Latest updates

Contractual penalties: Court of Appeal upholds High Court's decision in Honey Bees
Wilson Harle
  • Litigation
  • New Zealand
  • 15 October 2019

The Court of Appeal recently upheld a High Court judgment, confirming New Zealand's adaption of the recast rule. In doing so, the Court of Appeal has set out the context for adopting the revised rule. However, as the appellant has been granted leave to appeal to the Supreme Court, the final word is awaited.

Diminution not required for voidable transactions
Wilson Harle
  • Litigation
  • New Zealand
  • 10 September 2019

The Supreme Court recently confirmed that the requirements outlined in Section 292 of the Companies Act 1993 are all that is required in order to void an insolvent transaction. In particular, the court confirmed that there is no additional common law principle stating that the transaction must have diminished the net pool of assets available to creditors. This is a helpful decision which brings certainty to the test for voidable transactions and avoids adding unnecessary complexity into the corporate insolvency regime.

Court costs when using employed lawyers – return to status quo ante
Wilson Harle
  • Litigation
  • New Zealand
  • 06 August 2019

The Supreme Court recently overturned the position set out in Joint Action Funding (that lawyer-litigants are not entitled to costs). While the certainty created by the court will be a relief to lawyer-litigants and organisations that are regularly represented in court by employed lawyers alike, the intervening decisions indicate that the days of the status quo may be numbered – in particular, the differential treatment of lawyer-litigants and lay-litigants.

No jurisdiction without service: difficulties obtaining interim injunctions against offshore companies
Wilson Harle
  • Litigation
  • New Zealand
  • 02 April 2019

The High Court recently dismissed an interim injunction against Viagogo AG, holding that it did not have jurisdiction to consider and determine the application without service on Viagogo. The case clarifies that the courts will not overlook the requirement for service and highlights the difficulty of seeking an interim injunction against companies that are based overseas.

Supreme Court brings final clarity to prospectus liability
Wilson Harle
  • Litigation
  • New Zealand
  • 13 November 2018

The Supreme Court recently considered the liability of those associated with the 2004 Feltex Carpets initial public offering of shares under NZ securities legislation. The decision is a useful determination of a number of securities law liability issues in the NZ context. Among other things, it has clarified that an untrue statement for the purposes of Section 56 of the Securities Act need not be misleading to a material extent to be untrue.

Contractual penalties again
Wilson Harle
  • Litigation
  • New Zealand
  • 28 August 2018

A recent High Court decision adopted the perspective taken in the United Kingdom and Australia on the contractual penalties rule, shifting focus from a comparison between secondary obligations and genuine pre-estimates of damage caused by breach to comparing secondary obligations and the innocent party's performance interest. The decision confirmed the continued relevance of Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd but not the rigour of its application in earlier cases.

The importance of not jumping the gun
  • Competition & Antitrust
  • New Zealand
  • 23 August 2018

The New Zealand Commerce Commission's position towards gun jumping is that "while parties to proposed mergers must naturally engage with each other to explore the merits of a transaction prior to binding themselves and consummating a deal", pre-merger discussions and coordination concerns can arise. Businesses contemplating an M&A transaction with their competitors must therefore bear in mind a number of competition law considerations.

NZCC releases updated cartel leniency policy guidelines
  • Competition & Antitrust
  • New Zealand
  • 19 July 2018

The New Zealand Commerce Commission (NZCC) recently published amended cartel leniency policy guidelines, updating its previous guidelines from 2011. While the changes are mostly cosmetic, the updated guidelines indicate a potential change in the NZCC's approach towards penalty discounts for second-in applicants that seek to fall within its cooperation regime.

No costs entitlement without lawyer's invoice – parties using in-house lawyers lose entitlement to costs
Wilson Harle
  • Litigation
  • New Zealand
  • 17 July 2018

Since 1983 it has been the position in New Zealand that a party can recover costs in cases where it has been represented by a lawyer that it employed. However, a recent Christchurch High Court decision held that this is no longer the case. The decision will have a significant impact on entities which are routinely represented in court proceedings by in-house lawyers.

Tabled bill will provide Commerce Commission with market study powers
  • Competition & Antitrust
  • New Zealand
  • 19 April 2018

The commerce and consumer affairs minister recently tabled a bill in Parliament that will enable the Commerce Commission to undertake market studies. The bill also provides for matters concerning the Commerce Act's competition law regime – namely, repealing its cease and desist regime and empowering the commission to accept enforceable undertakings in order to resolve restrictive trade practice enforcement cases under the act.

