New Zealand Law Society - Supreme Court roundup 16-22 Apr

Supreme Court roundup 16-22 Apr

Decisions, proceedings and news from the highest courts in some common law jurisdictions in the past week.

New Zealand Supreme Court

Jurisdiction, China or New Zealand, Strike-out

Lu and anor v Industrial and Commercial Bank of China (New Zealand) Ltd and anor [2021] NZSC 33

Unsuccessful leave application – Self-represented L, a Chinese citizen and resident, borrowed approximately $2.9 million from the Bank to assist with purchasing a $6 million property in Auckland - She intended to subdivide the property, but after various defaults on her obligations, Bank sold the property in a mortgagee sale - Bank then commenced proceedings in China to recover the shortfall owing under the loan agreement – Chinese proceedings involved a claim not only against L but also against M , L’s husband – Claim against M arose because, under Chinese law, a spouse can be jointly liable with the actual debtor for certain debts - Bank also obtained freezing orders against L’s and M’s assets in China - Freezing orders on M’s bank accounts and securities and L’s bank accounts were subsequently discharged - Only remaining freezing order was over L’s securities – L applied in China to have China proceedings stayed because she said New Zealand was the proper forum to resolve Bank’s claim - Application failed but appeal to be determined – L also commenced proceedings against the Bank in the New Zealand HC - Said Bank had represented to her that it would lend her more money after she had two years of repayment history, but it then refused to do so - Claims included misrepresentation, promissory estoppel, breach of the Consumer Guarantees Act 1993, other breaches of duty and a breach of the duty of reasonable care to obtain the best price reasonably obtainable in the mortgagee sale – L also sought anti-suit injunction to prevent Bank from progressing its proceedings in China as New Zealand was the appropriate forum for resolution of that claim - Bank applied to strike out L’s claim - Said all of the causes of action were untenable and also opposed the anti-suit injunction - HC granted strike-out application and dismissed L’s anti-suit injunction application – HC awarded Bank costs of approximately $20,000 plus disbursements –Rather than appealing against HC strike-out judgment, L tried to file further proceedings in HC - Two proceedings were struck out and one was not accepted for filing - Eventually L and M filed a notice of appeal against in HC - Eventually filed similar notice of appeal in CA on 5 August 2020, approximately five months out of time - Sought time extension to appeal – CA dismissed time extension application – L and M sought leave to appeal to SC against CA decision refusing to extend time to appeal to CA - Also sought leave to appeal directly to SC against HC strike-out and costs judgments – SC said CA applied orthodox principles regarding time extensions – Regarding HC strike-out, SC said no matter of general or public importance, no exceptional circumstances to justify direct appeal from HC – HC costs judgment routine application of principles – Application dismissed.

High Court of Australia

Conspiracy, Terrorism, Husband and wife

Namoa v R [2021] HCA 13 (14 April 2021)

Unsuccessful appeal from NSW SC - Following a trial by jury in the Supreme Court of New South Wales, N convicted of conspiring to do acts in preparation for a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cwth) (Code) - Offence occurred between 8 December 2015 and 25 January 2016 - Before trial, trial judge rejected an application for a permanent stay which had been based on N and her co-conspirator marrying on 30 December 2015 - As husband and wife, they could not be guilty of conspiracy under Code - On 6 April 2020, CCA said Code’s clear language was husband and wife were each a "person" and could be guilty of conspiring with each other within the meaning of s 11.5 – N appealed to HCA – HCA upheld CCA decision – Said proper interpretation of Code s 11.5(1) not affected by any common law rule that spouses alone could not conspire - Irrespective of whether there was such a common law rule, that rule had not been incorporated into the offence in s 11.5 by the words "conspires" and "conspiracy" - Therefore unnecessary for HCA to consider whether common law included such a rule at any relevant time – HCA said whatever may have been the historical position, there was no longer any principle in Australian common law respecting the single legal personality of spouses - Section 11.5(1) applied to spouses who agreed between themselves, and no other person, to commit an offence against a Commonwealth law - Offence in s 11.5 applied to N - Appeal dismissed.

Judicial Committee of the Privy Council

Arbitration, serious irregularity

RAV Bahamas Ltd and anor v Therapy Beach Club Inc [2021] UKPC 8 (19 April 2021)

Successful appeal from Bahamas CA - In December 2011, RAV leased a parcel of land on the island of Bimini to Therapy to operate a restaurant and beach club - Term of the agreement (Lease) was 3 years with option to extend for a further 3 years - In March 2013, RAV commenced separate proceedings before Bahamas SC alleging, amongst other things, that lease was void - Before SC determination, RAV evicted Therapy from Bimini - RAV and Therapy concluded a separate "ad hoc" arbitration agreement to resolve disputes relating to the eviction - Arbitrator, a retired Bahamian judge, said Therapy had been wrongly evicted and awarded it a mixture of general and special damages – SC Judge said there had been serious irregularity on the arbitrator’s part of the arbitrator regarding Award preparation, more specifically, on damages quantification of damages – Bahamas CA overturned CA – Appeal to PC centered on a) when advancing a challenge under section 90 of the Bahamas Arbitration Act 2009 (the Act), an applicant had to expressly and separately allege that serious irregularity has caused substantial injustice; and in order to uphold a challenge under section 90 of the Act (and remit the Award for reconsideration), the Court had to expressly and separately consider whether serious irregularity had caused substantial injustice – PC said this was a case where as a matter of substance, substantial injustice was both established and found - Did it make any difference that there has not been an express and separate allegation, consideration and finding of substantial injustice? PC said should not and did not, make any difference - Substance is more important than form - Undue formalism should not be required – That there was no express and separate allegation of substantial injustice is not fatal to an application under section 90 - Implicit in any section 90 application that substantial injustice was being alleged and, provided that there was, when required, the necessary evidential material to support that allegation, it would generally be an issue which is properly before the court – Appeal allowed.

