Court of Appeal Judgments of Public Interest
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Company Law — Directors’ duties — Reckless trading — Incurring of obligations — Quantum of compensation.
Mainzeal Property and Construction Ltd (Mainzeal) was a significant construction company that was placed into liquidation on 28 February 2013. The secured creditor, Bank of New Zealand, and preferential creditors were paid in full, but only approximately $8 million was left to meet outstanding claims by unsecured creditors in excess of $110 million and liquidation expenses. The liquidators brought claims against the directors alleging (among other things) that they had breached ss 135 and 136 of the Companies Act 1993 (the Act). In the High Court Cooke J found that the directors had breached s 135 claim and ordered that the directors pay a total of $36 million compensation to Mainzeal. He did not find any breach of s 136. The directors appeal the s 135 breach finding. The liquidators cross-appeal seeking an increased compensation award for breach of s 135, and a finding that s 136 was breached and compensation for that breach.
Did the directors breach s 135?
Held: Yes — the directors breached s 135 by no later than 31 January 2011 as they exposed Mainzeal’s creditors to a substantial risk of serious loss by trading on in a “business as usual” mode while balance sheet insolvent and using the creditors’ funds as working capital. By January 2011 at the latest, Mainzeal was in a very vulnerable state — it was seriously balance sheet insolvent if the related company debts owing to Mainzeal were not recoverable. The related companies that owed the debts did not have the means to meet their obligations. Mainzeal and the debtor companies were dependent on the willingness and ability of other companies in the wider group to provide support, in the absence of any legally binding obligation to do so. It was not reasonable for the directors to proceed on the basis of oral assurances of financial support from related companies which had no legally binding obligation to provide that support, and which faced regulatory barriers to providing such support under Chinese law. A number of courses of action were open to the directors, including pressing for repayment of the debts owed to Mainzeal by related parties; obtaining written assurances of support in a legally binding form from entities with the means to provide that support; conducting a review of the appropriateness of continuing to trade; conveying the seriousness of their concerns to the controllers of the Chinese entities; indicating that if none of the various options were feasible they would proceed to wind down the business; and indicating that if no satisfactory change occurred the directors could and would resign. The directors did the one thing that was not reasonably open to them: to simply keep trading while failing to engage in any meaningful way with the company’s financial position and the risks that created for current and future creditors.
What compensation should be awarded against the directors under s 301 in relation to the s 135 breach?
Held: The relevant approach to assessing compensation under s 135 in the circumstances of this case is the net deterioration approach. There was no net deterioration in Mainzeal’s position between 31 January 2011 and the date of liquidation in early 2013, so no compensation for breach of s 135 is recoverable from the directors. The entire deficiency approach is not relevant on the facts as the directors’ breaches did not cause the company to become insolvent: the liquidators did not establish on the balance of probabilities that liquidation would have been avoided if the directors had not breached their s 135 duties. Nor was this approach pleaded by the liquidators in the High Court. It was not the subject of relevant fact and expert evidence. It would not be fair to impose liability on this basis, in those circumstances. The liquidators’ preferred approach, the new debt approach, also is not available in the context of the breach of s 135 in this case. No compensation is recoverable from the directors for their breach of s 135 as on the only relevant measure in this case, the net deterioration approach, their breach did not cause loss to the company.
Did the directors breach s 136?
Held: Yes. The directors breached s 136 in respect of: obligations to principals and bond providers under four substantial construction contracts entered into after 31 January 2011; obligations to subcontractors under those contracts in relation to retentions; and all obligations incurred on or after 5 July 2012. The directors did not have reasonable grounds to think Mainzeal would be able to perform the longer-term obligations assumed as a result of entry into the four substantial contracts. Where significant obligations with a longer time horizon were undertaken, there was a high risk that those obligations would not be performed as the ability to do so depended on the company receiving shareholder support as and when financial difficulties arose: the directors’ belief that shareholder support would be forthcoming was not based on reasonable grounds. It was not open to the directors to enter into those contracts without having put in place arrangements that provided a reasonable basis for believing Mainzeal would be able to perform its obligations under those contracts through to completion. By 5 July 2012, the directors did not have reasonable grounds for believing that the company would be able to meet new short-term (unsecured) obligations when they fell due. Section 136 is not only concerned with entry into one or more specific obligations. It was sufficient for the liquidators to plead a global claim that the directors should not have agreed to Mainzeal entering into new obligations from 31 January 2011 onwards; the liquidators did not need to plead specific obligations entry into which constituted a breach of s 136.
