New Zealand Court of Appeal

Employment, rest and meal break entitlements, definition of “work period”

New Zealand Tramways and Public Passenger Transport Employees' Union Wellington Branch Incorporated v Tranzurban Hutt Valley Limited [2025] NZCA 1

Unsuccessful appeal by Union concerning whether a split shift involved two discrete work periods or one work period for the purposes of the worker’s entitlements to rest and meal breaks under s69ZC Employment Relations Act 2000 (ERA) -

Nothing in the words of s69ZC ERA precluding more than one work period in a day - Start and end of a work period were determined with reference to the employee’s terms and conditions - Rest and meal break entitlements under s69ZD ERA contemplated entitlements based on a continuous period of work during which employee was working or on a rest or meal break - Whether a split shift involved a continuous work period or two separate work periods depended on a factual assessment - Tranzurban’s approach to split shifts, which treated split shifts with a middle period of two or more hours as separate work periods, was consistent with the purposes of rest and meal break provisions and terms of collective agreement.

Criminal, appeal against conviction, improperly obtained evidence

Timmins v R [2024] NZCA 678

Partially successful appeal by T against convictions for cultivation of cannabis, unlawful possession of ammunition and theft - He was sentenced to 11 months' home detention and ordered to pay reparation - Crown adduced evidence from a handwriting expert employed by the police - Expert compared handwriting on pages found on property with samples of T’s handwriting obtained from government agencies when he applied for a passport, firearms license, drivers license and Work and Income New Zealand (WINZ) -

No reasonable expectation that the contents of firearms and passport applications were private – Documents did not contain sensitive or particularly personal information that would engage T’s right to privacy - Documents obtained from WINZ contained information about T’s financial position and his personal relationships - Any impropriety by police was not deliberate or done in bad faith - Seriousness of the drug offending weighed in favour of documents being admissible - Even if WINZ documents were improperly obtained by police, they were admissible under s30 Evidence Act 2006 - Even though T was found to be “in occupation”, he could still defend the charge if he could prove the ammunition was not his and was in the possession of someone else - Removing a possible defence from the jury’s consideration constituted an error or irregularity - Appeal against conviction allowed in part - Conviction for having unlawful possession of ammunition quashed.

Criminal appeal, sexual offending, propensity evidence – login required

R v R [2025] NZCA 3

Criminal sentence appeal, supply of methamphetamine, discount for addiction

Looker v R [2025] NZCA 2

Successful appeal by L against sentence of five years and six months' imprisonment and substitute a sentence of four years and three months' imprisonment supplying 588 gms methamphetamine - Quantity of drugs placed the offending in band four of Zhang v R and L’s role was at the lower end of significant - Starting point of eight years' imprisonment - Discounts of 25 per cent for guilty plea and six month discount for poor health –

Starting point adopted appropriate - Offending financially motivated - L trusted link in distribution chain and was aware of size and nature of enterprise - Characterisation that L’s addiction only slightly reduced his culpability overlooked addictive nature of methamphetamine and consequences of addiction - Discrete discount of 15 per cent appropriate - Sentence of four years and three months' imprisonment substituted.

New Zealand High Court

Judicial review application, real estate licenses

Dickson v Real Estate Agents Authority [2024] NZHC 50 (4 February 2025) McQueen J

Unsuccessful judicial review application – D applied for judicial review of Real Estate Agent Authority's 2022 decision to mandate completing course, Te Kakano, as part of 2023 continuing education requirements for real estate licensees – D said practice rules under which Authority and Associate Minister of Justice prescribed continuing education requirements invalid under Real Estate Agents Act 2008 (Act), Authority's decision to mandate Te Kakano invalid and Registrar of registry of licensees refusing to grant exemption from completing course invalid because Registrar applied blanket "no exemptions" policy –

HC said D’s claim as pleaded relied on existence of generic no exemption policy and substantive matters of kind referred to by D not relevant – However, even if they were, not Court’s role in judicial review to assess whether Registrar correct or incorrect in assessing whether reasons did or did not constitute “exceptional circumstances” under r 13 Real Estate Agents (Continuing Professional Development Rules) Notice 2018 (the Practice Rules) – That is properly Tribunal role, to whom D applied to review Registrar’s decision – Further, Act provided for rights to appeal from Tribunal decision – Application dismissed.

