Issue 425 | 30 January 2018
LexisNexis® News


Textbook
Burrows, Finn and Todd on the Law of Contract in New Zealand, 6th edition
Jeremy Finn, Stephen Todd and Matthew Barber

RRP*incl GST: $170.00
ISBN: 9780947514204 (book)
ISBN: 9780947514211 (ebook)
Available in PBO and RED formats
New Zealand Law Reports

David Browne Contractors Ltd v Petterson [2018] 1 NZLR 112

Bankruptcy and insolvency – Voidable preferences – When debt due – “Temporally proximate” – Whether contingent debt suffıciently certain to crystallise in relevant period – Whether residual discretion not to orderrepayment – Companies Act 1993, ss 292(2)(a), 295.

Lexis Advance® | LexisNexis NZ


New Zealand Company and Commercial Law Reports

Commissioner of Inland Revenue v Jackson Property Group Ltd - [2017] NZCCLR 30

Liquidation — Whether NOPA a “disputable decision” — Entitlement to set-off — Whether IRD a prospective creditor — Tax Administration Act 1994, s 109 — High Court Rules 2016, r 5.61(1) — Companies Act 1993, s 241(2)(c)(iv).

Liquidation — Failure to maintain proper records or comply with statutory requirements — shadow director — Failure to act in good faith — Companies Act 1993, ss 126, 131, 189(1), 194(1), 241(4)(b) and 241(4)(bb).

Lexis Advance | LexisNexis NZ

Cross on Evidence

Service 105 – January 2018 is now online.

Commentary has been updated in the Evidence Act 2006: Part 2 – Admissibility rules, privilege, and confidentiality and in the Evidence Law Outside the Act: Chapter One – Functions of Judge and Jury, Chapter Three – Degrees of proof, Chapter Four – Estoppel and Chapter Seven – Evidence taken overseas for use in criminal proceedings in New Zealand.



Becroft and Hall’s Transport Law

Service 191 – January 2018 is now online.

Commentary has been updated in the Breath and Blood Testing guidecard.



Hall’s Sentencing

Service 165 – January 2018 is now online.

Commentary has been updated in the Parole Act 2002, the Sentencing Process, Traffic Offences and Sentencing Levels.



Practical Guidance Criminal

Latest Legal Update: DIA released AML/CFT Lawyers and Conveyancers Guidance



Latest Legal Update: Electronic interactions bill passed third reading



New Zealand Law Reports
R v Chetty [2018] 1 NZLR 26
Criminal practice and procedure – Police questioning – Whether amounted to impermissible cross-examination – Meaning of cross-examination in context – Switching off of video-recorder after interview but before informing suspect would be charged – Suspect making further statement then repeating it for video-recorder – Whether further statement obtained unfairly – Whether breaches of Practice Note significant – Whether balancing favoured exclusion of evidence – Evidence Act 2006, s 30(2)(b) – Chief Justice’s Practice Note, rr 3 and 5.



Chisnall v Chief Executive of the Department of Corrections [2018] 1 NZLR 83

Criminal practice and procedure – Public Protection Orders – Matters to be considered on application for interim PPO – Threshold for imposition of interim PPO – Whether suspended interim PPO available alternative – Whether extended supervision order available alternative – Public Safety (Public Protection Orders) Act 2014, s 107.



District Court Reports

R v Ofa - [2017] DCR 764

Criminal law — Child Sex Offender Register — Sexual conduct with a young person under 16 years — Registrable offence — Whether defendant should be registered — Offending committed prior to commencement of legislation — Whether registration order would be retrospective penalty — Purpose of legislation — Retrospective application — Child Protection (Child Sex Offender Government Agency Registration) Act 2016, ss 3, 7, 7(1), 9(6), 38, 49 and 50 — Crimes Act 1961, s 134(1) — Criminal Justice Act 1985, s 4(2) — Criminal Justice Amendment Act (No 2) 1999, s 2(4) — Interpretation Act 1999, s 7 — New Zealand Bill of Rights Act 1990, ss 4, 6, 9, 25, 25(g), 26 and 26(2) — Sentencing Act 2002, s 6.



