New Zealand Law Society

Navigation menu

Supreme courts roundup, 14 to 20 February 2020

20 February 2020

Decisions, proceedings and news from the highest courts in some common law jurisdictions in the last week are as follows:

Supreme Court of New Zealand

Thomas v Thompson [2020] NZSC 7 (19 February 2020). Unsuccessful application for leave to appeal.

The applicant, Mr Thomas, is the liquidator of DD Construction Ltd (DDC) - DDC was engaged to undertake repairs to unit-titled townhouses owned by the respondent, Mr Thompson – The townhouses had weathertightness issues and remedial costs exceeded the estimates of DDC – Mr Thomson refused to pay four invoices amounting to just over $20,000 – The parties agreed that sum would be held by a solicitor on trust - Mr Thomson asserted that the $20,000 was not owing and also sought damages against DDC of over $260,000 – The applicant refused to agree to the release of the funds - The respondent then applied to the High Court under s 284(1)(b) of the Companies Act 1993 for review of the decision of the liquidator – The HC decided the decision was unreasonable and overturned it – The applicant sought to argue that the decision was commercially prudent and that the Court of Appeal was wrong to take into account the fact that he had not obtained legal advice - Whether the application meets the criteria in s 74 of the Senior Courts Act 2016.

Rogan v Kaipara District Council [2020] NZSC 8 (19 February 2020). Unsuccessful application for an extension of time to apply for leave to appeal against a decision of the Court of Appeal.

The proceedings related to recovery of rates owing by the applicants commenced by the first respondents – The applicants were involved in a rates revolt – In the DC the applicants argued that the Council did not comply with ss 45 and 46 of the Local Government (Rating) Act 2002 (the Act) – The DC Judge concluded that those defences were precluded by s 60 which provides that a ratepayer must not refuse to pay rates on the grounds that the rates are invalid unless that person brings proceedings in the High Court challenging the validity of the rates on the ground that the local authority is not empowered to set or assess rates on the relevant rating unit – The applicants appeal to the HC was dismissed – The Court of Appeal determined that the DC and HC were incorrect in relation to s 60, but found that the s 45 and 46 defenced failed – The applicants argued that the Court of Appeal should have remitted the case to the DC and that a breach of natural justice occurred – They unsuccessfully applied to the Court of Appeal to recall its judgment, and then twice unsuccessfully applied to the Court of Appeal to reopen its judgment – The application for leave to appeal was nine months late – The applicants made a deliberate decision to pursue various fruitless steps to challenge the Court of Appeal decision, Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 – Whether the application was so compelling that it warranted an extension of time despite the extensive delay.

Henry v R [2020] NZSC 10 (19 February 2020). Successful application for an extension of time to apply for leave to appeal. Unsuccessful application for leave to appeal.

The applicant was convicted of a number of sexual and violent offences against his former partner, E, following a jury trial – He plead guilty to attempting to pervert the course of justice by sending text messages to E to ask her to drop the charges – He was sentenced to ten years and six months imprisonment – His appeal against conviction to the Court of Appeal was dismissed, but the appeal against sentence was allowed in part and the sentence was reduced by six months – On appeal to the SC the appellant argued that some evidence of bizarre statements and behaviour made in his evidential video should not have been admitted because it was unfairly prejudicial – He argued other evidence by the complainant should not have been admitted because he was not charged in relation to the conduct described in that evidence – The appellant wanted the SC to consider whether statements and conduct of a mentally ill defendant should be admitted (in relation to the bizarre statement evidence) - The Court of Appeal considered the earlier incidents were non-consensual and saw the evidence as admissible, Mahomed v R [2011] NZSC 52, [2011] - Whether any point of public importance arose from the complainant giving evidence of that aspect of the incident – Whether there was any reason for the SC to address this issue again.

Gebbie v R [2020] NZSC 9 (19 February 2020). Unsuccessful application for leave to appeal.

The applicant was found guilty after a jury trial of criminal harassment and sentenced to community detention and six months’ supervision, and a protection order was made in favour of the applicant’s former partner – The applicant unsuccessfully appealed to the Court of Appeal against conviction and sentence on the grounds that delays had occurred prior to his trial in disclosure of a Family Court file – The Court of Appeal considered the delay was not deliberate and there was nothing in the file that might have been put to the complainant in cross-examination – On appeal against sentence the applicant argued that s 123B of the Sentencing Act 2002 did not allow a Judge to make a protection order in circumstances where proceedings for the making of a protection order had already been before the Family Court – The Court of Appeal rejected this as legally incorrect – Whether any matter of general or public importance arose from the case – Whether any miscarriage of justice might occur if the appeal was not heard.

Staite v Kusabs [2020] NZSC 6 (18 February 2020). Unsuccessful application for leave to appeal a decision of the Court of Appeal. Leave granted to amend the notice of application for leave to appeal.

