New Zealand Law Society - Courts roundup 19 December - 15 January 2025
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Legler v Formannoij [2024] NZSC 173 (18 December 2024)
Unsuccessful appeal – Concerned whether M acting for improper purpose when appointing company she controlled as sole trustee of trust – K, La and brother Li adult children of R, who died in gliding accident in 2017 – M was R’s widow –
M met R in Caribbean in 1989 and became his de facto partner – Couple moved to New Zealand in 1991 and lived on farm in Bay of Islands R had purchased in 1986 – Later, R purchased adjacent forestry block –
In 2002, R’s father died, leaving him substantial inheritance – R’s children also left around $1 million each under will –
Inheritance from father eventually led to setting up two family trusts: Horowai Family Trust (Horowai) in 2007 and Kaahu Trust (Kaahu) in 2008 – R, M and Bay of Islands Taxation Trustee Company No 2 Ltd (BOI) original Kaahu trustees –
In late 2019, BOI executive said BOI resigning as Kaahu trustee – M unsuccessfully attempted to find replacement –
In October 2019, M received legal advice from WRMK Lawyers (WRMK) she could appoint company to be sole Kaahu trustee and would be permissible for M to be sole company director – In further advice letter, WRMK explained to M trustee duty to act in trust beneficiaries’ best interests, including R’s children – Letter set out options for action after company appointed as trustee, including options not involving totally excluding children –
BOI retired on 21 November 2019 – Further letter from WRMK, sent on 21 November 2019, set out logistics for M appointing company as sole trustee – WRMK also asked whether should request Horowai financial statements, because M would need to have all relevant information before making decisions regarding Kaahu – M agreed –
On 27 November 2019, M appointed Kaahu Trustee Ltd (KT Ltd) as Kaahu trustee and resigned as trustee – M sole KT Ltd director –
In letter of 27 February 2020, TGT Legal wrote to WRMK, declining request for Horowai financial information – WRMK wrote to M on 28 February 2020, enclosing TGT Legal letter – WRMK set out various options including resettling Kaahu’s assets on new trust for M’s benefit or distributing all Kaahu’s assets to M personally and winding trust up – Another option was to remove R’s children as beneficiaries –
M’s evidence at trial was that she had, in accordance with WRMK’s advice, taken time to consider needs of all beneficiaries of Kaahu, including herself and R’s children – In March 2020, she then decided to have KT Ltd take number of actions including: removing Li, K, and La as Kaahu beneficiaries and appointing herself as beneficiary entitled to receive trust fund on vesting day – Li, K, and La issued proceedings challenging M’s decision to appoint KT Ltd as trustee, saying power used for improper purpose –
HC said Kaahu trust deed expressly permitted single corporate trustee to exercise trustee powers even if beneficiary director or shareholder or both – Meant that M did not, by mere fact of appointing single corporate trustee, act with improper purpose (whether her intent was to simplify trust or to control it) – Also on facts, M had not exercised power to appoint KT Ltd to benefit herself –
CA majority dismissed children’s appeal –
SC majority also dismissed appeal – Said evidence failed to prove that M had intent, at time she appointed KT Ltd as trustee, of benefiting herself at expense of R’s children – Essentially same reasons as Courts below – Appeal dismissed.
Coulson v Auckland High Court [2024] NZSC 174 (18 December 2024)
Successful leave application – Self-represented C applied for review of Deputy Registrar’s decision to refuse to accept application for leave to appeal for filing –
SC Judge agreed with C, application ought not to have been rejected for filing on ground HC decision interlocutory – Decision meant proceeding brought to end – Review upheld – Leave application should be accepted for filing and referred to panel for decision – Application granted.
Fitzgerald v Attorney-General [2024] NZSC 180 (18 December 2024)
Successful leave application – Approved question whether CA correct to allow appeal.
Slavich v R [2024] NZSC 175 (19 December 2024)
Unsuccessful recall application – Self-represented S applied for correction to Court’s 7 October 2024 judgment – Registrar directed not to accept for filing any further applications for recall relating to judgment, or 7 October 2024 judgment – Application declined.
Halse v Rangiura Trust Board [2024] NZSC 176 (19 December 2024)
Unsuccessful recall application – Self-represented H applied to recall previous judgment, saying Judge had been involved in case managing related application when CA Judge and had been subject to recusal application –
SC said case management functions Judge undertook in related proceeding would not provide any grounds for him to have recused himself from hearing leave application – Application dismissed.
