New Zealand Law Society - Courts roundup 26 February - 4 March 2026
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Nand v Idea Services Ltd [2026] NZSC 9 (23 February 2026)
Unsuccessful review application – Self-represented N sought to file two leave applications – Deputy Registrar refused – Both related to CA declining N’s application for leave to appeal under s 214 Employment Relations Act 2000 from Employment Court striking out N’s application for leave to challenge Employment Relations Authority determination out of time –
SC Judge said nothing N raised called into question Deputy Registrar’s decisions about SC jurisdiction– Deputy Registrar plainly right application under s 214 not criminal proceeding and civil application relates to decision to refuse to give leave to appeal in terms of s 68(b) – Might be latter application could be treated as if sought leave to appeal direct from Employment Court – Circumstances had to be exceptional to justify “leapfrog” appeal – However, civil application here not formulated as for direct appeal and nothing to suggest should have been treated as such – Application dismissed.
Cullen v Pa'u [2026] NZCA 30
Unsuccessful judicial review challenging decision C had trespassed on school property which entitled the Board to issue a trespass notice - C’s New Zealand Bill of Rights Act 1990 (NZBORA) rights were either not engaged or not infringed by the decision or, if they were, the limitation was justified under s 5 NZBORA - C provided tutoring and mentoring services to several students at Mount Albert Grammar School (MAGS) - When coming onto school grounds, C would not comply with school procedures and engaged in disruptive communications with staff both over email and in person - P was engaged to manage interactions between MAGS and C - Acting with the authority of the headmaster, P emailed C to say that the school intended to issue a trespass notice against him -
Judge erred in finding C had trespassed on the school grounds and in declining to determine whether the email was a trespass notice - School and the Aquatic Centre were not open to the public but members of the public had an implied licence to come onto private property for lawful reasons to communicate with the occupier - An occupier can revoke the implied licence without notice by making it clear to the person concerned that they no longer have permission to remain on the land - In addition, the school had a well-publicised policy under which visitors were permitted to come onto school grounds for specific purposes – When C came onto the school grounds to pick up, drop off or meet with students he did so pursuant to that licence - Board had no basis upon which to give a warning under the Trespass Act 1980 - Email sent simply revoked C’s licence (both the implied licence and the licence that arose pursuant to the school’s visitor policy) to come onto school property and the Aquatic Centre – If C entered those places again, a formal warning could be given under the Trespass Act - C’s and students’ NZBORA rights were not unjustifiably limited.
Breen v Prime Resources Company Ltd [2026] NZCA 33
Successful appeal by B against EC decision - Instead of bringing a personal grievance claim, the correct and only available process B to have followed under the ERA was to invoke the dispute procedure – B was employed by Auckland property developer (Prime) – During Covid lockdown Prime informed B it needed to deduct his wages for the previous month, due to his absences from work – B maintained he had worked all of his contracted hours and that the company could not deduct his wages, but it did so anyway - Although B was eventually paid his full wages following a mediation, he then brought a personal grievance for unjustifiable action under s 103(1)(b) Employment Relations Act 2000 - Employment Relations Authority awarded B $2,000 for the stress, hurt and humiliation caused by the late payment – On appeal Prime contended the purported unjustifiable action derived solely from the interpretation of the employment agreement and could not, under s 103(3) be the subject of a disadvantage grievance, that meant that instead of bringing a personal grievance, the correct and only available process for B to follow was to invoke the dispute procedure under s 129 where no compensation could be awarded -
EC erred in its construction and application of s 103(3) - Guiding principle was to interpret and apply s 103(3) in a way that gave effect to the word "solely", but which also rendered the distinction between disputes and disadvantage grievances meaningful - Section 103(3) prohibited co-extensive causes of action where the resolution of the claim turned entirely on a finding about the correctness or otherwise of an employer’s genuine interpretation of the provision or provisions in question – For a disadvantage grievance to be available there must be something more than a disputed interpretation - Despite the interpretation of the agreement being an important feature of his claim, there was something more – B’s complaint was not solely about whether his wages could be deducted in the circumstances of a Covid lockdown, but also the method of calculating the hours he had worked and the way the company had actioned the deduction - Correctly interpreted, s 103(3) did not prevent the Judge from determining B's personal grievance – Matter remitted to EC for determination of personal grievance.
