New Zealand Law Society - Courts roundup 8 October - 14 October 2026
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Ellis v New Zealand Law Society [2026] NZCA 488 (7 October 2026)
Appeal against refusal to set aside bankruptcy notice – E, a former lawyer, was ordered by the Lawyers and Conveyancers Disciplinary Tribunal to pay costs to New Zealand Law Society (the Law Society) under three orders (two in 2018 and one in 2020) totalling $103,741.63 – On 19 December 2024 the Law Society filed the orders in the HC under s 258(3) Lawyers and Conveyancers Act 2006 (LACA) and requested a bankruptcy notice, which was issued the next day and served on 13 March 2025 – E paid the 2020 order but not the 2018 orders ($93,848.63) – E argued the Law Society acted more than six years after the orders so he had a limitation defence under s 35(1) Limitation Act 2010 (LA), or alternatively that HC leave was required under r 17.9(2)(b) High Court Rules 2016 (HCR) because six years had elapsed since the judgment – AJ rejected both arguments –
CA agreed a costs order was a "judgment" for s 35 LA but differed from the AJ's reasoning on s 35(1) LA – "Claim to enforce a judgment by action" had a particular meaning based on the legislative history – It meant a fresh proceeding to obtain a second judgment for the debt and did not include enforcement processes or insolvency proceedings, which s 35(4) LA merely confirmed – Filing the orders under s 258(3) LACA (so they took effect as HC orders under s 258(4) LACA) was not an action or proceeding and led to no further judgment, which was reinforced by the different wording of s 36 LA – The request for a bankruptcy notice was not a fresh proceeding either – CA doubted that the request was an "application" for adjudication under s 35(4)(b)(i) LA but that did not matter – CA considered Riddiford v NZLS was not good law on the scope of s 35(1) LA – HC authorities conflict on r 17.9 HCR – CA held a bankruptcy notice was not an "enforcement process" under pt 17 HCR so HC leave under r 17.9 was not required – The change in terminology from "execution" to "enforcement" reflected plain language, not a substantive change – An enforcement process enforces a particular judgment, whereas a bankruptcy notice is a precursor to a collective insolvency proceeding – Pt 24 HCR has detailed bankruptcy provisions that did not sit well with pt 17 HCR and the bankruptcy process gives the debtor ample protection –
Appeal dismissed – E to pay the Law Society costs for a standard appeal on a band A basis, plus usual disbursements.
Mega Aqua Ltd v Sunnya Pty Ltd [2026] NZCA 481 (5 October 2026)
Partially successful applications for extensions of time to file cases on appeal following deemed abandonment of two appeals against HC orders requiring Mega Aqua Ltd (MAL) and its sole registered director W to comply with Australian subpoena issued in context of contempt proceedings before NSWSC –
Australian subpoena required production of documents to determine whether documents W put before the NSWSC were fabricated for purpose of misleading Court – MAL exhausted all appeal rights in Australian courts yet had still not complied – O’Gorman J granted orders requiring compliance under s 164 Evidence Act 2006, rejecting arguments that statutory regime was narrow exception to common law principles of comity, that ss 163-165 constituted code limiting remedies to fine or arrest, and that no lacuna existed requiring implied private rights of enforcement – Costs were subsequently ordered with 50 per cent uplift for wide-ranging arguments that lacked merit –
Extension of time granted on substantive appeal in CA834/2025 – Loss of counsel through death in January 2026 relevant factor taking case outside normal run of non-compliance, and appeal was not clearly hopeless given question of whether non-compliance with s 164(1) triggered a private enforcement remedy demanded careful analysis of statutory language having regard to purpose and context –
Extension of time declined on costs appeal in CA192/2026 – Applicants could not have been unaware of consequences of failing to file a timely case on appeal having already faced those consequences two months earlier, and new counsel had by then been instructed for several months – Costs appeal deemed abandoned –
Application to amend grounds of appeal in CA834/2025 declined – Issues initially raised but not ultimately pursued in HC, and adding further delay and complexity was not justified in a context where an indulgence had already been afforded for non-compliance –
Costs awarded to respondent on a band A basis.
Aitu v R [2026] NZCA 480 (5 October 2026)
Unsuccessful second appeals against imposition of firearms prohibition orders (FPOs) – Leave granted as matter of some general or public importance, CA to consider operation of FPO regime and threshold for making an order –
A pleaded guilty to wounding with intent to injure after shooting man in leg during midday altercation at residential complex – Sentenced to 6 months' community detention and 18 months' intensive supervision – M pleaded guilty to manufacturing methamphetamine, possession of a prohibited firearm (an SKS assault rifle), possession of ammunition, resisting police and providing false information – Sentenced to 2 years 7 months' imprisonment – FPOs of 10 years standard duration were imposed on both –
CA held threshold test under s 39A(2) Arms Act 1983 required court first to assess nature and seriousness of risk offender posed to public safety with a firearm related focus, and then ask whether imposition of FPO was a necessary, reasonable and appropriate way of managing that risk – NZBORA proportionality assessment was inherent in that inquiry and did not need to be done separately – At minimum there must be real or genuine risk of firearm related harm – Brightline threshold of high risk was not adopted given the very wide range and variety of circumstances in which offending might attract FPO – FPOs should not involve rubber-stamping exercise and explicit assessment of relevant risk must be made –
In A’s case risk of lethal harm from shooting retreating unarmed man was obvious, rehabilitation and disengagement from gang life remained at early stage, and firearm not recovered – In M’s case confluence of firearm possession and drug manufacture presented inherent risk of firearm related violence despite absence of evidence of gun violence –
Appeals dismissed.
