New Zealand Law Society - Courts roundup 20 February - 26 February 2025
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Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Halse v Rangiura Trust Board [2025] NZSC 1 (20 February 2025)
Unsuccessful recall application – On 24 October 2024 SC dismissed H’s application for leave to appeal – Application to recall decision dismissed on 19 December 2024 – H applied to recall recall decision –
SC said H had not identified any valid recall grounds – Application dismissed.
Reid v New Zealand Law Society [2025] NZSC 3 (21 February 2025)
Unsuccessful leave application – In February 2015 R struck off Roll of Barristers and Solicitors by Lawyers and Conveyancers Disciplinary Tribunal following conviction for smuggling contraband to serving prisoner for whom acted –
In March 2023, Tribunal dismissed R’s application to be restored to Roll – HC dismissed R’s appeal in August 2023, and declined R’s application for leave to appeal to CA – CA itself declined leave in August 2024 – R sought leave to appeal HC judgment directly to SC – Also applied for time extension to bring that application –
SC said time delay satisfactorily explained – Extension granted – Said R’s first appeal ground concerning te Tiriti o Waitangi and tikanga raised matter of arguable general and public importance in abstract only – No appearance of miscarriage of justice, as term used in civil proceedings, in HC applying relevant principles to facts here – No exceptional circumstances warranting direct appeal – Application dismissed.
W v Police [2025] NZCA 15
L v R [2025] NZCA 21
Antipodes New Zealand Ltd v Accel (HK) Company Ltd [2025] NZCA 18
Unsuccessful application by Antipodes for special leave to appeal an arbitral award to the HC on a question of law – Parties entered into a Management Services Agreement (MSA) for the promotion and sale of Antipodes’ products in China – MSA provided that any dispute arising in connection with the agreement be referred to and finally resolved by arbitration - Antipodes terminated MSA alleging a breach – Accel awarded damages and costs -
Large number of grounds sought to be advanced by Antipodes in support of its application counted against its contention there was a seriously arguable error of law in the second decision – Any such error would be readily identifiable and could more briefly be articulated and addressed – Questions of law were really questions of fact - Both were concerned with counter-factual scenarios adopted by the arbitrator in assessing compensation or damages – A question about the interpretation and application of s50 Contract and Commercial Law Act 2017 (statement, promise, or undertaking during negotiations) potentially constituted a question of law - Assuming a failure to give reasons could constitute a relevant error of law, on a straightforward reading of the Award, there was no such failure – Application declined.
Sharma v Air New Zealand Ltd [2025] NZCA 20
Unsuccessful appeal by S against a travel ban imposed for aggressive behaviour towards Air NZ staff - Company relied on art 7.1.11 Conditions of Carriage, which entitled Air NZ, in the exercise of its reasonable discretion, to refuse to carry a passenger - S alleged Air NZ had not exercised its discretion reasonably and had misrepresented her lounge access entitlements -
HC had not erred in dismissing the claim for breach of contract - It was not an investigative flaw for Air NZ not to request copies of covert recordings S had made of her interactions with frontline Air NZ staff, prior to deciding to impose the travel ban - Wording and broader context of art 7.1 indicated Air NZ’s contractual discretion was not intended to be unduly fettered by technical or complex procedural requirements - HC had not erred in dismissing the claim under the Fair Trading Act 1986 as it had not been proven - Any confusion regarding lounge access entitlements could not justify or excuse S’s conduct - No causative link between any misleading or confusing statements that may have been made by or on behalf of Air NZ regarding lounge access entitlements and the losses S allegedly suffered because of the imposition of the travel ban seven months later - Appeal dismissed.
