Leave to appeal, interlocutory suppression and redaction orders, fair trial rights vs open justice      

Clarke v Financial Markets Authority [2026] NZCA 401 (26 August 2026)  

Unsuccessful applications for leave to appeal by directors of Du Val Group, Cs, against two HC interlocutory decisions made in the FMA's asset preservation proceedings – Proceedings brought amid an ongoing FMA investigation into alleged misuse of investor funds and misleading representations to investors and financial institutions by the Du Val Group – The first interlocutory decision declined to suppress submissions and evidence about the Cs' alleged risk of dissipation of assets and/or flight risk; the second declined to redact large portions of the substantive judgment granting preservation orders – Cs argued HC understated their fair trial risk and overstated the weight of open justice and raised numerous claimed errors going to both decisions –  

CA held neither decision disclosed a seriously arguable error of law or fact, noting media reporting is presumed fair and accurate – Much of the material was already public and conventional trial directions/process could address prejudice – Decisions applied well-established authority and raised no issue of general or public importance – Any further delay would improperly derogate from open justice and the media's right to report – 

Applications for leave to appeal declined – Cs ordered to pay the FMA standard costs (band A) plus disbursements.  

Sentence appeal, murder, minimum period of imprisonment, mental illness, manifest injustice   

Lee v R [2026] NZCA 399 (27 August 2026)  

Successful appeal against sentence – L convicted at trial of murdering her two young children – Jury rejected her insanity defence – Venning J imposed life imprisonment with a 17 year MPI finding s 104 Sentencing Act 2002 engaged (vulnerability of child victims, two victims) and reducing a 22 year starting point by 5 years for her major depressive/prolonged grief disorder – Venning J distinguished R v Dickason (three children killed with extreme brutality, finite 18 year sentence, no MPI) on the basis L's mental illness did not "dominate or drive" her actions, given her calculated post-offending conduct (concealing the bodies, changing her name, fleeing to Korea) –  

CA agreed with Venning J's factual findings on motive and conduct but disagreed with his conclusion on causation, finding mental illness was the "dominant contributing factor" in the offending (applying Van Hemert v R) and that this was not materially distinguishable from Dickason, since Dr Monasterio gave similar evidence in both cases – CA held that where mental illness has a causative role, a sentencing court must assess the degree to which it reduces the weight of the engaged s 104 factors, and here general deterrence, denunciation and community protection carried less weight given L posed no risk to others and had genuine rehabilitative prospects –  

Comparing outcomes in Van Hemert, R v Smith and Dickason (all involving mental illness and resulting in 10 year MPIs or lower), CA held the 17 year MPI was manifestly unjust under s 104 and substituted a 10 year MPI, consistent with s 103(2) least restrictive sentence – However, CA agreed with Venning J that life imprisonment itself (rather than a finite sentence) was not manifestly unjust under s 102 given the killing of two vulnerable children required an indeterminate sentence notwithstanding L’s mental illness –  

Appeal allowed – Sentence of life imprisonment with 17 year MPI set aside – Life imprisonment with 10 year MPI substituted – Order under s 34(1)(a)(i) Criminal Procedure (Mentally Impaired Persons) Act 2003 remained in force.  

Representative orders, Canterbury earthquakes, indemnity vs replacement cover, limitation  

Toka Tū Ake - Natural Hazards Commission v Freer [2026] NZCA 396 (26 August 2026)  

Cross-appeals concerning a proposed class action by F and M against Toka Tū Ake Natural Hazards Commission (the Commission) over settlement of increased liquefaction vulnerability (ILV) and increased flooding vulnerability (IFV) land damage claims from the Canterbury earthquakes – F and M argued cover under s 19 Earthquake Commission Act 1993 was for reinstatement cost up to the statutory cap, not indemnity value, contrary to the Full Court decision in Earthquake Commission v Insurance Council of NZ – CA held the Full Court's interpretation was not arguably wrong: s 19 provided indemnity cover only, consistent with ordinary insurance principles and the legislative history distinguishing land from buildings –  

