New Zealand Law Society - Courts roundup 4 July - 10 July 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Whittington v UDC Finance Ltd [2024] NZSC 74 (3 July 2024)
Unsuccessful recall application – Self-represented W sought recall of SC judgment of 27 August 2021 declining to grant stay of bankruptcy adjudication – Also sought stay of HC order of 25 March 2021 adjudicating him bankrupt – Second recall application, earlier application having been dismissed on 10 September 2021 – Nothing new put forward – Delay in this application significant – Would largely reprise previously expressed concerns – Application dismissed.
[P] v R [2024] NZCA 281
[W] v R [2024] NZCA 286
Turner v Goldsbury [2024] NZCA 292
Successful appeal against HC decision – Successful application to adduce fresh evidence - The appellants, respondents, and the Wardlaws were owners of a property subject to a cross-lease - Property had four dwellings: the appellants “owned” the dwelling at the front; the Wardlaws the dwelling immediately behind the appellants; and the respondents the two dwellings to the right of the Wardlaws - Appellants property was in a poor state and at risk of coastal flooding – Appellants wish to replace it with a new dwelling - Terms of the cross lease required the consent of the other lessees which could not be unreasonably withheld - The Wardlaws consented to a plan prepared by the appellants for a replacement building with a larger footprint, but the respondents did not - Appellants twice unsuccessfully arbitrated the matter - Prepared a new plan with a smaller footprint, although still larger than the original dwelling, but were again unable to obtain consent from the respondents - Neighbourly relations deteriorated to the point where the appellants felt unable to deal with the respondents - Appellants, alongside the Wardlaws, applied for a partition order in respect of the cross-lease - Application dismissed in the HC - HELD: Most just and practical way through the impasse was a partition order subject to conditions - Respondents had adopted a position of general intransigence - Appeal allowed – HC decision and costs order set aside - Case remitted back to the HC for determination of the appropriate order for the division of the property and to reassess costs in light of this judgment.
Datt v R [2024] NZCA 297
Appeal against the DC decision declining an application for a discharge without conviction, the appellant having been found guilty after a five-day jury trial of one charge of doing an indecent act upon a child - Whether a likelihood of deportation is a consequence sufficiently disproportionate to the gravity of particular offending to justify a discharge without conviction – Whether sentence and conviction manifestly excessive and unjust - HELD: Application to adduce appellants affidavit granted - Application to adduce the Safe Network Non-Mandated Adult Service Assessment Report declined - Appeal allowed - Conviction and sentence set aside - Appellant discharged without conviction.
McLean v R [2024] NZCA 298
Successful appeal seeking a reduction of sentence – Appellant sentenced to 11 years imprisonment in 2020 after a jury found him guilty of sexual violation by unlawful sexual connection (x2), indecent assault (x2), and doing an indecent act on a young person under 16 years of age (x2) – Appellant filed an appeal against conviction and sentence – Appellant abandoned his appeal against sentence and this Court dismissed his conviction appeal – CA reinstated sentence appeal in 2023 after s27 Sentencing Act 2002 report information became available – Reductions sought for personal background factors and impact of sentence on his children – Application to formally admit s27 report and solicitors’ letter of support of his historic claims of abuse while in state care as fresh evidence – HELD: Application to adduce fresh evidence is granted - Appeal allowed - Sentence of 11 years imprisonment set aside - Sentence of 9 years 10 months imprisonment imposed.
R v Coburn [2024] NZHC 1769 (27 June 2024) Peters J
Sentencing – C sentenced for manslaughter of partner T following jury trial – Starting point eight years, four months' imprisonment adopted – 15 per cent reduction for remorse and s 27 Sentencing Act 2002 factors – 15 per cent reduction for offer to plead to manslaughter before trial – End sentence five years, 10 months’ imprisonment imposed with MPI three years.
