New Zealand Law Society - Courts roundup 4 June - 10 June
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Whangarei District Council v Daisley [2026] NZSC 72 (4 June 2026)
Successful appeal in part by Council against finding of fraudulent concealment – D owned property subject to quarrying restrictions enforced by Council between 2005 and 2011 – Council issued abatement notices asserting D lacked resource consent – 1988 land use consent authorising quarrying discovered in Council's archives in 2009, by which time D compelled to sell at significant loss – D sued Council in 2015 – HC awarded $4.25M for negligence and misfeasance in public office – CA overturned misfeasance finding and reduced damages – Whether limitation period was extended by fraudulent concealment under s 28(b) Limitation Act 1950 or by continuing breach doctrine – Whether Council's conduct amounted to tortious misfeasance –
Fraudulent concealment under s 28(b) required actual knowledge or wilful blindness, both as to essential facts giving rise to cause of action and as to their wrongfulness – Mere recklessness or negligence insufficient – SC declined to determine whether duty to disclose required under New Zealand law – Council's conduct, while grossly negligent, had not met threshold for equitable fraud – Finding of fraudulent concealment set aside and damages otherwise set aside except $90,000 award for loss of property value – Cross-appeal on misfeasance dismissed – Winkelmann CJ dissented, holding unconscionable (rather than dishonest) conduct sufficed for equitable fraud under s 28(b) and Council's recklessness met that standard – Appeal allowed in part.
Singh v R [2026] NZSC 73 (4 June 2026)
Unsuccessful applications by S and K for leave to appeal sentence – S sentenced to 22 years imprisonment and K to 21 years imprisonment, each with MPI of 10 years - Offending involved over 700 kg of methamphetamine concealed in cans labelled as beer or kombucha – S pleaded guilty to importing ephedrine and methamphetamine and possession of methamphetamine and cocaine for supply - Largest methamphetamine seizure in NZ at time – K found guilty after trial of manslaughter and possession of methamphetamine for supply – K distributed cans of concealed product to workmates, one died after unknowingly consuming methamphetamine – S more senior offender, arranging storage and transportation - K assisted S over extended period and had independent access to storage facility – Both applicants challenged MPI unsuccessfully at CA – Whether proposed appeals raised questions of general or public importance regarding approach to MPI under s 86 Sentencing Act 2002, particularly for lengthy sentences where risk of reoffending low – S submitted MPI produced disproportionate severity without incremental sentencing gains – K submitted MPI was imposed mechanically without the reasoned analysis required by Zhang v R –
Present cases were not an appropriate vehicle to consider the approach to s 86 due to seriousness of offending – No appearance of miscarriage of justice – Applications dismissed.
[B] v R [2026] NZCA 224 (3 June 2026)
[E] v R [2026] NZCA 228 (3 June 2026)
[H] v Family Court at Auckland [2026] NZCA 226 (3 June 2026)
Atkocaitis v R [2026] NZCA 225 (3 June 2026)
Unsuccessful appeal against sentence – Pleaded guilty to wounding with intent to cause grievous bodily harm and wilful damage – Sentenced to 5 years 9 months imprisonment – A and victim friends, fell out over payment for painting work – A slashed tyres on victim’s vehicle, returned later and stabbed victim approximately 17 times – starting point 9 years (upper end band two of R v Taueki) based on extreme violence, attacks to neck and use of a lethal weapon – Discounts for guilty plea (20 per cent), remorse (2 per cent), rehabilitation prospects (4 per cent), and traumatic brain injury (10 per cent) – Whether HCJ erred by insufficiently discounting for traumatic brain injury and by taking into account A's alcohol consumption –
Discount for brain injury appropriate given significant alcohol use in lead-up to offending which likely contributed to loss of self-control – Discount for remorse generous given A's claims stabbing was accidental or in self-defence and no display of remorse – Sentence not manifestly excessive – Appeal dismissed.
