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Case summaries 2010

 

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As at 27 November 2015

 

Case Number SC 142/2010    
Case Name WAH v WTW and others
Summary

Civil Appeal – Care of Children Act 2004 – High Court made order that children should remain under guardianship of High Court and that permanent homes outside the family be found – Whether High Court adopted the wrong test under s 5(e) Care of Children Act for assessing psychological violence to children – Whether Court of Appeal erred in holding High Court Judge not required to recuse herself – Whether High Court gave insufficient weight to Māori cultural issues – Whether High Court wrong to call appellant’s former counsel as witness – Whether Court of Appeal failed to address constitutional separation of powers issue.

[2010] NZCA 577  CA 40/2010  2 December 2010

Dates

The application by the Chief Executive of the Ministry of Social Development for leave to intervene is granted.

The application for leave to appeal is dismissed.

14 March 2011.

 

Case Number SC 141/2010    
Case Name JMW v The Queen
Summary

Criminal Appeal  – Proposed “leap frog” appeal – Whether jurisdiction exists to hear proposed appeal – Whether challenges based on jurisdiction of the High Court, due process, alleged abuses of rights, accuracy of documents and sufficiency of evidence ought to be upheld.  

Cri 2010 092 2879  Brewer J  11 October 2010

Dates

Application for leave to appeal dismissed.

7  March 2011.

 

Case Number SC 140/2010    
Case Name Gordana Vukomanovic v The Residence Review Board
Summary

Civil – s 115(1) and 146A of the Immigration Act 1987 – Appeal against the decision of the High Court declaring that the Court had no jurisdiction to consider an appeal brought out of time against a decision of the Residence Review Board.

Civ 2010 485 497  Miller J 20 May 2010.

Dates

Application for leave to appeal is dismissed with no order for costs.

9 March  2010.

 

Case Number SC 137/2010    
Case Name NJW v The Queen
Summary

Criminal – Sexual Offences – Whether evidence of complainant’s sexual history directly relevant and excluded contrary to the interests of justice at trial – Whether sentence imposed by Court of Appeal excessive in the circumstances.

[2010] NZCA 561  CA 247/2010  29 November  2010

Dates

Application for leave to appeal dismissed.

8 March 2011.

 

Case Number SC 136/2010    
Case Name

Evgeny Orlov v Anza Distributing NZ Limited and USG Interiors Pacific Limited

Summary

Civil – costs – whether Court of Appeal with jurisdiction to strike out appeal against costs judgment in circumstances where no dispute between parties and main purpose of appeal to challenge legal basis of decision and factual findings that counsel had failed to reach minimum standard of competence that should be attained by officers of the Court – whether appropriate for appellant to pay for an amicus to act as contradictor – whether Court of Appeal decision contravened appellant’s rights under New Zealand Bill of Rights Act 1990; International Covenant of Civil and Political Rights; and United Nations Basic Principles on the Role of Lawyers.  

[2010] NZCA 536  CA 683/2009   22 November  2010

Dates

Application for leave to appeal dismissed. No order for costs.

29 March 2011.

 

Case Number SC 128/2010   to SC 135/2010, SC 138/2010, SC 139/2010  
Case Name

TWI and others  v The Queen

Summary

Criminal – Summary Proceedings Act 1957 – validity and scope of search warrants – whether the Court of Appeal erred in upholding the validity of search warrants issued under s 198 of the Summary Proceedings Act 1957; whether the Court of Appeal erred in concluding that s 198 of the Summary Proceedings Act can be used to authorise surveillance on private land – New Zealand Bill of Rights Act 1990 – unreasonable search and seizure – whether the Court of Appeal erred in holding that the police in this case did not breach s 21 of the New Zealand Bill of Rights Act 1990 – Evidence Act 2006 – admissibility of evidence – whether the Court of Appeal erred in its undertaking of the s 30 balancing exercise and in concluding that the evidence in dispute was admissible at trial

[2010] NZCA 497  CA 809/2009  19 November   2010

Dates

The application for leave to appeal is granted.

The approved grounds are whether the challenged evidence was lawfully obtained under s 198 of the Summary Proceedings Act 1957 or was, alternatively, properly admissible pursuant to s 30 of the Evidence Act 2006.

25 March 2011

Hearing

3 and 4 May 2011

Elias CJ, Blanchard, Tipping, McGrath, Gault JJ.

Result

A The appeals of Mr Tame Iti, Mr Te Rangiwhiria Kemara, Mr Urs Signer and Ms Emily Bailey are dismissed.

B The appeals of the other appellants are allowed in part.  The video surveillance evidence (other than footage of vehicles on Reid Road) is inadmissible against those appellants.  All the other disputed evidence is admissible against them.

2 September 2011.

 

 

Case Number SC 127/2010    
Case Name

Karen McGrath v Accident Compensation Corporation

Summary

Civil – Accident Compensation Act 2001 – Whether Court of Appeal erred in holding that the ACC had a reasonable basis under s 110(3) Accident Compensation Act to require the Applicant to undergo a vocational independence assessment.

[2010] NZCA 535  CA 302/2009  19 November  2010

Dates

A          The application for leave to appeal is granted.

B          The approved ground is whether the Court of Appeal in [2010] NZCA 535 has correctly interpreted and applied s 110(3) of the Accident Compensation Act 2001.

 

8 March 2011

Hearing 2 June 2011.
Elias CJ, Blanchard, Tipping, McGrath, William Young J.
Decision reserved.
Result

A The appeal is allowed and the notice given on 9 September 2008 by the Accident Compensation Corporation is quashed.

B Costs are reserved.  Counsel may file memoranda if necessary.

7 July 2011.

 

Case Number SC 126/2010    
Case Name

Christopher Ian Freakley v The Queen

Summary

Criminal Appeal – appeal against sentence – whether the sentencing judge should have taken into account the fact the applicant was found not guilty on a count of aggravated robbery.

[2010] NZCA 497  CA 26/2010  29 October  2010

Dates

Application for leave to appeal is dismissed.

7 March 2011.

 

Case Number SC 125/2010    
Case Name

OH v The Queen

Summary

Criminal – Summary Proceedings Act 1957 – validity and scope of search warrants – whether the Court of Appeal erred in upholding the validity of search warrants issued under s 198 of the Summary Proceedings Act 1957; whether the Court of Appeal erred in concluding that s 198 of the Summary Proceedings Act can be used to authorise surveillance on private land – New Zealand Bill of Rights Act 1990 – unreasonable search and seizure – whether the Court of Appeal erred in holding that the police in this case did not breach s 21 of the New Zealand Bill of Rights Act 1990 – Evidence Act 2006 – admissibility of evidence – whether the Court of Appeal erred in its undertaking of the s 30 balancing exercise and in concluding that the evidence in dispute was admissible at trial

[2010] NZCA 528  CA 825/2009  19 November 2010

Dates

The application for leave to appeal is granted.

The approved grounds are whether the challenged evidence was lawfully obtained under s 198 of the Summary Proceedings Act 1957 or was, alternatively, properly admissible pursuant to s 30 of the Evidence Act 2006.

25 March 2011

Hearing

3 and 4 May 2011

Elias CJ, Blanchard, Tipping, McGrath, Gault JJ.

Result

The appeal allowed in part.  The video surveillance evidence (other than footage of vehicles on Reid Road) is inadmissible against those appellants.  All the other disputed evidence is admissible against them.

2 September 2011.

 

Case Number SC 124/2010    
Case Name

Saxmere Company Limited v Wool Board Disestablishment Company Limited

Summary

[2010] NZCA 513 CA 784/2009  17 November 2010

Dates

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

9 March 2011.

 

Case Number SC 123/2010    
Case Name

Henry David Levin and Barry Philip Jordan v Patrick Ikiua, Kenti Apa, Tess Apa, Mark Crosbie, Andrew David Smith.

Summary

Civil – Liquidators’ right under s 298 of the Companies Act 1993 to recover property which a liquidated company has disposed of to certain entities – Whether the company must have had a proprietary interest in the property – Whether s 298 applies only to transactions where the directors are duty bound to obtain fair value in return for the disposition of property – Whether the company had legitimately transferred its assets – Whether the directors of the company had breached their duties by disposing of all profits.

[2010] NZCA 509 CA 508/2009  12 November 2010

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

 

Case Number SC 122/2010    
Case Name

Keith Allenby v Terri Hannan and Middlemore Hospital of Counties Manukau District Health Board

Summary

Civil – Negligence – Accident Compensation Act 2001 – Application for pre-trial ruling– Whether unwanted pregnancy occasioned by failure of doctor to adequately perform sterilisation (tubal ligation) procedure covered by s 20(2)(b) of Accident Compensation Act as personal injury caused by medical misadventure – Whether application for pre-trial ruling can be the subject of “leapfrog” appeal to Supreme Court without prior judgments of High Court or Court of Appeal.

[Civ 2010 404 3260  Priestley J  31 August 2010

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

 

Case Number SC 121/2010    
Case Name

Weruma Mohi Walker v The Queen

Summary

Criminal Appeal – appeal against sentence –guilty plea to one count of aggravated robbery and one count of unlawful detention – whether sentence is manifestly excessive.

[2010] NZCA 534  CA 336/2010   19 November 2010 2010

Dates

Application for leave to appeal dismissed.

9 March 2011.

 

Case Number SC 120/2010    
Case Name

Fan Li v The Queen

Summary

[2009] NZCA 445  CA 38/2009   30 September 2009

Dates

Application for leave to appeal dismissed.

5 April 2011.

 

Case Number SC 119/2010    
Case Name

Graham Ashley Robert Palmer v The Queen

Summary

Criminal – Appeal against conviction for dishonest use of a GST return – whether the conduct of the  investigation and criminal prosecution of the applicant was in breach of the New Zealand Bill of Rights Act 1990, s 30 of the Sentencing Act 2002 and the Judges’ Rules – whether the trial Judge misdirected the jury as to the identity of a witness – whether the trial Judge erred in his summing up to the jury  – whether the Court of Appeal erred in failing to take into account evidence produced by the applicant as to the value of goods – whether there has been error in the calculation of the period for which the applicant is subject to release conditions following his sentence of imprisonment

[2010] NZCA 53  CA 349/2009   5 March 2010

Dates
Hearing
Result  

 

Case Number SC 118/2010    
Case Name

Wing Hung Printing Company Limited and others v Saito Offshore Pty Ltd

Summary

Civil – Conflict of laws – Whether New Zealand is the appropriate forum for trial of the dispute – Whether the Court of Appeal erred in its calculus of the issues relevant to the appropriate forum choice – Whether the Court of Appeal had an evidential foundation for finding the business relationship was ‘predominately Australasian’ – Whether the Court of Appeal erred in extending the extraterritorial effect of the Fair Trading Act 1986 – Whether the Court of Appeal erred in the exercise of its discretion to dismiss a protest to jurisdiction on terms.

[2010] NZCA 502  CA 437/2009   5 November  2010

Dates

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

15 March  2011.

 

Case Number SC 117/2010    
Case Name

Azeeez Mahomed v The Queen

Summary

Criminal – Murder – Whether Court of Appeal erred in pre-trial ruling admitting certain propensity/narrative evidence against the applicant – Whether Court of Appeal in dismissing appeal erred in concluding trial Judge not required to give specific directions on propensity evidence at trial – Whether evidence of applicant’s low intellectual capacity and wife’s post-natal depression should have been admitted at trial – Whether trial Judge was entitled to comment on applicant’s decision not to give evidence – Whether new evidence of accident purportedly explaining daughter’s injuries should be admitted.

[2010] NZCA 419 CA 779/2009 14 September  2010. 

Dates

Application for leave to appeal granted,

The approved grounds are:

(i)         Whether the evidence concerning the child’s being left in the car on 19 December 2007 was admissible; and

(ii)         If so, whether the Judge’s directions relating to that evidence were adequate.

