Arbitration clauses are increasingly used in commercial agreements and in leases. One question that often arises in situations where there is an arbitration clause is what claimants should be doing when they do not think the defendant has a defence? Usually the claimants have proceeded to Court under the summary judgment procedure; however the Supreme Court in Zurich Australian Insurance Limited t/a Zurich New Zealand v Cognition Education Limited has now closed off this option.
The decision will have significant practical implications for parties. The summary jurisdiction is not often used in arbitrations and the reasons for that appear to be both principled and practical.
Nevertheless there are good reasons – both in terms of principle and practicality - why clients might want to have access to a summary jurisdiction and there are ways that this can be achieved – namely by allowing for it in the arbitration clause itself.
The question of how to handle arbitration clauses in contracts where there is no clear dispute between the parties is one that has long bothered lawyers and
clients. If the other party does not respond to demands for payment/remedy of contractual breaches is it appropriate to issue summary judgment proceedings? If the other party does respond but the alleged defence is not reasonably arguable must the parties proceed to arbitration anyway?
Osborne & Anor v Auckland City Council & Anor  NZSC 67
After over seven years of litigation the Supreme Court has yesterday held that John Anthony Osborne and his wife Helen Osborne are entitled to seek relief for a leaky home claim which began in February 2007.
On 10 June 2014 the Supreme Court released a unanimous judgment concerning the limitation period for leaky homes claims under the Weathertight Homes Resolution Services Act 2006 (the "Act"). The effect of the decision is that the limitation period for claims under the Act will extend for 10 years from the date when building work which gives rise to the claim, including the issuing of code compliance certificates by a Council or territorial authority, is completed.
Investors in Ross Asset Management Ltd (in liquidation) ("RAM") were understandably surprised when the liquidators announced that payments to investors made by the company two years prior to liquidations may be set aside.
Nearly a year to the day after the Court of Appeal, in Steigrad v BFSL 2007 Ltd  NZCA 604, gave insured directors a Christmas present, the Supreme Court has played Scrooge for directors and Santa for liquidators and receivers of, and investors in, failed finance companies to recover losses by pursuing directors of those companies for breaches of their directors' duties and also for breaches of the Securities Act 1978.
In a hole in the ground there lived a hobbit. But who has the right to benefit from the film depiction of that hobbit? This is the issue raised by the claim recently filed by Miramax LLC, and its managing directors Harvey and Robert Weinstein ("the Plaintiffs"), against Warner Brothers Entertainment Inc and New Line Cinema Corporation.
For the first time in New Zealand, the issue of "subject to director's approval" clauses has come before the Courts. This raised the question of how such clauses would be interpreted. In particular, would the Courts approach the clauses as "conditions precedent" or "conditions subsequent"?
In a recent case from the Chancery Court, Rihanna, a prominent pop star, successfully sued Topshop, a high street fashion retailer, for passing off.
The “rule in Hastings-Bass” (In re Hastings Bass  Ch
25,  2 All ER 193 (CA)) is a misnomer and its
application has been too liberal. So said Lord Walker
in his swan song judgment for a unanimous United Kingdom
Supreme Court in Futter v Commissioners for Her Majesty’s
Revenue and Customs  UKSC 26, on appeal from a
unanimous decision of the English Court of Appeal on two
cases heard jointly (Pitt v Holt and Futter v Futter 
EWCA CIV 197,  Ch 132,  All ER 450)
The issues that confront governments dealing with peer-to-peer networks that infringe the rights of copyright holders highlight the challenges that modern technology poses to intellectual property law. There is a need to balance the interests of different interests while also upholding the international obligations that states have entered into. New Zealand has attempted to balance the interests involved by the Copyright (Infringing Filesharing) Amendment Act 2011, which introduces a graduated infringement system involving warnings of infringement to user, but which shops short of allowing the suspension of internet services.
Last month Dole came under scrutiny for labelling its fruit products with stickers bearing the slogan “Ethical Choice”. Dole’s justification for the labels was that it has a commitment to ethical conduct throughout its business operations by providing a "safe, healthy, fair, and productive environment" for its workforce.
The New Zealand law reports are replete with defamation cases brought by public figures. One of the earliest was in 1911, where William Massey unsuccessfully sued the New Zealand Times for a cartoon that insinuated he was a liar and guilty of disreputable acts. More recently, The Civilian, a previously niche satirical news website, was launched into the public spotlight by the threat of a defamation action from the leader of the Conservative Party, Colin Craig.
On 11 February 2013 the High Court found that the purchasers of a leaky building had not taken reasonable steps to protect themselves against the risk that the house had weathertightness issues. Because of this, the loss they suffered was substantially their own fault, and the Court reduced the damages which would otherwise be recoverable by 70%.
On 20 December 2012, the Court of Appeal released its decision in Steigrad v BFSL 2007 Ltd  NZCA 604. The decision impacts negatively upon attempts by liquidators and receivers of, and investors in, failed finance companies to recover losses by pursuing directors of those companies for breaches of their directors' duties and also for breaches of the Securities Act 1978.
Outcome: the Judge ordered a stay of the CPT's decision on the basis that the CPT's decision was "incomplete". The Judge found that the trust on which the Cathedral is held required a cathedral to exist on the site, rather than a cathedral in a specific design and form. Importantly, the Judge declined to set the decision aside.
On 19 April 2012 the Hon Tariana Turia announced that the government had agreed in principle to move towards the introduction of a plain packaging regime for tobacco in alignment with that in Australia, which is due to come into force in December this year. The issue is currently going out for public consultation. The Australian regime introduces rigorous requirements that will homogenise the packaging for tobacco products so as to (so the tobacco companies say) make them indistinguishable.
The Canterbury earthquakes have given rise to more than just seismic aftershocks. The legal consequences are only just beginning to be felt. Issues have been raised that have not been considered before and from which there are no easy answers.
In Vector Gas Ltd v Bay of Plenty Energy Ltd  NZSC 5 the Supreme Court confronted the questions of contractual interpretation, and of what extrinsic evidence may be adduced to prove the meaning of contractual terms. Throughout the 20th century the parol evidence rule, under which the admission of extrinsic evidence to assist in the interpretation of contracts was severely limited, was gradually worn down, primarily through the creation of numerous exceptions combinedwith a judicial re-examination of the principles of contractual interpretation. The result is an area of law that is over-complicated, which hampers the ability of practitioners to provide sound advice to clients.
In 1979 Parliament significantly changed the law of contract in New Zealand by enacting the Contractual Remedies Act 1979. That Act arose from recommendations made by the Contracts and Commercial Law Reform Committee in its 1967 Report on Misrepresentation and Breach of Contract. The Act both changed and codified the law relating to the cancellation of contracts, damages for breach of contract, and damages for misrepresentation which induced entry into a contract.
The decision that Crown Law has reached is open to challenge in two ways. First, for such a significant
decision for Christchurch it has come about through an inadequate process. Second, it has failed to
consider the issues properly. Unfortunately, Crown Law has formed its view on limited evidence.
The debate about the amendment to Section 59 of the Crimes Act 1961 produced so much heat that it must have contributed to global warming. However, the compromise agreed between National and Labour prior to the passing of the Amendment Bill introduced a new clause which has ramifications beyond the mere removal of the previous defence to assault on a child.