What compensation should be awarded against the directors under s 301 in relation to the s 136 breach?
Held: It follows from the Supreme Court’s decision in Madsen-Ries v Cooper  NZSC 100, (2020) 29 NZTC 24-088 (Debut Homes) that the new debt approach is available in relation to a claim for breach of s 136. As the Supreme Court said, in order to make s 136 work in practice, the new debts incurred in breach of that provision must be treated as a form of harm to the company. Offsetting benefits to the company from the relevant transactions must be disregarded. This approach is not without difficulties, but it is preferable to adopting an approach that renders s 136 a dead letter in cases where its policy rationale is squarely engaged. A compensation award on the new debt approach fairly reflects the harm done to new creditors, who would not have been exposed to the company if the directors had not breached s 136. That harm is treated as harm to the company for the purposes of s 136 and for the purpose of assessing compensation for breach of s 136.
What should the quantum of compensation be for the directors’ breaches of s 136?Held: Only the net deficit to relevant creditors, after making an allowance for all payments received by them before liquidation or during the liquidation (other than as a result of these proceedings), can be recovered for breach of s 136. The amount of new debt claimed by the liquidators is approximately $63.551 million. A substantial proportion of this figure appears to be represented by obligations in respect of which we have found the directors to be liable under s 136, but we do not have sufficient information to determine that issue. The figures provided by the liquidators do not make any allowance for payments to relevant creditors during the liquidation. Those figures also do not make allowance for interest on creditors’ claims. We are not in the position to determine the figure potentially recoverable for breach of s 136. We remit this proceeding to the High Court to determine that figure. The High Court will also need to consider whether the amount that is prima facie recoverable for breach of s 136 should be reduced in the exercise of the s 301 discretion.
Police found the appellant smelling strongly of alcohol and asleep behind the wheel of his van, which was parked across both kerb and carriageway on broken yellow lines with its engine running. Police removed the key from the ignition and required the appellant to undergo a breath test. After returning a positive result, police conducted an evidential breath test (EBT). The EBT showed the appellant had a breath alcohol level of almost four times the legal limit.
The appellant was subsequently convicted of driving with excess breath alcohol. He appeals against conviction and the District Court’s refusal to grant a discharge without conviction. Leave was given on the basis that this Court’s forthcoming decision in Re Solicitor-General’s Reference (No 1 of 2020) may affect the appellant’s case. The appellant argues the wording in Block J of the procedure sheet used by police to warn him was non-compliant with ss 77(3) and (3A) of the Land Transport Act 1998 such that the EBT result should not have been admissible at trial, and that this Court’s decision in Re Solicitor-General’s Reference (No 1 of 2020) is per incuriam. The appellant also seeks to adduce fresh evidence.
Criminal practice and procedure — Police acts or omissions. Whether the Block J wording used by police failed to comply with ss 77(3) and (3A) of the Land Transport Act 1998 such that the appellant’s EBT result should not have been admissible at trial.
Held: No. This Court in Re Solicitor-General’s Reference (No 1 of 2020) decided the Block J wording conveyed the sense and effect of the warning required by s 77(3A)(a) of the Land Transport Act. The appellant’s argument misconstrued that decision, which did not preclude an argument that the motorist did not in fact understand his rights. None of the 12 reasons submitted demonstrated the Court had made a fundamental omission in its previous decision such as to satisfy the per incuriam threshold for reversal.
Criminal Law — Fresh evidence. Whether leave should be granted to admit fresh evidence.
Held: No. The evidence of previous versions of the Block J wording is not relevant to whether the words used comply with ss 77(3) and (3A) of the Land Transport Act.
Criminal Practice and Procedure – Name Suppression.
The second respondent, L, faced a charge of manslaughter relating to the death of his daughter as well as family violence charges. L pleaded guilty to the charges, was convicted and sentenced, and was granted permanent name suppression. Stuff appeals against the granting of permanent name suppression on the grounds that the Judge failed to provide reasons, the s 200(2) threshold requirements were not met, and the Judge erred in exercising his discretion in granting name suppression.
