New Zealand Law Society - Courts roundup 19 September - 25 September 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Lassnig v Zhou [2024] NZSC 116 (17 September 2024)
Successful leave application – Approved question whether CA correct in analysis under s 182 Family Proceedings Act 1980 – Application allowed.
Beca Carter Hollings & Ferner v Wellington City Council [2024] NZSC 117 (18 September 2024)
Unsuccessful appeal – Concerned limitation periods in claims for contribution relating to building work and, specifically, meaning and scope of s 393(2) Building Act 2004 – Section 393(2) described as “longstop” limitation, prevented person from bringing “civil proceedings relating to building work” 10 years after “the date of the act or omission” on which those civil proceedings based –
In August 2019, BNZ sued Wellington City Council (Council), seeking damages relating to building irreparably damaged in 2016 Kaikōura earthquake – Alleged Council negligent issuing certain consents and approvals for building – Council denied liability –
In September 2019 Council filed proceedings claiming against Beca Carter Hollings & Ferner Ltd (Beca) for contribution as joint tortfeasor under s 17(1)(c) Law Reform Act 1936 (among other matters), if Council found liable to BNZ – Claim alleged Beca negligent issuing certain statements between 2007 and 2008 on which Council relied to make decisions relating to relevant consents and approvals –
Beca applied for Council’s claim to be struck out, saying due to s 393(2) longstop, Council out of time to bring claim, given it had been over 10 years since alleged negligent “act or omission” – Council said s 393(2) did not apply – Instead claim subject to s 34 Limitation Act 2010 – Section 34 provided two-year limitation period for contribution claims, but did not begin until Council found liable to BNZ – If s 34 (or its predecessor) applied, Council’s claim against Beca in time –
HC dismissed Beca’s strike-out application, saying Council’s claim not covered by s 393(2) longstop, rather s 34 Limitation Act 2010 applied – CA agreed –
SC majority dismissed Beca’s appeal – Said appeal involved contest between two strongly-worded statutory exceptions – Key issue whether ordinary words of s 393(2) meant that section intended to override long-established rights relating to contribution claims as reflected in s 34 Limitation Act 2010 (or its predecessor), or whether sections could be reconciled –
Said if s 393(2) intended to override special regime which existed for contribution claims, legislation needed to expressly make that clear – As it did not do so, majority found that limitation period governing building work contribution claims was s 34 Limitation Act 2010 or Act’s predecessor – Majority relied on, among other matters, unique features of contribution claims; domestic case law and case law from comparable jurisdictions; legislative history of treatment of contribution claims; relevant Law Commission | Te Aka Matua o te Ture (Law Commission) reports; and unfairness that would arise under Beca’s interpretation – Appeal dismissed.
Ford v R [2024] NZSC 118 (18 September 2024)
Unsuccessful leave application – F and two other Mongols gang members visited G, Road Knights gang member – Brought shotgun, intending to intimidate G – Plan went awry – G attacked them physically and drove them off his property – During counterattack, G received gunshot wound to hip – Police search of grounds later turned up broken machete –
F and co-defendant tried and convicted for wounding with intent to cause grievous bodily harm (GBH) – G refused to give evidence; F and co-defendants elected not to do so – No evidential interviews to police – F did sign statement suggesting machete caused two thin wounds to torso – Sole witness who saw incident did not see machete in G’s hands – Forensic evidence did not link machete to F –
DC judge refused to leave self-defence to jury – Did not think plausible and credible narrative to allow self-defence to be placed before jury, for any defendant – CA agreed –
SC said leave criteria not made out – Well-established principles relating to foundation for self-defence to be put to jury did not require Court reconsideration – No matter of general or public importance accordingly arose – No realistic prospect of SC concluding Courts below misapplied those principles on facts to give rise to miscarriage of justice – Application dismissed.