Verappan v Turner Hopkins Lawyers Ltd [2026] NZCA 479 (2 October 2026)
Appeal against bankruptcy adjudication – V was adjudicated bankrupt on 8 May 2025 on the application of TH, a law firm that acted for him in a FC matter in 2019 and ceased to act in January 2020 for non-payment of fees – V complained to the New Zealand Law Society (the Law Society), and the Law Society Standards Committee took no further action (V did not seek review) – Disputes Tribunal later held it had no jurisdiction to review the quality of services and awarded TH $18,302.24 (fees, interest at a reduced 12 per cent and filing costs), which was not appealed – V did not pay after a bankruptcy notice was served – Gardiner J declined to exercise the s 37(c) and (d) Insolvency Act 2006 discretion to refuse adjudication but gave V a final opportunity to pay – After further adjournments V was adjudicated bankrupt –
CA granted an extension of time to appeal (V was a litigant in person, the delay was not particularly long, there was no prejudice and the merits were preferable) – CA declined V's application to vacate the hearing over difficulty accessing the electronic casebook as he was not prejudiced, having copies of the documents – Appellate intervention in the exercise of discretion requires an error of law or principle, an irrelevant or omitted consideration, or a plainly wrong decision (Kacem v Bashir) – CA found no error – A bankruptcy hearing is not a forum to re-examine the facts underlying the judgment debt, particularly where there is no live appeal, so refusing to allow V to summons his former lawyer was not procedurally unfair – The legal assistant's affidavit merely produced documents which were V's own or available to him, so it was not inadmissible hearsay – Delay in recovery (the "retaliatory gap") was considered by the HC and was not oppressive conduct but legitimate commercial behaviour – Refusing a transcript of the HC hearing was not an error and could not affect the appeal, which was a rehearing on the evidence before the Judge – On costs, TH sought indemnity costs under its terms of engagement and CA accepted the clause unambiguously allows them (r 53E(3)(e) Court of Appeal (Civil) Rules 2005) – CA could not assess whether the $22,933.50 claimed was objectively reasonable given the lack of information on how it was calculated, so awarded scale costs for a standard appeal with a 50 per cent uplift – HC costs were remitted because there was no HC determination and it was unclear how the $41,019.85 claimed was calculated –
Extension of time granted – Appeal dismissed – Stay of the bankruptcy order set aside – HC costs remitted to the HC for determination – V to pay TH costs of $19,800 plus $69 in disbursements.
The King v Bechaud [2026] HCA 36 (7 October 2026)
B was tried in Victoria SC on two charges of rape – Before evidence was called, each juror took the separation oath prescribed by s 50 and Sch 5 Juries Act 2000 (Vic) – Nine days later, after retiring to consider its verdicts, the jury was twice permitted to separate without the oath being re-administered or the jurors being reminded of it – Jury acquitted B on one charge and convicted him on the other – CA, by majority, held that s 50 required the oath to be administered at a time proximate to, and connected with, the first separation during deliberations – It set aside the conviction and ordered a new trial – Crown now appealed to the HC –
Section 50 requires a juror to have taken the prescribed oath before being permitted to separate after retirement – It does not require the oath to be taken at any particular stage of the trial, immediately before separation, or on each occasion of separation – Statutory text contained no temporal requirement of proximity, unlike other provisions in Pt 6 that expressly prescribe timing – Once taken, the oath continued to bind the jurors according to its terms and extended to both the evidence and their deliberations – The protective purpose of s 50 did not justify reading additional requirements into the provision – Although it was appropriate practice to remind jurors of the continuing effect of the oath before separation, failure to do so did not of itself establish error or irregularity – It cannot be accepted that there was a risk that a separation oath administered early in a trial becomes futile or diluted in its effect merely because of the passage of time since taking the oath – There was no factual basis for concluding that the trial judge failed to consider relevant circumstances or acted unreasonably – No substantial miscarriage of justice was established –
Appeal allowed – Orders 2 to 6 of the Court of Appeal of the Supreme Court of Victoria made on 4 December 2025 set aside – In their place, B’s appeal against conviction was dismissed.
