New Zealand Law Society - Courts roundup 22 September - 28 September 2022
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Smith v Plowman and ors [2022] NZSC 109 (21 September 2022)
Unsuccessful leave application – Self-represented S sought fee waiver for HC appeal from DC – Deputy Registrar declined application – HC Judge declined review application and application for leave to CA- CA also refused leave – CA declined S’s application to recall leave decline – S applied to SC for leave to appeal recall decline –
SC said no jurisdiction to appeal this type of CA decision – No basis for treating as direct appeal from HC – Application dismissed.
Dunstan v Attorney-General [2022] NZSC 111 (21 September 2022)
Unsuccessful leave application – D filed an appeal in CA against HC striking out application for judicial review relating to DC rejecting application to commence private prosecution – CA Judge directed, inter alia, that respondents not required to appear in appeal – D sought leave to appeal against directions –
SC said even if it had jurisdiction regarding Judge’s directions, on which it had no comment, leave criteria not met – Proposed appeal related to D’s circumstances – Not matter of general or public importance – No risk of miscarriage of justice – Application dismissed.
Smith v Paros Property Trust Ltd [2022] NZCA 447
S sought to exercise a right under a lease to acquire the freehold of the property – PPT did not consider S had given valid notice to trigger the freeholding process under the lease – Position of S that PPT’s conduct amounted to a breach and/or repudiation of the lease and he cancelled the lease as entitled – PPT successful in High Court (HC) where held the lease remained on foot and S liable to pay rent – Whether S entitled to cancel, and if lease not cancelled whether full amount of rent claimed and awarded in HC recoverable (alleged defective rent review process) – HELD: clear that the lease remained on foot – Rent review process adopted by PPT did not comply with the process prescribed by the lease – Proceeding remitted back to HC to determine amount of rent payable – HC costs order set aside and to be redetermined as well.
Napier City Council v Local Government Mutual Funds Trustee Ltd [2022] NZCA 422
Respondent insurer insured appellant Council for breaches of professional duty but excluded cover for weathertightness defects – The Council was sued in 2013 by owners of an apartment complex and settled the claim without apportioning the global payment between weathertightness and other defects – The Council then unsuccessfully sued respondent – Whether generally covered liabilities arising from causes unrelated to weathertightness were excluded by a limiting provision in a policy of insurance which referred specifically to weathertightness only – HELD: exclusion contemplated that a claim might incorporate a number of Council liabilities – Claims were within the indemnity but excluded to the extent they were causally attributable to weathertightness defects – Remitted to HC to fix apportionment and amount of insurer’s liability.
Paul v Attorney-General [2022] NZCA 443
Following repeal of the Foreshore and Seabed Act 2004 by the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act), P filed an application “on behalf of all Māori” seeking an order recognising marine title in respect of the entire marine and coastal area of New Zealand – Apparent object was to provide Māori groups, who had not filed an application within the statutory deadline, the ability to do so in the future – Whether High Court Judge erred in striking out the application (original and amended) – HELD: relevant provisions of the Act were not susceptible to a purportedly tikanga-consistent interpretation that an application might be lodge on behalf of “all Māori” – Nationwide application plainly inconsistent with the scheme of the Act – Application was designed to circumvent the limitation period which Parliament had determined was appropriate for claims for recognition orders under the Act – Appeal dismissed.
R v Te Hana [2022] NZHC 2424 (21 September 2022) Eaton J
Sentencing – TH pleaded guilty to G’s manslaughter – TH punched then stomped on G’s head three times after G threatened to assault female visitor then directed racial slurs at TH -
Starting point eight and a half years' imprisonment - Nine month reduction reflecting victim’s conduct - Ten percent uplift reflected significant violent offending history - Twenty percent credit for guilty plea and 15 percent for personal matters detailed in cultural and psychiatric reports - End sentence five years, 11 months – 50 percent MPI 50 appropriate to denounce and deter.