8 February 2011

Hearing

16 February 2010

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.

Result

Appeal dismissed.

19 May 2011.

 

Case Number SC 116/2010    
Case Name

Vincent Ross Siemer v The Solicitor-General

Summary

Civil Appeal – costs – whether costs should have been awarded against the applicant when the respondent discontinued contempt of court proceedings – whether the Judge was biased.

[2010] NZCA 549  CA 126/2010   23 November  2010

Dates

Application for leave to appeal dismissed.

Costs $2500 to the respondent.

7 February 2010.

Application for recall dismissed.

1 April 2011.

 

Case Number SC 115/2010    
Case Name

Dean McArthur Keown  v The Queen

Summary

Criminal – Sentencing appeal – Whether the discount in sentence for Mr Keown’s time spent on electronically monitored bail was appropriately given by the Court of Appeal in accordance with sentencing principles.

[2010] NZCA 492  CA 401/2010   29  October 2010

Dates

Application for leave to appeal dismissed.

16 February 2011

 

Case Number SC 114/2010    
Case Name

DJB  v The Queen

Summary

Criminal – Evidence Act 2006 – Admissibility of prior consistent statements – whether the complainant’s prior consistent statements to third parties, led in evidence in chief within a video interview, were admissible in application of s 35(2) of the Act – Admissibility of statements made by the defendant – whether evidence given by the complainant’s mother of a statement made by the defendant should have been excluded on the basis that the risk of an unfairly prejudicial effect on the proceeding outweighed its limited probative value pursuant to s 8 of the Act

[2010] NZCA 493  CA 110/2010   29  October 2010

Dates

The application for leave to appeal is granted.

The approved ground is whether the evidence of complaints to two family members was admissible.

25 February 2011
Hearing

5 May 2011.

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.

Result

Appeal dismissed.

9 June 2011

 

Case Number SC 113/2010    
Case Name

CJH  v The Queen

Summary

Refusal to grant name suppression.

CRI 2008 006 2346  Judge Harvey

Dates

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

25 November 2010.

 

Case Number SC 112/2010    
Case Name

M D M v Serious Fraud Office

Summary

Refusal to grant name suppression.

CRI 2010 404 338 19 October 2010

Dates

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

25 November 2010.

 

Case Number SC 111/2010    
Case Name

Brian Thomas Street v Michael John Brouwers

Summary

Civil Appeal – tort of removal of support and negligence – causation – landslip encroaching on common boundary of adjoining property causing land to subside and reducing the value of the adjoining property – whether the Court of Appeal erred on the issue of causation – whether the Court of Appeal erred in their approach to the tort of removal of support and negligence.

[2010] NZCA 463   CA 374 /2009  13 October 2010

Dates

Application for leave to appeal dismissed.

9 March 2011

 

Case Number SC 110/2010    
Case Name

Joshua Chris Woodcook v The Queen

Summary

Criminal Appeal – whether the trial judge misdirected the jury on its power to return majority verdicts resulting in a miscarriage of justice. 

[2010] NZCA 489 CA 733/2009 28 October 2010

Dates

Application for leave to appeal dismissed.

16 February 2011

 

Case Number SC 109/2010    
Case Name

Brendon Clive Dorn v The Queen

Summary

Criminal – Indecent assault – Judicial misdirection to jury on belief in consent – whether the Court of Appeal erred in finding that the misdirection did not give rise to a miscarriage of justice in respect of count 3

[2010] NZCA 461 CA 185/2010 11 October 2010

Dates

Application for leave to appeal dismissed.

16 February 2011

 

Case Number SC 108/2010    
Case Name

GB v The Queen

Summary

Criminal – Summary Proceedings Act 1957 – Appellants charged with cultivation, supply and possession of cannabis – Whether Court of Appeal erred in not explicitly ruling that a search warrant issued under s 198 SPA cannot authorise the installation of covert video surveillance cameras – Whether Court of Appeal erred in holding exclusion of surveillance evidence would be disproportionate to impropriety in obtaining it.

[2010] NZCA 457 CA 222/2010 7 October 2010

Dates

Application for leave to appeal dismissed

2 December 2010

 

Case Number SC 107/2010    
Case Name

DH v The Queen

Summary

Criminal – Summary Proceedings Act 1957 – Appellants charged with cultivation, supply and possession of cannabis – Whether Court of Appeal erred in not explicitly ruling that a search warrant issued under s 198 SPA cannot authorise the installation of covert video surveillance cameras – Whether Court of Appeal erred in holding exclusion of surveillance evidence would be disproportionate to impropriety in obtaining it.

[2010] NZCA 457 CA 221/2010 7 October 2010

Dates

Application for leave to appeal dismissed

2 December 2010

 

Case Number SC 106/2010  
Case Name

John Colman  v The Police

Summary

Criminal Appeal – Summary Offences Act 1981, s (4)(1)(a) – using insulting language within hearing of a public place, being reckless as to whether anyone was insulted by the words - discharged without conviction on appeal – leave refused to appeal to the Court of Appeal – whether the applicant’s rights under the New Zealand Bill of Rights Act 1990 have been breached.

CRI 2009 488 09  22 December 2009

Dates

Application for leave to appeal dismissed.

8 December 2010.

 

Case Number SC 105/2010  
Case Name

Pawel Marian Misiuk v The Chief Executive of the Department of Corrections

Summary

Civil Appeal - Habeas Corpus application - Whether the High Court’s failure to issue a warrant to detain the applicant as required by s44(1) of the Bail Act 2000 at time of the applicant’s hearing meant that all subsequent warrants issued for the applicant's commitment to prison were also invalid.

[2010] NZCA 480 CA 672/2010 20 October  2010

Dates

Application for leave to appeal dismissed,

16 November 2010.

 

Case Number SC 104/2010    
Case Name

Peter Muller v The Queen

Summary

Criminal Appeal – Appeal against conviction – whether the Court of Appeal erred in dismissing the applicant’s application to adduce fresh alibi evidence – whether the Court of Appeal erred in finding that the admission of identification evidence at trial, while in error, did not amount to a miscarriage of justice requiring the setting aside of the verdict – whether the Court of Appeal erred in finding that no miscarriage of justice arose from the failure to grant a stay due to delay

[2010] NZCA 380 CA 439/2009  18 August 2010

Dates

Application for leave to appeal dismissed.

16 December 2010.

 

Case Number SC 103/2010      
Case Name

R S v The Queen

Summary

Criminal – Exclusion of evidence – Whether the Court of Appeal erred in holding that what specific drug, if any, a police constable is searching for under s 18(2) of the Misuse of Drugs Act 1975 is a factual rather than legal issue - Whether the Court of Appeal erred in holding that whether s 23(1)(b) of the New Zealand Bill of Rights Act had been breached is a factual rather than legal issue – Whether the Court of Appeal erred in its deciding unlawfully obtained evidence was admissible under the balancing exercise in s 30(2) of the Evidence Act 2006.

[2010] NZCA 434 CA 333/2010 22 September 2010

Dates

Application for leave to appeal dismissed.

16 November 2010.

 

Case Number SC 102/2010    
Case Name

Bostik New Zealand Limited v Stephen Graham Lockwood & Wadham Goodman Trustees Limited as trustees of the Island Trust.

Summary

Civil – Negligent misstatement – Respondent alleges misrepresentation in respect of waterproofing product suitability to waterproof large deck – Whether Court of Appeal erred in disturbing findings of fact in High Court as to falsity of representation and suitability of product and in remitting proceeding to High Court for reconsideration – Whether Court of Appeal gave undue weight to Bostik’s own technical literature regarding suitability of waterproofing product which post-dated the events in issue.

[2010] NZCA 436 CA 381/2009 24 September 2010

Dates

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

8 December 2010

 

Case Number SC 101/2010    
Case Name

Thin Thi Vu v Ministry of Fisheries

Summary

Criminal Appeal – Whether the Court of Appeal erred in reinstating the appellant’s conviction and sentence for aiding and encouraging the illegal purchase of paua from an undercover fisheries officer - Whether the Court of Appeal erred in holding that the transfer of paua by an undercover fisheries officer to the appellant was not a transaction with the Crown for the purposes of s 192(10)(c) of the Fisheries Act 1996. 

[2010] NZCA 469 CA 375/2010  15 October 2010

Dates

Application for leave to appeal dismissed.

17 December 2010

 

Case Number SC 100/2010      
Case Name

Stephen Thomas Hudson v The Queen

Summary

[2010] NZCA 417 CA 51/2010 13 September  2010.

Dates

A          The application for leave to appeal is granted.

B          The permitted grounds of appeal are whether:

            (i)         the evidence in relation to previous acts of violence involving the appellant; and

 

            (ii)        the evidence of admissions by the appellant to witnesses that he was responsible for the deceased’s murder should have been admitted at the trial and if so whether adequate directions to the jury in respect of such evidence were given by the trial Judge.

15 December 2010
Hearing

7 April 2011

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

Result

Appeal dismissed.

19 May 2011

 

Case Number SC 99/2010    
Case Name

Arrow International Limited v QBE Insurance (International) Limited

Summary

Civil – Construction of insurance policy – Head contractor of leaky apartment complex made insurance claim in respect of compensation paid to the body corporate and unit owners for building defects – whether the Court of Appeal erred in finding that the applicant’s liability to pay compensation was not “consequent upon” damage happening during the relevant insurance period and therefore the applicant was not entitled to be indemnified for the compensation paid

[2010] NZCA 408 CA 426/2009 8 September  2010.

Dates

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

15 December 2010

 

Case Number SC 98/2010      
Case Name

Westpac New Zealand Limited v Map & Associates Limited

Summary

Civil – Knowing assistance in breach of trust – Whether the Court of Appeal erred in holding that Westpac did not have reason to refuse to follow the instructions of its account holder – Whether the Court of Appeal erred in its application of s 87 of the Judicature Act 1908.

[2010] NZCA 404 CA 193/2009 6 September  2010.

Dates

A          The application for leave to appeal is granted.

B          The approved ground of appeal is whether the Court of Appeal was correct in holding that Westpac had breached its mandate.

C          The application for leave to cross-appeal is refused. 

2 February 2011.
Hearing

31 May 2011
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.

Result

The appeal is dismissed.

The appellant is to pay the respondent costs in the sum of $15,000.00 plus disbursements to be fixed, if necessary, by the Registrar.

16 August 2011

 

Case Number SC 97/2010    
Case Name

Tabbasum Mahomed v The Queen

Summary

Criminal – Failing to Provide the Necessaries of Life – Whether Court of Appeal erred in pre-trial ruling admitting certain propensity/narrative evidence against the applicant – Whether Court of Appeal in dismissing appeal erred in concluding trial Judge not required to give specific directions on propensity evidence at trial – Whether Crown was required to exclude at trial the possibility that murder injury was unsurvivable – Whether Court of Appeal wrong to find sufficient evidence to exclude that possibility.

[2010] NZCA 419 CA 790/2009 14 September  2010.

Dates

Application for leave to appeal granted.

The approved grounds are:

(i) Whether the evidence concerning the child’s being left in the car on 19 December 2007 was admissible; and

(ii) If so, whether the Judge’s directions relating to that evidence were adequate.

2 November 2010.
Hearing

16 February 2010

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.

Result

Appeal dismissed.

19 May 2011

 

Case Number SC 96/2010    
Case Name

Chesterfields Preschools Limited, D J Hampton, Chesterfields Partnership, Chesterfields Preschools Partnership & Anolbe Enterprises Ltd v Commissioner of Inland Revenue

Summary

Civil Appeal – Judicial review appeal – Taxation liabilities – Appellants were partly successful in the first judicial review proceedings against the Commissioner of Inland Revenue (Commissioner) and the Commissioner was ordered to reconsider a number of matters - Second judicial review proceedings held the Court would not enforce the debt owed to the Commissioner by the appellants until the Court was satisfied that the first judicial review had been complied with – Whether the Court of Appeal erred in allowing to an extent the appeal by the Commissioner against the second judicial review judgment.