On the Commission's appeal, CA held the common issues (whether the Commission's DOV policy and settlement strategy complied with the Full Court decision) would materially advance class members' claims despite individual entitlement still requiring proof at a second stage, applying Southern Response Earthquake Services Ltd v Southern Response Unresolved Claims Group – However, CA agreed with the Commission that F and M were not suitable representative plaintiffs because there was no evidence they could or intended to repair their land (a prerequisite to a cost of repair settlement), given their own insurer had settled on a repair rather than rebuild basis – Representative order was therefore set aside on this ground –  

CA rejected the Commission's limitation argument: the application issue pleaded in the second amended statement of claim particularised, rather than departed from, the original pleading and was not a fresh cause of action, so was not time-barred –  

Although not strictly necessary given the above finding, CA also held (obiter): the plaintiffs' claim had sufficient commonality with IFV claimants to be treated as having the "same interest"; W, proposed by F and M as an alternative representative plaintiff for the sub-class of owners who had suffered IFV damage, was not a suitable representative for the IFV sub-class as he was not, and could not readily become, a party to the proceeding; and the class should exclude both former owners who retained the right to claim without repairing, and subsequent owners who took an assignment of that right, applying Xu v IAG New Zealand Ltd –  

Commission's appeal allowed in part – Representative order set aside – Plaintiffs' appeal dismissed – Costs to the Commission on appeal on a standard band A basis, no order as to costs on plaintiffs’ appeal.  

Sentence appeal, drug offending, leading role, erroneous sentence

Gilchrist v R [2026] NZCA 391 (21 August 2026)   

Successful appeals by G against DC's refusal to resentence him and against a sentence of 13.5 years' imprisonment, following guilty pleas to multiple drug importing, supplying and possession charges plus use of a forged document –   

At sentencing Judge did not specify lengths of each individual sentence imposed concurrently and, by a subsequent minute, erroneously imposed sentences (and deemed convictions) on 8 additional charges to which G had not pleaded guilty and on which the Crown offered no evidence – G applied to be resentenced, but Judge instead purported to discharge him on those charges under s 147 Criminal Procedure Act 2011, considering they had not affected end sentence –   

CA held s 147 could not apply post-sentencing, and doubted whether s 180 (correcting an erroneous sentence) extended to vacating convictions already deemed entered – Exercising its power under s 300 to make any order the court considers justice requires, CA set aside any vestigial conviction or sentence on the additional charges –   

On substantive sentence appeal, CA agreed G held a leading role in an enterprise where methamphetamine offending, though significant (2 kg), was incidental to the primary MDMA, ketamine and mephedrone operations – Adopting a starting point of 12 years (maintaining parity with a co-offender's 9 year starting point), plus a 3 year uplift for balance of offending and 12 months for offending on bail, CA allowed 30 per cent for personal mitigating factors, background, rehabilitation and guilty plea –   

CA found original sentence manifestly excessive; a sentence of 12.5 years imprisonment substituted.  

New Zealand High Court

Sentencing, murder, minimum period of imprisonment, breach of protection order

R v Dickinson [2026] NZHC 2570 (27 August 2026)  

Sentence – Murder and five breaches of protection order – Protection order made against D following findings of family violence – D repeatedly contacted victim in breach of protection order, including thousands of abusive electronic messages and threats to kill – While on bail awaiting sentence for earlier breaches D entered victim's home and stabbed her 13 times, including a fatal wound to the neck, in the presence of her sister and a young child –   

HC held life imprisonment was not manifestly unjust – Found four aggravating factors under Sentencing Act 2002 s 104(1A) subsections engaged, namely (c) particular cruelty and brutality, (d) attack on victim's neck, (e) offending committed against person protected by a protection order, and (h) commission in the course of another serious offence (breach of protection order) – Took starting non-parole period of 19 years, having regard to comparable cases involving fatal stabbings in breach of protection orders – Allowed 2 year discount for guilty pleas, entered one year after offending – No discount available for personal background, notwithstanding psychiatric evidence, given absence of any credible link to diminished culpability – MPI set at 17 years –  

On protection order breaches, HC found murder of a protected person fell within most serious category of such offending, warranting maximum penalty – Imposed total of 9 years' imprisonment before 25 per cent guilty plea discount, resulting in 6 years 9 months' imprisonment to be served concurrently – First warning given under three strikes regime.  

