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Legal Update - Removal of trustees – two recent cases

The Courts have both statutory and inherent jurisdiction to remove trustees and recent cases indicate they are now more willing to use this power. The recent decisions in McCallum v McCallum and Burnside v Burnside are illustrative in this context. Stuart, Dalzell, Partner, and Amy Davison, Senior Associate, discuss. ..

Access to justice and efficiency key to representative (class action) orders: Cridge v Studorp Limited [2017] NZCA 376

Leaky building owners can now join the class action against James Hardie under a five month “opt-in period” granted by the Court of Appeal in Cridge v Studorp Limited [2017] NZCA 376. The Court of Appeal found that issues of duty, breach of duty and Fair Trading Act breach were sufficiently common to all owners to justify a representative or class action. Therefore, the claim had been properly brought as a representative case, stopping time “permanently” for limitation purposes for both the named plaintiffs and represented class members. The later coming into force of the 15-year limitation period under the Limitation Act was not a reason to limit the opt in period. Parker & Associates acted for the successful owners. *Stuart Dalzell, Partner, discusses the decision ..

Mental injury claims: do plaintiffs need to show a recognizable psychiatric illness to succeed?

Stuart Dalzell, Partner and Jackie Frampton, Associate, discuss the recent decision of the Supreme Court of Canada in Saadati v Moorhead 2017 SCC 28, in which the Court held there is no requirement to demonstrate a “recognizable psychiatric illness” supported by expert opinion. ..

Pre-sale report disclaimer no defence for building inspector’s misleading report

In Steel v Spence Consultants Limited & Another (identified as [2017] NZHC 398), the High Court rejected a building inspector’s argument that his liability was limited by the disclaimer clause attached to the original report, and found him personally liable for losses. ..

Leaky home purchasers succeed in misrepresentation claim against Vendors

Parker & Associates acted for the successful plaintiff purchasers, Mr and Mrs Mason, in Mason v Magee [2017] NZHC 51. The decision is an important one for both buyers and sellers of ‘leaky homes'.
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Supreme Court ruling good news for leaky home owners

The Supreme Court on 22 December 2016 released its decision in Lee v Whangarei District Council. At issue was whether section 37(1) of the Weathertight Homes Resolution Services Act 2006 (the WHRS Act) – which provides that an application for an assessor’s report stops the running of the period of time set forth by Limitation Acts – applies equally to claims that proceed in the ordinary courts (rather than the Weathertight Homes Tribunal (WHT)). The Supreme Court held that it did, after the High Court and Court of Appeal had struck out the plaintiff’s claim as time-barred. This ruling is extremely significant to leaky home claimants because it allows homeowners to decide whether to proceed in either the WHT or the High Court without giving rise to any new limitation issues.

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New limitation regime starts to bite

The Limitation Act 2010 came into force on 1 January 2011 but as most limitation periods are six years the limitation periods prescribed under the Act will need to be considered from 1 January 2017 onwards as this is six years after the Act came into force.

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‘Seasonal’ workers protected under employee lockout provisions

On 6 October 2016 the Court of Appeal issued its judgment in AFFCO New Zealand Limited v NZ Meat Workers and Related Trades Union Inc [2016] NZCA 482, upholding an earlier Employment Court decision in favour of the union. The basis for that decision is explained below, but was essentially that AFFCO’s ‘seasonal’ workers had the same status as “employees” under the lockout provisions of the Employment Relations Act 2000 (ERA), even although they were between engagements during the off season when alleged lockouts at meat processing plants occurred. Post-employment obligations under the collective agreement, but more particularly to re-employ according to seniority, constrained AFFCO’s future conduct transforming its refusal to offer re-employment into an unlawful lockout. ..

Upholding of man’s dismissal for sexual harassment sends strong message – and emphasizes importance of context

The Court of Appeal’s decision to uphold the dismissal of a 51-year-old airline pilot for sexual harassment because of the “inherent implausibility” of an innocent purpose and accidental touching in all the circumstances provides helpful guidance that will aid employers in deciding whether serious misconduct has occurred justifying dismissal, whilst cautioning employers that the requirements of procedural fairness may vary depending on the circumstances.

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Role of contra proferentem when interpreting contracts

The contra proferentem rule – the rule of interpretation that says the words of written documents are interpreted more forcibly against the party putting forward the document – is long-standing in contract law and insurance law. But a string of appellate decisions have re-emphasised that particular importance must be given to the language chosen by the parties to express their intentions, and the mere fact that the natural meaning of a contract has worked out badly or even disastrously for one of the parties is not a reason for departing from the natural language. So when exactly does contra proferentem apply? Two recent decisions of the English Court of Appeal helpfully explain the basis for and role of this rule.

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