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Civil litigation results

Court of Appeal refusal to strike out Carter Holt leaky building case good news for homeowners

The Court of Appeal judgment received late last week in the Carter Holt case is good news for owners of leaky homes, as it upholds the High Court decision that a product liability claim against a cladding manufacturer is arguable and is not subject to the 10 year limitation period under the Building Act.  ..

Feltex directors and promoters win $3.1m in legal costs over misleading prospectus claims

The directors and promoters of Feltex’s 2004 IPO have been awarded $3.1m plus disbursements after defending allegations that investors were misled. Because the case was funded by litigation funders, however, the award will be met by the funders rather than the plaintiff personally. Further, while the judge awarded costs above the normal scale in certain respects, he rejected the defendants’ argument that the plaintiff’s funded status meant that they were entitled to recover 100% of their costs against the losing party.  ..

Supreme Court increases certainty for creditors in the voidable transactions regime: Allied Concrete v Meltzer

In the recent decision of Allied Concrete v Meltzer [2015] NZSC 7, a majority of the Supreme Court has increased certainty for traders who provide goods and/or services on credit. In the context of insolvent transactions, the Court held that where creditors have acted in good faith, had no knowledge that a company is about to enter liquidation, and have received payment made for goods and/or services provided on credit, the payment will be upheld. The Court reversed a Court of Appeal ruling which held that the payment would only be upheld if new value was provided upon payment. The decision has clarified the position for creditors who provide goods and/or services on credit, and significantly decreases the possibility of two year old transactions being reversed for liquidation purposes.   ..

Interpreting contracts after Firm PI 1 Ltd v Zurich Australasian Insurance

In Firm PI 1 Limited v Zurich Australasian Insurance Limited t/a Zurich New Zealand & Anor[2014]NZSC 147, a majority of the Supreme Court has affirmed the importance of an objective approach to interpretation, and of the need for caution before departing from the natural meaning of contractual language on grounds of “commercial absurdity”.  ..

BIA escapes liability for leaky building – again

In Body Corporate 346930 & Anor v Argon Construction Limited & Anor [2015] NZHC 129 (Asher J) (the “Scholar decision”) released by the High Court on 10 February 2015 Katz J struck out a claim by Auckland City Council against the Building Industry Authority (“BIA”). Council alleged that BIA owed Council and Scholar (the building owners) a duty of care to investigate queries concerning the activities of private building certifiers (“a duty to investigate”) which it breached by failing to investigate a certifier, Compass. Secondly, Council alleged that the BIA owed Council and the owners a duty to notify them in a timely manner when the scope of authority of Compass was modified (“a duty to notify”).   ..

​Redundancy – Justifying a decision to dismiss

In the recent decision of Grace Team Accounting v Brake, the Court of Appeal has ruled on the correct approach to assessing whether dismissal in a redundancy situation is justified.  ..

Supreme Court upholds trespass claim of locked out owner of unit title

In an important case for body corporates and body corporate managers (Wu v Body Corporate 366611 & Theta Management Ltd [2014] NZSC 137), the Supreme Court has upheld a unit owner’s claim in trespass after he was effectively locked out of his apartment by the Body Corporate for refusing to sign up to an informal “Security Protocol” and pay a “security deposit”. The Court reversed a Court of Appeal ruling that the Body Corporate had power under its Rules to restrict access for certain owners and occupiers. ..

Detrimental reliance on a promise (equitable estoppel) in New Zealand

In Wilson Parking New Zealand Limited v Fanshawe 136 Limited [2014] NZCA 407 the Court of Appeal confirmed detrimental reliance as the basis for the enforcement of a (non-contractual) promise. Further, the Court confirmed that relief in this context could extend beyond monetary damages for losses suffered by the promisee, to enforcement of the promise itself.  ..

Vendors arguably liable for pre-sale report - Court

In the recent High Court decision of Edwards v Cull [2014] NZHC 1556, Associate Judge Bell refused to dismiss a misrepresentation claim against vendors based on an allegedly misleading "pre-sale report" they obtained from a third party and provided to purchasers.  ..

Full Federal Court of Australia upholds Rating Agency duty of care to investors in rated product

On 6 June 2014, the Full Federal Court of Australia dismissed an appeal by Standard and Poors (“S&P”) against a decision of a single judge of the Federal Court holding that, as a matter of Australian common law, a rating agency owes a duty of care to investors in a rated financial instrument. ..