Case Summaries 2009

Civil Appeal – Property Law Act 1952, s 81 – Property Law Act 2007, s 97 – Unit Titles – Mortgages – Whether relevant form of encumbrances can ever be discharged - Whether encumbrances in question ought to be discharged – Whether Court of Appeal was wrong to decide that the rights of the intended appellant to redemption under s 81 of the Property Law Act 1952 had been taken away by the repeal of the Act.

[2009] NZCA 563 CA 690/2009   27 November 2009

Application for leave to appeal dismissed.

16 April 2010.

Civil – Crown liability for judicial breaches of the New Zealand Bill of Rights Act 1990 – Whether the Court of Appeal erred in law by holding that the Attorney-General is the correct defendant in an action alleging breaches of the New Zealand Bill of Rights Act 1990 by a Registrar and judges of the Court of Appeal – If not, whether the Court of Appeal erred in law by holding that the Attorney-General is not entitled to the same immunities as the person who committed the alleged breaches.

[2009] NZCA 552 CA 245/2008  25 November 2009

Application for leave to appeal granted.

The approved ground is whether Bill of Rights damages can be ordered against the Attorney-General on behalf of the Crown for breach of fair trial rights by judicial conduct in respect of which the judicial officer is immune from liability. 

31 March 2010. 

Civil appeal - Land Transfer Act 1952 – cross-appeal - the respondents sued for specific performance after the appellant failed to settle a house purchase due to a dispute with his daughter (Mrs Tangi-Tuake) over ownership which resulted in her lodging a caveat against the title of the property – whether the Court of Appeal determination that the finding of Asher J on the facts that it was supported by evidence that there was an agreement that in return for Mr Purea’s daughter taking responsibility for the mortgage and any outgoings and maintenance of the property, ownership would be transferred to her on repayment of then mortgage, was erroneous – whether the Court of Appeal erred in failing to consider that Asher J treated his finding of a constructive trust as if it was an express trust and gave no recognition of the Tangi-Tuakes’ interest in the property – whether the Court of Appeal decision is supported by the Tangi-Tuakes’ pleadings and in particular the way in which their pleadings have changed.

[2009] NZCA 541    CA  365/2008   18 November  2009

Application for leave to appeal dismissed.

Costs $2,500 to the 2^nd Respondent.

Civil Appeal – security for costs – strike-out – summary judgment – Appeal against strike-out by Court of Appeal – appellants’ failure to pay security for costs – Appeal against application in High Court by Selwyn District Council (SDC) to recover possession of land – Appellants refused to vacate land on expiry of 3-year lease agreement as part of sale and purchase agreement of land to SDC – Whether sale and purchase agreement and lease void because SDC exerted duress/undue influence or obtained unconscionable bargain in abuse of dominant bargaining position, or acted in breach of Local Government Act 1974 – Whether the SDC breached Resource Management Act 1991 in obtaining non-notified resource consent – Whether lawyers acted in conflict of interest between appellants and SDC councillor and breached fiduciary duty – Whether appellants waived conflict of interest with informed consent.

[2008] NZCA 147    CA  662/2007    5 June 2008

Application for leave to appeal dismissed.

23 February 2010.

Civil appeal – trusts and trustees – whether second and third appellants, when signing as trustees, can be personally liable under the Trust Deed – whether there was a breach of the Shareholders Agreement due to the failure to get Special Resolutions for significant borrowings and costs as required by the Business Plan specified in the Shareholders Agreement – whether there was a breach of the major transaction requirements of the Companies Act 1993 – additionally, estoppel argument raised for the first time in the Court of Appeal – whether the Court of Appeal erred in failing to provide the appellants the opportunity to consider or provide evidence in opposition to this point.

[2009] NZCA 569 CA  232/2009    7 December 2009

Application for leave to appeal dismissed. Costs $2,500 to respondents.                                               

18 March 2010.

Criminal – appeal directly from the High Court under s 144A(1)(a) of the Summary Proceedings Act 1957 – intended appeal against the determination of the High Court by way of case stated under s 107 of the Summary Proceedings Act – whether direct appeal to the Supreme Court appropriate given that the Court of Appeal has previously refused leave to appeal on this point on the basis that there were no grounds for challenge to the well established interpretation of s 108 of the Summary Proceedings Act in Davis v Mingins (HC, Rot, AP 48/91, 30/10/91, Fisher J).

CRI 2009 485 83      25 November 2009.

Application for leave to appeal granted.

18 March 2010.

Criminal – Appeal against conviction and sentence – Administering a Class B drug and sexual violation – Whether miscarriage of justice – Incompetence of trial counsel – Whether Court should admit new evidence.

CA  182/2004   14 March 2005

Application for leave to appeal dismissed.

5 February 2009.

Civil Appeal – Taxation – Whether the Commissioner satisfied the time limits contained in s 46 of the Goods and Services Tax Act 1985 – Whether Contract Pacific had already been paid a refund for the purposes of s 241 (6) (a) of the Taxation (Taxpayer Assessment and Miscellaneous Provisions) Act 2001.

[2009] NZCA 568    CA  759/2009   4 December  2009

Application for leave to appeal granted.

4 March 2010.

Civil Appeal – Extradition – Judicial Review – Whether Court of Appeal erred in finding Minister not obliged to take account of the appellant’s state of health and humanitarian concerns raised on appellant’s behalf in making his decision under s 30 of the Extradition Act 1999 and Art 1 of the Extradition Treaty between Poland and New Zealand – Whether Court of Appeal gave inappropriate weight to evidence of appellant’s doctor and erred in concluding appellant’s ailments were not a basis on which to stop or delay an extradition.

[2009] NZCA 570    CA  719/2009   4 December  2009

Application for leave to appeal dismissed.

Costs $2,500 to the respondent.

11 February 2010.

Criminal Appeal – whether the sentence of preventive detention was manifestly excessive; Whether the appellant’s right to silence and right against self-incrimination were breached by admitting the appellant’s videotaped statement to police; Whether the complainant, who was intellectually disadvantaged, understood either the oath or the moral or legal consequences of not telling the truth and thereby occasioning a miscarriage of justice; Whether the complainant’s unsworn evidence was admissible.

[2009] NZCA 532    CA  6/2009   12  November  2009

Application for leave to appeal dismissed.

12 March 2010.

Civil – Land Transfer Act 1952 – the appellants sued for specific performance after the respondent failed to settle a house purchase due to a dispute with his daughter over ownership which resulted in her lodging a caveat against the title of the property – whether, in light of s 182 of the Land Transfer Act 1952, the Court of Appeal erroneously approached the matter by way of contest between competing equities – whether the Court of Appeal should have held that registration is conclusive and that the appellants, as bona fide purchasers for value without notice of the daughter’s equitably interest, should take the property notwithstanding that the daughter’s equitable interest was earlier in time – alternatively, whether the Court of Appeal erred in the approach they adopted in consideration of the hierarchy of equities.

[2009] NZCA 541    CA  365/2008   18 November  2009

Application for leave to appeal dismissed.

Costs $2,500 to the 2^nd Respondent.

Criminal – Conspiracy to manufacture Class A drug – Whether the Court of Appeal erred in finding that the trial Judge gave proper jury directions on the evidence of co-conspirators – Whether the Court of Appeal erred in not ruling whether there was reasonable evidence that the applicant adhered to the conspiracy.

[2009] NZCA 519    CA  119/2009   4 November  2009

Application for leave to appeal dismissed.

2 March 2010.

Criminal appeal – Sexual offences – whether the Court of Appeal erred in finding there was no miscarriage of justice within s 385(1) (c) Crimes Act 1961 on the basis trial counsel was not incompetent.

[2009] NZCA 419    CA  747/2008  21 September  2009 

Application for leave to appeal dismissed.

12 July 2010.

Criminal – Appeal against conviction – Assault – Sexual Violation – Whether Court of Appeal erred in law in its findings regarding admissibility and credibility – Whether Court of Appeal erred in concluding trial Judge’s irregular jury directions on previous inconsistent statements could not have, either on their own or in conjunction with any of the other alleged errors, have affected the trial result and led to a miscarriage of justice on a R v Matenga [2009] 3 NZLR 145 analysis.

[2009] NZCA 507    CA  633/2008  23 October  2009

Application for leave to appeal dismissed.

16 July 2010.

Immigration – whether the Court of Appeal erred in interpreting Article 1F of the  1951 Convention Relating to the Status of Refugees; whether the Court erred in not remitting an Article 1F inquiry to the Refugee Status Appeals Authority

[2009] NZCA 488    CA  109/2008  20 October  2009

Application for leave to appeal granted.

10 March 2010.

Civil – the applicant was granted recognition of status as a refugee in 1996 and New Zealand citizenship in 1997 – in 2001 the applicant was discharged on the offence of making a false statement in his refugee claim – certain documents obtained by the Police in a search of the applicant’s home were passed to the Refugee Status Branch of the New Zealand Immigration Service – in 2006 notice was given to the applicant of intended determination of revocation of refugee status – whether the Court of Appeal erred in finding that the search of the applicant’s home was lawful – whether the Court of Appeal erred in finding that privilege did not attach to certain communications between the applicant and his refugee advisor – whether the Court of Appeal erred in determining that Police lawfully provided certain documents to the New Zealand Immigration Service.

