New Zealand Law Society - Courts roundup 24 July - 30 July 2025
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
M (SC 29/2025) v R [2025] NZSC 86 (22 July 2025)
Successful leave application – Approved question whether CA correct to refuse M continued interim name suppression until final disposition of proceeding – SC made interim order continuing suppression of M’s name, address, occupation and identifying particulars until further SC order.
Lane v Goldson [2025] NZSC 87 (23 July 2025)
Unsuccessful leave application – Application related to L’s unsuccessful application for order under s 19(1) Administration Act 1969 calling on executors (Go) to show cause why probate of Gi’s will not be granted to Public Trust – L sought to have Public Trust bring Property (Relationships) Act 1976 (PRA) claim against Gi’s de facto partner, Go – L wanted Public Trust to claim 50 percent of value of Auckland property Gi formerly owned, but Go owned when Gi died – L sought to enlarge Gi’s estate enabling her to bring claim against it – HC dismissed application – CA dismissed L’s appeal –
SC said might wish to consider correct approach in these types of claims – This case not appropriate vehicle – Applicant did not challenge principles – Nothing L raised questioned CA assessment of case prospective merits – Leave criteria not met – Application dismissed.
Kerr v Bank of New Zealand [2025] NZSC 88 (24 July 2025)
Unsuccessful leave application – K sole director of second to fifth applicants – Two of those companies had debt facilities with Bank of New Zealand (BNZ) – Included guarantees and indemnities given by K personally and by three applicant companies under his control –
The two debt facilities expired in May 2011 and May 2013, respectively, with respective outstanding balances of $24,994,230.14 and $21,372,948.73 comprising principal, accrued interest and fees – BNZ commenced summary judgment proceedings in May 2021 to recover outstanding and indemnity costs awarded against two corporate guarantors in related proceeding – Debtors appeared to lack sufficient assets to discharge debts, focus in Courts below was liability of guarantors, including K –
HC delivered two judgments – In liability judgment, HC rejected applicants’ argument claims against guarantors time-barred and amounts BNZ claimed were inaccurate or uncertain – Quantum judgment recorded judgment debts totalling over $65 million plus interest – CA upheld HC judgments in all material respects – Applicants sought leave to appeal to SC –
SC said no matter of general or public importance – No error in Courts below concurrent ruling K acknowledged liability on behalf of relevant entities, nor in CA’s approach to s 47 Limitation Act 2010 – No risk of substantial miscarriage of justice – Applications dismissed.
Zhou v Watson [2025] NZSC 89 (24 July 2025)
Unsuccessful leave application – Z purchased home from W – After settlement discovered had weathertightness issues – Brought proceedings in HC against W – Succeeded in part – HC said common mistake between parties property sound and did not leak – HC also ruled W liable for breach of warranty regarding work undertaken on property retaining wall as consent not obtained – HC said no oral misrepresentation – Other aspects of claim for breach of contractual warranty dismissed –
W appealed to CA against mistake finding in terms of Contract and Commercial Law Act 2017 and alternatively damages quantum ($271,600 plus interest) – Z cross-appealed against HC conclusion no oral misrepresentation and over findings associated with unsuccessful parts of claim for breach of contractual warranty –
CA allowed W’s appeal regarding contractual mistake – Cross-appeal on oral misrepresentation unsuccessful – CA agreed with HC no award on deck work – However, cross-appeal succeeded for drainage work – This aspect remitted to HC to determine quantum of damages – Z sought leave to appeal to SC –
SC said three appeal grounds, first relating to oral misrepresentation claim; second to mistake; third concerning damages relating to deck – SC said no indication CA wrong in assessment – Application dismissed.