[2010] NZCA 400 CA 607/2008, CA 800/2008, SC 271/2009, CA 156/2010  31 August 2010.

Dates

The application for leave to appeal and the associated application for directions are dismissed with costs of $2,500 to the respondent.

16 December 2010

 

Case Number SC 95/2010    
Case Name

Winston James Shane Young v The Queen

Summary

Criminal appeal – Whether the Court of Appeal erred in upholding the appellant’s conviction; whether the trial judge erred in his summing up to the jury; whether guilty verdict unreasonable.

[2010] NZCA 309 CA 555/2009 19 July 2010.

Dates

Application for leave to appeal refused.

8 December 2010

 

Case Number SC 94/2010    
Case Name

Shaun Mihaka Sullivan v The Queen

Summary

Criminal – appeal against conviction and sentence – applicant convicted of murder in the High Court and sentenced to life imprisonment – after the jury had retired and following legal argument, the trial Judge called the jury back to give some redirections – whether the Court of Appeal erred in finding that the trial Judge’s directions to the jury regarding out-of-court statements of the applicant’s co-accused did not give rise to a miscarriage of justice – whether the Court of Appeal erred in finding that the redirections by the trial Judge safely dealt with any initial errors – whether the Court of Appeal erred in declining to recall its judgment dismissing the appeal on the basis that there were no exceptional circumstances and the interests of justice did not require it.

[2010] NZCA 407 CA 129/2010  7 September  2010.

Dates

Application for leave to appeal dismissed.

9 December 2010

 

Case Number SC 93/2010    
Case Name

Aldwyn John Cockburn, Janet Elizabeth Cockburn and Keith Ian Jeffries v C S Development No 2 Limited

Summary

Civil – GST due on sale of commercial property – Whether the Court of Appeal was correct to find that the sale of the property did not include the claimed supply of a going concern – Whether the Commissioner of Inland Revenue’s assessment that it was a going concern can only be questioned by challenge proceedings under the Tax Administration Act 1994.

[2010] NZCA 373  CA 445/2009  16 August 2010.

Dates

Application for leave to appeal dismissed.

Costs of $2,500 to the respondent.

16 November 2010.

 

Case Number SC 92/2010    
Case Name

Arthur William Taylor v The Chief Executive of the Department of Corrections

Summary

Civil – Judicial Review – Judicature Amendment Act 1972 – Visiting arrangements for maximum-security prisoner and young daughter – High Court declined appellant interim relief against prison manager’s decision restricting previous monthly contact visits with daughter in interests of child and prisoner safety – Whether Court of Appeal erred in declining to make mandatory interim relief order against prison manager’s discretion despite finding that courts have jurisdiction to order mandatory interim relief against the Crown – Whether Court of Appeal should have commented on respondent’s cross-appeal when High Court observations founding cross-appeal made only in obiter.

[2010] NZCA 371  CA 165/2010   16 August 2010

Dates

Application for leave to appeal dismissed.

8 December 2010.

 

Case Number SC 91/2010    
Case Name

Kent James Bond v The Queen

Summary

Criminal Appeal – Appeal against conviction and sentence – Whether evidence was admissible – Whether the trial judge misdirected the jury in summing up – Whether the sentence was excessive.

[2010] NZCA 381  CA 109/2010   18 August 2010.

Dates

Application for leave to appeal dismissed.

23 November 2010

 

Case Number SC 90/2010    
Case Name

R I G v Chief Executive Officer, Ministry of Social Development and others

Summary

Civil Appeal – whether the Court of Appeal erred in refusing to waive security for costs for the applicant’s appeal from the High Court to the Court of Appeal. 

[2010] NZCA 362  CA 261/2009   10 August 2010.

Dates

Application for leave to appeal is dismissed.

17 November 2010

 

Case Number SC 89/2010    
Case Name

Raylee Patricia Harley v Robert John Erwood and The Official Assignee

Summary

Civil – Official Assignee accepted a proof of debt from the applicant – decision reversed by the High Court whose judgment was upheld in the Court of Appeal – whether the Court of Appeal correctly applied Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5 in finding that a judgment in favour of the applicant in one set of proceedings was compromised by a consent order in different proceedings – whether s 149(2)(b) of the Law Practitioners Act 1982, which empowers the court to enter judgment for fees, witness expenses and disbursements, is sufficient basis for a proof of debt claim where the Official Assignee acted reasonably.

[2010] NZCA 362  CA 261/2009   10 August 2010.

Dates

Applications for leave to appeal by Mrs Harley and Mr Erwood are both dismissed.

16 November 2010

 

Case Number SC 88/2010    
Case Name

The Queen v GKB

Summary

Criminal – Admissibility of previous consistent statements – Whether the Court of Appeal erred in finding that s 35(2) of the Evidence Act 2006 is not engaged until a proposed witness gives evidence at trial – Whether the Court of Appeal erred in finding that s 35(2) of the Evidence Act 2006 is not engaged by reference to an accused’s pre‑trial statement to the police.

[2010] NZCA 326  CA 313/2010  27 August 2010.

Dates

Leave to appeal is granted.

The approved ground of appeal is whether the Court of Appeal was correct to conclude that s 35(2) of the Evidence Act 2006 is only triggered by a challenge to veracity made at trial.

23 September 2010.

Hearing

7 December 2010.

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.

Result

Appeal allowed.  Decision of the District Court reinstated.

17 December 2010

 

Case Number SC 87/2010    
Case Name

Hi-Gene Limited v Swisher Hygiene Franchise Corporation

Summary

Civil – Arbitration Act 1996 – Respondent sought to register foreign arbitral award made in North Carolina against New Zealand-based appellant in High Court – Appellant not present at arbitration and adjournment refused by arbitrators – Whether recognition and enforcement of award should be refused in New Zealand on grounds appellant unable to present case at arbitration and rules of natural justice breached – Whether Court of Appeal erred in holding same high threshold should apply to grounds for refusing recognition or enforcement of foreign arbitral award under r 36(1)(a)(ii) and (1)(b)(ii) of First Schedule to Arbitration Act – Whether Court of Appeal wrong to hold appellant had onus to seek formal decision from arbitrators on adjournment application – Whether Court of Appeal wrong in holding rr 18 and 24(2) had no application to foreign arbitral awards.

[2010] NZCA 359  CA 346/2010  9 August 2010.

Dates

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

3 November 2010

 

Case Number SC 86/2010    
Case Name

Ratima James O'Donnell @  Ratima Joseph Osborne v The Queen

Summary

Criminal Appeal – Appeal against conviction – Whether guilty plea was entered in error causing a miscarriage of justice.

[2010] NZCA 372  CA 179/2008  16 August 2010.

Dates

Application for leave to appeal dismissed.

10 November 2010

 

Case Number SC 85/2010    
Case Name

Peter Hardie McNamara and Patrick Sturgeon McNamara as Trustees of the PH McNamara Family Trust v Auckland City Council

Summary

Civil Appeal – Whether the Court of Appeal erred in finding that the respondent did not owe a duty of care to the appellant; whether the Court of Appeal erred in not finding that the building certificate issued by a third party was invalid under the Building Act 1991.

[2010] NZCA 345 CA 457/2009 3 August 2010.

Dates

A          The application for leave to appeal is granted.  

B          The approved grounds are: 

Whether a local authority: 

(i)         owes a duty of care to purchasers of units in a residential development for which a code compliance certificate was issued by a private certifier which was acting outside of its authority to issue such certificates; and/or 

(ii)         was immunised by s 50(3) of the Building Act 1991 against liability in relation to its actions in reliance on such a certificate.

30 November 2010

Hearing

19 April 2011

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ. 

Result

Appeal dismissed.
The appellants are to pay the respondent costs of $25,000 and reasonable disbursements in connection with this appeal, as fixed by the Registrar if necessary.

9 May 2012

 

Case Number SC 84/2010    
Case Name

Bruce Benjamin Shepherd v The Queen

Summary

Criminal – appeal against conviction and sentence – applicant was convicted on 20 counts of sexual offending against eight complainants –  during re-examination of one complainant the judge intervened to clarify the meaning of an earlier question from counsel for the defence in cross-examination and sought the complainant’s answer – whether the Court of Appeal erred in finding that the questioning did not give rise to a miscarriage of justice – whether the Court of Appeal erred in finding that particular conduct of the applicant’s counsel at trial did not give rise to a miscarriage of justice .

[2010] NZCA 351 CA 105/2009 5 August 2010.

Dates

Application for leave to appeal dismissed.

1 April 2011

 

Case Number SC 83/2010    
Case Name

Neil Martin Clarke v Corey Daniel Watts

Summary

Civil – Security for costs on appeal – Whether the Registrar of the Court of Appeal failed to provide the appellant with information relating to the requirements for a dispensation of costs within time – Whether a miscarriage of justice would be caused by the release of monies held by the High Court in execution of the costs order to the respondent.

[2010]  NZCA 322   27 July 2010

Dates

Application for leave to appeal dismissed.

7 October 2010

 

Case Number SC 82/2010    
Case Name

Churchill Group Holdings Limited and others v Aral Property Holdings Limited and David Leung

Summary

Civil – Conflict of Interest – Whether employment of High Court Judge’s child within the respondent’s firm of solicitors gave rise to a reasonable apprehension of bias which meant Judge should not have sat or continued to sit on the case – Whether Court of Appeal should accordingly have recalled its judgment dismissing an appeal from the High Court’s decision not to stay the execution of a costs order against the appellant.

[2010]  NZCA 335   30 July   2010

Dates

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

3 November 2010

 

Case Number SC 81/2010      
Case Name

Gary Maui Isherwood v The Queen

Summary

Criminal Appeal – Appeal against sentence of preventive detention - Whether the Court of Appeal erred in dismissing the applicant’s application for an extension of time for filing an appeal against sentence.

[2010]  NZCA 347   3 August  2010

Dates

Application for leave to appeal dimissed.

21 September 2010.

 

Case Number SC 80/2010    
Case Name

Chala Sani Abdula v The Queen

Summary

Criminal Appeal - whether the applicant was denied his right to an interpreter under s 24(g) of the New Zealand Bill of Rights Act 1990; whether the adequacy of evidence called by the defence at trial and the Court of Appeal's refusal of an application to call further medical and scientific evidence gave rise to a miscarriage of justice.

[2010]  NZCA 332   28 July  2010

Dates

A          The application for leave to appeal is granted.

B          The approved ground of appeal is whether the applicant was denied his right to an interpreter under s 24(g) of the New Zealand Bill of Rights Act 1990.

4 November 2010.
Hearing

25 March 2011.

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.

Result Appeal dismissed.
1 November 2011

 

Case Number SC 79/2010    
Case Name

Rupinder Singh Chahil v The Queen

Summary

Criminal appeal – convictions for kidnapping after joint trial with three others – appeal against sentence and conviction – statement of co-accused used in evidence against the applicant – the Court of Appeal allowed the appeal against sentence but declined to impose a sentence of home detention in place of imprisonment – Whether the applicant’s rights under section 25 of the New Zealand Bill of Rights Act 1990 (minimum standards of criminal procedure) were breached by the Crown’s use of the co-accused’s statement at trial – whether the Court of Appeal failed to identify the extent and impact of the inadmissible material – Whether the Court of Appeal erred in failing to consider home detention as an option in terms of section 16 of the Sentencing Act 2002.

[2010]  NZCA 331   27 July  2010

Dates

Application for leave to appeal dimissed.

