New Zealand Law Society - Courts roundup 20 August - 26 August 2026
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
O'Brien v Police [2026] NZCA 393 (21 August 2026)
Successful application by O for leave to bring a second appeal against conviction for driving with excess blood alcohol –
Police stopped a vehicle carrying three occupants shortly after a loss-of-traction incident - O's identity as driver, rather than as a passenger was sole issue at trial – In brief window before police reached vehicle, two of the three occupants swapped positions: front passenger moved into driver's seat, while driver moved to rear – O was then seen emerging from left rear passenger door – Prosecution case was that O was driver who moved to left rear seat; O's case was that he had been seated in left rear seat throughout, and it was the true driver who, on being pulled over, moved into the right rear seat instead –
Identification of O as driver rested entirely on visual observations of two attending officers – One officer's trial evidence went further than his earlier formal witness statement, adding specific detail that he saw driver move into left rear seat (a detail not present in his statement and on which he was not cross-examined) –
DCJ, cautioning herself on dangers of identification evidence, found case "a very fine line" but convicted O – On first appeal, Jagose J held officer's trial evidence was not truly inconsistent with his statement, reasoning that because vehicle was "three up" and movement was confined to driver and front passenger, the back left seat was necessarily the only unoccupied seat available for driver to move into –
CA held this reasoning was arguably flawed, because it assumed the answer to the very question in dispute: which rear seat was already occupied by stationary third occupant, and therefore which rear seat driver moved into – That question was critical given very tight CCTV timeframe for seat swap and O's own position exiting left rear seat, making reliability of the officer's evolving recollection central to the finely balanced verdict –
CA accepted a reasonably arguable error giving rise to a possible miscarriage of justice; leave to bring a second appeal granted.
OHB (CA276/2025) v R [2026] NZCA 390 (19 August 2026)
Unsuccessful appeal against conviction and sentence by OHB – OHB pleaded guilty to posting an intimate visual recording (IVR) after emailing his ex-partner an intimate photo of the two of them – OHB argued he was induced to plead guilty by two erroneous pre-trial rulings and pressure from being remanded in custody: (a) dismissal of a s 147 Criminal Procedure Act 2011 application that sending the IVR to the complainant herself could not be a "post" under ss 4 and 22A Harmful Digital Communications Act 2015; and (b) refusal under s 44 Evidence Act 2006 to admit evidence of past intimate exchanges and reconciliation questioning –
CA held sending an IVR to the person depicted still falls within the broad statutory definition of "post," consistent with the Act's purpose – The s 44 evidence was correctly excluded as consent is contemporaneous and the proposed material was too remote and prejudicial – Applying R v Le Page and Tarrant v R, the "exceptional circumstances" threshold for undoing a guilty plea was not met – OHB's remand in custody, while regrettable, largely resulted from his own bail breaches –
Extension of time to appeal granted – Appeal against conviction dismissed – Appeal against sentence dismissed.
Rivers v R [2026] NZCA 382 (18 August 2026)
Unsuccessful appeal against sentence - R, a chartered accountant, was sentenced to 5 years 11 months' imprisonment plus $75,388.90 reparation after pleading guilty to 29 dishonesty charges, including providing false information to IRD, using forged documents, money laundering, aiding and abetting another person to knowingly withhold information from the IRD, and dishonestly using documents – Offending spanned over a decade and included under-declaring income for child support and fraudulently obtaining $906,818.40 through COVID-19 wage subsidy applications using forged documents, fabricated employees, and a false identity, including a forged passport –
R argued the 7-year starting point was too high and mitigating discounts (15 per cent total) were inadequate, seeking 45–50 per cent for guilty plea, reparation/settlement, good character, family hardship, and time on EM bail –
CA held the 7-year starting point was correct given the duration of offending, sophistication, breach of professional trust, and substantial quantum; and declined to import starting points from unappealed or factually disparate comparator cases – Five per cent guilty plea and 10 per cent reparation/settlement discounts were appropriate (the latter generous) – No further discount was warranted for good character, family hardship, or EM bail, given the seriousness of the offending and the sentence being well within range –
Extension of time to appeal granted – Appeal against sentence dismissed.
