Ms Felicity Monteiro

Felicity Monteiro

Lawyer biography

Felicity holds a LLB (Hons) from the University of Auckland.  She was admitted to the bar in 2007 and has been with Wilson Harle since then.

Felicity is a civil and commercial litigator. She has assisted clients involved in disputes relating to contractual claims, debt recovery and telecommunications and has appeared as counsel in the District Court, High Court and Court of Appeal.

As well as conducting litigation, Felicity has also undertaken detailed research and provided in-depth advice in the areas of insurance law, public law, commercial law, Maritime and admiralty law and regulatory and competition law with a particular focus on the interpretation and application of the Telecommunications, Commerce and Fair Trading Acts.


Updates

Litigation

Amendments to Evidence Act for civil litigators
New Zealand | 12 December 2017

The Evidence Amendment Act 2016 came into force in January 2017 and is the fourth and most substantial amendment to the Evidence Act since its introduction in 2006. Most of the amendments relate to evidence in criminal proceedings. However, several amendments are relevant to civil proceedings. The amendments relate to the definitions relevant to the application of privilege, legal advice privilege, settlement privilege, prior consistent statements and the prohibition on using previous decisions as evidence.

Supreme Court enforces 'use it or lose it' trademark rule
New Zealand | 17 October 2017

The Supreme Court recently clarified the law applicable to unused registered trademarks in New Zealand and limited the scope of protection afforded to trademarks under the Trademarks Act 2002. The decision will affect companies which have sought to expand the protection available under the act by acquiring, but not actually using, trademarks that resemble their own purely to prevent other traders from using them.

Court of Appeal sheds light on new approach to penalties in Torchlight decision
New Zealand | 12 September 2017

The New Zealand Court of Appeal recently had to determine whether late payment fees of A$28 million on a 60-day loan of A$37 million were an unenforceable penalty according to the law of New South Wales, Australia, which was the law of the contract. Although the judgment addresses the law of New South Wales, it offers some insight into the New Zealand court's view of recent international developments on penalties.

Substantial security for costs ordered for third-party funded claims
New Zealand | 05 September 2017

The High Court recently ordered that a substantial amount be provided as security for costs by a litigation funder in relation to claims brought against seven defendants. The fact that the litigation was being funded by a third party was a significant consideration in the determination that the plaintiff could not pay costs itself and the exercise of the court's discretion to order that security be provided.

Supreme Court rules on lessee's obligations for remediation of subsurface contamination
New Zealand | 08 November 2016

The Supreme Court recently reversed a Court of Appeal decision, holding that Mobil Oil NZ Ltd was not responsible for remedying the contamination of land that it and its predecessors had occupied from 1925 to 2011. The Supreme Court ruled that the clause requiring Mobil to keep and deliver up the premises in good order did not extend to a requirement for it to remediate the subsurface of the land.

Supreme Court provides guidance on fees in consumer credit contracts
New Zealand | 09 August 2016

A recent Supreme Court decision provides guidance on the determination of the reasonableness of fees charged by finance companies in consumer credit contracts. The case illustrates how the broadly formed reasonableness standard and the provisions for determining the reasonableness of fees could lead to differing views on compliance. This is of particular concern as creditors are exposed to criminal charges for breach of the provisions.

Extent of lease obligations for remediation of contamination
New Zealand | 22 March 2016

The Court of Appeal has held Mobil Oil NZ Ltd liable for the cost of remedying hydrocarbon contamination of land that it has occupied since 1925. The issue before the court was whether an obligation in a 1985 lease that required Mobil to deliver up the land "clean and tidy" extended to the remediation of subsurface contamination, including contamination that had occurred long before the lease period.

Kim Dotcom cases test boundaries of international mutual assistance regime
New Zealand | 07 October 2014

The Court of Appeal has overturned an earlier decision not to extend the registration of the US restraining orders regarding Kim Dotcom, his associate Bram Van de Kolk and their company Megastuff Limited. Further, the court rejected an application by Dotcom's estranged wife to have her assets separated or excluded from the restraining order.

'Gardening Club' finally pruned: freight forwarding cartel and agreed penalty settlements
New Zealand | 27 May 2014

The last participant in an international freight forwarders' price-fixing cartel has finally been dealt with by the High Court in a case that confirms New Zealand's approach towards negotiated settlements and agreed penalties in these quasi-criminal prosecutions brought by a regulator. New Zealand courts remain quite content to endorse this type of 'plea bargaining' approach, despite recent Australian trends questioning it.