Whakatōhea Kotahitanga Waka (Edwards) and ors v Ngāti Ira O Waiōweka, Ngāti Patumoana, Ngāti Ruatākenga And Ngāi Tamahaua (Te Kāhui Takutai Moana O Ngā Whānau Me Ngā Hapū O Te Whakatōhea) [2024] NZSC 119 (20 September 2024)
Successful prospective costs application – Concerned application for prospective costs order (PCO) against Crown, by Te Kāhui Takutai Moana o Ngā Whānau me Ngā Hapū o Te Whakatōhea (Te Kāhui) – PCO sought would require Crown to pay costs in advance of merits of appeal being determined – PCO could be made only in exceptional circumstances where necessary in interests of justice – Issue is whether test met here –
Te Kāhui group of four hapū who, along with several others, bringing appeals to SC concerning recognition of customary marine title (CMT) and protected customary rights (PCRs) under Marine and Coastal Area (Takutai Moana) Act 2011 (Act) – Appeals to be heard in November and for first time SC would consider Act’s interpretation and application – Crown was only interested party in Courts below – Had now appealed in its own right, challenging CA approach to CMT and PCRs –
In 2013, Takutai Moana Financial Assistance Scheme established to support applicant groups with cost of seeking recognition of their customary rights under Act – Funding only partial contribution, which Waitangi Tribunal said breached Crown’s duty of active protection under Treaty of Waitangi – Scheme revised in 2022 to provide full, uncapped funding for actual and reasonable court costs –
Shortly after SC granted applicants leave to appeal in April 2024, Crown advised HC Cabinet had not approved additional funding for hearings in that Court scheduled in 2024/2025 financial year (or for subsequent years) – Te Kāhui sought assurance from Crown Law | Te Tari Ture o te Karauna, Crown would cover actual and reasonable costs of Māori claimants in SC appeals – No full funding assurance given –
On 5 July 2024, after November fixture set down in SC, Te Arawhiti | Office for Māori-Crown Relations issued pānui to all CMT and PCR applicants advising from 1 July 2024 all applicants would have to work to budgeted work plan agreed to by Te Arawhiti before funding provided, with reduced funding levels and funding caps for appeals of $30,000 per applicant – On 12 July 2024, responding to pānui, Te Kāhui filed PCO application –
SC unanimously granted PCO of $97,500 in favour of Te Kāhui – After surveying current approach to PCOs in New Zealand and approach taken overseas, SC said granting PCO for advance costs in public-interest litigation exceptional and would depend on being necessary in interests of justice – Application allowed.
Peng v Knight Investments Ltd [2024] NZCA 463
Unsuccessful appeal by P against HC decision which granted Knight summary judgment application for specific performance of a sale and purchase agreement - P failed to settle purchases - Discussion of principles governing summary judgment application - Whether HC erred in concluding P had no defence and in determining that specific performance was the appropriate remedy -
HC had not erred in its approach to summary judgment - Once Knight discharged initial burden to establish its contractual entitlement, evidential onus shifted to P to demonstrate a tenable defence – P had to provide evidence of his financial position in support of his defence of impossibility – Knight did not have to anticipate what defence P might raise but rather to provide evidence in support of its claim - HC correctly concluded P’s evidence fell short of establishing there was substantial probability P would be unable to comply with an order for specific performance - Knight had contractual entitlement to seek specific performance on P’s default.
Woodgate Ltd v Palmerston North City Council [2024] NCA 465
Unsuccessful appeal against High Court decision which dismissed judicial review application - Palmerston North City Council obtained order in Environment Court (EC) under s86D Resource Management Act 1991 that its proposed Plan Change G was to have immediate effect – Plan Change imposed more onerous obligations on appellants in relation to its proposed development - Appellants claimed Council required to consult with them before notifying Plan Change but had failed to consult with people authorised to represent them – HC held that, even if the parties had established an error by Council in relation to its consultation with the parties, it would not have been appropriate to set aside EC decision - Court could only grant that relief if EC decision was flawed –
Any failure by the Council to consult was overtaken by the hearing before the Panel, at which appellants were able to make submissions on Plan Change – Principles of consultation concerned with ensuring that parties affected by local authority decision-making are provided with the information needed to understand and comment on the issues - They did not require a formal process or any particular form of process - All that was required was a process that was effective for the parties – Obligation to ensure appellants were sufficiently informed did not require the Council to identify a properly authorised representative – Appeal dismissed.
Tiller v R [2024] NZCA 467
Unsuccessful application by Tiller (T) to bring a second appeal against refusal to grant application for a discharge without conviction, on basis appeal was in the public interest – T pleaded guilty to contravening a protection order (x2) and resisting arrest –
Leave to bring a second appeal should not be granted - The considerations in each case must be evaluated by reference to the relevant circumstances, meaning that each application will be dependent on its own facts - No matter of public importance arose because discharges without conviction were granted in other cases - Lower Courts had properly applied the established principles - No apparent error in lower Courts’ conclusions that consequences of convictions were not out of proportion with the gravity of offending - Miscarriage of justice had not occurred.
Brackenridge v R [2024] NZCA 462
Successful application to adduce further evidence - Unsuccessful application for leave to withdraw notice of abandonment of appeal - Brackenridge was sentenced to life imprisonment with a ten-year minimum period of imprisonment (MPI) for the murder of his mother - He filed an appeal against conviction and sentence, but formally abandoned both appeals -
The application to adduce further evidence on appeal should be granted – It was appropriate to take into account the psychiatric report as it provided a current assessment of Brackenridge’s psychiatric state - Leave was also granted at the hearing to file a report of Brackenridge’s attendance at drug treatment programme - Application for leave to withdraw the notice of abandonment should not be granted - Decision to abandon the appeals was an informed choice - Separate legal advice obtained - Evidence showed advice encompassed conviction and sentence appeals – Case did not meet the high threshold of exceptional circumstances justifying a grant of leave.
