New Zealand Law Society - Courts roundup 6 August - 12 August 2026
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Perpetual Trust Ltd v Cooke [2026] NZCA 349 (31 July 2026)
Partially successful appeal by Perpetual Guardian (PG), as court-appointed administrator/trustee of an estate, against HC findings that it breached trust in its management of two estate properties and it’s refusal to allow recovery of associated costs and expenses under its trustee indemnity –
PG undertook methamphetamine testing and decontamination of one property (Orewa) prior to sale, sold it by private treaty to a purchaser above registered valuation, and separately evicted respondent C (a life tenant with drug convictions) from a second property (Wellsford) and resolved to sell it – HC found each decision in breach of PG's s 29 Trusts Act 2019 duty of care, disallowed reimbursement of many associated costs, and ordered respondent's reinstatement at Wellsford –
CA held Judge had wrongly conducted a merits review rather than applying established grounds for intervention in discretionary trustee decisions (ultra vires, bad faith, inadequate deliberation, or perversity/irrationality), and had conflated that supervisory standard with s 29 duty of care, which governs only manner of exercising a decision already made, not whether to make it –
Applying correct standard, PG's testing, decontamination and private-sale decisions regarding Orewa were reasonably open to it, informed by expert advice and market conditions (COVID-19) – However, PG's eviction and proposed sale of Wellsford involved inadequate deliberation, having failed to consider settlor's intent to provide respondent a lifetime home and reasonable alternatives to eviction –
Costs and expenses of PG relating to Orewa in relation to methamphetamine remediation, rates, insurance and maintenance during period of respondent’s occupation recoverable from respondent's share – Costs and expenses of PG relating to Orewa in relation to sale borne by estate as a whole – Wellsford eviction cost remitted to HC – PG entitled to trustee indemnity in respect of costs in this judgment, inspection-related costs recoverable from C –
Appeal allowed in part.
Ohana Ltd v Far North District Council [2026] NZCA 346 (31 July 2026)
Successful application by O, Electric Boat and C for leave to appeal a HC decision declining interim relief in judicial review proceedings against the Far North District Council concerning access to a Council-owned strip of land connecting a road to a pontoon on the Kerikeri River –
C and his daughter lived on a yacht moored at the pontoon, occupied by O under a 2015 resource consent, from which C operated a boating business owned by Electric Boat – Disputes arose over electrical infrastructure installed along the strip by Electric Boat and NZ Electricity Lines Ltd under statutory "electricity operator" powers in s 24 Electricity Act 1992, and over Council's requirement that C remove a bollard, cameras, power boxes and gravel from the strip –
HC found applicants had arguable case regarding infrastructure conveying electricity along strip to connection cabinets, but no arguable case for a direct electrical connection to pontoon itself, characterising relevant components as "electrical installations" rather than "works" under s 24(1) – HC held Council, as registered owner, could control unauthorised installations, and declined interim relief on basis it was not necessary to preserve applicants' position or in the interests of justice –
On application for leave to appeal that interlocutory decision, CA applied established high threshold, requiring an arguable error of law or fact of sufficient importance to applicant – CA held Judge had not addressed full impact of refusing interim relief: although C had since acquired an adjoining property with independent power supply, electricity could not be conveyed to pontoon itself without using the strip, meaning Electric Boat's ongoing business operations remained unassisted by that purchase – This omission constituted an arguable error sufficiently important to applicants to warrant appellate consideration, notwithstanding limited precedential value –
Leave to appeal granted, costs reserved.
Karauria v R [2026] NZCA 339 (29 July 2026)
Unsuccessful application for leave to appeal out of time against sentence of life imprisonment, with 12-year MPI, imposed in 2018 for murder of D when K was aged 17 –
K, working with others, lured D to a remote area under pretence, stabbed him nine times before stamping on his face and head to ensure he was dead - On being told D had moved, K returned and repeated attack – D was left where he lay and found dead 12 hours later –
Application nearly 7 years after sentencing - Reliance on Dickey v R, which found youth could render life imprisonment manifestly unjust in some cases, and citing reasoning subsequently applied to similar applicants in Kriel v R –
CA held s 104 Sentencing Act was engaged both by brutality of killing and by calculated planning involving making arrangement for passing of value (stolen car), distinguishing K's case from Dickey, where s 104 did not apply – K's offending, involving deliberate and repeated efforts to ensure death, was significantly more culpable than that of Dickey appellants and of comparable youth applicants in Kriel who did not intend or plan to kill – Although sentencing Judge had properly recognised K's youth, deprivation and psychological difficulties as significantly reducing culpability, consistent with Churchward v R and anticipating Dickey, these factors would not have precluded life imprisonment even if K had been sentenced post-Dickey – Near 7-year delay in filing, comparable to Kriel, also significantly undermined finality –
Application declined.