[2009] NZCA 490    CA  565/2007  20 October  2009  

Application for leave to appeal is dismissed.

31 March 2010.

Civil – Interpreting terms of a sale and purchase agreement  – Whether the Court of Appeal erred by equating non-performance at the time of settlement with an automatic right to cancel – Whether the Court of Appeal were wrong to find that clause 18.3 of the agreement for sale and purchase was essential.

[2009] NZCA 483    CA  241/2000  19 October  2009

Application for leave to appeal gtranted.

1 March 2010.

Appeal allowed.

It is declared that the respondent’s purported cancellation on 3 November 2008 of its contract with the appellant was of no effect.  The proceeding is remitted to the High Court for outstanding issues to be determined in light of this judgment.  The costs order made in the Court of Appeal is set aside.

Costs are reserved.  Counsel should file memoranda. 

Ghlenn Thomas Douglas Gollop  v The Queen

Criminal Appeal – appeal against sentence – whether the Court of Appeal erred in finding without evidence to the required standard that the quantum of manufacture was 250g which materially effected the level of sentence in terms of s 24 of the Sentencing Act 2002 – whether the Court of Appeal erred in finding the minimum term of imprisonment was justified when the appellant was not represented by counsel at sentencing, contrary to s 30 of the Sentencing Act 2002.

[2009] NZCA 486    CA  162/200  19 October  2009   

Application for leave to appeal dismissed.

17 December 2009

Criminal – Appeal against conviction – Criminal Procedure – Abuse of Process – Delay – Appellant granted adjournment by Court of Appeal on strict terms with which he failed to comply – Whether Court of Appeal erred in concluding no merit in grounds of appeal raised – Whether Court of Appeal erred in not affording the appellant additional time to investigate grounds of complaint.

[2009] NZCA 515    CA  269/2008  27 October  2009   

Application for leave to appeal granted on the question whether the applicant was denied his right to appeal.

20 April 2010.

[2009] NZCA 450    CA  170/2009 2 October  2009 

The application for leave to appeal is granted.

The approved ground of appeal is whether the discount for Mr Hessell’s guilty plea was appropriately given in accordance with sentencing principles and the Sentencing Act 2002.

19 April 2010.

Criminal appeal – convictions for wounding with intent, aggravated burglary and possession of a knife – whether the Court of Appeal erred in rejecting the possibility of self-defence and provocation – whether the Court of Appeal gave insufficient weight to supplementary reports which indicated that certain of the appellant’s characteristics should have been seen as mitigating factors in sentencing – whether the Court of Appeal erred in failing to consider the possible application of section 9 of the New Zealand Bill of Rights Act 1990, given the applicant’s history and experiences in prison.

[2009] NZCA 509   CA  57/2009 23 October  2009    

Application for leave to appeal dismissed.

5 March 2010.

Criminal – Offences relating to Class A drug – Appeal against conviction and sentence - Whether the Court of Appeal erred in its findings about the applicant’s involvement in the importation of drugs – Whether the admission of cell-site evidence was inadmissible as being more prejudicial than probative – Whether the Court of Appeal were correct to find that the trial could proceed with 10 jurors – Whether the Court of Appeal were correct to hold that the trial Judge had not misdirected the jury on the onus of proof, or on the motive of co-accused to lie – Whether the Court of Appeal erred in finding that the applicant had a central role in the overall crime for the purposes of sentencing – Whether the Court of Appeal failed to take into account mitigating factors – Whether the Court of Appeal had regard to principles of sentencing in the Sentencing Act 2002.

[2009] NZCA 445   CA  770/2008  30 September  2009

Application for leave to appeal dismissed.

9 February 2009.

Judicial review – the respondent put forward a proposal to open Manners Mall in Wellington to bus traffic for public consultation – the applicant initiated judicial review proceedings in the High Court alleging unlawful predetermination on the part of the respondent in favour of the proposal – the applicant sought an interim order to prevent the respondent from taking further action in relation to the proposal until his judicial review proceedings were heard – the High Court Judge declined to make the interim order and ordered the applicant to provide security for costs in the amount of $12,000 – the Court of Appeal upheld the High Court but varied the Judge’s order to substitute $8,000 for $12,000 – whether the Court of Appeal erred in upholding the High Court’s decision.

[2009] NZCA 513    CA  615 /2009   23 October   2009 

Application for leave to appeal dismissed.

26 February 2010

Civil Appeal – Resource Management – Petroleum mining – Leases – Contract and interpretation – Equity – obligations – assignment – Whether Court of Appeal erred in finding that actual reasons for GXL Royalties Ltd’s refusal to consent to transfer of Swift Energy Ltd’s interests in a petroleum exploration permit, from Swift to Greymouth Gas Kaimiro Ltd, are irrelevant to the issue of whether consent was properly or improperly withheld – Whether Court of Appeal erred in confining the issue at trial to a purely objective test of whether it has been established that Greymouth has sufficient financial capability to meet the obligations under the permit and royalty deed – Whether Court of Appeal erred in failing to account in the test for the requirement of reasonableness.

[2009] NZCA 433   CA  100/2009   24 September   2009  

Leave to appeal is granted

The approved ground is whether GXL is required to plead to an allegation that it refused consent to the transfer of Swift’s interest in the petroleum permit to Greymouth for collateral reasons unrelated to Greymouth’s financial capability to meet obligations under the permit and the deed reserving to GXL a royalty interest.

30 March 2010.

Criminal Appeal - Whether a local authority can invoke the Trespass Act 1980 in relation to a peaceful protest on an area designated as a road; whether local authority exclusive occupier of land; whether conviction justified under the Act without any findings of fact as to nuisance or obstruction.

[2009] NZCA 451   CA  110/2009   1 October   2009

Application for leave to appeal dismissed.

16 December 2009

Criminal – appeal against conviction and sentence – convictions for importing methamphetamine and possessing for supply – during jury deliberations at the applicant’s retrial (following successful appeal in R v Wong [2008] 3 NZLR 1) the jury sent a note to the judge stating that they had finished deliberating, the judge sought clarification and the jury sent a second note stating that they were unable to reach a unanimous verdict on any of the charges, noting that “further effort would result in bullying” – the judge gave a standard Papadopoulos direction – whether the Court of Appeal erred in upholding the applicant’s convictions as safe – whether there has been a substantial miscarriage of justice – whether the Court of Appeal erred in determining that the applicant’s minimum period of imprisonment was set correctly – whether the High Court judge wrongly allowed the Police to destroy certain evidence after the first trial – the applicant also seeks an interlocutory order to adduce both rebuttal evidence and new evidence in the form of a market research survey.

[2009] NZCA 440   CA  190/2009, CA 356/2009  

28 September   2009     

Application for leave to appeal dismised.

2 March 2010

JD & CE Henson Partnership and others v Commissioner of Inland Revenue

Civil – Tax Administration Act 1994 – Whether the Court of Appeal erred in determining what is sufficient to constitute a statutory Notice of Assessment – Whether the Court of Appeal wrongly stated that the applicants’ assessments were subsequently amended – Whether the Court of Appeal was wrong to find that the Taxation Review Authority addressed the correctness of the assessments without objection from the applicants – Whether the Court of Appeal was wrong to find that the Taxation Review Authority had jurisdiction under the Notices of Assessment.

[2009] NZCA 423   CA  661/2008   22 September   2009  

Application for leave to appeal dismissed.

Costs to the respondents of $3,000 plus disbursements.

15 December 2009

Criminal – appeal against conviction - appellant convicted in the District Court on charges of reckless driving and failing to stop – whether the Judge was correct in finding that there were good reasons for not following a formal identification procedure – whether the Judge was correct in finding that the circumstances in which the identification was made produced a reliable identification beyond reasonable doubt - application made to appeal from the High Court directly to the Supreme Court because the area of law has recently been considered by the Court of Appeal and the Court is divided on this issue.

CRI 2009 – 409 – 141   13  October   2009

Application for leave to appeal dismissed.

8 December 2009.

Criminal – Appeal against case stated decision – Whether Court of Appeal majority erred in concluding that the trial Judge’s decision to allow inadmissible hearsay “evidence” was an error of fact rather than an error of law and that therefore the case stated provisions of the Crimes Act 1961 were not engaged – Whether the Court of Appeal President erred in concluding that the Crown could succeed on an appeal under ss 380 and 380 of the Crimes Act 1961 in this case only if “To set aside the acquittal and direct a new trial would not be an unacceptable derogation from the spirit of the rule against double jeopardy”.

[2009] NZCA 430  CA 90/2009   24 September   2009

Application for leave to appeal granted.

23 November 2009

25 February 2010.

Elias CJ, Blanchard, McGrath, Wilson J.

Decision reserved.

A The appeal is allowed and the acquittals are quashed.

B A new trial is directed under s 382(2)(b) of the Crimes Act 1961.

C  A certified direction for new trial will issue to the Registrar of the High Court at Christchurch with the consequences provided for by ss 380(4) and 382(4) of the Crimes Act.

