Case Notes

Below is a brief summary of some of the more interesting cases that Geoff has been involved in:
Bates v Gates (HC Auckland, 13 February 1985, A1078/85, Thorp J).

In this case a staff solicitor left the employ of his former employer law firm and set up on his own account nearby. The staff solicitor had signed a written employment contract with a restraint of two years and the law firm applied to the Court to enforce the terms. Thorp J upheld the restraint but varied it under the Illegal Contracts Act 1970 from two years to twelve months.

Jurkovich v Fortune [1988] 2 NZLR 442 (CA)

A claim under the Law Reform (Testamentary Promises) Act 1949 against a deceased estate. The claim was brought out of time and the main point was concerned with whether or not the Court could extend time with respect to assets that had been distributed to will beneficiaries before the proceedings were filed. This case went to the Court of Appeal.

Re Howse (HC Auckland, A1093/84, 26 September 1990, Chilwell J)

This was a claim by a daughter against her father’s estate for further provision under the Family Protection Act 1955. The deceased had made gifts to his housekeeper who was also his companion during his lifetime, and also made provision for her in his will. Even though the estate was small the Court held that deceased was in breach of his moral duty to provide adequate support for his daughter and she was given a bigger share.

Gallagher Electronics Ltd v Livewire Products Limited (1987) 2 TCLR 457, Anderson J.

This was a claim for injunctive relief by a company that claimed that the defendant had marketed a similar product under a similar name to its coloured polymer electric fencing tape. The dispute concerned the law relating to “passing off”, the Fair Trading Act 1986 and copyright infringement.

Bradley v Bascands Ltd (CA375/91, 10 June 1992, Anderson J, Casey J, Hardie Boys J, noted [1992] BCL 1288.

This was a case whereby credit was given to a mail order company to be formed in return for written guarantees from the Directors. When the guarantees were signed the mail order company did not exist, it had not been formed. The Court of Appeal said that there was no reason in law why a guarantee could not be given with respect to the debts of a company to be formed in the future.

Cashfield House Ltd v David and Heather Sinclair Ltd [1995] 1 NZLR 452; [1995] NZLJ 407.

This case was about damage caused to two clothing stores in Cashel Street Mall in Christchurch when workmen carrying out demolition work in the mall caused a sprinkler system to collapse causing flooding of the retail shops and stock damage.  The case was about the primary liability in negligence of the owner of the mall who had engaged a private demolition company to do the work. The case is a leading authority in New Zealand regarding vicarious liability for the negligence of an independent contractor.

Ancient Trees of NZ Ltd v Comloch Park Forestry Ltd (In Liq) (HC Auckland, M759/93, 24 November 1995, Blanchard J).

This was a case concerning the Court’s validation of the transfer of a helicopter owned by a company immediately prior to it going into liquidation to an associated company.

Letraset New Zealand Ltd v Dawson (EMC, Auckland, AEC36/96, 9 July 1996, Judge Colgan).

This case concerned remedies available to a company that sued a former employee in order to prevent him from allegedly taking business from the company after his resignation.

Re Hunter (Deceased) (HC Auckland, M505/94, 20 November 1996, Paterson J).

In this case the deceased had signed a Deed of Trust which provided that she would hold a half interest in her home for her de facto partner who was subsequently convicted of her murder. The case concerned the equitable principle that a person should not be allowed to profit from crime. The deceased’s executor and trustee was permitted to continue with an application to have the Trust Deed declared a nullity.

Public Trustee v Farrell (1997) 11 PRNZ 344 (HC), Elias J.

This case was about the rules applicable as to costs when adverse claims are made in the context of a deceased estate. Generally the unsuccessful claimant should pay the costs of the will beneficiaries in the normal way.

Re Fraser (Deceased) (1997) 11 PRNZ 348 (HC), Giles J.

This was another case which concerned the issue of whether costs should be paid from a deceased’s estate when a challenge is made unsuccessfully by relatives against the terms of a will. The Court held that if there were reasonable grounds existing for the challenge to the will then even though the challenge was withdrawn the costs were to come from the estate.

Re AHR (HC Auckland, M458/99, 4 February 1999, Young J).

