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Supreme courts roundup, 26 July - 1 August 2019

01 August 2019

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

Ellis v R [2019] NZSC 83 (31 July 2019). Successful application for extension of time for leave to appeal. Successful application for leave to appeal.

The appellant was convicted in the HC in 1993 of 16 counts of sexual offending against seven child complainants who all attended the Christchurch Civic Childcare Centre where the appellant was employed - The appellant sought leave to appeal against the decision of the Court of Appeal dismissing his appeal against conviction - Whether a miscarriage of justice occurred in this case.

Taueki v R [2019] NZSC 82 (26 July 2019). Unsuccessful application for leave to appeal from the District Court.

The applicant was charged with intimidation, and two counts of threatening to kill – The charges relate to interactions between the applicant and three complainants as he was leaving the Levin Court after a Maori Land Court hearing – The applicant unsuccessfully sought to have the charges dismissed under s147 of the Criminal Procedure Act 2011 on the basis there was no case to answer –- The applicant argued a breach of the Treaty of Waitangi had been established which affects the ability of the Crown to rely on sovereignty in these circumstances and that the Treaty breach arose from the SC’s earlier decision determining that the applicant was not in peaceable possession of ancestral land (in the area of Lake Horowhenua) and to an earlier decision of the HC ruling that the DC was wrong to dismiss a charge of trespass in relation to buildings situated on Horowhenua Block – The applicant argued that the DC judge did not have jurisdiction to dismiss the s147 application - Whether there were exceptional circumstances to justify a direct appeal from the DC to the SC.

Rangitira Developments Ltd v Royal Forest and Bird Protection Society of NZ Incorporated [2019] NZSC 81 (26 July 2019). Leave to appeal from the Court of Appeal revoked.

In February 2019, the SC granted leave to appeal against a Court of Appeal decision, the approved question being whether the Court of Appeal erred in setting aside the declarations made in the judgment of the HC – It now appears that the agreed statement of facts presented in the HC may have contained a significant error – The case involves a water reserve and the agreed statement of facts said that the reserve is a Local Purpose (water conservation) Reserve – Counsel for the appellant discovered that the reserve had not yet been classified so that the appeal was currently moot.

Scott v Williams [2019] NZSC 80 (25 July 2019).Unsuccessful application for extensions of time for applying for leave to appeal against a decision of the High Court.

The parties have been involved in a dispute about relationship property since 2009 – A s15 of the Property Relationships Act 1976 award of $850,000 was made in the Family Court in favour of Ms Scott, vesting the family home in Ms Scott  – The HC allowed the appeal, overturned the vesting order and reduced the s15 award to $280,000 – The Court of Appeal dismissed the appeal against the HC decision, except for increasing the s15 award to $470,000 – The SC restored the vesting order and increased the S15 award to $520,000 and ordered Ms Scott to pay Mr Williams costs of $25,000 – Whether there were exceptional circumstances justifying a direct appeal to the SC.

Kwant v R [2019] NZSC 79 (25 July 2019). Unsuccessful application for leave to appeal against a decision of the Court of Appeal imposing a sentence of preventative detention.

The applicant was sentenced to nine years imprisonment in 2000 for sexual offending against young children – While in prison the applicant undertook extensive therapy and was released on parole in 2006 – The current indecent assaults offending took place between 2015 and 2017 – Whether the sentence imposed was manifestly excessive and overly punitive – Whether there was any appearance of a miscarriage of justice in the Court of Appeal’s assessment of the case.

High Court of Australia

No decisions released during this period

Supreme Court of Canada

R v Stillman [2019] SCC 40 (26 July 2019). Unsuccessful appeal (majority) from the Court Martial Appeal Court of Canada.

The accused was charged with offences under s130(1)(a) of National Defence Act, which transforms criminal and other federal offences into service offences triable by military justice system — Accused was denied jury trial based on military exception to constitutional right to trial by jury for offences where maximum punishment is imprisonment for five years or more — Whether s130(1)(a) of National Defence Act is inconsistent with constitutional right to trial by jury in its application to serious civil offences — Whether service offence tried under s130(1)(a) engages military exception such that right to trial by jury may be denied — Canadian Charter of Rights and Freedoms, s11 (f) - National Defence Act, R.S.C. 1985, c.N‑5, s. 130(1)(a).

