be applied purposively, contextually and pragmatically to give effect to policy goals of law under which party sought to attribute to corporation actions, knowledge, state of mind, or intent of its directing mind – CA therefore correct to conclude L’s knowledge should not be attributed to Company – Would not have promoted purposes of Limitations Act or BIA, which included avoiding injustice of barring claim before person able to make it and ensuring fair distribution of bankrupt person’s assets and protecting public interest – Appeal dismissed.
R v Sabiston [2024] SCC 33 (11 October 2024)
Successful appeal from Saskatchewan CA – In 2019, Regina police’s street gang unit stopped S while walking down alley and arrested S for possession of stolen property – S told police had loaded sawed-off shotgun in his backpack – Police searched backpack, seized firearm and arrested S again for several firearms offences – Crown ultimately did not proceed with possession of stolen property charge –
At trial for firearms offences, S said police breached Charter rights, namely s 8 right against unreasonable search or seizure and s 9 right to not be arbitrarily detained – Trial judge ruled police breached Charter rights because initial arrest for possession of stolen property unlawful, as was backpack search – However, trial judge said evidence of firearm should be admitted at trial under s 24(2) of Charter – Section said evidence obtained in way that breached rights of accused may be excluded from trial if admitting it would bring administration of justice into disrepute – To determine whether evidence in question should be excluded, court looked at three indicators: (1) seriousness of state conduct in breach of Charter; (2) impact of breach on accused; and (3) society’s interest in adjudicating matter on merits – Trial judge here said police would have been able to legally detain S to investigate him, which made breaches less serious – S convicted of several offences –
CA majority allowed S’s appeal – Said police could not have legally detained S and could not have found firearm without breaching Charter rights – Said evidence of firearm should be excluded from trial, set aside S’s conviction and substituted acquittal – Dissenting judge would have dismissed appeal and affirmed conviction – Said trial judge permitted to consider police would have detained S and discovered firearm if Charter breaches had not occurred –
SC allowed Crown appeal – Set acquittal aside and restored conviction – Appeal allowed.
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