Case Summaries 2008

N v The Queen

[2008] NZCA 196 CA 32/07 30 June 2008

Civil – Breach of fiduciary duty – Breach of duty of care – Negligence – Whether the Court of Appeal erred in finding that there was no basis to intervene to remedy a breach of a fiduciary duty – Whether the Court of Appeal was wrong to find that there is no breach of duty or negligence where a solicitor fails to provide in a contract for passing of risk where the contract provides for a passing of risk when there is a transfer of property – Whether the Court of Appeal was correct in finding that there was no breach of duty by the respondent when it failed to give advice to the appellant on the passing of risk.

[2008] NZCA 191 CA 500/07 27 June 2008

New Zealand Big Game Fishing Council Inc v Sanford Limited, Sealord Limited and others

Civil appeal – Fisheries Act 1996 – statutory interpretation issues arising from review of Minister of Fisheries’ exercise of statutory power to fix the Total Allowable Catch (TAC) and Total Allowable Commercial Catch (TACC) – interpretation of the relationship between s 8 (providing that purpose of Act is to provide for utilisation of fisheries resources while ensuring sustainability) and s 21 (providing for matters which the Minister must take into account in setting the Total Allowable Catch) – specifically, whether the TAC and TACC decisions can be characterised as sustainability and utilisation decisions respectively – whether a “global approach” should be taken to the purpose provision whereby it is a guide to government policy that decision-makers are to bear in mind generally, or whether the provision contains mandatory relevant considerations to be taken into account in relation to individual decisions – how the purpose of enabling people to “provide for their social, economic and cultural wellbeing” in s 8(2) is to be interpreted – whether the common law right to fish extends to commercial fishers.
[2008] NZCA 160 CA 163/07 11 June 2008

 Qiwen Huang v The Manager of Custodial Services, Auckland Central Remand Prison

 Commerce Commission v Infratil Limited

Civil – Appeal – Trade Practices – Competition – Appropriate test for accessory liability in context of Commerce Act 1986 – Whether Court of Appeal erred in law in departing from orthodox test for accessory liability in Commerce Act context and in applying a test that required knowledge of the facts at a higher level of detail than is required by the orthodox test – Whether the Court of Appeal erred in law in treating a defendant’s belief that there was no breach of s 47 of the Commerce Act as a relevant factor in applying the orthodox test for accessory liability.

 EW  and PW  v Attorney-General

 Application for leave to appeal dismissed.
   15 August 2008

 Hawthorne v Cox

Civil appeal – costs orders – appeal from decision of the Court of Appeal to refuse leave to appeal from a decision of the High Court not to award costs in favour of the appellant who had successfully challenged a guardianship order – whether leave required when appealing a costs order originating in an appeal – whether the Court of Appeal’s decision not to award costs to the appellant was in the best interests of the child who was the subject of the guardianship order – whether counsel for the child should be immune from a cost order unless there is bad faith or clear incompetence – whether costs may be determined without the need to be heard.

[2008] NZCA 146 CA 509/07 4 June 2007

 Jonathan John Edward Belcher v The Queen

 Alisdair Bruce Aylwin v New Zealand Police

 Hearing

Deborah Gordon-Smith v The Queen

Criminal – Appeal by way of case stated – Juries Act 1981 – Challenge under New Zealand Bill of Rights Act 1990, Privacy Act 1993 and Criminal Records (Clean Slate) Act 2004 to legality and fairness of jury-vetting by Police so as to provide Prosecutor with information including, but not limited to, non-disqualifying criminal histories of persons on jury list – Jurisdiction – Leave on same grounds as King v R (SC 18/2008) sought – Jurisdiction issue relevant to King case sole reason for application for leave and to be included as a party to King case.
[2008] NZCA 79 CA 207/2007 10 April 2008

Vai Feterika v The Queen

Criminal Appeal – sentence appeal – wounding with intent to cause grievous bodily harm – whether the sentencing judge gave appropriate consideration to the applicant’s youth and the need for rehabilitation – applicant sentenced to 10 years imprisonment while the principle offender was sentenced to only five and a half years – whether disparity between the offenders is a miscarriage of justice.

