When a marriage or relationship breaks down and there are significant assets in trust structures, bitter disputes and attempts to access those trusts can result. The issues often focus on whether the trust was established as a sham. However, a recent Court of Appeal case has created media and professional consternation with its finding that assets placed in trusts might be scrutinised in different ways too.
New Zealand, like many other jurisdictions, has been grappling with the new legal issues arising from the upsurge in communication online. An area that has recently received attention is the extent to which a person or entity that hosts or republishes content created by third parties online can be held liable for defamatory content generated by users. Two recent High Court decisions have clarified the approach in New Zealand.
A recent Supreme Court decision addressed the interplay of contractual and tortious liability in New Zealand, as well as the appropriate measure of damages for breach of contract. The decision shows that courts will not readily excuse parties whose negligence induces entry into a contract, even a public body such as a district council.
New procedural rules for district court claims will require practitioners to alter their approach and advice. Interlocutory warfare will cease, with only interlocutories that are considered genuinely necessary being allowed, and most claims will no longer require formal discovery. An emphasis on judicial settlement will place greater emphasis on a practitioner's ability to conclude settlement negotiations successfully.
The High Court has ruled that substituted service could be made on a defendant overseas on the social networking website Facebook, as newspaper advertising could not be effectively targeted. This is the first time that the New Zealand courts have allowed the service of proceedings on Facebook, but it follows a decision by an Australian court allowing service of a default judgment on the website.
The Evidence Act 2006 largely codified New Zealand’s common law evidence rules. However, as a result of late changes, legal professional privilege did not attach to legal advice obtained from overseas practitioners, which left open the risk of such advice being discoverable in New Zealand proceedings. A recent order in council extends privilege to communications with practitioners from 87 countries.
The Evidence Act 2006 was designed to simplify the law of evidence, but one of its unintended changes affects legal professional privilege as it applies to legal advice obtained from practitioners outside New Zealand and Australia. The risk of such advice from overseas practitioners being discoverable in proceedings is deeply worrying, but no remedial action has yet been taken.