New Zealand Law Society - Courts roundup 6 December - 13 December 2023

Courts roundup 6 December - 13 December 2023

Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.

High Court Coat of Arms

New Zealand Supreme Court

Body Corp management agreement, cross-subsidy

Shiraz Holiday Ltd v Body Corporate 406198 and ors [2023] NZSC 157 (5 December 2023)

Unsuccessful leave application – SH building manager of unit title development in Auckland under Management Agreement entered between BC and SH predecessor – Under Management Agreement SH had exclusive rights to provide letting services for unit owners –

BC challenged Management Agreement validity in HC – As CA said, BC concern that Management Agreement improperly requiring unit owners to cross-subsidise Shiraz’s hotel and short-term accommodation operation in development – BC partly successful in both HC and CA on appeal –

SH applied for leave to appeal rental contribution clause interpretation to SC – SC not satisfied proposed appeal would raise any questions of general or public importance or of general commercial significance – Challenge fact-specific and would reprise arguments from CA – Application dismissed.

Summary judgment, mortgagee sale

He v Bank of New Zealand [2023] NZSC 162 (6 December 2023)

Unsuccessful leave application – H applied for leave to appeal CA dismissal of appeal from HC entering summary judgment for BNZ for $493,729.73 plus interest – Sum still owning following mortgagee sale of property H owned –

SC said proposed appeal would reprise arguments CA considered – Resolution would turn on particular combination of facts raised – No challenge to principles applicable to mortgagee obligations under s 176 Property Law Act 2007 – No questions of general or public importance nor of general commercial significance arose – No appearance of miscarriage of justice – Application dismissed.

Copyright, “in circulation”

Burden and ors v ESR Group (NZ) Ltd [2023] NZSC 159 (7 December 2023)

Successful leave application – Approved questions: (a) Was CA correct to conclude for s 9(1) Copyright Act 1994 purposes that copyright holder’s consent not necessary for work to be “in circulation”? (b) Was CA correct to conclude, for s 9(1) purposes, that circulation outside of New Zealand could constitute “circulation”?

Permanent name suppression, sexual offending, leapfrog appeal

Nevin v R [2023] NZSC 160 (7 December 2023)

Unsuccessful leave application – N convicted after jury trial of sexual offending against teenager – Sentenced in DC to six years six months' imprisonment – CA dismissed conviction and sentence appeal –

 This judgment dealt with application to bring second appeal against HC refusal to overturn DC dismissing application for permanent name suppression – Initially sought leave to appeal in CA but abandoned application in favour of “leapfrog” application to SC on discovering that leave had been granted in another case –

Application for leave to appeal CA conviction and sentence appeal dealt with in judgment released at same time –

Proposed name suppression appeal raised question about relationship between s 200(2)(a) and (f) Criminal Procedure Act 2011 –

SC said even setting aside higher threshold for direct appeals from HC unable to accept N’s premise – Main question of principle to be addressed in other case related to young persons and name suppression, issue did not arise here – No question of principle arose HC decision applied settled law to facts – No risk of miscarriage of justice – Even if were not leapfrog appeal, application would not have been granted – Application dismissed.

Sexual offences, sentencing

Nevin v R [2023] NZSC 161 (7 December 2023)

Unsuccessful leave application – N convicted after jury trial of three charges of sexual violation by unlawful sexual connection, two charges of sexual conduct with young person and one charge of common assault – Sentenced in DC to six years six months' imprisonment – CA dismissed conviction and sentence appeal –

SC said proposed appeal against conviction, essentially raised same issues as in CA – Related to application of settled law to particular circumstances of his case – Meant proposed appeal did not appear to raise any issues of general or public importance – Further, nothing raised suggested CA analysis on any of three proposed appeal grounds might have been wrong – No appearance of miscarriage of justice – CA did not err to dismissing appeal against sentence, given that sentencing Judge applied relevant guideline judgment – Application dismissed.

Self-represented litigant, second recall

Jones v New Zealand Bloodstock Finance and Leasing Ltd [2023] NZSC 158 (8 December 2023)

Unsuccessful second judgment recall application – Self-represented J also sought other orders – Second recall application dismissed – Registrar directed not to accept any further filings – Application dismissed.

Self-represented litigant, breach of contract

Delamere v Liu [2023] NZSC 163 (8 December 2023)

Unsuccessful leave application – At HC trial, now self-represented T found liable to L for breach of contract – Following second hearing, liability quantified as $326,816.25 damages and $75,437.62 interest – Also T ordered to pay $56,956 costs – Total amount $459,209.87 – CA dismissed appeal at which T had lawyer who appeared by VMR (video conferencing technology) –

SC said no ground on which leave application based met criteria set out in s 74 Senior Courts Act 2016 for leave grant – Application dismissed.