Ingenious Asset Management Limited v McConnon [2026] NZCA 335 (28 July 2026)
Appeal on whether an Associate Judge (AJ) has jurisdiction where declaratory relief is sought alongside other relief in an ordinary civil proceeding – Proceeding arose from liquidation of Global Dairy Ltd – Appellant, Ingenious, as assignee of creditors' claims, sued former directors and liquidators – Pleaded 11 causes of action, 9 seeking declarations – After AJ granted security for costs, Ingenious sought to transfer the case to a HCJ – Argued s 22(4)(i) Senior Courts Act 2016, which excludes jurisdiction over proceedings "for a declaration or an injunction", deprived AJ of jurisdiction - HCJ held s 22(4)(i) was limited to declarations of a public law nature - As these declarations were private law AJ had jurisdiction –
CA agreed - Grouping "declaration" and "injunction" in s 22(4)(i) with the prerogative writs (mandamus, prohibition, certiorari) indicated all were public law remedies – This was reinforced by the separate exclusion of judicial review under s 22(4)(h) and by injunctions under s 22(4)(g) which would be redundant if s 22(4)(i) already captured private law declarations – Statutory purpose (consolidation of earlier Acts, not a substantive narrowing of AJ's jurisdiction) supported this reading – Appeal dismissed.
McGuire v Commissioner of Inland Revenue [2026] NZCA 329 (27 July 2026)
Appeal by M against award of indemnity costs - Commissioner sued in DC to recover unpaid tax – M's defence struck out for want of jurisdiction and no arguable defence – M did not appeal, instead applying for judicial review of the DC judgment after being served a bankruptcy notice – Review struck out by Judge as "hopeless" as was commenced to delay the bankruptcy process – Indemnity costs of $50,274.71 awarded against M and quantified in a later judgment – Earlier CA judgment had already struck out the balance of the appeal, leaving only the costs award for determination –
CA held Judge had applied correct principles for indemnity costs (requiring flagrant misconduct) and was entitled to find the proceeding a delaying tactic which, though framed as a process argument, substantively challenged the underlying tax assessments – Reliance on counsel's advice did not excuse the conduct – Appeal dismissed.
Nakhle v Karaka Estate Ltd [2026] NZHC 2295 (7 August 2026)
Successful application to place Karaka Estate Ltd (KEL) and Byerley Park Ltd (BPL) into liquidation – H, a director of both defendant companies, brought application under s 241 Companies Act 1993 – Application opposed by D (co-director and 50 per cent shareholder) –
BPL and KEL were corporate trustees of family trusts holding assets of the Nakhle family – H argued liquidation justified on the basis that companies were deadlocked due to an irretrievable breakdown in trust and confidence between H and D, and that both companies were insolvent – D accepted companies were deadlocked but argued H did not come to Court with clean hands – D proposed a receiver be appointed under s 138 Trusts Act 2019, with ongoing funding sourced through an entity he controlled –
HC found both companies insolvent on a balance sheet basis, and because without substantial external support neither could pay its debts as they fell due – D's funding proposal was inadequately particularised, unsupported by credible cash flow projections, and would increase related-party debt and diminish trust assets – No evidentiary basis to submission that H had unclean hands – Irretrievable deadlock in management of both companies sufficient on its own to justify liquidation on just and equitable grounds – Receivership rejected as an alternative – Would sanction H's continued exclusion from management, entrench D's position given D was both funder and a discretionary beneficiary of the trusts, and would not preserve parties' position pending resolution of wider family litigation –
Liquidators appointed to both companies – Costs awarded against D.