Green City Developments Ltd v Murphys Park Development LP [2026] NZCA 220 (2 June 2026)
Unsuccessful appeal by appellant GC against dismissal of its counterclaim for breach of contract – GC and respondent MP property developers and owned adjoining properties – MP agreed to sell GC block of land (boundary adjustment land) and complete enabling works (services connection) by certain date – GC on-sold the land conditional on title issuing – Works not completed on time – Variation agreement executed requiring MP to use "all reasonable commercial endeavours" to complete enabling works by certain date – Variation agreement also introduced a land swap option, shifting northern boundary into proposed Transpower underground cable corridor – GC exercised swap before Transpower agreement went unconditional, expanding the enabling works scope – Enabling works completed and title issued after date specified in variation –
GC bore burden of proving MP failed to use all reasonable commercial endeavours and failed to discharge it – No evidence MP had not used all reasonable commercial endeavours to complete enabling works – Analysis of completion of enabling works required consideration of matters of fact and law arising from the parties obligations under the various agreements and actions taken – Delays attributable to GC's own early exercise of the land swap, Transpower corridor constraints, weather, and COVID-19 rather than failure by MP - Expert evidence properly disregarded given factual gaps - Completion meant physical works not title – Appeal dismissed.
O’Byrne v R [2026] NZCA 203 (28 May 2026)
Unsuccessful application for leave to bring second appeal – Convicted of wilful damage – Ordered to pay actual reparations and emotional harm reparation – O drove onto neighbours farm and used digger to dig a trench across her driveway to allow water to flow away from his crops - Digging of trench required urgent repairs to make victim’s driveway operable – HC concluded no admissible evidence that proved installation of pipes not required for purpose of repair – Whether DC reparation order involved compensation for betterment, as victim installed new pipes during repairs despite evidence at trial O left pipes untouched – s 32(3) Sentencing Act 2002 states Court must take into account any right of person who suffered loss or damage to bring proceedings or make “any application in relation to that loss or damage” when assessing the amount of reparation –
O required to provide evidence of quantum, the betterment’s “value and extent”, but provided no admissible evidence to establish the pipes were not required to restore driveway to its original standard – No basis for allegation of prosecutorial misconduct – O sought to relitigate findings of fact made in DC raising matters which were rejected by HC in unsuccessful first appeal against sentence – Application declined.
R v Wirihana [2026] NZHC 1567 (4 June 2026)
Sentencing for manslaughter and conspiring to pervert the course of justice following fatal assault at a tangi in 2018 – Defendant punched victim before pursuing him down street, punching him again and stomping twice on head – Victim later died from complications of blunt-force head trauma – Medical evidence established fatal injury caused by one of the punches rather than stomping – Murder charge amended to manslaughter after Crown accepted intent to kill could not be proved – Defendant and former partner subsequently maintained a false alibi, resulting in a charge of conspiring to pervert the course of justice –
Starting point of 8 years imprisonment for manslaughter, reflecting fatal violence, repeated attacks to head, vulnerability of victim, pursuit after initial assault, and degree of premeditation – 9 month uplift for conspiring to pervert the course of justice – Discounts for guilty plea and relative youth –
End sentence of 7 years imprisonment with MPI of 50 per cent – Court held ordinary parole eligibility would be insufficient to meet the purposes of accountability, denunciation and deterrence.
R v Taylor [2026] NZHC 1523 (29 May 2026)
Sentence for charges of repeated rape, attempted sexual violation by unlawful connection and family violence – Victims left with serious and lasting psychological harm – Offender already serving a 16 year sentence for unrelated sexual offending – Question over imposition of a finite sentence or preventive detention – Remorse expressed questionable – Little opportunity for rehabilitation to date – Adjustment for totality – Personal and cultural background taken into account (10 per cent reduction) -
Although the risk threshold for preventive detention was met, a lengthy finite sentence was the least restrictive sentence consistent with public safety – Cumulative sentence of 6 years imprisonment imposed with total sentence of 22 years – No MPI ordered.
A reference to the Attorney General for Northern Ireland of a devolution issue under 34 paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16 (1 June 2026)
Attorney General for Northern Ireland referred the question of whether a proposed revised Code of Practice under the Mental Capacity Act (Northern Ireland) 2016, treating some persons lacking domestic legal capacity as nonetheless capable of giving valid consent to confinement through their wishes and feelings, would be incompatible with article 5 European Human Rights Convention invoking scrutiny of the concept of “deprivation of liberty” –
Court reversed earlier Cheshire West decision rejecting the existence of an acid test preferring a multi-factorial assessment of the individual’s concrete situation, including the objective element of confinement, the subjective element of absence of valid consent, and state responsibility – Lack of domestic legal capacity does not necessarily mean inability to give valid consent for article 5 purposes – Held a revised code would not be incompatible with article 5 and would therefore be within ministerial competence – Detailed analysis of the correct approach to “deprivation of liberty” under the article as expected to impact local authorities, health boards, hospitals and care homes in the UK – No route to appeal this specific decision to the Strasbourg Court as no “victim” with standing to bring such an appeal.