[2008] NZCA 127 CA 422/07 20 May 2008

Case Name Paul Joseph Cameronv The Queen

High Court Gisborne CRN 2006 016 00325

 Criminal appeal – Evidence Act 2006 ss 28, 29 and 30 – admissibility of “scenario evidence” (evidence obtained by an investigative technique whereby police invite a suspect to participate with an undercover police officer in a constructed event designed to simulate criminal activity) – applicant made statements to undercover police officer posing as gang leader that were admitted in Court against him – whether, under s 29(4)(d), a threat, promise or representation must only be taken into account in determining whether a statement was influenced by oppression if it were made by a person in authority – further, whether evidence should be excluded for unreliability or improperly being obtained under s 28 and s 30 respectively.

 Application for leave to appeal dismissed.
   1 August 2008

Albany Tuhuru Tainui v The Queen

[2008] NZCA 119 CA 653/07 16 May 2008

Allen Louis Harriman v The Queen

Criminal – appeal against conviction and sentence – whether the Court of Appeal erred in finding various photographs, and expert evidence about the use of drug terminology, admissible – whether the Judge’s ‘expert evidence’ direction to the jury was incomplete, because it did not cover the evidence of a defence witness – whether the Judge failed to direct the jury adequately on the effect of the applicant’s partial guilty plea – whether the sentence was manifestly excessive – application for leave to appeal out of time.

[2008] NZCA 53 CA 109/07 11 March 2008

 Application for leave to appeal dismissed.
   7 August 2008

M v The Queen

Criminal – Appeal against conviction and sentence – Sexual offending – Evidence admissibility – Sentencing – Reparation – Whether, given substantial payment of reparation to complainant, Court of Appeal erred in holding sentence of five and a half years imprisonment not excessive – Whether Court of Appeal erred in holding admission of video interview evidence did not give rise to miscarriage of justice.

[2008] NZCA 112 CA 540/07 5 May 2008

 Application for leave to appeal dismissed.
   17 July 2008

I A Campbell, J Hughes and S C Biss v Craggy Range Vineyard Limited

Ester Slee v Michael Ian Slee

Civil appeal – family law – Child Support Act 1991 – departure order providing for child support – whether the judgement of the Family Court on 29 September 2005 materially changed the position as determined by its judgment of 18 August 2004 – accordingly, whether the appellant’s challenge to the retrospective effect of a departure order made by the Family Court on 18 August 2004 was out of time – whether there is an ability to extend time for appeal - if the appeal is not out of time, whether the Family Court’s assessment of the child support for the year ended 31 March 2003 was correct under the Child Support Act 1991.
[2008] NZCA 85 CA 205/07 18 April 2008

 
Application for leave to appeal dismissed. Costs $2,500 to the respondent.
 14 August 2008.

Kevin Anthony Lenaghan v The Queen

Criminal – appeal against conviction – possessing a substance with the intention of using it to produce or manufacture a controlled drug - whether the Court of Appeal erred in concluding that there was adequate evidence to support the jury’s conclusion of possession of a substance – whether the Court of Appeal erred in finding that the trial Judge gave adequate jury directions.

Mark Moncrieff Stevens and others v Premium Real Estate Limited

Civil Appeal – Breach of fiduciary duty and Fair Trading Act 1986 – Damages – Advertising and sale of residential property where absence full disclosure by agent to principal of close, ongoing commercial relationship with purchaser – Whether Court of Appeal erred in quantification of damages assessment, including whether correct measure of loss includes profit made by third party (rather than fiduciary) as result of breach of fiduciary duty.

[2008] NZCA 82 CA 31/07 11 April 2008

Carolyn Rochelle Taylor v The Queen

Criminal – Appeal against conviction on three charges of unlawful possession of airgun, assisting escape from lawful custody and kidnapping – Whether Court of Appeal erred in finding prisoner Appellant assisted to escape (AT) was in lawful custody.
[2007] NZCA 318 CA 40/07 27 July 2007

Big River Paradise Limited v Robin Lance Congreve and others

Civil Appeal - restrictive covenants – whether the Court of Appeal erred in concluding that the applicant’s proposed development would be a subdivision for the purpose of a restrictive covenant - whether the word “subdivision” in the restrictive covenant should be interpreted with reference to the definition of “subdivision of land” in the Resource Management Act 1991 – whether restrictive covenants should be interpreted purposively – whether the Court of Appeal correctly determined the purpose of the restrictive covenant in this case

[2008] NZCA 78 CA 135/06 9 April 2008

Alan Ivor Greer v The Queen

Summary Criminal appeal – bail – whether the Court of Appeal was wrong to refuse the appellant’s application for bail pending hearing of his appeal against sentence – whether undue delay in processing the appeal has hindered the appellant’s ability to prepare for his appeal against sentence – whether inadequate facilities available to the appellant as a sentenced prisoner have prevented the appellant from adequately preparing for the appeal.