Hu v Mender Construction Ltd [2026] NZCA 381 (18 August 2026)
Application by self-represented litigant (H), for an extension of time to appeal a HC judgment on his construction dispute claims, and for leave to adduce further evidence – H engaged M to carry out earthworks and backfilling, and S to complete a retaining wall that subsequently failed; Auckland Council prosecuted H, and respondents (M and Ma) over unconsented earthworks and abatement notice breaches – HCJ found M liable under s 362I Building Act 2004 for breach of implied warranties contributing to the wall's failure (one third of wasted/rebuild costs awarded due to H's contributory breach), found M partly liable for earthworks-related costs, found fourth respondent Lin liable for fence damage but not for related flooding/cracking costs, and dismissed H's loan claim and S's counterclaim for want of evidence - H filed notice of appeal 118 days late, seeking to challenge the HC's evidential findings -
CA applied the settled Almond v Read factors (length of and reasons for delay, conduct of parties, prejudice, significance of issues, and a relatively superficial view of merits) –
Delay was significant and reasons (gathering trial materials, being discouraged by his lawyer, financial difficulty, and delay locating legal aid counsel) were not strong, but showed genuine commitment - No adverse conduct beyond the delay itself, with some latitude due to self-represented status - Prejudice to respondents was small, issues were fact-specific but merits, while doubtful, could not be called hopeless – Overall interests of justice favoured granting extension –
On further evidence, CA applied the established fresh, credible and cogent test (Erceg v Balenia Ltd; Work v IAG New Zealand Ltd) – Proposed material (photographs, topographical comparisons, earthworks assessments, geotechnical reports, communications), bar two 2025 photographs, predated HC hearing and could, with reasonable diligence, have been produced at trial through H's then counsel – An appeal was not a second full trial –
Extension of time to appeal granted; application to adduce further evidence declined; costs reserved pending determination of the appeal.
R v Liu v Xiao [2026] NZHC 2429 25 August 2026
L and X were convicted following a jury trial for kidnapping and manslaughter of W, misconduct in relation to human remains, and attempting to pervert the course of justice – L was also sentenced for failing to carry out obligations in relation to a computer search –
L (husband) and X (wife) lived with their children, L’s parents, and six women from China who were unlawfully in NZ – L led a strict religious household known as the Ark and was treated as having principal authority, while X held secondary status – W, aged 70, lived in the household and was vulnerable because of her age, immigration status, and dependence on the defendants – After W attempted to escape, L convened meetings at which he directed that her hands and feet be restrained and that she be denied food and water – X was a party to those directions – W died while restrained and her body was disposed of at sea –
HC found the offending involved serious aggravating features, including prolonged detention and restraint, interference with W’s airways, denial of food, water, and medical assistance, W’s vulnerability, and the subsequent attempt to conceal the offending – L was ringleader and bore greater culpability; X was less culpable but still a willing and significant participant because of her status in the household and her involvement in the offending – HC declined discounts for cultural background, cultural dislocation, or likely deportation, but allowed modest discounts for previous good character and the impact on the defendants’ children – Both defendants also received credit for time spent on EM bail –
L given a starting point of 11 years' imprisonment for kidnapping/manslaughter charges with 18 month uplift for the attempting to pervert justice and misconduct with human remains charges – On the computer search charge, he was convicted only – X given a starting point of 8.5 years for the kidnapping/manslaughter charges and a 15 month uplift for attempting to pervert justice and misconduct with human remains – Both given 5 per cent discount for impact on children, 5 per cent discount for good character and 10 month reduction for time spent on EM bail – L sentence 10 years 5 months' imprisonment with MPI of 50 per cent – X sentence 7 years 11 months' imprisonment.
R v Rodger [2026] NZHC 2414 (14 August 2026)
Both R and L were low level methamphetamine dealers and users in the North Canterbury drug scene - Court found that R shot L at close range with a .22 firearm in a residential address painfully injuring with a first shot to the thigh followed by a fatal shot shortly after to the chest – After stealing L’s money and methamphetamine and smashing his phones R took steps to conceal the killing, and was personally responsible for the subsequent desecration and disposal of parts of the body –
The post-murder treatment of the body held to constitute exceptional circumstances under s 104 Sentencing Act 2002, requiring a 17-year MPI unless manifestly unjust – After considering aggravating features, comparable cases, R’s criminal history, risk, and personal background, Court concluded that the statutory minimum period was not manifestly unjust - Sentence of life imprisonment for murder with a minimum period of imprisonment of 17 years.