Whether the Judge erred in failing to give reasons for making the permanent name suppression order.
Held: The Judge gave reasons orally which were later confirmed in writing in a minute after the present appeal was filed. Therefore the Judge did give reasons, though best practice would have been for the Judge’s oral reasons to be transcribed and provided to the parties.
Whether the Judge erred in finding the threshold s 200(2) were met.
Held: The connection between L and the victims as immediate family members is very close. The child victims’ surnames include L’s surname. There is a high likelihood the victims would be identified in their community. Publication would also cause undue hardship to the victims. L’s former partner has suffered abuse which will likely escalate if she is identified by a wider circle of people. L’s surviving child would likely be identified when she starts school which would be a very significant burden to bear.
Whether the Judge erred in exercising his discretion to grant permanent name suppression.
Held: The case is distinguishable from R v Liddell  1 NZLR 538 (CA) where no immediate family members were direct victims of the offending. Moreover, here it is not merely family members suppression but L’s victims, which is relevant per s 200(6) of the CPA. The interests of open justice were sufficiently promoted by the widespread publication of the facts of the offending and the fact that L admitted to killing his child.
Family and Domestic Relationships — Intercountry Adoption.
Ms Norman is a New Zealand citizen. She is the aunt of four young people who live in Ethiopia: Wendy (aged 20), Tessa (aged 19), Sam (aged 17) and Ana (aged 15) (the children). The children’s parents have not been heard from since 2013: it is likely they are no longer alive. The children are being cared for by another aunt, Ms May, who is Ms Norman’s sister. The children, Ms May and Ms May’s 10 year-year-old daughter all live together in one bedroom in a house owned by an extended family member. They live in financial and material poverty and are supported by funds sent from Ms Norman in New Zealand. Although the children are being looked after by Ms May, she is not their legal guardian, which poses difficulties relating to accessing education and healthcare, and they do not have proper identity documents. None of the children has had any formal education. The children’s situation has become worse in the last year due to civil unrest in Ethiopia and COVID-19.
In 2017, Ms Norman applied to the Family Court to adopt the children under the Adoption Act 1955 (the Act). The Family Court declined the application as the Judge was not satisfied the claimed family relationship between the children and Ms Norman had been established. Before the High Court, DNA evidence confirmed Ms Norman is the aunt of the children. But the application was declined as the Judge was not satisfied that adoption was in the children’s best interests. Ms Norman sought leave from the High Court to appeal that decision to this Court, which was granted.
Can the Court make an adoption order in respect of Wendy?Held: No. An adoption order can only be made in respect of a “child”. That term is defined in the Act as a person under the age of 20, with an express extension to include a person in respect of whom an interim order is in force despite that person turning 20. No adoption order may be made in respect of a person above the age of 20, unless an interim order is in force in respect of that person. No interim order was made in this case. Nor can an adoption order be backdated: s 14 of the Act expressly provides that an order is effective on the date it is made. This interpretation of the Act is consistent with the purpose of the Act, which is to ensure that children under 20 are able to receive parental care from adoptive parents. Although the effects of adoption last beyond the age of 20, the focus of the Act is on ensuring appropriate parental care for persons under 20. That purpose is no longer served in respect of a person who has turned 20. Rule 48(4) of the Court of Appeal (Civil) Rules 2005, which permits this Court to make any order that should have been made in the court below, does not confer on this court a power to make orders that are not consistent with the scheme of the relevant legislation.
When should an adoption order be made under the Act?Held: The High Court Judge erred in approaching the case on the basis that the “first and critical question is whether the children can be cared for in a suitable manner in Ethiopia”. We consider that the first question should be whether the child in respect of whom an order is sought is a child who cannot, or will not, be cared for by his or her own parents? If so, the next question is whether the proposed adoption is capable of providing the child with a permanent family life. If so, then the purpose of the Act is engaged and the court can, and should, apply the specific criteria in the Act, in particular, whether the proposed adoption order would serve the best interests and welfare of the child.
