Application to adduce fresh evidence granted. Appeal allowed. Sentences quashed and concurrent sentences of 10 years and six months' imprisonment substituted.

Criminal Law - Sentence appeal - Starting point - Mitigation

Sentence - Fresh evidence on appeal - Cultural report

Appeal against 12-year sentences for wounding with intent to cause grievous bodily harm and aggravated burglary. The appellant argued the sentencing Judge had erred by sentencing based on facts not proved at trial, by adopting a starting point that was too high, and by giving no discount for the period on electronically monitored bail. The appellant also sought to adduce a cultural report (Sentencing Act 2002, s 27) as fresh evidence on appeal, meriting a discount to sentence.

Was the s 27 cultural report fresh and credible evidence on appeal?

Held: Yes. Cultural reports should not usually be produced for the first time on appeal. Where the opportunity to produce a report has not been taken at first instance and it appears to the appellate court that the report may make a difference, the proper course may be to remit the matter to the trial judge for re-sentencing. In this case, the Crown did not oppose admission of the cultural report on appeal. The information in the report was material to sentence and sufficiently established a causal connection between cultural circumstances and offending, identified mitigating circumstances, and pointed to genuine prospects of rehabilitation.

Did the sentencing judge err in the sentence imposed?

Held: Yes. The sentencing Judge concluded a particular weapon was used at least in the course of a joint combined attack, which was a  finding of fact open to him. The starting point correctly fell within the band 3 of R v Taueki and was within the available range. However, the sentencing Judge stated the appellant's history was replete with violent offending. She had very few convictions for violence and the Court considered this error had a bearing on the Judge's view of reoffending risk. EM bail is a mitigating factor and the Judge erred in declining credit for time on EM bail on the basis that the appellant was lucky to get bail. Finally, the picture painted by the cultural report detracted somewhat from the appellant's culpability and pointed to prospects of rehabilitation. EM bail and factors mentioned in the cultural report warranted a global allowance of 18 months.

Summary: PROPERTY LAW—Restrictive covenants—Property Law Act 2007—Section 317—Extinguishment of covenant
CIVIL PRACTICE AND PROCEDURE—Indemnity costs—Costs of enforcement

The appellants’ land had the benefit of restrictive covenants registered over part of the respondent’s land.  These restricted the use of this part of the respondent’s land to grazing, lifestyle farming or forestry.  The covenants were originally intended to facilitate consent for quarrying on the dominant land, part of which is now owned by the appellants.  The respondent sold its land to a third party which is now building a dairy factory on the land subject to the covenant.   

The respondent applied to the High Court for orders extinguishing or modifying the covenants under s 317 of the Property Law Act 2007 (PLA).  The High Court granted this application finding:

a) there had been a change in the nature or extent of the use being made of the benefited land, much of which had been sold and will never be developed as a quarry;
b) the use of the burdened land had also changed and was now zoned Industrial 2;
c) the character of the neighbourhood had changed beyond recognition;
d) the covenants had no continuing practical value;
e) the continuation of the covenants would impede the reasonable use of the burdened land in a manner or to an extent that could not reasonably have been foreseen by the original parties to the covenants; and
f) extinguishment would not substantially injure the appellants.

In a later judgment, the High Court declined to order the respondent to pay any compensation to the appellants.  The Court awarded indemnity costs to the appellants being costs of enforcement payable in terms of the covenants.

The appellants appealed to this Court against the extinguishment of the covenants and the refusal to order compensation.  The respondent cross-appealed against the indemnity costs order.
HELD: APPEAL AGAINST EXTINGUISHMENT ALLOWED

Was there a sufficient change in the nature or extent of the use of the benefited and burdened lands?
Held: No. The changes were not sufficient to justify extinguishing the covenants. The aggregate resource is located on the appellants’ land and this land is still zoned for aggregate extraction and processing.  The only change in the use of the burdened land is the construction of the dairy factory in breach of the covenants.  

