Wilson Harle updates

Cryptocurrencies as property
Wilson Harle
  • Litigation
  • New Zealand
  • 13 October 2020

The NZ High Court recently held that cryptocurrency constitutes property at common law and is therefore capable of being held on trust. The decision has brought welcome certainty to the legal status of cryptocurrency in New Zealand and will give more comfort to those trading in cryptocurrencies throughout the country. Recognition of cryptocurrency as property is an important step in clarifying rights and obligations surrounding cryptocurrency.

Contractual interpretation revisited
Wilson Harle
  • Litigation
  • New Zealand
  • 06 October 2020

In what may turn out to be a landmark decision, the Court of Appeal recently signalled a narrowing of the approach to contractual interpretation, reducing the relevance of evidence from outside a contract to determine its meaning. Two of the issues on appeal concerned the meaning of a sale agreement and its 2012 amendment, bringing issues of contractual interpretation to the forefront of the analysis.

Court of Appeal confirms right to cancel insurance contract for fraudulent claims
Wilson Harle
  • Litigation
  • New Zealand
  • 29 September 2020

A recent Court of Appeal decision highlights the consequences which flow from an insured providing dishonest information in support of an insurance claim. It is the first appellate-level consideration of the fraudulent claims rule in New Zealand and confirms both that the duty of utmost good faith is an implied contractual term and that the legislative framework in the Contract and Commercial Law Act 2017 governs remedies for breach.

Contractual penalties: Supreme Court confirms New Zealand's adoption of recast penalty rule
Wilson Harle
  • Litigation
  • New Zealand
  • 21 July 2020

At first instance and then on appeal, the High Court and the Court of Appeal adopted a recast rule against contractual penalties, reflecting developments in England and Australia. The Supreme Court has now delivered its judgment, confirming New Zealand's adoption of the recast rule and clarifying the test and its relationship with concepts of unconscionability and the relative bargaining power of the parties.

First judicial consideration of COVID-19 decisions
Wilson Harle
  • Litigation
  • New Zealand
  • 26 May 2020

The High Court recently issued a decision on a judicial review application which challenged the lawfulness of exemption decisions made pursuant to an order under the Health Act and sought urgent interim relief. The decision was the first consideration by the court of the lawfulness of actions taken during the exercise of the sweeping powers assumed by the government in response to the COVID-19 pandemic.

Opting in or opting out: representative action
Wilson Harle
  • Litigation
  • New Zealand
  • 28 April 2020

Representative actions, New Zealand's version of class actions, are becoming increasingly frequent across the litigation landscape. Notably, the Court of Appeal recently issued what may be a landmark decision for the future of representative actions in New Zealand. In overturning a decision of the High Court, the Court of Appeal approved the plaintiffs bringing a representative action in which the represented group would be formed on an opt-out basis, similar to class actions in other jurisdictions.

Clear course charted through loss of a chance quagmire
Wilson Harle
  • Litigation
  • New Zealand
  • 21 April 2020

Two recent decisions have provided insightful authority in New Zealand on a challenging area of law: the loss of a chance doctrine. The significant feature of a loss of a chance claim is that if a plaintiff proves that it has lost a chance of some value, the damages to which it is entitled will be assessed on a probabilities basis, rather than the usual civil all-or-nothing standard.

What constitutes 'hunt or kill'? Supreme Court's shark cage diving decision illustrates interpretation difficulties
Wilson Harle
  • Litigation
  • New Zealand
  • 03 March 2020

Contrary to media reports, the Supreme Court's recent decision in Shark Experience Ltd v PauaMAC5 Inc has expressly left the question of whether shark cage diving is an offence in New Zealand open for a future case in which a breach of Section 63A of the Wildlife Act 1953 is alleged. The decisions of the Supreme Court and the lower courts illustrate the challenges of statutory interpretation and the resulting potential for differing judicial views.

Supreme Court confirms that replacement cover rights are not assignable
Wilson Harle
  • Litigation
  • New Zealand
  • 22 October 2019

The Supreme Court recently dismissed an appeal, holding that the right to replacement under an insurance policy cannot be assigned where the insured party has not incurred the reinstatement costs. The case should be considered by homeowners and their brokers when choosing a replacement home insurance policy and by purchasers and their advisers if assignment of claims is in prospect.

