New Zealand Law Society - Supreme Court roundup 23-29 October

Supreme Court roundup 23-29 October

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

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New Zealand Supreme Court

Leave application, security for costs

McGuire v NZ Law Society [2020] NZSC 114 (20 October 2020)

Unsuccessful leave application – M sought leave to appeal from a CA judge declining review of Deputy Registrar’s decision -Deputy Registrar declined to deal with M’s application to dispense with security for costs because no jurisdiction to do so – Application’s genesis in a New Zealand Law Society standards committee decision to censure M for not paying a barrister’s invoice relating to opinion barrister provided – SC said leave criteria not met - Proposed appeal would turn on fairly commonplace application of CA (Civil) Rules to particular fact situation – Nothing to suggest SC should revisit its recent consideration of approach to security for costs - No question of general or public importance - Also, while believing there was no jurisdiction to do so, both Judge and Deputy Registrar addressed merits of M’s application - Nothing in that analysis that gave rise to the appearance of a miscarriage of justice – Application declined.

Contract, interpretation, effect of previous litigation

Savvy Vineyards 4334 and anor v Weta Estate and anor [2020] NZSC 115 (22 October 2020)

Successful appeal from CA – Appeal dealt with two questions: interpretation of grape supply agreements and how earlier litigation affected parties’ rights under the agreements - The agreements gave S an option to purchase grapes from W’s vineyards -provided that if option not exercised within prescribed time periods option would lapse - Parties disagreed about what was meant - S said it had three opportunities to exercise the option - W said it only had two - Meant that when S attempted to exercise the option on 17 November 2014, W said option had already lapsed - S went to HC - HC agreed with S’s interpretation, made a declaration to that effect and ordered an inquiry into damages - CA disagreed, favouring W’s interpretation – Earlier litigation arose from notice W gave on 20 December 2010 purporting to terminate the agreements - HC said December 2010 notice was invalid meaning agreements remained on foot - CA overturned that decision - S then appealed to SC which restored HC judgment – W agreed its December 2010 notice was a wrongful repudiation of the agreements – However, chain of events meant that for the period after CA judgment and before SC judgment, there was a declaration that the agreements were terminated - In these subsequent proceedings, S said W’s wrongful repudiation caused loss for which W should be liable – W said it did not cause loss - Rather, W said S sought compensation for earlier litigation – Earlier litigation itself caused the damage and damages were not available – HC and CA agreed with W on this – S appealed to SC on interpretation of grape supply agreements and how earlier litigation affected parties’ rights under the agreements – SC unanimously agreed with HC on agreement meaning - Contrary to CA judgment, S’s November 2014 notice given in time and effective- SC said it applied settled approach to contractual interpretation of commercial contracts – Four judges took a different view to the lower Courts on the effect of the earlier litigation - Said as a matter of law, the earlier CA judgment relating to the December 2010 notice of termination had prevented S from giving notice to exercise the options – Appeal allowed.

Family law, parenting arrangements, security for costs

K v Z [2020] NZSC 116 (27 October 2020)

Unsuccessful leave application - K and Z engaged in dispute concerning the parenting arrangements for their four children since 2007 - Current litigation focused on guardianship and parenting arrangements for the youngest child – K sought leave to appeal against a CA decision dismissing application for an extension of time to appeal from HC decision to decline to rescind orders for payment of security for costs and that application for leave to appeal to the HC be struck out - Underlying appeal before HC related to Family Court procedural decisions – Application did not meet the leave criteria – Related to particular circumstances of the case and to a preliminary decision in circumstances where separate HC judgment gave K substantive outcome she wanted – Also not in the interests of justice to hear proposed appeal Application declined.

Supreme Court of Canada

Contract, privity, new agreement

Owners, Strata Plan LMS 3905 v Crystal Square Parking Corp [2020] SCC 29 (23 October 2020)