Augustine (Appellant) v Data Cars Limited [2026] UKSC 30 (12 August 2026)
Successful appeal on whether reg 5 Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 applied if a worker’s part-time status was an effective cause, but not the sole cause, of their less favourable treatment –
Appellant, A, worked as a part-time hire car driver for respondent, Data Cars Ltd – A paid Data Cars a “circuit fee” each week for access to its booking dispatch system – Circuit fee was the same for all drivers, irrespective of whether they were full-time or part-time workers – A unsuccessfully brought a claim against Data Cars in the Employment Tribunal arguing the circuit fee was contrary to reg 5 as part-time workers had to pay a higher fee per hour worked than full-time workers – EAT and CA both dismissed his appeals –
SC considered the causation test and in particular the phrase “on the grounds that” or “on the grounds of” and concluded the appeal should be allowed – The Regulations prohibited less favourable treatment of part-time workers where their part-time status was an effective cause of the impugned treatment – It need not be the sole cause.
Lawrence and others v Associated News Ltd [2026] EWHC 2207 (21 August 2026)
Claimants Baroness Lawrence, Elizabeth Hurley, Sir Elton John, David Furnish, Sir Simon Hughes, Prince Harry and Sadie Frost Law, brought claims against Associated Newspapers Ltd concerning alleged unlawful information gathering, including voicemail interception – Following the dismissal of their 97 claims at trial, claimants accepted that they were liable for Associated’s costs – Whether those costs should be assessed on the standard or indemnity basis, whether a cap should be imposed on recoverable indemnity costs, and the appropriate payment on account –
HC ordered that the claimants pay Associated’s costs on an indemnity basis – HC Court held that the litigation had been conducted unreasonably to a high degree and well outside the norm – Relevant factors included the unjustifiably wide and speculative nature of the pleaded case, the maintenance of serious allegations despite an inadequate evidential foundation, continued reliance on compromised evidence, failure to narrow or withdraw allegations as the case developed, advancement of unpleaded or unsupported allegations at trial, and the cumulative effect of those matters – HC emphasised that the order did not depend on findings that any individual claimant had acted dishonestly or pursued the proceedings for a collateral purpose –
HC further held that indemnity costs be subject to a quantified ceiling – However, such a power had to be exercised on a principled basis and could not be used to substitute an arbitrary figure for the detailed assessment process – HC declined to impose a cap because the material before it did not provide a fair or principled basis for determining one –
Claimants ordered to pay £9,544,355 on account of costs, comprising 90 per cent of Associated’s approved budgeted costs and 60 per cent of its incurred pre-budget costs, by 28 August 2026.
Garden House Software Ltd v Marsh & Ors [2026] EWHC 2184 18 August 2026
HC held that two directors of insolvent software company (SGL) acted dishonestly by transferring valuable software intellectual property, worth £2.034M, to another group company, for a one-year licence which was effectively worthless, in order to placing it beyond the reach of creditors –
Transfer was found to be both a transaction at an undervalue and a transaction defrauding creditors under the Insolvency Act 1986 – Directors breached their duties under the Companies Act 2006 by failing to consider creditors’ interests, by causing the company to transfer the IP for no real consideration and by continuing to provide development services while insolvent – Recipient company was liable for dishonest assistance and unlawful-means conspiracy – Claims that the SGL non-executive directors were de facto directors of the company, or liable for conspiracy or dishonest assistance, were dismissed –
Court ordered payment of £2.034M by the two directors, representing the value of the transferred IP, secured against the software asset.
Bed and Breakfast Association Ltd v Booking Holdings.com, Booking BV.com and Booking.com Ltd [2026] CAT 70 (18 August 2026)
Successful application to serve (pursuant to r. 31(2) Competition Appeal Tribunal Rules 2015) Collective Proceedings Claim Form (CPCF) outside of UK jurisdiction on proposed foreign defendants, Booking.com Associations, both based outside UK jurisdiction –
Applicant trade association sought to serve Booking Associations abroad with a £1.8B collective claim alleging anti-competitive practices resulting in UK-based accommodation providers suffering losses through commissions paid on UK accommodation bookings – Practices were linked to Booking’s ranking algorithms – Tribunal’s decision to allow the class action to proceed was based on the fact that the proposed class members were predominantly UK-based accommodation providers who allegedly suffered loss through commissions paid on UK accommodation bookings – Alleged conduct was directed at the UK market, the claims were governed by UK competition law, and the UK Competition Appeal Tribunal was the specialist forum best placed to determine the collective competition claims – Foreign defendants were necessary or proper parties because the claims against them and the UK “anchor” defendant involved the same alleged conduct, factual inquiries, witnesses, expert evidence, and potential joint and several liability –
UK proper forum to hear claims – Service of CPCF outside of jurisdiction on foreign defendants permitted.