R v Ofa [Sentencing] - [2017] DCR 772

Sentencing — Sexual conduct with a person under 16 — Registration order — Whether defendant should be registered on the Child Sex Offender Register — Offending committed prior to commencement of legislation — Whether registration order would be retrospective penalty — Child Protection (Child Sex Offender Government Agency Registration) Act 2016 — New Zealand Bill of Rights Act 1990 — Sentencing Act 2002.



R v James - [2017] DCR 783

Sentencing — Forgery — Obtaining by deception — Theft by employee of $700,000 over 14 months — Authority to incur and approve expenditure — Gambling addiction — Gross breach of trust — First offending — Pregnancy — Early guilty plea — Reparation.



Police v Calder - [2017] DCR 789

Sentencing — Fraud — Obtaining by deception — Using a false passport to obtain loans — Passport in name of deceased person — Attempting to obtain second passport — Offending while subject to sentence — Youth — Level of education — Previous fraud offences — Early guilty pleas — Sophisticated and planned offending.



Police v Lincoln - [2017] DCR 795

Criminal law — Firearms — Search and seizure — Whether reasonable grounds for search — Reasonable grounds to suspect — Whether mental capacity to control firearms — Unlawful possession of firearms — Firearms licence — Whether firearms military style semi-automatic — Credibility and reliability of police evidence — Obstruction of police officer — Possession of cannabis — Whether case to answer — Arms Act 1983, ss 30A, 30B, 50 and 50(1)(b) — Arms (Military Style Semi-automatic Firearms—Pistol Grips) Order 2013 — Evidence Act 2006, ss 30 and 30(3) — Interpretation Act 1999, s 33 — Misuse of Drugs Act 1975, sch 3 — Search and Surveillance Act 2012, ss 18, 18(2), 18(2)(a) and 18(2)(b).

Evidence — Admissibility — Whether evidence obtained pursuant to warrantless searches admissible — Evidence Act 2006, ss 30 and 30(3) — Search and Surveillance Act 2012, ss 18, 18(2), 18(2)(a) and 18(2)(b).



Police v Pei - [2017] DCR 821

Sentencing — Using firearm against law enforcement officer — Firearm discharged into safety glass at police station — Police officer sitting behind safety glass — Planned and deliberate actions — Effect on victim — Genuine remorse — Under stress at time of offending — Early guilty plea to initial charges.



Serious Fraud Office v Hall - [2017] DCR 827

Sentencing — Breach of Secret Commissions Act — Obtaining by deception — Obtaining pecuniary advantage — Entering contracts on behalf of employer with overseas companies for consideration — Jurisdiction — Gross abuse of trust — Offending over six years — Genuine remorse — Discount for previous good character — Reparation — Home detention — Crimes Act 1961, s 7 — Secret Commissions Act 1910, s 8.

Employment Law Bulletin

Issue 8 – December 2017 is now online.

This issue includes – "Collective bargaining for remuneration – an analysis of Jacks Hardware" article by Tim Oldfield, "Preference" article by Susan Hornsby-Geluk, Q&A with Amanda Rapley. Case comments cover Lowe v Director-General of Health [2017] NZSC 115, Brown v New Zealand Basing Ltd [2017] NZSC 139, and Prasad & Tulai v LSG Sky Chefs New Zealand Ltd. Cumulative Index for 2017 is also included in this issue.



Mazengarb's Employment Law

Service 238 – December 2017 is now online.

Commentary has been updated in the following areas: Employment Relations Act 2000 – Individual employees' terms and conditions, Employment Relations Act 2000 – Personal grievances and disputes, Selected Topic – Contractual Aspects of Employment, Wages Topic, Minimum Code – Minimum Wage Act 1983, Special Employment – Policing Act 2008, Workplace – Health and Safety at Work (Hazardous Substances) Regulations 2017.