Was there a sufficient change in the character of the neighbourhood?
Held: No.  While the neighbourhood had changed, this did not justify extinguishing the covenants.  The changes did not increase the burden imposed by the covenants on the burdened land in a different way or to a different extent from that which could have reasonably been contemplated when they were entered into 20 years ago for a term of 200 years.  

Was there a sufficient change in other circumstances to justify extinguishing the covenants?
Held: No.  The utility of the covenants was not sufficiently impaired by rezoning, nor was the fact that the dairy factory could have been built on other parts of the burdened land relevant to the assessment.

Would continuation of the covenants impede the reasonable use of the burdened land in a different way or to a different extent from that which could reasonably have been foreseen by the original parties to the covenants?
Held: No.  The impediment upon the burdened land had not changed sufficiently to justify extinguishment.

Would extinguishment substantially injure the appellants?
Held: Yes.  The appellants lost valuable rights as a result of the covenants being extinguished.  Their ability to develop a quarry would likely be impeded if a dairy factory is constructed on the burdened land.

HELD: APPEAL AGAINST REFUSAL TO ORDER COMPENSATION DISMISSED; CROSS-APPEAL AGAINST INDEMNITY COSTS AWARD DISMISSED

Should compensation have been awarded to the appellants?
Held: No.  As the covenants should not have been extinguished the question of compensation does not arise.

Should the appellant have been awarded indemnity costs?
Held: Yes.  The appellants’ costs in defending the respondent’s application to extinguish its covenants is a form of enforcement of the covenants falling within the indemnity costs provision in the covenants.  

127 Hobson and Mr Parbhu appeal against a decision of Whata J in the High Court finding an indemnity clause in a collateral deed to a deed of lease between 127 Hobson and Honey Bees to be lawful and enforceable.

Contract – Penalties – Whether Whata J erred in his construction of the indemnity clause?
Held: no.  The proper construction of the indemnity clause, having regard to what the parties intended the obligation to be, was (1) that the indemnity (if triggered by default) ran until the end of the initial term of the lease and no further; and (2) the indemnity included only payment of rent and outgoings, and did not extend to non-economic obligations.

Contract – Penalties – Whether Whata J erred in concluding that the indemnity clause was not a penalty and therefore lawful and enforceable?
Held: no.  The principles stated in Wilaci Pty Ltd v Torchlight Fund No 1 LP (in rec) [2017] NZCA 152, [2017] 3 NZLR 293 (applying NSW law) apply also to New Zealand.  The indemnity was not a penalty.  Honey Bees had a legitimate interest in performance given the importance of the primary obligation to install a second lift to their business and distrust that had developed after execution of the agreement to lease.  The indemnity was not out of all proportion to this legitimate interest, given the potential disadvantage to Honey Bees of containing the clause in a collateral deed rather than the lease deed itself and the risk settings agreed to by the parties.

Appeal allowed. Certificate of compliance issued under s 139 Resource Management Act set aside. Costs orders.
Judicial Review – appeals.
The appellant sought judicial review of a decision by Auckland Council to issue a certificate of compliance under s 139 of the Resource Management Act. The certificate was issued in respect of a proposed outdoor shooting range.
Whether the Judge erred in not quashing the certificate? Held: the certificate should be set aside, the Council had insufficient information to properly assess the extent of earthworks involved in the proposed activity, setting aside the certificate would be of practical value to the appellant and there has been no disentitling conduct on the part of the appellant.

Appeal dismissed.
Mr Everett appeals against a decision of Jagose J in the High Court sentencing him to a term of seven years and six months’ imprisonment, with a minimum period of imprisonment of three years and nine months’ for the manslaughter of his partner.  Mr Everett appeals against sentence only.