This was a claim against the will of a deceased father who had mistreated his son by his first marriage. The son maintained that he was entitled to more than the 10% given to him in the will. The Court recognised that the deceased’s second wife had a primary claim to her husband’s estate but still increased the son’s share so that he received the same amount as the children of the second marriage.

Re C ex parte Jhagroo (HC Auckland, 19 May 1999, CIV 2008-404-5865, Associate Judge Christiansen).

In this case the creditor and the debtor had lived together in a de facto relationship which turned sour. During the relationship the applicant had lent the debtor money and when he would not pay it back the creditor sued for bankruptcy. The debtor’s argument that the creditor owed him money pursuant to his claim under the Property (Relationships) Act 1976 was rejected by the Court and order for bankruptcy was made.

Re A S Jamieson (HC Auckland, B942-IM99, 26 July 1999, Master Gambrill).

This case involved an attempt by a debtor to stay bankruptcy proceedings against him on the ground that he had a claim for damages against the creditor in the Employment Tribunal for wrongful dismissal. The attempt failed.

U v Public Trustee (HC Auckland, CP111/98, 4 August 1999, Master Kennedy-Grant), noted [1999] BCL879.

This case concerned a claim for exemplary damages against the estate of a deceased person who was accused of sexual abuse against the claimant. This case was unsuccessfully reviewed by a High Court Judge who decided that there was no
reason in principle why a claim for exemplary damages could not be brought against the executors of a deceased person’s estate.

Cosio Industries Ltd v Permathene Limited (2000) 14 PRNZ 442.

This case involved an application for permanent injunction by way of summary judgment application. Associate Judge Gambrill doubted that she had jurisdiction under the Judicature Act 1908 to make such an order.

Sowerby v Tresham (HC Auckland, 8 May 2002, M1300SD00, O’Regan J).

In this case the deceased left the bulk of her estate to her daughter. Her two sons claimed and were successful in obtaining provision from the estate under the Family Protection Act 1955. The Court in this case was inclined to respect the testamentary freedom of the deceased and be reluctant to make substantial changes to the deceased’s will.

French v Public Trust (HC Hamilton, M167/02, 6 December 2002, Master Faire).

In this case the Court was concerned with the issue of whether a beneficiary under the will of a deceased person was able to caveat title to a farm that was the main asset of the estate. The Court held that this ground could not support a claim to a caveat. However, the Court decided in the circumstances the applicant was entitled to caveat the title on the basis that he was executor and trustee of an earlier will which he was trying to have admitted to probate.

Re French (Deceased) (HC Hamilton, M167/02, 29 October 2003, Venning J), noted as [2003] BCL1111.

In this case the Court investigated in detail the question whether the deceased was mentally incapable when he signed a will shortly before his death. Whether the father had been subjected to undue influence at the hands of one of his sons was also an issue before the Court.

French v Public Trust (Court of Appeal, 25 November 2004, William Young J, Chambers J, O’Regan J, CA197/04).

This case in the Court of Appeal concerned the issue of whether or not an appeal from the High Court could be brought out of time.

Foreman v Thames Coromandel District Council (HC Hamilton, 13 December 2005, CIV 2005-419-1711, Ellen France J).

In this case the applicant obtained an injunction to delay issue of survey consents by Thames Coromandel District Council with respect to a subdivision in Coromandel pending a claim regarding the Council’s approval of the subdivision survey plan on a non-notified basis.

Public Trust v N [2005] NZFLR 923, [2006] NZLJ 87 (HC Ellen France J).

This case concerned an unusual fact scenario. The couple concerned had lived in a same sex relationship for over 40 years and they both died within 24 hours of each other. First to die, Mr J, owned their home in his sole name and left nothing to his partner in his will. Under his will the proceeds of sale of the home were to go to his relatives in England. The family of the second to die, Mr T, wanted to claim half the house pursuant to the Property (Relationships) Act 1976 and despite the fact that both had died Ellen France J gave the family permission to proceed.

Phoenix Organics Ltd v RD2 International Ltd (No. 2) (HC Auckland, 21 December 2005, CIV 2005-404-5070, Cooper J).

This was a case involving a dispute with respect to a contract to convert feijoas into juice for the natural juice market. The case is important for the comments made by Cooper J regarding the incidence of costs orders in commercial litigation involving third parties.