Personal Grievances

Service 74 – December 2017 is now online.

Chapter 2 "The Grievance Process" and Chapter 6 "Substantive Fairness" content has been re-written and updated by Sherridan Cook, Partner at Buddle Findlay. Appendix C: Redundancy statistics has new updated content published with permission from Victoria University of Wellington Centre for Labour, Employment and Work (CLEW).



New Zealand Employment Law Reports

Brown v New Zealand Basing Ltd - (2017) 14 NZELR 905

Age discrimination — Whether age limitation is contractual — Territorial limit of legislation — Breach of contract for unlawful dismissal — Employment agreements — Territorial application of employment contracts — “Peripatetic employees” — Leave to appeal — Forum non conveniens — Statutory employment rights — Sui generis — Conflict of laws principles — Contractual Remedies Act 1979 — Human Rights Act 1993 — Employment Relations Act 2000 — Employment Contracts Act 1991.



Caffe Coffee (NZ) Ltd v Farrimond - (2016) 14 NZELR 933

Duties of good faith and duty of fidelity — Confidentiality (information) — Breach of contract — Causation.



H v A Ltd - (2016) 14 NZELR 976

Good faith — Interpretation principles — Natural meaning — Fair and reasonable employer — Employment Contracts Act 1991, s 117(3) — Health and Safety in Employment Act 1992.



District Court Reports

WorkSafe New Zealand v Macready Building Supplies Ltd - [2017] DCR 743

Employment — Health and safety — Sentencing — Failing to take practicable steps to ensure no hazard in workplace — Racking and stacking of timber — Timber yard with public access — Timber falling on customer — Previous good safety record — Remorse — Co-operation — Reparation — Fine — Criminal Justice Act 1985, s 28(1) — Health and Safety in Employment Act 1992, ss 2A, 5, 6, 16, 16(2), 16(2)(a), 16(2)(b)(ii), 50, 50(1)(a) and 51A — Sentencing Act 2002, ss 8(g), 32, 32(1) and 50.

Practical Guidance Family

Latest Legal Update: Police appeal Judge's decision to discharge man over domestic assault



Latest Legal Update: Court of Appeal rules boy illegally detained at youth justice facility



Textbook
Family Law in New Zealand, 18th edition
Bill Atkin & Mark Henaghan et al

RRP*incl GST: $150.00
ISBN: 9780947514389 (book)

New Zealand Intellectual Property Journal

Volume 8, Part 6 is now available online.

The issue features an editorial by Doug Calhoun – Innocent and Eminem Esque: are New Zealanders unsophisticated and naïve about intellectual property?

Privacy Law & Practice

Service 104 – November 2017 is now online.

Additions have been made to the commentary on the Privacy Act 1993 including: Part 1 – Preliminary Provisions, Part 2 – Information Privacy Principles, Part 8 – Complaints, Part 9 – Proceedings of Commissioner.



New Zealand Administrative Reports

Mitchell v Privacy Commissioner [2017] NZAR 1706

Judicial review — Privacy — Privacy Commissioner — Information privacy principles — Health Information Privacy Code 1994 — Jurisdiction of Privacy Commissioner to determine scope of complaint — Jurisdiction of Human Rights Review Tribunal — Privacy Act 1993, ss 6, 66, 67, 68, 69, 70, 71, 72, 72A, 72B, 72C, 73, 74, 75, 76, 77, 82, 83, 90 and 105.



New Zealand Family Law Reports

May v Joyce - [2017] NZFLR 875

Admonishment — Contravention of order — Delay in complying with order — Difficulties in complying with order of party’s own making — Other enforcement consequences not suitable — Contempt — Contempt beyond the face of the court — Acting contrary to sworn statement — No breach of order — No residual power to punish for contempt — Care of Children Act 2004, s 68 — District Court Act 2016, s 212 and sch 5 — District Courts Act 1947, s 41 — Family Court Rules 2002, r 214.