[2008] NZCA 90 CA 179/06 17 April 2008

Application for leave to appeal dismissed.
9 May 2008

Arthur William Taylor v The Queen

Criminal – appeal against conviction and sentence – charges of escape from lawful custody and unlawful detention – whether the Court of Appeal was correct in finding in R v Carolyn Rochelle Taylor [2007] NZCA 318 that the applicant was at the time in lawful custody – whether the Trial Judge was correct to reject a plea under s 357 Crimes Act 1961 for previous acquittal on the unlawful detention charge - whether the sentence was excessive, or a minimum term appropriate.

CRI 2005 085 5744 19 December 2007

Application for leave to appeal dismissed.
26 May 2008.

Shaun Antony King v The Queen

Criminal – appeal by way of case stated – Juries Act 1981 – applicant challenges the legality and fairness of jury-vetting, under the New Zealand Bill of Rights Act 1990, the Privacy Act 1993 and the Criminal Records (Clean Slate) Act 2004 – whether controls should operate over prosecution use of information including, but not limited to, the criminal history of a potential jury member – whether disclosure by the prosecution to the defence should be required in relation to such information.

[2008] NZCA 79 CA 207/2007 10 April 2008

Ahmad Zanzoul v The Queen

Criminal appeal – applicant convicted after pleading guilty pursuant to s 153A of the Summary Proceedings Act 1957 on an information laid under s 31(1)(f)(ii) of the Passports Act 1992 – sentenced to 15 months imprisonment with leave to apply for home detention – whether the conviction and sentence is a nullity for want of legal certainty or vagueness of the provisions dealing with the indictable and summary jurisdiction for penalty purposes – alternatively, whether the Court of Appeal erred in law by constructing the legislation to the applicant’s detriment in failing to apply the lesser penalty where the legislation was “complex and confusing” – additionally, whether admissions were obtained without informing the applicant of his rights not to incriminate himself, to silence, and to obtain a lawyer in breach of the New Zealand Bill of Rights Act 1990 – whether, under art 36 of the Vienna Convention on Consular Relations read in conjunction with the Refugee Convention, the applicant should, as a refugee claimant, have been provided on detainment with advice by a consular or appropriate international official – whether a Hansen declaration should be made with regard to this issue – whether the applicant’s hearing before the Refugee Status Appeals Authority was unlawful for lack of independence and impartiality on the principles of Charanjit Singh v Secretary of State for the Home Department [2003] ScotCS 342 – whether the Court of Appeal erred in fact and law in finding and taking into account that there is nothing linking the appellant’s possession of a false Australian passport with his claim for refugee status – whether the Court of Appeal erred in law in taking into account that the applicant was not in the situation of many refugee claimants – application for name suppression.

CA 297/06 6 December 2006

Application for leave to appeal is dismissed.
10 June 2008

Media 1 Limited v N W Shanks and Wilson McKay Trustee Company and ors

Civil – validity of termination of lease – whether notice of termination of lease was sufficiently clear and unambiguous as to how and when the termination would operate and what steps were required by the other party to prevent the termination – whether the Court of Appeal was right to assume that the phrase in the notice “pursuant to its rights” was an invocation of the termination provisions of the lease – whether the reaction of the recipient and their legal advisors to the notice was relevant to the interpretation of the validity of the notice.
[2008] NZCA 77 CA292/07 5 March 2008

Application for leave to appeal dismissed. Costs $2,500 to the respondent.
7 May 2008

Ngai Tahu Properties Lmited v Central Plains Water Trust and Canterbury Regional Council

Civil – Resource Management Act 1991 (RMA) – competing resource consent applications to take (and use) water from a finite natural resource – whether the Court of Appeal majority assessed the priority of claims correctly – whether the “ready for notification” test should apply in such cases – how a consent authority decision not to proceed with notification under s 91 RMA should affect priority of claims.

