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Case summaries 2007

 

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As at 27 November 2009

 

Case Number SC94 /2007  
Case Name

Greenpeace New Zealand Incorporated v Genesis Power Limited

Summary

Summary Civil – interpretation of ss 70A and 104E of the Resource Management Act 1991 – under those sections, consent authorities are prohibited from having regard to the effects of greenhouse gas discharges on climate change, except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases, either in absolute terms or relative to non-renewable energy – whether Court of Appeal was wrong to hold that the exception only applies to renewable energy applications – whether the Court of Appeal erred in its decision to exercise its jurisdiction to grant declaratory relief.

[2007] NZCA 569 CA 372/07 11 December 2007

Dates Application for leave to appeal granted.

11 February 2008

Hearing 28 May 2008
Elias CJ, Blanchard, Tipping, McGrath, Wilson JJ
Decision   

Appeal dismissed.

19 December 2008.

 

 

Case Number SC93 /2007  
Case Name

Vince and Jane Siemer and Paragon Services Limited v Kate Fardell, Executrix for Robert Fardell

Summary

Summary Civil – interlocutory – applicants seeking trial by jury in proceedings for negligence and breach of fiduciary duty – whether Court of Appeal erred in confirming decision of High Court to grant respondent’s application for an order that the trial be held before a Judge alone – applicability of s 19A(5)(a) and/or (b) Judicature Act 1908 – applicants alleging conflicts of interest on part of High Court and Court of Appeal Judges.

[2007] NZCA 530 CA 171/07 22 November 2007

Dates Application for leave to appeal dismissed. Costs $1500 to respondent.

28 February 2008

 

Case Number SC92 /2007  
Case Name

Colin Todd Parker v The Queen

Summary

Criminal – appeal against conviction of indecently assaulting a girl under 12 years – whether the Court of Appeal erred by holding that the fact the defence had not produced evidence of a motive for the complainant to give false evidence was relevant to the jury’s assessment of her credibility – whether the trial judge’s summing up conformed with R v T [1998] 2 NZLR 257 - whether R v T should represent the law in New Zealand insofar as it allows juries to regard a complainant’s evidence as more likely to be true where the defence has not offered any evidence for why the defendant might lie – whether R v T reverses the onus of proof in breach of sections 25(c) and (d) of the New Zealand Bill of Rights Act 1990.

[2007] NZCA 534 CA 479/07 CA 572/07 CA 211/06 22 November 2007

Dates Application for leave to appeal dismissed.

15 April 2008

 

Case Number SC91 /2007  
Case Name

Geoffrey Charles Dury and others v Palmerston North City Council and others

Summary

Civil appeal – Resource Management Act 1991 – application by third respondent (an orthodontist) for consent to use a dwelling in a residential area for a non-residential purpose – proposal failed to comply with conditions of District Plan and required a restricted discretionary resource consent, which Council granted without requiring notification – High Court quashed Council’s consent – Court of Appeal overturned High Court decision and restored resource consent – in the meantime, third respondent had applied for and been granted a second resource consent, subject to more restrictive conditions than the first – whether second consent replaced first consent in toto in accordance with Sutton v Moule (1992) 2 NZRMA 41 – whether third respondent may be deemed to have abandoned first consent by making and proceeding with second application and complying with its conditions – alternatively, whether the two consents coexist and third respondent must comply with the conditions of both – whether the consent that is later in time should prevail – whether the Court of Appeal was correct in holding that it had no discretion as to the available remedy – whether the Court of Appeal correctly applied the principles of the Discount Brands case ([2005] 2 NZLR 597) in relation to dispensing with public notification – application for stay of execution of Court of Appeal’s costs orders.

[2007] NZCA 521 CA 198/06 CA 211/06 20 November 2007

Dates The application for leave to appeal is dismissed with costs of $1,000 to the first respondent and $1,000 jointly to the second and third respondents.

1 April 2008

 

 

Case Number SC90 /2007  
Case Name

G v The Queen

Summary

Criminal appeal – appeal against 10 convictions for sexual offences – whether applicant had necessary facilities for making appeal – whether there was a miscarriage of justice.

[2007] NZCA 518 CA 179/06 20 November 2007

Dates Application for leave to appeal dismissed.
22 May 2008

 

Case Number SC89 /2007  
Case Name

Alan Ivo Greer v The Queen

Summary


Criminal appeal – rehearing of appeal against conviction for driving while disqualified, pursuant to R v Smith [2003] NZLR 617 – whether Court of Appeal erred in not allowing appeal against conviction - whether the applicant was prevented from bringing a defence because photographic and transcript evidence had been destroyed or not disclosed - whether the Court of Appeal gave proper consideration to evidence – whether applicant was given necessary access to Court records – whether there was a miscarriage of justice.

[2007] NZCA 517 CA 161/06 20 November 2007

Dates Application for leave to appeal dismissed.
22 May 2008

 

Case Number SC88 /2007  
Case Name

Kevin Joseph Charles Little

Summary

Summary Criminal – appeal against conviction and sentence – murder of baby daughter – whether verdict supportable having regard to the evidence (s 385(1)(a) Crimes Act 1961) – whether admission of expert evidence of geophysicist (animation of applicant’s pre-trial explanation of incident) resulted in a miscarriage of justice – whether minimum non-parole period of 17 years manifestly unjust.

[2007] NZCA 491 CA 557/07 9 November 2007

Dates

Application for leave to appeal is dismissed.

22 February 2008

 

 

Case Number SC87 /2007  
Case Name

Phillip Hans Field v Malcolm James Burgess

Summary

Criminal appeal – sentencing – Court of Appeal quashed the sentence of six and a half years imposed by the District Court judge and replaced it with a sentence of eight years – whether the Court of Appeal was correct to increase the sentence imposed in the District Court – in particular, whether courts are obliged to accept eight years as the starting point in cases of sexual violation by rape – whether a guilty plea made after the complainant has given evidence is necessarily less worthy than a guilty plea that spares the complainant the need to give evidence – whether a guilty plea entered part way through trial by one accused is of assistance to the Crown with respect to bolstering the credibility of the complainant’s evidence – whether the trial judge has an unfettered right to enter a merciful sentence – whether the Court of Appeal made material factual errors – whether the Court of Appeal’s approach has resulted in a miscarriage of justice.

[2007] NZCA 550 CA 511/07 29 November 2007

Dates Application for leave to appeal dismissed.

17 December 2007.

 

Case Number SC86 /2007  
Case Name

Stephen Peter Tandy v The Queen

Summary

Criminal appeal – sentencing – Court of Appeal quashed the sentence of six and a half years imposed by the District Court judge and replaced it with a sentence of eight years – whether the Court of Appeal was correct to increase the sentence imposed in the District Court – in particular, whether courts are obliged to accept eight years as the starting point in cases of sexual violation by rape – whether a guilty plea made after the complainant has given evidence is necessarily less worthy than a guilty plea that spares the complainant the need to give evidence – whether a guilty plea entered part way through trial by one accused is of assistance to the Crown with respect to bolstering the credibility of the complainant’s evidence – whether the trial judge has an unfettered right to enter a merciful sentence – whether the Court of Appeal made material factual errors – whether the Court of Appeal’s approach has resulted in a miscarriage of justice.

[2007] NZCA 550 CA 511/07 29 November 2007

Dates Application for leave to appeal is dismissed.

22 February 2008

 

Case Number SC85 /2007  
Case Name


Steelbro New Zealand Ltd v Tidd Ross Todd Ltd
Summary Civil – Copyright Act 1994 – High Court found applicant had infringed copyright in plaintiff’s sideloading container trailer – decision upheld by Court of Appeal – whether Court of Appeal failed to apply the legal principle that copyright protects not the originality of ideas but the form of their expression – whether Court of Appeal failed to give sufficient weight to policy arguments – whether Court of Appeal wrongly applied Designers Guild v Russell Williams (Textiles) Limited [2001] 1 All ER 700 (HL) – whether Court of Appeal failed to give sufficient weight to evidence that similarities between products were a consequence of design, engineering and regulatory constraints rather than due to copying – whether it was open to High Court to find that applicant had copied the sideloader.

Summary

[2007] NZCA 486 CA 7/06 2 November 2007

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

21 February 2008

 

Case Number SC84 /2007  
Case Name

Minister of Fisheries and The Chief Executive of the Ministry of Fisheries v Antons Trawling Limited, Esperance Fishing Co Limited and Orneagan Developments Limited

Summary

 

Summary Civil – appeal from a Court of Appeal decision which granted interim relief to the Respondents against a decision, of the Minister of Fisheries, to reduce the Total Allowable Catch/Total Allowable Commercial Catch for an Orange Roughy fish stock – Applicant claims that the Court of Appeal erred in law, by failing to follow the test in Carlton & United Breweries v Minister of Customs [1986] 1 NZLR 423 when determining the scope of the remedy under s 8 Judicature Amendment Act 1972 and the approach to be adopted – Applicant also claims that the Court of Appeal erred by granting interim relief in the absence of evidence, and by determining that any level of likely monetary loss was sufficient to meet the test of necessity. Application made for urgent hearing, given the practical consequences of the decision for the Orange Roughy population and the potentially wide-ranging effects of the decision on appeal.