17 May 2010.

Civil appeal – Whether the Court of Appeal erred in applying s 9 of the Law Reform Act 1936, namely whether the Court of Appeal erred in not finding that the respondent had a sufficient presence in New Zealand and whether the Court of Appeal erred in finding that the High Court did not have subject-matter jurisdiction –  whether s 9 has an extraterritorial effect – whether, if the High Court does have jurisdiction, the Court in the exercise of its discretion should decline or allow jurisdiction

[2009] NZCA 397  CA 546/2008   11 September   2009

Application for leave to appeal granted.

16 December 2009.

Appeal dismissed. Cost to respondent $15,000 plus reasonable disbursements.

Criminal appeal – appeal against convictions for aggravated robbery and unlawfully taking a motor vehicle – whether the Court of Appeal erred in concluding that the evidence of two co-accused was insufficiently cogent to give rise to a miscarriage of justice when the Crown case identifying the applicant as a participant in the offending was reliant on a third co-accused who was motivated to give false evidence to minimise his role in the offending.

[2009] NZCA 393  CA 608/2008   9 September   2009

Application for leave to appeal dismissed.

10 February 2010.

Chesterfields Preschools Limited, David John Hampton and others v The Commissioner of Inland Revenue

Civil – GST Act 1995 - Costs awards – Whether the Court of Appeal erred in allowing the appeals of the Commissioner for a stay of payment of costs awards in favour of the applicant.

[2009] NZCA 373 CA 607/2008   25 August 2009

Application for leave to appeal dismissed.

Costs $3,000 plus disbursements to the respondent.

8 December 2009.

Civil – whether the Court of Appeal erred in law and fact in finding that the appellant should be removed as a trustee of a family trust pursuant to s 51 of the Trustee Act 1956 – whether the Court of Appeal erred in making an award of indemnity costs against the appellant – whether the Court of Appeal erred in finding that, for limitation purposes, time ran from October 1993.

[2009] NZCA 328  CA 766/2008   28 July  2009     

Application for leave to appeal dismissed.

Indemnity costs to the respondent.

26 November 2009.

Criminal – s 361D Crimes Act 1961 – Whether the Court of Appeal erred in its interpretation of s 361D of the Act – Whether the Court of Appeal had sufficient regard to ss 24(e) or 5 of the New Zealand Bill of Rights Act 1990 when interpreting s 361D

[2009] NZCA 380  CA 279/09  28 August 2009

Application for leave to appeal dismissed.

20 October 2009

Criminal – s 361D Crimes Act 1961 – Whether the Court of Appeal erred in its interpretation of s 361D of the Act – Whether the Court of Appeal had sufficient regard to ss 24(e) or 5 of the New Zealand Bill of Rights Act 1990 when interpreting s 361D.

[2009] NZCA 380  CA 273/09  28 August 2009

Application for leave to appeal dismissed.

20 October 2009

Criminal – s 361D Crimes Act 1961 – Whether the Court of Appeal erred n its interpretation of s 361D of the Act – Whether the Court of Appeal had sufficient regard to ss 24(e) or 5 of the New Zealand Bill of Rights Act 1990 when interpreting s 361D.

[2009] NZCA 380  CA 256/09  28 August 2009

Application for leave to appeal dismissed.

20 October 2009

Criminal – s 361D Crimes Act 1961 – Whether the Court of Appeal erred in its interpretation of s 361D of the Act – Whether the Court of Appeal had sufficient regard to ss 24(e) or 5 of the New Zealand Bill of Rights Act 1990 when interpreting s 361D.

[2009] NZCA 380  CA 255/09  28 August 2009

Application for leave to appeal dismissed.

20 October 2009

Stay of proceedings.

[2009] NZCA 417    CA 634/2008   18 September 2009

Application dismissed.

29 October 2009

Civil Appeal – Banking and Finance – Unclaimed Money Act 1971 – meaning of terms: “money” “payable”, “has become owing” – Whether UMA applies to conditional transactional liabilities such as cheques, drafts or other bills of exchange – Bills of Exchange Act 1908 – nature of drawer’s liability – Whether Court of Appeal erred in holding Commissioner of Inland Revenue v Thomas Cook (New Zealand) Ltd [2005] 2 NZLR 722 (PC) applied – Whether Thomas Cook rightly decided.

[2009] NZCA 376   CA 741/2008   26 August 2009

Application for leave to appeal granted.

4 December 2009. 

Civil – negligence – the Court of Appeal struck out a claim against the Queenstown Lakes District Council by the owner of a commercial building – the claim alleged negligence in the course of the approval and building process resulting in a defect in the building that caused loss to the owner – whether it is reasonably arguable that the Council owed a duty of care to the building owner to exercise reasonable skill and care in the performance of its statutory functions and responsibilities under the Building Act 1991.

[2009] NZCA 374   CA 441/2008   25 August 2009

Application for leave to appeal granted.

24 November 2009.

12 and 13 April 2010. 

Leave to appeal is revoked.

The appellant is ordered to pay the respondent costs of $7,500, together with reasonable disbursements incurred prior to the abandonment by Charterhall Trustees Ltd of its appeal (SC 81/2009).

22 April 2010.

Civil – negligence – the Court of Appeal struck out a claim against the Queenstown Lakes District Council by the owner of a commercial building – the claim alleged negligence in the course of the approval and building process resulting in a defect in the building that caused loss to the owner – whether it is reasonably arguable that the Council owed a duty of care to the building owner to exercise reasonable skill and care in the performance of its statutory functions and responsibilities under the Building Act 1991.

[2009] NZCA 374   CA 441/2008   25 August 2009

Application for leave to appeal granted.

24 November 2009.

Criminal – Firearms and manufacturing and supply of drugs convictions – Whether the Court of Appeal erred in finding that s 61 of the Arms Act 1983 was not restricted for use in emergency situations – Whether the Court of Appeal was wrong to hold that s 18(2) of the Misuse of Drugs Act 1975 authorised the Police to search the applicant’s property – Whether the Court of Appeal were wrong to find that the applicant had made certain admissions before the police search.

[2009] NZCA 88   CA 643/2008, CA 157/2009   4 September 2009

Application for leave to appeal dismissed.

9 February 2009.

Criminal appeal – appeal against sentence – convictions under the Misuse of Drugs Act 1975 – minimum period of imprisonment of eight years imposed by High Court – the basis of the appeal to the Court of Appeal was disparity in relation to the sentences imposed for similar offending by the applicant’s associates – whether the Court of Appeal erred in dismissing the appeal despite an apparent injustice to the applicant – whether there has been a substantial miscarriage of justice.

[2009] NZCA 365   CA 209/2009   18 August 2009

Application for leave to appeal dismissed.

15 December 2009.

Civil Appeal – Employment Relations Act 2000 – Strikes and lockouts – legality – Whether Court of Appeal erred in holding that in s 97 of the ERA 2000 the words “the work of a striking or locked employee” mean “the work a striking or locked out employee would probably have been performing had he/she not been locked out – Whether Court of Appeal erred in holding that s 97 of the ERA 2000 applies in circumstances where the work in question is work which is being performed, or is intended to be performed, by a person who would normally or routinely perform such work.

[2009]  NZCA  349    CA 206/2008   7 August  2009

Application for leave to appeal granted.

27 October 2009.

23 February 2010

Elias CJ, Blanchard, McGrath, Wilson, Anderson JJ

Decision Reserved.

The appeal is allowed with costs of $15,000 to be paid by the respondent to the appellant together with the appellant’s reasonable disbursements to be fixed if necessary by the Registrar.

17 May 2010.

Civil appeal – Whether the Court of Appeal erred in finding that the Films Videos and Publications Classification Act 1993 applies to private material that was never intended to be made public; whether the Court of Ap peal erred in determining that the possession of objectionable material for private use is a “publication” for the purposes of the Act; whether the Court of Appeal erred in failing to apply the New Zealand Bill of Rights Act 1990 to interpretation of the word “publication”; whether the Court of Appeal erred in determining that it was permissible to repeatedly question an accused when the accused has stated that he does not wish to provide the information sought.

[2009]  NZCA  345    CA 267/2009   6 August  2009

Application for leave to appeal dismissed.

16 December 2009.

Civil – alleged breach of s 36 of the Commerce Act 1986 – the Privy Council in Telecom Corporation of New Zealand v Clear Communications [1995] 1 NZLR 385 formulated a counterfactual test (whether a hypothetical firm, not in a dominant position but otherwise in the same circumstances, would have acted as the dominant firm did) to determine whether a firm has used its dominant position in breach of s 36 – whether this test is the appropriate and necessary test for determining a breach of s 36 – if the test is reconsidered, and if the question is assessed on a factual enquiry rather than solely by apply a counterfactual analysis, whether Telecom used its dominant position in the national retail market in breach of s 36 – alternatively, whether the Court of Appeal erred in finding that, on application of the counterfactual test, the Commission had not demonstrated that Telecom had used its dominant market position in breach of s 36 – whether the Court of Appeal erred in not considering whether the High Court erred in finding that Telecom did not have an anticompetitive purpose under s 36(1) of the Act.

[2009]  NZCA  338    CA 288/2008   4 August  2009

Leave to appeal granted.

30 October 2009.

Civil – Interpretation of a mortgage - Whether the Court of Appeal erred as a matter of fact and law in finding that cl 9.1(d) of the mortgage did not authorise the lender to obtain security over additional property.

[2009]  NZCA  369  CA 599/2008   21 August  2009

Application for leave to appeal granted.