The Court of Appeal set aside an order for rectification made by the HC of a lease of Māori freehold land executed by the Whaoa Trust in favour of the Tumunui Trust - There were discussions between the parties as trustees of their respective ahu whenua trusts in the late 1980s about the Tumunui Trust acquiring the then current lease over the land - Tumunui went into possession of the land in mid-1989 and began work to convert the dry stock farm to a dairy unit before any formal arrangement was concluded – No assignment of the lease was executed, rather discussions morphed into negotiations on terms on which Tumunui Trust would take a new lease, which was executed on 1994 - In 2009 the Whaoa Trust sought rescission of the lease on the basis that the involvement of Edward Moke, a trustee of both trusts, in discussions over the lease was a breach of Mr Moke’s fiduciary duty of loyalty to the Whaoa Trust of which the Tumunui Trust had knowledge – The HC found that Mr Moke was in breach of duty of loyalty to the Whaoa Trust, but not responsible for an error in drafting the rental calculation provision – The HC declined the order for rescission of the lease and made and order for rectification – The Court of Appeal allowed the appeal by the Tumunui Trust and set aside the order for rectification because the evidence did not support a finding that the parties had a common intention that the rental provision in the lease should have been in the revised form the Judge had ordered – The applicants sought leave to amend the application to add a further factor which the applicants said supported their argument - The applicants argued that they should not have been left without a remedy – The respondents opposed the grant of leave to amend the application on the basis that that this amendment would widen the grounds and have the SC undertake an analysis that was not a basis for the judgments below - Whether it was in the interests of justice for the matter to be heard in the SC, given that these questions were not heard in the Court of Appeal.

Lincoln v New Zealand Law Society [2020] NZSC 4 (14 February 2020).Unsuccessful application for an extension of time for leave to appeal against a decision of the Court of Appeal.

The High Court held that the applicant did not satisfy the character requirements to be admitted as a barrister and solicitor of the High Court of New Zealand – No adequate excuse was provided for the late application – Whether the criteria for leave were met – Whether the decisions below raised any questions of principle or whether there was any risk of a miscarriage of justice.

Woods v Police [2020] NZSC 3 (13 February 2020). Successful application for leave to appeal.

Whether the Court of Appeal was correct to dismiss the applicant’s appeals.

High Court of Australia

No decision released during this period

Supreme Court of Canada

No decisions released during this period

Hong Kong Court of Final Appeal

No decisions released during this period

Judicial Committee of the Privy Council

No decisions released during this period

Supreme Court of Ireland

No decisions released during this period

Singapore Court of Appeal

Senda International Capital Ltd v Kiri Industries Ltd [2020] SGCA(l) (12 February 2019).Unsuccessful appeal against Singapore International Commercial Court’s (SICC) decision that no minority discount should be factored into the valuation of the of them first respondent’s shares in the sixth respondent. Partially successful appeal, awarding 50 percent of costs in the SICC Suit No3 of 2017 to the sixth respondent.

Senda was ordered by the SICC to buy out Kiri Industries shares in DyStar Global Holdings (Singapore) Pte Ltd - This was Senda’s appeal against the SICC’s decision that no minority discount should be factored into the valuation of Kiri’s shares in DyStar.

Lee Pheng Lip Ian v Chen Fun Gee [2020] SGCA 6 (10 February 2020). Unsuccessful appeal against a decision of the High Court.

The HC dismissed an application for leave to commence judicial review proceedings – The appellant’s private clinic had been offering some services which were alleged to be in contravention of the relevant regulations and the Ministry of Health refused to renew the clinic’s licence unless it complied with the regulations - The Singapore Medical Council (SMC) lodged a complaint against the appellant in relation to his alleged offering of non-mainstream medical services and the prescription of bio-identical hormone replacement therapy and a wide range of plant products - Thirteen extensions of time (ETO’s) were successfully sought by the Complaints Committee (CC) during the course of a preliminary inquiry conducted under the disciplinary framework of the Medical Registration Act – The HC Judge considered that s 42 (2) of the Medical Registration Act (MRA) to be a directory provision and that applications for grants of EOT cannot be challenged on the grounds of illegality and irrationality – On appeal to the SGCA the appellant submitted that the Judge should not have delved into the merits of the case and should have adopted a multi-faceted inquiry instead of a binary mandatory or directory classification - Whether there was substantial compliance with the provision - Whether the non-compliant proceedings were in good faith - Whether there were other consequences of non-compliance and invalidity – Whether there was prejudice to the appellant.

Liberty Sky Investments Ltd v Aesthetic Medical Partners Pte Ltd [2020] SGCA 7 (10 February 2020). Unsuccessful appeals from the High Court.