Criminal law – Sentence – starting point.  Whether Jagose J erred in adopting a starting point of seven years, six months’ imprisonment.
Held:  No.  Discussion of sentencing for domestic violence causing death.  Query whether sentencing in domestic violence cases for wounding or injuring with intent to cause GBH and manslaughter following the infliction of GBH are readily reconcilable.  Death following the deliberate infliction of GBH a seriously aggravating factor in sentencing.  In manslaughter cases founded upon GBH offending — where really serious injury is an intended consequence — it is desirable to consider both comparable manslaughter sentencing and R v Taueki [2005] 3 NZLR 709 (CA) principles to ensure manslaughter is not under-sentenced, and GBH not over-sentenced.  Here, applying dual analysis, sentence lenient, not manifestly excessive.

Criminal law – Sentence – minimum period of imprisonment.  Whether Jagose J erred in imposing an MPI of three years and nine months’ imprisonment.
Held:  No.  Particular callousness, denial of responsibility and lack of remorse by appellant such that imposition of an MPI justified in terms of accountability, denunciation and deterrence.

Appeal dismissed. Direction that proceeding be referred back to Assistant Commissioner quashed. Trade mark application to proceed to registration.
Intellectual property - trade marks - validity of application for registration.

Background
The parties each aspire to be the registered owner in New Zealand of the trade mark ZIPLOC in class 16. The appeal concerns the validity of the application of the respondent (Johnson) for registration of trade mark 975954 filed on 19 April 2013 three days prior to the effective date of removal from the register of the registered trade mark (RTM) 648953 of the appellant (lCB) on 22 April 2013, that being the date of Johnson's removal application.

Did the High Court err in treating 19 April 2013 as the effective revocation date of RTM 648953?
Held, yes. Appropriate time for consideration of effective date of revocation was on the determination of the revocation application in 2014; Assistant Commissioner unable to revisit that matter in the 2017 decision on application for registration; High Court on appeal from that decision had no jurisdiction to do so.

Was the presence on the register of ICB's RTM 648953 on 19 April 2013 a bar to Johnson's application for registration?
Held, no. Principal issue whether Trade Marks Act 2002 changed the law permitting the filing of an application to register trade mark A prior to application for removal of trade mark B; no indication legislature contemplated such a significant change; s 68(2) has no bearing on when applicant for revocation may file own application for registration. Filing of Johnson's application prior to effective revocation date of ICB's RTM had no bearing on validity of Johnson's application.

Does first use of a trade mark determine ownership in perpetuity?
Held, no. If a person whose RTM is removed for non-use wishes to make a fresh application to register the trade mark, only use that is subsequent to continuous period of three years non-use may be relied on in support of claim to ownership. Use in 2009 on which ICB sought to rely was prior to the non-use period.

Was a reference back of the ownership question erroneous?
Reference back understandable given Judge's findings. However in view of this Court's conclusions, reference back nugatory; direction quashed, trade mark application 975954 to proceed to registration.

Extension of time granted.  Appeal dismissed.
Criminal Law – Sentence Appeal – Minimum Period of Imprisonment – Three Strikes
The appellant beat his partner to death over her texts with her ex-partner.  He returned to the scene the next day and called an ambulance.  He initially evaded responsibility when charged but admitted his guilt when he learned the police knew he had told a friend that he killed the victim.  The appellant was convicted of murder as his third strike offence.  The High Court sentenced him to life imprisonment with a minimum period of 20 years.   
 
He appealed. The Crown did not seek a longer minimum period on appeal.  It accepted that life without parole would be manifestly unjust.
 
Did the Judge err in imposing an MPI of over 17 years in accordance with s 104 of the Sentencing Act 2002?
Was disparity between the notional MPI and the MPI imposed manifestly unjust having regard to the offender’s circumstances?
 
Held: applied R v Harrison [2016] NZCA 381; R v Williams [2005] 2 NZLR 506 (CA); R v Howse [2003] NZLR 767 (CA).  The Court has adopted methodology under which a sentencing judge should consider the culpability of the instant case relative to “standard” murders that would attract an MPI of 10 years, inquiring how much more is needed to meet relevant statutory purposes.  Section 86E sentencing methodology begins with the presumption of life imprisonment without parole for second or third-strike murder.  There will be cases in which that is the appropriate sentence.  If LWOP is manifestly unjust the judge must impose an MPI of not less than 20 years unless that too would be manifestly unjust.  The sentencing judge should calculate a notional MPI under s 103 of the Sentencing Act and then compare that against the presumptive statutory minimum.  Comparative cases can be used as a cross-check but the statutory purpose must predominate.  If the notional MPI would be lower than the presumptive statutory minimum, the judge must address whether the MPI would be manifestly unjust.  
 