Chamberlain v Ministry of Health [2025] NZCA 619
Successful appeal against HC decision declining C’s application for a declaration that the Minister’s funding decision was unlawful for want of consistency with the relevant family care policy under New Zealand Public Health and Disability Act 2000 (the Act) – C a middle-aged man with a profound level of intellectual disability - His elderly mother was his fulltime carer - Ministry funded C for his mother’s performance of 17 hours of care weekly - C and his mother claimed he was entitled to funding for family care up to the maximum of 40 hours weekly -
Funding for a family member could be incorporated into the category of “personal care” without requiring payment for the fact of sleeping over if it qualified under the Tier Two Service Specification – Purpose of state funding was provision of intermittent care which maintained a disabled person’s functional ability at best possible level within home environment - Ministry’s focus on avoiding payment for mere supervision time caused its failure to recognise that at certain times, particularly at night, essential services must be provided and were provided by carers on an intermittent basis – Ministry directed to reassess C’s application in a manner consistent with the purposes of the Act and the content of the family care policy.
ALT New Zealand Ltd v Attorney-General [2025] NZCA 344
Unsuccessful appeal against dismissal of amended judicial review application concerning the lawfulness of regulations made under Smokefree Environments and Regulated Products Act 1990 (the Act) reducing the permitted level of nicotine in vape products - Whether the Minister had a duty to consult and had breached that duty, and whether the Minister had a duty to provide adequate advice to Cabinet and had failed to do so -
No common law duty on Minister to consult - Absence of comprehensive code of consultation in Act did not suggest a common law duty should exist - Act specifically sets out when to consult – No duty to consult to a certain standard - In circumstances of case where Minister had no duty to consult but had consulted widely, that did not create a duty to do so - Any duty to consult, and its extent, was not free-standing but derived from the statutory and factual context - Ministry had not failed to provide advice to Cabinet – Case cited by ALT, Air Nelson v Minister of Transport, was not authority for the proposition that the conflicting views of a number of parties should be put before Cabinet when making public health regulations – Appeal dismissed.
[E] v R [2025] NZCA 140
[G] v R [2025] NZCA 335
[G] v R [2025] NZCA 326
[T] v R [2025] NZCA 336
Department for Business and Trade v The Information Commissioner [2025] UKSC 27 (23 July 2025)
Unsuccessful appeal from CA – Questioned when information public body held which someone requested under Freedom of Information Act 2000 (FOIA), could be withheld by public body relying on “exemptions” in Part II of FOIA – Section 1(1)(b) created right to have information held by public body disclosed, unless covered by exemption – Exemptions either absolute or qualified – Information falling within any absolute exemption could be withheld from disclosure – Information falling within qualified exemption (QE) could be withheld only if, under s 2(2)(b), “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosure of the information” –
Specific issue raised on appeal whether, where information falls within multiple QEs, s 2(2)(b) required public interest in maintaining each of those QEs to be aggregated (cumulative approach), or whether it required public interest in maintaining each QE to be considered separately (independent approach) –
in November 2017, M, journalist, made FOIA request to Department for Business and Trade (Department) for information about trade working groups working on post-Brexit trade deals – Department withheld some requested information – Department relied on two QEs in FOIA, covering information: (i) likely to prejudice international relations (section 27); and (ii) relating to formulation of government policy (section 35) – M complained to Information Commissioner (ICO) – ICO upheld Department’s decision to withhold information –
M appealed to First-tier Tribunal, which raised whether cumulative approach or independent approach correct – Adopted cumulative approach and, as result, dismissed relevant part of M’s appeal – ICO disagreed with First-tier Tribunal’s approval of cumulative approach, joined M in appealing decision – Upper Tribunal allowed relevant part of appeal, saying independent approach correct – CA allowed Department’s appeal on this issue: cumulative approach correct – ICO appealed decision to SC –
SC majority dismissed appeal ruling cumulative approach correct – Said s 2(2)(b) ultimately concerned with public interest test – Natural inference, cumulative approach ought to be taken as provides most complete and accurate picture of public interest – Independent approach requires ignoring relevant public interest considerations against disclosure of information even though they have been specified in FOIA as public interest reasons for nondisclosure of information – Appeal dismissed.
