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.
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.