R v Vrbanic [2026] SSC 19 (4 December 2025)
Successful Crown appeal concerning the application of the complexity exception under R v Jordan – Respondents were charged as part of a large-scale drug trafficking and proceeds of crime prosecution involving 18 accused, extensive disclosure, multiple prosecution groups, and overlapping pre-trial proceedings arising from a lengthy police investigation – To manage the proceeding, the Crown divided the accused into separate prosecution groups –
Respondents were assigned trial dates beyond the 18-month presumptive ceiling after the Crown mistakenly treated them as participants in related Garofoli proceedings challenging warrants and wiretap authorisation – Resulting net delay was 18 months 4 days – Respondents successfully obtained stay of proceedings in Trial Court on basis that their right under s 11(b) of the Canadian Charter of Rights and Freedoms had been breached – Majority of the Ontario Court of Appeal dismissed the Crown's appeal –
SC allowed appeal – Clarified complexity analysis under Jordan involved two stages – Crown must establish that the proceeding was particularly complex and that it took reasonable proactive steps to minimise delay, and then must determine whether the complexity reasonably justified the actual net delay –
Court held prosecution was particularly complex given number of accused, scale of the investigation, volume of disclosure, and extensive related pre-trial proceedings – Crown had taken reasonable measures to reduce delay through prosecution groups and case-management procedures – Mistaken assumption that the respondents would participate in the related Garofoli proceedings did not prevent reliance on complexity exception, particularly where defence had not clarified the respondents' position when scheduling decisions were made –
Court concluded that complexity of the prosecution reasonably explained the delay that occurred and that the net delay of 18 months 4 days was justified by the exceptional circumstance of complexity – Stay of proceedings set aside and matter remitted for trial -
Rowe J, concurring – agreed that the appeal should be allowed but would have developed Jordan to recognise a residual judicial discretion to determine whether delay was unreasonable in all the circumstances, particularly in serious criminal cases –Majority declined to revisit the existing framework.
R v Jacques-Taylor [2026] SCC 20 (29 May 2026)
Successful Crown appeal from Ontario CA – J-T and co-accused jointly charged with firearms offences – Under Jordan’s 18-month presumptive ceiling, delay would become unreasonable in May 2023 – Earliest available trial dates August 2023 but co-accused's counsel unavailable – Trial ultimately scheduled for October 2023, placing net delay at 18 months 2 weeks after deductions – Judge declined to treat unavailability of co-accused's counsel as a discrete exceptional circumstance and granted stay – CA affirmed - SC majority allowed Crown's appeal, set aside stay and remitted for trial –
SC majority adopted 4-part test from R v Tran: to establish a discrete exceptional circumstance arising from a joint trial, Crown must show (1) joint trial was in interests of justice; (2) delay arose from the joint trial; (3) delay was reasonably unforeseen or unavoidable; and (4) Crown could not reasonably have ameliorated it – All 4 criteria met – SC clarified "exceptionality" did not require rarity; circumstances exceptional if outside Crown's control – Duty of all participants in criminal justice system to proactively collaborate to prevent trial delay –
Dissenting: agreed co-accused scheduling delay could constitute discrete exceptional circumstance but Crown did not take reasonable steps to ameliorate delay – Crown's obligation did not depend on accused’s failure to promptly assert their s 11(b) Charter right – Late filing of s 11(b) application did not excuse Crown’s failure to act.
White Australia Party Inc v Commonwealth of Australia [2026] HCASJ 15 (21 May 2026)
Unsuccessful application for interlocutory injunction to restrain operation of regulations declaring plaintiff as a “prohibited hate group” under the Criminal Code – claimed it would criminalise its ordinary membership – Plaintiffs also challenged the constitutional validity of the legislative scheme, alleging infringement of the implied freedom of political communication, inconsistency with Australian Communist Party v Commonwealth, and a breach of the separation of powers -
Application declined – No compelling basis to restrain the operation of legislation before validity was determined – Urgency was self-created – Legislation did not immediately criminalise mere membership.