28 September 2010

 

Case Number SC 78/2010    
Case Name

Iowane Seru Sucuturaga v The Queen

Summary

Criminal – Appeal from conviction for sexual violation by rape – What is the proper test for admission of evidence concerning jury deliberations – Whether the Court of Appeal erred in holding that a witness had committed perjury when he had not faced a jury – What is the standard of proof for a finding of perjury – Whether a miscarriage of justice was caused by the admission of inadmissible evidence – Whether the Court of Appeal erred in finding the jury’s verdicts were not inconsistent – Whether the Court of Appeal erred in finding the trial Judge’s misdirection on representative counts did not cause a miscarriage of justice.

Dates

Application for leave to appeal dismissed.

3 February 2011

 

Case Number SC 77/2010    
Case Name

North Shore City Council v The Attorney-General

Summary

Civil – Duty of care – Whether Building Industry Authority owed a duty of care to the Council in connection with 1995 review of Council’s building regulatory operations and functions under Building Act 1991 – Whether case so untenable to justify striking out of third-party notice.

[2010]  NZCA 324   26 July  2010

Dates

A Leave to appeal is granted.

B The approved grounds are:

(i) Whether it is reasonably arguable that the BIA owed a duty of care to the Council in relation to the Grange development in any of the respects pleaded (as described in para 13.1 – 13.3 of the Council’s submissions in support of its application for leave to appeal).

(ii) Whether it is reasonably arguable that the BIA owed a duty of care to the plaintiff body corporate and unit owners in the respect pleaded (as described in para 13.4 of the Council’s submissions in support of its application for leave to appeal).

13 October 2010.
Hearing 1 – 3 November 2011
Elias CJ, Blanchard , Tipping, McGrath, William Young JJ.
Decision reserved.
Result

The appeal is dismissed.

The appellant is to pay the respondent costs of $40,000 and reasonable disbursements in connection with this appeal, as fixed by the Registrar if necessary.

27 June 2012

 

Case Number SC 76/2010    
Case Name

Sialofi Nee Ah Kee Patea v The Queen

Summary

Criminal Appeal – Crimes Act 1961 - Whether the Court of Appeal erred in dismissing the applicant’s appeal against conviction for assault with intent to injure.

[2010]  NZCA 338  30 July  2010

Dates

Application for leave to appeal dismissed.

3 November 2010.

 

Case Number SC 75/2010    
Case Name

Neville Fong and June Chong v Christopher Shane Wong and Angela Kim Fong

Summary

Civil Appeal – Whether the Court of Appeal erred in apply s 149 of the Companies Act 1993 to a transaction between persons who are not directors as defined by s 126 of that Act; whether the Court of Appeal erred in its interpretation of “fair value”  in s 149.

[2010]  NZCA 301   16 July  2010

Dates

Application for leave to appeal dimissed with costs of $2,500 to the respondents.

28 September 2010

 

Case Number SC 74/2010  
Case Name

TRD v The Queen

Summary

Criminal Appeal – Implied licence to enter private property – whether a police officer acts within the terms of the implied licence at common law to enter private property when he enters with the purpose of investigating suspected criminal activity as well as the intention to communicate with the occupier of the property

[2010]  NZCA 297  14 July  2010

Dates

Application for leave to appeal is dismissed.

8 September 2010

 

Case Number SC 73/2010    
Case Name

TMT v The Queen

Summary

Criminal – Admissibility of evidence – Whether the Court of Appeal erred in ruling video evidence taken on private property during an undercover operation admissible.

[2010]  NZCA 287  5 July  2010

Dates

Application for leave to appeal granted.

13 August 2010

Hearing

2 December 2010.

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ

Result

Appeal dismissed.

17 December 2010

 

Case Number SC 72/2010      
Case Name

Graeme John Ingram and Elizabeth Knee & Kip Investments Limited v Patrcroft Investments Limited

Summary

Civil Appeal – Contract – Respondent re-entered property on 14 June 2005, one day before entitled to cancel lease contract for failure by Appellants to pay rent arrears – Whether Respondent cancelled contract under s 8 Contractual Remedies Act 1979 on 15 June by remaining in occupation of the property – Whether Respondent must have been ready, willing and able to perform the contract when cancelling on 15 June – Whether Court of Appeal correct to say Appellants could have reserved their rights to cancel for Respondent’s repudiation by paying outstanding rent on 14 June.

[2010]  NZCA 275 29 June 2010

Dates

The application for leave to appeal is granted.

The approved ground is:

In circumstances in which the respondent’s re-entry into the premises on 14 June 2005 was invalid, whether, and when, either of the parties thereafter validly terminated the lease.

27 September 2010.

Hearing

22 March 2011.

Elias CJ,  Blanchard, Tipping, McGrath, William Young JJ.
Result

A         The appeal is allowed and the orders made by the High Court are restored.

B      The appellants are awarded costs of $15,000 together with their reasonable disbursements to be fixed if necessary by the Registrar.

C         The costs order made by the Court of Appeal is reversed.  Any outstanding questions concerning interest and costs should be determined by the High Court.

19 May 2011

 

Case Number SC 71/2010    
Case Name

Philip John Smith v The Attorney-General

Summary

Civil Appeal – Whether the Court of Appeal denied the appellant the right to a fair hearing on account of bias, hostility and predetermining the appellant’s recusal applications; whether the Court of Appeal erred in holding that evidence tendered at the High Court was admissible; whether psychological reports of the appellant were obtained in breached s 11 of the New Zealand Bill of Rights Act 1990.

[2010]  NZCA 258  23 June 2010

Dates

Application for leave to appeal dismissed.

8 September 2010

 

Case Number SC 70/2010    
Case Name

Shaun Roger Nixon and others v Geoffrey Walker and others

Summary

[2010]  NZCA 273 25 June 2010

Dates

Application for leave to appeal dimissed with costs of $2,500 to the respondents.

28 September 2010

 

Case Number SC 69/2010    
Case Name

John Hillary Corbett v Robert Corbett  Western and  Bruce Reginald Patterson

Summary

Civil appeal – applicant seeks leave to appeal a refusal by the Court of Appeal to grant leave for the bringing of an appeal to that Court

[2010]  NZCA 270 25 June 2010

Dates

Application for leave to appeal dismissed.

3 August 2010.

 

Case Number SC 68/2010    
Case Name

Tower Insurance Limited v ANZ National Bank Limited and ING (NZ) Limited

Summary

Civil – Disclosure of Information – Whether the Court of Appeal erred in finding that Tower is obliged to deliver information on its insurance policies and client details to the respondents under its terminated agreements with the banks – Whether the Court of Appeal erred in finding that Tower is not prevented by the Privacy Act 1993 and the law of confidentiality from delivering that information – Whether the Court of Appeal erred in finding that the respondents were entitled to pass that information on to Vero Insurance New Zealand Ltd.

[2010] NZCA 267  CA 194/2009  25 June  2010

Dates

Notice of abandonment being lodged, the appeal and cross appeal are  deemed to be dismissed. By consent, no order as to costs.

20 September 2010

 

Case Number SC 67/2010    
Case Name

Vincent Ross Siemer v The Chief Executive of the Department of Corrections

Summary

Civil Appeal – Habeas Corpus – Contempt of Court – Whether Court of Appeal properly applied Habeas Corpus Act 2001 to contempt order of Supreme Court in Siemer v Solicitor-General [2010] NZSC 54 – Whether Applicant given proper notice of details of breach of injunction – Whether Supreme Court contempt order founded on a proper evidential basis – Whether there now remains a lawful basis for Applicant to be detained – Whether Applicant was properly served with original injunction

[2010] NZCA 292  CA 424/2010  7 July 2010

Dates

Application for leave to appeal dismissed.        

16 July 2010.

 

Case Number SC 66/2010    
Case Name

Robert Erwood v Janet Maxted and others

Hearing

18 March 2011.

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

Result

The appeal is allowed.

The appeal to the Court of Appeal is reinstated. The proceeding is remitted to the Court of Appeal for hearing.

The costs order in the Court of Appeal is set aside.

18 March 2011

The application by the first respondents for recall is dismissed.

15 July 2011

Application by the appellant for recall is dismissed.

25 November 2015

 

Case Number SC 65/2010    
Case Name

D A Constable Syndicate 386 v Auckland District Law Society

Summary

Civil Appeal – contractual interpretation – whether the Court of Appeal erred in its interpretation of an indemnity clause in the Auckland District Law Society’s standard professional indemnity policy, namely whether the word “negligent” should be read as qualifying only the word “act” in the phrase “negligent act, error or omission”.

[2010] NZCA 237   CA 565/2008   8 June  2010

Dates

The application for leave to appeal is granted. 

The approved ground of appeal is whether the word “negligent” qualifies the words “error or omission” in the indemnity clause.

8 September 2010.

Hearing 2 March 2011
Result Notice of Abandonment being filed, the appeal is deemed to  be dismissed.

 

Case Number

SC 64/2010  

 
Case Name

Justin Leigh Harney v New Zealand Police

Summary

[2010] NZCA 264   CA 194/2010  1 July  2010

Dates

Application for leave to appeal granted.

The approved grounds are:

(i)      Was the Court of Appeal correct to find that there was a “good reason” for not following a formal identification procedure pursuant to s 45(1) of the Evidence Act 2006?

(ii)           If not, was the Court of Appeal correct to find that the circumstances in which the identification was made produced a reliable identification beyond reasonable doubt pursuant to s 45(2) of the Evidence Act?

13 August 2010.
Hearing

17 August 2011.
Elias CJ, Blanchard, Tipping, McGrath, Anderson JJ.

Result Appeal allowed. Convictions set aside. No order for a new trial.
16 September 2011.

 

Case Number SC 63/2010    
Case Name

Tannadyce Investments Limited v Commissioner of Inland Revenue

Summary

Civil – Statutory demand for tax arrears – Whether the Court of Appeal erred in finding that conscious maladministration cannot justify judicial review unless it negated the assessment made by the CIR – Whether the Court of Appeal erred in finding that Tannadyce had the opportunity to invoke the statutory challenge procedure – Whether the Court of Appeal erred in failing to find that the CIR and its officers acted unacceptably in refusing Tannadyce access to documents relating to it.

[2010] NZCA 233   CA 703/2008, CA 330/2009   4  June 2010

Dates

The application for leave to appeal is granted.

The approved ground is whether the Court of Appeal erred in striking out as an abuse of process the remaining ground of the appellant’s judicial review proceeding in which it alleges conscious maladministration by the respondent in denying that it had possession of documents which the appellant alleges it needed in order to be able to file tax returns.

27 August 2010

Hearing 25 August 2011.
Elias CJ, Blanchard, Tipping, McGrath, Gault JJ.
Decision reserved.
Result

The appeal is dismissed.

The appellant is to pay the respondent costs in the sum of $15,000 plus disbursements to be fixed if necessary by the Registrar.

20 December 2011

 

Case Number SC 62/2010  
Case Name

Ian David Penny and Gary John Hooper v Commissioner of Inland Revenue

Summary

Civil Appeal – Income Tax Act 1994 – Applicant orthopaedic surgeons employed by family companies owned by family trusts – Applicants found by Court of Appeal to have breached general anti-avoidance provision s BG 1 of Income Tax Act as level of remuneration paid by family companies to surgeons not a “commercially realistic salary” in view of family companies’ after-tax profit and therefore artificial/contrived – Whether arrangement had purpose or effect of tax avoidance to benefit from “rate advantage” between personal income tax and company tax rates – Whether “commercially realistic salary” an appropriate concept to apply under the Income Tax Act to a family company – Whether Applicants in fact exercised control over family companies and family trusts as governing director and co-trustee – Whether Court of Appeal correct to consider use of trust capital as advances as evidence of tax avoidance arrangement – Whether Court of Appeal correct to make cost orders different from cost arrangements agreed to by parties.

