Case Notes

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.

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.

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.

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 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.

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.

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.

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.

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.

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.

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.

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.

An appeal by XXXX against a decision of a Benefits Review Committee [2018]
NZSSAA 010

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.

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.