Hong Kong Court of Final Appeal

HKSAR v C.T [2019] HKFCA 26 (25 July 2019). Unsuccessful appeal from the Court of Appeal.

The appellant was charged with five counts of raping a girl (X) when her mother (Y) was not home – The appellant contended the whole case was fabricated and that Y had abetted X to falsely accuse him on rape in order to extort money from him – The appellant was convicted on counts 1 to 4 by a majority and unanimously acquitted on count 5 and was sentenced to 10 years imprisonment – Whether the standard direction to the jury to consider each count separately should be qualified in cases of sexual offences where the only direct evidence of the commission of the offences came from the complainant – Whether the different verdicts were inconsistent such as to necessitate intervention on appeal.

Judicial Committee of the Privy Council

Skandinaviska Enskilda Banken AB v Conway [2019] UKPC 36 (29 July 2019).  Unsuccessful appeal from the Court of Appeal for the Cayman Islands.

Weavering was incorporated in April 2003 as an open-ended investment company, established as an exempted company with limited liability under the law of the Cayman Islands - SEB held redeemable "Participating Shares" in Weavering as nominee on behalf of two Swedish mutual funds - On 9 and 28 October 2008, SEB gave notices of redemption of its shares in accordance with Weavering’s offering memoranda - On 19 December 2008, Weavering paid SEB US$1,096,903.58 in respect of the first notice; on 2 January 2009 it paid SEB 25% of the amount due in respect of the second notice, US$1,780,214.29; and on 11 February 2009 the Company paid SEB the remaining 75% due in respect of the second notice, US$5,340,643.47 - On 5 March 2009, Weavering’s directors became aware of the true nature of certain interest rate swaps Weavering had entered into and their likely effect on its solvency - The directors resolved to suspend determination of the net asset value and the issue and redemption of shares with immediate effect - On 19 March 2009, Weavering entered liquidation - At first instance, Clifford J declared Weavering’s payments to SEB invalid as preferences over other creditors of the Company under s.145(1) of the Cayman Islands Companies Law and ordered SEB to pay an equivalent amount to the JOLs together with interest and costs - The Cayman Islands Court of Appeal dismissed SEB’s appeal - Whether certain payments made following receipt of share redemption notices constitute preferences contrary to s145(1) of the Cayman Islands Companies Law - Whether a defence of change of position is available in a preference claim.

Simon v Lyder [2019] UKPC 38 (29 July 2019). Successful appeal from the Court of Appeal of the Republic of Trinidad and Tobago.

The respondents are police officers in the Trinidad and Tobago Police Service - On 17 August 2007 five civilians were shot dead by police officers after the police had intercepted a motor vehicle - On 2 December 2008 the appellants, the editor-in-chief and publisher of the Daily Express, published an article (the Article) headlined ‘FATAL BLUNDER’ – Report reveals innocent Waterfield five killed in police mistake’ and, the following day, an editorial (the Editorial) headlined ‘A clear call for justice’ - The article called ‘on all citizens to pay close attention to the proceedings of the ordered inquest when it came up in the Arima Magistrates Court’ - The respondents were not named - The inquest took place in June 2009 and concluded that the officers involved were not culpable for the deaths -  The reports of the inquest in the Daily Express named the respondents as the officers whose conduct was investigated and cleared at the inquest - The respondents issued claims for libel in respect of the Article and the Editorial - The trial judge ruled that the references to ‘police officers’ in those publications were not understood to refer to the respondents, and the subsequent 2009 reports could not be relied on to identify the respondents as the subjects of the Article and the Editorial - Whether the Court of Appeal erred in law in allowing the respondents to rely on extrinsic facts coming into existence after the date of publication of the words complained of to establish they were referred to in the words complained of – Whether the Court of Appeal erred in law overturning the findings of the trial judge on the references to "police officers" even if it was right in principle to allow reliance on post-publication facts – Whether the Court of Appeal erred in holding that the trial judge should have admitted evidence on identification from the respondents which had not been pleaded.