[2007] NZCA 512 CA 101/07 19 November 2007

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

 

Case Number SC83 /2007  
Case Name

Peter Miles Davies v New Zealand Police

Summary

Criminal – appeal against Court of Appeal’s decision to confirm award of reparation to a victim for loss of earnings to the extent (20%) it is not compensable under the Injury Prevention, Rehabilitation and Compensation Act 2001 (IPRC Act) – whether sentences of reparation can be characterised as proceedings for damages brought by the victim independently of the IPRC Act (prohibited by s 317(1) of that Act) – whether s 32(5) Sentencing Act 2002 prohibits the ‘topping-up’ of IPRC Act entitlements by sentences of reparation.

[2007] NZCA 484 CA 101/07 2 November 2007

Dates Application for leave to appeal granted.

15 February 2008

Hearing Date 5 August 2008
 Result

Appeal allowed.  Sentence of reparation is set aside and in substitution a sentence of reparation of $8,945 is imposed.

Question of costs reserved.

25 May 2009. 

 

Case Number SC82 /2007  
Case Name

Lionel Andrew West v The Official Assignee

Summary

Civil appeal – disposal of applicant’s beneficial interest in property on insolvency – whether the Official Assignee was prevented from selling the applicant’s interest in the trust property when the applicant had been discharged from bankruptcy – whether the Official Assignee was free to choose which property comprised the applicant’s 1/3 share in the trust property –whether the Court of Appeal applied Cameron v Official Assignee (1987) 9 NZTC 6,187 correctly – whether the Official Assignee’s mistaken belief that he replaced the applicant as trustee of the property formed a cause of action in negligence - whether all debts owed by the applicant had been paid and whether this fact affected the ability of the Official Assignee to sell the property interest – whether the Court of Appeal should have allowed the applicant to introduce new evidence – whether the Magna Carta prevented the Official Assignee from disposing of the applicant’s property interest.

[2007] NZCA 523 CA 53/06 20 November 2007

Dates Application for leave to appeal dismissed. Costs of $1500 to the respondent.

11 March 2008

 

Case Number SC81 /2007  
Case Name

Bronwyn Estate Limited, Barry’s Car Sales, Patrick Antony Darby v Gareth Russel Hoole and Kevin David Pitfield as receivers of Hillcrest Services Limited (in receivership) and Hillcrest Services Limited

Summary

Civil appeal – costs awarded against applicants for Anton Pillar application – applicants appealed against cost award – whether the Court of Appeal was correct to refuse to dispense with security for costs – whether this decision denies the applicants access to justice by preventing them from continuing with their appeal.
CA 133/07 1 November 2007

Dates Application for leave to appeal dismissed . Costs $1,500 to the respondents.

8 February 2008.

 

Case Number SC80 /2007  
Case Name

Rebecca Katszi Li v The Queen

Summary

Criminal – appeal against conviction and sentence – applicant convicted on multiple counts of forgery under s 256(1) of the Crimes Act 1961 – seeking order quashing convictions under s 256(1) and substituting new convictions under s 256(2) – seeking order quashing sentence and imposing a sentence commensurate with convictions under s 256(2) – whether Court of Appeal erred in its interpretation of s 256 of the Crimes Act.

[2007] NZCA 403 CA 449/06 10 September 2007

Dates Application for leave to appeal granted.

18 March 2008

Date of hearing 14 August 2008

 

Case Number SC79 /2007  
Case Name

Terrence Austin McFarland v The Queen

Summary

Criminal – appeal against conviction for maiming with intent to cause grievous bodily harm – applicant was unrepresented at trial – amicus curiae appointed without prior notice to the applicant, in his absence, and without his consent – whether the amicus made a substantial error in failing to advise the applicant against calling evidence from the former co-accused – whether the trial Judge erred by misdirecting the jury on the standard of proof and failing to provide directions on the cross-examination and the submissions made to the jury by crown counsel.

[2007] NZCA 449 CA 385/06 18 October 2007

Dates Application for leave to appeal dismissed.

5 March 2008

 

Case Number SC78 /2007  
Case Name

W v The Queen

Summary

Criminal – appeal against conviction – sexual offending against daughter – alleged errors in interventions, directions and summing-up by trial Judge, circumstances of recall of expert witness by Crown after closing addresses, and conduct of defence counsel – whether various alleged trial errors, individually or collectively, may have given rise to a substantial miscarriage of justice.

[2007] NZCA 34 CA 222/06 1 March 2007

Dates Application for leave to appeal dismissed.

15 April 2008

 
Case Number SC77 /2007  
Case Name

Carey Dean Turner v The Queen

Summary

Criminal Appeal – sexual violation – whether evidence given by the complainant was incorrectly admitted – whether the evidence was recent complaint evidence – whether the trial Judge should have given a direction to the jury about recent complaint evidence – whether the trial judge erred by giving incorrect directions to the jury about the status of a video statement made out of Court by the accused - whether this direction by the trial judge undermined the tripartite direction given about the way the jury ought to consider evidence given by the accused at trial – whether the Court of Appeal erred by dismissing the appellants appeal to that Court.

[2007] NZCA 437 CA 181/07 1 October 2007

 

Dates

Application for leave to appeal dismissed.

 

5 March 2008

 

Case Number SC76 /2007  
Case Name

Wayne Darren McGregor v The Queen

Summary

Criminal appeal – Sentencing Act 2002 – sentencing bands for grievous bodily harm – whether sentence imposed is manifestly excessive and wrong in principle – whether R v Taueki [2005] 3 NZLR 372 is correctly decided – in particular, whether it is correct to focus on the presence of identified aggravating features – whether Taueki has improperly led to a rise in sentencing levels over the bottom half of the range of sentences imposed for grievous bodily harm.

[2007] NZCA 435 CA 320/07 10 October 2007

Dates Application for leave to appeal dismissed.

28 February 2008

 

Case Number SC75 /2007  
Case Name

DE; LW and CW v Chief Executive of the Ministry of Social Development

Summary

Civil – appeal against decision refusing a writ of habeas corpus in relation to the first appellant’s child – Family Court issued, on an ex parte basis, an interim custody order under s 78 of the Children, Young Persons and Their Families Act 1989 – whether the s 78 interim custody order was used in an unlawful manner.
[2007] NZCA 451 CA 358/07 18 October 2007

Dates Application for leave to appeal dismissed.

28 November 2007

 

Case Number SC74 /2007  
Case Name

W v The Queen

Summary

Criminal – appeal against convictions for historical sexual offending – whether the admission of evidence in rebuttal to a recent complaint allegation, which evidence the Court of Appeal held to be inadmissible, created a miscarriage of justice.
[2007] NZCA 408 CA 164/07 11 September 2007

Dates Application for leave to appeal dismissed .

5 December 2007

 

Case Number SC73 /2007  
Case Name

James Arthur Rose v Karen Diane Rose

Summary

Civil – Property (Relationships) Act 1976 – whether a partnership interest is an asset for the purposes of the Act – whether improvements to land that is relationship property form part of that land by operation of Land Transfer Act 1952 definition of “land” – whether increases in value to property caused by inflation are within the scope of claims under s 9A(1) or 9A(2) – whether s 9A(2) claim required evidence of an action by the respondent that had the effect of increasing the value of the property – whether s 2G requires assets and liabilities to be valued at the same date.
[2007] NZCA 406 CA 212/06 11 September 2007

Dates Application for leave to appeal granted.

6 December 2007

Hearing Date

15 October 2008
 Result  Appeal and cross appeal dismissed. No order as to costs.

 

Case Number SC72 /2007  
Case Name

Regal Castings Lmited v G M and G N Lightbody and others

Summary

Civil appeal – whether transfer of property from first respondents to second respondent trustees should have been set aside under section 60 Property Law Act 1952 – whether the transfer amounted to fraud - whether Freeman v Pope (1870) 5 LR Ch App 538 represents the correct law where an insolvent debtor transfers property – whether there is a conclusive presumption of fraud in such situations– whether the High Court should have inferred an intention to defraud even if Freeman v Pope does not represent the law – whether the Court of Appeal erred by requiring the appellant to show that prejudice to the creditor was the purpose of the transaction – whether the Court of Appeal erred in law by overlooking relevant objective factors – whether the Court of Appeal erred by putting weight on subjective factors.

[2007] NZCA 396 CA 234/05 7 September 2007

Dates Application for leave to appeal granted.

13 December 2007

Hearing 10 April 2008
Decision

 Appeal allowed. Cost to the appellant.