Contractual penalties: Court of Appeal upholds High Court's decision in Honey Bees
Wilson Harle
  • Litigation
  • New Zealand
  • 15 October 2019

The Court of Appeal recently upheld a High Court judgment, confirming New Zealand's adaption of the recast rule. In doing so, the Court of Appeal has set out the context for adopting the revised rule. However, as the appellant has been granted leave to appeal to the Supreme Court, the final word is awaited.

Diminution not required for voidable transactions
Wilson Harle
  • Litigation
  • New Zealand
  • 10 September 2019

The Supreme Court recently confirmed that the requirements outlined in Section 292 of the Companies Act 1993 are all that is required in order to void an insolvent transaction. In particular, the court confirmed that there is no additional common law principle stating that the transaction must have diminished the net pool of assets available to creditors. This is a helpful decision which brings certainty to the test for voidable transactions and avoids adding unnecessary complexity into the corporate insolvency regime.

Court costs when using employed lawyers – return to status quo ante
Wilson Harle
  • Litigation
  • New Zealand
  • 06 August 2019

The Supreme Court recently overturned the position set out in Joint Action Funding (that lawyer-litigants are not entitled to costs). While the certainty created by the court will be a relief to lawyer-litigants and organisations that are regularly represented in court by employed lawyers alike, the intervening decisions indicate that the days of the status quo may be numbered – in particular, the differential treatment of lawyer-litigants and lay-litigants.

No jurisdiction without service: difficulties obtaining interim injunctions against offshore companies
Wilson Harle
  • Litigation
  • New Zealand
  • 02 April 2019

The High Court recently dismissed an interim injunction against Viagogo AG, holding that it did not have jurisdiction to consider and determine the application without service on Viagogo. The case clarifies that the courts will not overlook the requirement for service and highlights the difficulty of seeking an interim injunction against companies that are based overseas.

Supreme Court brings final clarity to prospectus liability
Wilson Harle
  • Litigation
  • New Zealand
  • 13 November 2018

The Supreme Court recently considered the liability of those associated with the 2004 Feltex Carpets initial public offering of shares under NZ securities legislation. The decision is a useful determination of a number of securities law liability issues in the NZ context. Among other things, it has clarified that an untrue statement for the purposes of Section 56 of the Securities Act need not be misleading to a material extent to be untrue.

Contractual penalties again
Wilson Harle
  • Litigation
  • New Zealand
  • 28 August 2018

A recent High Court decision adopted the perspective taken in the United Kingdom and Australia on the contractual penalties rule, shifting focus from a comparison between secondary obligations and genuine pre-estimates of damage caused by breach to comparing secondary obligations and the innocent party's performance interest. The decision confirmed the continued relevance of Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd but not the rigour of its application in earlier cases.

No costs entitlement without lawyer's invoice – parties using in-house lawyers lose entitlement to costs
Wilson Harle
  • Litigation
  • New Zealand
  • 17 July 2018

Since 1983 it has been the position in New Zealand that a party can recover costs in cases where it has been represented by a lawyer that it employed. However, a recent Christchurch High Court decision held that this is no longer the case. The decision will have a significant impact on entities which are routinely represented in court proceedings by in-house lawyers.

Context is everything – court adopts purposive approach to runway end safety area criteria
Wilson Harle
  • Litigation
  • New Zealand
  • 27 March 2018

The Supreme Court recently considered a judicial review application about the length of runway end safety areas under a proposed runway extension. Users of the airport might be reassured by the Supreme Court's finding that, under the existing statutory regime, more than a cost-benefit analysis is required; among other matters, a mandatory consideration includes the need to improve aviation safety.

Duty of care owed by local authority to commissioning owner after stadium collapse
Wilson Harle
  • Litigation
  • New Zealand
  • 20 March 2018

The Supreme Court recently reversed a Court of Appeal judgment that a local authority did not owe a duty of care to a commissioning owner in issuing a code compliance certificate for a non-compliant building. The judgment is significant because it recognises that local authorities owe a duty of care even to commissioning owners that engage their own professionals to ensure compliance with building standards.

Supreme Court decision seen as warning for litigation funders
Wilson Harle
  • Litigation
  • New Zealand
  • 06 February 2018

The Supreme Court recently issued a somewhat controversial decision of significance in the area of litigation funding. The decision contains guidance on the key question of whether a funding agreement amounted to an impermissible assignment of a bare cause of action that would constitute trafficking in litigation. It remains to be seen whether, and to what extent, the decision may be used by defendants seeking to challenge funding agreements.

Amendments to Evidence Act for civil litigators
Wilson Harle
  • Litigation
  • 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.

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