21 October 2009

16 March 2010.

Elias CJ, Blanchard, McGrath, Wilson, Anderson JJ.

 Philip Wayne Hart v The Queen

Criminal appeal – appeal against conviction – convictions for sexual offending – the trial judge acceded to an application by the Crown for a prior consistent statement of the complainant to be admitted in terms of s 35(2) of the Evidence Act 2006 to rebut the assertion that the complainant’s evidence was fabricated in order to entitle her to ACC – whether the Court of Appeal erred in determining that defence counsel asserted recent invention on the part of the complainant and thus attacked the complainant’s veracity, opening the way to evidence on that topic under s 37 and also justifying an application by the Crown for an order that the complainant’s prior consistent statement was admissible under s 35(2) – whether the Court of Appeal erred in determining that the trial judge did not need to direct the jury on its use of the prior consistent statement because such statements, once admitted, are admissible for the truth of their contents under the Evidence Act 2006.

[2009]  NZCA  276   CA 609/2008   29 June  2009

Application for leave to appeal granted.

15 October 2009

18 November 2009.

Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ.

Decision reserved.

Appeal dismissed.

23 July 2010.

Criminal – Appeal against sentence – Sexual offending against girl aged between 12 and 16 years – Whether Court of Appeal erred in fixing starting point of 3.5 years’ imprisonment for a first offender charged with a single act of sexual connection when no tariff decision established for relevant type of sexual offending – Whether Court of Appeal failed to take into account availability of home detention as a sentencing option?

[2009]  NZCA  366   CA 115/2009  19 August  2009

Application for leave to appeal dismissed.

4 November 2009.

Civil appeal – whether the respondent is liable under s 9 of the Fair Trading Act 1986 for passing on information about a third party which induced the appellant to enter into a contact with that third party

[2009]  NZCA  320  CA 713/2008   24 July 2009

Application for leave to appeal granted.

7 October 2009

Appeal allowed and the judgment of the High Court is restored.

Costs $15,000 plus reasonable disbursements in this Court. Order for costs in the Court of Appeal is reversed. HighCourt  to fix costs that that has not already been done.

12 March 2010.

Civil – liquidation under s 301 of Companies Act 1993 – whether liabilities of a company in liquidation arising post-liquidation should be included in calculating the compensation payable under s 301 – whether the Court of Appeal adopted the correct legal approach in considering the issue of causation in respect of an order under s 301 – whether the Court of Appeal erred in considering the issues of culpability in respect of an order under s 301.

[2009] NZCA 306  CA 676/2008   20 July 2009

Application for leave to appeal is dismissed, with cocsts of  $2,500 to the respondents.

14 October 2009

Criminal appeal – appeal against sentence – convictions for sexual offending – whether the sentence of six years imprisonment (reduced from seven years by the Court of Appeal) was manifestly excessive

[2009] NZCA 300 CA 199/2009

Application for leave to appeal dismissed.

7 October 2009

Civil Appeal – natural justice – orders were made in the High Court against the applicant, the publisher of several websites, in respect of a defamation claim – whether the High Court judge was correct to allow an amended statement of claim to be filed and proceed to an ex parte hearing on 8 October 2008 – whether the High Court judge erred in awarding the respondent $940,000 in damages plus costs and issuing a permanent injunction against the applicant prohibiting several defamatory publications – whether the High Court judge misrepresented evidence in finding against the applicant.

Civ 2005 404 001808  23 December 2009

Notice of abandonment being lodged, the application is deemed to be dismissed 

Criminal – Sexual Offending – Rape – Evidence – Admissibility – recent complaint and hearsay evidence – Appeal against conviction – Whether substantial miscarriage of justice established – Whether Court of Appeal erred in concluding (1) that the trial Judge’s directions on admissible evidence were adequate; (2) that there was sufficient evidence of penetration; (3) That the evidence of the complainant’s sister was not inadmissible recent complaint evidence; (4) That expert evidence relating to a summary of facts was inconsequential; (5) That it was unnecessary for the trial Judge to give a reliability direction in light of the evidence of intoxication; (6) that the trial Judge correctly ruled on the inadmissibility of two recorded telephone calls.

[2009] NZCA 307    CA 664 /2008    16    July 2009

Application for leave to appeal dismissed.

20 October 2009

Civil appeal – contract law - Whether a nominee is entitled to enforce a contract; Whether the phrase "or nominee" is a sufficient designation for purposes of s 4 of the Contracts (Privity) Act 1982.

[2009] NZCA 291    CA 304 /2008    9 July 2009

Application for leave to appeal dismissed.

Costs $2,500 to the respondents.

21 September 2009

Criminal – Evidence Act 2006 – Mr Rongonui was convicted of one count of sexual violation by unlawful connection and one of assault with intent to commit rape – whether the Court of Appeal erred in holding that the complainant’s evidence that she had told her friend what occurred after the incident did not fall within s 35 of the Evidence Act dealing with previous consistent statements because evidence was not given of anything actually said by the complainant – whether the Court of Appeal erred in holding that the District Court Judge was correct to allow the prosecutor to use a witness statement to refresh the memory of a witness and to allow cross-examination of the witness on the grounds of hostility

[2009] NZCA 279 CA 736/2008  2 July 2009

Application for leave to appeal granted.

21 September 2009

Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ.

Appeal allowed, convictions set aside. Order for new trial.

Reasons to be given at a later date.

27 November 2009.

Reasons given 23 July 2010.

Civil – Whether the Court of Appeal erred in its exercise of discretion declining the application for grant of an extension under r 43 of the Court of Appeal (Civil) Rules 2005 – Whether the Court of Appeal was entitled to make that decision in the absence of the applicant or his counsel.

[2009] NZCA 255  CA 634/2008    19 June 2009.

Application for leave to appeal dismissed.

Costs of $7,500 and disbursements to the respondents.

29 October 2009

Civil – extradition - whether Court of Appeal erred in refusing to admit new evidence – whether Court of Appeal erred in determining that by joining an extradition Treaty New Zealand has accepted that the court system in the partner state is robust enough to grant a fair trial – whether the Court of Appeal erred in determining that comity interest must be balanced against, and could somehow trump, an individual’s liberty rights – whether the Court of Appeal erred in deciding that the ‘copies’ provided by the second respondent sufficed for extradition from New Zealand purposes – whether the Court of Appeal erred in determining that the requisite authentication procedures were followed and that the evidence against the Appellant was not hearsay – whether the Court of Appeal failed to consider relevant case law provided by counsel. 

[2009] NZCA 257  CA 678/2008    19 June 2009.

Application for leave to appeal dismissed.  Any application for costs to be made within 10 working days.

15 September 2009.

Order for Costs to the 2^nd respondent in the sum of $2,000.

15 October 2009.

Criminal – Appeal against conviction and sentence – Whether appellant denied any due process right in raising counsel incompetence claims – Whether substantial miscarriage of justice established.

[2009] NZCA 261  CA 121/2009    23 June 2009.

26 August 2009.

Criminal appeal – convictions for sexual violations by rape and unlawful sexual connection – appeal based on conduct of defence counsel and alleged deficiencies in the trial process – whether the appellant was denied the right to a fair trial – whether the Court of Appeal erred in finding that the failure of trial counsel to cross-examine the complainant on inconsistencies between her evidence at trial, her statement to the Police and evidence at first trial did not amount to a miscarriage of justice – whether the Court of Appeal erred in finding that the trial judge’s direction on consent did not amount to a miscarriage of justice.

[2009] NZCA 210 CA  427/2008    27 May  2009

Application for leave to appeal dismissed.

27 August 2009.

Talbot 2002 Underwriting Capital Limited v Maintenance Technology and Engineering Limited

Civil Appeal – Whether the Court of Appeal erred in refusing the applicant’s application for a priority fixture and/or for a stay pending determination of the appeal on the grounds of bias on the part of a Judge who has embarked upon the hearing of a case to which the appellant is a party in the High Court.

CA  327/2009    16 June  2009

Application for leave to appeal dismissed.

Costs $2,500 to respondent.

14 July 2009.

Civil – Grant of resource consents – Whether the Court of Appeal was wrong to determine that the Environment Court had incorrectly directed itself as to the statutory purpose of the Resource Management Act 1991 – Whether the Court of Appeal erred in declining to address who was burdened by an evidential onus to demonstrate appropriate measures to mitigate the adverse effects of a proposal.

[2009] NZCA 222  CA  518/2007    2 June  2009

Civil Appeal – whether the Court of Appeal erred in failing to exercise its discretion under r 43(2) of the Court of Appeal (Civil) Rules 2005 to extend the time to file a Case on Appeal in circumstances where there was no realistic prospect that the appellants would be able to pursue their appeal after their counsel advised he would not proceed on a pro bono basis and where the appellants had already had the benefit of being represented in a full merits appeal.

[2009] NZCA 221  CA  486/2008    2 June  2009

Application for leave to appeal dismissed.

23 July 2009

Lipene Sila v The Queen

Criminal – Appeal against murder convictions – Whether the Court of Appeal erred in finding that the Trial Judge was correct to not allow self-defence to be put to the jury.

[2009] NZCA 233  CA  404/2008    5 June  2009

Application for leave to appeal dismissed.