Stevens v Hotel Portfolio II UK Ltd (In Liquidation) [2025] UKSC 28 (23 July 2025)
Successful appeal from CA – R director of Hotel Portfolio II UK Ltd (HPII) – R owed fiduciary duties to company, not least to avoid conflicts of interest (absent company’s consent) and to refrain from making unauthorised profits out of position as director – In 2005, HPII sold three hotels to Madeiran company, Cambulo Comercio e Serviyços Sociedade Unipessol LDA (together with its subsidiaries) (Cambulo) – Cambulo ostensibly owned by S (Respondent), in reality it and S were R’s nominees – R concealed from HPII was true buyer – Hotels sold at market value, parties agreed HPII suffered no loss at that stage –
Between 2006 and 2008, Cambulo went on to sell hotels–now with benefit of planning permission for residential development–to third parties, making very large profit – Both sides accepted HPII would not have exploited development opportunity which enabled highly profitable onwards sale, in that sense HPII did not lose out – Over £100 million of those profits went to R, which he dissipated for his own purposes – When HPII discovered R’s role in these transactions, HPII sued both R and S, alleging R had breached fiduciary duties and S dishonestly assisted R –
HC said R breached fiduciary duties by failing to disclose interest in Cambulo and by dissipating on-sale profits, which, as unauthorised profits made by fiduciary, were as matter of law held on constructive trust for HPII (and for which he was ordered to account) – S held to have dishonestly assisted in R’s two breaches, ordered to pay £102 million equitable compensation regarding dissipation of profits –
S successfully appealed to CA – Appeal (like this one), concerned only with S’s liability – But while dishonest assistant like S jointly liable with defaulting fiduciary (ie R) to compensate beneficiary for any loss caused by fiduciary’s breach, they will not be liable to account for any profits received by fiduciary – Accordingly, CA accepted, because HPII would not have realised on-sale profits itself, had suffered no compensatable loss from R’s actions, and so S could not be liable – HPII appealed to SC –
SC majority allowed appeal – Said since unauthorised profits R made held on trust for HPII, and since S dishonestly assisted in dissipation of those profits (to detriment of HPII), S liable to compensate HPII for those dissipated profits – Appeal allowed.
R v Hayes; R v Palombo [2025] UKSC 29 (23 July 2025)
Successful appeals from CA – H and P appealed against convictions in, respectively, August 2015 and March 2019 of conspiracy to defraud – Accused of conspiring with others to manipulate key benchmark interest rates used in financial markets: in H’s case, London Inter-bank Offered Rate (LIBOR); and in P’s case, Euro Inter-bank Offered Rate (EURIBOR) – Benchmark interest rate intended to reflect current borrowing cost in market – Banks participating in setting benchmark rate were asked to submit rate at which bank (for LIBOR), or prime bank (for EURIBOR), could borrow funds at specified time – Rates submitted averaged and trimmed to generate rate published for day –
In both cases prosecution alleged defendant dishonestly agreed, with others, to procure or submit false or misleading rates for setting LIBOR or EURIBOR , intending to create trading advantage, deliberately disregarded proper basis for submitting rates and intending to prejudice others’ economic interests – H and P each convicted at trial – H sentenced to 14 years’ imprisonment, reduced on appeal to 11 years – P sentenced to 4 years’ imprisonment – One ground on which H sought to appeal against conviction was judge misdirected jury about what they had to decide, meaning essential question of fact withdrawn from jury’s consideration – CA rejected argument dismissed appeal – CA again approved directions given at H’s trial in later case –
In 2023, Criminal Cases Review Commission referred convictions back to CA after United States court decided similar LIBOR manipulation case differently – Convictions quashed and charges dropped in that jurisdiction – H and P renewed argument judge’s directions to jury wrong in law – CA ruled argument should not be allowed because not related to reason for reference and CA already considered and rejected – CA dismissed appeals and upheld convictions, but certified appeals raised following point of law of general public importance:
“Whether as a matter of law upon the proper construction of the LIBOR and EURIBOR definitions:
(a) If a LIBOR or EURIBOR submission is influenced by trading advantage, it is for that reason not a genuine or honest answer to the question posed by the definitions; and
(b) the submission must be an assessment of the single cheapest rate at which the panel bank, or a prime bank, respectively, could borrow at the time of submission, rather than a selection from within a range of borrowing rates.”