[2010] NZCA 231   CA 201/2009  4 June 2010

Dates

The application for leave to appeal is granted.

The approved ground is whether the Court of Appeal was right to find that the appellants had failed to establish that their use of their corporate and family trust structures did not constitute taxable arrangements for the purposes of s BG1 of the Income Tax Act 1994.

2 August 2010.

Hearing

27, 28,29 June 2011.

Elias CJ, Blanchard, Tipping, McGrath, Young JJ.

Result

The appeal is dismissed.

The appellants must pay the respondent’s costs in the sum of $25,000 together with his reasonable disbursements in connection with the appeal, as fixed by the Registrar if necessary.

24 August 2011.

 

Case Number SC 61/2010  
Case Name

Dylan Robert Tuhura v The Queen

Summary

Criminal Appeal – Whether the Court of Appeal erred in its application of the proviso to s 385(1) of the Crimes Act 1961; whether the Court of Appeal’s decision amounts to a miscarriage of justice.

[2010] NZCA 246   CA 493/2010   10 June 2010

Dates

Application for leave to appeal  refused.

2 November 2010.

 

Case Number SC 60/2010  
Case Name

A person or persons unknown and Ngai-Tupango-Hapu Inc v Tea Custodians (Bluestone) Ltd

Summary

Civil appeal – order in the High Court for vacant possession of a property against a person or persons unknown who were in unlawful occupation of it – Court of Appeal declined application for stay of the High Court judgment – whether the Court of Appeal erred in its refusal to grant an application for stay.

[2010] NZCA 211   CA 280/2010   26 May 2010

Dates

Application for leave to appeal dismissed.

Costs of $2,500 to be paid by the second applicant to the respondent.

25 August 2010.

 

Case Number SC 59/2010  
Case Name

S v Airline Limited

Summary

Civil Appeal – Employment – Application for interim name suppression - Whether the Court of Appeal erred in failing to find errors of law in the Employment Court judgment - Whether the Employment Court erred in declining to grant an interim order for non‑publication of the Applicant’s name and identifying details

ARC 7/2010    9 March  2010

Dates

The application for leave to appeal is dismissed.

The interim order for suppression of the applicant’s name made by the Court of Appeal on 23 June 2010 is to continue in force until 5pm on 7 September 2010. 

30 August 2010.

 

Case Number SC 58/2010  
Case Name

P v The Attorney-General

Summary

Civil Appeal – Duty of Care – Accident Compensation Act 2001 – Appellant alleges mental injury/PTSD as a result of sexual assault and threats/intimidation during employment with Royal New Zealand Navy – Whether ACC bar applies to mental injury suffered as a result of threats and intimidation – Whether damage materially contributed to Appellant’s mental injury –Whether non-delegable duty of care or fiduciary duty owed to the Appellant – Whether case merits award of exemplary or vindicatory damages – Whether case should be heard without prior appeal to the Court of Appeal in order for Supreme Court to hear case at the same time as another proposed appeal from W & W v Attorney-General [2010] NZCA 139.

Civ 2006 485 874    16 June 2010

Dates

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

30 June 2010.

 

Case Number SC 57/2010  
Case Name

KLB v The Queen

Summary

Whether the Court of Appeal erred in ruling that a statement made by the Applicant to the police was admissible as evidence; whether the statement was extracted by oppression in breach of s 29 of the Evidence Act 2006. 

[2010] NZCA 222   CA 144/2010   31 May 2010

Dates

Application for leave to appeal dismissed.

13 July 2010.

 

Case Number SC 56/2010  
Case Name

Nathan Stanley Gedye v Colin Robert South, Diane Lee South and Richard James Bureel as Trustees of the South Family Trust

Summary

Civil Appeal – Building Act 1991 – Alleged breach of vendor warranty for compliance with the Act – interpretation of limitation defence in s 91(2) of the Act – the Court of Appeal held the “act or omission on which the proceedings are based” to be the giving of the contractual warranty rather than the building work itself – the 10 year limitation period in s 91(2) therefore did not bar the respondent’s claim – whether the Court of Appeal erred in finding s 91(2) inapplicable

[2010] NZCA 207   CA 567/2009   20 May 2010

Dates

Application for leave to appeal dismissed.

5 October 2010.

 

Case Number SC 55/2010  
Case Name

Avowal Administrative Attorneys Limted and Nikytas Nicholas Petroulias v The District Court at North Shore and The Commissioner of Inland Revenue

Summary

Civil – Judicial review - Powers of the Commissioner of Inland Revenue to obtain information under the Tax Administration Act 1994 – That the Court of Appeal erred in failing to require that inspection of documents be necessary and relevant before the CIR may access them – That the Court of Appeal erred in finding no scope to interpret “book or document” in s16 of the TAA narrowly – That the Court of Appeal erred in finding that the CIR had an obligation to disclose the information obtained to the Australian Tax Office.

[2010] NZCA 183   CA 73/2009  11 May 2010

Dates

Application for leave to appeal is dismissed.

Applicants must pay 2nd respondents cost of $3,000 plus disbursements as fixed by the Registrar.

16 August 2010.

 

Case Number SC 54/2010  
Case Name

Alan Parekura Torohinga Haronga v Waitangi Tribunal and others

Summary

Civil Appeal – Judicial Review – Treaty of Waitangi Act 1975 – Whether Appellant should be granted urgent Waitangi Tribunal remedies hearing in respect of application for resumption of Crown forest land subject to current settlement negotiations – Whether Court of Appeal erred in holding that Crown Forests Assets Act 1989 did not substantively alter Waitangi Tribunal’s role in relation to making of binding recommendations in respect of Crown forest land – Whether Court of Appeal failed to take into account that circumstances meant Tribunal did not exercise its discretion and Appellant could never have gained remedies hearing – Whether Court of Appeal failed to take into account right of smaller claimants to seek a remedy under s 8HB of Treaty of Waitangi Act.

[2010] NZCA 201   CA 73/2010   19 May 2010

Dates

The application for leave to appeal is granted.

The approved ground is whether in making his decision of 21 October 2009 in Wai 1489 to decline an urgent remedies hearing, the presiding Judge in the Waitangi Tribunal erred in law.

10 August 2010.

Hearing

11 and 12 October 2010

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.

Result

A          The appeal is allowed and the determination of Judge Clark is quashed.

B          The matter is remitted to the Waitangi Tribunal with the direction that it must proceed urgently to hear the claim.

C          The second respondent must pay the appellant costs of $25,000 together with reasonable disbursements to be fixed if necessary by the Registrar.  Costs in the Court of Appeal and High Court are to be fixed by those Courts

 

Case Number SC 53/2010  
Case Name

Jeremy William Mataira v The Queen

Summary

Criminal Appeal – Assault – Appeal against convictions based on alleged misconduct at trial – Whether Appellant denied ability to mount a credible appeal to Court of Appeal because evidence of alleged misconduct at trial unavailable.

[2010] NZCA 190   CA 162/2009   14 May 2010

Dates

Notice of Abandonment being lodged, the application for leave to appeal  is deemed to be dismissed.

13 August 2010.

 

Case Number SC 52/2010  
Case Name

GE Custodians v Bruce Leonard Bartle and Dorothy Judith Bartle and others

Summary

Civil Appeal – Whether the credit contracts entered into by the appellant and the respondents were oppressive in terms of the Credit Contracts and Consumer Finance Act 2003; Whether the Court of Appeal erred in its interpretation of “oppression”; whether it is possible for a contract to be oppressive despite independent legal advice being received: whether knowledge of a third party could be attributed to the appellant in the absence of a relationship of agency.

[2010] NZCA 174   CA 627/2009   6 May 2010

Dates

Leave to appeal is granted.

The approved ground of appeal is whether the credit contracts were oppressive in terms of the Credit Contracts and Consumer Finance Act 2003.

5 August 2010.

Hearing

20 and 21 October 2010.

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

Decision reserved.

Result

The appeal is allowed and the orders made by the Court of Appeal are set aside.

The case is remitted to the High Court for determination of issues reserved by that Court for further consideration.

 The appellant is awarded costs in this Court against the first and second respondents of $25,000 together with its reasonable disbursements to be fixed by the Registrar.

The costs order made by the Court of Appeal is reversed.

 3 December 2010.

 

Case Number SC 51/2010  
Case Name

Vupul Romik Sharma v The Queen

Summary

Criminal Appeal – Crimes Act 1961 – Abduction and sexual violation – whether the Court of Appeal erred in finding that the trial Judge did not need to direct the jury on the issue of intoxication

[2009] NZCA 540   CA 244/2009   17 November 2009

Dates

Application for leave to appeal dismissed.

13 August 2010.

 

Case Number SC 50/2010  
Case Name

PT v The Queen

Summary

Criminal Appeal – Whether the Court of Appeal erred in finding that the evidence of a general practitioner was relevant and substantially helpful under ss 7 and 25 of the Evidence Act 2006 respectively; whether the trial judge erred in his directions to the jury and if so, whether the errors amount to a miscarriage of justice. 

[2010] NZCA 151   CA 604/2009   27 April 2010

Dates

Application for leave to appeal dismissed.

20 July 2010

 

Case Number SC 49/2010  
Case Name

Robert Frank Terry v Department of Corrections

Summary

Criminal Appeal – Sentencing - Sentencing Act 2002 – Summary Proceedings Act 1957 – High Court quashed conviction for failure to complete required hours of work and held the existing sentence of community work imposed remained - Whether the High Court lacked jurisdiction to re-impose sentence originally imposed by the District Court after point in time – Whether the High Court failed to consider relevant law.

CRI 2010 418 01   23 April 2010

Dates

Application for leave to appeal dismissed.

16 July 2010.

 

Case Number SC 48/2010  
Case Name

W and W v The Attorney-General

Summary

Civil Appeal – Duty of Care and Limitation Act 1950 – State liability claim for historic abuse while appellants under social welfare supervision and in institutional care – Whether Court of Appeal erred in application of legal test for disability under Limitation Act – Whether limitation test of reasonable discoverability of harm too restrictive and inconsistent with precedent/international law – Whether test of reasonable discoverability should apply more widely than cases of sexual abuse cases – Whether reasonable discoverability requires recognition by complainant that assault wrongful/actionable – Whether Court of Appeal further erred in law as to: causation and material contribution to harm of vulnerable persons; scope of duty of care by Department and/or social workers; false imprisonment – Whether facts support an award of exemplary damages directly or vicariously or a finding of non-delegable duty of care.

[2010] NZCA 139  CA 714/2007  23 April 2010

Dates

Application for leave to appeal dismissed.

29 June 2010.

 

Case Number SC 47/2010  
Case Name

James Louis Mason v The Queen

Summary

Criminal Appeal – whether the Court of Appeal erred in combining two allegations of criminal conduct to be included in a single count in the indictment.

[2010] NZCA 170  CA 481/2009   5 May 2010

Dates

The application for leave to appeal is granted.

The approved ground of appeal is whether the combining in a single count in the indictment of the two allegations (punching the child and pulling his ear) resulted in a miscarriage of justice.

7 July 2010.

Hearing

19 October 2010.

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

Result

Appeal allowed and the conviction is quashed.

No order for a new trial.

3 November 2010.

 

Case Number SC 46/2010  
Case Name

Telecom New Zealand Limited v Vodafone New Zealand  Limited and Commerce Commission

Summary

Civil Appeal – Communications - Telecommunications Act 2001 - Whether the Commerce Commission erred in its calculation of the net cost of providing Telecommunications Services Obligation under the Act by ceasing to introduce new technology into the modelled network.

Civ 2008 485 2293/2205/2206    1 April  2010

Dates

Application for leave to appeal granted.