23 October 2008

 

Case Number SC71 /2007  
Case Name

Damon John Exley v The Queen

Summary

Criminal – appeal against sentence – applicant sentenced to preventive detention – Court of Appeal dismissed appeal against sentence – whether Court of Appeal erred in not considering whether New Zealand regime of preventive detention is in breach of the New Zealand Bill of Rights Act 1990 and/or the International Covenant on Civil and Political Rights – whether Court of Appeal erred in not granting a declaration (R v Hansen (2007) 23 CRNZ 104) – jurisdiction in criminal case to grant declaration of inconsistency with NZBORA and/or ICCPR – whether preventive detention breaches ss 9, 22, 23 and 25 of NZBORA and/or arts 7, 9, 10, 14 and 15 of ICCPR – whether treatment of applicant by New Zealand Courts has breached his rights under s 22 of NZBORA – whether s 88(1)(b) of the Sentencing Act was complied with – approach to risk prediction in sentencing – whether Court of Appeal erred in not substituting a finite sentence – whether Court of Appeal should have reduced the minimum period of imprisonment – whether Court of Appeal made an error of fact.

[2007] NZCA 393 CA 279/06 7 September 2007

Dates

Application for leave to appeal dismissed.

11 December 2007

 
Case Number SC70 /2007  
Case Name

Ian Kenneth McMillan v The Queen

Summary

Criminal – appeal against sentence – applicant sentenced to preventive detention in 1995 – unsuccessful appeal to Court of Appeal in 1995 – sought rehearing of appeal in 2005 – Court of Appeal dismissed appeal on rehearing – whether Court of Appeal erred in not considering whether New Zealand regime of preventive detention is in breach of the New Zealand Bill of Rights Act 1990 and/or the International Covenant on Civil and Political Rights – whether Court of Appeal erred in not granting a declaration (R v Hansen (2007) 23 CRNZ 104) – jurisdiction in criminal case to grant declaration of inconsistency with NZBORA and/or ICCPR – whether preventive detention breaches ss 9, 22, 23 and 25 of NZBORA and/or arts 7, 9, 10, 14 and 15 of ICCPR – whether treatment of applicant by New Zealand Courts has breached his rights under ss 25(a), 24(a), 19, and/or 22 of NZBORA – whether applicant was lawfully committed to the High Court for sentence – whether Court of Appeal erred in not substituting a finite sentence.

[2007] NZCA 394 CA 110/05 7 September 2007

Dates Application for leave to appeal dismissed.

11 December 2007

 
Case Number SC69 /2007  
Case Name

Attorney-General v X and Refugee Status Appeal Authority

Summary

Civil – whether the Court of Appeal erred in holding that where the particulars of a claim for refugee status disclose information relating to the possible commission of a crime against peace, a war crime or a crime against humanity (in terms of the international Convention relating to the Status of Refugees), the confidentiality requirements in s 129T of the Immigration Act 1987 prevent the disclosure of those particulars by refugee status officers, the Refugee Status Appeal Authority, and other relevant persons, to those who are concerned with the investigation, prosecution or extradition of any such crime – whether New Zealand’s international legal obligations require the opposite conclusion.

[2007] NZCA 388 CA 166/06 5 September 2007

Date Application for leave to appeal granted.
14 December 2007

 

Hearing 17 April 2008.

Decision reserved.

 

 
Case Number SC68 /2007  
Case Name

Lisa Kathryn Cropp v A Judicial Committee & Bryan Francis McKenzie

Summary

Civil – judicial review – respondents instituted disciplinary proceedings after applicant, a jockey, tested positive for controlled drugs – applicant invoking rights to bodily integrity, to avoid self-incrimination and to be free from unreasonable search and seizure – application of New Zealand Bill of Rights Act 1990 – whether regulatory requirement that jockeys consent to random drug testing as condition of obtaining and retaining a jockey’s licence authorised by s 29 Racing Act 2003 – whether applicant consented to drug testing – whether prescribed procedure and requirements for drug testing lawful and reasonable.

CA 203/07 [2007] NZCA 423 27 September 2007

Dates Application for leave to appeal granted

29 November 2007

Hearing Date 13 March 2008
Decision Appeal dismissed. Costs $15,000 to the 2nd respondent
17 June 2008.
 
Case Number SC67 /2007  
Case Name

ANZ National Bank Limited, UDC Finance Limited and Tui Endeavour Limited v The Commissioner of Inland Revenue

Summary

Civil appeal – disclosure of documents in tax avoidance litigation – Commissioner of Inland Revenue is challenging on grounds of sham and illegitimate tax avoidance several structured financing arrangements entered into by a number of banks – litigation is to proceed against each bank separately – whether, in litigation against each bank, the Commissioner can rely on documents associated with similar transactions entered into by other banks – whether such reliance is prevented by either s 81 of the Tax Administration Act 1994 or the application of public interest immunity.
CA 280/06 [2007] NZCA 356 CA 280/06 21 August 2007

Dates Application for leave to appeal granted.
18 October 2007.
Hearing 11 and 12 December 2007
Decision The appeals are dismissed with costs to the Commissioner of Inland Revenue of $25,000 together with reasonable disbursements, to be fixed if necessary by the Registrar, and to be borne as to 40% each by Westpac and ANZ National and as to 20% by ASB Bank.
 
Case Number SC66 /2007  
Case Name

Westpac Banking Corporation v The Commissioner of Inland Revenue and others

Summary

Civil appeal – disclosure of documents in tax avoidance litigation – Commissioner of Inland Revenue is challenging on grounds of sham and illegitimate tax avoidance several structured financing arrangements entered into by a number of banks – litigation is to proceed against each bank separately – whether, in litigation against each bank, the Commissioner can rely on documents associated with similar transactions entered into by other banks – whether such reliance is prevented by either s 81 of the Tax Administration Act 1994 or the application of public interest immunity.
CA 280/06 [2007] NZCA 356 CA 280/06 21 August 2007

 

Dates Application for leave to appeal granted.
18 October 2007.
Hearing 11 and 12 December 2007
Decision The appeals are dismissed with costs to the Commissioner of Inland Revenue of $25,000 together with reasonable disbursements, to be fixed if necessary by the Registrar, and to be borne as to 40% each by Westpac and ANZ National and as to 20% by ASB Bank.

 

Case Number SC65 /2007  
Case Name

Jule Patrick Burns v The Queen

Summary

Criminal – appeal against conviction for murder – whether verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence – whether DNA evidence was properly admitted at trial.

CA 152/2006 [2007] NZCA 308 23 July 2007

Dates Application for leave to appeal dismissed.

5 March 2008

 

Case Number SC64 /2007  
Case Name

Saxmere Company Limited, The Escorial Company Limited, Richard King, Russell Stewart Emmerson and Forest Ramge Limited v Wool Board Disestablishment Company Limited

Summary

Civil – applicants challenged the Wool Board’s decisions allocating funding for wool marketing, seeking judicial review and restitution of levies paid and alleging breach of statutory duty (s 6(6) Wool Act 1997) and negligence – High Court Judge found the Board liable in damages for breach of statutory duty and negligence, in relation to one of their four decisions – Court of Appeal allowed an appeal by the respondent and dismissed a cross-appeal – whether the Court of Appeal erred in its analysis of the Board’s decisions under s 6(6) of the Act – whether the Court of Appeal took proper account of the context and purpose of the Wool Act – whether the Court of Appeal failed to address the existence of a duty of care independent of s 6(6) – whether the Court of Appeal erred by making material factual findings which differed from the trial Judge and which were contrary to the evidence heard by the trial Judge – whether the High Court Judge erred in limiting his damages to only one of the four decisions, and in denying restitution of levies.

CA 222/05 [2007] NZCA 349 15 August 2007
CIV 485 – 2003 – 2724 6 December 2005

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

12 November 2007

 Hearing

3 March 2009

Blanchard, Tipping, McGrath, Gault and Anderson JJ

Decision reserved

 Result

Appeal dismissed.

Costs to respondent $15,000 together with reasonable disbursements.

3 July 2009 

 Decision

The judgment of this Court delivered on 3 July 2009 ([2009] NZSC 72) is recalled and the orders made in that judgment are set aside.

 

The appeal is allowed and the proceeding remitted for rehearing in the Court of Appeal.

 

Costs are reserved.  Counsel should make written submissions directed to how costs should be borne for the previous hearing in the Court of Appeal and the two hearings in this Court.

 

27 November 2009

 

 

Case Number SC63 /2007  
Case Name

Gisborne District Council v Port Gisborne Limited (now known as Tauwhareparae Farms Ltd) and Ors

Summary

Civil – strike-out – whether lower Courts erred in refusing to strike out cause of action in negligence – respondent company seeking contribution from applicant Council in proceedings against them arising from the Jody F Millennium grounding – whether Court of Appeal conflated negligence and statutory duty causes of action – whether there can be a duty of care to protect someone from loss arising from his or her legal liability for negligence – whether respondent entitled in these circumstances to claim that applicant owed parallel duties of care to other parties including the ship – whether Court of Appeal erred in awarding full costs against the applicant.
CA 118/06 10 August 2007

Dates

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

19 January 2008.

 

Case Number SC62 /2007  
Case Name

Campbell Robert Thom v Davys Burton

Summary

Civil appeal – negligence action against firm of solicitors – prenuptial agreement invalidly executed – as a result, property which was separate property under the prenuptial agreement was included in the matrimonial property division – whether the claim is barred by s 4(1) Limitation Act 1950 – whether the doctrine of reasonable discoverability applies, so that the damage was first suffered when the Family Court declined to give effect to the prenuptial agreement.