The lower the notional MPI, the larger the scope for manifest injustice under both ss 86E and 104.  All relevant aggravating and mitigating factors under ss7-9 of the Sentencing Act must be considered in this analysis.
 
In this case, the Judge’s 13-year starting point was too low considering the brutality and callousness of the offending (irrespective of whether s 104 applied) and the appellant’s repeat violent offending.  His psychological difficulties did not mitigate sentence.  However, a one-year allowance for his guilty plea was appropriate.  A notional MPI of at least 17 years was nonetheless warranted, having regard to the circumstances of the offender and the policy of s 86E.  The minimum period of 20 years was not manifestly unjust.  

Appeals against conviction and sentence dismissed.
Evidence – admissibility of inmate confessions. Criminal Law – murder, minimum period of imprisonment, summing up.  Criminal Practice and Procedure – trial counsel error.
The appellant David Roigard was convicted of the murder of his son, and of eight charges of theft in a special relationship. He was sentenced to life imprisonment with a minimum period of 19 years. He appealed his conviction on the basis that the cellmate confession evidence that was given at the trial was inadmissible as a matter of law, that the Judge should have provided a stronger direction on that evidence, and that trial counsel destroyed the foundation of the instructed defence. He also argued that other evidence relating to internet searches was inadmissible. He appealed against his sentence on the basis that a minimum period of imprisonment (or a period of the length that was given) was not justified.

Whether the cellmate confession evidence was admissible? Held: applying Hudson v R, the evidence was admissible, to treat the evidence of admissions made by a defendant to prison inmates as presumptively inadmissible would be contrary to the Evidence Act 2006.
Whether the Judge’s direction under s 122 of the Evidence Act was inadequate? Held: the Judge’s direction was adequate, it satisfied the requirements of Benedetto v R and R v Ngarino.
Whether a miscarriage of justice arose because of trial counsel conduct? Held: trial counsel’s closing to the jury was in accordance with the appellant’s instructions and no miscarriage of justice arose.
Whether evidence relating to internet searches on the appellant’s phone was admissible? Held, the evidence was admissible, there is no proper basis on which this Court should revisit the decision made pre-trial.
Whether the minimum period of imprisonment was justified? Held: the combination of circumstances on which the Judge relied was sufficient for the imposition of the minimum term of 19 years.

Appeal allowed.

Appeal against sentence of eight years’ imprisonment for stupefying and indecently assaulting 18 complainants, most of which occurred at the appellant’s backpacker lodge.  Following the substitution of aggravated wounding charges to lesser charges of disabling two weeks before trial, the appellant pleaded guilty to all 42 charges.  He appeals against sentence on the basis that the starting point was too high, and that insufficient recognition was given for the guilty plea, remorse and time spent on restrictive bail conditions.  The appellant asked the Court to re‑sentence him, taking into account the forfeiture ordered since the date of sentencing in accordance with s 10B of the Sentencing Act 2002.

Issue one: did the Judge err in adopting a starting point that was too high?
Held: yes.  The approach the Judge took to sentencing made it difficult to assess the appropriateness of the starting point of nine years’ imprisonment. Undertaking its own sentencing exercise and reviewing comparator cases, the Court considered that an appropriate starting point was seven years’ imprisonment.