Approved ground of appeal is whether the Commerce Commission in making its determination complied with applicable statutory provsion.

14 May 2010.

Hearing

21 – 24 February

Elias CJ, Blanchard, Tipping, McGrath, Gault JJ.

Decision reserved.
Result Appeal dismissed.  No order for costs.
17 November 2011.

 

Case Number SC 45/2010  
Case Name

Telecom New Zealand Limited v Vodafone New Zealand  Limited and Commerce Commission

Summary

Civil Appeal – Communications – Telecommunications Act 2001 – Whether the High Court erred in holding that there was no reviewable inconsistency or error of law in the Commerce Commission’s determination to reduce material input in its modelling methodology based on the removal from its modelling of a technological optimisation factor.

Civ 2008 485 2194/295/ 2341    1 April  2010

Dates

Application for leave to appeal granted.

Approved ground of appeal is whether the Commerce Commission in making its determination complied with applicable statutory provsion.

14 May 2010.

Hearing

21 – 24 February

Elias CJ, Blanchard, Tipping, McGrath, Gault JJ.

Decision reserved.
Result Appeal dismissed.  No order for costs.
17 November 2011.

 

Case Number SC 44/2010  
Case Name

Commerce Commission v Vodafone New Zealand Limited and Telecom New Zealand Limited

Summary

Civil Appeal – Communications - Telecommunications Act 2001 - Whether the Commerce Commission erred in its calculation of the net cost of providing Telecommunications Services Obligation under the Act by ceasing to introduce new technology into the modelled network.

Civ 2008 485 2194/295/ 2341    1 April  2010

Dates

Application for leave to appeal granted.

Approved ground of appeal is whether the Commerce Commission in making its determination complied with applicable statutory provsion.

14 May 2010

Hearing

21 – 24 February

Elias CJ, Blanchard, Tipping, McGrath, Gault JJ.

Result Appeal dismissed.  No order for costs.
17 November 2011.

 

Case Number SC 43/2010  
Case Name

Abdirazak Yussuf Mussa v The Queen

Summary

Criminal Appeal – Evidence – Appellant convicted in District Court on two counts of rape – Whether Court of Appeal and District Court erred in failing to properly weigh unfairly prejudicial effect of certain evidence against its probative effect – Whether trial Judge failed to give adequate directions as to limited use to which that evidence could be put.

[2010] NZCA 123  CA 281/2009    1 April  2010

Dates

Application for leave to appeal dismissed.

5 July 2010.

 

Case Number SC 42/2010  
Case Name

Dushkar Kanchan Singh v The Queen

Summary

Criminal Appeal – whether the Court of Appeal erred in finding that the complainant did not have a right against self-incrimination; whether the trial judge erred in his directions to the jury; whether the complainant’s out of court statements should have been admitted as evidence at trial. 

[2010] NZCA 144  CA 208/2009    26 April  2010

Dates

A The application for leave to appeal is granted. 

B The approved grounds of appeal are:

(i) Should the complainant’s claim of privilege against self‑incrimination at the trial have been upheld?

(ii) If so, should the evidence of the complainant relating to the allegations of assaults on her by the appellant have been excluded at trial?

(iii) If not, was the Judge’s decision to refuse to admit other statements of the complainant to the police in error?

7 July 2010.
Hearing

7 October 2010.

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ

Result

Appeal dismissed.

17 December 2010.

 

Case Number SC 41/2010  
Case Name

Gascoinge Wicks v Altimarloch Joint Venture Limited and Ors

Summary

Civil Appeal – Misrepresentation – Whether Court of Appeal wrong to find that Alitmarloch Joint Venture Ltd induced by representations made by Gascoigne Wicks and Vining Realty to enter into and confirm contract for sale and purchase – Whether reasonable in the circumstances for AJVL to act in reliance on representations.

[2010] NZCA 104  CA 438/2008 and CA 213/2009   29 March 2010

Dates

A The application for leave to appeal are granted.

B The approved ground is whether the award of damages against DS & JW Moorhouse (in respect of which they are entitled to be fully indemnified by Vining Realty and Gascoigne Wicks) was appropriately quantified on an expectation basis.

14 July 2010.
Hearing

14 and 15 February 2010

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

Result Appeal dismissed.
Vining Realty and Gascoigne Wicks are to pay the Council costs of $5,000.  They are to pay in the proportions fixed in the Court of Appeal, namely 60 per cent by Vining Realty and 40 per cent by Gascoigne Wicks.
Vining Realty and Gascoigne Wicks are to pay in the same proportions costs of $10,000 to Altimarloch.
In each case where costs are awarded, disbursements shall be added as agreed or fixed by the Registrar. 
 
Case Number SC 40/2010  
Case Name

Vining Realty Group Limited v Altimarloch Joint Venture Limited and Ors

Summary

Civil Appeal – Misrepresentation – Quantification of Damages – Whether Court of Appeal erred in upholding inappropriate measure of expectation damages owed by Vining Realty and Gascoigne Wicks to Altimarloch Joint Venture in respect of purchase of land where water rights misrepresented – Whether proper measure of damages is difference between actual value and represented value not cost to remedy property to meet purchaser’s original expectation.

[2010] NZCA 104  CA 438/2008 and CA 213/2009   29 March 2010

Dates

A The application for leave to appeal are granted.

B The approved ground is whether the award of damages against DS & JW Moorhouse (in respect of which they are entitled to be fully indemnified by Vining Realty and Gascoigne Wicks) was appropriately quantified on an expectation basis.

14 July 2010.

Hearing

14 and 15 February 2010

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

Result Appeal dismissed.
Vining Realty and Gascoigne Wicks are to pay the Council costs of $5,000.  They are to pay in the proportions fixed in the Court of Appeal, namely 60 per cent by Vining Realty and 40 per cent by Gascoigne Wicks.
Vining Realty and Gascoigne Wicks are to pay in the same proportions costs of $10,000 to Altimarloch.
In each case where costs are awarded, disbursements shall be added as agreed or fixed by the Registrar. 
 
Case Number SC 39/2010  
Case Name

Gregory Campbell Oliver Nielsen v Body Corporate No. 199348 and Ors

Summary

Civil Appeal – Civil procedure - Whether the Court of Appeal erred in finding the applicant had acted unreasonably in progressing his legal aid application – Whether the Court of Appeal erred in holding the appeal had been abandoned.

[2010] NZCA 101  CA 43/2009   20 April 2010

Dates

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

29 June 2010.

 
Case Number SC 38/2010  
Case Name

GE Free NZ in Food and Environment Incorporated v AgResearch Limited and Anor

Summary

Civil Appeal – Whether applications by AgResearch to import new genetically modified organisms were improperly registered for consideration by ERMA under s 40 of Hazardous Substances and New Organisms Act 1996 – Whether applications so broad and generic as to be non-compliant with statutory information requirements – Whether applications must contain sufficient information at outset to allow meaningful public participation – Whether acceptance of applications a proper subject for judicial review.

[2010] NZCA 89 CA 380/2009   23 March 2010

Dates

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

29 June 2010.

 
Case Number SC 37/2010  
Case Name

Kacem  v Bashir

Summary

Civil Appeal – Whether the Court of Appeal erred in finding that it was not in the children’s best interests under s 5 of the Care of Children Act 2004 to relocate to Australia.

[2010] NZCA 96  CA 585/2009   25 March 2010

Dates

Leave to appeal is granted.

The approved ground is whether in its reasons for judgment, and in particular paragraphs 51 and 52, the Court of Appeal adopted an erroneous approach to the effect of ss 4 and 5 of the Care of Children Act 2004.

If the appellant demonstrates that the Court of Appeal was in error, this Court’s present view is that the matter should be remitted to the appropriate lower court for reconsideration on the correct legal basis, and on an up-to-date factual basis.  It seems inappropriate for this Court to undertake that exercise.  Hence the approved ground is limited to the question of the correct legal principle and is not to be construed as extending to the application of that principle to the facts, if the appellant succeeds. 

29 June 2010.

Hearing

12 August 2010.

Elias CJ, Blanchard, Tipping, McGrath, William Young  JJ.

Decision Reserved.

Result

Appeal dismissed.

8 September 2010.
 
Case Number SC 36/2010  
Case Name

Steelbro New Zealand Limited v Hanmar Maskin AB and Ors

Summary

Civil – The Court of Appeal found that the stabiliser leg on particular Steelbro sidelifter models infringed the respondent’s patent – Such models do not incorporate a separate bearing component within the support sleeve of the stabiliser - Whether the Court of Appeal erred in finding, by reference to the specification, that the claim did not require a separate bearing component, thereby modifying rather than construing the claim – Whether the Court of Appeal erred in disregarding certain subsequent conduct by the respondents.

[2010] NZCA 83  CA 692/2008   24 March 2010

Dates Application for leave to appeal dismissed. Costs $2,500 to respondent.
 
Case Number SC 35/2010  
Case Name

David Paul Halford and Blue Sky Holdings Ltd (in liquidation) (as trustee of the Auckland Residential Property Trust) v R F Coughlan & Associates and Ors

Summary

Civil Appeal – Whether the Court of Appeal erred in failing to find that the designer of apartment units was not negligent in respect of the plans and specifications of those units; whether the Court of Appeal erred in not finding that the issue of practical completion certificates should give rise to liability irrespective of specific reliance by an owner.

[2010] NZCA 64  CA 66/2009   22 March 2010

Dates

Application for leave to appeal dismissed with costs $2,500 to the 1st respondent.

13 July 2010.
 
Case Number SC 34/2010  
Case Name

Rajendra Prasad v Indiana Publications (NZ) Ltd and Ors

Summary

Civil Appeal – Civil procedure – Alleged breach of copyright - Whether the Court of Appeal erred in striking out proceedings as an abuse of process.

[2010] NZCA 111  CA 515/2009   30 March 2010

Dates

Application for leave to appeal dismissed.

Costs to respondents $2,500.

28 May 2010.

 
Case Number SC 33/2010  
Case Name

Marlborough District Council v Altimarloch Joint Venture Limited and Ors

Summary

Civil Appeal – Negligence – Whether duty of care owed by local authority in issuing a Land Information Memorandum (LIM) inducing party to enter into contract to purchase land – Whether local authority protected from liability by s 41 of Local Government Official Information and Meetings Act 1987 (LGOIMA) when providing information in LIM in good faith – Whether s 44A of LGOIMA requires inclusion of information relating to water resource entitlements in a LIM – Whether loss is actually suffered in tort against a third party where compensatory damages under s 6 Contractual Remedies Act 1979 against a party to the contract have already offset financial loss suffered by misrepresentation.

[2010] NZCA 104  CA 448/2008 and CA 215/2009   29 March 2010

Dates

A The application for leave to appeal is granted.

B The approved grounds are:

(i) Whether a duty of care is owed by a local authority to the recipient of a Land Information Memorandum (LIM) issued under s 44A of the Local Government Official Information and Meetings Act 1987.

(ii) If so, whether Altimarloch Joint Venture Ltd suffered any loss recoverable from the Council by reason of breach of that duty of care.

14 July 2010.
Hearing

14 and 15 February 2010

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

Result

The appeal by the Marlborough District Council from the liability judgment given against it in favour of Altimarloch Joint Venture Limited is dismissed.

The appeal by the Marlborough District Council from the contribution judgment given against it in favour of D S and J W Moorhouse is allowed.  That judgment is set aside and judgment in favour of the Council is entered in respect of that claim.

Costs of $10,000 to Altimarloch.  Disbursements shall be added as agreed or fixed by the Registrar. 

