New Zealand Law Society - Courts roundup 19 February - 25 February 2025
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Re Akarana-Rewi [2026] NZSC 3 (16 February 2026)
Unsuccessful recall application – Self-represented A-R applied to recall previous SC judgment – Nothing advanced to warrant recall – Application dismissed.
Re Dunstan [2026] NZSC 4 (16 February 2026)
Unsuccessful review application – Self-represented D, subject to civil restraint order under s 166 Senior Courts Act 2016 – Deputy Registrar refused to accept application because of order – SC Judge said decision correct – application dismissed.
Body Corporate 207624 v Grimshaw & Co [2026] NZSC 5 (17 February 2026)
Unsuccessful leave application – Grimshaw & Co (Grimshaw) were solicitors – Body Corporate (BC) was BC for Spencer on Byron apartment and hotel complex - Building defects in complex identified in 2006 – BC brought proceedings against builder and council in 2007 on behalf of unit owners for damage to common property - Grimshaw began acting for BC in 2008 –
In March 2010, Grimshaw advised BC and owners to enter into Conduct and Distribution Agreement (CDA) governing distribution of any settlement proceeds –
Proceeding settled in September 2013 for $20.05 million, but post-settlement disputes between owners over distribution in the CDA (among other things) delayed repairs until 2018, increasing costs – Following interpleader proceeding brought by Grimshaw, mediated settlement reached in late 2015 between BC and owners providing 80 per cent of settlement funds would go to BC to fund repairs to common property, setting aside CDA – Formal orders made in early 2016 –
BC sued Grimshaw for delay-related costs, saying, among other things, CDA invalid and/or ineffective from 20 June 2011 when Unit Titles Act 2010 came into force –
HC said Grimshaw acted negligently, failing to advise BC to amend CDA after 2010 Act changed common property ownership – On appeal, CA said 2010 Act did not affect accrued rights under 1972 Unit Titles Act, meaning CDA remained valid and effective – Setting aside HC judgment, said Grimshaw did not act negligently and in any event did not cause losses claimed – BC applied for leave to appeal to SC –
SC said leave criteria not made out – No matter of general or public importance raised – No risk of substantial miscarriage of justice – Application dismissed.
Re Fielding [2026] NZSC 6 (19 February 2026)
Successful review application – Self-represented F convicted and sentenced in DC for offences related to police traffic stop – Appeal to HC dismissed – Application for leave to bring second appeal in CA refused – Sought review of Deputy Registrar refusal to accept application for leave to appeal to SC –
SC Judge said although notice of appeal not entirely clear, and noting F not represented by counsel, prepared to accept paragraph 4 of F’s notice of appeal suggests wished to invoke s 75 Senior Courts Act 2016, seeking leave thereby to appeal directly to SC against HC decision – To bring leapfrog appeal –
Judge said was jurisdiction to entertain application – Exceptional circumstances had to be established – Whether so matter for leave panel, but at this stage, appropriate to construe notice of appeal generously and in applicant’s favour – Application allowed and accepted for filing as application for leave to bring leapfrog appeal.
Mateparae v R [2026] NZSC 8 (20 February 2026)
Unsuccessful leave application – M yard hand at Auckland car yard – Yard dealt in both motor vehicles and class A drugs – M’s involvement in latter was cash courier –
Jury found M guilty of enabling person to conceal proceeds of crime under s 243(2) Crimes Act 1961, and guilty of possessing proceeds of crime with intention to deal with and enable any person to conceal them under s 243(3) - Sentenced to eight months’ home detention –
Dismissing appeal, CA said no error in Judge’s directions – M’s leave application to SC largely reprised arguments from lower courts – SC said proposed appeal lacked any realistic prospect of success, consequently, did not raise matter of general or public importance – No appearance of miscarriage of justice – Application dismissed.
Dassault Systèmes Australia Pty Ltd v Fujitsu New Zealand Ltd [2026] NZCA 28
Unsuccessful application by Fujitsu for leave to adduce further evidence – Dassault an Australian company that supplied IT services to assist Fujitsu to deliver software to Department of Corrections - Department sued Fujitsu, which joined Dassault - HC delivered judgment finding Fujitsu succeeded in part in its claims against Dassault - Dassault appealed and Fujitsu cross-appealed - Fujitsu’s cross-appeal concerned its claims against Dassault under the Australian Consumer Law (ACL), which formed part of Competition and Consumer Act 2010 (Cth) - Section 138 conferred jurisdiction upon the Federal Court of Australia to hear any civil matter arising under the ACL - HC held effect of s 138 was that proceedings could not be brought in any other Court, including the HC of NZ - Fujitsu applied for leave to adduce the affidavit of a barrister practicing in Victoria providing his opinion on whether, under Australian law, s 138 prohibited foreign courts from hearing claims alleging breaches of the ACL -
Not in the interests of justice to grant Fujitsu leave to adduce the affidavit - Evidence not particularly fresh - Issue about the meaning and effect of s 138 arose in Dassault’s closing, and Fujitsu responded to it in its own closing - It was open to Fujitsu to then have applied for leave to adduce expert evidence on the meaning and effect of s 138 - Fujitsu had already, after the trial began, briefed the barrister and obtained expert evidence (on another, related matter) from him in short order - Proposed evidence could therefore with reasonable diligence have been produced at trial - Evidence of limited cogency as s 138 issue could be addressed by reference to the statute itself and to Australian judgments construing it - Fujitsu’s application also delayed and causing prejudice to Dassault which should not be further distracted by having to respond to the proposed further evidence – Application dismissed.
