New Zealand Law Society - Courts roundup 10 April - 16 April 2025
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
D (SC 3/2025) v Allan [2025] NZSC 29 (4 April 2025)
Unsuccessful leave application – Self-represented D sought leave to appeal directly to SC from HC striking out her proceedings against Tenancy Tribunal adjudicator and DC judge, as abuse of process –
Proceedings originated from dispute between D and landlord – Following series of proceedings, fresh proceedings in HC against Tenancy Adjudicator and judge alleging misfeasance and “nonfeasance” in public office alongside breaches of s 27(1) New Zealand Bill of Rights Act 1990 –
SC said application did not meet ordinary leave criteria nor narrower criteria for leave to bring direct appeal from HC – Application dismissed.
Gallacher v R [2025] NZSC 30 (4 April 2025)
Successful leave application – Approved question whether CA correct to dismiss appeal against sentence – Leave also given to admit affidavit in support – Application granted.
Stafford v Attorney-General [2025] NZSC 28 (7 April 2025)
Unsuccessful leave application – On 30 October 2024 HC found, inter alia, Crown breached fiduciary duty to customary landowners at top of South Island by failing to reserve promised full “tenth” of 151,000 acres sold to New Zealand Company for Nelson settlement – Attorney-General filed appeal to CA – S filed cross-appeal – Hearing pending –
S applied for leave to bring appeal directly to SC from HC – SC accepted proposed appeal raised issues of general or public importance, justifying SC consideration – Question whether normal appellate pathways should be bypassed – Said issues complex and merited for CA scrutiny – Application dismissed.
Re Coulson [2025] NZSC 31 (7 April 2025)
Unsuccessful review application – Self-represented C applied to review Registrar declining to accept application because Court had no jurisdiction to entertain application, and it did not comply with Supreme Court Rules 2004 –
SC said had no originating jurisdiction – Could not make declarations or orders to effect sought except (with leave) on appeal from court below – C not identified judgment from which any appeal brought – SC had no jurisdiction to deal with application, Registrar correct to reject – Application dismissed.
Kaimai Properties Ltd v Queen Elizabeth the Second National Trust [2025] NZSC 32 (8 April 2025)
Unsuccessful leave application – KP Sought leave to appeal from CA upholding HC decision rejecting challenge to legitimacy of Queen Elizabeth the Second National Trust open space covenant –
SC said proposed appeal confined to particular facts, did not raise issues of general or public importance – Application dismissed.
Sinclair v R [2025] NZSC 33 (8 April 2025)
Unsuccessful leave application – S sought leave to appeal conviction for murdering infant son, CJ, resulting from traumatic head injuries suffered 9 July 2019 –
CA dismissed S’s appeal against conviction – Only ground advanced in SC whether prosecutor’s cross-examination and closing address engaged s 32 of Evidence Act 2006, which provided no person may invite fact-finder in criminal proceeding to draw inference defendant guilty from failure to disclose defence before trial –
SC accepted line drawn under s 32 may be fine and narrow, scope of prohibition might raise questions of general or public importance – However, not seriously arguable line crossed here – No real risk of miscarriage of justice – Application dismissed.
Chief of Defence Force v Four Members of the Armed Forces [2025] NZSC 34 (11 April 2025)
Successful application to set orders aside – Appeal concerned COVID-19 vaccination mandate Chief of Defence Force (CDF) first imposed 3 March 2021 on all members of Armed Forces of New Zealand as part of their readiness requirements for deployment in New Zealand or overseas – Particular focus on extent courts should afford “margin of appreciation” to CDF’s determination of what needed to meet key Armed Forces objectives, including readiness and discipline, when assessing determination against New Zealand Bill of Rights Act 1990 (NZBORA) –
SC said “Members” are or were Regular Forces members – All four not fully vaccinated against COVID-19 – Applied to HC for judicial review of various orders – They claimed, among other causes of action, Temporary Defence Order (TDFO) and other orders unlawful – Arguing they imposed unjustified limit on right to refuse to undergo medical treatment and right to manifest religion and belief (protected rights) – HC dismissed judicial review applications – CA unanimously allowed members’ appeal – SC gave CDF leave to appeal CA decision – Approved question whether CA correct to allow appeal – SC granted Te Kāhui Tika Tangata | Human Rights Commission permission to provide submissions –
SC unanimously allowed appeal – CA’s order that TDFO be reconsidered is set aside, as is CA’s interim order that no action be taken by CDF pursuant to TDFO and related instruments pending reconsideration of TDFO – Appeal allowed.