Court annulment and modification of charterparties
New Zealand | 18 February 2014

The High Court recently considered its ability to annul or modify charterparties that are entered into under duress, within its admiralty jurisdiction where the terms of the charterparty are inequitable and construed under the International Convention on Salvage 1989. The dispute underlying the decision arose from the October 2011 grounding of the MV Rena off the New Zealand coast.

Supreme Court mandates disclosure of litigation funding agreements
New Zealand | 10 December 2013

The Supreme Court has imposed disclosure requirements on plaintiffs whose legal costs of pursuing the claim are covered by a third-party litigation funder. The disclosure required by the Supreme Court is likely to lead to more defendants seeking security for costs when they are notified that a funder is involved or applying for a stay on the basis of abuse of process.

Law Commission publishes review of New Zealand courts
New Zealand | 25 June 2013

The New Zealand Law Commission has released a report on its review of the legislation establishing New Zealand's court system. The commission was charged with reviewing the legislation with a view to modernising and consolidating it into a single statute. The report contained a number of recommendations, many of which will be adopted in new court legislation to be introduced later in 2013.

Supreme Court rules post-sterilisation pregnancy is personal injury
New Zealand | 14 August 2012

The Supreme Court has held that a woman who became pregnant following a failed sterilisation had suffered a "personal injury" caused by medical misadventure, for which she was entitled to cover under the state compensation scheme. As a result, the woman could not sue the medical professional who was responsible. The decision is a reversal of an earlier Court of Appeal decision.

High Court extends protection for lien holders
New Zealand | 17 July 2012

A recent judgment extended the protection afforded to lien holders when the property subject to their lien is arrested. The court held that an application for arrest by a possessory lien holder and the subsequent handover of possession of the vessel to the admiralty registrar did not destroy the possessory lien, so that the lien holder was entitled to priority payment from the proceeds of sale of the vessel ahead of other claimants.

Maritime New Zealand denied appeal in safe ship management company case
New Zealand | 05 July 2011

The director of Maritime New Zealand has been declined leave to appeal to New Zealand's highest court in relation to the reinstatement of a safe ship management company. Owners of vessels are primarily responsible for the safety of such vessels; however, commercial vessels must also be registered with a safe ship management company, which periodically inspects and surveys the ship.

Does Email Discovery Mean Discovery of Attachments?
New Zealand | 10 November 2009

The High Court recently considered whether the inspection of discovered emails extends to email attachments. Most of the conceptual difficulties that arise from the discovery of emails stem from treating a email printout as the document itself, whereas an email - viewed as an electronic document - should be taken to include all of its elements, including attachments and reproduced copies of preceding emails.

High Court's reminder: remedies for judicial review claims are discretionary
New Zealand | 27 October 2009

The High Court has refused to grant declaratory relief to a judicial review claimant, although the claimant had successfully established grounds for review, had demonstrated prejudice and would normally have been entitled to a remedy. Some of the court's reasoning is disturbing and sits uneasily with the accepted view of the division of powers and the role of the courts in construing and interpreting legislation.

Email Chains: Discovery Obligations
New Zealand | 01 September 2009

The High Court recently considered the discovery obligations of parties to litigation with regard to the correct treatment of emails forming part of an email chain. The decision addresses the question of whether an email chain is a separate document in itself or part of a single document.

High Court Allows Service of Proceedings on Facebook
New Zealand | 19 May 2009

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.

High Court Procedural Rules Revised
New Zealand | 24 March 2009

New High Court procedural rules have come into effect. The significant amendments for international practitioners include changes to the rules on the service of persons outside New Zealand and the court's increased powers to grant interim measures in support of overseas judgments. More substantive changes in relation to case management, evidence and judicial review are expected soon.

High Court Applies Anti-spam Law
New Zealand | 10 March 2009

In the first case of its kind, the High Court fined an individual NZ$100,000 for being an accessory to the sending of spam emails in breach of the Unsolicited Electronic Messages Act. However, the available penalties are unlikely to deter spammers if the commercial rewards are as great as this case indicates. Moreover, it remains to be seen whether the act may be given wider extraterritorial application.