[L] v R [2026] NZCA 24
Tupa'i v R [2026] NZCA 23
Unsuccessful appeal by T against refusal to grant discharge without conviction after pleading guilty to owning a dog that attacked a person, causing serious injury under s 58(a) Dog Control Act 1996 - On appeal, T submitted that the Judge, in deciding not to discharge without conviction, erred in assessing the gravity of the offending as “medium” and in the severity of the consequences of conviction -
T had previously experienced owning a dog which attacked someone, understood the implications, and arranged for the family to have training in handling their dogs - Dog not muzzled, was walked by a teenager in an urban area with people around and viciously attacked a person - Physical injuries caused were serious and mental injuries long-lasting - Offending fairly assessed as being of medium gravity - Consequences of conviction not out of proportion to gravity of offending - Administrative inconvenience of needing to seek travel visas and having the conviction considered by the Teaching Council alone was not a disproportionate effect of a conviction - This sort of conviction not likely to impact on assessments of T’s character – Appeal dismissed.
R v Tuai [2026] NZHC 204 (12 February 2026) (Wilkinson-Smith J)
Sentencing – T sentenced after jury found him guilty of two charges of rape; six charges of sexual violation by unlawful sexual connection; eight charges of indecent assault; assault with weapon; two charges of dealing in slaves – T controlled victims' finances, freedom of movement and communication, and used actual or threatened violence – Began sexually offending against female victim when victim in her teens, and raped her on two occasions –
Starting point 14 years' imprisonment for sexual offending, uplifted by five years for slavery charges – HC said slavery charges alone would have attracted starting point of nine years' imprisonment – Discount five per cent for impact of imprisonment on T, former corrections officer, and five per cent discount for imprisonment impact on T’s ailing wife – Another nine months discount reflecting time spent on electronically monitored bail – No discount for previous good character – End sentence 16 years four months' imprisonment, with 50 per cent MPI – Protection orders granted under s 123B Sentencing Act 2002.
R v Case [2026] SCC 6 (19 February 2026)
Unsuccessful appeal from Ontario CA – Man and woman were convicted of sexual assault after trial in Ontario Court of Justice – Charged together regarding same incident – Involved young woman saying she was sexually assaulted after becoming intoxicated – Later recalled what happened in vivid memory while asleep – Judge accepted her account of assault and ruled not dream –
Convicted people appealed to Ontario CA – Said trial judge should not have relied on woman’s memory – Said the memory might not have been real and could have been created while woman asleep –
CA majority dismissed appeals, upholding convictions – Said trial judge entitled to accept woman’s account of what happened – Said trial judge understood defence arguments, carefully considered evidence, and explained decision – CA concluded evidence supported convictions –
SC unanimously dismissed appeals – Convictions remained in place.
CCC (by her mother and litigation friend MMM) v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5 (18 February 2026)
Successful appeal from CA – SC asked to decide whether child claimant could recover damages for financial loss caused by inability to work during years of expected life she lost due to defendant’s clinical negligence – Known as “lost years damages” –
Claimant, CCC, suffered severe brain injury caused by hypoxia during birth in 2015 – Life expectancy consequently reduced to 29 years – Sheffield Teaching Hospitals NHS Foundation Trust (STH), ran hospital where claimant born – STH accepted responsibility for clinical negligence causing claimant’s injury –
At trial, parties agreed, if claimant not injured, would have had normal life expectancy – Also agreed would likely have gained GCSEs and other qualifications leading to paid employment, would have worked until age 68, and would have received pension for remainder of life – Claimant’s earnings loss to 29 agreed to be £160,000 – Left question of financial loss during lost years –
Two House of Lords’ decisions confirmed lost years damages recoverable in English law – Commonly awarded to adult and adolescent claimants who suffered life-shortening personal injuries – However, not awarded to child as CA had ruled lost years damages could not be recovered in cases of young child-claimant –
Parties agreed CA decision bound trial judge and could not award claimant any lost years damages – Granted leap-frog certificate enabling claimant to appeal directly to SC on this issue – In appeal claimant said CA should be overruled being inconsistent with earlier House of Lords’ decisions –
SC four to one majority allowed claimant’s appeal – Said lost years damages could be recovered in cases where claimant young child – CA decision incorrect and should be overruled – SC remitted claimant’s case to trial judge to decide whether claimant should be awarded lost years damages on facts and, if so, what value award should be – Appeal allowed.