Limitation:  the importance of searching old paper files

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Limitation:  the importance of searching old paper files

Daisley v Whangarei District Council [2022] NZHC 1372

Decisions which consider whether a defendant had a continuing duty, and the implications of that for the purposes of a limitation defence do not arise often. The High Court has recently issued such a decision, in a long-running (and high-value) litigation against a local authority. Unfortunately for the Council, a land use consent, going back to 1988, was on their paper files but not recorded in the computer files. It led to the Council overlooking the land use consent, and then prosecuting a landowner for operating a quarry in breach of a resource consent. Ultimately, it also led to the Council being liable in damages to the landowner for in excess of $4m.

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Multi-disciplinary firms:  the scope of legal professional privilege

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Multi-disciplinary firms:  the scope of legal professional privilege

Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278

In late March 2022, after a five-day virtual hearing conducted using Microsoft Teams, the Federal Court of Australia delivered a highly anticipated judgment in a long-running privilege dispute between the Commissioner of Taxation (the Commissioner) and PricewaterhouseCoopers Australia (PwC) and its clients, Flora Green Pty Limited, and JBS Australia Pty Limited, finding that only some of the documents for which PwC claimed legal professional privilege (privilege) were accurately withheld.

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Tenant’s exoneration provisions of the Property Law Act 2007 extend beyond the leased premises

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Tenant’s exoneration provisions of the Property Law Act 2007 extend beyond the leased premises

Inlet Storage Limited v United Movers Limited [2021] NZDC 23513[1]

Sections 268 and 269 of the Property Law Act 2007 exonerate tenants of property from liability for damage caused by a range of perils, including fire and flood, where the landlord has an insurance policy that covers the causative peril. Where that is the case, the tenant cannot be required to meet the costs of making good the destruction or damage, or to pay damages “in respect of” the same. The District Court recently considered the application of these sections beyond the leased premises to neighbouring properties.

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‘Swings and roundabouts’:  clarifying the ability to aggregate claims

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‘Swings and roundabouts’:  clarifying the ability to aggregate claims

The Right Reverend Nicholas Baines, Lord Bishop of Leeds v Dixon Coles & Gill [2021] EWCA Civ 1211

The English Court of Appeal recently considered whether claims brought against a law firm for the systematic fraud of one of its partners should be aggregated for the purposes of the limit of indemnity in the firm’s insurance policy. The English High Court’s judgment, upheld on appeal, was that the claims should not be aggregated and that each attracted a separate limit of indemnity.

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Clarifying minority shareholder’s buy out rights

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Clarifying minority shareholder’s buy out rights

Birchfield v Birchfield Holdings Limited [2021] NZCA 428

The Court of Appeal considered recently the issue of a minority shareholder’s rights in a case where the minority shareholder refused to accept buy-out offers and then claimed the company had acted in an unfairly prejudicial manner towards him. In so doing, the Court of Appeal also provided useful guidance on how the majority can use the summary judgment fast track procedure to buy out the minority.

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Court dismisses claim by “consumer” for damage caused by fire to yacht

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Court dismisses claim by “consumer” for damage caused by fire to yacht

Tregidga v Pasma Holdings Pty Limited [2021] FCA 721

The Federal Court of Australia has recently considered and dismissed a claim against contractors carrying out electrical repairs on a yacht for fire damage. The legal basis for the decision and the reasoning employed by the court is of relevance to both material damage and liability insurers alike.

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The end of the Feltex litigation

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The end of the Feltex litigation

Houghton v Saunders [2021] NZSC 38

A recent decision by the Supreme Court has brought an end to a long-running saga through the New Zealand courts. Commenced in 2008, a class action suit of some 3,600 shareholders has rolled on against the directors of Feltex Carpets Limited (Feltex) and its (former) private equity owner, Credit Suisse, for thirteen years.

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Contribution claim against third parties for negligence not barred by the 10-year longstop period in the Building Act

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Contribution claim against third parties for negligence not barred by the 10-year longstop period in the Building Act

BNZ Branch Properties Limited v Wellington City Council [2021] NZHC 1058

The High Court has recently ruled that a contribution claim by a defendant against third party engineers was not time-barred by the 10-year longstop period in the Building Act 2004.