Court of Appeal Rules Pregnancy Is Not Personal Injury
New Zealand | 03 March 2009

The Court of Appeal has reversed a decision - in a case arising from a failed sterilization operation - that pregnancy is a compensable personal injury under the Injury Prevention, Rehabilitation and Compensation Act. The existence of cover under the act is a procedural bar to civil claims for injury, so the decision will allow for civil damages claims against a doctor or hospital in such cases.

High Court Rules on Conflict between Official Information Act and Privacy Act
New Zealand | 25 November 2008

The High Court recently had to resolve the inherent conflict between the aims of the Official Information Act 1982, which was enacted in order to make official information freely available, and those of the Privacy Act 1993, which was enacted to protect personal information from disclosure. It construed both acts and ruled that the former prevails over the latter.

Supreme Court Rules on Unconscionable Contracts
New Zealand | 05 August 2008

When considering whether a contract is unconscionable, should the question be asked with reference to the time of entry into the contract or the time when the contract became unconditional? The Supreme Court of New Zealand recently adopted the former approach, reversing that taken by the High Court and the Court of Appeal.

Judicial Review of Abortion Law Examines Gap between Legislation and Practice
New Zealand | 22 July 2008

The High Court of New Zealand has reviewed the state of abortion law and the rights of the unborn, an area which it aptly described as "socially divisive". The applicant sought judicial review of the actions of the Abortion Supervisory Committee, claiming that the committee was failing to ensure that the statutory test for lawful abortions was being properly and consistently applied.

High Court Overturns Commerce Commission Decision
New Zealand | 01 April 2008

The High Court has reversed the Commerce Commission's decision to reject clearance applications by New Zealand's two supermarket competitors to acquire shares in the country’s leading general merchandise trader. The court was critical of the commission's conclusions and the evidence on which they were based. The commission has been granted leave to appeal to the Court of Appeal.

Shipping & Transport

Court of Appeal clarifies extraterritorial application of Maritime Transport Act
New Zealand | 29 October 2014

In Teddy v New Zealand Police the Court of Appeal has provided clarification on New Zealand's jurisdiction over New Zealand ships on the high seas. The court held that the Maritime Transport Act applied extraterritorially, in keeping with New Zealand's obligations under the UN Convention of the Law of the Sea.

'Gardening Club' finally pruned: freight forwarding cartel and agreed penalty settlements
New Zealand | 28 May 2014

The last participant in an international freight forwarders' price-fixing cartel has finally been dealt with by the High Court in a case that confirms New Zealand's approach towards negotiated settlements and agreed penalties in these quasi-criminal prosecutions brought by a regulator. New Zealand courts remain quite content to endorse this type of 'plea bargaining' approach, despite recent Australian trends questioning it.

High Court issues guidance for MV Rena limitation fund claimants
New Zealand | 12 March 2014

Following the High Court judgment establishing a limitation fund for claims arising from the grounding of the MV Rena, the court has issued further directions to claimants that have filed claims against the fund. The earlier order allowed the owners of the Rena to limit their liability to NZ$11,030,110 for any claims for loss or damage arising from the grounding. All claims came within the limitation cap, but not all had been fully quantified.

Court annulment and modification of charterparties
New Zealand | 19 February 2014

The High Court recently considered its ability to annul or modify charterparties that are entered into under duress, within its admiralty jurisdiction where the terms of the charterparty are inequitable and construed under the International Convention on Salvage 1989. The dispute underlying the decision arose from the October 2011 grounding of the MV Rena off the New Zealand coast.

Ship arrests in practice
New Zealand | 15 January 2014

Initial ship arrest in New Zealand can be fast and relatively inexpensive. The time and cost involved in maintaining the arrest and claim against the ship, and possibly obtaining judicial sale, will depend on a range of factors. Provided that all of the necessary information is available, the proceeding can be prepared and the application for arrest made within a short time of the instruction being received.

High Court confirms boat builder's right to arrest
New Zealand | 09 October 2013

The High Court recently examined whether a boat builder's right to bring an in rem claim in the admiralty jurisdiction and to arrest a vessel was extinguished by a subsequent payment arrangement with the vessel owner. The builder's claim was brought on the basis that it was a claim in respect of the construction, repair or equipment of a ship under the Admiralty Act.

High Court clarifies jurisdiction over New Zealand ships on high seas
New Zealand | 22 May 2013

The High Court recently clarified the extent of New Zealand's jurisdiction over New Zealand ships on the high seas. The case involved a skipper charged with committing an offence under the Maritime Transport Act by operating his ship in a manner that caused unnecessary risk. The court had to consider whether the act applies extraterritorially, either through its express wording or by implication.

