Unlike other common law jurisdictions, New Zealand has not legislated to extinguish or restrict the torts of maintenance and champerty. Nonetheless, the courts have adopted a pragmatic approach to the management of third-party funded litigation, which recognises the benefits of third-party litigation funding in promoting access to justice, while leaving certain issues arising under the torts of maintenance and champerty for determination in the context of an actual claim of that nature.
The Court of Appeal recently reviewed important aspects of liability under New Zealand securities legislation. The decision is a useful confirmation of a number of securities law liability issues which have been gradually clarified through a series of cases following the collapse of most of New Zealand's finance companies during the global financial crisis. It also offers guidance on the approach to retrospectivity, a concept which is notoriously difficult to apply in some cases.
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.
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.
The High Court recently ordered an internet cloud storage company to disclose user information to Kazakhstan for use in a US proceeding. The judgment provides a useful overview of the principles considered by courts when faced with requests for assistance from foreign courts and fuels discussion around balancing the provision of information with local privacy legislation against a background of increased public awareness of the impact of hacking.
The Court of Appeal recently upheld the High Court's decision banning smoking on all properties owned or controlled by the Waitemata District Health Board. The grounds of appeal were that the policy was illegal, it had been adopted without taking into account relevant considerations and it breached a legitimate expectation and violated rights and freedoms contained in the Bill of Rights Act.
The High Court recently ruled that a police warrant to search a journalist's house, and consequently the search itself, was unlawful. The judgment offers useful comment on the importance of disclosure by law enforcement agencies seeking warrants, particularly where journalistic privilege is concerned. However, it does not address the question of who is a journalist, or what journalism is, for the purposes of the privilege.
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.
Two recent High Court decisions delivered conflicting results on the ability of the Financial Markets Authority to bring about a company's forced de-registration from the Financial Service Providers Register. Both cases involved appeals against proposed de-registration by a financial services company that was registered in New Zealand, but had its substantive operations offshore and no New Zealand customers.
The High Court recently ruled that holders of official information are not justified in taking a blanket approach when responding to requests for official information. The judgment confirms the primacy of open government and access to information under freedom of information legislation, but also the limits to the courts' ability to review the substantive merits of a decision to withhold information in a particular case.
In 2010 and 2011 the Canterbury region suffered several major earthquakes, resulting in severe destruction. The insurance industry has spent the following years dealing with unprecedented property claims. The Supreme Court and the Court of Appeal recently decided a number of important cases regarding earthquake insurance which will shape New Zealand insurance law for decades to come.
The Ministry of Business, Innovation and Employment's rules on government procurement decision making recently featured in a successful judicial review application to set aside a Ministry of Health contract award following a request for proposals process. The court confirmed that cabinet-imposed procurement rules will be strictly applied and that non-complying decisions may be set aside.
A recent Supreme Court decision has clarified the meaning of Article 8(1) of the Arbitration Act and resolved how agreements to arbitrate disputes under a contract should be construed where the existence of a genuine dispute is unclear. This decision set a precedent that when a party to an arbitration agreement attempts to bring court proceedings, the court must stay the matter and refer it to arbitration.
Two recent cases from the senior appellate courts have confirmed and restated the test for liability of lawyers who negligently advise on property transactions. The courts have affirmed that a stern test should be maintained in professional negligence claims by clients. Disgruntled clients will have to show that, had they been properly advised, they would have changed their course of action.
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.
Awards of interest on top of a proved sum of damages or debt owed remain a highly discretionary item for the court in each case, although that may be set to change. A 2014 Supreme Court decision has somewhat relaxed the restrictions on awards of interest, while Parliament is expected to extend and reinforce this approach via statutory changes in the Judicature Modernisation Bill.
The leader of the Conservative Party successfully obtained an urgent interim injunction preventing MediaWorks from screening a Saturday morning political debate in which he did not participate. This is the latest occasion in New Zealand where politicians have sought to use judicial review, combined with urgent injunctive court orders, to force media organisations to include them in election coverage.
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.
For the first time, the New Zealand courts have directly considered the interrelationship between cross-border insolvency and admiralty claims. The case arose from a foreign administration order that was recognised by the New Zealand High Court as a qualifying foreign proceeding and therefore operated as an automatic stay of proceedings in New Zealand. However, the court allowed the claimants to continue their admiralty claims.
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.