New Zealand Law Society - Courts roundup 21 November - 27 November 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Deliu v Attorney-General [2024] NZSC 159 (22 November 2024)
Unsuccessful recall application – Self-represented D moved for recall of SC decision of 1 November 2024 declining leave to appeal, saying Court did not give reasons for decision –
SC said permitted to give brief reasons for declining leave – Did so at [11] of judgment – SC considered reasons given adequate – Application declined – Registrar directed not to accept for filing any further recall applications relating to matter.
[R] v X [2024] NZCA 603
[J] v R [2024] NZCA 605
[P] v R [2024] NZCA 611
[H] v G [2024] NZCA 615
Wikeley v Kea Investments Ltd [2024] NZCA 609
Partially successful appeal by W against decision which held Coal Agreement was a forgery and Kentucky Default Judgment obtained against Kea was obtained by fraud – In NZ proceedings Kea alleged conspiracy against W and sought anti-suit and anti-enforcement injunctions to restrain W from enforcing the judgment -
Court satisfied on comity grounds that permanent injunctions should be discharged – HC had jurisdiction - NZ was appropriate forum - Kentucky Default Judgment only part of alleged conspiracy and did not define the jurisdictional limits - Kea’s claim concerned parties who were not parties to the Kentucky proceedings – Nor was the jurisdiction clause in the Coal Agreement determinative – Most significant elements of the conspiracy took part in NZ or the general rule in s8 Private International Law (Choice of Law in Tort) Act 2017 was appropriately displaced (general rule is that the applicable law was the law of the country in which the events constituting the tort in question occurred) – It was not appropriate in international comity terms to grant the anti-suit and anti-enforcement injunctions - International comity required that a NZ court should be extremely cautious before deciding there was a sufficiently real risk that justice would not be done by a foreign court to warrant imposition of anti-suit and/or anti-enforcement injunctions.
Crown Finance Ltd v Crown Asia Pacific Group Ltd [2024] NZCA 614
Successful appeal by CFL against HC finding it was liable to MGL and HDL on breach of fiduciary cause of action - Successful appeal by VIC against finding it was liable to MGL and HDL on dishonest assistance cause of action – MGL entered into sale agreement conditional on financing – CFL was a second tier finance company, it was approached to provide finance for the acquisition and subsequent commercial development - VIC (a related company to CFL) made an unconditional offer to purchase property on the same terms – VIC undertook significant commercial and residential development, making significant profits -
Judge erred in finding CFL liable for breach of fiduciary duty – No overarching mutual objective of acquiring and developing the property that required the parties to subordinate their own commercial self-interests to ensure the acquisition proceeded - Both parties commercially experienced and acted with legal advice – Judge had not erred in finding CFL and VIC liable for breach of confidence - Banker/lender owed a duty of confidentiality to their customers at common law - Mezzanine financing not inherently different from more conventional lending - Circumstances in which MGL disclosed the relevant information to CFL were such that a duty of confidentiality arose - CFL made an unauthorised disclosure of the confidential information to VIC, who then exploited that information for its own purposes - No fiduciary relationship between CFL and MGL and hence no breach of fiduciary duty - Appropriate form of relief was an account of profits - Misuse of MGL’s confidential information provided a springboard that enabled VIC to make significant profits it would not otherwise have been able to make.
Bishop v Logan [2024] NZCA 596
Appeal by B against production order under s266 Companies Act 1993 and to attend before the Court for an examination - respondents were liquidators of BF7 - appellants (brothers) were shareholders of BF7 – HC found not a prerequisite to an order under s266 that liquidators establish information was in possession or control of proposed examinee before orders can be made – HC held orders were reasonably necessary to enable liquidators to file any proceedings to recover loan and information was significant -
Privacy and/or confidentiality concerns could not reasonably outweigh the liquidators’ entitlement to seek s266(2) orders which were reasonably required if liquidators were to discharge their function and duties concerning BF7’s debt showing in BF7’s books - Appeal dismissed.
R v Tutai [2024] NZHC 3499 (21 November 2024) Lang J
Sentencing – T pleaded guilty to murdering his former partner and mother of their six-year-old son – Caused victim's death by stabbing her on seven occasions after verbal altercation – Offending occurred in victim's home where other members of victim's family present, but did not witness stabbing – HC said although offending bad, did not reach level required to engage s 104(1)(e) Sentencing Act 2002 – Aggravating features meant 14 years six months MPI appropriate – 12 months discount for guilty plea with further six months discount to reflect personal factors identified in reports to Court – End sentence life imprisonment and ordered to serve 13 years before being eligible to apply for parole.
