Latest updates

Contractual penalties again
Wilson Harle
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
Wilson Harle
  • 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
Wilson Harle
  • 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
Wilson Harle
  • 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 upholds smoking ban in mental health facilities
Wilson Harle
  • New Zealand
  • 22 August 2017

The Supreme Court recently upheld a ban on smoking in public mental health facilities, ruling that the ban did not breach patients' rights, even of those compulsorily detained on the property. The court held that there was no requirement under the Smoke-free Environments Act to provide a dedicated smoking room, and rejected the appellant's claim that the smoking prohibition infringed a number of rights under the Bill of Rights Act.

Breach of disclosure requirements aborts complex financial crime trial
Wilson Harle
  • New Zealand
  • 15 August 2017

The High Court recently aborted the trial of four company directors of two failed finance companies after the prosecution disclosed an unprecedented number of previously undisclosed documents at an advanced stage of the trial. The court's careful examination of the principles for aborting a single-judge trial will be useful in similar cases, in light of the fact that, because complex commercial criminal cases involve immense numbers of documents, disclosure failures can occur.

Court of Appeal upholds prisoner voting rights declaration
Wilson Harle
  • New Zealand
  • 08 August 2017

The Court of Appeal recently upheld a High Court declaration that a prohibition on prisoners voting is inconsistent with the Bill of Rights Act. The case is significant in its finding that the courts have jurisdiction to make declarations of inconsistency. Although the courts have, from the time of the act's enactment, been committed to granting remedies where possible to vindicate rights, they have declined earlier applications for declarations of inconsistency.

No duty of care owed by local authority to commissioning owner after stadium collapse
Wilson Harle
  • New Zealand
  • 13 June 2017

The Court of Appeal recently held 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 decision is significant because it restricts the circumstances in which local authorities have a duty of care in relation to defective buildings, especially to commissioning building owners which contract with their own professionals to ensure compliance.

Restricted scope of judicial review for government procurement decisions restored by Court of Appeal
Wilson Harle
  • New Zealand
  • 25 April 2017

The Court of Appeal recently reversed, on appeal, a High Court judgment setting aside the Ministry of Health's decision to award problem gambling services contracts to parties other than the applicant, the Problem Gambling Foundation, a major incumbent provider. The decision is important because it significantly decreases the likelihood of unsuccessful bidders being able to use the government procurement rules to set aside procurement decisions.

Litigation funding in New Zealand
Wilson Harle
  • New Zealand
  • 31 January 2017

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.

Appeal comprehensively clarifies prospectus liability
Wilson Harle
  • New Zealand
  • 29 November 2016

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.

Supreme Court rules on lessee's obligations for remediation of subsurface contamination
Wilson Harle
  • 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
Wilson Harle
  • 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.

Cloud storage operator ordered to disclose user details for use in foreign proceeding
Wilson Harle
  • New Zealand
  • 02 August 2016

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.

Court of Appeal upholds Waitemata District Health Board smoking ban
Wilson Harle
  • New Zealand
  • 12 July 2016

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.