Legitimate expectation, constitutional property rights, private law damages, unjust enrichment

Silly Creek Estate and Marina Co Ltd v Attorney-General Turks and Caicos Islands [2021] UKPC 9 (19 April 2021)

Successful appeal from Turks and Caicos CA – SCEM was a Turks and Caicos Islands development company established with a view to developing a low impact/high cost community including, among other things, homes, guest houses, dockage, and marina facilities on the Silly Creek peninsula and on Silly Cay Providenciales - As part of a settlement agreement with the Attorney-General, the government agreed to permit the development of a portion of land on Silly Cay - That provided, among other things, for the reservation of five lots falling within a national park for private residential development - On the back of that agreement, the government granted a commercial lease of Silly Cay to SCEM, which the Governor executed Governor and granted SCEM the right to acquire the freehold interest in the land – Relying on the terms of the Silly Cay lease, SCEM applied for detailed development permission and a building permit to develop one of the five lots under the lease - Permission was refused on the ground that the proposed development was of a type which was not permitted in a national park – SCEM sought damages for breach of the covenants in the lease - The first instance court dismissed the claim, CA allowed the SCEM’s appeal – Attorney-General appealed to PC – SCEM, among other things, said the agreement and lease gave rise to a “legitimate expectation” and a constitutional “property right” - On legitimate expectation, PC said was a misconception that any representation, or promise Governor made on behalf of the Crown as landowner could ever bind himself, the Physical Planning Board or the Director of Planning in the discharge of development control functions under the statutory scheme for land use planning - Notion went against the principle that a public authority acting in its capacity as landowner cannot not bind itself when making decisions as a planning authority - Regarding property rights, PC rejected argument that either the Settlement Agreement and the Silly Cay Lease in combination or specifically the statement in clause 1 of the Settlement Agreement gave rise to an expectation qualifying as a property right under the constitution – Regarding private law damages PC said when the company agreed its settlement with the Crown in 2006 it made a deal whose outcome proved less advantageous than it hoped - Was difficult to see how any claim for damages embraced in these proceedings – whether damages for “unjust enrichment”, as pleaded, or a restitutionary remedy of some other kind – Could survive analysis – Appeal allowed.

MACMA, public hearing

Hinds and ors v Director of Public Prosecutions [2021] UKPC 10 (19 April 2021)

Unsuccessful appeal from Jamaica CA – H and others were all members of the People’s National Party (Party Members) which formed the Government of Jamaica in October 2006. - The Director of Public Prosecutions (DPP) was designated Central Authority under the Mutual Assistance (Criminal Matters) Act 1995 (MACMA) in Jamaica - National Public Prosecutor’s Office (NPPO) of the Netherlands was investigating alleged breaches of the Dutch Criminal Code by Trafigura Beheer BV for potential bribery of Jamaican public officials - Between December 2007 and May 2009 NPPO wrote various letters to DPP, requesting assistance in the form of taking evidence from the Appellants on oath or affirmation - NPPO’s Eighth Supplementary Letter of Request issued on 14 April 2009, requested that summonses be issued to Party Members under section 20 of MACMA, to appear before a SC judge or a Resident Magistrate, and to give evidence or produce documents or other articles in connection with the Trafigura investigation -Resulting section 20 MACMA proceedings started on 14 November 2011 – Party Members raised a preliminary issue of whether the evidence should be taken in chambers or open court - On 15 November 2011, Jamaica SC said proper administration of justice demanded a hearing in open court to which members of the public had access, along with the media – Party Members appealed to CA - On 23 June 2017, CA dismissed their appeal - They appealed to PC - The appeal focused on the principle of open justice, to what extent it applied to mutual legal assistance requests, and whether Jamaican SC exercised any discretion properly to determine whether the mutual legal assistance proceedings should be conducted in public – Also, was CA correct to dismiss appeal? – PC said, among other things, matter under investigation was one which was capable of affecting the polity of the country - Highly relevant to whether the evidence should be taken in public and was not a matter given undue weight - No material before the court to lead to the conclusion that a public hearing might jeopardise the investigation in the Netherlands, or any subsequent investigation or proceedings which might follow in Jamaica - In any event, should such an investigation or proceedings ensue, that would be a question to be addressed within those proceedings – Also Party Members were given the opportunity to give their evidence in private but did not avail themselves of that opportunity, thus leading to the request made in the ninth supplementary letter – PC saw no basis for concluding that the discretion was other than properly exercised – Appeal dismissed.

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