New Zealand Law Society - Courts roundup 5 February - 11 February 2025
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Body Corporate 406198 v Argon Construction Ltd [2025] NZCA 684
Partially successful appeals by Argon and Auckland Council in respect of the award for investigatory consultancy costs and otherwise dismissed - Council’s appeal is allowed in respect of the escalation award - Bianco Off Queen apartments were built with defects – BC sued Argon and Council in negligence relating to defective waterproofing on cantilevered balconies and at ground level - HC found both defects proven and Argon and Council were liable - HC adopted remedial scope provided by Argon’s expert which did not require full replacement of the defective waterproofing membrane on balconies -
HC correctly assessed scope of duty of care owed by Argon and Council to the BC - Council was under a duty of care to ensure all building work complied with Building Code and on completion, with the building consent - Council assumed risk of losses arising from defective installation - Full reinstatement available remedy - However, insufficient normative linkage between full membrane replacement and breach of duty to secure code compliance because owners could be made good without such a costly remedy - HC also correct to reject such a remedy on reasonableness grounds - Builder ordinarily liable for costs to repair code non-compliant defective works - Builder also subject to contractual obligations, which may more precisely define their responsibilities - Argon took responsibility for site operations and therefore assumed responsibility to build the apartments to achieve code compliance - Argon’s contractual obligations show it assumed responsibility for and control over the relevant elements of the building and was therefore subject to a corresponding non-delegable duty to secure code compliance – HC adopted correct remedial scope.
Liu v R [2026] NZCA 4
Unsuccessful appeal by L against sentence of 14 years' imprisonment for 11 drug-related, money laundering and firearms charges following guilty pleas - Drug charges representative and stem from L’s involvement heading a drug syndicate involving numerous others under his direction and control, supplying very large quantities of methamphetamine and MDMA - Starting point of 20 years for methamphetamine offending and a four-year uplift for the Class B drug offending and totality considerations - 40 per cent discount for personal mitigating factors -
Starting point although stern, was available given the organisational scale, nature of L’s leading role and the quantities involved in methamphetamine dealing - L’s leading role in the enterprise was relevant factor in setting starting point and made his offending more serious than comparable cases, contributing to the stern starting point - Relative to the starting point for standalone Class B drug offending, the consideration of totality had already lowered the uplift significantly - Considering the potential for further uplifts for firearm and money laundering charges and sentencing Judge’s generous discount for mitigating factors, the end sentence is not manifestly excessive.
[C] v R [2026] NZCA 6
R v Snaylam [2026] NZHC 101 (4 February 2026) Venning J
Sentencing – Following jury trial S and two others sentenced for murder – Section 104 engaged on two bases: extensive planning of murder and callousness both at time of murder and in subsequent burying and active concealment of body – MPI of 19 years appropriate for killing – Having regard to individual defendants’ personal circumstances, including in S’s case, age at time (19) and for A-F, not present at killing but fully aware of what was to occur at his property (and whose role fundamentally important) – 17 years MPI for S, 18 years for K and 17 years for A-F appropriate.
Obeid v R [2026] HCA 1 (4 February 2026)
Unsuccessful appeals from New South Wales CA – O, O and McD (O) charged with conspiring together that one of them, McD, would wilfully misconduct himself, without reasonable cause or justification, in public office, as Minister for Mineral Resources in New South Wales state government, regarding granting exploration licence at Mount Penny in New South Wales – Tried by judge alone who found each guilty and sentenced each to imprisonment terms –
At trial, Crown did not provide statement of acts alleged all agreed McD would undertake – Crown case that agreement to undertake acts falling within cumulative elements of charge – Crown provided particulars of acts McD said to have undertaken under, and furthering, agreement reached – Crown also provided further particulars regarding other charge aspects – Included specifying Crown case McD "would misconduct himself with improper purpose of advancing interests (primarily financial) of O’s and/or their family members and/or associates" –
CA dismissed all appeals – All granted special leave to appeal to HC, on single appeal ground – Whether Crown put case at trial capable at law of amounting to conspiracy to commit misconduct in public office where Crown did not allege agreement for McD to do particular act or acts amounting to misconduct in public office –
HC unanimously ruled agreement Crown alleged, as particularised during trial, complete offence of conspiracy to commit misconduct in public office – Alleged agreement contemplated acts McD would undertake, necessarily satisfied offence even though not known and could not be known at time agreement made what "particular acts" McD would undertake to bring about agreement objects – Appeal dismissed.
R v Fox [2026] SCC 4 (6 February 2026)
Unsuccessful appeal from Saskatchewan CA – Case involved recorded phone call between lawyer and client – Normally protected by solicitor-client privilege – Because privilege meant to protect client, only client could waive – However, law recognised some exceptions, one being innocence at stake exception – Allowed courts to give accused access to client’s privileged communications to allow accused to defend themselves –
As part of police investigation into drug trafficking, judge authorised police to intercept phone calls of several individuals – Police required to stop listening if lawyer reasonably believed to be part of call – During investigation, police intercepted and recorded call between criminal defence lawyer and client – However, civilian monitor employed by police kept listening to call after became clear conversation might be protected by solicitor-client privilege – After reviewing recording, judge ruled first part of call not solicitor-client privilege protected, but rest no one could access without further court order – Based on non-privileged portion, lawyer charged with obstruction of justice – Crown alleged lawyer warned client about possible police searches and advised client to remove or destroy evidence –
At trial, lawyer said police violated right to privacy by continuing to listen to call portion protected by solicitor-client privilege – Also said unfair for Crown to rely on non-privileged portion when she could not access privileged portion and use in defence – Trial judge agreed, excluded non-privileged portion from evidence and acquitted lawyer – CA majority dismissed Crown’s appeal –
SC majority dismissed Crown appeal – Said lawyer charged with criminal offence could ask court for access to client’s privileged communications if necessary to defend themselves – Here, however, lawyer did not make request – Non-privileged portion should still be excluded from evidence here, because police breached lawyer’s privacy rights by monitoring call for too long – Privacy breach serious because involved listening to private communication between lawyer and client – Such intrusions could undermine trust in justice system – Appeal dismissed.