Fahey v North Shore Taverns Limited (HC Auckland, 27 August 2006, CIV 2006-404-1329, Associate Judge Doogue).

This was a defended application to put a company into liquidation. The Judge declined to do so because there was evidence of a substantial dispute regarding the company’s liability for the debt. The claim was dismissed despite the fact that the company had failed to apply to have the statutory demand set aside even though it could have.

C v S (HC Auckland, 8 May 2008, CIV 2007-404-6172, Keane J), noted [2008] BCL552.

This case was part of a long-winded dispute about a buy-back agreement. An elderly woman agreed to sell her house for a discounted price on the condition that she retained a right to occupy and a first option to re-purchase the house within 12 months. She failed to exercise the buy-back option and the house was sold to a third party. The elderly woman was successful in her claim for damages for deceit and breach of fiduciary duty against the perpetrator of the scheme and director of the original company that purchased the house.

Ziki Investments (Properties) Limited v McDonald [2008] 3 NZLR 417, Asher J.

This was a case on appeal to the High Court from a decision of the District Court dismissing a decision in the Residential Tenancy Tribunal. The case concerned an elderly couple who sold their house subject to condition that they were allowed to remain in residence as tenants on a fixed rental for the rest of their days. The Court held that a subsequent purchaser of the property was bound by the tenancy condition because it gave rise to a fixed term tenancy under the Residential Tenancies Act 1986. This was a legitimate exception to the doctrine of indefeasibility of title.

Hayman v New Zealand New Oak Ltd (2011) 12 NZCPR 481, Ellis J, HC.

This was a claim for outstanding rent with respect to a warehouse in Auckland. Payment was resisted by the tenant because they claimed they had suffered damage to stock in the warehouse because of leaks in the roof of the warehouse. Unfortunately for the tenant terms in the lease were held to preclude the setting up by the tenant of a counter-claim for damages caused by leaks.

Sim v Broadbent (HC Auckland, 3 May 2011, CIV 2009-404-2032, Faire J).

This case involved a successful application to the Court for validation under the Wills Act 2007 of a will that was not signed or witnessed properly.

Walshe v MacRae (2012) 14 NZCPR 71.

This case concerned a dispute about the terms of a right-of-way easement permitting access to a “dwelling” on a lifestyle block on Waiheke Island. Keane J in the High Court applied orthodox principles of contractual interpretation in determining the parties’ intent when he determined the meaning of the wording of the easement. The case also concerned the approach to be taken on an application under s317(1) of the Property Law Act 2007 when a party applies for an order for modification of the terms of the right-of-way easement which would have the effect of increasing the burden to the servient tenement. Keane J granted the application for modification and also assessed compensation to be paid by the owners of the dominant tenement to the owner of the servient tenement as a consequence of that.

MacRae v Walshe [2013] NZCA 664.

The Walshe v MacRae case then went to the Court of Appeal. The Court of Appeal held that Keane J was correct in the way that he had interpreted the wording of the right-of-way easement. The evidence of the purpose of words of limitation contained in the wording was central to the outcome. The case is also useful to assist in the manner that Courts assess compensation in cases where easements are modified in terms of s317(2) of the Property Law Act 2007. The Court of Appeal confirmed that it is correct to apply principles contained in Jacobsen Holdings Ltd v Drexel, the willing buyer and the willing seller, in determining what is appropriate compensation. The Court also provided helpful pointers as to the type of expert evidence that is appropriate when the Court is asked to assess compensation of this type.

Fisher v Kirby [2012] NZCA 310 (2012 NZLJ 305).

This case was an appeal to the Court of Appeal from awards made in the High Court in favour of the deceased’s three children in a factually complex Family Protection Act case involving a significant sum of money. The deceased had left the bulk of her estate to the children of her husband’s sister. The Court of Appeal confirmed what it had emphasised in some recent cases that where there are findings of breach of moral duty the remedy should be no more than is necessary to remedy the breach. The Court should not re-write the deceased’s will. There were a number of issues of particular interest arising from this case such as:

(i) When the Court considers the strength of a competing moral claim in a Family Protection Act case, on the face of it children who are claimants will have a much stronger moral claim than nieces and nephews who are beneficiaries. It
is significant in this regard that nieces and nephews are not persons who have a right to claim under the Act;

(ii) When considering the strength of competing moral claims in a Family Protection Act case there is no such thing as an inherited moral claim or an inherited moral duty. The will beneficiaries who were nieces and nephews argued that their competing moral claim trumped any duty that the deceased might have owed to her children because the deceased had a debt of gratitude to the mother of the nieces and nephews who had pre-deceased the deceased. The Court of Appeal rejected this concept of an inherited moral duty.