Issue two: did the Judge err in giving insufficient recognition for the guilty plea, remorse and time spent of restrictive bail conditions?
Held: yes.  The Judge’s allowance of a 10 per cent discount for a guilty plea failed to account for the full circumstances under which the plea was entered.  With reference to the timing of the plea and strength of the Crown case, the Court considered a discount of 15 per cent was more appropriate.  In addition, despite the Judge accepting the appellant’s remorse as genuine, this Court considered the discount of less than one per cent insufficient and substituted it with a five per cent discount.
In respect of restrictive bail conditions, the Court was satisfied appropriate discount was given but noted that the appellant may wish to pursue his complaint of oppressive bail checks through the Independent Police Complaints Authority.  In re-sentencing, the Court gave a discount of three months to account for the forfeiture order in accordance with s 10B.  The sentence was quashed and a new end sentence of five years and four months’ imprisonment imposed.  

Appeal allowed.  The Hearing Panel’s recommendations and the subsequent Auckland Council decision are set aside insofar as they relate to the Council’s decision not to adopt the Albany 5 Precinct and the Council’s decision not to zone the land within the proposed Albany 5 Sub-Precinct B Business — Mixed Use.  Panel directed to make new recommendations.  Council directed to make new decision.  Costs orders.

Judicial review — procedural unfairness.  Judicial review — natural justice.

Issue: Was the Panel’s decision vitiated by procedural unfairness because the Panel relied on evidence, that the Council had indicated it would no longer be relying on, without giving notice to the appellants of its intention to do so?
Held: Yes.  The appellants had previously sought and obtained permission to cross-examine the witness in question.  The evidence clearly demonstrated that the Council had subsequently decided not to rely on the evidence.  Had the appellants known that the Panel intended to rely on the evidence, they could have taken appropriate steps to protect their position, such as exercising their permission to cross-examine the witness and addressing the witness’ evidence in their submissions.

Issue: Should relief be granted?
Held: Yes.  It is not possible to say with any certainty that the error did not affect the ultimate outcome.

Appeal allowed. Publication restrictions.

Criminal law - sentence calculation
Criminal law - sentence - starting point

The respondent was convicted of selling her daughter as a child prostitute for 18 months, beginning when the daughter was 15 years old. The Judge adopted a starting point of nine years and six months’ imprisonment, reasoning that, although the offending was extremely serious, there was a need to leave “headroom” for future cases that might have worse facts. The Crown appealed.

Held: appeal allowed; sentence of ten years and three months’ imprisonment substituted for sentence of six years 11 months’ imprisonment. Minimum period of imprisonment of three years and five months quashed and substituted with a minimum period of imprisonment of five years. The maximum sentence for the charges was 14 years’ imprisonment. The law did not require that the maximum sentence be reserved for the absolute worse cases; to do so would render sentencing asymptotic. This was an appropriate case for a starting point at the 14-year maximum; the fact that this was a Crown appeal against sentence did not limit the extent to which the sentence could be increased, as s 8(c) of the Sentencing Act 2002 mandated that the maximum sentence be imposed for the worst kinds of offending. With discounts, an end sentence of ten years and three months’ is imposed.

Appeal dismissed.

Criminal practice and procedure - juries - unanimity Criminal practice and procedure - police questioning Criminal practice and procedure - trial counsel error

The appellant was convicted of murdering his workplace supervisor. On appeal he advanced a range of criticisms of trial counsel, most of which related to a late diagnosis of autism spectrum disorder (ASD) made the week before trial.

Held: appeal dismissed. Trial counsel did not err in how she advised the appellant about ASD; there was no expert evidence that his ASD meant he could not form a mens rea defence, he did not want to run a mens rea defence, and the evidence would have undermined such a defence. Nor did trial counsel err in not calling counterintuitive evidence from experts about the appellant’s ASD; if called the experts would have conceded the appellant’s ASD meant he was prone to aggression when provoked or when things did not go his way, which would have damaged the defence case. In addition, trial counsel did not err in concluding that the balance of the appellant’s statement to police was admissible.

Finally, there is no requirement that juries need be unanimous as to the exact mens rea for murder they find guilt on unless the circumstances of the case require that. There were no such circumstances in this case.

Copyright – infringement – damages.  
 
Appeal allowed.  Damages award of $600,000 quashed and substituted with award of $225,000.  Cross-appeal dismissed.  
 
