New Zealand Supreme Court

Self-represented litigant, judicial review, security for costs

Deliu v Attorney-General [2024] NZSC 108 (6 September 2024)

Unsuccessful leave application – Self-represented D applied for leave to appeal from CA decision declining application for review of Deputy Registrar’s decision not to waive security for costs – Security related to D’s appeal from HC decision declining judicial review claim –

HC judicial claim challenged actions of prosecutors at Auckland Crown Solicitor’s office regarding two charges of attempting to pervert course of justice – HC decided claim had no merit –

SC said CA applied principles SC previously set out – D’s challenge is to application of those principles to particular facts – Novelty of underlying appeal did not alter that – No question of general or public importance arose – No appearance of miscarriage of justice – Application declined.

Self-represented litigant, judgment recall

Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants [2024] NZSC 109 (6 September 2024)

Unsuccessful recall application – On 22 April 2024, SC dismissed self-represented D’s application for leave to appeal from CA judgment – D then sought to file second leave application –

SC said correct procedure to apply for recall – Application largely reprised same arguments in first leave application – application dismissed.

New Zealand Court of Appeal

Insurance, breach of contract, extent of damage

Moorhouse Commercial Park Ltd v Vero Insurance New Zealand Ltd [2024] NZCA 415

Unsuccessful appeal by Moorhouse Commercial Park Ltd against HC decision largely dismissing its claim for breach of contract against Vero Insurance New Zealand Ltd - Moorhouse claimed under its insurance policy for damage to its buildings caused by Canterbury earthquakes - HC dismissed Moorhouse’s claims that the damage to its buildings had been more extensive than Vero had accepted -

Moorhouse had not discharged the burden of proof in respect of the alleged additional damage to the buildings – HC had not erred in its findings in relation to the specific repair scopes that were challenged by Moorhouse – The insured’s entitlement was based on the cost of reinstating the damaged property, less an allowance for depreciation and deferred maintenance - Depreciation was referring to the physical life of the property, or part of a property in issue not the market value -  A building consent was not required for Vero’s repair scope.

Criminal sentence, three strikes, mandatory maximum sentence, arbitrary detention

Attorney-General v Fitzgerald [2024] NZCA 419 REDACTED

Successful appeal by Attorney-General against HC decision which held the Crown prosecutor was liable for the breach of F’s right not to be subjected to torture or cruel treatment under s9 New Zealand Bill of Rights Act 1990 and awarded damages - F was prosecuted for indecent assault - Third strike under the three strikes regime - Sentencing Judge imposed the maximum penalty, being seven years' imprisonment - SC held that the term breached F’s right under s9 - A rights-consistent interpretation of three strikes meant it should be read as subject to the proviso that the maximum sentence should not be imposed if it would breach s9 -

Sentence ultimately imposed, and the corresponding breach of F’s rights, was the act of the sentencing Judge, not the prosecutor - Once the charge had been laid, it was open to the sentencing Judge to not sentence F to the maximum term, in accordance with the approach taken by the SC - Prosecutor could not be liable for the breach of F’s rights as a result of the sentence imposed by the sentencing Judge.

Sexual offending, Crown appeal against dismissal of charges – login required

[R] v S [2024] NZCA 416

Misrepresentation, common mistake, property purchase

Watson v Zhou [2024] NZCA 417

Successful appeal by W against HC decision upholding Z’s claims for common mistake and breach of contractual warranty - Z cross-appealed HC’s conclusion there was no oral misrepresentation and aspects of the findings for breach of contractual warranty -

HC erred in finding that there was a common mistake that the property was sound and did not leak – In the contractual context, the mistake must be more specific before the Contract and Commercial Law Act 2017 could apply - The alternative appeal ground relating to quantum is irrelevant given these findings -

Z’s cross-appeal was allowed in part - Claim for an oral misrepresentation was not made out - Insufficient evidence to prove, on the balance of probabilities, that W made the alleged statement - Even if such a statement had been made, there would have been an issue of reasonable reliance in these circumstances – Z was entitled to an award of damages representing the cost of repairing the damage caused by the water ingress resulting from a failure of the building work to meet the requirements of the Building Code.

Sale and purchase, contractual warranties, misrepresentation, damages

OHL Ltd v Premier Property Developments [2024] NZCA 422

Successful appeal by OHL Ltd (OHL) against HC decision which rejected OHL’s Fair Trading Act 1986 (FTA) claim for misrepresentation but held that Premier Property Developments (Premier) was liable to OHL for breach of warranty - However, OHL had unreasonably refused Premier’s offer of a rent guarantee which was a reasonable mitigation measure - Refusal eliminated any loss arising from the breach - Premier was entitled to recover the retention - Sale and purchase agreement -

Premier was liable under the FTA - The Information Memorandum, coupled with the partial and incorrect disclosure that a tenant was paying reduced rental when it was not paying any rent at all, was misleading and deceptive - Premier’s conduct was an operating cause of OHL’s loss - OHL’s conduct was not another operating cause of its loss - Premier was liable for breaches of contractual warranties - Premier’s implicit consent to, and waiver of, the tenant’s obligation to pay any rent without written disclosure was a breach - OHL suffered loss in the value of the unit. 

New Zealand High Court

Sentencing, attempted murder

R v Murphy [2024] NZHC 2534 (5 September 2024) Jagose J

Sentencing – M pleaded guilty to attempting to murder his mother – Plea followed indication “Court would be likely to sentence you to imprisonment for period of no more than two years and six months” – Comprised 25 per cent deduction for guilty plea from starting point of 40 months’ imprisonment – Starting point consistent with cases of comparable offending – Aggravating factor deliberate intervention to end life of vulnerable person already receiving medical treatment – Discounts for guilty plea, previous good character (reduced due to history of family violence) and remorse – Short-term sentence of 22 months' imprisonment – End sentence 11 months' home detention.