New Zealand Court of Appeal

Question of law, Accident compensation

Accident Compensation Corporation v AZ [2023] NZCA 617

Unsuccessful appeal on a question of law – Individual, now aged 20 years, developed spina bifida in utero – Claim made to ACC on behalf of AZ in 2019 – Claim declined by ACC, and upheld on review and on appeal to DC – Appeal on agreed question of law brought to HC which concluded AZ had cover – ACC granted leave to appeal – Whether a person born with spina bifida (claimant) can obtain cover for treatment injury where (a) the existence of the claimant’s spina bifida was not, but should have been, detected at the 20-week scan stage; (b) had the spina bifida been detected, the claimant’s mother would have elected termination; and (c) the misdiagnosis meant that the opportunity to elect termination was lost to the claimant’s mother – HELD: Claimant is covered under ACC - Appeal dismissed.

Firearms licence, Fit and proper person

Tito v Police [2023] NZCA 618

Unsuccessful application for leave to extend time – Unsuccessful application for leave to bring second appeal – Applicants had their firearms licences revoked on basis they were not fit and prop persons to hold such licences – Applicants had threatened a Member of Parliament and abused staff at the Maori Land Court and their landlord - Appeal seeking to overturn the revocation orders was dismissed by the DC – Declined leave to appeal to HC – Applications to CA – HELD: Criminal Procedure Act 2011 prevents applicants from applying for leave to pursue a second appeal to CA - Application for an extension of time for leave to appeal redundant – Applications declined.

Commercial competitors, Statutory interpretation

Moveme Health Ltd v NZ Artificial Limb Service [2023] NZCA 621

Unsuccessful appeal against HC judgments -  Appellant manufactures and provides orthoses and related services – Respondent has traditionally manufactured and supplied artificial limbs and connected services – Respondent has started to supply orthoses and related services in recent years and has entered into two contracts with district health boards to provide orthotic services and products – Respondent is a Crown entity with its own empowering Act, the Artificial Limb Service Act 2018, which sets out its various functions – Appellant claimed that by supplying orthoses and related services, the respondent was acting unlawfully and beyond its statutory functions – Appellant argued that the Act limits the respondent’s functions to the supply of artificial limbs or connected services, and that the Act defines an ‘artificial limb’ as a device that is an artificial arm, hand, leg or foot, or ‘a similar device’, and that the definition does not include orthoses – HC found that some orthoses (but not all) are similar devices to artificial limbs, because they perform the same purpose or function as artificial limbs - In a separate judgment, the Judge declined to grant declaratory relief – Whether orthoses fall within the definition of “artificial limb” as per s4 Artificial Limb Service Act 2018 – Whether declaration sought should be made – HELD: ‘Similar device’ does not extend to artificial devices that do not seek to replicate form and/or function – Definition of ‘artificial limb’ in the Act should not be narrowly construed – Declarations sought by appellant seek to introduce concepts which are not contained in the definition of ‘artificial limb’ or elsewhere in the Act – Appeal dismissed.

Sexual offending, Delay in filing appeal, Finality

Marshall v R [2023] NZCA 625

Successful application for an extension of time to appeal – Appellant sentenced to 16 years 6 months imprisonment with a minimum period of imprisonment of 10 years – Pleaded guilty to 4 representative charges of sexual violation by unlawful sexual connection, and representative charges of indecent assault on a child under 12 years, bestiality, and knowingly making an objectionable publication – Notice of appeal against sentence not filed for 2 and a half years – Difficulties in securing counsel – Applied for legal aid and secured newly assigned counsel – HELD: Appeal not progressed after sentence despite expressed wish for appeal by appellant – The interests of justice favour allowing an appeal when regard is had to the length of the sentence that was imposed and the considerable period of imprisonment appellant must presently serve before being eligible for parole - Application for an extension of time to appeal is granted.

Constructive trust, Properties, Financial contributions

Patel v Patel [2023] NZCA 630

Unsuccessful appeal and application to adduce further evidence – Appellant appeals dismissal of claim against her brother and his wife for 50 percent of the value of various properties held by them or their company - Claimed that these properties are held subject to a constructive trust because they were acquired using their deceased parents’ wealth - Whether the Judge erred in finding that respondents’ did not fraudulently or dishonestly trick their parents into transferring property - Whether the Judge erred in finding that the appellant’s parents did not make contributions to the properties – Evidence supports respondents – Property transfer a mutually beneficial familial arrangement – Any financial payments made were modest and can be explained - HELD: No constructive trust over properties - Application to adduce further evidence declined - Appeal dismissed.