Aitken v Judicial Conduct Commissioner [2025] NZHC 190 (18 February 2025) Isac J
Successful interim orders application – On 23 January 2025, Judicial Conduct Commissioner (Commissioner) recommended to Attorney-General to appoint Judicial Conduct Panel to inquire into matters concerning conduct of serving District Court Judge, A – On 10 February 2025, Judge A filed proceedings seeking: (a) judicial review of Commissioner’s decision and (b) interim orders Acting Attorney-General ought not appoint Judicial Conduct Panel based on Commissioner’s recommendation until Judge’s application for judicial review is determined; This judgment addressed interim orders –
HC said Court had to consider whether interim order should be granted under s15(1) Judicial Review Procedure Act 2016 – s15(1) allowed Court to make interim order prohibiting respondent from taking any further action in exercise of statutory power if, in Court’s opinion, necessary to do so to preserve applicant’s position – Required two-stage approach – First Court considered whether interim order “necessary” to preserve applicant’s position – Second, Court considered whether in its discretion appropriate to grant interim relief sought –
On first stage, HC said Judge A had position reasonably necessary to preserve – Regarding second stage, HC said relevant discretionary factors favoured granting interim order sought – HC ordered Court file and record not be accessed by any person other than party to proceeding without HC Judge’s leave, until further order – And order suppressing publication of any aspect of Commissioner’s proceedings referred to in judgment, to extent they were not already in public domain – Orders granted.
R v Carter [2025] NZHC 228 (19 February 2025) Eaton J
Sentencing – C pleaded guilty to drug driving causing death to one victim and serious injury to another and other driving and drug offences – Several aggravating factors: driving under influence of methamphetamine, cannabis and diazepam; engaged in prolonged, persistent and deliberate course of very bad driving; driving aggressive and highly dangerous; driving while distracted, sending texts and made 21 minute video call; texts recorded previously crashed twice that morning and effectively bragging; had little sleep night before; did not hold licence and car was not registered – Driving killed one victim, being passenger of other vehicle, severely injured driver and killed pet dog – Starting point six years' imprisonment for lead drug driving causing death offence; five per cent uplift for previous driving convictions including in Australia; 15 per cent discount for guilty plea; 12.5 per cent discount for background factors and rehabilitative potential; no discount for remorse or parental incarceration; end sentence four years eight months' imprisonment; disqualified for five years; no reparation order.
El-Husseiny v Invest Bank PSC [2025] UKSC 4 (19 February 2025)
Unsuccessful appeal from CA – concerns construction of s423 Insolvency Act 1986 (IA 1986) – s423 protected creditors, providing remedies where debtor took steps to defeat or prejudice claims, entering into transaction on terms providing for debtor to receive no consideration (i.e. no payment or anything else of value) or consideration worth less than consideration debtor provided – Transactions designed for debtors to make themselves “judgment-proof” –
Here, Invest Bank PSC (Bank), obtained judgment in Abu Dhabi against EH for approximately £20 million – Bank identified valuable assets in UK against which to enforce judgment, including houses in central London or companies owning houses – Bank alleged EH arranged for assets to be transferred to other people to put assets beyond Bank’s reach or to reduce value of companies owning assets – Bank sought relief from courts under s423 – Several asset transfers included in Bank’s claim, but in order to identify and consider legal point for decision, judgment focused on one particular transfer as example – Involved transferring central London property Marquee Holdings Limited (Marquee) owned – At transfer time EH owned all Marquee shares – Alleged EH arranged with son, Z, that EH would cause Marquee to transfer property ownership to Z – Transfer took place in June 2017 – Z paid no price, whether in money or otherwise, either to Marquee or EH –
Transaction meant Marquee disposed valuable central London house without receiving any consideration in return – With Marquee stripped of its only or principal asset, value of EH’s Marquee shares either eliminated or greatly reduced, seriously prejudicing Bank’s ability to enforce its judgment against EH – Issue on this appeal whether s423 could apply to transaction like this, where debtor agreed to procure company he owned to transfer valuable company asset for no consideration or at undervalue, thereby reducing or eliminating value of his shares in company to prejudice of his creditors, or whether transaction fell outside s423 because debtor does not personally own asset –
HC Judge said fact that EH did not own relevant assets himself but instead through company he owned or controlled did not in law prevent transfer from falling within s423 scope – However, refused to allow Bank’s pleaded case to proceed on different ground, EH had not acted in personal capacity but only on behalf of Marquee – CA allowed Bank’s appeal against latter ruling – No appeal on that issue – CA dismissed cross-appeal against ruling s423 could apply where EH procured Marquee to transfer property for no consideration, rather than transferring asset which he owned – EH appealed to SC –
SC unanimously dismissed appeal – Said both language and purpose of s423 pointed clearly to conclusion “transaction” within s423(1) not confined to dealing with asset debtor owned but extended to type of transaction here – Appeal dismissed.