[G] v R [2024] NZCA 626
Kerr v Bank of New Zealand [2024] NZCA 684
Unsuccessful appeal by K and a group of related corporate entities against HC decision which enforced a personal guarantee given by K - Whether K had acknowledged his personal liability as guarantor and whether K’s acknowledgments of liability extended to both principal and interest -
K acknowledged his personal liability as guarantor during the primary limitation period, giving rise to fresh claims against him for limitation purposes - BNZs claims were not time barred - Corporate appellants were all closely associated with K - Following defaults on loan facilities, K assumed overall responsibility for ensuring repayment of outstanding debt on behalf of all of appellants - His acknowledgements of liability were not made solely on behalf of corporate appellants - K used terms such as “my facilities” and “my companies” - K had not differentiated himself from corporate appellants at any stage - Tone and content of K’s communications indicated he was speaking both for himself and “his” companies – Appeal dismissed.
Miriau v R [2024] NZCA 630
Unsuccessful application by M for leave to bring a second appeal against his sentence of four years and 11 months imprisonment after pleading guilty to a charge of importing 44.4 kg of methamphetamine - M’s role was relatively confined, he communicated with freight company regarding consignment; completed documents required for consignment’s importation and paid fees of freight company - Quantity involved put offending in band five of Zhang - Judge assessed M’s role as falling between “lesser” and “significant” - Judge adopted a starting point of 11 years imprisonment and made deductions for mitigating factors totalling 55 per cent -
Sentencing judges understand starting points identified in Zhang were guidelines, capable of being displaced in appropriate circumstances - Lower courts had analysed M’s role - M persisted in his offending after learning he was participating in importation of illegal drugs, with no extenuating circumstances such as gullibility - Generous reductions for mitigating factors - No realistic prospect of Court concluding M’s end sentence was manifestly excessive - Application dismissed.
Jindal v Darawalla [2024] NZCA 685
Unsuccessful appeal by J against HC decision striking out his claim of defamation against D on the grounds of absolute privilege – D had contacted New Zealand Law Society (NZLS) regarding J’s application for admission as a barrister and solicitor – Correspondence related to J’s prior history as director of a business that went into liquidation and his conduct - NZLS refused to issue certificate of character – HC held NZLS in issuing the Certificate was acting in a quasi-judicial function - Imposition of absolute privilege necessary to protect NZLS in discharging its statutory function to protect the public interest –
When investigating whether to issue a certificate of character, NZLS was not acting as a tribunal or other authority with characteristics similar to a court of law – It had an investigatory role rather than one in which had a duty to act judicially - That meant it did not have the protection of absolute privilege under Defamation Act 1992 – NZLS’ role was part of judicial proceedings in HC, namely a candidate’s application for admission as a barrister and solicitor - Communications made to NZLS as part of its enquiries were evidence brought into existence for the purpose of a judicial proceeding - Public interest in the need for free and frank testimony of a person’s character for the purposes of admission to HC was as comparably strong as in NZLS’ disciplinary jurisdiction and should be appropriately recognised – Appeal dismissed.
Smith v Attorney-General [2024] NZCA 692
Unsuccessful appeal by S against CA decision which struck out some of his claims as untenable against the Crown’s regulatory response to climate change presented - S alleged sites of special cultural, historical and spiritual significance to his iwi had already been impacted or would be by climate change - S said NZ’s legislative framework was inadequate and those he represented would be deprived of their right to life and culture under the New Zealand Bill of Rights Act 1990 (NZBORA) - S also alleged the inadequate legislative framework breached the Treaty of Waitangi, a fiduciary duty and/or a novel common law duty –
Not clearly untenable that the right to life included a right to a minimum baseline as to the quality of one’s life and was engaged in the context of the potential impacts of climate change - Legislative framework was comprehensive, pleaded gaps were not of a kind that could constitute a failure to take positive steps to protect against the denial of the risk to life or culture under NZBORA – Not clearly untenable that climate change may give rise to a positive obligation on the Crown to protect against a denial of the right to culture under NZBORA - It was not damage to the whenua or sites of cultural significance that could give rise to any such obligation - Breach of the Treaty clearly untenable because Climate Change Response Act 2002 (“CCRA”) and other relevant Acts gave effect to the Crown’s obligations under the Treaty - Claimed fiduciary duty (to perform the commitments undertaken in the Treaty, to take active steps to ensure those commitments were honoured and to act in good faith) was unlike specific fiduciary duties that could arise between the Crown and certain Māori as a result of particular dealings between them – Appeal dismissed.
The Environmental Law Initiative v Director-General, Ministry For Primary Industries [2024] NZHC 3824 (13 December 2024) Gwyn J
Partly successful judicial review of government departments’ and responsible Ministers’ decisions under Fisheries Act 1996, Wildlife Act 1953 (WLA) and Marine Mammals Protection Act 1978 (MMPA) relating to protection and conservation of marine wildlife and marine mammals –
HC said Director-General for Primary Industries failed to carry out assessment under s 294 Fisheries Act before contracting out statutory functions; DOC's policy that receipt of non-fish or protected species reports from commercial fishers adequate to meet reporting requirements under ss 63, 63A and 63B WLA and ss 9 and 16 MMPA unlawful; Director-General of Conservation's failure to present population management plans (PMPs) to Minister under s 141 WLA and s 3H(l) MMPA unlawful; and s 14G(a) WLA and s 3F(a) MMPA did not preclude PMPs from including allowable level of fishing-related mortality when threatened species could not achieve non-threatened status with 20 years.