Held: Both New Zealand and Ethiopia are signatories to the UNCRC, which provides an important backdrop to the interpretation and application of the Act. Article 21(b) expressly recognises that intercountry adoption may be an appropriate means of providing care for a child. It is necessary to focus on the child’s best interests in each case, rather than adopting a bright‑line rule that relegates intercountry adoption to a last resort. Intrafamily adoption addresses many of the concerns that attach to intercountry adoption more generally. In particular, it maintains family and wider cultural connections and lessens many of the risks that are present in the intercountry adoption context.
Held: If the above questions are answered in the affirmative, it necessarily follows that the adoption is not a device that is being abused to circumvent the Immigration Act 2009. Our approach also ensures that adoption is not misused in a manner that prejudices the relationship between children and parents who are caring for those children despite financial and material poverty.
Held: The inquiry into the welfare and best interests of the child required by the Act and the UNCRC is comprehensive, and intensely fact-specific. The socioeconomic advantages of the adoption may be taken into account as relevant benefits. The benefits of becoming a New Zealand citizen, and associated rights and protections, may also be relevant advantages.
Should an adoption order be made in this case in respect of Tessa, Sam and Ana?Held: Yes. The first criterion is met: the children are not being cared for by their own parents. Although the children are receiving day-to-day care from Ms May and financial support from Ms Norman, there is no-one exercising legal guardianship in respect of the children, which has contributed to difficulties in terms of educational opportunities and healthcare. The second criterion is also met: adoption by Ms Norman would provide the children with a permanent family life. Ms Norman intends the children to live with her as part of her family. She is their aunt, has been in regular contact with the children, has been supporting them for many years, and intends to continue to support them regardless of the outcome of the application.
Held: We consider it is in the best interests of the children to be adopted by Ms Norman. Although the children have a close and loving relationship with Ms May and their extended family in Ethiopia, Ms Norman is hardly a stranger to the children. Ms Norman has met them in person on a number of occasions when visiting Ethiopia. Ms Norman is in regular contact with them through WhatsApp, supports them materially and contributes to their emotional support. We share the concern of the courts below about the emotional impact on the children of separation from Ms May, who has cared for them since they were born. But they will be living with another family member to whom they are also attached. The children are not young: they are capable of taking steps to maintain a long-distance relationship with Ms May and other family members in Ethiopia and may well travel to visit their family there in the future.
Held: The approach adopted in the Courts below may have led to insufficient weight being given to the stark difference in living conditions and opportunities for the future for the children if they are adopted by Ms Norman. The children currently live in very crowded conditions, have a limited and inadequate diet, have no money for other necessities such as clothing, live with a real and continuing threat to their security, and are deprived of education and healthcare. If the children are adopted by Ms Norman, they will have a loving and supportive home with her and her husband here in New Zealand, they will be clothed and cared for, they will become New Zealand citizens meaning they will obtain formal identity documents, be able to travel, have a right of abode in New Zealand, and have access to all the social, educational, healthcare and welfare opportunities New Zealand citizens enjoy. The children are able to maintain their family links and cultural identity through Ms Norman and her family, and through the wider Ethiopian community in New Zealand. We agree that transition to life in New Zealand will undoubtedly be difficult, but Ms Norman is well placed to assist the children.
Held: The Act requires us to take the children’s views into account, consistent with art 12 of the UNCRC. The Courts below were right to observe that the information the children have about life in New Zealand is limited, and they are unlikely to fully appreciate the scale of the challenges they will face in adapting to live in New Zealand. But the children have a good understanding of the conditions in which they currently live. We consider that significant weight needs to be given to their views that, despite the risks and uncertainties involved, they would be better off to live with their aunt, Ms Norman, in New Zealand. Held: The factor that weighs most heavily against making an adoption order in relation to the three younger children is that it seems likely to result in their separation from their sister, Wendy. The siblings are close-knit and provide each other’s primary support. It will be emotionally challenging for the three younger children to be separated from their eldest sister. However, all the children, including Wendy, and Ms May, expressed the view that it would be in the three younger children’s best interests to be adopted by Ms Norman and go to New Zealand, even if Wendy could not go. We conclude it would be in the three younger children’s best interests for the adoption order to be made.
