Get to Know Ashleigh
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Get to know Ashleigh Moana-Howard who joined the FL team in July as a Senior Solicitor.
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Marine focus: New Zealand Court of Appeal scrutinises an open cargo policy
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JDA Co. Ltd and ors v AIG Insurance New Zealand Limited [2022] NZCA 532
The New Zealand Court of Appeal has just delivered its first-ever judgment on the operation of a marine open cargo policy and, in doing so, affirmed orthodox principles taken from English law.
Read MoreFocus on directors’ duties: UK Supreme Court’s “momentous” decision on creditors’ interests
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BTI 2014 LLC v Sequana SA [2022] UKSC 25.
On 5 October 2022, the UK Supreme Court released its long-awaited and self-described “momentous” decision considering the fiduciary duty of directors to act in good faith in the interests of the company. Specifically, this decision is the first time that the UK Supreme Court (or the House of Lords) has confirmed that directors owe a duty to consider or act in the interests of the company’s creditors if the company becomes or is at risk of becoming insolvent. In so doing, the decision has implications for directors in New Zealand.
Client Function 2022
/This year marked the 25th Anniversary of Fee Langstone’s favourite movie The Castle so it was only fitting that it was the theme of our annual Client Function. It was a great night filled with mullets, ugly jumpers, a partial Pool Room and of course plenty of serenity!
Container Demurrage and Detention Charges
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With demurrage and detention have become particularly hot topics since COVID. This paper discusses some international developments in the area, some ideas for reform and also some steps that freight forwarders can take to protect themselves against clients who don’t want to pay for these costs.
Read MoreGoing straight to The Pool Room
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Partner Craig Langstone was honoured to be awarded a Lifetime Membership at the NZILA Conference held in Queenstown on 29th to 30th September. It is only the fourth Lifetime Membership awarded in the 30 or so years that the New Zealand Insurance Law Association has existed and is in recognition of many years of service to the NZILA.
Read MoreIndemnity focus: meaning of corrosion and resultant physical damage
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MDS Inc v Factory Mutual Insurance Co [2021] ONCA 594
A corrosion exclusion is a common feature of many policies. In this article, we look at a Canadian decision which held that a corrosion exclusion applied to “unanticipated” corrosion at a nuclear facility, leading to a leak, which in turn led to a shutdown. But the shutdown was not resultant physical damage, so that there was no cover for the losses which resulted.
Read MoreA return to ‘normal’ - Napier City Council v Local Government Mutual Funds overturned on appeal
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In August last year we reported on the High Court decision of Grice J in Napier City Council v Local Government Mutual Funds Trustee Limited (Riskpool). In that decision, Her Honour held that the Council was not indemnified under its professional indemnity insurance policy with Riskpool as the claim against it was in respect of both weathertightness and non-weathertightness defects. Consequently, the policy’s weathertightness exclusion clause applied to the entire claim. At the time, we commented that the decision may have come as a surprise to many in the insurance industry as it went against the approach taken by many insurers, which was to differentiate between weathertightness and non-weathertightness defects when considering indemnity. It was only when there was a defect which was caused or contributed to by an excluded peril that was excluded from cover.
Read MoreGet to know Kaartik
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Solicitor Kaartik Achari graduated in January 2021 with a Bachelor of Laws (First Class Honours). Prior to that, he completed a Bachelor of Commerce majoring in Marketing and Management. He was admitted to the Bar in August 2021.
Before joining Fee Langstone in 2022, Kaartik worked within the dispute resolution team of a specialist employment relations firm. Kaartik speaks fluent Hindi and worked as a Court Interpreter whilst at university. Since
Read MoreHow to avoid the pitfalls and blind spots of Conflicts of Interests for Accountants
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Managing potential conflicts of interest and threats to objectivity is a fundamental requirement for chartered accountants and assurance practitioners in complying with their professional and ethical obligations. But all too often identifying and addressing conflicts of interest can be a ‘blind spot’, regardless of a practitioner’s level of experience.
Read MoreHow to navigate a professional disciplinary complaint as an Accountant or Auditor
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As a qualified accountant or auditor, you are professionally bound by a Code of Ethics and professional standards that best protect and serve your clients and the public interest. But things can still happen, and it may lead to a client or third party making a professional complaint against you to Chartered Accountants Australia and New Zealand (CA ANZ), specifically NZICA.
Read MoreNSW to require psychosocial risks to be managed in the workplace
/NSW has introduced amendments to its health and safety legislation, which from 1 October 2022 requires workplaces to manage psychosocial risks. WorkSafe New Zealand has recognised these risks and has good practice guidelines in place which are summarised in these slides. We will continue to keep a watching brief on this situation and how it will evolve in New Zealand.
See - https://legislation.nsw.gov.au/view/pdf/asmade/sl-2022-551
Second appeal against amount of reparation for emotional harm refused
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Ocean Fisheries Limited v Maritime New Zealand [2022] NZCA 164
In our September In Brief, we summarised the High Court decision which dismissed Ocean Fisheries’ appeal against the amount of reparation for emotional harm imposed by the District Court following the death of three crew members of the Jubilee in 2015.
Read MoreLimitation: the importance of searching old paper files
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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.
Read MoreMulti-disciplinary firms: the scope of legal professional privilege
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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.
Read MoreGetting to know Michelle Kilham
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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.
Read MoreTenant’s exoneration provisions of the Property Law Act 2007 extend beyond the leased premises
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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.
Read MoreCh-ch-changes! Reforming insurance law – draft Insurance Contracts Bill released for consultation
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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.
Read MoreRussian cyber attack not “warlike” – clarifying the scope of the war exclusion
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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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