Unsuccessful appeal from British Columbia CA - Crystal Square was a large complex comprising a mall, office tower, residential tower, hotel, parking garage, police office, and cultural centre - Each was in a different “air space parcel” - Air space parcels parts within a whole- Could be separate buildings, or parts of a building (like specific floors in a large tower) - When Crystal Square was built, developer signed an Air Space Parcel Agreement with City of Burnaby - Agreement provided for access to parking for each air space parcel and how much each parcel would pay – Office tower a strata tower made up of several units or “strata lots” - Different people owned strata lots but had shared areas - Strata lot owners were strata corporation members – Strata corporation managed and maintained shared areas and services - Strata corporation a legal person and could sign contracts and own property - Here, strata corporation did not exist when Air Space Parcel Agreement signed – Strata corporation members still used the parking garage and paid like the agreement said - Eventually, owners felt the parking cost was too high - Realised they never formally signed the Air Space Parcel Agreement - Said they did not agree to the terms and agreement did not apply to them – Crystal Square Parking owned and ran the parking garage - It said the strata corporation accepted the agreement by following the terms for a period - Trial judge said strata corporation did not sign any agreement - Said agreement between the developer and the city could not be enforced against strata corporation – CA said strata corporation made a new agreement about parking - New agreement had same terms as the one between the developer and the city – Corporation appealed to SC – SC Majority agreed with CA – Said strata corporation made a new agreement and it could be enforced - New agreement had same terms as those in Air Space Parcel Agreement – SC used common law contract interpretation rules to decide case - Owners could not be forced to follow the original Air Space Parcel Agreement – No privity of contract – However, strata corporation made and accepted a new agreement - Owners had to follow that – Crystal Square Parking made parking passes available to the strata owners - Owners used the parking spots and paid the fees original Air Space Parcel Agreement set out - No reason for Crystal Square Parking to think the strata owners did not agree to contract terms – Appeal dismissed.

Hong Kong Court of Final Appeal

Judicial review, consider and advise

Chan Ka Lam v Country and Marine Parks Authority [2020] HKFCA 33 (9 October 2020)

Successful appeal from CA - As part of government measures to protect country park enclaves, Authority prepared working paper for consultation and advice of the Country and Marine Parks Board (Board) - Working Paper provided for action plan to assess the suitability of including 54 enclaves into their surrounding country parks or for protection by other measures - Of enclaves assessed, 6 deemed not appropriate for inclusion – L applied for judicial review of Authority decision not to consult Board when determining that the 6 enclaves should not be incorporated - Section 5(1)(b) of the Country Parks Ordinance said Board “shall … consider and to advise the [Authority] on, the policy and programmes prepared by the [Authority] in respect of country parks and special areas, including proposed country parks and special areas” - First Instance Court said words “policy” and “programmes” referred to formulation of principle (as policy) and making of plan or scheme (as programme) on a high generality level - Said Assessments were neither “policy” nor “programmes” in respect of country parks – CA dismissed L’s appeal - That Assessments were conducted with the same approach and with the same set of criteria did not mean that each should be viewed together to form a programme – L appealed to FCA on two questions of law - First, under what circumstances did Authority have a duty to consult the Board? Secondly, to what extent, if any, did Authority have duty to consult Board regarding Assessments? FCA unanimously allowed the appeal - Decision quashed and Authority required to consult Board on suitability of incorporating each of the 6 Enclaves into their surrounding country parks – Among other things, CFA said Section 5(1)(b) of the Ordinance had to be interpreted by reference to its context and purpose. The respective functions of Authority and Board clearly set out in the Ordinance and overlapped regarding designation of areas as country parks - Clear link existed between Authority’s duty regarding designating areas as country parks and Board participation in this matter - Authority and Board were only relevant persons involved in determining whether area should be recommended to the Chief Executive for designation as a country park – Appeal allowed.

United Kingdom Supreme Court

Judicial review, immigration, removal of sponsor’s licence

R (on the application of Pathan) v Secretary of State for the Home Department [2020] UKSC 41 (23 October 2020)

Successful appeal from CA – P applied for leave to remain as a Tier 2 (General) Migrant in the UK - Application was supported by a valid certificate of sponsorship (CoS) from his employer, Submania Limited (Submania) - Home Office revoked Submania’s sponsor licence while application outstanding - Home Office did not inform P - Three months after revoking Submania’s licence, rejected his application because he no longer had a valid CoS from a licensed sponsor so had not fulfilled conditions for leave grant - P sought administrative review of decision to reject his application and a 60-day period to enable him to provide a fresh CoS, - Decision maintained - P then applied for judicial review in the Upper Tribunal - Upper Tribunal dismissed application, and CA dismissed his appeal - Appealed to SC – SC unanimously allowed appeal - Said Home Secretary breached her procedural duty to act fairly by failing promptly to notify P that sponsor’s licence had been revoked - Majority said Home Secretary not under a further duty to provide a period of time following notification to enable P to react to the revocation of his sponsor’s licence – Two Judges said the law did impose this further duty on the Home Secretary – Appeal allowed.

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