10 August 2009.

Wyeth (NZ) Limited v Ancare New Zealand Limited and The Environmental Risk Management Authority

Civil Appeal - Statutory Interpretation - whether the Court of Appeal erred in interpreting the Hazardous Substances and New Organisms Act 1996; whether the Act requires or entitles the Environmental Risk Management Authority to refuse to disclose the identity of a hazardous substance and/or its chemical composition; whether the Act allows the Environmental Risk Management Authority to require that the identity of a hazardous substance and/or its chemical composition be provided on the basis of confidentiality undertakings. 

[2009] NZCA 211  CA  424/2007    27 May 2009

Application for leave to appeal granted.

25 September 2009.

Elias CJ, Blanchard, McGrath, Wilson, Anderson JJ

The appeal is dismissed with no order for costs.

23 April 2010.

Luana Roberta Taylor v The Queen

Criminal – Admissibility of a statement – Whether the Court of Appeal erred in dismissing an application for leave to appeal a pre-trial ruling

[2009] NZCA 228  CA  210/2009    2 June 2009

 Application for leave to appeal refused. 1 July 2009.

Benjamin Morland Easton v Broadcasting Commission and Broadcasting Standards Authority

Civil – Security for costs – Whether the Court of Appeal erred in requiring security for costs before hearing – Whether the Court of Appeal’s requirement for security of costs amounts to an unreasonable barrier to Court access and is discriminatory – Whether the Court of Appeal was correct to dismiss allegedly “uncontested evidence”

[2009] NZCA 252  CA  793/2008   17 June 2009

Application for leave to appeal dismissed.

5 August 2009.

Paul Joseph Cameron  v The Queen

Criminal appeal – murder – whether statements made by the appellant were made in circumstances adversely affecting their reliability and ought to have been excluded – whether statements made by the appellant were influenced by oppression and ought to have been excluded – whether statements made by the appellant were improperly obtained and ought to have been excluded - whether the appellant’s conviction was a substantial miscarriage of justice

[2009] NZCA 87  CA  568/2008   24 March 2008

Application for leave to appeal dismissed.

12 August 2009.

John Kenneth Slavich v The Queen

Criminal – Appeal against conviction – Fraud – Admissibility of Evidence – Judicature Act 1908 – Whether miscarriage of justice established by way of Court of Appeal’s alleged failure to consider all points raised on appeal – Whether evidence wrongly admitted – Whether Court of Appeal exceeded its jurisdiction in its evaluation of the evidence.

[2009] NZCA  188 CA 461/2007    15 May 2008

Application for leave to appeal dismissed.

10 August 2009. 

John Kenneth Slavich v The Queen

Criminal – Appeal against conviction – Fraud – Summary Proceedings Act 1957 – Judicature Act 1908 – Parallel application for leave to appeal – Whether miscarriage of justice established – Whether evidence wrongly admitted – Whether trial counsel’s conduct inappropriate.

CRI 2006–419–89  12 October 2009

Application for leave to appeal dismissed.

10 August 2009.

Penelope Mary Bright v New Zealand Police

Criminal – Trespass Act 1980 – appellant arrested and charged with the offence of trespass under ss 3(1) and 11(2)(a) of the Trespass Act following refusal to leave a Council meeting when asked to do so – appellant subsequently convicted in the District Court – whether the Local Government Official Information and Meeting Act 1987 negates the Trespass Act since removal of a person under s 50 of the Local Government Official Information and Meeting Act is a complete remedy in itself – whether the minimum threshold for convicting under the Trespass Act was not met because the appellant was never warned for trespass before being charged and convicted.

[2009] NZCA  187  CA 796/2008    15 May 2008

Application for leave to appeal dismissed.

6 August 2009.

RB v The Queen

Criminal – Wounding with intent to injure – Whether a defence of consent available - Whether the Court of Appeal erred in ordering a retrial after quashing the appellant’s convictions, given the factual findings made by the District Court Judge – Whether a retrial would result in a substantial miscarriage of justice, having regard to events which have occurred after the Court of Appeal judgment

[2009] NZCA  186  CA 733/2008    15 May 2008

Notice of Abandonment of Appeal being lodged, the application is deemed to be dismissed.

7 July 2009.

Stephen  Michael Shone v The Queen

Criminal appeal – sentencing – whether the decision of the Court of Appeal is consistent with decisions made in comparable cases – whether the Court of Appeal failed to take into account the alleged facilitation of offending by a victim’s mother – whether the sentences imposed were manifestly excessive

[2009] NZCA  183  CA 720/2008    14 May 2008

Application to leave to appeal dismissed.

29 July 2009

Vincent Ross Siemer v Solicitor-General

Civil/Criminal Appeal – Offences – Contempt of Court – New Zealand Bill of Rights Act 1990 – Appeal against decision committing appellant to prison for contempt – Whether Court of Appeal erred in holding contempt proceedings civil in nature – Whether appellant wrongly denied opportunity to elect trial by jury.

[2009] NZCA  62   CA 447/2008    9 March 2009

Application for leave to appeal granted.

7 August 2009

2 March 2010.

Elias CJ, Blanchard, McGrath, Wilson, Anderson JJ

Decision Reserved.

The appeal is allowed and the order made by the Court of Appeal is quashed.  It is replaced by an order committing the appellant to prison for a term of a maximum of three months, subject to the proviso that the term of imprisonment will come to an immediate end if the appellant complies with the injunction issued on 5 May 2005 and made permanent on 23 December 2008 by the High Court at Auckland in the proceeding Korda Mentha v Siemer HC Auckland CIV-2005-404-1808, 23 December 2008 and if he also provides an undertaking to the High Court in a form approved by the High Court that he and Paragon Oil Services Ltd will continue to comply with that injunction for so long as it remains in force.

 Mr Siemer is ordered to surrender to his bail at the High Court in Auckland no later than 4pm on 20 May 2010 unless by then he has complied with the injunction and provided that undertaking to the High Court in a form approved by it.

17 May 2010.

Application for recall of judgment dismissed.

11 June 2010.

Further application for recall of judgment dismissed.

15 June 2010.

David George Saggers v The Queen

Criminal Appeal – the appellant was convicted in the High Court for manufacturing methamphetamine and possessing equipment capable of being used in the manufacture of methamphetamine – Court of Appeal allowed the appellant’s appeal against conviction on the manufacturing charge and ordered a retrial but upheld the appellant’s conviction for possessing equipment capable of being used in the manufacture of methamphetamine – Appellant was found not guilty on the manufacturing charge at the retrial – Whether the guilty verdict on the charge of possessing equipment is inconsistent with the not guilty verdict on the manufacturing charge, amounting to a miscarriage of justice.

[2008] NZCA  364   CA 121/2008    12 September 2008

Application to leave to appeal dismissed.

30 July 2009

Cashmere Capital Limited v Patrick Kevin Carroll and others

Civil – Retirement Villages Act 2003 – retrospective operation of the Act – the Court of Appeal held that when there has been an Order in Council under s 103, the Registrar-General must note on the certificate of title to the land comprising the village that it is subject to s 22 of the Act, and that the expressed intention of Parliament was that the Act should operate retrospectively to 31 December 2002 – whether the Court of Appeal erred in its interpretation of ss 103 and 21 of the Act - whether the Court of Appeal erred in finding that if the Registrar-General has registered Crossdale Village under s 21 of the Act then s 22 applied to the appellant and if the Registrar-General has not done so it should be performed forthwith.

[2009] NZCA  185   CA 190/2007    15 May 2009

Application for leave to appeal granted.

24 July 2009.

5 November 2009.

Elias CJ,  Blanchard, Tipping, McGrath, Wilson J.

Decision reserved.

Appeal allowed, judgment of the Court of Appeal is set aisde. Costs of $5,000 plus disbursements to the appellant.

Bhikubhai Patel  v The Queen

Criminal – appeal against conviction and sentence – whether the Court of Appeal were wrong to find that tape recordings, which were not the originals, were nevertheless admissible – whether the Court of Appeal erred in finding that it was not necessary to expressly warn the jury about the dangers of inferring intent from the literal meaning of words spoken in a foreign language – whether police practices and procedures were proper in this case

[2009] NZCA 159   CA 190/2007    30 April 2009

Application for leave to appeal dismissed.

5 February 2009. 

Alex Kwong Wong v The Queen

Criminal appeal – appeal against refusal to grant bail pending appeal – whether the Court of Appeal erred in law by applying the wrong test – whether the Court of Appeal erred in law by applying too rigid or too high a standard – whether the Court of Appeal failed properly to apply the correct statutory factors set out in ss 8 and 14 of the Bail Act 2000 – whether the Court of Appeal failed to take into account or accord due weight to the substantial miscarriage of justice allegedly suffered by the appellant

[2009] NZCA 202 CA 190/2009    21 May 2009

Application for leave to appeal dismissed.

16 June 2009

Peter David Buddle v The Queen

Criminal – Appeal against conviction – Crimes Act 1961 – Sexual offending – Criminal procedure – Exercise of s 374 discretion to discharge jury without their giving of a verdict – Whether trial Judge had authority to discharge jury at first trial on “a hung jury aspect” – Whether second trial a nullity in respect of all charges – Whether miscarriage of justice established.

[2009] NZCA 184 CA 416/2008  14 May 2009

Application for leave to appeal granted.