MACH Energy Australia Pty Ltd v Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc [2026] HCA 35 (7 October 2026)
Unsuccessful appeal against NSW CA decision finding development consent for extension and expansion of Mount Pleasant coal mine was invalid –
M sought consent to extend the mine’s life by 22 years and double annual production to 21 million tonnes – Scope 3 emissions, principally from combustion of exported coal, made up 98 per cent of the project’s greenhouse gas emissions – Independent Planning Commission granted consent subject to conditions minimising scope 1 and 2 emissions, but imposed no conditions addressing scope 3 emissions, reasoning these were accounted for under the Paris Agreement – CA allowed D’s appeal, finding Commission had failed to consider likely impacts of the development in the locality as required by s 4.15(1)(b) Environmental Planning and Assessment Act 1979 (NSW) (EPA) –
HC unanimously found CA misconstrued EPA s 4.15(1)(b), which requires consideration of the likely impacts of the development generally – Commission had considered the development’s contribution to global greenhouse gas emissions and climate change, no inference was open that it failed to consider local impacts, and the level of specificity at which likely impacts are considered is ordinarily for the consent authority –
HC majority (Gordon, Edelman and Beech-Jones JJ) nonetheless dismissed the appeal – Found cl 2.20(1)(c) of the State Environmental Planning Policy (Resources and Energy) 2021 (NSW) (SEPP), applying through EPA s 4.15(1)(a)(i), required Commission to consider whether to impose conditions minimising all greenhouse gas emissions, including scope 3 emissions, to greatest extent practicable – Commission’s reasons showed it considered conditions only for scope 1 and 2 emissions, and its references to scope 3 emissions being regulated and accounted for elsewhere went only to the separate obligation under SEPP cl 2.20(2) to consider an assessment of emissions – Error was material, there being a realistic possibility conditions could have been imposed, and amounted to jurisdictional error –
HC minority (Gageler CJ and Jagot J) would have allowed appeal, finding Commission’s reasons supported an inference it considered whether conditions were required, and was satisfied that conditions on scope 1 and 2 emissions, in the context of international and national policy, discharged SEPP cl 2.20(1)(c) –
Appeal dismissed with costs.
R v Cope 2026 SCC 32 (9 October 2026)
C, an indigenous Mi’kmaw man with significant Gladue, mental health and substance use factors, pleaded guilty to aggravated assaulting his Mi’kmaw intimate partner – Gladue factors come from the Canadian Supreme Court case R v Gladue [1999] 1 SCR 688 which outlines the systemic and historical background circumstances that Canadian courts must consider when sentencing an Indigenous offender due to the disproportionate rate of imprisonment of Indigenous offenders, but they must also take into account the unacceptably high rates of violence and abuse that Indigenous victims (particularly women and girls) experience – Sentencing judge imposed 5 years' imprisonment and on appeal the CA reduced it to 3 years – Crown appealed to the SC –
A three-step process applied in cases involving Indigenous offenders and victims – First, sentencing judge must consider the gravity of the offence and the degree of responsibility of the offender, given the Indigenous background of both the offender and victim – Second, judge must identify what the sentence is meant to achieve – Third, judge must decide what sentence is fair in all the circumstances – Condemning and discouraging violence does not always require a longer prison sentence – Those objectives can sometimes be achieved through other types of sentences – Sentencing judge did not adequately consider how C’s mental illness affected the degree of his responsibility or what type of sentence would be appropriate – Not enough weight was given to the sentencing circle (a process in which members of the Indigenous community, as well as the offender, counsel and sentencing judge, come together to find an appropriate sentence) and its recommendations –
Appeal dismissed by majority – 3 year sentence upheld.
Boston Scientific Asia Pacific Pte Ltd v Lee Elliot [2026] SGHCR 40 (1 October 2026)
BSC sought an interim injunction restraining its former employee, E, from continuing employment with Johnson & Johnson (J&J), alleging breach of 12 month non-compete clauses – BSC contended that the restraint protected trade and client connections cultivated through E’s relationships with key opinion leaders (KOLs) and medical associations in the Asia-Pacific electrophysiology market – However, these trade and client connections consisted not of relationships with customers or suppliers (as is the case where courts have recognised trade connections as a legitimate interest) but relationships with third party middlemen or institutions, who fell outside the usual paradigm category of trade connections recognised at common law, yet in this case, were said to be capable of influencing or driving the sales of BSC’s products, putting the commercial significance of E’s relationship with the KOLs and medical associations under scrutiny –
Issues were whether those relationships were capable of constituting a legitimate proprietary interest; whether BSC had shown a serious question to be tried or a good arguable case on validity, reasonableness and breach; whether damages were adequate; where the balance of convenience lay; and whether J&J could participate fully although it was not named as a respondent to the summons –
Court determined BSC had raised serious questions to be tried – The categories of protectable legitimate interests were not closed, and relationships with KOLs and medical associations could in principle qualify if they materially influenced product adoption and sales – There was also a serious question whether E’s new role breached the clauses – BSC nevertheless failed to establish a good arguable case - Its evidence largely comprised affidavit assertions and documents showing logistical or administrative contact, rather than objective evidence of meaningful relationships, influence over KOLs, a causal link between endorsements and sales, or justification for a 12 month restraint – Damages were adequate because any loss could be assessed by reference to lost sales – Balance of convenience favoured preserving the status quo: an injunction could cause irreversible harm to E’s livelihood and career prospects – J&J was entitled to participate under the court’s case-management powers because the relief and allegations directly affected its interests; no separate application for permission was required – Case dismissed.