(iii) Under the Rules an award of scale costs might be increased because of steps taken by a party to the proceedings which have caused the proceedings to be unnecessarily delayed or unnecessarily expensive. However matters that are outside the litigation which do not have the effect of increasing cost or delay to any of the parties are irrelevant in this context.

Lewis & Mold v Abernethy & Wishlaw (HC, Tauranga, 4 December 2014, CIV 2013-470-528 [2014] NZHC 3081, Keane J).

In this case grandchildren made a claim for further provision from their grandmother’s deceased estate in the High Court at Tauranga. The deceased had two children. Her son pre-deceased her in tragic circumstances leaving two children who were adults living in Australia when the grandmother died. In her will the deceased had left her entire estate to her surviving daughter who lived in Canada and nothing to the adult children of her deceased son. In his judgment Keane J noted that it was rare for grandchildren claiming under the Family Protection Act 1955 to be entitled to an order equivalent to what their deceased parent might have been entitled to. However in this case, taking into account all the circumstances, he decided that the two grandchildren were entitled to significant awards under the Act and they each received 15% of the nett estate plus their full costs.

C v C [2015] NZFC 11038

The Family Court had made an order pursuant to s43 Property (Relationships) Act 1976 freezing the contents of various bank accounts controlled by the wife in her name and/or the name of three different trusts controlled by her as well.  One of the accounts was disclosed to contain nearly $1.5m on term deposit.  The wife applied to the Court to have the freezing order discharged on the ground that the bulk of the funds held in the account were her separate property because she had inherited the money from her father.  Judge Druce analysed the affidavit evidence in great detail and concluded that the wife had disposed of the money to a trust set up for the purpose and that, as such, the money could possibly be outside the jurisdiction of the Court.  He concluded that even if part of the money was sourced from the wife’s separate property the husband could very well have a claim to income derived from the trust in terms of s44C(2)(c) of the Act.  His Honour reminded himself that the Family Court does have power pursuant to s33(m) and s44C(2)(a) to award to a spouse income generated from a trust fund controlled by the other spouse and that may be possible even though some of the money is sourced from separate property.  In his decision the Judge ordered that of the $1.5m frozen in the account $200,000.00 could be unfrozen for distribution to the wife.  The rest of the money was to remain frozen pending final determination of the case.

AM v HL [2016] NZIACDT 30.

Immigration advisers have recently been regulated as a profession following numerous complaints about their conduct in the years leading up to the passing of the Immigration Advisers Licensing Act 2007. This case was one of many whereby a licensed immigration
adviser was charged with allowing an unlicensed member of her staff to give immigration advice to a client contrary to the Act. The decision highlights the issues involved in the imposition of sanctions where charges are proved on the balance of probabilities, by the Immigration Advisers Complaints and Disciplinary Tribunal, in cases of personal professional misconduct.

Resources Services Ltd v AMR Nickel Ltd & Anor [2017] NZHC 38.

This case concerned the application of a rule of company law known as “the indoor management rule” which provides that under certain circumstances a company may cancel an agreement entered into by it which in any way benefits a director of the company in a personal way. The old rule is codified in s141 of the Companies Act 1993. In this case the company had entered into a services agreement with a related company owned by one of its directors. The contract for services provided that in certain circumstances the related company was entitled to be paid a healthy bonus for services provided that related to the mining industry. Associate Judge Sargisson was of the view that the rule may not apply in the circumstances and allowed the related company to proceed with its claim that the principal company was in breach of contract when it refused to pay the claimed bonus.


