Van Hemert v R  [2023] NZSC 116

31 August 2023

Successful appeal by VH against a sentence of life imprisonment with a minimum period of imprisonment of 11 years and six months for murder. VH had pleaded guilty to murdering a sex worker. Was uncontested that (a) he was fit to stand trial, (b) he was not legally insane at the time and (c) the victim would be alive if it were not for VH’s psychotic state. The issue was whether his psychotic state meant it was manifestly unjust to sentence him to life imprisonment.

The focus of the appeal was the approach to s 102 Sentencing Act 2002, particularly whether the Court of Appeal was correct (a) that the circumstances of VH’s offending precluded a departure from the presumption of life imprisonment and (b) in its assessment of VH’s circumstances.

The Criminal Bar Association NZ and Defence Lawyers Association NZ were interveners.

Fakaosilea v R  [2023] NZSC 115

30 August 2023

Unsuccessful applications by F for (a) an extension of time to apply for leave to appeal against a sentence of 14 years and six months’ imprisonment for supplying methamphetamine and cocaine and (b) leave to appeal against a sentence of 12 years and six months for importing methamphetamine and participating in an organised criminal group. The sentences were cumulative. The effective end sentence of 27 years had been reduced to 24 years by the Court of Appeal.

Nikora v Kruger  [2023] NZSC 114

28 August 2023

Successful application by N for leave to appeal against the setting aside of orders made by the Māori Land Court (MLC) in relation to trustee elections.

The approved question was whether the Court of Appeal erred in allowing K's appeal against the MLC orders.

Yan v Mainzeal Property and Construction Ltd (in Liq)  [2023] NZSC 113

25 August 2023

Unsuccessful appeals by Y and others against findings that they were liable for breaches of ss 135 (recklass trading) and 136 (duties in relation to obligations) Companies Act 1993. Y and others were the directors of MPCL, which was placed into receivership and liquidation in 2013. There was a shortfall after liquidation of $110m, owed to unsecured creditors.

Main issues on appeal were (a) the extent of protection provided to creditors by duties imposed on directors and (b) the basis for calculating loss for breaches of those duties.

Port Otago Ltd v Environmental Defence Society Inc  [2023] NZSC 112

24 August 2023

Successful appeal by POL against a finding that the regional ports policy proposed by the Otago Regional Council (ORC) was in conflict with the avoidance policies contained in the NZ Coastal Policy Statement (NZCPS), a document prepared under Part 5 Resource Management Act 1991.

EDSI had argued that ORC’s proposed ports policy did not give effect to the NZCPS avoidance policies. The Environment Court had found a potential conflict between the NZCPS’s ports and avoidance policies, and had suggested amendments to ORC’s ports policy. The High Court found that the Environment Court’s suggested amendments did not give effect to the prescriptive NZCPS avoidance policies and remitted the matter for reconsideration. The Court of Appeal upheld the High Court’s finding and found there was no conflict between the NZCPS ports policy and avoidance policies.

The main issues on appeal were (a) the relationship between the NZCPS ports and avoidance policies and (b) how any conflicts between those policies should be reflected in ORC’s proposed ports policy.

S v Attorney-General  [2023] NZSC 111

23 August 2023

Unsuccessful application by S for recall of a judgment that had declined S's application for leave to bring an appeal directly from the High Court.

Dunstan v Bank of New Zealand  [2023] NZSC 110

22 August 2023

Unsuccessful application by D for recall of a judgment that had dismissed her application for leave to appeal against a High Court decision.

Dunstan v Attorney-General  [2023] NZSC 109

22 August 2023

Unsuccessful application by D for recall of a judgment that had dismissed her application for leave to appeal against a Court of Appeal decision.

Canyon Vineyard Ltd v Central Otago District Council  [2023] NZSC 108

17 August 2023

Unsuccessful application by CVL for an extension of time to apply for leave to appeal against the granting of a consent for a subdivision.

Toubat v Toubat  [2023] NZSC 106

15 August 2023

Unsuccessful application by MT for leave to appeal against striking out of his application for summary judgment against HT in relation to a sale and purchase agreement.

Mitchell v Police  [2023] NZSC 104

11 August 2023

Unsuccessful appeal by M against a finding that he could be convicted for both (a) driving with excess breath alcohol and (b) driving with breath alcohol while subject to a zero alcohol licence. The two charges had arisen out of the same incident.

M had attempted to plead guilty to both charges. The District Court had convicted him on the excess breath alcohol charge, and dismissed the zero alcohol licence charge on the basis of ‘previous conviction’ for the same offence. The Police had successfully appealed against the dismissal of the second charge. The Court of Appeal found that the two offences shared some common facts but dual convictions were permissible and appropriate.

The main issue on appeal was whether s 46(1)(b) Criminal Procedure Act 2011 precluded M being convicted on the zero alcohol licence charge when he had been convicted of the excess breath alcohol charge. 

O’Neill v Judiciary of Auckland High Court  [2023] NZSC 105

10 August 2023

Unsuccessful application by O for leave to appeal against the striking out of his complaint to the High Court.

French v R  [2023] NZSC 103 

10 August 2023

Unsuccessful application by F for leave to appeal against a sentence of two years and six months imprisonment for manslaughter. Sentence was cumulative on a sentence of seven years and two months imposed for drug and firearms offending. In prison, F faced a threat to his life from members of the gang to which the manslaughter victim had belonged.

Kuru v R  [2023] NZSC 102

10 August 2023

Successful application by K for leave to appeal against a Court of Appeal (CA) decision regarding (a) the reasonableness of a jury verdict, (b) admissibility of expert evidence from the Police about gang activity and (c) directions given to the jury on party liability.

Leave was granted on the question of whether the CA was correct to dismiss K's appeal.

Smalley v Williamson  [2023] NZSC 101

10 August 2023

Unsuccessful application by S for leave to appeal against the granting of summary judgment to W and others in relation to valuation of S's shares prior to them being transferred to remaining shareholders.

Dunstan v Attorney-General  [2023] NZSC 100

09 August 2023

Unsuccessful application by D for leave to appeal against refusal by the Court of Appeal to grant an extension of time to appeal against dismissal of her judicial review application.

D v N  [2023] NZSC 99

08 August 2023

Unsuccessful application by D for leave to appeal against a Court of Appeal (CA) decision refusing the recusal of three judges from the 10 appeals pursued by D in the CA.

Jones v New Zealand Bloodstock Finance and Leasing Ltd  [2023] NZSC 98

02 August 2023

Unsuccessful application by J for leave to appeal against the granting of summary judgment in the amount of $431,632 to NZBFLL.

Local Government Mutual Funds Trustee Ltd v Napier City Council  [2023] NZSC 97

01 August 2023

Unsuccessful appeal by LGMFTL against a decision that LGMFTL was liable for NCC's insurance claim in relation to building defects not related to weathertightness. NCC had settled an action in negligence brought by owners of a faulty apartment complex for $12m. The action partly related to weathertightness defects and partly to other defects such as fire risk and structural integrity.

LGMFTL had declined NCC's claim for the portion related to non-weathertightness on the grounds that an exclusion clause meant that NCC's liability could not be divided into separate parts. The High Court had found in favour of LGMFTL on the liability issue. The Court of Appeal had reversed that finding and held that the claim was divisible.