AWH Fund Ltd v ZCM Asset [2019] UKPC 37(29 July 2019). Unsuccessful appeal from the Court of Appeal of the Commonwealth of the Bahamas.

ZCM held redeemable shares in AWH as custodian for the benefit of an alternative investment fund, Amex - On 24 July 2002, following ZCM’s redemption request, AWH paid ZCM approximately US$13 million - On 17 October 2002 a petition to wind up AWH was presented - A compulsory winding up order was made on 18 May 2004 - On 27 June 2008 the liquidator obtained leave to serve an interlocutory Summons out of the jurisdiction on ZCM in Bermuda, seeking a declaration that the payment constituted an undue and/or fraudulent preference and an order for repayment - It served the interlocutory Summons in Bermuda on 30 September 2008 - ZCM obtained leave to enter a conditional appearance to the interlocutory smmons and applied to have the service set aside on the following grounds: The Court lacked jurisdiction to order service out of the interlocutory summons - The liquidator failed to disclose a good and arguable cause of action such as to enable the grant of leave / make a valid fraudulent preference claim - No cause of action existed against ZCM as it was an agent of Amex - Whether, in the winding up of an International Business Company, the Court has jurisdiction to order service out of the jurisdiction of an interlocutory Summons seeking a declaration that a redemption payment for redeemable shares was an undue and/or fraudulent preference.

Supreme Court of Ireland

Morrissey v Health Service Executive [2019] IESC 60 (26 July 2019).  Partially successful application for leave to appeal directly to the SC from the High Court.

Three applications for leave to appeal which were respectively brought by each of the defendants/appellants in these proceedings Appeals concentrating on ‘standard of care’ issues - Discussion of general principles for leave to appeal in the SC – Whether to grant leapfrog leave to appeal - Whether there is an appropriate basis for departing from the general position.

Singapore Court of Appeal

Lakshni Anil Salgaocar v Jhaveri Darsan Jitndra [2019] SGCA 42 (26 July 2019).Successful appeal against a decision of the High Court.

The main dispute between the parties concerned the ownership of a single share in a BVI-incorporated company, Million Dragon Wealth Ltd (MDWL) (the Share) - MDWL is in turn the sole shareholder of 22 other BVI-incorporated companies - The basis of the 2014 share transfer is disputed between the parties – What is the natural forum for the dispute - Whether the pursuit of the BVI proceedings by the respondent is vexatious or oppressive - Whether the SGCA was precluded from granting the anti-suit injunction on grounds of comity and/or issue estoppel as a result of the BVI court’s decision not to stay its proceeding – Whether to grant the anti-suit injunction against the respondent.

Anan Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2019] SGCA 41 (23 July 2019). Successful application to adduce fresh evidence for an appeal against a winding up order in the High Court.

The High Court had granted the respondent’s petition to wind up the appellant on the grounds of a statutory demand that remained unpaid - The appellant appealed against this order and raised a dispute in relation to the quantification of the debt in the statutory demand, and sought via this application to adduce fresh evidence in support of its own quantification of the debt – Whether any real prejudice would be caused to the respondent by allowing the Deloitte report to be adduced and fresh evidence.

Supreme Court of the United Kingdom

Cape Intermediate Holdings Ltd v Dring (for and behalf of Asbestos Support Groups Forum UK) [2019] UKSC 38 (29 July 2019). Unsuccessful appeal and cross-appeal from the Court of Appeal.

Pursuant to rule 5.4C of the Civil Procedure Rules, the Forum, an unincorporated association providing support to those who suffer from asbestos-related diseases, successfully applied for copies of documents used in two sets of proceedings involving Cape, which settled after trial but before judgment -  Cape was granted permission to appeal in to the Court of Appeal - The Court of Appeal allowed Cape’s appeal holding that, for the purposes of CPR 5.4C(2), "records of the court" did not extend to witness statements, expert reports, trial bundles, transcripts or written submissions (all of which were subject to the original order) - This part of the decision was being challenged by the Forum and forms subject of the cross-appeal to the Supreme Court - At the same time, the Court held that the court has inherent jurisdiction to allow non-parties inspection of witness statements; expert reports; documents, which were read out in open court, the judge was invited to read in or outside of court or which it is clear or stated that the judge has read; written submissions deployed at hearing; and any specific documents which it is necessary for a non-party to inspect in order to meet the principle of open justice - This part of the decision was being challenged by Cape and forms subject of the appeal to the Supreme Court - What are the powers of the court pursuant to the Civil Procedure Rules or its inherent jurisdiction to permit access to documents used in litigation to which the applicant was not a party?