The respondent, Fire and Emergency New Zealand, is undergoing a restructure. The applicant, the New Zealand Professional Firefighters Union, sought declarations in the Employment Court as to the relationship between its collective agreement with FENZ and s 30 of the Fire and Emergency New Zealand Act 2017, obliging FENZ to offer any suitable vacant positions to employees whose existing position is being made redundant. The Judge held s 30 overrode provisions to the contrary in the collective agreement. The union seeks leave to appeal under s 214 of the Employment Relations Act 2000 on the following question of law: whether s 30 properly interpreted operates to defeat the employment agreement entitlements.
Employment Law – Leave to appeal. Whether proposed question of law is one that by reason of its general or public importance or for any other reason ought to be submitted for determination.
Held: No. The proposed question of law concerns the interpretation of a statutory provision and is of general importance relating as it does to a significant number of people and the function of an important public organisation. But the proposed question of law is not seriously arguable. The union’s interpretation would render s 30 pointless. Section 30 is a protective provision that clearly applies to all redundancies. The provision was part of reforms to reorganise fire services meaning restructuring and protection for re-deployment was necessary. The Supplementary Order Paper notes s 30 was inserted for the benefit of any FENZ employee who may be affected by redundancy and who may be given preference over others for appointment to any other relevant position in FENZ. There was no provision for s 30 being subject to employment agreements and s 30 reflects developments in the common law regarding obligations on redundancy.
Criminal law: Parties to offences, murder, evidence, miscarriage of justice, hearsay, jury directions on intent and composite question trail.
The appellants were both patched members of the Tribesmen gang. A High Court jury found them guilty of the murder of a 24-year-old gang prospect. Both appealed their conviction. Mr Solomon appealed primarily on the basis that new evidence by a Ms Henare had come to light suggesting another person was the true assailant. This new evidence resulted in an application for leave to adduce fresh evidence. Mr Solomon also argued that a statement made by him to police was inadmissible. Mr George’s appeal challenged the admissibility of a hearsay statement by a gang member Mr Putt (deceased by the time of the trial) and the admissibility of propensity evidence by a Mr Kamoto. The admissibility of both items of evidence had been the subject of pre-trial rulings by Downs J. Among other grounds, both appellants also challenged the trial judge’s directions on intent and the question trail provided to the jury.
Should leave to adduce fresh evidence be granted? Held: no. Despite Ms Henare’s evidence being fresh in the sense that trial counsel had no way of knowing about statements she made after the trial to police, the evidence if true would have been known to both appellants and able to be put to witnesses at trial. In the absence of any waiver of solicitor-client privilege the Court cannot speculate that trial counsel may not have followed instructions. In addition to this, the evidence was in any event not credible or cogent.
Was Mr Putt’s hearsay statement inadmissible? Held: no. It satisfied the pre-requisites for admission. It was a formal signed statement made to police in the knowledge that it would be used in legal proceedings and without any operative inducement. It was made at a time very shortly after the events in issue. The prejudice arising from being unable to cross-examine Mr Putt was not significant given that matters such as his criminal record for dishonesty and the fact he was seeking bail at the time he made his statement could all be put before the jury through other witnesses.
Was Mr Kamoto’s propensity evidence about gang violence properly admitted? Held. On the basis of the brief of evidence (which told of the deceased being targeted by Mr George), Downs J was correct to allow the pre-trial application. However, the evidence Mr Kamoto gave at trial was of general gang violence and was of very low probative value in relation to the key issue at trial, namely the identity of the gang members who had attacked the deceased. However, although the trial judge did not tell the jury to ignore the evidence or explain its limitations, the limitations of the evidence were self-evident. Further, the trial judge did give the jury a general warning about not allowing any prejudices they might have about gangs to influence them. The evidence would not have made any difference to the outcome.
Was Mr Solomon’s police statement inadmissible because he was not cautioned before making it? Held: no. The evidence at the voir dire established that at the time he made the statement Mr Solomon was being questioned as a potential witness, not a suspect. He was not compelled to go to the police station and nor was he pressured to make the statement in question which accorded with other statements he had already made to another officer a few days before.