SC granted leave to appeal – Unanimously answered both parts of certified question in negative, allowed both appeals and quashed convictions – Said essential part of prosecution case was defendant agreed with others to procure or make submissions of rates which were “false or misleading” – As answer to question posed by LIBOR or EURIBOR definition matter of opinion, submission of rate could only be “false or misleading” if did not represent submitter’s actual opinion of relevant borrowing rate – Question of fact which, in criminal trial, is province of jury and not judge to decide – Appeals allowed.
R v Kloubakov [2025] SCC 25 (24 July 2025)
Unsuccessful appeal from Alberta CA – Concerned Criminal Code provisions relating to sex work violating right to security of person under s 7 Canadian Charter of Rights and Freedoms – Question whether provisions too broad preventing sex workers taking measures to protect their own safety –
SC previously ruled on constitutionality of sex work declaring several criminal offences unconstitutional because they prevented sex workers from taking safety measures to protect themselves from violent clients –
Subsequently Parliament added new offences to Criminal Code – Included making money from someone else’s sex work (s 286.2 — material benefit offence) and helping arrange sex work for money (s 286.3 — procuring offence) –
K and M drivers for escort business, convicted of new offences – Trial judge ruled offences deprived sex workers of ability to take safety measures contemplated in previous SC case and therefore violated their rights under s 7 Charter – Entered stay of proceedings – Alberta CA overturned decision, restored convictions, and referred case back to trial court for sentencing – Messrs. K and M appealed to SC -
SC unanimously dismissed appeal – Said, applying modern principle of statutory interpretation, neither material benefit offence nor procuring offence prohibited safety measures contemplated in previous case – Material benefit offence aimed at stopping people from profiting from others’ sex work in exploitative ways, but allowed sex workers to hire drivers, security staff, and others to help keep them safe – Procuring offence only applied where someone deliberately tried to induce another person to sell sexual services, not those who rented space to sex workers or offered them advice on staying safe – Consequently, offences did not engage sex workers’ security of person and do not infringe s 7 Charter – Convictions affirmed – Appeal dismissed.
R v Bharwani [2025] SCC 26 (25 July 2025)
Unsuccessful appeal from Ontario CA – Concerned whether accused person with history of serious mental illness unfit to stand trial, and whether he could introduce new psychiatric evidence on appeal – Section 2 Criminal Code states “unfit to stand trial” means accused unable, on account of mental disorder, to conduct defence or instruct counsel to do so –
B, with history of mental health challenges, charged with killing roommate – During pre-trial proceedings, concerns raised regarding fitness to stand trial – Jury ultimately ruled him fit –
At trial, B raised defence of not criminally responsible on account of mental disorder – Defence called two psychiatrists to testify as experts – Diagnosed B as having schizophrenia and psychosis symptoms at time of offence, preventing him from understanding moral wrongfulness of actions – Crown also called psychiatrist, who diagnosed B with schizophrenia but concluded capable of appreciating nature and quality of actions – Jury convicted B of first-degree murder –
B appealed conviction and brought motion before CA to introduce new evidence from two additional psychiatrists – CA dismissed both motion and appeal – B appealed to SC and brought further motion to introduce new evidence –
SC majority dismissed appeal – Said accused fit to stand trial when able to make and communicate decisions based in reality in conduct of defence or when instructing counsel to do so – Necessitated understanding of nature or object and potential consequences of proceedings grounded in reality, as well as ability to understand and select between available options and consequences when making decisions – Not required that accused be able to make decisions in best interests, but cannot be overwhelmed by delusions, hallucinations, or other symptoms of mental disorder when making and communicating those decisions – Here, deference should be shown to trial judge’s ruling although B’s mental disorder prevented B from making decisions in own best interests, no reasonable grounds to believe B did not understand reality of trial –
New evidence B wanted to introduce before CA could not reasonably be expected to have affected trial outcome – CA made no error warranting intervention – Likewise, new evidence B wanted to introduce before SC could not reasonably have affected trial result and therefore should not be admitted – Appeal dismissed.
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