CA 3/06 30 May 2007

Dates Application for leave to appeal granted.

 

Hearing 8 April 2008
Decision reserved.
Decision Appeal dismissed.
Costs to respondent $15,000 and reasonable disbursements.
18 August 2008

 

Case Number SC61 /2007  
Case Name

Christopher Cliff Morris v The Queen

Summary

Criminal appeal – Crimes Act 1961, s 229A – using a tax document with intent to defraud – whether, under the Tax Administration Act 1994, employees of the Inland Revenue Department can give evidence in the prosecution – whether ss 81(1) and 81(3) of that Act preclude employees of the Inland Revenue Department giving evidence unless either the prosecution is initiated by the Commissioner of Inland Revenue for offences under the Inland Revenue Acts or the evidence falls within one of the exceptions listed in s 81(4) – whether the Court of Appeal was correct to direct a new trial under s 382 of the Crimes Act 1961 – application for leave to appeal out of time.

CA 120/04 4 November 2004

 

Dates Application for leave to appeal dismissed.

30 October 2007

 

Case Number SC60 /2007  
Case Name

Shahram Aram v The Queen

Summary

Criminal – appeal against conviction and sentence – convicted of five drug offences –whether substantial miscarriage of justice may have occurred – fresh evidence of corruption, conspiracy and perjury – seeking order quashing conviction and sentence or, alternatively, order for retrial.
CA 407/06 2 August 2007

Dates Application for leave to appeal dismissed.
4 December 2007

 

Case Number SC59 /2007  
Case Name

Glenharrow Holdings Limited v Commissioner of Inland Revenue

Summary

Civil appeal – avoidance of GST under section 76 of Goods and Services Tax Act 1985 – whether the High Court erred in its findings of fact relating to the value of the mining license purchased by the applicant - whether the High Court erred when it concluded that the purchase price for the mining license was grossly inflated – whether the evidence was such that only one conclusion was reasonably open to the Court – whether a substantial miscarriage of justice occurred as a result of incorrect findings of fact – whether, given the High Court finding that the transaction was a genuine arms length agreement, there was a basis for a finding under section 76 that the transaction defeated the scheme and purposes of the Act– whether an open market value should be used when determining GST obligations where a transaction is genuine and at arms length – whether the Court of Appeal erred by conflating the value of a loan used to purchase an asset with the consideration paid – whether the Court of Appeal erred in its approach to determining the total consideration – whether it was open to the Court of Appeal to make a finding that the loan repayments amounted to an ‘empty obligation’ – whether the Court of Appeal erred in its application of Peterson v CIR [2006] 3 NZLR 433

CA 192/05 15 August 2007

Dates Application for leave to appeal granted.

4 October 2007

Hearing date

8 – 10 July 2008
Elias CJ, Blanchard, Tipping, McGrath , Anderson JJ

   
Case Number SC58 /2007  
Case Name

Neil Martin Clarke v New Zealand Police and Others

Summary

y Civil – application to review Registrar’s decision to refuse to accept application for filing – applicant had sought leave to appeal Court of Appeal’s decision that it had no jurisdiction to grant special leave to appeal against a costs decision of an Associate Judge of the High Court – applicant seeking to overturn costs decision in the Court of Appeal.

[2007] NZCA 294 CA 226/06 17 July 2007

Dates Application for leave to appeal is dismissed with costs of $1,500 to the second respondent.

9 October 2007

 

Case Number SC57 /2007  
Case Name

Mark Raymond Creedy v Commissioner of Police

Summary

Summary Civil appeal – employment law – police officer dismissed after a tribunal established under s 12 of the Police Act 1958 found him guilty of a number of misconduct charges – personal grievance proceedings commenced in Employment Relations Authority – whether Court of Appeal erred in finding that unjustifiable dismissal claim was out of time – whether there are “exceptional circumstances” for the purposes of ss 114(4) and 115 of Employment Relations Act 2000 – application of Wilkins & Field Ltd v Fortune [1998] 2 ERNZ 70 – whether Court of Appeal erred in finding that the actions of the s 12 tribunal could not be attributed to the Commissioner of Police and thus are not open to review in personal grievance proceedings.

CA 234/06 24 July 2007

Dates Application for leave to appeal granted.

19 October 2007.

Hearing 10 March 2008
Decision Appeal dismissed. No order for costs.23 April 2008

 

Case Number SC56 /2007  
Case Name

Michael Raymond Main v Kevin Evan Main

Summary

Civil appeal – Residential Tenancies Act 1986, s 2(3) – whether the Court of Appeal was correct in holding that the respondent had proved that the premises were let principally for purposes other than residential purposes – whether the Court of Appeal had jurisdiction to make s 2(3) finding – whether the respondent had complied with the Court of Appeal’s order as to the filing of additional evidence – whether the Court of Appeal failed to take into account evidence filed.

CA 25/07 23 July 2007

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

8 October 2007

 

Case Number SC55 /2007  
Case Name

Transpower New Zealand Limited v Todd Energy Limited

Summary

Civil Appeal – whether summary judgment should have been issued for the defendant – whether some or all of the actions against the applicant should be struck out – whether the Court of Appeal erred in finding that section 19 of the Electricity Amendment Act 2001 did not amount to an authorisation under section 43 of the Commerce Act 1986 – whether the Court of Appeal erred in finding that long term infrastructure substitution between embedded generation and transmission is arguably contemplated by the Commerce Act 1986 definition of “market” – whether the respondent’s claim is a complaint that the applicant charges too much – whether such a complaint is capable of amounting to a breach of Part 2 of the Commerce Act 1986 – whether the Court of Appeal applied a more demanding standard for summary judgment – whether the Court of Appeal erred by finding that the respondent can choose between local and national electricity markets when presenting its case at trial – whether the Court of Appeal erred by allowing the argument that the respondent’s local electricity generation competes with the applicant’s transmission services to go to trial when that argument was struck out in another case – whether a claim that the applicant’s “tying” or ”unbundling” of services has the purpose or likely effect of substantially lessening competition should go to trial where the services were not able to be tied or bundled and the claim is in substance a claim about overcharging.
CA 80/05 and CA 177/06 20 July 2007

Dates Application for leave to appeal and cross appeal dismissed.

13 December 2007

 

Case Number SC54 /2007  
Case Name

Mustafa Can v The Queen

Summary

Criminal – sexual violation – s 128 Crimes Act 1961 – whether the jury direction on the applicant’s reasonable belief in consent, based on the test in R v Gutuama (Court of Appeal, CA 275/01, 13 December 2001), was in conflict with the statutory language in s 128 Crimes Act 1961 – whether expert evidence as to the intellectual limitations of the complainant was wrongly admitted.

CA 492/05 16 July 2007

Dates Application for leave to appeal dismissed.

27 November 2007

 

Case Number SC53 /2007  
Case Name

Alex Kwong Wong v The Queen

Summary

Summary Criminal – appeal against convictions – serious drug offending – whether trial should have proceeded with ten jurors – consistency of guilty verdicts with acquittal of the accused on other counts and acquittal of co-accused – whether Court of Appeal correctly applied R v H [2000] 2 NZLR 581 – whether verdict in relation to one (money laundering) count is unreasonable or cannot be supported having regard to the evidence – applicant seeking leave to raise various other new grounds as evidencing a substantial miscarriage of justice at trial.

CA 329/06 6 July 2007

Dates Application for leave to appeal granted.
24 September 2007
Hearing 14 April 2008.
Appeal allowed, convictions set aside. New trial ordered.

 

Case Number SC51 /2007  
Case Name

George Charlie Baker v The Queen

Summary

Criminal appeal – Sentencing Act 2002 – whether trial judge correctly applied s 104 in light of mitigating factor of appellant’s guilty plea – whether high publicity surrounding case lead to an unduly harsh sentence – whether trial judge gave sufficient weight to appellant’s psychiatric history.

CA 36/07 5 July 2007

Dates Application for leave to appeal dismissed.

19 September 2007

 

Case Number SC50 /2007  
Case Name

NZ Maori Council and The Federation of Maori Authorities Inc v Attorney-General and others

Summary

Civil – Treaty of Waitangi – Crown Forest Assets Act 1989 – Te Pumautanga o Te Arawa Settlement Deed, Part 12 – Settlement Deed aimed to settle historical breaches of Treaty in respect of 11 iwi or hapu affiliated with Te Arawa – Settlement Deed would be made unconditional by proposed legislation – Applicants sought declaration that Settlement Deed was in breach of Crown Forest Assets Act 1989, the agreements predating that Act, and the Crown’s fiduciary duties under the Treaty – High Court and Court of Appeal dismissed the claims. Whether the issues are justiciable – whether the agreement predating the 1989 Act (“the July 1989 Agreement”) was a political compact and therefore unenforceable – whether Crown conduct is or was inconsistent with the July 1989 Agreement – the nature of the Crown’s fiduciary duty to Mäori under the Treaty and the July 1989 Agreement.