Nasir v Zavarco plc [2025] UKSC 5 (19 February 2025)
Unsuccessful appeal from CA – Issue in appeal whether doctrine of merger, which provided judgment determining cause of action extinguished cause of action, applied to declaratory judgment – Merger doctrine purpose to support good administration of justice, promoting litigation finality and preventing action duplication both in public and parties’ interests –
On Zavarco incorporation N subscribed to memorandum of association and became holder of 360 million Zavarco shares – N then transferred to Zavarco shares in another company which became Zavarco’s subsidiary – Dispute arose over whether N obliged to pay for 360 million shares in cash or whether transferring shares in subsidiary company amounted to good consideration –
In litigation that followed, judge granted declarations in Zavarco’s favour to effect that Zavarco shares in Zavarco N held were unpaid and Zavarco entitled under its articles of association to forfeit shares – N did not receive permission to appeal judge’s order – Zavarco then forfeited N’s shares and commenced proceedings subject of this appeal, seeking payment of shares nominal value (€36 million) as debt following judge’s declaratory judgment in first claim – Chief Master dismissed claim, saying Zavarco’s cause of action in second claim had merged with judge’s declarations in first claim and had therefore been extinguished – Zavarco appealed – HC allowed appeal, saying although no reason in principle why merger doctrine could not apply to declaration, on facts doctrine did not operate to extinguish Zavarco’s right to payment for shares – CA dismissed N’s appeal, saying merger doctrine did not apply to declarations – N appealed to SC –
SC unanimously dismissed appeal – Said merger doctrine confined to judgments involving payment of money or enforcing right of property by ordering return of property (“coercive judgments”) and therefore did not apply to declaratory judgments – Reviewing early history of merger doctrine SC said designed to make litigant seek his or her remedies in one action by extinguishing cause of action when judgment given cause of action – Had played more important role in controlling abusive litigation when means of control available to courts were significantly less than have since become – Also, merger doctrine developed and fully formed before courts adopted practice of giving purely declaratory relief – Striking that in more than century since grant of purely declaratory relief became more widespread there was no case law where doctrine applied to such relief – Appeal dismissed.
R v Bilodeau [2025] SCC 2 (19 February 2025)
Unsuccessful appeal from Alberta CA – In March 2020, B and his two sons involved in confrontation with two men – After seeing men stop in truck in front of their property, B and younger son chased them in truck, believing men to be thieves – During chase, B spoke to older son over phone about what happening and asked him to come and bring gun – When two trucks stopped at T-intersection, one victim approached B’s truck, broke window by punching it, and threw punches at B – B’s older son, who had followed in own vehicle, arrived at scene shortly after and fatally shot two victims –
At trial, jury found B guilty of two counts of manslaughter as “party” under s21(2) Criminal Code – s21(2) allowed defendant to be found guilty of offence if they shared common intent to commit unlawful act with another person, and person commits offence defendant knew or ought to have known was probable consequence of plan – B’s son convicted as “principal” of second degree murder and manslaughter – B appealed convictions, saying trial judge made mistakes in instructions to jury, including whether B formed intention in common with son to commit unlawful act –
CA majority dismissed appeal – Said while errors in jury instructions, many of them benefited B, often by imposing overly onerous burden on Crown, and could not have had any impact on verdict – B appealed to SC –
SC majority dismissed appeal – B’s conviction confirmed – Appeal dismissed.