New Zealand Law Society - Supreme Court roundup 27 Nov - 3 Dec

Supreme Court roundup 27 Nov - 3 Dec

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

New Zealand Supreme Court

Land Transfer Act, fraud, indefeasibility, easement

Kinara Trustee Ltd v Infinity Enterprises NZ Ltd [2020] NZSC 131 (23 November 2020)

Unsuccessful leave application – KT appealed a CA decisions regarding enforceability of an accessway across IE’s property to access KT’s property - Accessway not a legal easement - Not noted on the registered title of either KT’s or IE’s property - Accessway has been in use since before both KT and IE acquired their titles in 2007 – KT developed its property in 2010–2011 and said it did so based on a right to use the accessway - No dispute that no communication between KT and IE and about using accessway until 2017, when IE declined KT’s request to allow the registration of a right of way - Until 2017, IE took no steps to deny others, including KT, use of the driveway to access Kinara’s property - The Land Transfer Act 1952 (LTA) applied to this application - General protection of indefeasibility under LTA not available in two main circumstances: where the registered proprietor was fraudulent - and where there was an in personam claim against the registered proprietor – KT said accessway either an equitable easement created by implied grant and that IE acted fraudulently to defeat KT’s equitable interest (and therefore could not claim the protection of indefeasibility), or that IE’s conduct over 10 years gave KT rights in equity that entitled it to use the accessway and IE  estopped from refusing to recognise those rights – HC said KT had claim in proprietary estoppel as IE had a duty to speak out but did not do so, even when it was more probable than not that IE knew KT mistaken about its rights to use the accessway – HC ordered IE to register the accessway on its title as a legal easement in favour of KT – CA said HC inferences on the evidence as a whole went too far- Also said, even at its highest, the evidence before the Court left IE’s director aware of the existence and use of the driveway but without a belief that there were any adverse interests - No knowledge evidencing LTA fraud - On the in personam claim, CA said HC wrong to characterise claim as an implied representation by acquiescence - Rather, the basis of estoppel by silence was whether there was a duty to speak out – KT applied for leave based on four issues – SC said first three related to the fraud exception - Said some unresolved or SC had not dealt with them -  However, KT’s proposed appeal did not turn on those issues - Even if KT had an equitable easement, all that was alleged was that IE knew or should have known of that easement -  Not sufficient to be LTA fraud -  In any event, whether an equitable easement arose in the first place depended on particular circumstances here - Regarding in personam claim, issues largely depended on the particular facts – Nothing KT raised suggested miscarriage of justice in the sense required in civil cases – Leave declined.

Procedure, appeal from HC to SC

Paul v Attorney-General [2020] NZSC 132 (24 November 2020)

Unsuccessful application under s 69 of the Senior Courts Act 2016 for leave to appeal directly to SC from HC decision under Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) – HC struck out P’s application seeking orders recognising customary marine title and protected customary rights - Leave sought on the basis that HC erred in striking out application – P said proposed appeal raises  significant issue of general and public importance about the Treaty of Waitangi and tikanga, and the approach to be taken to the interpretation of the Act - Questions arose in a context where P said HC decision had effect of permanently extinguishing customary rights- Also said substantial miscarriage of justice will occur if the appeal is not heard - Finally, P said SC had jurisdiction to hear the appeal – SC said a right of appeal against decisions of fact and law to CA under s 112(1) of the Act – P sought to bypass that appellate pathway - Section 75(b) of the Senior Courts Act said SC not to grant leave for direct appeal unless satisfied that there are exceptional circumstances - None of factors raised persuaded SC this was a case which for SC without  benefit of CA views – Application dismissed.

Murder, s104 Sentencing Act

Marong v R [2020] NZSC 133 (24 November 2020)

Unsuccessful leave application – M was found guilty of murdering a Christchurch sex worker – HC sentenced M to life imprisonment with MPI of 18 years – M sought  leave to appeal against the CA decision dismissing his appeal and upholding sentence – CA said murder met circumstances in s 104(1)(b), (e) and (g) of the Sentencing Act 2002; murder involved calculated or lengthy planning; was committed with a high level of brutality, cruelty, depravity or callousness; and victim was particularly vulnerable – M challenged all three aspects of CA s 104 reasoning - Said application met miscarriage ground for leave and that all issues raise matters of general or public importance – SC said CA applied well-settled principles under s 104 to the facts – Application dismissed.