William v Commissioner of Police [2026] NZCA 36
Unsuccessful appeal by W against restraining orders against properties under Criminal Proceeds (Recovery) Act 2009 – W convicted of stolen property charges in relation to a commercial-scale stolen property operation – HC found reasonable grounds to believe properties were tainted and any loss that occurred through the sale of the properties to date not fault of Commissioner -
Reasonable grounds to believe properties were tainted - Evidence of taint sufficient to meet threshold test for imposition of a restraining order - While the sums sourced directly from criminal activity were small, sufficient to establish tainting - Restraint should not be removed on disproportionality grounds - Property portfolio had net equity of around $10m - 13 properties sold for a total of $9.3m, which W argued had wiped out equity – While potential for disproportionality, there was difficulty in quantifying the assets and the benefit at current stage, particularly in light of uncertain market conditions - Not satisfied the Court acted in a clearly disproportionate way - Commissioner should not be required to provide an undertaking as to damages - There had been considerable delay in selling the properties and there had been a loss on the value of the property portfolio - However, W had placed 12 of the properties on the market just prior to the original restraining orders, therefore a decision to sell the properties had already been made - Commissioner could not be expected to give an undertaking against losses incurred on sales that W agreed to.
Taratu v R [2026] NZCA 38
Unsuccessful appeal against conviction – Successful appeal against sentence – T pleaded guilty to cannabis dealing (x2) and was found guilty by a jury of dealing cocaine and ketamine - Sentenced to nine years and eight months' imprisonment - Starting point adopted of 10 years for lead offending plus an uplift of two years for other offending – Totality deduction appropriate which brought sentence back to 10 years – Deduction of four months for personal circumstances and remorse -
Trial counsel incompetence had not resulted in a miscarriage of justice – T had instructed counsel not to contact certain witnesses - None of the proposed testimony could materially advance T’s case - T accepted counsel’s advice against calling a drug expert witness - Counsel was adequately prepared for trial - Any omissions made by counsel could not have caused a miscarriage of justice - Starting point not erroneous given various aspects of T’s offending, which included repeated provision of cannabis to his son, dealing in drugs of different classes, and substantial amounts of both cocaine and ketamine for commercial profit - Deduction for T’s background and personal circumstances inadequate - One-year (10 per cent) discount would have been appropriate given T’s exposure to alcohol, drugs and gangs likely influenced his path to commercial drug dealing - Sentence of nine years' imprisonment substituted.
[A] v R [2026] NZCA 35
Mason v R [2026] NZCA 39
Successful appeal by M against a sentence of three years and one month imprisonment for aggravated burglary, receiving and driving offences – M argued Judge erred by adopting a starting point that was 40 per cent higher than his co-offender and applying a 6-month uplift for the receiving and driving offending -
Starting point within range for offending – However, care needed to ensure offenders that offended in a similar way attracted a similar starting point - Judge erred when fixing disparate starting points, and disparity was not adequately explained by the Judge - Given overall joint nature of offending, any uplift on starting point would need to be small - Adopting a starting point of 33 months, a total uplift of five months for the other offending justified - 15 per cent discount for rehabilitative efforts available given M’s significant efforts - No further adjustment for time spent on bail beyond the three months reduction adopted by the Judge was needed given M offended while on it - End sentence of 27 months gave effect to sentencing purposes and principles.
R v Boulter [2026] NZHC 326 (25 February 2026) Paulsen J
Sentencing – B guilty to murdering McD with whom had brief relationship – Obsessive behaviour, threatening messages – Waited outside McD’s house with hunting knife, 55 stab wounds to body, limbs and head – McD's two children present – History of obsessive behaviour towards women escalating to physical attacks – Life imprisonment not manifestly unjust – 17 years notional MPI appropriate considering case law (including 18-month uplift for criminal history and 18-month deduction for guilty plea) – Sections 86P and 104 Sentencing Act 2002 applied – Not accepted B's planning lengthy or calculated – Accepted high level of brutality and callousness present – End sentence life imprisonment, MPI 17 years.
Smiler v Attorney-General [2026] NZHC 375 (27 February 2026) Grice J
Unsuccessful declaration applications – Applications under Declaratory Judgments Act 1908 and common law for declarations Crown bound by Ministerial assurances to HC, SC regarding implementation of mixed ownership model (MOM) state-owned enterprise Mighty River Power Ltd – S also sought directions Crown prepare for Court consideration, safeguards scheme to give reasonable assurances Crown would not prejudice Māori water rights in future water allocations – S claimed Crown assurances would progress Māori rights and interests in freshwater and geothermal assets generally, assurances breached –
HC said assurances did not have meaning claimed – Limited to assurances MOM programme would not affect either government’s progression of fresh water regulatory reform and recognising Māori rights and interests, or Crown’s ability to continue to meet Treaty claims – Application of tikanga and Treaty principles did not change assurances meaning – Directions sought would interfere with ongoing development of policy and introduction of legislation, so breach doctrine of non-interference with parliamentary process – Neither estoppel nor contempt of court made out and requirements of doctrine of legitimate expectation (although not pleaded) not met – Objection under Parliamentary Privilege Act 2014 regarding parts of affidavit evidence upheld – Applications dismissed.