High Court of Australia

Fiduciary obligations, successor to former trustee, third party liability

Naaman v Jaken Properties Australia Pty Ltd ACN 123 423 432 [2025] HCA 1 (5 February 2025)

Unsuccessful appeal from New South Wales CA – Concerned whether successor trustee owed fiduciary obligation to former trustee in respect of former trustee's entitlement to indemnification out of trust assets or beneficial interest in trust assets former trustee retained following replacement – N, former trustee’s judgment creditor and subrogated to former trustee's entitlement to indemnification – J, successor trustee who transferred trust assets to third parties leaving insufficient trust assets to satisfy former trustee's indemnification entitlement – “Third parties" comprised individuals involved in J management and trust assets recipients – Cross-claiming in New South Wales SC, N sought relief including equitable compensation, account, damages, interest and costs and in general terms sought to enforce judgment debt –

N claimed transfers of trust assets to third parties part of dishonest and fraudulent design in breach of fiduciary duties J owed to former trustee – Primary judge said successor trustee owed former trustee fiduciary obligation not to deal with trust assets so as to destroy, diminish or jeopardise former trustee's entitlement to indemnification – Said J "engaged in a dishonest and fraudulent design to strip itself of assets that might otherwise be available to satisfy [the former trustee's] power of indemnity" to which N subrogated – In light of identified fiduciary obligation, primary judge said third parties knowingly assisted in dishonest and fraudulent breach of identified fiduciary obligation and were amenable to orders for equitable compensation and to account – J and third parties appealed –

CA majority said successor trustee did not owe fiduciary obligation to former trustee for either former trustee’s entitlement to indemnification out of trust assets or former trustee’s beneficial interest in trust assets – Majority denying existence of putative fiduciary obligation removed basis for primary judge ruling N able to obtain orders for equitable compensation and account against third parties – N appealed to HC -

HC majority said successor trustee did not owe fiduciary obligation to former trustee – Said answer lay in nature of trustee's entitlement to indemnification out of trust assets being entitlement to have trust assets applied for purpose of recouping expenditure or exonerating liability trustee properly incurred – Consequently, equitable compensation and account not available to former trustee against third parties – Appeal dismissed.

Costs order, professional fees

Birketu Pty Ltd ACN 003 831 392 v Atanaskovic [2025] HCA 2 (5 February 2025)

Unsuccessful appeal from New South Wales CA – Concerned whether costs order in favour of unincorporated law firm entitled firm to obtain recompense for legal work performed by firm’s employed solicitor – B former clients of unincorporated legal practice AH – First and second respondents were only remaining partners – AH brought proceedings in SC to recover fees and disbursements for legal services rendered to B – A was solicitor on record for AH throughout proceedings –

SC upheld most of AH's claim and made costs orders – AH applied for costs assessment, seeking, in assessment, sum for professional fees – Claim for professional fees limited to professional fees for work done by its employed solicitors – No claim for work A or any other partner did – Assessment was referred to costs assessor, who refused to accede to B’s request - He determined as preliminary issue whether AH could claim professional fees for employed solicitors’ work – Refusal led to B commencing proceedings against AH in SC – Primary judge said under costs order, current AH partners "not entitled to recover costs for work done by the employed solicitors of their own firm" – Consistent with previous Victorian CA decision – AH appealed – CA majority allowed appeal – Each majority member considered, applying relevant statutory context, costs order in favour of unincorporated law firm entitled firm to be compensated for legal work of firm’s employed solicitor – Each distinguished Victorian CA decision – B appealed to HC –

HC majority said unincorporated law firm entitled to claim professional fees under costs order for employed solicitors’ work – Said "in-house solicitor rule" or "in-house lawyer rule", that litigant represented by lawyer employed by litigant could obtain recompense for legal work lawyer performed – Applied general common law principle under which professional legal costs confined to those litigants actually incurred for legal services rendered to litigant in conduct of litigation – To adopt Victorian CA approach would be to depart from applying general common law principle – Victorian CA decision overruled – Appeal dismissed.