22 June 2009.

Appeal allowed, Convictions set aside. New Trial ordered on three counts.

William Patrick Jeffries v The Privacy Commissioner

Civil – Judicial Review – Whether the Court of Appeal erred in holding that a barrister may not invoke the privilege of general immunity against civil liability in respect of his participation in court proceedings against the Privacy Commissioner in relation to the barrister’s preparation and conduct of court proceedings and thereafter – Whether the Court of Appeal was wrong to find that a barrister conducting litigation before a court comes within the definition of “agency” in s 2 of the Privacy Act 1993 – Whether the Court of Appeal erred in finding that “any person” in s 91(4) of the Act includes persons who are not “agencies” pursuant to s 2 of the Act – Whether the Court of Appeal was wrong to find that the Privacy Commissioner’s failure to abide her notice obligations under ss 70 and 73 of the Act was understandable and not a relevant consideration in assessing her decision-making

CIV 2006 – 485-860  22 May 2008

Application for leave to appeal refused.  Costs $2,500 plus disbursements to the respondent.

3 June 2009

William Patrick Jeffries v The Attorney-General

Civil – Judicial Review – Whether the Court of Appeal erred in holding that as the Appellant was not a participant in the statutory scheme under review the Appellant did not possess public interest standing to review the identified pleaded decisions – Whether the Court of Appeal erred in finding that s 27(1) of the New Zealand Bill of Rights Act 1990 has no application to decision making under the Official Information Act 1982

CIV 2006 – 485-2161  20 May 2008

Application for leave to appeal refused.  Costs $2,500 plus disbursements to the respondent.

3 June 2009 

Christopher Bede Ward v Diane Mary Ward

Civil – Family – Whether the Court of Appeal was wrong to find that an agreement for the sale and purchase of shares was a settlement for the purposes of s 182(1) of the Family Proceedings Act – Whether the Court of Appeal erred in finding that for the purposes of s 182(6) of the Act a matrimonial property agreement was to be considered by itself and not as part of an overall transaction – Whether the Court of Appeal was wrong to find that access to s 182(1) could be gained where it was necessary in the interests of fairness and justice to do so, and thereafter the remedial discretion was a broad one to be exercised in the manner which achieved a fair result taking into account the total background – Whether the Court of Appeal was wrong to disallow Mr W’s separate property interests subsumed by the overall transaction.

[2009] NZCA 139  CA 309/2008  9 April 2009

 Application for leave to appeal granted in part. 1 July 2009.

Elias CJ,  Blanchard, Tipping, McGrath, Wilson J.

Decision reserved.

Costs of $15,000 to the respondent plus didbursements.

Tasman Orient Line CV v New Zealand China Clays Limited and others

Civil appeal – application of the Protocol to Amend the International Convention for the Unification of Certain Rules Relating to Bills of Lading (“the Hague-Visby Rules”) to a grounding of a ship owned by the appellant – whether by reason of the conduct of the master of the vessel the appellant is not entitled to rely on the protection of Article IV Rule 2(a) – whether the Hague-Visby Rules depart from the prior common law – whether the history behind the Hague-Visby Rules is relevant to interpretation – whether the interpretation of Article IV Rule 2(a) should have regard to the factual context – whether the factual context warrants an interpretation of Article IV Rule 2(a) that results in the appellant being liable – whether an interpretation of Article IV Rule 2(a) which results in the appellant being liable is consistent with purpose and policy of the Hague-Visby Rules – whether an interpretation of Article IV Rule 2(a) which results in the appellant being liable is consistent with Article III Rule 2

[2009] NZCA 135   CA  519/2007   9 April 2009

Application for leave to appeal granted. 1 July 2009.

Shane Charles Wenzel  v The Queen

Criminal – Appeal against decision of District Court Judge ordering trial by Judge alone under s 361D of the Crimes Act 1961 – Whether the incorporation into s 361D(3)(b) of an accused’s right to trial by jury requires an assessment of the weight of an accused’s right to jury trial in the circumstances of the case and the potential length of any sentence that might be imposed on conviction – Whether the s 361D limit on an accused’s right to jury trial can be demonstratively justified under s 5 of the New Zealand Bill of Rights Act 1990.

[2009] NZCA 130   CA  31/2009   8 April 2009

Application for leave to appeal dismissed.

9 June 2009

GPM v The Queen

Appeal against pre-trial ruling. Police investigating a burglary stopped a car in which the appellant was a passenger. Whether stopping the car was lawful despite police acting under a wrong statutory power when an alternative statutory power was available; Whether the continued search of the appellant’s car after what had initially been thought to be weapon was actually a metal thermos was lawful; Whether evidence obtained during the continued search of the car and the resulting searches of the appellant and the appellant’s house was admissible.

[2009] NZCA 121   CA  743/2008   6 April 2009

Application for leave to appeal dismissed.

3 June 2009.

Ian Russell Geary v The Psychologists Board and another

Civil – cross-examination of witnesses in judicial review proceedings – application by Mr Geary for leave to cross-examine witnesses who had provided affidavits on behalf of the Psychologists Board in a judicial review of decisions of the Board in disciplinary matters concerning Mr Geary – whether the rule imposing a requirement of leave to cross-examine witnesses in applications for judicial review is contrary to statute, and is not a rule that can be made by a Court – whether the Court of Appeal erred in declining to re-examine the validity of the rule – whether there was a proper basis for the High Court to deny the plaintiff the ability to cross-examine the first respondent’s witness.

[2009] NZCA 134   CA  818/2008  9 April 2009

Application for leave to appeal dismissed, with costs $2,500 to the first respondent. 24 June 2009.

Arthur William Taylor v The Department of Corrections and another.

Civil – Disciplinary proceedings - Whether the Court of Appeal erred in finding that the decision of the Hearing Adjudicator to refer a charge to a Visiting Justice was not subject to s 27 of the New Zealand Bill of Rights Act 1990 – Whether the Court of Appeal wrongly found the decision of the Hearing Adjudicator did not breach natural justice – Whether the Court of Appeal erred in holding that s 134 of the Corrections Act 2004 does not require a Hearing Adjudicator to provide notice to a prisoner that his or her charge is being referred to a Visiting Justice, or to allow the prisoner the opportunity to be heard on that referral – Whether the Court of Appeal erred in finding that the Hearing Adjudicator had not taken into account irrelevant circumstances – Whether the Court of Appeal was wrong to hold that s 134(2)(a) of the Corrections Act does not exclude consideration of a prisoner’s past disciplinary record.

[2009] NZCA 129   CA  318/2008

Application for leave to appeal dismissed.

24 July 2009.

Leroy John Barr v New Zealand Police

Criminal appeal – whether jurisdiction to order the payment of medical expenses incurred by the Police in administering a blood test against persons convicted of driving with excess blood alcohol. 

[2009] NZCA 124   CA  700/2008

Application for leave to appeal granted.

16 June 2009

8 October 2009

Blanchard. Tipping, McGrath, Wilson, and Anderson JJ

Appeal allowed. The order for payment of medical expenses of $102.60 is set aside.  Insubstitution, the appellant is ordered to pay $93 towards medical expenses.

21 October 2009

AK v The Queen

Criminal appeal – convictions for sexual offending and assault – appeal based on conduct of defence counsel and alleged deficiencies in the trial process - whether the Court of Appeal erred in applying R v Condon [2005] 1 NZLR 446 – whether the appellant was denied the right to a fair trial – whether the appellant was denied the right to legal representation – whether the trial judge erred in accepting the report of a forensic nurse and finding the appellant was competent to instruct counsel

[2009] NZCA 97   CA 531/07

Application for leave to appeal refused

19 June 2009.

A R Poynter v The Commerce Commission

Civil – Commerce Act – Whether the Court of Appeal erred in holding that s 4 is not an exhaustive statement of the circumstances in which the provisions of the Act apply to overseas conduct – Whether the Court of Appeal was wrong to find that the conduct of another foreign resident who acted in New Zealand could be attributed to the Appellant so as to treat the Appellant as having acted within New Zealand through that other person – Whether the Court of Appeal wrongly imported the jurisdictional reach of conspiracy in s 310 of the Crimes Act 1961 into s 80(1)(f) of the Act.

[2009] NZCA 84  CA 257/2007

Application for leave to appeal granted.

16 June  2009

17 November 2009

Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ.

Darin Joseph Gardner v The Queen

Criminal appeal – Applicant convicted of murder, injuring with intent to cause grievous bodily harm and injuring with intent to injure – Appeal against conviction and sentence – Whether the Court of Appeal erred in finding that the applicant’s trial was fair – Whether the Court of Appeal erred in finding that the discharge of only one juror in certain circumstances, rather than two, was fair – Whether the Court of Appeal erred in finding that provocation was not available as a defence – Whether the Court of Appeal erred in finding that provocation and defence of another were not material in the applicant’s sentencing.[2009] NZCA 113   CA 665/07

Application for leave to appeal dismissed.