 
 
Case Number SC 32/2010  
Case Name

Kay Halton Skelton v The Queen

Summary

Criminal Appeal – Crimes Act 1961 – Abduction – whether the Court of Appeal erred in declining to set aside the applicant’s conviction, to which she entered a guilty plea, on the grounds of claimed wrongful refusals to grant a stay of proceedings, to direct a change of venue or to adjourn proceedings

[2010] NZCA 71  CA 24/2009   16 March 2010

Dates

Application for leave to appeal dismissed.

13 October 2010.

 

Case Number SC 31/2010  
Case Name

Dick Halton Headley v The Queen

Summary

Criminal Appeal – Crimes Act 1961 – Abduction – whether Judge Boshier erred in making public certain Family Court judgments – whether the Court of Appeal erred in giving insufficient weight to this publication, or other information released on a website  – whether a stay of proceedings, or a change in venue should have been granted – whether the Court of Appeal erred by giving insufficient weight to the applicant’s right to a fair trial – whether the lack of experienced counsel and the appointment of an “amicus” prevented the applicant from adequately presenting his case – whether the inability to call a witness to give evidence undermined the applicant’s defence – whether police conduct in light of alleged conflicts of interest was unfair – whether the applicant was denied legal assistance to present his defence

[2010] NZCA 71  CA 18/2009   16 March 2010

Dates

Application for leave to appeal dismissed.

9 June 2010.

 

Case Number SC 30/2010  
Case Name

David Owen Crequer v Chief Exectutive, Department of Corrections

Summary

Civil – Denial of order for habeas corpus – Whether the Court of Appeal erred in refusing to hear the appeal on grounds of lack of jurisdiction.

[2010] NZCA 75  CA 125/2010   16 March 2010

Dates

Application for leave to appeal  dismissed.

Costs to Respondent $1,250.

6 May 2010

 

Case Number SC 28/2010  
Case Name

North Shore City Council v Body Corporate 189855 and Ors

Summary

Civil Appeal – Whether the Court of Appeal erred in holding that the appellant owed duties of care to the owners and lessees of units in a multi-unit development respectively.  

[2010] NZCA 65  CA 507/2008   22 March 2010

Dates

A The application for leave to appeal is granted.

B The approved grounds are:

(i) Whether and in what circumstances a local authority which performed regulatory functions under the Building Act 1991 in relation to construction of a multi-unit residential development owed a duty of care to purchasers of units in the building to ensure that it complied with the building code.

(ii) Assuming such a duty exists, whether it extends to:

(a) Such persons who did not themselves at the time of purchase intend personally to occupy their unit(s) (investor owners); and

(b) Persons who subsequently acquired such units from the first purchasers after a claim for breach of duty to their predecessors had accrued; and

(c) The body corporate.

(iii) Whether the conclusions which would otherwise be reached are affected in circumstances where the Council declined to issue a code compliance certificate.

(iv) In light of the conclusions reached on the foregoing grounds, how these issues should be determined in the particular cases.

 13 July 2010.
Hearing

8 – 10 November 2010.

Elias CJ, Blanchard, Tipping, McGrath, Anderson JJ

 

Result Appeal dismissed,

Costs to the respondents

17 December 2010.

 

Case Number SC 27/2010  
Case Name

North Shore City Council v Body Corporate 188529 and Ors

Summary

Civil Appeal – Whether the Court of Appeal erred in holding that the appellant owed duties of care to the owners and lessees of units in a multi-unit development respectively.  

[2010] NZCA 65  CA 673/2008   22 March 2010

Dates

A The application for leave to appeal by the North Shore City Council is granted.

B The approved grounds are:

(i) Whether and in what circumstances a local authority which performed regulatory functions under the Building Act 1991 in relation to the construction of a multi-unit residential development owed a duty of care to purchasers of units in the building to ensure that it complied with the building code.

(ii) Assuming such a duty exists, whether it extends to:

(a) Such persons who did not themselves at the time of purchase intend personally to occupy their unit(s) (investor owners); and

(b) Persons who subsequently acquired such units from the first purchasers after a claim for breach of duty to their predecessors had accrued; and

(iii) In light of the conclusions reached on the foregoing grounds, how these issues should be determined in the particular cases.

C  The application for leave to appeal by the Second Respondent, Blue Sky Holdings Ltd, is dismissed with costs of $2,500 to the North Shore City Council.

13 July 2010.

Hearing

8 – 10 November 2010.

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

Result

Appeal dismissed,

Costs to the respondents

17 December 2010.

 

 

Case Number SC 26/2010  
Case Name

Brett Stephen Taylor v The Queen

Summary

Criminal Appeal – Unlawful sexual connection – whether the trial Judge erred in his failure to give directions in relation to the unreliability of the complainant’s evidence pursuant to s 122 of the Evidence Act 2006 – whether the inadequacy of the trial Judge’s directions regarding prejudice caused a substantial miscarriage of justice – whether the Court of Appeal erred in refusing to admit new expert evidence on appeal

[2010] NZCA 69  CA 147/2009   16 March 2010

Dates

Application for leave to appeal dismissed.

20 July 2010.

 

Case Number SC 25/2010  
Case Name

Churchill Group Holdings Limited and others v Aral Property Holdings Limited and David Leung

Summary

Civil – Stay of execution of judgment for costs pending appeal – Whether Court of Appeal erred in finding that the abrupt end to the proceedings was not the fault of the respondents – Whether the Court of Appeal erred in finding that the proposed method of payment for the original litigation and security for costs was unknown – Whether the Court of Appeal erred in finding that that Mr Fava was unlikely to regain control of two of the appellant companies – Whether the Court of Appeal erred in finding the appellants had no realistic prospect of success – Whether the Court of Appeal failed to address one of the grounds of appeal.

[2010] NZCA 88  CA 80/2010   23 March 2010

Dates

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

25 May 2010.

 

Case Number SC 24/2010  
Case Name

Trent Grant Holmes v The Queen

Summary

Criminal Appeal – Appeal against sentence for aggravated robbery and injuring with intent to cause grievous bodily harm - Whether the Court of Appeal failed to take into account certain mitigating factors.

[2010] NZCA 47  CA 723/2009  2 March 2010

Dates

Application for leave to appeal dismissed.

9 June 2010.

 

Case Number SC 23/2010  
Case Name

Jonathon Ian Blake v The Queen

Summary

Criminal Appeal – Whether Court of Appeal erred in dismissing appeal against conviction – Whether erroneous legal advice given to Appellant by trial counsel on possible admissibility of previous convictions in cross-examination had a material influence on his decision not to give evidence at trial. 

[2010] NZCA 61  CA 278/2009  11 March 2010

Dates

Application for leave to appeal dismissed.

22 June 2010.

 

Case Number SC 22/2010  
Case Name

William Patrick Jeffries v The Attorney-General

Summary

Civil Appeal – Whether the Court of Appeal failed to give effect to the criteria for consent to overseas investment as set out in s 14A of the Overseas Investment Act 1973; Whether the “standard conditions” for granting consent imposes a continuing obligation on consent-holders to carry out the proposals they made to the Minister in order to secure such consent; Whether releasing information supplied by the appellant pursuant to s 6(c) of the Official Information Act 1982 would prejudice the maintenance of the law or would breach the appellant’s confidence.

[2010] NZCA 38  CA 338/2008  26 February 2010

Dates

Application for leave to appeal dismissed.

Costs $2.500 to the respondent.

26 May 2010.

 

Case Number SC 21/2010  
Case Name

Daniel Thomas Spencer Riddiford and Yvonne Ada Riddiford an d another v Her Majesty’s Attorney-General

Summary

Civil – application for special leave to appeal High Court decision relating to a claim for compensation in respect of the acquisition of an esplanade reserve – Whether the High Court erred in not reversing an order of the Land Valuation Tribunal awarding costs against the applicant – Whether the High Court erred in declining to allow a rehearing – whether the High Court and the Tribunal erred in their determination of a number of other related matters

Civ 2006 485 833 – 22 May 2009

Dates

Application for leave to appeal dismissed.

Costs $2.500 to the respondent.

26 May 2010.

 

Case Number SC 20/2010  
Case Name

Cyndi Marcia Fairburn v The Queen

Summary

Criminal – Murder – Whether the Court of Appeal erred in law by refusing to allow fresh evidence from expert witnesses

[2010] NZCA 44   CA 169/2009

Dates

The application for leave to appeal is granted

The approved ground is whether, in the light of the further evidence tendered in this Court and in the Court of Appeal, there has been a miscarriage of justice

18 June 2010

Hearing

29 and 30 November 2010.

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ
Result  

Further evidence is admitted.

The appeal is allowed and the conviction is quashed.

A new trial is ordered.

17 December 2010.

 

Case Number SC 19/2010  
Case Name

Jamie Ronaki Kissling v The Queen       

Summary

Criminal – Production and possession of methamphetamine – Lack of evidence – Whether the Court of Appeal, having quashed the charge of manufacturing methamphetamine for want of evidence, erred in refusing to quash the charges relating to possession of precursor equipment and methamphetamine

[2009] NZCA 289   CA 5/2009

Dates

Application for leave to appeal dismissed.

9 June 2010.

 

Case Number SC 18/2010  
Case Name

Ai Nee Chean v Herald Victor De Alwis and others

Summary

Civil Appeal – Whether summary judgment in High Court against Appellant in relation to sixth Respondent should be overturned – Whether Court of Appeal erred in affirming issue estoppel in respect of an original default judgment under s 37 Securities Act 1978 – Whether Court of Appeal misapplied the doctrine of issue estoppel by applying it to a default judgment, or holding that Appellant was a privy, or wrongly finding that the original Judge was not misled on facts, or failing to consider equitable doctrine of “clean hands” – Whether issue estoppel contrary to the NZ Bill of Rights Act.

[2010] NZCA 30  CA 458/2008

Dates

Application for leave dismissed.

Costs $2,500 to the sixth respondent.

18 May 2010.

 

Case Number SC 17/2010  
Case Name

Kimberly Birkenfeld v Anthony Bruce Kendall and Yachting New Zealand Incorporated

Summary

Civil Appeal – Whether the High Court (Access to Court Documents) Amendment Rules 2009 and the Court of Appeal (Access to Court Documents) Rules 2009 are valid; whether the application of those Rules had a prejudicial effect on the preparation of the appellant’s case.

[2009] NZCA 619 CA 793/2009

Dates

Application for leave to appeal dismissed. No order for costs.

21 April 2010.

 

Case Number SC 16/2010  
Case Name

Rodney Paul Taniwha v The Queen

Summary

Criminal Appeal – Crimes Act 1961 – Sexual violation by rape – whether the Court of Appeal erred in approving the trial Judge’s direction as to the meaning and application of s 128 of the Crimes Act 1961 – whether the trial Judge was required, in the context of her direction, to additionally direct the jury to acquit the applicant if it thought that there was a reasonable possibility that the applicant reasonably believed the complainant consented to the sexual intercourse

[2010] NZCA 15   CA 449/2009  19 February 2010.

Dates

Application for leave to appeal dismissed.

12 May 2010.

 

Case Number SC 15/2010  
Case Name

Brendon Douglas Forrest v The Queen

Summary

Criminal - Sentencing – Whether the Court of Appeal failed to consider the aggregate term of the appellant’s sentences – Whether the Court of Appeal erred in its interpretation of Sentencing Act principles – Whether the Court of Appeal failed to lend appropriate weight to the appellant’s mental condition.

[2010] NZCA 34   CA 626/2009  26 February 2010.

Dates

Application for leave to appeal dismissed.

21 April 2010.   

 

Case Number SC 14/2010  
Case Name

Jason Mark Ferguson  v The Queen

Summary

Criminal Appeal – Murder – Provocation – Whether defendant’s confession to police admissible given his intellectual disability (defendant seeks to adduce new evidence) – Whether sentence of detention in secure care should be substituted pursuant to the Intellectual Disabilities (Compulsory Care and Rehabilitation) Act 2003 and Criminal Procedure (Mentally Impaired Persons) Act 2003 – Whether substitution of sentence is required under the International Covenant on Civil and Political Rights and the New Zealand Bill of Rights Act 1990.