[2008] NZCA 71 CA69/07 19 March 2008

Jonathan Nuki Lummis Jarden v The Queen

Criminal Appeal – conspiracy to supply methamphetamine – appeal against sentence - whether a Court should use sentencing guidelines based on actual supply of specified weights of drugs when considering a sentence for conspiracy to supply an unspecified quantity of drugs - whether the Court of Appeal considered such a distinction when dismissing the appeal to that Court

[2008] NZCA 48 CA292/07 5 March 2008

New Zealand Exchange Limited v Bank of New Zealand, Access Brokerage Limited (in liquidation) and Deloitte Touche Tohmatsu

Civil – appeal from strike-out application – second respondent in liquidation, first and third respondents brought actions against NZX in contract and tort - whether the Court of Appeal was correct to conclude that NZX owes personal duties of care to individual clients or to individual brokers, to protect each of them from economic loss due to broker’s dishonesty or negligence in relation to client funds held on trust – whether the Court of Appeal was right to find that the breach of such a duty (if owed) is sufficiently legally causative of loss – whether the Court of Appeal was correct in holding that the Securities Commission is the “primary regulator” of the New Zealand Stock Exchange, and not NZX.

2008] NZCA 25 CA236/06 22 February 2008

Timothy Justin Nevin v The Queen

Criminal – appeal against conviction – charges of assault with a weapon and possession of an offensive weapon – whether Court of Appeal erred in its consideration of other cases involving inconsistent verdicts – whether Court of Appeal erred in its analysis of evidence given at trial.

SC 11/2008

Robert Charles De Bruin v The Queen
Criminal appeal – applicant’s indictment was amended after his preliminary hearing to provide that he would be charged jointly with his co-accused – whether applicant had standing to attend the preliminary hearing of his co-accused – whether applicant’s inability to do so rendered his trial unfair so that a miscarriage of justice has occurred.

[2007] NZCA 600 CA 296/06 21 December 2007

Appeal against order under the Proceeds of Crime Act 1991 - Court of Appeal held that the High Court had correctly calculated a pecuniary penalty order under s 25 of $1 million – whether first appellant more than a mere courier for the purposes of calculating the benefit received under s 27(2) – whether Court of Appeal wrong to follow R v Penderson [1995] 2 NZLR given position of couriers has not been resolved – whether Court of Appeal in error in upholding the High Court decision that the increase in value of the property was a benefit from the offending under s 28 – whether Court of Appeal was correct in finding that the appellants’ agreement under s 21 of the Property (Relationships) Act 2004 was intended to defeat the interests of the Crown as a creditor of the appellant – whether, given the second appellant’s appeal was successful in part, the Court of Appeal erred in ordering that the legal costs should be paid from the second appellant’s interest in the property.

[2007] NZCA 600 CA 332/06 21 December 2007

SC 9/2008

Robert Charles De Bruin v The Queen
Appeal against order under the Proceeds of Crime Act 1991 - Court of Appeal held that the High Court had correctly calculated a pecuniary penalty order under s 25 of $1 million – whether first appellant more than a mere courier for the purposes of calculating the benefit received under s 27(2) – whether Court of Appeal wrong to follow R v Penderson [1995] 2 NZLR given position of couriers has not been resolved – whether Court of Appeal in error in upholding the High Court decision that the increase in value of the property was a benefit from the offending under s 28 – whether Court of Appeal was correct in finding that the appellants’ agreement under s 21 of the Property (Relationships) Act 2004 was intended to defeat the interests of the Crown as a creditor of the appellant – whether, given the second appellant’s appeal was successful in part, the Court of Appeal erred in ordering that the legal costs should be paid from the second appellant’s interest in the property.