Review of Deputy Registrar decision

Siemer v Deputy Registrar of Supreme Court [2020] NZSC 135 (27 November 2020)

Unsuccessful application for review of Deputy Registrar’s decision – Self-represented S attempted to file with SC Registry a statement of claim seeking judicial review of  Deputy Registrar’s declining his application for a fee waiver relating to application for leave to appeal to SC against a CA decision -  Deputy Registrar declined application on the basis that insufficient information had been provided as to S’s financial position – Registrar advised S that SC did not have any originating jurisdiction – If S wished to pursue judicial review, the application would need to be made to HC - SC jurisdiction a statutory jurisdiction under Part 4 of the Senior Courts Act 2016 - An appellate jurisdiction -  No jurisdiction to consider application for judicial review - As S knew from prior experience, application for judicial review not an appropriate procedural step to take where objective to challenge a decision of a Registrar or Deputy Registrar – If S wished to challenge Deputy Registrar’s decision  should seek the review of decision by an SC Judge as he did in relation to the earlier decision of the Registrar to reject his application for fee waiver on public interest grounds -  Application dismissed.

Siemer [2020] NZSC 136 (27 November 2020)

Unsuccessful application for review of Deputy Registrar’s decision – Judge’s review of self-represented S’s application for fee waiver on financial hardship and public interest grounds.

Hong Kong Court of Final Appeal

Sex discrimination, hair length ordinance

“Long Hair” v Commissioner of Correctional Services [2020] HKFCA 37 (27 November 2020) 

L imprisoned for four weeks in June 2014 after being convicted of several charges - Whilst in custody, was required to have his hair cut – L challenged the lawfulness of both the Decision to cut his hair and the order regulating hair length (SO 41-05)  on the grounds that they (a) constituted direct discrimination under s.5 of the Sex Discrimination Ordinance (SDO) and (b) were contrary to art.25 of the Basic Law - Essentially, issue  whether male prisoners like L were treated less favourably than female prisoners - Court of First Instance ruled for L on both grounds – CA allowed the Commissioner’s appeal - Said Commissioner applied conventional standards of appearance to both male and female prisoners, hence male prisoners not treated less favourably – L appealed to CFA -   Issue whether SO 41-05 by requiring male but not female prisoners to have their hair cut “sufficiently close”: (a)  constituted direct discrimination under s.5(1)(a) of the SDO, thus unlawful under s.38 SDO; and/or (b) was inconsistent with the right to equality before the law under art.25 of the Basic Law, thus unconstitutional – CFA unanimously allowed L’s appeal.

United Kingdom Supreme Court

Arbitration, application to remove arbitrator, bias

Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48 (27 November 2020)

Unsuccessful appeal from CA - Damage caused by an explosion and fire on the Deepwater Horizon drilling rig in the Gulf of Mexico resulted in numerous claims against BP Exploration and Production Inc (BP) lessee of the Deepwater Horizon rig, Transocean Holdings LLC (“Transocean”) which owned the rig and provided crew and drilling teams to BP, and Halliburton Company (Halliburton) that provided cementing and well-monitoring services to BP - Halliburton had entered into a Bermuda Form liability policy with Chubb Bermuda Insurance Ltd (Chubb) - Transocean was also insured with Chubb by a Bermuda Form policy – Following a trial in the US. judgment apportioned blame between the parties - Halliburton settled the claims against it - Halliburton then sought to claim against Chubb under the liability policy - Chubb refused to pay contending that Halliburton’s settlement was not a reasonable settlement – Transocean similarly claimed against Chubb and Chubb likewise contested Transocean’s claim - The Bermuda Form policies provided for disputes to be resolved by arbitration - Halliburton commenced arbitration - Halliburton and Chubb each selected one arbitrator but could not agree on a third arbitrator as chairman - After a contested HC hearing R, who Chubb proposed to the court, was appointed - Subsequently and without Halliburton’s knowledge, R accepted appointment as arbitrator in two separate references also arising from the Deepwater Horizon incident - On discovering R’s appointment in the later references, Halliburton applied to the court under section 24 of the Arbitration Act 1996 to remove R as an arbitrator – Application refused On appeal, CA said R ought to have disclosed his proposed appointment in the subsequent references – However, an objective observer would not in the circumstances conclude there was a real possibility R was biased - Appeal dismissed – Halliburton appealed to SC – SC unanimously dismissed the appeal – Said for reasons which differed in part from courts below, that as at the date of the hearing to remove R, the fair-minded and informed observer would not conclude that circumstances existed that gave rise to justifiable doubts about R’s impartiality – Appeal dismissed.

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