NZME Publishing Ltd v Tarrant [2025] NZSC 36 (11 April 2025)
Unsuccessful leave application – NZME Publishing Ltd (NZME) sought leave to appeal CA’s first instance grant of permanent name suppression to Lawyers A and B (appellate counsel for T) – NZME said appeal disclosed matter of general and public importance –
T pleaded guilty to 51 murder charges, 40 of attempted murder and one of engaging in terrorist act following his commission of 2019 Christchurch Mosque shootings – Appealed to CA, saying pleaded guilty under duress –
Sole leave criterion said to be that proposed appeal disclosed matter of general or public importance – Further, as appeal from interlocutory application, leave must not be granted unless SC satisfied necessary in interests of justice to hear and determine appeal before proceeding’s conclusion – SC said no requirements met – Application dismissed.
Brice v R [2025] NZSC 37 (11 April 2025)
Unsuccessful leave application – Following DC jury trial B found guilty of indecent assault – Convicted and sentenced to six months’ community detention and six months’ supervision with special condition to undertake any necessary counselling – Ordered to pay victim $6,000 reparation for emotional harm – CA upheld sentencing Judge’s refusal to discharge without conviction or permanently suppress identity –
Sought leave to appeal against conviction and name suppression refusal – SC said submissions raised some matters that in other circumstances might raise issues of general or public importance, but not here – No appearance of miscarriage of justice – Application dismissed.
[W] v R [2025] NZCA 99
[D] v R [2025] NZCA 106
Waru v R [2025] NZCA 101
Unsuccessful application by W for bail pending determination of sentence appeal - Supplying cannabis to a person under 18 (sentenced to 18 months imprisonment) - Cruelty to a child (30 months’ imprisonment concurrent) -
Factual findings were reasonable and supported by evidence - Merits of appeal against sentence not compelling - Period from sentence to determination of appeal unlikely to be significant – Court willing to hear appeal much sooner than normal to assist W’s children – Appeal declined.
[D] v R [2025] NZCA 103
Arnerich v DHC Assets Limited [2025] NZCA 104
Partially successful appeal by A and cross-appeal by DHC relating to relief under Companies Act 1993 – DHC construction company - Unpaid creditor of Vaco, A sole director – HC found A breached duty to act in best interests of Vaco – A ordered to pay DHC sum awarded in the adjudication under Construction Contracts Act 2002 plus contractual interest –
DHC entitled to receive payment of amount awarded by adjudicator directly from A - DHC not entitled to contractual interest on entire amount - Construction contract, properly interpreted, entitled DHC to claim variation costs for ASB-initiation variations, extensions of time to contract completion as a result of variations - Adjudicator’s determination did not conclusively determine extension of time claim - Determination provisional, parties could revisit in civil proceedings - Determinations on DHC’s extension of time claims did not give rise to issue estoppels - Construction contract permitted DHC to claim extensions of time for delays caused by variations - Vaco estopped from relying on contractual limits on recovery of variation costs – If DHC wished to seek award of costs from arbitrator against A, it should have taken steps to obtain a determination from the arbitrator before bringing its claim.
Garate v Garate [2025] NZCA 108
Unsuccessful application by EG for an extension of time to apply for allocation of a hearing date and to file the case on appeal - application by JG, for costs following the abandonment of appeal by EG – Proceeding arose out of brothers acting as litigation guardians for their parents regarding lawfulness of two property transactions concluded by third brother –
EG’s delay in progressing appeal was significant, no good reason for that delay – EG also dilatory in conduct of appeal – JG suffered prejudice from delay and from the way EG had conducted the appeal - No public interest in issues on appeal - Appellants not authorised to bring appeal nor seek an extension as they were only two of three executors - JG entitled to costs.