In 2014 the National Party broadcast a 30 second advertisement which incorporated a sound track called Eminem Esque. The High Court found Eminem Esque infringed copyright in the musical work Lose Yourself and awarded damages of $600,000.  The National Party appealed the level of the award, and the first and second respondents (“Eight Mile”) cross-appealed the finding that additional damages were not justified.    
 
Held; given expert witnesses’ evidence, it was not open to the High Court to adopt the baseline figure suggested by Ms Zamoyska, Eight Mile’s expert witness; minimum baseline concept negated proper consideration of a territory-related licence.  Reasonable to expect a higher fee would be payable for political use of the work, reflecting licensor’s objective concerns about nature of use per se; however a licensor’s subjective reluctance to agree to a licence because the licensor does not personally endorse the message of the advertisement does not justify an increased fee; High Court’s intention that licence fee should not reflect subjective reluctance thwarted by adoption of Ms Zamoyska’s analysis, which made no distinction between objective and subjective reluctance.  Award also inflated by taking into account perceived subjective willingness of National Party in determining starting point for fee; similarly award inflated by assumed omission of quality control provision in hypothetical licence and absence of consideration of non-infringing alternative options of the National Party.  Evidence on both sides of the case, once appropriate adjustments made to reflect Court’s view of above factors, supported a finding of a reasonable licence fee for Lose Yourself of $225,000.  Appeal allowed.    

Reasoning and conclusion of the High Court that additional damages were unjustified was sound.  Cross-appeal dismissed.   

Application for leave to appeal granted. Appeals dismissed.

Health and Safety - Occupational. Practice and Procedure - stay of proceedings.

Talley's Group Limited (Talley's) and Worksafe NZ (Worksafe) appeal a decision of Faire J, finding that a charging document filed by Worksafe was defective but that this defect could be remedied under s 379 of the Criminal Procedure Act 2011 (CPA), and that the prosecution was not an abuse of process justifying a stay. Talley's appeal the decision on four questions of law and Worksafe appeals the decision on a further question of law.

Was the Judge correct to conclude that s 17(4) of the CPA requires each practicable step relied upon by the prosecution in terms of an offence under ss 6 and 50 of the Health and Safety in Employment Act 1992 to be set out in the charging document? Held; yes. The charging document should have contained the practicable steps Worksafe alleges should have been taken as they are the "pith and essence" of the charge. The level of detail required in a charging document may be a matter of debate but some detail is required.

Was the Judge correct to find that an informant's summary of facts could save a non-compliant charging document under s 379 of the CPA? Held; yes. While defective, the charging document was not a nullity because there were particulars of time, place and means in the charge. Section 379 of the CPA is designed to save the defect in this case. Talley's will suffer no miscarriage of justice through the use of s 379 because it was served with the summary of facts at the same time as the charging document. 

If s 379 of the CPA could save the non-compliant charging document, was the Judge correct to find that there could be no miscarriage of justice under s 379 unless the defect caused the significant prejudice? Held; it is unnecessary to answer this question as no miscarriage of justice occurred.   

Was the Judge correct to find that the prosecutorial conduct did not amount to an abuse of process? Held; yes. While it is a matter of concern that Worksafe has adopted a flawed charging practice, it is not so egregious as to undermine public confidence in the integrity of the judicial process. 

PRACTICE AND PROCEDURE - Protest to jurisdiction
PRACTICE AND PROCEDURE - Summary judgment
COMPANY LAW - Parent company liability

Appeals dismissed, cross-appeals allowed.

Appeal brought by James Hardie International Plc (JHI), James Hardie New Zealand Holdings (JHNZH) and RCI Holdings Pty Ltd (RCI) against the decision of Peters J upholding only part of JHI’s protest to jurisdiction and declining JHNZH and RCI’s summary judgment application. 

The appellants are three holding companies within the James Hardie group, and named defendants in the class action brought against James Hardie by past and present owners of homes, retirement villages and commercial buildings who allege that the James Hardie products were defective, not watertight and failed to comply with prevailing building standards.  The respondents cross-appeal against those parts of the judgment that upheld JHI’s protest to jurisdiction.

