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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Getting to know Michelle Kilham

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Getting to know Michelle Kilham

Michelle is an experienced commercial litigator who acts on a broad range of commercial disputes. She commenced practice in 2011 and has acted for a variety of individuals and entities including large corporates, banks, insolvency practitioners and insurers. Michelle has particular expertise in disputes involving professional liability, restructuring and insolvency, company law, trusts and property.

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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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Ch-ch-changes! Reforming insurance law – draft Insurance Contracts Bill released for consultation

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Ch-ch-changes! Reforming insurance law – draft Insurance Contracts Bill released for consultation

Significant changes to New Zealand’s insurance laws are in the pipeline. Following public consultation on proposed changes in 2018 and 2019, Cabinet has made policy decisions on the key changes which are to occur to insurance law. Last month, MBIE released an exposure draft of the new Insurance Contracts Bill which aims to brings New Zealand closer into line with the policyholder-friendly changes which have already occurred in Australia and the United Kingdom. While further public consultation is invited, it appears much of the change has been already been decided.

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Russian cyber attack not “warlike” – clarifying the scope of the war exclusion

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Russian cyber attack not “warlike” – clarifying the scope of the war exclusion

Merck & Co v Ace American Insurance Co No: UNN-L-2682-18

It is not often that courts have occasion to look at the construction of the ‘war risks’ exclusion. In a novel argument, the insurer relied on the war risks exclusion to deny cover to an insured for losses arising from a cyber attack. The Superior Court of New Jersey held that it did not apply. In doing so, it provided useful clarification of the meaning of the exclusion.

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Indemnity focus:  the meaning of ‘control’

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Indemnity focus:  the meaning of ‘control’

Penfold v The Hollard Insurance Co Pty Ltd [2021] NSWSC 1322

Insurers and brokers are often presented with a difficult fact-specific question to resolve – is property within the physical and legal control of an insured? An insured’s legal responsibility will often turn on this, and so too may its coverage position. In this article we look at a recent Australian decision which held that property owners may have “control” of goods on their property even if they have not charged for storage and have not exercised any power over the goods.

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Health & Safety prosecution:  when will a defendant be ‘reckless’?  

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Health & Safety prosecution:  when will a defendant be ‘reckless’?  

WorkSafe New Zealand v Waste Management NZ Limited [2021] NZHC 3444

There are few decisions in New Zealand which have looked at what conduct will amount to recklessness in the context of the Health and Safety at Work Act 2015 (the Act). This is why the recent High Court decision, declining WorkSafe’s application for leave to appeal the District Court’s decision, is so important.

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Focus on indemnity: Insurance Claim Time Barred – Clock Started Ticking Immediately

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Focus on indemnity: Insurance Claim Time Barred – Clock Started Ticking Immediately

Bann Carraig Ltd v Great Lakes Reinsurance (UK) Plc [2021] NIQB 63

This decision from the High Court of Northern Ireland is a cautionary tale for insureds not to delay too long after an insured peril before filing proceedings, and a reminder for insurers to consider potential limitation defences when faced with old claims.

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Get to know Edward

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Get to know Edward

Edward joined Fee Langstone last month as a Senior Associate, after time working in both large and boutique practices in Auckland, and in London. He has a broad range of civil litigation experience and has assisted clients in resolving challenges that have included contractual disputes, regulatory prosecutions, insolvency and debt recovery issues, as well as property and trust disputes.

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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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Who gets what?  Dividing recovery proceeds between insured and insurer

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Who gets what?  Dividing recovery proceeds between insured and insurer

Technology Swiss Pty Ltd v AAI Limited t/a Vero Insurance [2021] FCA 95

The Federal Court of Australia recently considered how to allocate between insurer and insured the proceeds of a recovery action against a third party. The case emphasises that an insurer has a right to share in the proceeds of a recovery action only to the extent that the insurer provides indemnity under the policy. Where the insurer pays a settlement to the insured for costs incurred by the insured which are not part of the indemnity provided by the policy then, absent a contractual right, the insurer has no right to share in the fruits of a recovery action. If the insurer wants to procure this right, it needs to ensure that the settlement agreement with the insured makes this clear.

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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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