New Zealand Law Society - Supreme Court Roundup 20 to 27 August

Supreme Court Roundup 20 to 27 August

This article is over 3 years old. More recent information on this subject may exist.

Tax, Generous discount of sentence

Barton v R [2020] NZSC 84 (21 August 2020)

Unsuccessful Leave application - jury convicted B of 10 charges of knowingly failing to file a tax return with the intention of evading his tax obligations - DCJ sentenced him to three years, two months and two weeks’ imprisonment- CA upheld sentence – B sought leave to appeal to SC – main grounds that the sentence imposed manifestly excessive and CA erred to not give further credit for his payments towards his tax arrears and his contribution to the community - Repayment he said was evidence of his serious efforts to meet his obligations – SC accepted Crown submissions that  reparation order not appropriate and not likely any further reparation would result in a higher discount – DCJ had described discount as “generous” – CA said was “substantial” – SC also accepted Crown submission that B had many opportunities over the past five years, including through adjournments of court proceedings, to repay his tax debt – Issues B sought to raise related to particular circumstances - No issue of general or public importance arose – No risk of miscarriage of justice – Application dismissed.


Application to appoint daughter as litigation guardian. “incapacitated person”

Harrison v Harrison and anor [2020] NZSC 85 (20 August 2020)

Unsuccessful leave application – PH applicant, a self-represented appellant in CA -Due to health issues, she applied for CA to appoint her daughter as her litigation guardian in the appeal – CA judge exercising the power of a single judge under s 49(3) of the Senior Courts Act 2016, declined the application on the ground that Ms Harrison not an “incapacitated person” as High Court Rules 2016 required – She then applied to review the Judge’s decision - Three judge panel declined application – Agreed with single judge there was no suggestion on the documents provided that PH incapable of understanding the issues or giving instructions – PH applied for leave to appeal that decision to SC - Said her right to access civil justice has been denied – Referred to New Zealand Bill of Rights Act 1990 , Human Rights Act 1993, the International Covenant on Civil and Political Rights, the Convention on the Rights of Persons with Disabilities, and the rule of law – SC said no matter of general or public importance, or that a substantial miscarriage of justice may have occurred - CA definition of “incapacitated person” and nothing PH raised suggested Court erred in its decision- Application dismissed.


United Kingdom Supreme Court

Restraint of trade, Esso case, “pre-existing freedom”, “trading society” tests

Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd [2020] UKSC 36 (19 August 2020)

Successful appeal from Northern Ireland CA – S developed shopping centre on land he owned in Londonderry - Wanted “anchor tenant” to attract others - Granted a lease to D, subsidiary of  Dublin-based group of retail companies -  In lease he covenanted that any development on the site would not contain a unit of 3,000 square feet or more whose purpose was the sale of food or textiles - D built its store and the centre opened - S later assigned his freehold interest in the land, together with the burden of the covenant, to P a property holding company which he managed and which he and his wife owned - The success of shopping centre subsequently declined - P brought a claim in Northern Ireland HC seeking (among other things) declaration that the covenant was unenforceable at common law – HC Judge dismissed the claim – Said  that, following a 1968 House of Lords decision (“Esso”), it was necessary, in order to determine whether the covenant engaged the restraint of trade doctrine, to ask whether S or P had, on entering the covenant, surrendered a pre-existing freedom they had to use the land – Said S had surrendered such a freedom, but that P had not - Covenant engaged doctrine only until the assignment to P -  CA allowed P’s appeal, saying doctrine had been engaged both before and after the assignment – D appealed to SC – SC unanimously allowed appeal and dismissed P’s common law claim - Court’s duty to examine Esso decision in light of questions of logic and public policy and ask whether the surrender of a pre-existing freedom an acceptable criterion for engagement of restraint of trade doctrine -  Esso case concerned covenant where petrol station owner  entered into a “solus agreement” – HL majority formulated  “pre-existing freedom” test – One Law Lord put forward a different test, the “trading society” test, under which a covenant restraining land use did not engage the doctrine if covenant a type which had “passed into the accepted and normal currency of commercial or contractual or conveyancing relations” and which may therefore be taken to have “assumed a form which satisfies the test of public policy”  -  Applying this test, he, too, concluded that the solus agreements engaged the doctrine - Pre-existing freedom test had received intense academic criticism - . Trading society test, in contrast, fitted with doctrine - SC used ability to depart from previous HL decision - Departed from pre-existing freedom test formulated in Esso– Here, applying trading society test to facts was straightforward - No need to send back to  lower court – Appeal allowed.

Lawyer Listing for Bots