Issue one: is there a serious issue to be tried on the facts that JHI owed a duty of care to those who used products manufactured by its New Zealand subsidiaries?
Held:  yes.  This appeal concerns the application of the principle of separate legal personality, the circumstances in which a duty of care will be imposed and the circumstances in which a parent company may owe a duty of care to those affected by the actions and omissions of its subsidiaries.  The Court accepted that a parent company does not owe a duty of care in respect of operations of its subsidiary merely because of its shareholding.  However, when a parent company involves itself in the actions of its subsidiary, it may assume a duty of care to those who deal with its subsidiary (applying the guidelines from Chandler v Cape plc).  The Court was satisfied on the limited evidence before it that there was sufficient evidential narrative tending to prove direct involvement of JHI in the manufacturing operations of its NZ-based subsidiary, superior knowledge of JHI in relation to the manufacture and technical qualities of the product, and that JHI exercised some level of control over the local operations.  Accordingly, at this preliminary stage the Court was satisfied that there was a serious issue to be tried in relation to whether the conduct of JHI was such to bring it within the categories on which a duty of care may be imposed upon a parent company. 

Issue two: is there a serious issue to be tried that JHI breached the Fair Trading Act 1986 when it failed to warn the claimants of deficiencies within the products or take reasonable steps to withdraw the products?
Held: yes.  In marketing and supplying the products, the fact of JHI’s silence could affirmatively convey a meaning that was misleading or deceptive.  In respect of the cross-appeal, the Court was satisfied on the evidence that there is a serious issue to be tried as to the involvement of the JHI directors, servants and agents in the making of statements as to the nature and quality of the products. 

Issue three: is there a serious issue to be tried that JHI was a “manufacturer” of the goods, in breach of the Consumer Guarantee Act 1993?
Held:  yes.  The Court agreed with the Judge that JHI falls within the definition of “manufacturer” under the CGA, but disagreed that the defence under s 26 applied.  This Court identified alternative ways in which JHI may properly be categorised as a manufacturer.  If JHI was found to be a manufacturer on the basis of its involvement in manufacturing, the s 26 defence would not be available to it.  This factual issue is best addressed at trial.

Issue four: did the Judge err in declining to grant JHNZH and RCI’s application for summary judgment?
Held: no.  The limited evidence produced by the holding companies did not prove that all claims against it were bound to fail.  Applying Westpac Banking Corp v M M Kembla New Zealand Ltd, the Court concluded that this is not a case where it is possible to confidently conclude on the basis of affidavit evidence alone, that claims based on a novel and developing area of law are bound to fail.  Again, this is a proceeding in which the issues should be resolved at trial with the benefit of evidence. 

Application for leave to adduce further evidence declined.  Appeal dismissed.  Costs orders.  
Resource Management – resource consents.  Judicial Review – appeals, regulations, ministerial decision.  Practice and Procedure – costs.  
The Brook Valley Community Group (the Group) appealed against a decision of the High Court dismissing an application for declarations and judicial review challenging the lawfulness of the aerial discharge of brodifacoum in the Brook Valley in Nelson.  The Group challenged the lawfulness of the Resource Management (Exemption) Regulations 2017 (the Exemption Regulations) which exempted certain uses of vertebrate toxic agents from the requirement to obtain a resource consent under s 15 of the Resource Management Act 1991 (the RMA).  It was also argued that a resource consent was necessary under s 13 of the RMA.  The Group also appealed against a costs judgment of the High Court.  
Whether the Exemption Regulations were valid?  Held: the Exemption Regulations fall within the power conferred by s 360(1)(h) of the RMA and within its purpose.
Whether the discharge of brodifacoum required consent under s 13 of the RMA?  Held: resource consent was not required under s 13, no relevant action was taken for the purposes of s 13 as the only act was the discharge of brodifacoum which would have been covered by s 15, this is not a case where two consents were required, the different sections in pt 3 of the RMA should be seen as contemplating and establishing statutory rules that have different subject matters.  
Whether the High Court Judge erred in awarding costs to the respondents?  Held: the sums ordered were the result of the straight application of the High Court Rules 2016, there was no error made by the Judge as to the fixing of costs.