R v Richardson [2024] NZHC 1795 (3 July 2024) Mander J
Sentencing – R sentenced following jury trial – Sentenced for manslaughter of H – During argument, R stabbed H who was sitting in car driver's seat – Jury rejected claim H stabbed himself – Starting point seven years six months' imprisonment – 15 per cent discount for youth, absence of prior convictions and effect of incarceration on defendant's young child – 15 per cent discount for s 27 Sentencing Act 2002 factors – 12 month deduction for time spent on EM bail – Final sentence four years three months' imprisonment – No order for MPI.
R v Jordan [2024] NZHC 1810 (4 July 2024) Mander J
Sentencing – J pleaded guilty to two charges of possession for supply of Class A controlled drug cocaine – Followed significant police investigation into importation of cocaine into New Zealand from South America – J sentenced for two discrete transactions –
Starting point seven years' imprisonment; 10 per cent discount for guilty plea; 15 per cent for personal mitigating factors – End sentence five years three months' imprisonment – Forfeiture order made under s 32 Misuse of Drugs Act 1975.
R v Bonilla Casanas [2024] NZHC 1814 (4 July 2024) Mander J
Sentencing – BC pleaded guilty to representative charges of importing Class A controlled drug cocaine, attempting to import that drug and money laundering – Also sentenced on charge of participating in organised criminal group – Followed significant police investigation into importation of cocaine into New Zealand from South America –
Starting point 11 years six months' imprisonment – Uplift one year for attempted importation charge; six-month uplift for money laundering charge; 10 per cent discount for guilty plea; 37 per cent discount for personal mitigating factors – End sentence eight years two months' imprisonment; mobile devices seized during search warrant subject to destruction order.
R v Ospina [2024] NZHC 1817 (4 July 2024) Mander J
Sentencing – O pleaded guilty to representative charges of importing Class A drug cocaine, attempting to import cocaine and supplying cocaine – Also pleaded guilty to charges of offering to supply drug and participating in organised criminal group – Followed significant police investigation into importation of cocaine into New Zealand from South America –
Starting point 18 years imprisonment; adjusted to 19 years six months to take into account attempted importation; 10 per cent discount for guilty plea; five per cent discount for impact of imprisonment; 10 per cent discount for previous good background and rehabilitative potential – End sentence 14 years seven months' imprisonment; order for forfeiture of tools and other items relating to offending.
The Manchester Ship Canal Company Ltd v United Utilities Water Ltd (No 2) [2024] UKSC 22 (2 July 2024)
Successful appeal from CA – Appeal part of long-running litigation about discharge of foul water contaminated with untreated sewage into Manchester Ship Canal – SC asked to decide whether owner of canal beds and banks, Manchester Ship Canal Company Ltd (Canal Company), could bring nuisance or trespass claim when foul water discharge polluted canal – Discharge from outfalls maintained by statutory sewerage undertaker, United Utilities Water Ltd (United Utilities) –
United Utilities statutory sewerage undertaker for North West England – Sewerage network included around 100 outfalls from which material emanating from sewers, sewage treatment works and pumping stations discharged into canal – When system’s capacity is exceeded, some discharge of foul water into canal – No suggestion United Utilities negligence or deliberate wrongdoing caused polluting discharges – However, discharges could be avoided if United Utilities invested in improved infrastructure and treatment processes –
HC agreed to make declaration – CA upheld decision – Judgments' implication that no owner of canal (or other watercourse or body of water) could bring nuisance or trespass claim against sewerage undertaker regarding polluting discharges into water, unless sewerage undertaker guilty of negligence or deliberate wrongdoing – Claim would be prevented even if polluting discharges frequent and had significant and damaging effects on owner’s commercial or other interests, or on ability to enjoy its property – Canal Company appealed to SC –
SC unanimously allowed appeal – Said Water Industry Act 1991 did not prevent Canal Company from bringing nuisance or trespass claim when canal polluted by foul water discharges from United Utilities’ outfalls, even if no negligence or deliberate misconduct – Appeal allowed.