Khan v Rehman [2025] NZCA 109
Successful appeal against dismissal of knowing receipt and equitable estoppel claim - Appellants trustees of Abu Hurairah Trust - Operated mosque and Islamic centre - Four trustees purportedly removed other trustees - Remaining trustees transferred Trust’s assets to New Zealand Muslim Association (NZMA) - Consent orders made that removal of trustees invalid - Settlement agreement - Proceedings against NZMA continued -
Settlement agreement did not preclude claim against the NZMA – It was not a party to settlement agreement - Claim against NZMA was not rightly dismissed because of lack of knowledge - Claim on appeal equitable proprietary claim - No requirement for appellants to prove any knowledge held by NZMA when it received property - Sufficient for trustees to establish property held by NZMA transferred in breach of trust - Property transferred in breach of trust as remaining trustees had no authority to transfer property - Not necessary to establish knowledge, satisfied in any event - NZMA’s state of knowledge reflected in initial view of its solicitor that transaction should be put on hold - Indefeasibility of title under Land Transfer Act 2017 did not defeat appellants’ claim - Principles of indefeasibility preserved in personam jurisdiction - Claims of knowing receipt recognised as personal rather than proprietary claims - Personal claim established on basis NZMA knowingly received property as consequence of defaulting trustees’ breaches of trust - Unconscionable to keep property.
R v Talagi [2025] NZHC 854 (10 April 2025) Downs J
Sentencing – Jury found T guilty of wounding A with intent to cause really serious bodily harm; and of murdering T – Sentenced for both crimes – Followed chance encounter between two groups and related violence on Queen Street, Auckland – Life imprisonment imposed with 12 years MPI.
R v Heremaia [2025] NZHC 892 (11 April 2025) McHerron J
Sentencing – H sentenced for pleading guilty to murdering R and arson setting fire to car with R’s body inside – P pleaded guilty to being party to arson –
On murder, H sentenced to life imprisonment with 12 years MPI – Subsequently burning R’s body aggravating factor justifying uplift to MPI – P sentenced to 12 months home detention for being party to arson.
R v Pan [2025] SCC 12 (10 April 2025)
Unsuccessful appeal and cross-appeals from Ontario CA – JP lived with parents, with whom she had difficult relationship – In November 2010, three armed intruders entered P family home – Parents were each shot in head and shoulders – Mrs P died, Mr P seriously injured but survived – JP, also at home, left unharmed, tied to banister –
JP, W, C and M, charged with Mrs P’s first degree murder and Mr P’s attempted murder – Crown’s theory at trial JP arranged through W and C to have parents killed by persons including M – At trial, jury convicted them on both charges –
All appealed convictions, saying several errors made during trial – Trial judge told jury only two scenarios that could establish guilt arose on evidence – Under scenario one, single planned and deliberate attack with intention of murdering both parents – Under scenario two, home invasion and robbery, in commission of which parents shot – Defence urged trial judge instruct jury on third scenario, that there was plan to kill only father, in carrying out that plan, mother shot – If jury accepted third scenario, some accused could have been convicted of second degree murder or manslaughter instead of first degree murder – Trial judge refused to instruct jury on this possibility because no “air of reality”, meaning no reasonable jury could reach this conclusion in circumstances of case –
Accused said trial judge wrong to allow slide show presentation Crown prepared into jury room, wrong not to dismiss juror for alleged bias and wrong in telling jury how to use evidence about character of another accused, whose case proceeded separately –
CA allowed appeal – Said third scenario had air of reality, should have been left with jury – Required new trial on first degree murder charge – CA left attempted murder convictions in place, trial judge’s error did not taint those convictions – CA said trial judge made no error regarding slide show, alleged juror bias or evidence about other accused –
Crown appealed to SC seeking to restore first degree murder convictions – Said CA wrong to find that third scenario had air of reality and this required setting aside convictions –
Accused each cross-appealed, seeking to set aside attempted murder convictions – Said error CA identified also tainted these convictions, new trial was required on both counts – Also renewed unsuccessful arguments before CA about slide show, alleged juror bias, and evidence about other accused –
SC majority dismissed appeal and cross-appeals – Said CA right to order new trial for all accused on first degree murder count – Third scenario had air of reality and jury should have been permitted to consider –Trial judge’s error did not taint attempted murder convictions, those convictions stood – Regarding other grounds, no reversible error in trial judge’s approach to slide show or allegations of juror bias and instructions to jury on evidence about other accused provided no basis for interfering with convictions – Appeal and cross-appeals dismissed.
The Court of Appeal judges have advised that LawPoints falls into the category of a Law Digest where a decision prohibits publication in news media or on the internet, but allows it in a law report or law digest. LawPoints will sometimes include information on such decisions, but lawyers will have to log in using their lawyer ID to view the decision.
Request copies of other cases and articles from the Law Society Library.