Rascals International Ltd v Taylor [2026] NZHC 2279 (5 August 2026)
HC dismissed Rascals International Ltd and ZURU Inc’s claims against JJK Group Ltd and Taonga IP Ltd arising from JJK’s acquisition and relaunch of the Treasures nappy brand – Developments within the new Treasures brand included an exclusive supply agreement with Countdown (rebranded as Woolworths) – Plaintiffs alleged defendant T, a former Rascals founder who remained a director on the company record during part of the relevant period, had assisted JJK by disclosing confidential information and diverting a corporate opportunity –
HC held that most information provided to JJK was not confidential; the limited confidential information disclosed was not known by JJK to be confidential and was not used to deprive Rascals of the Treasures opportunity –
JJK was not liable for breach of confidence, dishonest assistance, knowing procurement of breach of duty, unlawful means conspiracy, or constructive trust – Rascals did not prove it would probably have acquired Treasures had JJK not done so – JJK’s counterclaim against Rascals based on statements made to Countdown was also dismissed: although some statements were misleading and caused loss, the Fair Trading Act claim was time-barred, and the injurious falsehood claim failed because malice was not established.
Potter (A Pseudonym) v The King [2026] HCA 25 (5 August 2026)
Appeal to HC on issue of whether CA (in a majority decision) was correct to hold the making of a covert recording did not satisfy s 4(2)(a)(ii) Surveillance Devices Act 2016 exemption and was unlawful but admissible under common law discretion –
P had been convicted on two counts of rape against his wife – Key piece of evidence at trial was a covert audio recording that wife made on her mobile phone without P’s knowledge – Many of the assaults had occurred while she was ill and recovering from the birth of their second child and she made the recordings as a reminder to herself to never resume the relationship – In that recording, P admitted he had previously had sex with her while she was asleep, describing it as sexual assault – Trial judge admitted the recording into evidence – Central issue on appeal was whether that recording had been lawfully made under s 4(1) Surveillance Devices Act 2016 and specifically, whether it fell within the exception in s 4(2)(a)(ii) that allows a party to a private conversation to record it if doing so is “reasonably necessary for the protection of the lawful interests” of that person –
Discussion of “reasonably necessary for the protection of the lawful interest” – Court examined key components of “reasonably necessary”, “protection” and “lawful interest” – Court held that the recording was lawful and admissible on that basis – Wife’s relevant lawful interest was not merely an interest in ending or avoiding resumption of the relationship, but her fundamental interest in bodily autonomy and integrity, including protection from the real risk of further sexual assault – In the circumstances, including prior assaults, the parties’ continued co-residence, the wife’s vulnerability, and the ongoing risk posed by P, the making of the recording was reasonably necessary, in the sense of reasonably appropriate, to protect that interest –
CA had erred by mischaracterising the complainant’s lawful interest and by treating the statutory exception as unsatisfied – Because s 4(2)(a)(ii) applied, the use, communication and publication of the recording in the criminal trial were permitted by the statutory scheme – Evidence was therefore properly admitted and appeal was dismissed.
R v HCZ [2026] HCA 24 (5 August 2026)
Successful appeal against Queensland CA decision setting aside sentencing judge's decision that special circumstances did not exist under s 227(2) Youth Justice Act 1992 (Qld) –
Z, aged 17, entered a house at night armed with a knife intending to commit theft – When disturbed, Z fatally stabbed Mrs L in the chest, stabbed Mr L in the back and kicked him in the face – Z pleaded guilty to burglary, murder, unlawful wounding and assault causing bodily harm – Sentenced to 14 years' imprisonment – Sentencing judge found the murder to be "a particularly heinous offence" under s 176(3)(b)(ii), engaging default rule under s 227 precluding release until 70 per cent of sentence had been served unless special circumstances existed – Sentencing judge considered relevant circumstances, including Z's early guilty pleas, deprived upbringing and prospects of rehabilitation, but concluded special circumstances did not exist –
Queensland CA majority allowed Z's appeal, holding that sentencing judge had allowed seriousness of offending to overwhelm mitigating factors – Crown appealed on basis that CA had applied wrong standard of appellate review –
HC unanimously allowed appeal – Standard of appellate review of a decision under s 227(2) is one of judicial restraint rather than correctness – Consideration of "special circumstances" is open-ended and evaluative, tolerating a range of outcomes – Intervention by appellate court restricted to five grounds in House v R (1936) 55 CLR 499 – Not open to CA to depart from conclusion of sentencing judge that special circumstances did not exist – CA orders set aside, appeal to CA dismissed.
Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families and Urban Housing as delegate of the Minister for the Environment [2026] HCA 23 (5 August 2026)
Successful appeal against NT Court of Appeal decision affirming dismissal of judicial review of grant of a 30-year water extraction licence –
F, lessee of a pastoral lease, was granted a 30-year water extraction licence by the Controller under s 60 Water Act 1992 (NT) – Under s 60(3), a licence must not exceed 10 years unless the decision-maker is satisfied special circumstances justify a longer term – M, prescribed body corporate for the native title holders, sought review of grant under s 30 – Minister for Environment referred matter to Review Panel – On review, F granted 30-year licence on same terms, subject to new condition (CP 10) requiring F to prepare an Aboriginal cultural values impact assessment – F was given notice of and opportunity to comment on CP 10 before decision was made – M was not – M sought judicial review on three grounds: (1) failure to reach requisite satisfaction under s 60(4)(b) that special circumstances justified licence exceeding ten years; (2) failure to take into account Aboriginal cultural values as a mandatory consideration under s 90(1); (3) denial of procedural fairness in not notifying M of CP 10 – Application dismissed by NT SC – Subsequent appeal dismissed by NT CA –
HC unanimously allowed appeal – Ground 1 (upheld): Minister had not considered s 60 requirement that special circumstances justified longer licence term; failure constituted jurisdictional error – Ground 2 (rejected): Minister’s consideration of Aboriginal cultural values met mandatory requirements of s 90(1) – Ground 3 (upheld): by not notifying M of CP 10, Minister failed to accord procedural fairness to prescribed body corporate for relevant native title holders –
Licence quashed, matter remitted to Minister administering Water Act to be decided according to law.
ADM Industries Centers Ltd v Inerco Trade SA [2026] EWHC 1873 (23 July 2026)
Appeal under s 69 Arbitration Act 1996 from a GAFTA Board of Appeal award of USD $3.12 million to sellers of Ukrainian corn, following a dispute over reliance on the "Prevention of Shipment" clause (clause 20) of GAFTA Form 48 –
Sellers relied on their contract incorporating Form 48 which included a force majeure clause dealing with “prevention of shipment” after Russian inspectors suspended Black Sea grain inspections for 11 days, preventing timely shipment – Sellers gave the buyer notice of the inspection hiatus and advised they were invoking the force majeure clause – Buyer rejected the notice, arguing the event was foreseeable and the notice was late – Sellers then treated the rejection as renunciation of contract – GAFTA Board of Appeal held that the sellers were correct and awarded damages of USD $3.12 million – Decision was appealed to the EWHC – Principal issues were whether the inspection suspension was “unforeseeable” and whether timely notice was a condition precedent to reliance on force majeure –
Appeal allowed in part – Meaning of “unforeseeable” depends on contractual context, not on a tort law test of foreseeability, meaning a force majeure event in a sale contract, meant “of negligible probability” – In the context of a force majeure clause allocating residual commercial risk, the relevant question was whether the risk was so unlikely that reasonable commercial parties could disregard it when contracting – However, language used in clause 20, especially the phrase “provided that”, made timely notice a condition precedent – Because the Board had not made a clear factual finding on when the relevant force majeure occurrence began, the Court could not decide whether the notice was timely – Award was remitted to the GAFTA tribunal to determine whether the sellers’ clause 20 notice was served in time and to make any consequential changes.
Fieldfisher LLP v Djamshid Rustambekov [2026] EAT 99 (16 June 2026)
Employment Appeal Tribunal (EAT) allowed employer F’s appeal against a finding that summary dismissal of R for sexual harassment was unfair – Employment Tribunal (ET) had held that the dismissal was unfair because F lacked reasonable grounds for believing R had committed misconduct and because disciplinary process was procedurally unfair – Appeal concerned the proper limits of the ET’s role when reviewing a misconduct dismissal under s 98 Employment Rights Act 1996 –
ET had erred in law by substituting its own view of the evidence for that of the employer - In particular, it had wrongly treated its own finding that one complainant had deliberately lied about an allegation that was not part of the reason for dismissal, as undermining the employer’s reliance on a separate January 2023 allegation – ET also misapplied authority concerned with primary fact-finding in asylum proceedings, rather than applying the established unfair dismissal principles in British Home Stores v Burchell and Iceland Frozen Foods v Jones –
EAT held ET’s task was not to re-decide whether the misconduct occurred, but to decide whether F had a genuine belief in misconduct, reasonable grounds for that belief, and had carried out such investigation as was reasonable in the circumstances – F had before it the complainant’s account, corroborative evidence from another employee, and contemporaneous WhatsApp messages - ET's disagreement with F's assessment of that material did not justify a finding that F acted outside the band of reasonable responses –
Appeal allowed – ET’s judgment set aside and case remitted for redetermination by a differently constituted ET.