CA 241/07; CA 247/07 2 July 2007

Dates        

Application for leave to appeal granted.

8 November 2007.

Hearing

 

 Appeal withdrawn. No orders as to costs.

4 November 2008

 

 
Case Number SC49 /2007  
Case Name

Tumu Te Heuheu v Attorney – General and others

Summary

Civil – Treaty of Waitangi – Crown Forest Assets Act 1989 – Te Pumautanga o Te Arawa Settlement Deed, Part 12 – Settlement Deed aimed to settle historical breaches of Treaty in respect of 11 iwi or hapu affiliated with Te Arawa – Settlement Deed would be made unconditional by proposed legislation – Applicants sought declaration that Settlement Deed was in breach of Crown Forest Assets Act 1989, the agreements predating that Act, and the Crown’s fiduciary duties under the Treaty – High Court and Court of Appeal dismissed the claims. Whether the issues are justiciable – whether the agreement predating the 1989 Act (“the July 1989 Agreement”) was a political compact and therefore unenforceable – whether Crown conduct is or was inconsistent with the July 1989 Agreement – the nature of the Crown’s fiduciary duty to Mäori under the Treaty and the July 1989 Agreement.

CA 241/07; CA 247/07 2 July 2007

Dates        

Application for leave to appeal granted.

8 November 2007.               

 Hearing 

 

 Appeal withdrawn. No orders as to costs.

 4 November 2008

 

 

Case Number SC48 /2007  
Case Name

George Socrates Mamfredos and others v Herbert Equities Limited

Summary

Civil – principles applicable to lodging of caveats – whether, in the circumstances, the applicants (against whom caveat applications were brought) bore and failed to discharge an evidential onus – whether the Court of Appeal erred in fact and law, took irrelevant matters into account or failed to have regard to relevant pieces of evidence in overturning in part the High Court’s decision to dismiss the respondent’s caveat applications.

CA 147/06 6 July 2007

 

Case Number SC47 /2007  
Case Name

Neville Gisbon v Minter Ellison Rudd Wattts

Summary

Civil Appeal – whether the appellant should be permitted to place Specialist Legal Aid Advisor reports and Legal Services Agency internal documents before the Court of Appeal – whether the appellant should be permitted to amend his grounds of appeal in the Court of Appeal

CA 202/05 CA 33/06 20 June 2007

Dates Application for leave to appeal is dismissed.
Costs to respondent $2,500 plus reasonable disbursements.

 

 
Case Number SC46 /2007  
Case Name

Ch’elle Properties (NZ) Limited v Commissioner of Inland Revenue

Summary

Summary Civil appeal – Goods and Services Tax Act 1985 – whether s 76 constitutes an objective or subjective test – whether there can be tax avoidance where there is no tax advantage.

CA 126/04 25 June 2007

Dates Application for leave to appeal dismissed. 6 September 2007
 
Case Number SC45 /2007  
Case Name

Robert Frank Terry v The Queen

Summary

Criminal – appeal against conviction and sentence – whether Court of Appeal erred in dismissing appeal – whether Court of Appeal failed to uphold the New Zealand Bill of Rights Act 1990 – whether a substantial miscarriage of justice may have occurred.

CA 378/06   26 June 2007

Dates Leave to appeal dismissed. 31 August 2007
Case Number SC44 /2007  
Case Name

Accent Management Limited, Lexington Resources Limited, and Redcliffe Forestry Ventures Limited v Commissioner of Inland Revenue

Summary

Civil – income tax appeals – designated as test cases by Commissioner – all appellants investors in “Trinity” forestry scheme – whether Court of Appeal erred in upholding Commissioner’s assessments – correct approach to application of Peterson v CIR [2006] 3 NZLR 433 – whether appellants’ investment in scheme a tax avoidance arrangement within meaning of ss BB 9 and BG 1 of the Income Tax Act 1994  – whether insurance premiums required to be spread under accruals rules – whether Commissioner’s power to reconstruct arrangements to eliminate improper tax advantage exercised correctly – whether appellants took an abusive tax position – whether application of penalties to the appellants wrong in law and excessive.

CA 21/05   11 June 2007

Dates Application for leave to appeal granted.

9 October 2007

Hearing date  
8 – 10 July 2008
Elias CJ, Blanchard, Tipping, McGrath , Anderson JJ
Decision  

Appeal dismissed.

Costs to the respondent

19 December 2008

 

Case Number SC43 /2007  
Case Name

Ben Nevis Forestry Ventures Limited, Bristol Forestry Ventures Limited, Clive Richard Bradbury, Greenmass Limited, Gregory Alan Peebles and Estate of the Late Kenneth John Laird v Commissioner of Inland Revenue

Summary

Civil – income tax appeals – designated as test cases by Commissioner – all appellants investors in “Trinity” forestry scheme – whether Court of Appeal erred in upholding Commissioner’s assessments – correct approach to application of Peterson v CIR [2006] 3 NZLR 433 – whether appellants’ investment in scheme a tax avoidance arrangement within meaning of ss BB 9 and BG 1 of the Income Tax Act 1994  – whether insurance premiums required to be spread under accruals rules – whether Commissioner’s power to reconstruct arrangements to eliminate improper tax advantage exercised correctly – whether appellants took an abusive tax position – whether application of penalties to the appellants wrong in law and excessive.

CA 21/05   11 June 2007

Dates Application for leave to appeal granted.

9 October 2007

Hearing Date

23 – 27 June 2008.

Elias CJ, Tipping, McGrath Gault, Anderson JJ

Decision

23 – 27 June 2008.

Appeal dismissed.

Costs to the respondent

19 December 2008

 

Case Number SC42 /2007  
Case Name

KMA v Secretary for Justice

Summary

Civil Appeal – Hague Convention – leap frog appeal against a High Court decision following a Court of Appeal decision refusing leave – whether the High Court erred by upholding a Family Court’s decision ordering two of the applicant’s children be returned to Australia under the Hague Convention – whether the High Court erred by refusing to consider a submission that the respondent acquiesced by taking no steps in relation to the application for four and a half months - application for stay of execution – application to adduce new evidence regarding the financial position of the parties and allegations that the respondent sexually abused another child

CA 159/07  5 June 2007; CIv 2006 409 2482  16 March 2007

 

Application for leave to appeal dismissed.
Costs reserved.
2 0 July 2007

Judgment of the Court on costs issued. 29 August 2007

 
Case Number SC41 /2007  
Case Name

Jason Glen Vincent v The Queen

Summary

Criminal appeal – whether trial lawyer erred in not disclosing, so as not to prejudice jury against appellant, appellant’s previous offending that may be relevant to appellant’s defence of self-defence – whether prosecution’s reference to appellant’s tough reputation had unfairly prejudiced jury against appellant – whether preventive detention justified in circumstances.

CA 3/07 CA 481/06 13 June 2007  

Dates Application for leave to appeal dismissed.

21 August 2007

 

Case Number SC40 /2007  
Case Name

Georgina Kain, George Harry Couper Kain, George Charles Kain, George Thomas Carlton Kain and George Michael Kain and others v Jonathan Rhodes Hutton and others

Summary

Civil – dispute between family members over administration of a number of trusts – whether Court of Appeal erred in finding that resettlement of trust assets was valid – validity of exercise of power of appointment – power of advancement – s 41(c) of Trustee Act 1956 – whether appointment and settlement of shares was valid and not a fraud on the power – whether Court of Appeal erred in refusing to order the Second and Third Respondents to account to the trusts for profits made on the purchase of two farms – whether Court of Appeal erred in not finding a serious breach of trust – whether Court of Appeal erred in finding a particular part of consent order to be valid – interests of grandchildren – s 64A of Trustee Act 1956.

CA 237/03, CA 271/04, CA 4/05 22 May 2007

Dates Leave to appeal granted.

20 November 2007.

 
Case Number SC39 /2007  
Case Name

Gustav & Co Limited v MacField Limited

Summary

Civil appeal – unconscionable bargain – contract for sale of commercial land – sole director of applicant company had a terminal illness – contract cancelled by respondent company when full deposit not paid – applicant company sought to recover partial deposit on the basis of unconscionable dealing due to director’s illness – whether the Court of Appeal erred in finding there was no duty to inquire – the extent of knowledge required for such a duty.

CA 168/05 24 May 2007

Dates Application for leave to appeal granted. 4 September 2007
Hearing 11 March 2008
Decsion reserved.