[2007] NZCA 600 CA 317/06 21 December 2007

4 April 2008

Neville James Gibson v Minter Ellison Rudd Watts

Civil Appeal – proceedings against former legal counsel - whether the Court of Appeal made accurate findings of fact – whether the Court of Appeal was correct to conclude that the respondent had complied with discovery obligations – whether the Court of Appeal had regard to all relevant evidence – whether the Court of Appeal was correct to find that the applicant would not have been entitled to legal aid in earlier proceedings against a third party – whether the respondent had a conflict of interest in earlier proceedings - whether the Court should have considered the applicant’s financial position when awarding costs against him

[2007] NZCA 595 CA 202/065, CA 33/06 21 December 2007

Elders New Zealand Limited v PGG Wrightson Lmited

Civil – Contract Law – Whether the Court of Appeal erred in holding that an amalgamation approved under Part 15 of the Companies Act 1993 has the legal consequences provided for in s 219 of that Act – Whether an amalgamating company is entitled to “pick and choose” between Part 13 and Part 15 of the Companies Act 1993 – Whether the terms of the amalgamation order created the effect prescribed in Part 13 even though the order was made pursuant to Part 15 – Whether the applicant was bound by the Part 15 order although the order did not state that the applicant was bound.

[2007] NZCA 596 CA 277/06 21 December 2007

Shell (Petroleum Mining) Company Limited and others v Todd Petroleum Mining Company Limited and others

Civil Appeal – Civil Procedure – Injunction – Contract – Breach – Remedies – Whether Court of Appeal correct to conclude overall contractual arrangements mean STOS not entitled to resign as Maui field Operator and Shell not entitled to encourage its STOS directors to vote in favour of resolution removing STOS as Operator – Whether Court of Appeal correct to conclude MDL/STOS contract of employment enforceable by Todd – Whether injunctive relief, rather than damages, correct remedy for any contract breach proved.

[2007] NZCA 586 CA 144/06 18 December 2007

Application for leave to appeal dismissed.
Costs $2,500 to the first respondent.

Philip Joseph Fava v Ekhlas Zaghloul and others

Civil appeal – Insolvency Act 1967 – High Court declined to approve a composition in satisfaction of debts due to creditors by a bankruptee on the grounds that the composition was not reasonable or calculated to benefit the general body of creditors under s 122(3)(b) - Court of Appeal upheld the decision under s 122(3)(b) and also on the basis that the composition was not expedient to be approved under s 122(3)(d) – whether Court of Appeal erred in failing to allow the appellant the opportunity to make written submissions on the issue of expediency – whether the decision based on expediency was wrong in law.

[2007] NZCA 594 CA 568/07 21 December 2007

7April 2008

A v The Queen

 Criminal – applicant convicted of sexual violation by rape – victim was applicant’s three-year-old daughter – charges were brought after victim was diagnosed with gonorrhoea. Whether alleged expert evidence, supporting the possibility of non-sexual transmission of the disease, renders the conviction unsafe – application for leave to appeal out of time due to newly available evidence.

CA 508/04 28 November 2005

9 April 2008

Matini Vaihu v The Attorney-General

Civil Appeal – New Zealand Bill of Rights Act – Breach – Remedies – Damages – Torture or cruel or degrading or disproportionately severe treatment – Kidney dialysis patient, V, bitten by Police dog – Whether Court of Appeal erred in finding bite inadvertent, not deliberate and lawful, so as to relieve Attorney-General of liability for actions of Police dog under control of handler – Whether bite of innocent bystander by Police dog under control of handler constitutes breach of s 9.

[2007] NZCA 574 CA 180/06 13 December 2007

John Bevan-Smith v Raupo Publishing (NZ) Limited

Civil Appeal – breach of contract – book publication - whether Court of Appeal should have granted extension of time to file case on appeal – whether agreement between applicant and defendant void because of deceptive conduct – whether the defendant breached due diligence obligations in contract - whether the Court received misleading evidence regarding the motive’s of the defendant – whether High Court made correct findings of fact especially regarding timing of events – whether the Court of Appeal should have reconsidered findings of fact made by the High Court – whether High Court correctly interpreted relevant clauses in contract –whether quantum of lost book sales correctly calculated – whether case should be remitted to the Court of Appeal to be reheard or to the High Court for a new trial.

[2007] NZCA 579 CA 57/07 14 December 2007

9 April 2008

Ross Francis Hookway v The Queen

Criminal appeal – whether trial counsel is required to inform an accused of his or her right to instruct counsel and for counsel to be bound by those instructions – whether trial Judge was correct to give a Papadopoulos direction when the jury appeared to be deadlocked.

[2007] NZCA 567 CA 466/06 11 December 2007

9 April 2008