Was the trial Judge’s direction on intent inadequate and the question trail defective? Held: no. The defence theory for both appellants was very much focused on the identity of the true perpetrators and for obvious reasons questions of intent and recklessness were only briefly mentioned. The Crown was never required to prove motive to want to kill and there would have been little value in the trial Judge defining recklessness by some other words than those contained in the question trail. The words the Judge used clearly conveyed the concept. While other judges might have adopted separate question trails for each defendant, the Judge’s use of a composite question trial was not an error. The question trail was clear and would not have led the jury down illegitimate pathways of reasoning. The Judge went to some pains to emphasise the need to consider the evidence and the case against each defendant separately.
The Minister appealed, on the basis that the Minister’s role under s 186 of the RMA was “supervisory” in nature, and the Minster simply carried out a check on the consideration of alternatives by the requiring authority. It was then the role of the Environment Court to determine whether a proposal should be accepted under s 24(7) of the PWA. The objectors sought to uphold the High Court judgment on various other grounds.
Held — appeal allowed. When making a decision under s 186(1) of the RMA the Minister must be satisfied that the proposed taking is capable of meeting the test for the Environment Court in s 24(7) of the PWA. The Minister need not be satisfied the proposal will definitely meet the requirements of s 24(7). It is not the Minister’s role to decide which of a number of alternatives should be pursued. However, the Minister might validly decline to grant an application under s 186(1) of the RMA if, for example, there had been insufficient consideration of alternatives by the requiring authority, or the proposal had implications for land of significance to Māori or ran contrary to relevant government policies regarding climate change or the environment. Accordingly, the “supervisory” label was not appropriate.
The arguments raised to support the High Court decision on other grounds could not succeed. There was no basis on which to conclude that an unfair process had given rise to a material impact on the Minister’s decision, and the High Court was correct to find that alleged omissions in TEL’s applications were not relevant to the Environment Court’s decision.
It was wrong to suggest the Crown should have granted easements over land belonging to the Office of Treaty Settlements (the OTS land), and land-banked for the purpose of claims under the Treaty of Waitangi, to avoid the compulsory acquisition of private land. Given relevant provisions in the RMA, the fact land had significance for Māori was relevant to the statutory scheme. Further, the Treaty was a relevant consideration in the Environment Court’s inquiry under s 24(7) of the RMA where the acquisition of such land was at issue.
Nor could the notice of intention to acquire land under s 23 of the PWA be impugned in the circumstances. There was no error of law in the Environment Court’s treatment of this issue.
Criminal Law. Verdict unreasonable. Sentence — starting point — mitigation.
In 2019 Mr Kreegher was convicted of kidnapping, aggravated robbery, wounding with intent to cause grievous bodily harm and arson. He was sentenced to eight and a half years’ imprisonment. He appeals his conviction and sentence. He also seeks to adduce fresh evidence.
Should the evidence be adduced? Held: no. The evidence is affidavits suggesting someone else was in possession of the car used in the offending. This evidence is neither fresh nor sufficiently credible. The Court is generally not sympathetic to appellants who merely seek a second opportunity to mount a more effective defence.
Was the verdict unreasonable? Held: no. Although the prosecutor’s closing was unclear, the trial judge’s directions adequately reminded the jury that it is the Crown’s burden to prove guilt beyond a reasonable doubt, and not the appellant’s burden to prove innocence. There was also sufficient evidence upon which a jury could have reasonably convicted Mr Kreegher.
Was the sentence manifestly excessive? Held: yes. While the starting point was appropriate, Mr Kreegher was entitled to a higher discount for his personal circumstances and the three years he spent on bail without breach.
What is the meaning of "not a regular part of the employee's pay" in s 8(1)(c)(i) of the Holidays Act for the purpose of calculating ordinary weekly pay under s 8(2)? Answer: Payments are "a regular part of the employee's pay" if they are made (i) substantively regularly, being made systematically and according to rules; or (ii) temporally regula rly, being made uniformly in time and manner. It is not necessary that payments also be a regular part of the employee's pay for an ordinary working week, as had been accepted by the Employment Court, as that would conflict with the premise of that section that a calculation based on the concept of an ordinary working week was not possible.
If productivity or incentive-based payments are a regular part of the employee's pay, do those payments have to be "pay the employee receives under his or her employment agreement for an ordinary working week" for the purpose of calculating ordinary weekly pay under s 8(2) of the Holidays Act? Answer: No, for the reason given above.