 

Number SC38/2007  
Case Name

Gregory Nielsen and Roderick William Nielsen v Dysart Timbers Limited

Summary

Civil appeal – interpretation of clause in deed of purchase of debt – whether deed extended to companies or entities other than those expressly mentioned in the deed.

CA 253/05 22 May 2007

 

Dates Application for leave to appeal granted   9 August 2007
Decision

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

3 June 2009.

 

Case Number SC37 /2007  
Case Name

Harvey Douglas White v Auckland District Health Board

Summary

Civil Appeal – leap frog appeal against decision of the Employment Court after the Court of Appeal declined leave to appeal - whether the Employment Court erred in law when it declined to grant a permanent non-publication order in relation to the applicant’s name – whether the Court considered matters for which there was no evidential basis and failed to consider relevant matters – whether the Court erred when it concluded that the applicant had brought the public consequences upon himself – whether the Court failed to ensure that it had up to date information
AC 10/7 ARC 52/05 23 February 2007

Dates Application for leave to appeal dismissed. Order preventing publication of the applicants name is lifted. Costs to respondent $2,5000 plus disbursements.

8 August 2007
 
Case Number SC36 /2007  
Case Name

Palmiro McDonald v The Queen

Summary

Criminal appeal – Crimes Act 1961, s 339 – exercise of discretion by trial judge to include an lesser charge – whether jury direction effective to cure any prejudice caused by disclosure of inadmissible evidence at trial.

CA 356/06 20 April 2007

Dates Application for leave to appeal dismissed.

21 August 2007

 

Case Number SC35/2007  
Case Name

Philip David Sturm v The Queen

Summary

Criminal – appeal against conviction – in relation to appellant’s conviction for stupefying with intent to facilitate the commission of a crime Court of Appeal held that Crown had to prove not only an intention to facilitate the commission of a crime but also an intention to stupefy – trial directions – whether Court of Appeal erred in finding that trial Judge’s directions were sufficient regarding the intention to stupefy – whether Court of Appeal should have focused on whether directions contained an error of law giving rise to a substantial miscarriage of justice rather than focusing on sufficiency of directions – whether Court of Appeal erred in holding that even if directions were unsatisfactory the appellant was clearly subjectively reckless – whether Court of Appeal erred in finding no error in trial Judge’s direction that the voluntary consumption of drugs and alcohol was irrelevant to stupefying counts – whether Court of Appeal erred in concluding that there was no merit in the suggestion that the verdict on the stupefying count “coloured” the other verdicts.

CA 35/2007 4 May 2007

Dates Application for leave to appeal dismissed.

2 August 2007

 
Case Number SC34/2007  
Case Name

Raymond Fraser Kara v The Queen

Summary

Summary Criminal – appeal against increase in sentence as result of successful Solicitor-General’s appeal – Court of Appeal took premeditation into account as additional aggravating factor – whether Court of Appeal formed mistaken understanding of facts of offending.

CA 416/06 11 May 2007

Dates Application for leave to appeal is dismissed.

23 July 2007

 
Case Number SC33/2007  
Case Name

Joseph Ronald Belcher v The Chief Executive of the Department of Corrections

Summary

Criminal – sexual offending – appeal against sentence – applicant first sentenced in 1996 – Extended Supervision Order (ESO) imposed in 2005 – whether applicant received a fair hearing by an independent tribunal – whether imposition of ESO was unlawful, arbitrary and manifestly excessive – whether process by which ESO was imposed was flawed in relation to admissibility and treatment of evidence or otherwise – whether Court of Appeal erred in holding it had no jurisdiction to make a declaration of inconsistency of the Parole (Extended Supervision) Amendment Act 2004 with the New Zealand Bill of Rights Act 1990.

CA 185/05  3 May 2007

Dates Application for leave to appeal dismissed.

16 July 2007

 
Case Number SC32/2007  
Case Name

Kem Raju Samy v The Queen

Summary

Criminal appeal – Appeal against conviction - whether the Court of Appeal dismissed the appellant’s appeal without allowing him to be properly heard – whether the appellant should have been permitted to return to New Zealand for the Court of Appeal hearing of his appeal against conviction - whether an adjournment should have been given to allow the appellant to be located and cross-examined via video-conference.

CA 123/05 23 April 2007

 

 

Case Number SC31/2007  
Case Name

Dollars and Sense Finance Limited v Rerekohu Nathan

Summary

Summary Civil appeal – enforceability of a registered mortgage – borrower forged the signature of one of the sureties, his mother, on the mortgage documents – lender’s solicitor had delivered the mortgage documents to the borrower to procure the signatures and express informed consent of the sureties – whether the borrower was the agent of the lender – whether the borrower’s fraud can be attributed to the lender – whether the surety has an in personam claim against the lender.

CA 107/05 4 May 2007

Dates

Application for leave to appeal granted.
29 June 2007

Hearing

23 November 2008

Decision Appeal dismissed with costs of $15,000 and reasonable disbursements to the respondent.

 

Case Number SC30/2007  
Case Name

Brian Johnson Mankelow v The Queen

Summary

Criminal – appeal against conviction – trial directions as to inferences – whether the Court of Appeal should have reconsidered its decision in 2005 that certain evidence was admissible in light of the decision of the Court of Appeal in R v Williams [2007] NZCA 52 – whether there has been a substantial miscarriage of justice.

CA 443/06 19 April 2007

Dates Application for leave to appeal dismissed.

20 July 2007

 
Case Number SC29/2007  
Case Name

Deo Datt Sharma v Nirmala Wati

Summary

Civil appeal – application for removal of counsel for child – whether the Court of Appeal erred in refusing leave to appeal under s 145(1)(b) Care of Children Act 2004 – whether the Court of Appeal erred in deciding that there was no right of appeal under s 66 Judicature Act 1908 – whether the Court of Appeal erred in its award of costs – additional application for temporary stay of access proceedings in Auckland High Court

CA 98/07 2 May 2007

Dates Application for leave to appeal is dismissed.
23 July 2007

 

Case Number SC28/2007  
Case Name

Sione Tau Uluakiola v The Queen

Summary

Criminal – appeal against conviction – provocation – whether R v Tai [1976] 1 NZLR 102 should be overruled – meaning of “ordinary person” in s 169(2)(a) of the Crimes Act 1961 – whether appellant’s Tongan ethnicity and background a qualifying “special characteristic” that could have increased the gravity of the provocation.

CA 123/06  6 December 2006

Date

Application for leave to appeal dismissed

22 June 2007

 

Case Number SC27/2007  
Case Name

Robert Erwood v Janet Maxted and others

Summary

Civil – Whether the Court of Appeal erred in refusing to grant the applicant an extension of time – whether the applicant’s personal circumstances are such that an application should be granted.

CA 342/06 30 April 2007

Dates Application for leave to appeal is dismissed with costs of $2.500 for the respondents. Stay of execution revoked.

31 May 2007.
 
Case Number SC 26/2007  
Case Name

Vincent Siemer v Michael Peter Stiassny & Ferrier Hodgson

Summary

Summary Civil appeal – breach of interim injunction restraining publication of certain material relating to respondent – applicant found guilty of contempt of court – nature of proceedings; whether arising from an originating or interlocutory application – evidential rules applicable to such proceedings – allegations of judicial bias.

CA 55/06; CA 150/06 4 April 2007

Dates

Application for leave to appeal dismissed with costs of $2,5000 to the respondents.

12 July  2007

 
Case Number SC 25/2007  
Case Name

Kurt John Owen v The Queen

Summary

Criminal – appeal against conviction – whether discretion to consider appeals on the basis of unreasonable verdicts has been unduly restricted – complaint about the adequacy of summing up by trial judge – emotive summing up by prosecution – direction by trial judge concerning prosecution’s comment on the right to silence – trial judge’s use of the transcript – whether Court of Appeal was correct to hold that overall there was no miscarriage of justice.

CA 342/06 21 March 2007

Dates Application for leave to appeal granted.

29 June 2006

Hearing 22 November 2007
Decision Reserved
Decision

Appeal dismissed.

11 December 2007

 

Case Number SC 24/2007  
Case Name

Aqua Technics Pool and Spa Centre New Zealand Limited v
Aqua-Tech Limited

Summary

Civil – proprietorship of trade mark – Trademarks Act 1953 – Assistant Commissioner of Trade Marks declined to register “Aqua-Tech” as a trademark in relation to spa and swimming pools – decision overturned by High Court and Court of Appeal – whether the Court of Appeal erred in upholding the High Court’s finding that Aqua-Tech had established public use of the trademark.
C
A 257/05 22 March 2007

Dates

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

9 July 2007

 

Case Number SC 23/2007  
Case Name

Waitara Leaseholders Association Inc v New Plymouth District Council

Summary

Civil –Whether the Court of Appeal erred in concluding that land was not held on a charitable trust and that the Council was not subject to the obligations of charitable trustees – whether the Court of Appeal erred in finding the Council was not obliged to consider the objects of the statutory trusts when deciding to seek legislation to remove trust restrictions – whether the Court of Appeal erred in finding that compliance with section 14(6) of the Trustee Act 1956 relieves a trustee from its obligation of obtaining the best price for an asset – whether the Supreme Court should grant leave to pursue a new ground, namely that the Council failed to take into account the fact that its decisions were contrary to previous promises and assurances that it had made.

