New Zealand Supreme Court

Right of way, modification effects

Paihia Property Holdings Corporate Trustee Ltd v Body Corporate 190356 and anor [2022] NZSC 12 (24 February 2022)

Unsuccessful leave application – PP sought leave to appeal against CA allowing BC and CY appeal from HC - CY owned and operated resort comprising 28 principal units – BC  owned common property and land on which resort operated -  PP owned property next door to resort – Dispute over right of way easements – HC did not accept  modification of right of way would make access to resort troublesome, compromise parking and an existing resource consent, or increase noise – HC made order PP sought modifying easements – CA agreed with HC  on matters such as modification  effects on parking, noise – But allowing resort’s appeal, saw more significant questions relating to PP’s future development of land and likelihood there would be building close to boundary if right of way relocated –

First proposed appeal ground whether consideration of “incidental benefits/effects” part of New Zealand law; Second, whether reliance on such benefits/effects in this case breached principles of natural justice; Third, PP wished to argue CA wrong to draw inference  previous owner and operator of benefited land considered current location of easements as optimal – SC did not believe any proposed appeal ground raised questions of general or public importance or of general commercial significance – Rather, proposed appeal would require considering CA application of law to particular facts here – No appearance of miscarriage of justice in civil sense – Application dismissed.

Plant variety rights, infringement, permanent injunction

Gao and ors v Zespri Group Ltd [2022] NZSC 13 (1 March 2022)

Unsuccessful leave application – Z held exclusive plant variety rights (PVRs) under Plant Variety Rights Act 1987 (PVR Act) to propagate for commercial production G3 and G9 varieties of golden kiwifruit - Between 2013–2014, Zespri granted licenses to grow G3 and sell fruit produced (G3 License Agreements) to G, X and their company – Z later commenced proceedings against the applicants, alleging they had engaged in conduct breaching Z’s exclusive PVRs in New Zealand and G3 License Agreements – HC awarded damages of $14,894,100 against G and company each for acts infringing Z’s New Zealand PVRs and damages of $10,824,300 against G and X jointly for acts infringing Z’s contractual rights – HC also granted Z permanent injunction against G, X and company restraining them from further infringing Z’s PVRs in G3 and G9 varieties – Their appeal to CA appeal largely unsuccessful, only succeeding on narrow liability and quantum points –

SC said proposed appeal related to particular circumstances - No point of general or public importance arose – Nor do the submissions point to any matters that would suggest that largely concurrent findings of Courts below may have been wrong – Application dismissed.

FTA, farm sale, capacity representation, “no-reliance” clause, causation, contribution

Graham and anor v Shabor Ltd [2022] NZSC 14 (1 March 2022)

Unsuccessful leave application – G sought leave to appeal part of CA judgment allowing Shabor Ltd (S) appeal – Proposed to raise various questions about approach taken to S’s claim under Fair Trading Act 1986 (FTA) for misleading or deceptive conduct – G advertised farm for sale as “comfortably winter[ing] 7,500 plus stock units with capacity for more” (Capacity Representation) – Despite S’s  efforts to increase carrying capacity became clear farm could not carry 7,500 stock units over winter – S brought proceedings against G for misrepresentation and breach of s9 FTA  –

HC said Capacity Representation misleading as actual carrying capacity materially lower – But FTA claim failed because HC said “no-reliance” clause broke chain of causation between Capacity Representation and S’s loss –

S successfully appealed to CA against finding that no-reliance clause broke causation chain – CA agreed with HC that S “failure to include some contractual protection in the tender justified a reduction” in damages – CA reduced damages award by 30 percent – Said HC put more weight on S’s conduct than warranted –

On leave application, SC agreed with S – Whether purchaser misled by Capacity Representation a question of fact, as both HC and CA recognised – First proposed appeal  ground did not raise any matters of general commercial significance but, rather, complaint directed to assessment of particular facts – On second proposed appeal ground, SC said case not an appropriate vehicle for Court to consider place of disclaimer clauses in claims under FTA – Final proposed ground challenged CA assessment of appropriate reduction in damages on specific facts – Leave criteria not met – Application dismissed.

Judicial Committee of the Privy Council

1888 Order, prescription, statutory powers

Ciel Ltd and anor v Central Water Authority [2022] UKPC 2 (14 February 2022)

Unsuccessful appeal from Mauritius SC - Réunion allocated shares in water rights in Tatamaka river under a Mauritius Supreme Court  Order in 1888 (1888 Order) – Original Order lost and no copies of it existed – Additional temporary rights granted in 1939, although Supreme Court then attached conditions - Réunion built a canal (Réunion canal) by which it abstracted water from Tatamaka River – Réunion formed partnership with another company, transferring its water rights to partnership – Réunion sold part of its land to CIEL – TKL was a tenant on that land – TKL used waters from the river, via Réunion canal, to carry on its knitwear business, which involved dyeing –

CWA said entitled to payments for TKL's use of water for industrial purpose - TKL and CIEL said charges not due because: (i) they owned water pursuant under 1888 Order or by prescription; (ii) CWA did not supply water for purpose of its statutory powers to charge for water use; and (iii) CWA’s claim barred by prescription –

PC unanimously dismissed appeal – Said Rivers and Canals Act 1863 governed water rights – Act provided rivers were public property while waters in a canal belonged to those who paid for its construction (which in this case was Réunion) – TKL and CIEL could not invoke rights granted in 1888 Order - Had not proved the terms of those rights, and PC could not assume rights were unconditional simply because 1888 Order lost - Since rivers were public property, Réunion’s right to a share in the river waters not a private right of property that it owned and could sell or transfer - 1888 Order merely conferred right to use water for irrigation and then return it to river – TKL used water for industrial purposes rather than for irrigation – It did not help case that TKL used waters from the Réunion canal, rather than the river itself – No distinction in Mauritian law between waters abstracted from river in canal and waters in river itself - Still had to be shown that waters in canal were lawfully obtained from river – TKL and CIEL failed to show this – River waters formed part of public domain and could not be acquired by prescription under Mauritian law –

Central Water Authority Act 1971 (1971 Act) set up CWA – CWA had power to levy charges for water supply but not regarding existing water rights – PC rejected argument that CWA could not recover charges for water TKL used – Regulations made under 1971 Act permitted CWA to receive "any money properly accruing to the Authority from any other source" – Constituted an independent source of power for CWA to charge for water supply – PC agreed with SC that CWA therefore entitled to charge TKL for water use –

Prescription did not bar CWA's claim for charges against TKL – Ordinary 10-year period under Civil Code of Mauritius applied – Shorter three-year period, which applied to periodic payments payable in pre-agreed fixed amounts, not applicable because there no evidence of any such agreement – Appeal dismissed.