The New Zealand Commerce Commission's position towards gun jumping is that "while parties to proposed mergers must naturally engage with each other to explore the merits of a transaction prior to binding themselves and consummating a deal", pre-merger discussions and coordination concerns can arise. Businesses contemplating an M&A transaction with their competitors must therefore bear in mind a number of competition law considerations.
The New Zealand Commerce Commission (NZCC) recently published amended cartel leniency policy guidelines, updating its previous guidelines from 2011. While the changes are mostly cosmetic, the updated guidelines indicate a potential change in the NZCC's approach towards penalty discounts for second-in applicants that seek to fall within its cooperation regime.
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.
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.
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.
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.
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.