High Court jurisdiction to order limitation fund under the Maritime Transport Act
New Zealand | 08 May 2013

A recent High Court decision has held that the court has jurisdiction to authorise the establishment of a limitation fund as security for a shipowner's liability for damage caused by a ship. This decision is contrary to earlier authority on the point. The case stems from the grounding of the MV Rena off the coast of Tauranga on New Zealand's North Island.

Foreign-chartered fishing vessels: stricter regulation one step closer
New Zealand | 03 April 2013

A recent ministerial inquiry into the use and operation of foreign-chartered vessels in New Zealand concluded that the way in which some such vessels operate has the potential to damage the country's international standing. In response, a new bill has been put before Parliament that is designed to improve vessel safety management, employment and fisheries management on foreign-chartered vessels.

Financial review of Maritime New Zealand
New Zealand | 18 July 2012

The Transport and Industrial Relations Committee has completed a report on its 2010-2011 financial review of Maritime New Zealand. The report focused on the initial response and continuing work on the clean-up following the grounding of the CV Rena on the Astrolabe Reef, near Tauranga in the North Island.

High Court extends protection for lien holders
New Zealand | 11 July 2012

A recent judgment by the High Court in its admiralty jurisdiction extended the protection afforded to lien holders when the property subject to their lien is arrested. The court held that an application for arrest by a possessory lien holder and the subsequent handover of possession of the vessel to the admiralty registrar did not destroy the possessory lien.

Court's interpretation of Carriage of Goods Act casts doubt on limits of liability
New Zealand | 21 March 2012

New Zealand has a statutory regime that imposes strict liability on contracting carriers for goods carried domestically, regardless of whether the damage was caused by them or by a separate actual carrier. In exchange for this strict liability, contracting carriers can limit their liability to NZ$1,500 a unit. A recent High Court decision has explored the limits of this statutory regime.

Assessing the impact of the Rena disaster
New Zealand | 19 October 2011

Clean-up and salvage operations are continuing following the leakage of over 350 tonnes of oil from the MV Rena, the container vessel which struck a reef off the coast of Tauranga. The captain and a second crewman have been charged under the Maritime Transport Act, and the worst maritime environmental disaster in New Zealand's history has raised significant safety questions and issues of civil liability.

Inquiry into competition in international freight transport markets
New Zealand | 17 August 2011

The New Zealand Productivity Commission is conducting a major inquiry into international freight transport services supplied to New Zealand. This includes reviewing international shipping and air cargo markets and the existing competition law immunity for shipping liner conferences. A recent issues paper raises significant themes for discussion.

Maritime New Zealand denied appeal in safe ship management company case
New Zealand | 29 June 2011

The director of Maritime New Zealand has been declined leave to appeal to New Zealand's highest court in relation to the reinstatement of a safe ship management company. Owners of vessels are primarily responsible for the safety of such vessels; however, commercial vessels must also be registered with a safe ship management company, which periodically inspects and surveys the ship.

Caveator beware: abuse of process in admiralty proceedings
New Zealand | 16 March 2011

The High Court recently found that a caveat against the release of a vessel was unfounded and an abuse of process. The decision as a whole is a salient reminder of the consequences of abusing the admiralty jurisdiction and of the dangers of acting for more than one party wishing to obtain recovery from a vessel.

Forum non conveniens considerations in admiralty in rem proceedings
New Zealand | 15 December 2010

The High Court recently dismissed an application for stay of in rem proceedings brought under its maritime jurisdiction on the basis that the applicant had not established that New Zealand was forum non conveniens. The application for stay was based on the fact that the contract in dispute was an Australian contract governed by Australian law which contained a clause referring disputes to the relevant industrial union in Australia.

Tech, Data, Telecoms & Media

Major changes to privacy laws: implications for New Zealand businesses
New Zealand | 06 March 2018

The EU General Data Protection Regulation (GDPR) will come into full effect on May 25 2018 and will impact New Zealand businesses that do business with EU residents or entities or have a presence in the European Union. In addition, the privacy commissioner recently released a report recommending that the Privacy Act be substantially amended (including to comply with the GDPR) and the Ministry of Justice has indicated that privacy reform is a key initiative.