THG Plc v Zedra Trust Company (Jersey) Ltd I [2026] UKSC 6 (25 February 2026)
Successful appeal from CA – Issue whether any limitation period applied to applications under ss 994-996 Companies Act 2006 –
Under s 994 shareholder in company could apply to court for remedy on grounds affairs conducted in manner unfairly prejudicial to interests of some or all shareholders, or company act or proposed act or omission was or would be unfairly prejudicial –
Appeal here concerned petition alleging unfair prejudice regarding THG Plc (THG) – Petitioner Jersey company, Zedra Trust Company (Jersey) Ltd (Zedra), which acquired 13.2 per cent stake in THG in 2013 – In 2019 Zedra petitioned court under s 994 alleging conduct of THG’s affairs unfairly prejudicial to Zedra – In 2022 Zedra applied to amend petition to include allegation unfairly prejudiced by being excluded from bonus share issue made more than six years earlier to some shareholders, claiming compensation for alleged resulting loss –
THG opposed amendment, saying time-barred by s 9 Limitation Act 1980 (1980 Act), which said “an action to recover any sum recoverable by virtue of any enactment” subject to six-year limitation period – HC said, relying on previous decisions, textbooks and Law Commission reports, no limitation period applied to claims under s 994 – Ruled amendment not time-barred and should be allowed –
CA allowed THG’s appeal – Relying on previous case law (none of which concerned unfair prejudice petitions), said all petitions under s 994 subject to 12-year limitation period under s 8 of 1980 Act (which provided 12-year limitation period for ‘action upon a specialty’) and claims for monetary relief under s 994 subject to six-year limitation period under s 9 –
CA said as only remedy Zedra sought was compensation, claim fell within s 9 and time-barred – Zedra appealed to SC, saying neither s 8 nor s 9 applied to unfair prejudice petition –
SC four to one majority allowed appeal – Said claim under s 994 neither ‘action upon a specialty’ under s 8 of 1980 Act nor, regarding any claim for monetary relief, ‘action to recover any sum recoverable by virtue of any enactment’ under s 9 – Therefore, no limitation period applied to claims under s 994 – Appeal allowed.
R v ABJ; R v BDN [2026] UKSC 8 (26 February 2026)
Unsuccessful appeals from CA – Appeals concerned criminal offence in s 12(1A) Terrorism Act 2000 (s 12(1A) offence) – Under s 12(1A), person committed offence if they: (a) expressed opinion or belief supportive of proscribed organisation, (b) in doing so, were reckless as to whether person to whom expression directed encouraged to support proscribed organisation – SC asked to decide whether offence terms interfered disproportionately with appellants’ right to freedom of expression protected by article 10 European Convention on Human Rights (Convention) –
ABJ and BDN (appellants) both charged with s 12(1A) offences – Alleged to have expressed opinion or belief supportive of Hamas, proscribed organisation listed in Schedule 2, Terrorism Act 2000 – Neither case had gone to trial, so facts not yet established – However, following facts agreed for appeals –
ABJ gave speech on 8 October 2023, day after Hamas attacks on Israel, in which over 1,200 people were killed and 251 people were taken hostage – Speech part of Palestine Solidarity Campaign event – Lasted about four minutes and included words describing 7 October events as “a victory” - Police officers present at event took no action, but ABJ arrested and later charged after edited footage speech published online –
BDN’s indictment arose from incident on 17 October 2023, when stood outside gates to Downing Street holding placard and small loudhailer – One side of placard read: “HAMAS is the vanguard of the Resistance – Avi Shlaim” – Other side read: “You won’t destroy HAMAS – Tony Blair” – BDN asked passer-by to film him using BDN’s phone - Then set off short alarm sound on loudhailer and used it to express his support for “the physical force resistance in Palestine” in presence of passing members of public – Film never livestreamed or shared by any means – BDN arrested later same day, while holding placard in another part of Westminster –
Preparatory hearings held in both cases to clarify applicable law – In ABJ’s case, judge ruled, if ingredients of s 12(1A) offence proved, no need for jury to conduct separate assessment of whether conviction would interfere disproportionately with ABJ’s right to freedom of expression under article 10 – In BDN’s case, judge rejected BDN’s contention s 12(1A) offence too uncertain to be “prescribed by law” as Convention required – Judge also said establishing ingredients of s 12(1A) offence sufficient to ensure conviction compatible with BDN’s right to freedom of expression under article 10 –
Both ABJ and BDN appealed – CA heard appeals together, dismissed appeals, but certified following point of law of general importance as being involved in each case: Do terms of s 12(1A) represent disproportionate interference with appellants’ rights under article 10 of Convention? If so, is it possible to read down terms of offence to make them compatible?
SC unanimously dismissed appeals – Said s 12(1A) offence did not interfere disproportionately with defendants’ rights to freedom of expression under article 10 Convention – No need for trial courts to carry out separate proportionality assessments to ensure each defendant’s conviction compatible with article 10 – Appeals dismissed.