Lyon v Wilson - [2017] NZFLR 885

Care of children — Relocation — Shared care arrangement — Shared care arrangement not mutually supportive or co-operative — Relocation having no advantages for child — Parent’s financial difficulties unrelated to location — Parent’s financial situation likely to improve — Care of Children Act 2004, ss 4, 5, 6 and 133.



Craig v Keith [Costs] - [2017] NZFLR 899

Costs — Whether costs should follow the event — Where it is asserted that a costs order would impose financial hardship — Whether costs should be reduced — High Court Rules 2016, r 14.7.



Bowden v Bowden [Costs] - [2017] NZFLR 910

Relationship Property — Calderbank — Costs.

Sim’s Court Practice

Service 213 – November 2017 is now online.

The Interest on Money Claims Act 2016 and its new commentary have been included in this service. Commentary has also been added to Judicial Review, the Senior Courts Act, the Senior Courts (Access to Court Documents) Rules 2017, the Court of Appeal Rules, the Administration Act 1969, the Habeas Corpus Act 2001 and Appendix I: Injunctions. The Electronic Document Practice Note 2017 has been included in the Practice Notes guidecard.



Practical Guidance District Court Litigation

Latest Legal Update: New Court of Appeal Judge appointed



Latest Legal Update: New High Court Judge appointed
Litigation Skills: A Practical Guide to Judge-alone Trials
Janine Bonifant & Anne Toohey

RRP*incl GST: $85.00
ISBN: 9780947514396 (book)
ISBN: 9780947514402 (ebook)
Available in PBO and RED formats
New Zealand Administrative Reports

Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo [2017] NZAR 1617

Courts and tribunals — Application to access former court file — Application by non-party — Parallel proceedings — On-going arbitral proceedings — Whether legitimate purpose to access court file — Arbitral tribunal ruling that documents not relevant — Comity between courts and arbitral tribunals — Whether attempt to circumvent arbitral decision by application to court — Discretionary nature of access to court files — Privacy — As time rolls on harder to justify access to concluded private law proceedings — Whether issue estoppel — Decision of arbitral tribunal on discovery not creating issue estoppel in court application for access — Relevant factors — Countervailing factors — Offıcial Information Act 1982; Arbitration Act 1996, ss 5,5(a), 5(e), 7, sch 1, sch 1 arts 5, 8, 9, 9(3), 35; High Court Rules 2016 rr 3.9, 3.12, 3.13, 3.13(2), 3.16, 3.16(f); Senior Courts (Access to Court Documents) Rules 2017; The Rules Committee Consultation on Accessing Court Documents in Civil and Criminal Proceedings (11 May 2015) rr 3, 4, 10, 12, 13; IBA Rules, Arts 3(b), 9.2(e)



District Court Reports

Taylor v Barr - [2017] DCR 777

Civil procedure — District Courts — Judgment by default — Application to set aside judgment — Whether judgment irregularly obtained — Whether formal proof hearing required — District Courts Rules 2009, rr 12.28 and 12.34 — Fair Trading Act 1986, s 9.



Craig v Social Media Consultants Ltd - [2017] DCR 835

Costs — Indemnity — Vexatious litigant — Loss suffered by defendant — Recall of previous costs decision — Plaintiff unsuccessful in bringing breach of copyright proceedings — Proceedings manifestly groundless — Commencing and continuing proceedings — Copyright Act 1994, ss 130(1)(b) and 226A — District Court Rules 2014, r 14.6(4)(a).

Hinde, McMorland and Sim Land Law

Service 70 is now available online, and includes updates to commentary on the extent of landholder’s rights, the land transfer system and title by registration.



Conveyancing Bulletin

Volume 17 issue 16 is now available online. This issue includes comment on key cases in the areas of unit titles, caveats and mortgages, as well as an article on pro-contract disclosure under the Unit Titles Act.