16 June 2009

Elias Akle v The Commerce Commission

Civil – Commerce Act – Whether the Court of Appeal erred in holding that s 4 is not the repository of the extraterritorial reach of the Act – Whether the Court of Appeal was wrong to find that proof of personal conduct in New Zealand is not critical to establishing jurisdiction in respect of overseas residents – Whether the Court of Appeal erred in finding that conduct in New Zealand could be attributed or imputed to overseas parties in the absence of a recognised legal basis, or the requirements of s 90 being met – Whether the Court of Appeal was wrong to find that the application to set aside the protest to jurisdiction against Mr Akle should succeed in the absence of any allegation that he communicated with or directed any New Zealand actor to do any impugned act while the New Zealand actor was overseas.

Application for leave to appeal granted.

16 June 2009

Royal Forest and Bird Protection Society of New Zealand Incorporated v Kapiti Coast District Council and Kotuku Parks Limited

Civil appeal – ss 94A(c) & 93 Resource Management Act 1991 – application for resource consent to subdivide land adjacent to the Waikanae River Estuary Scenic Reserve – Department of Conservation gave written approval to the application – decision taken to proceed to hear the application without notification – Court of Appeal held that the approval of the Department of Conservation did not allow the first respondent to disregard the effects of the application on the Reserve when deciding whether to notify – whether the first respondent is required to consider the effects of the application on the Reserve when making the notification decision under s 93 – whether the first respondent must be “satisfied” that the adverse effects of the activity on the Reserve will be minor – whether the Court of Appeal correctly applied ss 94A(c) & 93

[2009] NZCA 73  CA 695/07

Application for leave to appeal is dismissed, with costs of $2,500 to the respondents jointly.

16 June 2009

Aaron Mark Wi v The Queen

Criminal – Appeal against convictions for wounding with intent to cause grievous bodily harm and assault with intent to injure – Substantial miscarriage of justice – Whether appellant unfairly prejudiced by trial Judge’s ruling precluding appellant from adducing evidence of lack of convictions for violent offending.

[2009] NZCA 81  CA 586/2008

Application for leave to appeal granted.

7 May 2009.

18 August 2009

18 August 2009

Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ.

Decision reserved.

Appeal dismissed.

Ivan Vladimir Joseph Erceg v Balenia Limited

Civil appeal – alleged contractual breach by the appellant – clause A4(a) of the contract stipulates that the appellant’s former solicitors are to be satisfied that the respondent has clear title to the super-yachts which form the subject of the contract – the appellant’s former solicitors have not certified the respondent’s title to the super-yachts – whether the respondent is required to give notice to the appellant of its intention to rely on his alleged breach – whether the respondent is entitled to sue before making time of the essence for performance of the contract – whether the respondent bears the onus of proving that it would have been able to show clear title to the super-– whether the respondent can treat clause A4(a) as being fulfilled for the purposes of obtaining relief – whether the Court of Appeal was correct to order specific performance of the contract.

[2009] NZCA 48  CA 553/2008

Application for leave to appeal is dismissed, with costs of $2,500 to the respondent.

27 May 2009.   

TFAC Limited, Geoffrey Alan Grisdale and Amanda May Grisdale v Susan Elizabeth David and UAR Limited

Civil – Fair Trading Act 1986 – Australian home services franchising operation – Applicants entered into a master franchise agreement covering Auckland’s eastern suburbs with the respondents, who owned the New Zealand master franchise – Whether the Court of Appeal erred in fact and law in its finding that the respondents did not engage in misleading and deceptive conduct in breach of s 9 of the Act – Whether the Court of Appeal erred in overlooking the High Court’s finding that the respondents had breached s 22(1) and (2) of the Act – Whether the Court of Appeal erred in treating a particular pleaded misrepresentation as a misrepresentation as to a future matter – Whether the Court of Appeal erred in finding that a particular opinion was honestly held by the first respondent and had a reasonable basis – Whether the Court of Appeal erred in its finding that even if the respondents had engaged in misleading and deceptive conduct the causal link necessary to justify relief under s 43 of the Act was doubtful – Whether the Court of Appeal erred in its finding that the respondents were protected from liability by various disclaimer and acknowledgement clauses.

[2009] NZCA 44 CA 26/2008

Application for leave to appeal is dismissed, with costs of $2,500 to the respondent.

26 May 2009.

The Commerce Commission v Carter Holt Harvey Limited

Civil – Strike-out – Whether the Court of Appeal erred in holding that for the purposes of s 43(5) of the Fair Trading Act 1986 the relevant knowledge was that of both the Commission and the person who had suffered loss – Whether the Court of Appeal was wrong to hold that knowledge of “likelihood of loss or damage” was sufficient for time to start running for a claim for relief under s 43(2)(c) and (d) of the Fair Trading Act – Whether the Court of Appeal was wrong to conflate discovery of a breach of the Fair Trading Act with discovery of loss or damage – Whether the Court of Appeal erred in holding that only a minimal amount of knowledge is required to set the limitation period running under s 43 of the Fair Trading Act – whether the Court of Appeal erred in holding that the Commission discovered the loss or damage before the limitation date

[2009] NZCA 40    CA 316/2007 27 February 2009

Application for leave to appeal granted.

25 May 2009.

11 August 2009.

Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ.

Appeal allowed.

The order of the Court of Appeal is set aside and the application to strike out the appellant’s proceeding is dismissed.

The respondent is ordered to pay the appellant for its costs in this Court the sum of $15,000 plus disbursements, to be fixed if necessary by the Registrar.  The costs order made in the Court of Appeal is reversed and the costs order made in the High Court is reinstated.

27 November 2009

Govind Prasad Saha v Commissioner of Inland Revenue

Civil appeal – application of the foreign investment fund rules contained in Part CG of the Income Tax Act 1994 – the appellant was a partner in a firm that sold its consultancy business to a French company – as part of the sale transaction the appellant agreed to work for the consultancy business for five years from the date of settlement – as part of the sale transaction the appellant received a package of shares in the French company to be gradually released to him over a five year period – the appellant ended his employment in the consultancy business prematurely – the resulting deed of settlement provides that 50% of the unreleased shares will be transferred to the French company – whether the transfer of shares is a “disposition” for the purpose of s CG 23(5) – whether the appellant derived a gain in kind from the transfer of shares for the purposes of s CG 14(2)

[2009] NZCA 76 CA 617/2008

Application for leave to appeal is granted.

25 May 2009.

27 October 2009

Chief Justice, Blanchard, Tipping, McGrath, Wilson JJ.

Appeal dismissed. Costs $15,000 to respondent.

23 July 2010.

Ian Laywood and Gary Rees v Holmes Construction Wellington Limited

Civil Appeal – Construction Contracts Act 2002 – Statutory Interpretation – Enforcement of adjudicator’s determination by entry as judgment – Extent to which Construction Contracts Act judgments are to be treated differently as matter of law to non-Construction Contract Act judgments vis-à-vis Insolvency legislation – Whether Court of Appeal erred in holding ss 73 and 74 of the Construction Contracts Act created a special regime for the enforcement of adjudicators’ determinations that is not subject to s 29 of the District Courts Act 1947 and that entry of a judgment pursuant to ss 73 and 74 was a final judgment for the purposes of s 19(1) of the Insolvency Act 1967 – Whether Court of Appeal erred in holding principles of natural justice and s 27 of the New Zealand Bill of Rights Act 1990 did not entitle the Appellants to an oral hearing (as opposed to judgment being delivered on the papers).

[2009] NZCA  35   CA 83/2008   25 February 2009

Application for leave to appeal dismissed.

Costs $2,500 to respondent.

15 May 2009.

Westpac Banking Corporation v The Commissioner of Inland Revenue

Tax Law – Whether judicial review of a Commissioner’s decision is inconsistent with the statutory scheme of challenge under Part VIIIA of the Tax Administration Act 1994; whether judicial review amounted to a collateral attack on the Commissioner’s decision; Whether exceptional circumstances existed that resulted in an amended assessment falling outside the scope of s 109 and s 114 of the Tax Administration Act 1994 (the statutory scheme of challenge) and thereby justifying judicial review; Whether conscious or deliberate maladministration are the only circumstances in which an assessment may be invalid; Whether there was a breach of a legitimate expectation held by Westpac; Whether the Commissioner’s amended assessment was not an honest appraisal or a genuine exercise of judgment; Whether the Commissioner’s amended assessment was the product of an abuse of power; Whether the Commissioner’s procedure applied in coming to an amended assessment was consistent with the law; Whether a correct assessment, reached by an improper process, is valid.

[2009] NZCA  24 CA 624/07   20 February 2009

Application for leave to appeal dismissed.

Costs $2,500 plus reasonable disbursements to the respondent.

 Robert John Erwood v Janet Maxted and others and The Official Assignee

Civil Appeal – stay of advertising of bankruptcy.

[2009] NZCA  CA 545 /2008 17 February 2009

Edin Bozz Boskovic  v The Queen

Criminal – Sexual violation by rape – Appeal against conviction - Whether the Court of Appeal erred in finding that the alleged incompetence of trial counsel did not cause a miscarriage of justice – Whether the Court of Appeal erred in holding that the trial Judge’s ruling on alibi evidence was correct.

CA 33/2006  12 December 2006

Application for leave to appeal dismissed.