De Goh Seng Heng (Goh) is a medical doctor who founded Aesthetic Medical Partners Pte Ltd (AMP) in 2008 - Liberty Sky Investments Limited (LS) is an investment vehicle incorporated in the Seychelles - Gong Ruilin (Gong) is LSI’s sole director and shareholder - Mr Lin Lijun (Lin) is Gong’s husband and LSI’s representative – In 2014, LSI executed a sale and purchase agreement to purchase 32,049 shares in AMP from GOH  - Gong and Lin did not have time to perform due diligence on AMP and so requested to be given a guarantee on their investment capital as well as a internal rate of return of 15 percent per annum to protect their investment – The appellant claims that Goh made fraudulent misrepresentations to Gong that there would be a trade sale of all AMP shares to an important person in Singapore and if that trade sale did not materialise, Goh would list AMP through an initial public offering (IPO) on the Singapore Exchange - Neither the trade sale nor the IPO occurred – Whether the Trade Sale and the IPO representations were false, and Goh had made them fraudulently – Whether to allow the applicants leave to adduce further evidence – Whether Goh had the authority to enter into the Guarantee on behalf of AMP, and that LSI and AMP had agreed to the Guarantee “as stated in the SPA”.

Supreme Court of the United Kingdom

R v Secretary of State for the Home Department [2020] UKSC 4 (12 February 2020). Unsuccessful appeal from the Court of Appeal.

The claimant, IJ was made subject to a curfew restriction between the hours of 23.00 and 07.00 for a period between 3 February 2014 and 14 July 2016, pending potential deportation - The curfew was imposed by those acting on behalf of the Secretary of State purportedly pursuant to paragraph 2(5) of Schedule 3 to the Immigration Act 1971 (as it then stood) - However, in light of subsequent Court of Appeal authority, it was accepted by the Secretary of State that paragraph 2(5) of Schedule 3 to the Immigration Act 1971 did not confer a power to impose a curfew - Consequently, the curfew imposed was unlawfully imposed - IJ issued judicial review proceedings – The High Court held that the curfew did amount to a detention for the purposes of the tort of false imprisonment and damages were assessed at £4,000 - The Secretary of State appealed to the Court of Appeal against the decision that IJ was entitled to damages for false imprisonment - IJ cross-appealed against the amount of the award of damages on the grounds that a much greater award should have been made - The Court of Appeal dismissed both the appeal and the cross-appeal - Whether the imposition of a curfew requirement on a person subject to deportation amounts to ‘imprisonment’ for the purpose of establishing the tort of false imprisonment.

Micula v Romania [2020] UKSC 5 (19 February 2020). Successful cross appeal from the Court of Appeal. The SC lifted the stay.

The dispute between the parties began with an arbitration commenced pursuant to a bilateral investment treaty that Romania had entered into with Sweden - On 11 December 2013, an ICSID Tribunal issued an award in favour of the investors against Romania - The European Commission, which also intervened in the arbitration and each stage of the present proceedings, issued a decision on 30 March 2015 that, amongst other things, declared that the payment of the Award would constitute new State aid contrary to Article 107(1) of the Treaty on Functioning of the European Union and prohibited Romania from making any payment under the Award - At the time, the Award had already been registered by the English High Court - Romania thus applied to set aside the order registering the award or, in the alternative, for a stay of its enforcement - The investors cross-applied for security - The High Court granted Romania a stay of enforcement and dismissed the investors’ cross-application - The investors appealed both the grant of the stay (Stay Appeal) and the dismissal of their application for security (Security Appeal) - The Court of Appeal dismissed the Stay Appeal but upheld the Security Appeal and ordered Romania to provide security of GBP 150 million - Romania has already been granted permission to appeal the Security Appeal - The Investors  now sought permission to cross-appeal on the Stay Appeal – Whether the High Court has the power to stay the enforcement of an award given in accordance with the procedure in the International Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID).

In the matter of an application by Deborah McGuiness for Judicial Review [2020] UKSC 6 (19 February 2020). Decision that the SC did not have jurisdiction to hear the appeals from the Court of Appeal.

On 03 March 1998 Mr Stone received a sentence of life imprisonment - On 17 February 1999, the Sentence Review Commissioners made a declaration of eligibility of early release - On 24 July 2000, Mr Stone was released on licence - On 24 November 2006, Mr Stone carried out an attack on at Parliament Buildings, Stormont - On 06 September 2011, the Sentence Review Commissioners revoked the licence upon which Mr Stone had been released on 24 July 2000 - On 29 July 2013, in accordance with the statutory regime, the Lord Chief Justice of Northern Ireland determined that the tariff in respect of the life sentence imposed on 03 March 1989 should be 30 years’ imprisonment - By a letter dated 20 September 2017, the Prison Service made a formal statutory referral of Mr Stone’s case to the Parole Commissioners, intimating that the tariff expiry date would be 21 March 2018 - The Divisional Court quashed this decision and certified an arguable point of law of general public importance - Where a life prisoner convicted of inter alia terrorist murders secures early release on licence under the Northern Ireland (Sentences) Act 1998 (1998 Act) and such licence is revoked due to fundamental breaches occasioned by further terrorist offending while on release and the prisoner is convicted of such further offences, receiving no effective additional sentence, having regard to the provisions of the 1998 Act and the Life Sentences (NI) Order 2001 is the prisoner’s judicially determined "tariff" to include the period of his release on licence.

Supreme Court of the United States

No decisions released during this period

Last updated on the 20th February 2020