A Practical Guide to the Land Transfer Act
Thomas Gibbons

RRP*incl GST: $100.00
ISBN: 9780947514501 (book)
ISBN: 9780947514525 (ebook)
Available in PBO and RED formats
Kennedy-Grant and Weatherall on Construction Law: The Underlying Law – Contract, Torts and Legislation
Tómas Kennedy-Grant & Michael Weatherall

RRP*incl GST: $100.00
ISBN: 9780947514143 (book)
New Zealand Conveyancing and Property Reports

Escrow Holdings Forty-One Ltd v District Court at Auckland - (2016) 18 NZCPR 377

Land covenants — Interpretation — Encumbrance — Purpose of encumbrance — Positive obligations — Access to land — Use of land — Land Transfer Act 1952, s 62 — Local Government Act 1974, s 308 — Property Law Act 1962, ss 64A and 126A — Property Law Act 2007, ss 4, 303, 307 and 316 — Property Law Amendment Act 1986, s 126.


Dooley v Sturgess Consulting Ltd - (2016) 18 NZCPR 400

Landlocked land — Compensation — Agreement by parties as to terms of reasonable access — Subject to conditions — Condition requiring payment of reasonable compensation — Discretion to order compensation — Proper approach to assessment of amount of compensation — Property Law Act 2007, ss 328, 329 and 330.



Nguyen v SM & T Homes Ltd - (2016) 18 NZCPR 427

Sale of land — Auction — Specific performance — Sale and purchase of property — Vendors refusing to settle — Whether sale of property concluded — Whether sufficient written record — Documents signed before auction — Part performance — Interest on late settlement — Property Law Act 2007, ss 6, 24 and 26.

Sale for land — Specific performance — Vendors refusing to settle — Whether contract enforceable — Written record — Part performance.



Water View Property Ltd v Gardner - (2016) 18 NZCPR 440

Sale of land — Specific performance — Misrepresentation — Summary judgment — Agreement for sale and purchase of incomplete subdivision — Vendors cancelling contract — Whether purchaser misrepresented intention when negotiating and entering agreement — Purchaser intending to subdivide further — Intention to perform other than in agreement — Subdivision linked to neighbouring subdivision — Vendors having ongoing interest in subdivision of land — Contractual Remedies Act 1979, ss 7, 7(3), 7(3)(a), 7(3)(b), 7(3)(c), 7(4), 7(4)(a), 7(4)(b) and 7(5) — Fair Trading Act 1986, ss 9, 43(3), 43(3)(a) and 43(3)(a)(i) — Resource Management Act 1991, ss 127 and 221 — Property Law Act 2007, s 24.

Textbooks
Derek Nolan QC (editor)

RRP*incl GST: $200.00
ISBN: 9780947514471 (book)
Caroline Miller & Lee Beattie (editors)

RRP*incl GST: $120.00
ISBN: 9780947514068 (book)
ISBN: 9780947514075 (ebook)
New Zealand Resource Management Appeals

Saddle Views Estate Ltd v Dunedin City Council - [2017] NZRMA 505

Environment Court — Declarations — Jurisdiction — Power conferred under s 313(b) limited by principles of general law — No jurisdiction to make declarations addressing hypothetical questions of law — Jurisdiction to make declarations as to rights under earlier legislation concerning matters of preliminary to or necessary step in making declarations under RMA — Resource Management Act 1991, ss 310 and 313.

Environment Court — Declarations — Natural justice — Application by Council to determine state of existing rights to quarry — Court empowered to enquire into, and make such declarations, as sought fit provided natural justice observed — Court empowered to raise further factual and legal issues relevant to declarations sought and seeking submissions on them — Court did not display apparent bias by raising such issues and seeking such submissions upon affording opportunity to be heard.