CA 259/05 CA 260/05 20 March 2007

Dates

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

20 June 2007

 

Case Number SC 22/2007  
Case Name

Z v Dental Complaints Assessment Committee

Summary

Civil – Whether the Court of Appeal erred when it concluded that in dental disciplinary proceedings, where the subject of the charge amounts to an allegation of a criminal offence, the civil standard of proof should be applied – whether the Court of Appeal erred by concluding that where the charge is a serious one there is no real distinction between the civil and criminal standards of proof – whether the Court of Appeal erred in concluding that it would not be an abuse of process for the appellant to face a disciplinary charge which repeats the criminal allegations for which he was acquitted.

CA 231/05 22 March 2007

Date

Application for leave to appeal granted

22 June 2007

 Decision

The appeal is allowed to the extent that the allegation of professional misconduct in 1987 is not to form part of the charge heard by the Tribunal.
In all other respects the appeal is dismissed.

The appellant is to pay costs to the respondent of $10,000, together with reasonable disbursements to be fixed if necessary by the Registrar.

25 July 2008

   
   

 

Case Number SC 21/2007  
Case Name

Austin, Nichols & Co. Inc v Stichting Lodestar

Summary

Civil appeal – Trade Marks Act 1953 – whether, in hearing an appeal from the Assistant Commissioner of Trade Marks, the High Court must have deference to the Assistant Commission’s findings, only overturning a decision that can fairly be characterised as wrong – whether the Court of Appeal erred in its interpretation of its own powers under the Court of Appeal (Civil) Rules 2005 in determining the appeal from the High Court decision – whether the Court of Appeal erred by ignoring the onus on the trade mark applicant to discharge the burden of demonstrating that registration of its trade mark would not lead to a likelihood of confusion or deception.

CA 94/05 12 March 2007

Dates Application for leave to appeal granted.

7 June 2007

Hearing 17 October 2007
Decision reserved.
Decision Appeal dismissed.

Costs $7,5000 plus disbursements to the respondent.

 

Case Number SC 20/2007  
Case Name

John Anthony Waller and Richard Dale Agnew v Stephen John Davies and others

Summary

Civil – applicants were appointed statutory managers of CH Finance Ltd pursuant to the Corporations (Investigation and Management) Act 1989 – CH Finance had devised a money lending scheme targeted at homeowners – CH Finance had become the registered proprietor of twelve properties pursuant to this scheme – properties mortgaged variously to the second to sixth respondents – statutory managers applied to the High Court pursuant to s 58 of that Act for directions relating to the twelve properties – statutory managers appealed that decision, cross-appeal by first respondent – statutory managers seek leave to appeal Court of Appeal decision - whether Court of Appeal erred in dismissing the statutory managers’ application for directions under s 58 of the Corporations (Investigation and Management) Act 1989 without providing directions or without remitting the application to the High Court for further directions – whether homeowners have an equitable interest arising out of fraudulent misrepresentations made to them – whether Court of Appeal erred in finding that counsel for the first respondent had not conceded that fraudulent misrepresentations had been made – whether the homeowners have an equitable interest arising out of a common law mortgage or an option to purchase – whether Court of Appeal erred in finding that first respondent not guilty of fraud under the Land Transfer Act 1952 on the basis that homeowners had no equitable interest to defeat – whether the second to fifth respondents were guilty of fraud by way of imputation and/or attribution –whether costs in respect of the homeowners whose properties were transferred by forgery should be determined by the High Court or Court of Appeal.

SC 65/05 7 March 2007

Dates

13 June 2007 Application for leave to appeal dismissed. Costs of $2,000 to first respondent, and $2,000 to second to sixth respondents as a group, plus disbursements.

 

Case Number SC 19/2007  
Case Name

Samuel Tahatu Marsh v The Queen

Summary

Criminal – appeal against conviction and sentence – applicant convicted of discharging an airgun in or near a dwellinghouse or public place (s 48 Arms Act 1983) – whether leave should be granted on a direct appeal from the High Court under s 14 Supreme Court Act 2003 – whether Police search of private bedroom was an unreasonable search and seizure contrary to s 21 New Zealand Bill of Rights Act 1990, where the Bill of Rights issue was not raised in the Courts below – application for leave to appeal out of time.

CRI 2006 419 90 21 November 2006

Dates

Application for leave to appeal dismissed.
25 June 2006

 

Case Number SC 18/2007  
Case Name

FP v The Queen

Summary

S ummary Criminal – appeal against conviction and sentence – applicant pleaded guilty in the High Court to seven counts of sexual offending against young girls – whether leave should have been granted for a change of plea – whether language difficulties resulted in a miscarriage of justice – application for leave to appeal out of time.

CA 205/05 22 November 2005

Dates 13 June 2007 Application for leave to appeal dismissed.

 

Case Number SC 17/2007  
Case Name

Alan Ivo Greer v The Chief Executive of the Ministry of Social Development

Summary

Civil – Appeal against decision to refuse a writ of habeas corpus in relation to the appellant’s child – whether the Court of Appeal failed to consider the evidence before it – whether the Court of Appeal failed to consider international human rights documents.

CA 97/07 7 March 2007

Dates 8 May 2007 Application for leave to appeal refused.

 

Case Number SC 16/2007  
Case Name

Nicola Brownwyn Hayes v The Queen

Summary

Criminal appeal – Crimes Act 1961 – s 229(A)(b) (taking or dealing with certain documents with intent to defraud) – s 228 (dishonestly taking or using document) – whether, and to what extent, the Crown must prove the probability or possibility of “pecuniary advantage” where the accused uses a document to avoid the risk of losing ACC compensation payments to which she, in any event, would have been entitled – alternatively, whether, in that same scenario, the Crown must prove that the accused was no longer entitled to such payments because the relevant incapacity had ceased.

CA 343/06 24 February 2007

Dates 8 May 2007 Application for leave to appeal granted.
Hearing 15 August 2007

Decision reserved.

Decision Appeal allowed. Conviction are set aside. New trial ordered.

15 February 2008

 

Case Number SC 15/2007  
Case Name

Xiao Quing Huang, Cui Yong Ming and Jarvis Cui v Minister of Immigration and The Attorney General

Summary

Civil – seeking order staying decision of High Court pending hearing of appeal in the Court of Appeal - Ms Huang and Mr Cui are Chinese nationals who came to NZ in 1996 on short-term visitor permits – married and had a son in NZ – 6-year old son is a NZ citizen – removal orders served on Ms Huang and Mr Cui in September 2005 – applied to the High Court for judicial review on humanitarian grounds – effect of removal proceedings on child – application unsuccessful – Mr Cui removed from NZ and returned to China – applicants sought interim relief from the Court of Appeal to delay removal of Ms Huang pending hearing of appeal – whether the Court of Appeal erred in declining to grant interim relief – whether Ms Huang’s appeal rights rendered nugatory if removed to China – whether balance of convenience favours applicants – whether the Court of Appeal erred in finding that merits of intended appeal not so strong to favour the grant of interim relief –United Nations Convention on the Rights of the Child - United Nations Convention on Civil and Political Rights - New Zealand Bill of Rights Act - application for leave to appeal out of time.

CA 236/06 18 December 2006

Dates 10 May 2007 Notice of Abandonment being lodged, the appeal is deemed to be dismissed.

 

Case Number SC 14/2007  
Case Name

K G L v The Queem

Summary

Criminal – appeal against conviction and sentence – appellant convicted of sexual and assault offences – whether conviction was supported by the evidence – admissibility of evidence at trial – whether the trial Judge’s summing up led to a miscarriage of justice – application for leave to appeal out of time.

CA 60/05 4 November 2005

Dates 22 May 2007 Application for leave to appeal dismissed.

 

Case Number SC 13/2007  
Case Name

New Zealand Professional Firefighters Union v New Zealand Fire Service Commission

Summary

Civil appeal – whether the Court of Appeal had jurisdiction to determine the appeal from the Employment Court – whether the Court of Appeal applied the correct test in determining whether certain days would “otherwise be working days” for an employee – whether the Court of Appeal erred in determining the compliance of a collective employment agreement with the Holidays Act 1981 – whether the Court of Appeal erred in its interpretation of the collective employment agreement – whether the Court of Appeal erred in its interpretation of s 6 of the Holidays Act 1981.