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Location of insurer imperative to s 9 LRA claim

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Location of insurer imperative to s 9 LRA claim

Livingstone v CBL Corporation Ltd (in liq) [2021] NZHC 755

The High Court has recently issued a decision in the CBL litigation which concerned the territorial ‘location’ of a charge under s 9 of the Law Reform Act 1936 (the LRA). In so doing, the Court reinforced the necessity of using the correct procedure for any jurisdictional challenge.

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Terms of contracts prevail over rights of subrogation

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Terms of contracts prevail over rights of subrogation

The law has long recognised that where an insurer has indemnified an insured for loss caused by a third party, the insurer can sue the third party in the insured’s name to recover the amount paid. However, two recent UK decisions have discussed the question of when the terms of a contract entered into by the insured might impact on rights of recovery.

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Continuing developments in Southern Response v Ross – Class Action “opt-out” approved

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Continuing developments in Southern Response v Ross – Class Action “opt-out” approved

Southern Response Earthquake Services Limited v Ross continues to throw up significant legal developments. The latest is the landmark judgment issued last month by the Supreme Court whereby it has approved the use of an “opt-out” representative action regime in New Zealand.

Also, in a significant postscript, the government has announced a “proactive package” to be offered to eligible policyholders. This article looks at both developments.

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Solvency the key

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Solvency the key

Supreme Court decision a warning to directors trading near-insolvent companies

Madsen-Ries v Cooper [2020] NZSC 100

Debut Homes Limited (Debut) was a property developer. Mr Cooper is Debut’s sole director. In November 2012, Mr Cooper decided to wind down Debut’s operations. Existing developments would be completed but no new developments undertaken. At the time this decision was made, it was forecast that there would be a deficit of over $300,000 in GST once the wind-down was completed. The liquidators of Debut sued Mr Cooper. They claimed that he incurred debts on behalf of Debut without a reasonable belief that Debut would be able to meet them when they fell due, in breach of ss 135 & 136 of the Companies Act 1993 (the Act),. The liquidators claimed the full amount of unsecured creditor claims, being $449,507. The High Court found that Mr Cooper had breached the above provisions. This decision was reversed in the Court of Appeal but was later reinstated by the Supreme Court.

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Insurer’s duty not to mislead:  The Court of Appeal’s decision in Dodds

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Insurer’s duty not to mislead:  The Court of Appeal’s decision in Dodds

Southern Response v Dodds [2020] NZCA 395

The Court of Appeal has recently delivered its judgment in the appeal from the High Court decision. The Court upheld the High Court’s finding that Southern Response was liable for misrepresentation, misleading and deceptive conduct, and breach of an implied duty of good faith.

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The final stage in the real estate price-fixing saga:  Penalty

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The final stage in the real estate price-fixing saga:  Penalty

Commerce Commission v Lodge Real Estate Limited [2020] NZHC 2329

In our April blog we summarised the effect of the Supreme Court’s decision in the Trade Me/real estate agents price-fixing saga. On dismissal of the real estate agents’ appeal, the Supreme Court referred the matter back to the High Court for determination of the penalty to be paid by Lodge Real Estate and Monarch Real Estate.

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Crown immune from liability for Psa outbreak

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Crown immune from liability for Psa outbreak

Attorney-General v Strathboss Kiwifruit Limited [2020] NZCA 98
In this recent decision, the Court of Appeal found that the Crown was immune from liability to kiwifruit growers and post-harvest operators in negligence for granting an import permit for a consignment of kiwifruit pollen from China and for not inspecting those goods when they arrived in New Zealand. Further, even if the immunity had not been made out, the Court found no duty of care in any event.

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Clarifying fiduciary obligations in a joint venture arrangement

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Clarifying fiduciary obligations in a joint venture arrangement

Daisley v Ark Contractors Limited [2020] NZHC 793

Fee Langstone was recently involved in a High Court trial which has shed light on the fiduciary duty that arises from a joint venture arrangement. It also usefully affirms the requirement that there be a contract of retainer or assumption of responsibility to a party involved in a transaction before a lawyer will owe fiduciary duties to that party.

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The end of the road in the real estate price-fixing saga

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The end of the road in the real estate price-fixing saga

Lodge Real Estate Limited v Commerce Commission [2020] NZSC 25

The Supreme Court has recently delivered its judgment in the Trade Me/real estate agents price-fixing case, making this the final episode (on liability at least). Two Hamilton real estate agencies lost their seven-year battle against price-fixing allegations by the Commerce Commission.

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