Appeal allowed.  Council’s decision granting resource consent quashed.  Application for resource consent remitted back to Council for reconsideration.  Council should consider whether or not to appoint independent commissioners.  Costs orders.

Issue: Did the Council misinterpret or misapply ss 4 and 34(1) of the Housing Accords and Special Housing Areas Act 2013 (HASHAA)?

Held: Yes.  The Council made an error of law by using the purpose of HASHAA to effectively neutralise the other matters that arise for consideration under s 34(1)(b)–(e), with the result that those matters were not properly acknowledged and weighed in the Council’s decision to grant resource consent.  Two other arguments of error of law were rejected.  The Council properly understood the purpose of HASHAA as being to enhance housing affordability.  Having already determined that the proposed development was a qualifying development, the Council was not obliged to reconsider the extent to which the proposed development met the purpose of HASHAA in determining how much weight to attribute to that purpose at the resource consenting stage under s 34(1)(a).

Issue: Did the Council erroneously substitute a lower test than that set out in s 34(2) when assessing whether there was sufficient and appropriate infrastructure to support the development?

Held: No.  The material before the decision-makers was sufficiently detailed for the Council to be satisfied under s 34(2).  To require a higher standard of detail at the pre-consent phase would be impractical.  The Council imposed appropriate conditions on consent requiring expert approval of infrastructure proposals before the development can proceed.

Issue: Did the Council err in failing to appoint independent commissioners to determine the resource consent application?

Held: No.  The Saxmere test for apparent bias is not an appropriate standard for local authorities deciding applications for resource consent.  Local authorities exercise dual commercial and regulatory functions, therefore there will always be some notional conflict of interest.  The appropriate test is whether the Council approached the application with a closed mind.  That was not established on the evidence.  However, in light of the Council’s defence of its decision in this litigation, it should consider whether or not to appoint independent commissioners to reconsider the application.        

Appeal allowed in part.  Orders discovering documents, requiring an interim payment, and for costs.

Family law - practice and procedure

Practice and procedure - discovery

Relationship property - separate property

The wife sought discovery of a large number of documents, mostly relating to the husband’s private equity business.  He resisted on grounds of irrelevance, unfair burden and separate confidentiality obligations to the business.  In the High Court, the Judge characterised the discovery as unnecessary, disproportionate and inconsistent with the goals of relationship property proceedings.  The Judge also addressed several other issues: a claim the husband should pay the wife’s legal and expert accounting costs in the proceeding; a claim for an interim distribution by the wife; and whether he should direct an interim payment to the husband.

Held: there is jurisdiction to make an order requiring one party to pay for all of the other party’s legal and accounting costs pre-trial. An order could be made because of impecuniosity of the applicant or to force more efficient resolution of the proceedings.  The jurisdiction is not exceptional, but it needs to be carefully exercised as it creates powerful incentives.  An interim distribution may be a preferable alternative to such an order, and was in this case.  The wife is justified in pursuing her claims despite her impecuniosity, but the order sought was open-ended and would give her advisers too much discretion.  Instead, the wife should be granted an increased interim payment of $400,000.  There is no basis for not granting the husband an interim distribution.

Held: the Judge did not err in stating the law applicable to discovery, but did err in refusing discovery of certain documents.  The wife’s claim is based on her providing childcare, entertaining corporate clients and similar.  Those indirect contributions are presumptively valuable and it must be assumed she will make out her claim.  This is also an unusual case in that the husband denies spending large amounts of time on the business and claims he contributed equally to childcare.  

Accordingly, some documents sought bear on various aspects of the wife’s claim, especially those that go to the question of how much time the husband spent on the business.  The rest are unnecessary and discovering them would be disproportionate.