CA 270/05 21 December 2006

Dates Leave to appeal granted. 17 March 2007
Hearing 16 August 2007

 

Case Number SC 12/2007  
Case Name

Unison Networks Limited v The Commerce Commission

Summary

Civil Appeal – appeal against the Court of Appeal’s decision that revised price-related thresholds set by the Commerce Commission were lawful and the Court’s refusal to exercise its discretion to grant relief in relation to initial unlawful thresholds – whether the Court of Appeal erred in law by failing to consider whether the Commerce Commission misdirected itself and therefore erred in finding the revised thresholds to be lawful – whether the Court erred in law by finding that the revised thresholds met the statutory purpose and were thus lawful – whether it is appropriate for the Court to decline relief where a statutory body has acted outside the statutory process – whether the Court erred by failing to consider other types of relief.

CA 284/05 19 December 2006

Date 27 March 2007 leave to appeal granted.
Appeal Hearing 18 and 20 June 2007

Blanchard J, Tipping J, McGrath J, Anderson J and Gault J.
Decision Appeal dismissed.

Unison is ordered to pay the Commission costs of $25,000 plus reasonable disbursements to be fixed if necessary by the Registrar.

Costs in the Court of Appeal and High Court are to be determined by those Courts in light of this judgment.

10 September 2007

 

Case Number SC 11/2007  
Case Name

Manu Chhotubhai Bhanabhai and Douglas Mark Andrew Burgress v Commissioner of Inland Revenue

Summary

Civil appeal – as part of an agreement to settle GST arrears arising from the development of an apartment complex, solicitors for property developers gave an undertaking to the Commissioner of Inland Revenue that arrears would be cleared using proceeds from the sale of certain apartment units – in the event, GST arrears not paid – property developers put into liquidation - liquidators commenced proceedings, to which Commissioner was party, against the directors for reckless trading – proceedings settled in favour of liquidators with large cash payment, although no portion of payment could be applied towards the debt owed to the Commissioner – in separate proceedings, giving rise to present application, Commissioner awarded compensation against solicitors in their personal capacity for breach of undertaking – whether factual findings and reasoning at first instance were incorrect - whether the Court of Appeal erred in treatment of certain evidence going towards the nature of the undertaking – whether, given the antecedent proceedings by the liquidators, the claim by the Commissioner amounted to an abuse of process.

CA 218/05 20 December 2006

Dates Leave to appeal dismissed. 26 April 2007

 

Case Number SC 10/2007  
Case Name

Paul Bruce Emirali v The Queen

Summary

Criminal – appeal against conviction and sentence – appellant convicted of conspiracy to supply cocaine – whether verdict supportable on the evidence – meaning of “conspiracy” and “supply” – admissibility of evidence –application for leave to appeal out of time.

CA 177/06 12 December 2006

Dates Application for leave to appeal dismissed.
2 May 2007

 

Case Number SC9/2007  
Case Name

Alan Ivo Greer v The Parole Board at Auckland Prison and others

Summary

Civil Appeal – Appeal against decision to refuse writ of habeas corpus – whether there was misconduct by public officials – whether the Court of Appeal erred in accepting and acting on contested evidence.

CA 271/06 21 December 2006

Dates 7 March 2007 Application for leave to appeal dismissed.

 

Case Number SC 8/2007  
Case Name

Laxman Rajamani v the Queen

Summary

Criminal appeal – murder – husband killed wife – defence of lack of murderous intent and provocation – husband and wife both Indian - alleged provocative act by wife was in threatening to leave her husband for a Pakistani colleague – whether trial judge erred in proceeding with the trial to verdict with only ten jurors after two jurors had been discharged – whether trial judge erred in summing up on provocation – whether defence counsel’s cross-examination of a key Crown witness was inadequate; and whether trial judge’s summing up with respect to that witness was unbalanced – whether hearsay evidence from deceased a few days before her death concerning threats to her life from the defendant should have been admitted under R v Manase [2001] 2 NZLR 197; and whether trial judge’s instructions as to the use to which that evidence could be put were incorrect.

CA 140/06 20 December 2006

Dates Leave to appeal granted. 19 April 2007.
Hearing 25 July 2007 - Decision reserved.
Decision

Appeal allowed, conviction quashed, new trial ordered.

 

23 August 2007

 

Case Number SC 7/2007  
Case Name

John Donald Currie v The Queen

Summary

Criminal – Costs in Criminal Cases Act 1967 – trial Judge awarded costs to defendants acquitted on charges of conspiracy to defraud and money laundering brought by Serious Fraud Office – Court of Appeal majority held that High Court Judge had erred in failing to take account of risk of a substantial award inhibiting the exercise of proper prosecutorial function – whether the Court of Appeal erred in setting aside the cost award because it was “disproportionate” – whether Court of Appeal wrongly interpreted s 5(1) of the Act.

CA 473/2005 6 December 2006

Dates Application for leave to appeal granted. Application for leave to cross appeal dismissed. 29 May 2007
Hearing 10 and 11 October 2007.
Decision Appeal allowed, Costs order in the High Court reinstated.
Costs to appellant in Court of Appeal, $12,000 together with reasonable expenses.
In Supreme Court, reasonable expenses as may be fixed by the Registrar.

 

 

Case Number SC 6/2007  
Case Name

Alan Ivo Greer v The Queen

Summary

Criminal appeal – Bail Act 2000 – convictions for sexual offences and disqualification from driving – application for bail pending hearing of appeals – application rejected by Court of Appeal, citing lack of change of circumstances since previous application and ongoing risk to safety of public and of victims –allegations of bias and predetermination against Court of Appeal and of improper conduct by various officials of the justice system.

CA 179/06 21 December 2006

Dates 16 May 2007 Application for leave to appeal dismissed.

 

 

Case Number SC 5/2007  
Case Name

Kevin Jack Ngan v The Queen

Summary

Criminal – appeal against conviction – earlier unsuccessful application for leave to appeal directly to Supreme Court (see SC 24/2006) – lawfulness of “inventory searches” – admissibility of evidence obtained through police searches of applicant’s sunglasses pouch and wallet following injury of applicant in car crash – whether Court of Appeal erred in holding that searches both lawful and reasonable and evidence therefore properly admitted.

CA 220/06 1 December 2006

Dates Leave to appeal granted. 15 March 2007
Hearing 14 August 2007

Decision reserved.

 

Case Number SC 4/2007  
Case Name

Peter Michael Connolly v The Queen

Summary

Criminal – Costs in Criminal Cases Act 1967 – trial Judge awarded costs to defendants acquitted on charges of conspiracy to defraud and money laundering brought by Serious Fraud Office – Court of Appeal majority held that High Court Judge had erred in failing to take account of risk of a substantial award inhibiting the exercise of proper prosecutorial function – whether the Court of Appeal erred in setting aside the cost award because it was “disproportionate” – whether Court of Appeal wrongly interpreted s 5(1) of the Act.

CA 472/2005 6 December 2005

Dates Application for leave to appeal granted. Application for leave to cross appeal dismissed.29 May 2007
Hearing Hearing 10 and 11 October 2007.
Decision Appeal allowed, Costs order in the High Court reinstated.
Costs to appellant in Court of Appeal, $12,000 together ith reasonable expenses.
Costs to appellant in Supreme Court, $20,000 together with reasonable expenses.

 

Case Number SC 3/2007  
Case Name

Peter William Russel v The Queen

Summary

Criminal – Costs in Criminal Cases Act 1967 – trial Judge awarded costs to defendants acquitted on charges of conspiracy to defraud and money laundering brought by Serious Fraud Office – Court of Appeal majority held that High Court Judge had erred in failing to take account of risk of a substantial award inhibiting the exercise of proper prosecutorial function – whether the Court of Appeal erred in setting aside the cost award because it was “disproportionate” – whether Court of Appeal wrongly interpreted s 5(1) of the Act.


CA 475/2005 6 December 200

Dates Application for leave to appeal granted.

29 May 2007

Hearing 10 and 11 October 2007.
Decision Reserved
Decision Appeal allowed, Costs order in the High Court reinstated.
Costs to appellant in Court of Appeal, $12,000 together with reasonable expenses.
Costs to appellant in Supreme Court, $20,000 together with reasonable expenes.

 

Case Number SC 2/2007  
Case Name

Gail Denise Maney v The Queen

Summary

Criminal – appeal against conviction – application in Court of Appeal to admit fresh evidence – key witness implicating applicant at trial recanting evidence before Court of Appeal on the basis that it had been coerced by Police conduct – witness not considered credible by Court of Appeal – whether retrial ought to be granted in order for credibility of witness to be considered with totality of remaining evidence – application for leave to appeal out of time.


CA 244/03 11 August 2005

Dates 1 May 2007 Application for leave to appeal dismissed.

 

Case Number SC 1/2007  
Case Name

James Michael Leuluaiali’i v The Queen

Summary

Criminal appeal – appellant convicted as party to attempted murder and murder – appeal by a co-accused had been allowed on grounds of error in summing up in relation to parties; like errors in present case – appeal allowed in relation to attempted murder – in relation to murder the proviso to s 385(1) applied and appeal dismissed – whether application of the proviso led to a substantial miscarriage of justice.


CA 122/06 22 November 2006

Dates 30 March 2007 Leave to appeal dismissed.