Commissioners for His Majesty’s Revenue and Customs v Professional Game Match Officials Ltd [2024] UKSC 29 (16 September 2024)
Unsuccessful appeal from CA – Considered employment status of part-time football referees to determine way match fees paid to them should be treated for income tax and National Insurance purposes –
Professional Game Match Officials Ltd (PGOML) provided referees and other match officials for most significant football competitions – Football Association Limited (FA) classified match officials, highest being Level 1 – PGMOL primarily responsible for training and provision of Level 1 referees – Two Level 1 sub-sets, one being “National Group” comprising those who referee in spare time and who usually had other full-time employment or occupations – Primarily officiated at Championship League and FA Cup matches –
Appeal concerned National Group referees’ employment status in 2014-2015 and 2015-2016 tax years – During period, referees appointed to National Group annually – Required to pass fitness test and attend introductory seminar – PGMOL also operated disciplinary procedures and breach of match day procedures might result in PGMOL taking disciplinary action against referee –
System for engaging referees in National Group involved match appointments offered to referees via software system – Appointment for weekend game was usually offered on preceding Monday – Referee could refuse appointment but PGMOL would typically want to know reason for refusal – Once referee accepted appointment, he or she could back out before arriving at ground on match day, but would generally only do so because of injury, illness or work commitments – PGMOL could likewise make changes after match appointment accepted – When referee accepted PGMOL match appointment offer, contract formed under which referee agreed to officiate and submit match report and PGMOL agreed to pay appropriate fee – If referee did not attend match, contract fell away, without any sanction being imposed and no match fee payable –
Underlying question in appeal whether individual contracts were employment contracts – Before tribunals below and CA, key issues whether two key elements for establishing employment contract present: (i) mutual obligations of employee (to provide personal service) and employer (to pay for those services) and (ii) sufficient degree of control by employer over employee –
First-tier Tribunal (FTT) ruled for PGMOL, saying contracts not employment contracts because: (i) insufficient mutuality of obligations between PGMOL and referees; and (ii) PGMOL had insufficient control over referees under contracts – Although Upper Tribunal said FTT misapplied law on control, dismissed HMRC’s appeal, saying insufficient mutuality of obligation – CA allowed HMRC’s appeal regarding mutuality and remitted case to FTT to re-consider mutuality issues, using original fact findings – PGMOL appealed to SC on mutuality of obligation and control issues –
SC unanimously dismissed PGMOL’s appeal, saying minimum requirements of mutuality of obligation and control necessary for employment contract National Group referees and PGMOL satisfied for contracts – Because minimum requirements met, SC remitted case to FTT to decide whether, in light all relevant circumstances, individual contracts were employment contracts – Appeal dismissed.
UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30 (18 September 2024)
Unsuccessful appeal from CA – In 2021 appellant, RusChemAlliance LLC (RusChem), Russian company, entered into two contracts with German companies to construct gas processing plants in Russia, under which RusChem made advance payments of around €2 billion – German construction companies’ obligations guaranteed by bonds payable on demand, some from UniCredit Bank GmbH (UniCredit) – Bonds said governed by English law and any dispute to be referred to arbitration in Paris –
Following Russia invading Ukraine in February 2022, European Union imposed sanctions on Russia – German companies said sanctions meant they could not perform construction contracts – RusChem terminated contracts and requested advance payments back – Companies said sanctions prohibited them from repaying these sums – RusChem then demanded payment from UniCredit under bonds – Holders refused for same reason –
RusChem began proceedings against UniCredit in Russia claiming payment under bonds – UniCredit applied to Russian court to dismiss RusChem’s claim saying parties agreed to arbitrate disputes in Paris, but application refused – UniCredit applied to English court for injunction to restrain RusChem from continuing Russian proceedings – RusChem disputed English court jurisdiction to hear claim –
To establish English court had jurisdiction to hear claim for “anti-suit” injunction, UniCredit had to show (a) claim fell within cases where permissible to sue defendant located abroad and (b) England and Wales proper place to bring claim – On first point, UniCredit contended claim fell within category where claim made in respect of contract governed by English law –
HC said English court did not have jurisdiction to hear claim – On appeal, CA reversed decision, saying English court had jurisdiction because (a) claim in respect of arbitration agreements in bonds, which were contracts governed by English law and (b) England and Wales proper place to bring claim – CA granted final injunction ordering RusChem to discontinue Russian proceedings – RusChem appealed to SC on jurisdiction issue –
Referring to previous case SC said, among other things, correct bond interpretation straightforward that, in accordance with general rule, choice of English law to govern bonds reasonably understood to apply to arbitration agreements forming part of bonds – CA right to say arbitration agreements in bonds are contracts governed by English law – Appeal dismissed.
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