Re Application by Snedden (executors of the estate of Gallais) [2017] NZHC 1405, Woodhouse J

This case concerned a successful application for orders under s31 of the Wills Act 2007 which empowers the High Court to correct any errors in a will in order to properly put into effect the will maker’s intention. In this case the deceased’s will provided that all the assets belonging to a certain company called Gallais Investments Ltd, of which the deceased was sole shareholder, were to go to the deceased’s partner at the date of his death. The provision failed because the assets of the company were not part of the deceased’s estate because they belonged to the company, not to the deceased. Woodhouse J determined that the wording of the will did not fulfil the deceased’s instructions to his lawyer which were in effect that the shares in the company were to pass to the deceased’s partner, not the assets. Although the Court held that the deceased’s instructions to his lawyer were not exactly in those terms, nevertheless that is what he obviously meant and the application to amend the will was for those reasons allowed.

An appeal by XXXX against a decision of a Benefits Review Committee [2018]

In this case a superannuitant who had been receiving National Superannuation for about ten years had his NZS payments suspended by the Ministry of Social Welfare on the basis that he was not ordinarily resident in New Zealand as the term is used in s74(1)(a) of the
NZ Superannuation and Retirement Income Act 2001. Although the applicant had no home overseas and considered himself to be a New Zealander, the Social Security Appeal Authority held that because he travelled overseas so much he was therefore not ordinarily
resident in New Zealand. The Tribunal determined that there was no or insufficient evidence of a pattern of living in New Zealand that supported his claim that he was ordinarily resident in this country. The fact that he had family in New Zealand, invested in commercial and residential property in New Zealand and paid tax in New Zealand did not satisfy the Tribunal that the domestic reality of his life was in New Zealand during the
relevant period.

V v U, BDT18/081003

This was a claim that was submitted to an adjudication which is a special procedure prescribed under the Construction Contracts Act 2002. V had employed U to demolish certain old abandoned school buildings on a site at Mangere and to remove all asbestos in the building and lying on the ground to an approved asbestos disposal site. After U had completed its contract works and left the site sub-contractors employed by V to prepare the site for development discovered numerous deep pits, obviously excavated into the land, which contained building material including asbestos material which V alleged had come from the old buildings. V raised a claim by way of adjudication for damages for the cost of tidying up the pits and blamed U for dumping the material in the pits. In the course of the adjudication it was determined by the adjudicator that V had not proved that the material in the pits had come from the previous buildings that were on the site, and nor had they proved that any staff in the employ of U were responsible for digging the pits and dumping the material into the pits. This was a classic case where the evidence put forward did not establish the serious allegations that were made and the case was thrown out with costs awarded to U.


Kim v Minister of Immigration [2018] NZIPT 600481

This was an appeal by a citizen of Cambodia against a decision of the Minister of Immigration that he be deported. The appellant had been granted residency on the condition that he work as a monk for a local Buddhist temple situated in Auckland. He became liable for deportation under s159(1)(a) of the Immigration Act 2009 because the Minister of Immigration determined that he was in breach of the condition because he de- robed as a monk and commenced working as a labourer and as a butcher’s assistant in Auckland. The grounds for the appeal in terms of s207(1) of the Act were that there were exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported back to Cambodia. The appellant argued that he had not been expressly notified that it was an express condition of his work visa that he should work as a monk which had been his calling since he was a young person in Cambodia. At the date of the hearing the appellant had re-robed as a monk and had been accepted back into the temple at Mangere by the Buddhist leaders. However it was determined by the Tribunal that these circumstances could not be exceptional circumstances as that term is interpreted by our higher Courts and accordingly the appeal was declined.

Panhuis v Cooke [2019] NZHC 563

This was an application by one executor of a deceased estate for order that the other executor be removed as such pursuant to s21 Administration Act 1969. The High Court has a broad discretion under the Administration Act 1969, the Trustee Act 1956, and in terms of its inherent jurisdiction, to make orders removing executors and/or trustees. In this case the defendant executor had occupied the deceased’s former home and was not paying rent. The Judge made a finding that the defendant executor had put himself into a conflict of interest position. His continued occupation of the deceased’s former property was in conflict with his duties as executor of the estate. The Judge determined that there was no incentive for the defendant executor to complete administration of the estate in a timely way in those circumstances. In ordering the removal of the executor Justice Woolford said it was enough that the mistrust of an administrator is antithetical to the effective management of the estate. At the same time His Honour made an order for vacant possession of the property in terms of Jensen v Jensen [2019] NZHC 329, a decision of Justice Fitzgerald.