Context is everything – court adopts purposive approach to runway end safety area criteria
Wilson Harle
  • Litigation
  • New Zealand
  • 27 March 2018

The Supreme Court recently considered a judicial review application about the length of runway end safety areas under a proposed runway extension. Users of the airport might be reassured by the Supreme Court's finding that, under the existing statutory regime, more than a cost-benefit analysis is required; among other matters, a mandatory consideration includes the need to improve aviation safety.

Duty of care owed by local authority to commissioning owner after stadium collapse
Wilson Harle
  • Litigation
  • New Zealand
  • 20 March 2018

The Supreme Court recently reversed a Court of Appeal judgment that a local authority did not owe a duty of care to a commissioning owner in issuing a code compliance certificate for a non-compliant building. The judgment is significant because it recognises that local authorities owe a duty of care even to commissioning owners that engage their own professionals to ensure compliance with building standards.

Major changes to privacy laws: implications for New Zealand businesses
Wilson Harle
  • Tech, Data, Telecoms & Media
  • New Zealand
  • 06 March 2018

The EU General Data Protection Regulation (GDPR) will come into full effect on May 25 2018 and will impact New Zealand businesses that do business with EU residents or entities or have a presence in the European Union. In addition, the privacy commissioner recently released a report recommending that the Privacy Act be substantially amended (including to comply with the GDPR) and the Ministry of Justice has indicated that privacy reform is a key initiative.

Cartel criminalisation is back
  • Competition & Antitrust
  • New Zealand
  • 01 March 2018

The Commerce (Criminalisation of Cartels) Amendment Bill was recently tabled in the House of Representatives. It introduces a new criminal offence for cartel conduct, as well as a requirement for intention for criminal prosecution and a defence against criminal prosecution for individuals who believed that a cartel provision was reasonably necessary for a collaborative activity. This development overturns the previous government's decision to remove criminal penalties for cartel conduct from the bill.

Supreme Court decision seen as warning for litigation funders
Wilson Harle
  • Litigation
  • New Zealand
  • 06 February 2018

The Supreme Court recently issued a somewhat controversial decision of significance in the area of litigation funding. The decision contains guidance on the key question of whether a funding agreement amounted to an impermissible assignment of a bare cause of action that would constitute trafficking in litigation. It remains to be seen whether, and to what extent, the decision may be used by defendants seeking to challenge funding agreements.

Competition law 2017: a year in review
  • Competition & Antitrust
  • New Zealand
  • 11 January 2018

There were a number of key competition law developments in New Zealand during 2017, including the enactment of the Cartels Act, the postponement of the reform of the prohibition on taking advantage of market power and a significant increase in the proportion of declined merger clearances. In addition, the new Labour-led government stated that it is keen to empower the Commerce Commission to undertake market studies before the end of 2018.

Restricted distribution and online sales
  • Competition & Antitrust
  • New Zealand
  • 04 January 2018

There is a debate in competition law at present concerning whether a company can restrict online sales for their products. Under New Zealand competition law, a supplier restricting its customers from selling on online platforms could be penalised if, among other things, it has market power and imposes restrictions to take advantage of that market power for an anti-competitive purpose. However, legitimate and pro-competitive justifications can be relevant in assessing the legality of such restrictions.

Amendments to Evidence Act for civil litigators
Wilson Harle
  • Litigation
  • New Zealand
  • 12 December 2017

The Evidence Amendment Act 2016 came into force in January 2017 and is the fourth and most substantial amendment to the Evidence Act since its introduction in 2006. Most of the amendments relate to evidence in criminal proceedings. However, several amendments are relevant to civil proceedings. The amendments relate to the definitions relevant to the application of privilege, legal advice privilege, settlement privilege, prior consistent statements and the prohibition on using previous decisions as evidence.

Supreme Court enforces 'use it or lose it' trademark rule
Wilson Harle
  • Litigation
  • New Zealand
  • 17 October 2017

The Supreme Court recently clarified the law applicable to unused registered trademarks in New Zealand and limited the scope of protection afforded to trademarks under the Trademarks Act 2002. The decision will affect companies which have sought to expand the protection available under the act by acquiring, but not actually using, trademarks that resemble their own purely to prevent other traders from using them.

Commerce Commission releases 2017 consumer issues report
  • Competition & Antitrust
  • New Zealand
  • 05 October 2017

The Commerce Commission recently released its Consumer Issues Report 2016/17. Although greater transparency is to be commended, a failure to balance this against the legitimate interests of businesses that have not been involved in any breach of the law, but which are still named and shamed, risks turning the report into a publication which does more harm than good.