Commissioners for her Majesty’s Revenue and Customs v Frank A Smart & Son [2019] UKSC 39 (29 July 2019). Unsuccessful appeal from the Inner House of the Court of Sessions.

The respondent is a taxpaying company which carried on a farming business in Aberdeenshire - The respondent claimed repayment of VAT paid on its purchase of 34,477 units of single farm payment entitlement (SFPE) - The units were issued by the Scottish Government in accordance with the European Union Single Farm Payment (SPF) scheme and were tradeable - The purchase of the units entitled taxpayers to obtain benefits under the scheme on fulfilling specified conditions - The taxpayer’s claim to repayment of VAT was refused by HMRC - The taxpayer appealed to the First-tier Tribunal, who allowed the appeal, holding that the taxpayer’s intention as to the application of payments received on the purchased units, namely to develop its farming business, was critical and the evidence supported the necessary direct and immediate link between inputs and future taxable supplies - HMRC appealed unsuccessfully to the Upper Tribunal and to the Inner House of the Court of Session - Whether the Respondent taxpayer is entitled to deduct the VAT it paid on the acquisitions of single farm payment entitlement (SFPE).

Akcil v Koza Ltd [2019] UKSC 40 (29July 2019).Successful appeal from the Court of Appeal.

Koza Ltd, of which Mr Akin Ipek is a director, is part of the Koza Group, a large Turkish-based mining and media conglomerate - Koza Altin Işletmeleri AS (Koza Altin) is also a member of the Koza Group and Koza Ltd is its wholly owned subsidiary - In 2015, following a police raid on Koza Group’s headquarters in Ankara, Turkish authorities alleged that Koza Group was engaged in terrorist financing - In October 2015 an Ankara Criminal Peace Judge made an order under Turkish legislation replacing the existing boards of various companies within the Koza Group with trustees who were required to manage those companies pending further investigations - These companies included Koza Altin but not Koza Ltd - In July 2016, the trustees of Koza Altin caused it to serve a notice under section 303 of the Companies Act 2006 (the 2006 Act) requiring the board of Koza Ltd to hold a general meeting of Koza Limited to pass resolutions replacing its directors with the first, second, and third appellants - The board of Koza Ltd did not call that meeting and so the trustees of Koza Altin caused it to serve a notice under section 305 of the 2006 Act calling a general meeting of Koza Ltd to pass those resolutions - In August 2016, the respondents commenced proceedings in the High Court seeking declarations that the notices were ineffective, an injunction preventing the appellants from holding a meeting of Koza Ltd pursuant to those notices and an injunction restraining the first five appellants or any of them from holding themselves out as having the authority to act for or to bind Koza Altin as a shareholder of Koza Ltd and from causing Koza Altin to do anything or permit the doing of anything as a shareholder of Koza Ltd - All the appellants acknowledged service and stated they intended to contest the jurisdiction of the English court - At first instance the judge held that the court had jurisdiction to hear the claim - The appellants appealed to the Court of Appeal who dismissed their appeal - Whether Article 24(2) of the Recast Regulation (Regulation (EU) No. 1215/2012) (Article 24(2)) confers exclusive jurisdiction on the English courts to determine the authority in England of directors appointed in foreign proceedings to the board of a foreign corporate shareholder of a company registered in England to cause or permit the foreign corporate shareholder to do anything as a shareholder of the English company - Whether Article 24(2) confers exclusive jurisdiction against anyone other than the foreign corporate shareholder, such as its directors of a corporate shareholder as co-defendants.

Supreme Court of the United States

No decisions released during this period

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Last updated on the 1st August 2019