3 June 2009.

Secrurities Registry Limited and another v Virginia Gomes

Civil appeal – loan agreement conditional on payment of a sum by a third party to the debtor – sum paid to the debtor by way of setoff against the debtor’s debt to the third party – setoff occurred without the knowledge of the lender – debtor’s accountant represented to the lender that the sum was “being held” by debtor – whether negligent misstatement – whether misleading or deceptive conduct under s 9 of the Fair Trading Act 1986 

[2008] NZCA 567  CA 355/2007  19  December 2008

Application for leave to appeal dismissed.

Costs $2,500 to respondent.

28 April  2009.

Ports of Auckland Limited v Southpac Trucks Limited

Civil Appeal – Carriage of Goods Act 1979 – Statutory Interpretation – Proper meaning of s 6 “not liable as such” – Whether Court of Appeal erred in its application of the statutory exemption conferred in s 6 of the Carriage of Goods Act – Whether Court of Appeal erred in its conclusion that fork lift operator negligently driving into truck and causing $60,000 damage was exempt from liability under s 16(2) of the Carriage of Goods Act with the consequence that Ports of Auckland Ltd could not be held vicariously liable.

[2008] NZCA 573  CA 355/2007  22  December 2008

Application for leave to appeal granted.

Blanchard, Tipping, McGrath, Wilson and Anderson JJ.

Appeal allowed and the judgment of the High Court is restored.

Appellant awarded costs of $15,000 together with reasonable disbursements. Costs order in the Court of Appeal is reversed.

30 October 2009.

The Trustees of Te Huria Matenga Wakapuaka Trust v The Minister of Conservation and others

Land Law – Maori Customary Title – Ownership of Land – land subject to both a Native Land Court Certificate of Title and a Land Transfer Act title – whether the Land transfer Act Certificate of Title takes priority – Interpretation of inconsistent Certificates of Title.

[2008] NZCA 564  CA 18/2008 18  December 2008

 Ink Media Limited v The Queen

Criminal – whether the Court of Appeal erred in finding that the Court had jurisdiction to try the applicants – whether the Court of Appeal was wrong to find that the applicants had sold and advertised medicines in breach of the Medicines Act 1981 by using the internet.

[2008] NZCA 563  CA 18/2008 18  December 2008

Application for leave to appeal dismissed.

30 April 2009.

 Wallace Leslie Waugh v The Queen 

Criminal – whether the Court of Appeal erred in finding that the Court had jurisdiction to try the applicants – whether the Court of Appeal was wrong to find that the applicants had sold and advertised medicines in breach of the Medicines Act 1981 by using the internet.

[2008] NZCA 563  CA 19/2008 18  December 2008

30 April 2009.

Audrey Bredmeyer v The Chief Executive of the Ministry of Social Development

Civil appeal - New Zealander living in Australia seeks payment of New Zealand superannuation – whether Article 9.3 of the Agreement on Social Security, Schedule 1 Social Welfare (Reciprocity with Australia) Order makes payment of New Zealand superannuation contingent on meeting the income test and asset test for Australian pensions – whether the social purpose behind the current Agreement on Social Security between New Zealand and Australia differs from previous agreements - whether the Court of Appeal accorded natural justice to the Appellant.

[2008] NZCA 557 CA 666/2007 17 December 2008

Application for leave to appeal dismissed.

Costs $2,500 to respondent.

30 March 2009.

 David Cullen Bain  v The Queen

 [2009] NZCA  CA 769/2008 30 January 2009

Application for leave to appeal granted.

24 February 2009.

2 March 2009.

Decision Reserved.

A The appeal is allowed.

B The disputed evidence is excluded and the material in issue is to be excised.

18 March 2009

 Te Ingoa Turaki v The Queen

Criminal - Whether trial judge erred in summing up to jury by not properly putting the appellant’s principal defence “lack of murderous intent” adequately before the jury –  Whether failure to sum up amounted to a miscarriage of justice.

{2008] NZCA 543  CA 669/2007  10 December 2008

Alana Glenys-May Thomas  v The Queen

Criminal – Appeal from decision of the Court of Appeal allowing the admission of certain evidence at trial – Police executing a search warrant obtained the evidence through a search of an apartment – Applicant pleaded guilty to variety of drug-related offences – Whether the Court of Appeal erred in finding that the police search warrant was lawful and the evidence lawfully and properly obtained – Whether the Court of Appeal should have given greater weight to the breach of s 198 of the Summary Proceedings Act 1957 in determining whether the evidence should have been admitted.

[2008] NZCA 4352  CA 81/2008  8 September 2008

Application for leave to appeal dismissed.

Shannon Kay Stevens v Solicitor-General

Criminal appeal – application for an extension of time for appeal – convictions for offences relating to the supply of methamphtamine – forfeiture orders were made under s 15(1) Proceeds of Crime Act for a range of property – appeal on forfeiture orders made out of time – whether delay due to conduct of counsel – whether leave to appeal out of time should be granted

[2008] NZCA 579  CA 325/2008  22 December 2008

Notice of abandonment being lodged, the appeal is deemed to be dismissed.

 Michael Joseph Cavanagh v The Queen

Criminal appeal – application for an extension of time for appeal – convictions for offences relating to the supply of methamphtamine – forfeiture orders were made under s 15(1) Proceeds of Crime Act for a range of property – appeal on forfeiture orders made out of time – whether delay due to conduct of counsel – whether leave to appeal out of time should be granted

[2008] NZCA 579  CA 57/2008  22 December 2008

Notice of abandonment being lodged, the appeal is deemed to be dismissed.

23 March 2009  

 Arshad Mahmood Chatha v The Queen

Criminal – Appeal against conviction and sentence – Whether Court of Appeal erred in concluding sentence not manifestly excessive and/or wrong in principle – Sentencing Act 2002, s 30 – Whether Court of Appeal erred in finding requirements of s 30 satisfied – Appeal against two recusal judgments – New Zealand Bill of Rights Act 1990, s 25(a) – Whether Court of Appeal erred in dismissing application for Judge’s recusal.

[2008] NZCA 427  CA 685/2007  10 December 2008

Application for leave to amend the grounds of appeal is dismissed.

Application for leave to appeal is dismissed.

24 March 2009.

 Kimberley Birkenfeld v Anthony Bruce Kendall and Yachting New Zealand Inc

Civil Appeal – damages claim in negligence following boating accident causing physical injury to the applicant – permanent stay ordered in Court of Appeal – whether Court of Appeal failed to consider issues before it – whether Court of Appeal should give reasons in relation to issues that did not need to be decided in order to dismiss the appeal – whether Court of Appeal sufficiently accommodated the applicant’s disabilities.

[2008] NZCA 531  CA 570/2007  4 December 2008

Application for leave to appeal dismissed with costs $2500 to the respondents jointly. 1 July 2009.

Beverley Rawleigh v Derek Maxwell Tait

Civil – Breach of fiduciary duty – Liability – Solicitor acted for both husband and wife in a transaction without informed consent of wife – Whether a solicitor is liable for losses flowing from a transaction in which he acted for a client in breach of his fiduciary duty to avoid conflicts of interest where the client would have entered into the transaction in any event.

[2008] NZCA 525  CA 609/2007  3 December 2008

Application for leave to appeal is dismissed.

Costs $2,500 to the respondent.

17 February 2009.

 Arthur William Taylor v The Queen

Criminal Appeal – kidnapping and escaping from lawful custody – appeal against conviction and sentence – whether a plea of previous acquittal was available to the applicant at his trial – whether the Court of Appeal was correct to hold that whether the applicant was in lawful custody was an issue for the judge – whether the sentence was excessive

[2008] NZCA 558  CA 61/2008  17 December 2008

Application for leave to appeal is dismissed.

15 May 2009

Michael Gregory v Thomas Patrick  Joseph Gollan and others

Civil appeal - application for proceeding to trial by judge and jury – alleged wrongful arrest – whether proceedings involve mainly questions of law – whether discretion to allow trial by judge has been properly exercised - whether trial by judge denies the appellant of constitutional rights – whether c.29 Magna Carta applies to civil proceedings concerning wrongful arrest.

[2008] NZCA 568  CA 699/2007  19 December 2008

Application for leave to appeal dismissed.

Costs $2,500 to respondent.

30 March 2009.

 David Cullen Bain v The Queen

[2008] NZCA 585  CA 572/2008, CA 672/2008  24 December 2008

Application for leave to appeal granted. 

4 February 2009.

Notice of  Abandonment of Appeal being lodged, the appeal is deemed to be dismissed.

9 February 2009

MJT v DGH

Civil Appeal – Hague Convention – Sections 105 and 106 Care of Children Act 2004 – Appeal against Court of Appeal’s refusal to stay Family Court order to return children to Australia – whether children at grave risk if returned to Australia – whether the children were habitually resident in New Zealand – whether the children’s human rights have been breached.

[2008] NZCA 586  CA 776/2007  24 December 2008

Application for leave to appeal dismissed.

4 February 2009.

CJ B v MVB

Civil – family law – Property (Relationships) Act 1908 – parties ended a de facto relationship but subsequently married and later separated again – Court of Appeal held that, for the purposes of s 4C of the Act, the parties’ marriage was not a continuation of their de facto relationship – whether the Court of Appeal was correct to apply a different yardstick in deciding whether a relationship had come to an end for married and de facto couples during a period of temporary separation.

[2008] NZCA 520  CA 412/2008  2 December 2008

Application for leave to appeal refused. 17 March 2009.