Manslaughter, Evidence, Retrial - Login Required

[M] v R [2023] NZCA 632

Permanent name suppression, Murder, Special patient

AO (CA 473-2023) v R [2023] NZCA 635

Successful appeal against refusal to grant permanent name suppression – Appellant suffers from schizophrenia - Appellant killed his mother, was found to be insane and detained as a special patient – HC declined permanent name suppression finding that while appellant was at risk of suicide, that was a consequence not of publicity but of his eventual orientation to the fact that he killed his mother, and nor was the family’s miserable situation a consequence of publicity – Family supports suppression – Crown supported suppression but takes position it should have supported Judge’s reasoning – Whether lapsing of name suppression would cause undue hardship – Public interest in very serious offending was mitigated because he was not morally responsible for his actions and there was no public interest in knowing his character – Relapse in appellant’s condition would qualify as extreme hardship in the circumstances – Exercise of discretion - HELD: Appeal allowed – Order for permanent name suppression.

New Zealand High Court

Relationship property, unfairness

W v W and anor [2023] NZHC 3491 (1 December 2023) Ellis J

Successful appeal from Family Court – Mrs W’s Family Court relationship property decision set aside due to hearing unfairness – Unfairness in tone, nature and frequency of Judge’s interventions while Mrs W was giving evidence – His mistaken view Mrs W had committed perjury and weight placed on that – Also failure to control Mr W’s counsel’s unacceptable cross-examination – Unfair hearing meant subsequent Family Court decision and resulting $250,000 costs award against Mrs W could not stand – Appeal allowed.

Sentencing, manslaughter, reckless driving causing injury

R v Stephens [2023] NZHC 3555 (7 December 2023) Gwyn J

Sentencing – S pleaded guilty to one charge of manslaughter by unlawful act of reckless driving (Crimes Act 1961, ss 171, 160(2)(a) and177) and two charges of reckless driving causing injury (Land Transport Act 1998, s 36(1)(a)) – Sentencing starting point five years six months’ imprisonment – 25 percent discount for guilty plea – Aggravating factors included consumption of drugs, excessive speed, prolonged period of bad driving, driving with passengers on restricted licence and causing serious injury to other victims –

Pre-sentence reports showed insufficient evidence of remorse to apply discount – S had not participated in restorative justice conference and had not written to victims or their families to apologise and continued to use cannabis on daily basis, in breach of bail conditions – Pre-sentence reports showed previous good character and youth contributed to offending – S 18 at the time – 15 percent discount for youth and previous good character –

Sentenced to three years four months’ imprisonment with order disqualifying her from driving for four years to commence on release from custody (Land Transport Act 1998, ss 36(2)(b) and 36AA(2)(b)).

Breach of contractual warranties, Fair Trading Act

Chief Executive Department of Corrections v Fujitsu New Zealand Ltd [2023] NZHC 3598 (8 December 2023) Cooke J

Successful claim breach of contractual warranties – Department contracted with Fujitsu to provide staff rostering software in December 2018 for the approximate total cost of $716,000 plus licence costs (approximately $1.8 million) – Fujitsu sub-contracted with Dassault Systèmes Australia Pty Ltd (Dassault) to provide its product, "Quintiq" – Department ended contract after Fujitsu provided revised price estimate in May 2019 – In excess of $5 million in addition to license cost – Reflecting substantial complexities arising from implementation of Quintiq to meet Department requirements –

Department successfully claimed against Fujitsu for breach of contractual warranties amounting to $3,875,882.35 (for wasted expenditure) – Fujitsu warranted and represented Department's rostering requirements could be met "out of the box" by Quintiq without customisation – Warranties not materially qualified and turned out to be untrue as standard Quintiq functionality required extensive work to meet Department's requirements – 

Fujitsu's consequential claims against Dassault for misrepresentation and breach of Fair Trading Act 1986 protected by exclusion clauses – HC said generally fair and reasonable to exclude liability for arms-length commercial parties under s 5D – Not so for part of Fujitsu's claim relating to payment of $1,836,010.65 for licence fee charged for Quintiq – Said Dassault knowingly misled Department and Fujitsu – Would be unfair and unreasonable to allow Dassault to avoid liability to repay fee for licence that was not going to be used.