Sentencing, manslaughter, manual strangulation, intimate partner violence     

 R v Feng [2026] NZHC 2563 (26 August 2026)  

F pleaded guilty to manslaughter of partner W, who he killed by manual strangulation during an argument at her home – He moved her to a couch, left to smoke, and did not seek medical assistance – After arranging care for his daughter, he contacted an English-speaking friend, surrendered to police, directed officers to the body, and cooperated with the investigation –   

Original murder charge was amended because there was insufficient evidence that he intended or appreciated that W would die – W was a 40-year-old registered nurse at Starship Children’s Hospital – Her death caused profound harm to her mother and cousin, and had a widespread effect on her colleagues, the hospital, and the children and families she served – Although manslaughter does not involve murderous intent,  Court emphasised the inherent lethality, coercion, fear, and serious risk associated with strangulation – Offending involved an attack on the vulnerable neck of an intimate partner in her own home, a breach of trust, and widespread consequential harm – Failure to seek medical assistance also aggravated the offending, although only to a limited extent because F promptly surrendered and accepted responsibility –   

Cross-checking against Taueki and Shramka, and the 7 year maximum for non-fatal strangulation, Court adopted starting point of 7 years' imprisonment – Total reduction of 40 per cent was allowed: 20 per cent for guilty plea, 5 per cent for impact of imprisonment as a non-English-speaking foreign national; 5 per cent for genuine remorse; and 10 per cent for personal circumstances, psychiatric evidence of depression, anxiety and possible personality vulnerabilities, and the impact on his daughters – No separate allowance  made for good character because there was evidence of possible prior violence against W – End sentence 4 years 2 months' imprisonment.

Charitable trusts, standing, trustee decision-making, consultation  

Taranaki Community Accountability Society Inc v Ussher [2026] NZHC 2519 (24 August 2026)   

Unsuccessful application for interim injunction – TCAS sought to prevent Toi Foundation trustees voting on proposed $620M sale of Foundation’s 100 per cent shareholding in TSB Bank to Heartland Group – TCAS alleged inadequate consultation, predetermination and unreasonable decision-making, and sought order requiring trustees to apply for directions under s 133 Trusts Act 2019 (TA) –  

HC held TCAS lacked standing to seek review under TA ss 126–127 - Section 126 permits review application only by beneficiary – Charitable trusts have no beneficiaries for purposes of those provisions, and persons who may benefit from charitable purposes are excluded from definition of beneficiary – Attorney-General remains appropriate party to enforce charitable trusts in public interest –  

HC nevertheless considered merits – No serious question that Foundation breached Trust Deed’s consultation requirements – Consultation was extensive and Trust Deed did not require consultation while proposal remained at formative stage – No serious question trustees’ proposed decision was one no reasonable trustee could make, or that trustees had predetermined decision –  

HC rejected application to require trustees to seek directions under s 133 – Section 133 provides trustees may apply for directions but does not empower Court to compel such an application –  

Interim injunction refused – TCAS failed to establish serious question to be tried, and balance of convenience and overall interests of justice favoured allowing trustees to proceed – Prospective costs order also refused.  

United Kingdom Supreme Court

Landlord and tenant, right to manage, notice of invitation to participate, statutory construction        

Avon Freeholds Ltd v Cresta Court E RTM Company Ltd [2026] UKSC 31 (27 August 2026)