Re Application for Orders recognising Customary Marine Title and Protected Customary Rights [2024] NZHC 3745 (10 December 2024) Gwyn J
Interim judgment re Customary Marine Title (CMT) orders under Marine and Coastal Area (Takutai Moana) Act 2011 to seven applicants in Northern Wairarapa coast, from southern bank of Whareama River to Ouepoto in north – All CMT orders from mean high-water springs (MHWS) out to five kms at sea – Representation and mandate issues addressed – Some CMT orders on basis of shared exclusivity – Commercial fishing did not constitute "substantial interruption" of applicants' customary rights –
Judgment on interim basis – Protected customary rights and effect of Combined Marine and Coastal Area (Takutai Moana) Act 2011 proceedings [2024] NZSC 164 to be addressed in separate judgment.
Te Rūnanga O Ngāti Whātua and anor v Auckland Council and ors [2024] NZHC 3794 (19 December 2024) Whata J
Concerned two appeals from Te Rūnanga o Ngāti Whātua and Royal Forest and Bird Protection Society of New Zealand Inc against Environment Court – Interim decision indicating consent for large new landfill in Wayby Valley might be approved – Based on satisfaction specified effects management measures would adequately address key effects – Also application by Ngāti Manuhiri to strike out Te Rūnanga appeal –
Te Rūnanga Environment Court: wrong about who held mana whenua regarding site; failed to rule on relative strength in accordance with Ngāti Maru; and should have, but failed, to treat Ngāti Whātua’s tikanga position as cultural bottom line given that cl E3.3(5) Auckland Unitary Plan (AUP) required significant adverse effects on mana whenua values to be avoided – Te Rūnanga also said Court should have rejected application because of inadequacy of alternative site assessment – Te Rūnanga claimed inadequate regard given to Waste Minimisation Act 2008 and Waste Minimisation Plan –
HC said key factual findings about mana whenua rohe available to Environment Court, including Ngāti Manuhiri had more intimate relationship with Landfill site – Would have been better for Court to overtly apply Ngāti Maru three pronged approach to strength of relationship issues for transparency and cogency – Even so, Court satisfied Environment Court adequately addressed relevant matters – Environment Court gave close attention to mana whenua values of Ngāti Whātua, Te Uri o Hau and Ngāti Whātua Ōrākei – Regarding tikanga bottom lines, in present case, major obstacle to finding that tikanga of particular iwi cultural bottom line because, among other things, all affected iwi and hapū might legitimately claim tikanga position bottom line – Required was process of reconciliation and balancing, having regard to several factors including strength of relationship while also recognising, as far as possible, relational interests and responsibilities of all mana whenua – Environment Court’s approach to alternative sites and waste minimisation not obviously flawed – Also, appeal premature because Court did not make any final findings on whether proposed activity effects could be managed appropriately and regarding key freshwater effects, to no material harm level –
Key feature of Forest and Bird appeal that Environment Court failed to apply directive NPS-FM “avoid” policies as bottom lines, adopting “pragmatic and proportional”, as well as “holistic” approach to assessment of effects and interpreting “avoid” policies – Also said Court’s “no material harm” approach to “avoid” requirement flawed – Court also said to have erred because interpreted Policy E13.3 as relating to only discharge effects when expressly required effects of new landfills to be avoided –
HC said “pragmatic and proportional” approach was not “overall judgment” or “blender” approach – Rather, Court employed appropriate balancing approach commensurate with purposes of NPS-FM policies – However, Court wrong to find only policies relating to mauri were bottom lines – Exceptions pathway approach (as per East West Link) appropriate regarding NPS-FM “avoid” policies – To identify criteria for exceptions pathway, structured balancing mandated, making necessary to take into account AUP policies recognising infrastructure and mana whenua values – In any event, because Environment Court adopted no material harm approach, “bottom line error” not material to outcome – Further appeal also premature for many of same reasons as Te Rūnanga appeal – “Material harm” appropriate standard for “avoid” policies – SC endorsed no material harm as valid measure of “avoid” – Whether no material harm arose, including by reason of offset, matter for Court as expert trier of fact – Whether right or wrong could not sensibly be assessed in this Court (if at all) until final findings about scale of such effects – Policy E13.3, when read in context, did not require all effects of new landfills to be avoided – Reading advanced by Forest and Bird would cut across scheme of AUP – Appeals and strikeout application dismissed.
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