New Covid 'test case' out of New South Wales

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New Covid 'test case' out of New South Wales

Regular readers will be aware that Fee Langstone has been providing updates on the UK ‘test case’ on the business interruption response to COVID-19 related claims.

Closer to home, the New South Wales Court of Appeal has also recently handed down its decision in its own test case. It found in favour of insured businesses, ruling that insurers could not rely on certain disease exclusion clauses to deny claims for loss caused by business interruption losses from COVID-19.

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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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Client Function Announcement

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Client Function Announcement

We have made the tough choice to postpone our Client Function for this year. 2020 marked Fee Langstone’s 5th birthday and it has been the kind of year to make you want to let loose with a much-needed party. Unfortunately, for the sake of everyone’s health and safety we’ve decided to postpone our celebrations to early 2021. We look forward to seeing you all next year and shaking off the lockdown cobwebs.

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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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Brad & Angus promoted to Special Counsel

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Brad & Angus promoted to Special Counsel

The partners are very pleased to announce that Brad and Angus have been promoted to the new role of Special Counsel. Brad has been with the firm 12 years, and Angus since 2014. These promotions recognise their experience and the high regard in which they are held by the partners. We would like to wish them both continued success, and to thank them for their valuable contribution to the continued success of the firm.

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BI Covid-19 test case decision released

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BI Covid-19 test case decision released

As regular readers know, Fee Langstone has been providing updates on the UK “test case” on the Business Interruption response to Covid-19 claims as the case has proceeded through the Court.

To recap, the United Kingdom Financial Conduct Authority (FCA) had brought the Covid-19 “test case” with the aim of bringing clarity to areas of uncertainty for as many policyholders and insurers as possible. A sample of twenty-one policy wordings issued by eight insurers was considered, with the FCA putting forward policyholders’ arguments in the public interest.

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$7.5m in penalties for serious anti-money laundering breach

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$7.5m in penalties for serious anti-money laundering breach

Dept of Internal Affairs v OTT Trading Group Ltd [2020] NZHC 1663

In this decision, the Department of Internal Affairs (the Department) claimed that between May 2014 and April 2019, OTT Trading Group (OTT) and MSI Group Limited (MSI) breached their obligations under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (the Act).

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First workplace manslaughter in Australia

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First workplace manslaughter in Australia

R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113

In our February 2020 issue of In Brief, we discussed how two further Australian jurisdictions (Victoria and the Northern Territory) had passed workplace manslaughter laws. Now, Australia has had its first workplace manslaughter sentence. The sentence was imposed in Queensland, pursuant to workplace manslaughter laws, which have been in force since 2017 following an amendment to Queensland’s Workplace Health and Safety Act 2011.

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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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