New Zealand Law Society - Supreme Court roundup 15 - 21 October 2021

Supreme Court roundup 15 - 21 October 2021

Supreme Court roundup 15 - 21 October 2021

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

New Zealand Supreme Court 

Mortgage guarantee, liability, summary judgment for deficiency

Ikon Building Co-Operation Ltd v Dumasia and anor [2021] NZSC 135 (13 October 2021)

Unsuccessful leave application – D and H guaranteed advances made by New Zealand Mortgages and Securities Ltd (NZMS) to SKKY Holdings 2015 Ltd (SKKY) – Advances were made under funding agreement relating to residential property development involving SKKY – D and H were SKKY directors - Principal contractor involved in the development abandoned the contract around April 2017 – D and H discussed issues with an NZMS director on 1 May 2017 and  there was subsequent correspondence - Dispute as to what, if anything, was agreed, but NZMS did not treat SKKY as being in default and it agreed to certain remedial work - On 13 June 2017, NZMS assigned loan to Bolter Management Group Ltd (Bolter), which was acting as trustee for Ikon Building Co-operation Ltd (Ikon) - On 14 June 2017, NZMS notified D of the assignment - Said transfer based on SKKY being in default and this had the potential to affect its own banking arrangements –

On 19 June 2017, Bolter served notices of default on SKKY and D and H - Bolter later sold property under its power of sale - Ikon, having taken an assignment of Bolter’s rights, obtained summary judgment against D and H for deficiency between the amount outstanding on the advance and what was realised on sale – D and H successfully appealed to CA – CA, inter alia, ruled default notice premature -  Ikon sought leave to appeal to SC – SC said not suggested case involved any question of general or public importance - No appearance of  miscarriage of justice - Application dismissed.

Self-represented applicant, judgment recall

Harrison v Harrison and ors [2021] NZSC 136 (14 October 2021)

Unsuccessful recall application – Self-represented Mrs H filed what described as “challenge application ex parte against [2021] NZSC 115 decision” - Although addressed to “head of bench”, SC saw it as substantially a recall application in respect of 13 September 2021 judgment dismissing her application for leave to appeal against a judgment of the Court of Appeal - Dealt with accordingly – In document Mrs H extensively criticised earlier judgment - Said key elements of the reasoning were wrong – Did not raised any issue which would warrant court recalling judgment – Application dismissed.

Murder, co-defendants, proximate cause, propensity

Martin v R [2021] NZSC 137 (15 October 2021)

Unsuccessful leave application – M and co-defendant, G, tried for L’s  murder - He had been shot with both a sawn-off shotgun and a cut-down .22 rifle – Fatal shots to the victim’s head fired from the shotgun – M and G earlier picked up  victim and drove him to an isolated area where he was killed - The two firearms were in the car and loaded when they picked victim up - When interviewed by detectives, M admitted having shot victim in the leg with the sawn-off shotgun but claimed that G had fired fatal shots – G’s position at trial was M fired fatal shots - Crown did not claim to be able to prove which of the two defendants had fired the fatal shots - Rather its position was that each of them was guilty as a party - Both found guilty at trial and CA dismissed their conviction appeals –

M applied to SC for leave to appeal – said arguments he wished to advance were of some significance - Concerned approach to be taken in joint trials where a defendant wishes to lead propensity evidence against a co-defendant – However, SC said case involved very particular factual situation and trial dynamic - If propensity evidence had any relevance, it was vanishingly small - In any event, could not realistically be suggested M’s prospects of acquittal would have been improved if the evidence had been admitted – M’s counsel made fair point that conduct of a defendant’s defence is for the defendant and in this case the applicant had a right to make his own decision as to the tactics to be adopted at trial - While this was correct, an appeal to SC would only be allowed if miscarriage could be established – M could not credibly point to any actual forensic prejudice - No risk miscarriage of justice would occur if leave refused – Application dismissed.

Self-represented applicant, security for costs dispensation

Whittington v UDC Finance Ltd [2021] NZSC 138 (19 October 2021)

Unsuccessful leave application – Self-represented W sought leave to appeal against CA Judge’s decline of his application for review of Deputy Registrar decision not to dispense with security for costs on W’s appeal to CA – Appeal was against HC decision adjudicating him bankrupt on UDC finance application - Application arose from proceedings W brought against UDC - Proceedings discontinued and, as a result, order that W pay costs of $4,590.98 to UDC - Apparently some delay in W receiving copy of costs order - Ultimately served on him - He did not comply - UDC applied for W to be adjudicated bankrupt for non-payment - W filed notice of opposition and order adjudicating W bankrupt was made after Associate Judge heard from W – W filed appeal to CA against that decision – HC dismissed application for a stay pending appeal –

CA Judge upheld Deputy Registrar’s decision not to dispense with security – Judge said Deputy Registrar correct to find that a solvent appellant would not reasonably pursue the appeal because the appeal was meritless – SC said accepted principles applied here – No question of general or public importance – No appearance of miscarriage of justice – Application dismissed.

Supreme Court of Canada

Murder, self-defence, proper jury instruction

R v Khill [2021] SCC 37 (14 October 2021)

Successful appeal from Ontario CA - In the early morning hours of February 4 2016 K shot and killed S, a young man who was breaking into his truck - Vehicle parked in K’s driveway in a rural area on the outskirts of Hamilton, Ontario - Before the shooting K’s partner awakened him and alerted him to loud noises coming from the driveway next to their bedroom window - Looking out the window K saw the dash lights of his truck were on, indicating that someone was, or had been, in the truck – K retrieved his shotgun, went outside and confronted S - Moments later, he fired two shots, killing S – When police arrived, they arrested K - He told arresting officer that he had been a soldier - Said intruder raised his hands to gun height, so he reacted as he did –

A jury said K not guilty and acquitted him - Crown appealed - CA overturned acquittal and ordered a new trial, saying jury not property instructed on the principles of self-defence. K appealed to SC -  SC said jury received no instructions from trial judge on how K’s role in the incident should inform its assessment of the reasonableness of his conduct - Was an error that had an important effect on the verdict – Here  jury may have found, for example, that K’s conduct increased risk of a fatal confrontation with S outside the home - May also have assessed K’s decision to advance into the darkness against other alternatives he could have taken, such as calling 911, shouting from the window or turning on the lights -  Those actions may have prevented the mistaken belief that S was armed and avoided the need to use deadly force – Appeal dismissed , new trial ordered.

Judicial Committee of the Privy Council

Murder, joint defendants, fresh evidence

Maharaj and ors v The State [2021] UKPC 27 (11 October 2021)

Unsuccessful appeal from Trinidad and Tobago CA - In 2001 nine people, including M (the nine), were convicted of B’s murder - State’s case based on the evidence of one witness, G - The nines’ appeal to CA was dismissed - Were refused permission to appeal against the convictions to PC but PC quashed their death sentences of death and substituted them with life imprisonment sentences - In 2011, G swore a statutory declaration in which he said evidence he gave at trial was not true - Matter referred to CA for reconsideration in light of statutory declaration - At the hearing, the nine sought to rely on the statutory declaration and other fresh evidence to suggest G gave false evidence at the trial - State also wished to adduce fresh evidence to suggest G’s retraction of his evidence was false – CA refused to admit the nines’ fresh evidence as they did not find it to be credible, and therefore dismissed the appeals – The nine appealed to PC – PC dismissed appeals against conviction but adjourned appeals against sentence pending a case to be heard in November 2021.

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