Kireeva v Bedzhamov [2024] UKSC 39 (20 November 2024)
Unsuccessful appeal from CA – Issue in appeal is effect, if any, “immovables rule” had on trustee in bankruptcy appointed in foreign bankruptcy claim to immovable property situated in England –
Long established principle in England and Wales that questions regarding rights to and interests in land and other immovable property governed by law of country where property situated – Known as “immovables rule” –
Issue arose regarding property B owned in London (Property) – B Russian citizen who left Russia in 2015 and not lived there since – In 2018, Russian court declared B bankrupt and appointed K trustee of B’s bankruptcy estate – As matter of Russian law, Property formed part of B’s bankruptcy estate – K under duty to take control of and sell Property – Issue whether, as matter of English law, immovables rule prevented K from claiming Property and from obtaining assistance from English court to do so –
As well as seeking recognition of right to take control of Property, K also applied to set aside previous court order made as part of separate legal proceedings allowing B to charge his interest in Property in favour of his solicitors (Set Aside Application) – HC said immovables rule meant English law did not recognise K as having any claim to Property – HC also dismissed K’s Set Aside Application – CA majority upheld HC decision – K appealed to SC on both points –
SC unanimously dismissed appeal – Said immovables rule prevented K from having any claim to Property and common law did not provide any assistance here – Position different in cases where legislation provided for court assistance – Appeal dismissed.
Secretary of State for the Department for Environment, Food and Rural Affairs v Public and Commercial Services Union; Commissioners for His Majesty’s Revenue and Customs v Public and Commercial Services Union; Secretary of State for the Home Department v Public and Commercial Services Union [2024] UKSC 41 (20 November 2024)
Successful union appeals from CA – Issue when trade union had right to sue as third party for breach of employment contract between employer and employee – Section 1(1)(b) and (3) Contracts (Rights of Third Parties) Act 1999 (1999 Act) established presumption that where contract term conferred benefit on third party expressly identified in contract, third party might, in its own right, enforce term – Appeal raised fundamental question concerning interpretation of s 1(2) 1999 Act which provided presumption rebutted if on proper contract construction appeared parties did not intend third party to be able to enforce term –
Respondent employers are three Government departments – Some employees, including individual claimants, members of Public and Commercial Services Union (Union) – Departments recognised Union for collective bargaining purposes – Individual claimants chose in past to have union subscriptions deducted from salary at source through pay roll system – Employer would then pay sum deducted to Union – Referred to as check-off arrangement – Check-off arrangements began in collective agreements reached between Government and trade unions in 1960s – Common ground collective agreements not legally enforceable as contained no provision to contrary as s179(1)(b) Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) required – Also common ground Union sufficiently identified as third party in individual employment contracts and check-off term conferred benefit on Union –
In 2014 and 2015, in breach of contract departments unilaterally stopped check-off arrangements, leaving employees to make own arrangements for paying union subscriptions – Individual employees brought actions against departments for breach –
However, person suffering loss was Union as withdrawing check-off arrangements led to substantial reduction in subscription income –
Union brought own claims against departments, claiming to be entitled to rely on third party right in s1 1999 Act to enforce employment contracts terms containing check-off arrangements – Both individual employees and Union succeeded against departments in three separate actions in HC – CA unanimously dismissed departments' appeals regarding individual claimants and confirmed departments’ liability – Majority allowed appeals regarding Union’s claims under 1999 Act – Majority said under s1(2), on proper construction of employment contracts, employer and employee, parties to contracts, did not intend Union to be able to enforce check-off arrangements – Union appealed to SC –
SC unanimously allowed appeal – Said employment contracts did not demonstrate parties’ joint intention that Union could not enforce check-off arrangements – Said where s1(1)(b) and (3) 1999 Act criteria satisfied, strong statutory presumption relevant term in favour of identified third party enforceable by that party – Appeal allowed.
The Court of Appeal judges have advised that LawPoints falls into the category of a Law Digest where a decision prohibits publication in news media or on the internet, but allows it in a law report or law digest. LawPoints will sometimes include information on such decisions, but lawyers will have to log in using their lawyer ID to view the decision.
Request copies of other cases and articles from the Law Society Library.