[2010] NZCA 2  CA 594/2008   3 February 2010.

Dates

Application for leave to appeal  is dismissed.

29 July 2010.

 

Case Number SC 13/2010  
Case Name

Terry Alan Merrilees v The Queen

Summary

Criminal Appeal – Sexual offences – Whether the Court of Appeal erred in dismissing the appeal against conviction and sentence – Whether miscarriage of justice will result unless guilty pleas are impugned and set aside – Whether trial counsel acted competently.

[2009] NZCA 59  CA 394/2008   6 March 2009

Dates

Application for leave to appeal dismissed.

8 July 2010. 

 

Case Number SC 12/2010  
Case Name

Philip James Whitley v The Queen

Summary

Criminal Appeal – Whether the Court of Appeal erred in upholding the decision of the District Court ordering a judge only trial under s 361D of the Crimes Act 1961; whether the denial of a jury trial was a justifiable limitation on the right to a jury under s 24(e) of the New Zealand Bill of Rights Act 1990.

[2009] NZCA 623  CA 530/2008   22 December 2009

Dates

Application for leave to appeal dismissed.

18 March 2010. 

 

Case Number SC 11/2010  
Case Name

Michael Shane McElroy and others as trustees of the Craigie Trust v Auckland International Airport Limited

Summary

Civil Appeal – Public Works Act 1981 – Respondent not subject to the obligation in s 40 of the Act to offer back to the applicant land no longer required for the public work for which it was held – whether the Court of Appeal erred in its interpretation of the word “required” in s 40 – whether the Court of Appeal misinterpreted the term “aerodrome” or “airport” as defined by the Act and the Airport Authorities Act 1966 – whether the Court’s interpretation of “aerodrome” or “airport” undermines the purposes of the Act – whether the Court of Appeal erred in concluding that the qualifications in s 40(2) of the Act would nonetheless apply to exclude the respondent from the requirement to offer back the land

[2009] NZCA 621  CA 440/2008   23 December 2009

Dates

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

9 June 2010.

 

Case Number SC 10/2010  
Case Name

Valerie Morse v The Queen

Summary

Criminal Appeal – Application of the New Zealand Bill of Rights Act 1990 to a charge of ‘offensive behaviour’ under s4(1)(a) of the Summary Offences Act 1981 – Whether the Court of Appeal erred in its application of ss5 and 14 of the New Zealand Bill of Rights Act 1990 – Whether the Court of Appeal failed to consider art 19 of the International Covenant on Civil and Political Rights – Whether the classification of behaviour as ‘offensive’ is a question of fact or law.

[2009] NZCA 623  CA 530/2008   22 December 2009

Dates

Application for leave to appeal granted.

The approved ground is whether the District Court correctly interpreted and applied s 4(1)(a) of the Summary Offences Act 1981.

18 May 2010.

Hearing

5 October 2010

Elias CJ, Blanchard, Tipping, McGrath, Anderson JJ

Result

Appeal allowed. Conviction entered against the appellant in the District Court is set aside.

6 May 2011.

 

Case Number SC 9/2010  
Case Name

Synlait Limited v Central Plains Water Trust and Ors

Summary

Civil Appeal – Resource Management Act 1991 – Water rights - Whether the Court of Appeal erred in finding that priority of hearing is determined in favour of the first applicant to file a complete application – Whether the Court of Appeal erred by failing to give adequate consideration to whether changes to an application after lodgement could affect which test would be applicable to determine priority and whether priority is maintained irrespective of what changes are made subsequent to lodgement – Whether the Court of Appeal provided inadequate recognition of the fact that an application can lose priority due to unreasonable delay.

[2009] NZCA 609 CA 544/2008. CA 588/2008  18 December 2009

Dates

The application for leave to appeal is granted.

The approved ground is how priority is determined as between competing applications under the Resource Management Act 1991 for a finite resource.

31 March 2010.

Hearing

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

22 June 2010.

 

Case Number SC 8/2010  
Case Name

Vincent Ross Siemer v Michael Stiassny and Korda Mentha

Summary

Civil Appeal – Defamation – Appellant ordered by High Court to pay $920,000 in damages to Respondents for defamation and breach of contract – Appellant previously found by High Court to be in contempt of Court for breach of interim injunction and failure to pay costs, and debarred from defending defamation suit – Appeal to Court of Appeal struck out except for appeal as to quantum of damages awarded – Whether the Court of Appeal erred in granting in part Respondents’ strike-out application on the grounds of Appellant’s continuing contempt of Court – Whether strike-out application by Respondents made out of time – Whether Court of Appeal judge acted under a conflict of interest.

[2009] NZCA 566  CA 453/2009   22 December 2009

Dates

Applications for leave to appeal dismissed.

20 May 2010.

 

Case Number SC 7/2010
Case Name

John Hanita Paki and others v Attorney-General

Summary

Civil Appeal – whether the Court of Appeal erred in its interpretation of “navigable river” in terms of s 14 of the Coal Mines Amendment Act 1903; whether the Waikato River was navigable for the purposes of s 14; whether, in the 1880s and 1890s, the Crown owed the appellants’ ancestors, as Maori and Treaty of Waitangi partners, a fiduciary duty or a relational duty of good faith not to acquire their land or taonga except with their full and informed consent, namely, whether the Crown owed an obligation to advise the original owners of the usque ad medium filum aquae principle (legal title to land runs to midpoint of riverbed) and, if so, whether the Crown breach either of those duties; whether the appellants’ ancestors had customary title to the river; whether the appellants (as representatives or otherwise of the Pouakani hapu) have standing to bring their claim; whether the appellants’ claim is time-barred under the Limitation Act 1950; whether the appellants’ claim is barred under s 12 of the Pouakani Claims Settlement Act 2000;

[2009] NZCA 566  CA 691/2009   1 December 2009

Dates

A The application for leave to appeal is granted.

B The approved grounds are:

  (i) Did the applicants have standing to bring the proceeding in a representative capacity?

  (ii) Did s 14 of the Coalmines Amendment Act 1903 vest title in the riverbed adjoining the Pouakani lands in the Crown?

  (iii) If not, did the Crown acquire title to the claimed part of the riverbed through application of the presumption of riparian ownership ad medium filum aquae by reason of its acquisition of the riparian lands?

  (iv) If so, in the circumstances in which the Crown acquired the claimed part of the riverbed, was it in breach of legally enforceable obligations owed to the owners from whom title was acquired?

  (v) If so, have the applicants lost their right to enforce such obligations by reason of defences available to the Crown through lapse of time?

  (vi) If not, what relief is appropriate?

C The Registrar is directed to set down the hearing of the first two questions only for hearing at a fixture of 2 days.  Further timetabling and direction orders for hearing of the remaining Questions will be made at or following the first hearing.  The Court may review the expression of grounds 3 to 6 if it considers it appropriate to do so after hearing the argument of questions 1 and 2.

21 July 2010.

Hearing

15 and 16 March 2011

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.

Result

The appellants have standing to bring the proceedings in a representative capacity.

The riverbed adjoining the Pouakani lands is not vested in the Crown under s 261 of the Coal Mines Act 1979 and s 354 of the Resource Management Act 1991.

Costs are reserved.

27 June 2012

Hearing

19 and  20 February 2013
Elias CJ, McGrath, William Young, Chambers, Glazebrook JJ.

Result

Appeal dismissed.

29 August 2014.

 

Case Number SC 6/2010  
Case Name

DSL Logistics Limited v New Zealand Sports Merchandising Limited

Summary

Civil – Contract – Law of entire obligations – Termination of contract for the storage and dispatch of merchandise – whether the Court of Appeal erred in applying the law of entire obligations to the contract – whether the Court of Appeal erred in its construction of Appendix B work as an entire obligation – whether the Court of Appeal erred in failing to take into consideration the substantial performance of the contract by the applicants – whether the Court of Appeal erred in its interpretation of clause 7.5 of the standard form agreement

[2009] NZCA 566  CA 691/2009   1 December 2009

Dates

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

30 March 2010.

 

Case Number SC 5/2010   
Case Name

William Patrick Jeffries v The Privacy Commissioner

Summary

Civil – Litigation privilege – Whether the Court of Appeal erred in holding that unsolicited communication does not attract litigation privilege under s56 of the Evidence Act 2006 – Whether the Court of Appeal erred in interpreting the word ‘person’ in s91(4) of the Privacy Act 1993 – Whether the Court of Appeal was correct to apply s74 of the Evidence Act 2006 to matters before the Privacy Commissioner – Whether the Court of Appeal erred in law in failing to review the Privacy Commissioner’s decisions – Whether the Court of Appeal erred in not addressing s27 of the New Zealand Bill of Rights Act 1990.

[2009] NZCA 567  CA 339/2008  3 December 2009

Dates

Application for leave to appeal granted.

The approved ground is whether unsolicited communications received by the applicant while acting as a barrister are capable of attracting litigation privilege.

31 March 2010

Hearing

21 July 2010.

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

The appeal  is dismissed.

Any claim of privilege must be referred for the determination of the Privacy Commissioner in accordance with this judgment.

No order for costs is made.

12 August 2010.

 

Case Number SC 4/2010  
Case Name

Vodafone New Zealand Limited v Telecom New Zealand Limited

Summary

Civil Appeal – Communications - Telecommunications Act 2001 – Final Determination by Commerce Commission for Telecommunications Services Obligations Instrument for Local Residential Service - Whether the Court of Appeal erred in maintaining the Commerce Commission’s approach to the calculation of the costs of providing Telecommunications Services Obligations in accordance with the requirements of ‘net cost’ under s 5 of the Telecommunications Act 2001.

[2009] NZCA 565  CA 192/2008    2 December 2009     

Dates

Application for leave to appeal granted.

The approved ground is whether the Commerce Commission, in making its determination, complied with the applicable statutory provisions.

30 March 2010.

Hearing

21 – 24 February

Elias CJ, Blanchard, Tipping, McGrath, Gault JJ.

Result Appeal dismissed.  No order for costs.
17 November 2011.

 

Case Number SC 3/2010  
Case Name

PM  v The Queen

Summary

Civil Appeal – Bail Act 2000 – appeal against dismissal of application for bail by Court of Appeal – Whether appropriate in interests of justice for appellant to be granted bail pending appeal against conviction to Court of Appeal – Whether bail can be sought to arrange appeal against conviction – Whether bail can be sought to arrange parole accommodation.

[2009] NZCA 615   CA 663/2009  18 December 2009           

Dates

Application for leave to appeal is dismissed

10 February 2010.

 

Case Number SC 2/2010  
Case Name

RL And WL v The Chief Executive of the Ministry of Social Development and others.

Summary

Civil Appeal – Whether the Court of Appeal erred in reinstating the High Court’s decision to strike out the appellant’s proceedings for judicial review but with restrictions; whether the Court of Appeal erred in its application of s 20 of the New Zealand Bill of Rights Act 1990, the Treaty of Waitangi and other international human rights obligations.     

[2009] NZCA 596   CA 503/2008 15  December 2009

Dates

Application for leave to appeal dismissed with no order for costs.

10 March 2009

 

Case Number SC 1/2010  
Case Name

Albert John Rhodes v The Queen

Summary

Criminal – appeal against sentence – convictions for manufacture and supply of methamphetamine – applicant was sentenced to an effective term of life imprisonment – whether the Court of Appeal erred in determining that the sentence was not manifestly excessive and wrong in principle.

[2009] NZCA 486   CA 91/2009  19 October 2009

Dates

Application for leave to appeal dismissed.

12 March 2010