Hokio Trusts v Manawatu-Wanganui Regional Council - [2017] NZRMA 543

Resource consents — Decisions — Consent granted for restoration activities at Lake Horowhenua — Appeal to Environment Court — Procedure and powers — Representation at proceedings — Trustees of Hokio Trusts joined as s 274 party — Lake was vital taonga to Muaupoko iwi — Trustees asserted Hokio Trusts best vehicle for representing owners of Lake — Trustees asserted evidence adduced by them should be given greater weight — Environment Court preferred other evidence — Hokio Trusts appealed from Environment Court to High Court — Purpose and principles of Act — Treaty of Waitangi — Impact of Crown’s Treaty obligations on hearing and determination of Environment Court proceedings — Environment Court exercised jurisdiction within its legislative framework — No error of law by Environment Court — Resource Management Act 1991, ss 5, 6, 7, 8, 104, 104D and 274.



Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel - [2018] NZRMA 1

Local government — Auckland unitary plan — Independent Hearings Panel — Statutory obligation to give reasons for its recommendations — Nature and extent of obligation — Panel empowered to group submissions by reference to issues, relief or topics — Auckland Council obliged to give reasons only if Panel’s recommendations rejected — Statutory obligation defined common law obligations as to natural justice — Local Government (Auckland Transitional Provisions) Act 2010, s 144.



Cook v Housing New Zealand Corporation - [2018] NZRMA 39

Social housing — Provision of rental housing for those in need — Appellant rented property from respondent — Appellant requested transfer to different property — Appellant made complaints to Tenancy Tribunal — Respondent refused request — Appellant instituted proceedings against respondent — Appellant asserted statutory duty to provide “suitable housing” — Appellant asserted duty of care to provide “suitable rental accommodation” — No private civil right of action conferred — Inappropriate to recognise novel duty of care — Proceedings constituted abuse of process — Housing Corporation Act 1974, ss 3B, 18 and 76 — Residential Tenancies Act 1986, ss 45 and 82.

Lexis ® Draft (Advance)

A new version of Lexis Draft for Advance (7.7) is now available for download on the Knowledge Network. This version contains numerous updates including:
  • Improved performance of the Contract Companion Plugin (6.0)
  • Improved performance of the WordRake Plugin (3.3)
  • Single Sign On enabled.
  • Various bug fixes.
For more information on Lexis Draft and how it may benefit your firm, please visit our microsite.

PG Succession

Latest Legal Update: Court orders siblings to pay trustees in farming inheritance feud

Practical Guidance Trusts

Latest Legal Update: Public feedback sought on Trusts Bill



Latest Legal Update: Trusts Bill referred to Justice Committee

New Zealand Administrative Reports

LSF Trustee Ltd v Footsteps Trustee Co Ltd (In Liq) [2017] NZAR 1676

Equity — Trustee — Replacement trustee — Right of former trustee to reimbursement of debts it paid as trustee — Claim for indemnity by former trustee — No contractual basis for indemnity — Equitable indemnity — Equitable charge — Equitable lien of former trustee only enforceable by judicial sale or appointment of receiver — No right to immediate repayment — Genuinely disputable claim — Statutory demand — Requirements for statutory demand — Trustee Act 1956 ss 38(2), 47; Companies Act 1993 ss289, 290, 290(4), 290(4)(a), 298, 299; Property Law Act 2007 part 6; Unit Titles Act 2010 s124(2)
Disclaimer: This service is intended to provide a summary of information recently made available on the LexisNexis online legal platform. The contents of Summing Up does not purport to be professional advice on any particular matter. The publishers therefore accept no liability for any claim or other action that may arise from the use of the information provided in this publication.

© LexisNexis NZ Limited 2018. All rights reserved.
Unsubscribe | Privacy Statement | Contact Us

LexisNexis, Lexis Advance, Lexis Draft and the Knowledge Burst logo are registered trademarks of RELX Inc. © 2018 LexisNexis NZ Limited. All rights reserved.