Dispute Resolution
Representation without compromise
Wynn Williams has one of the strongest dispute resolution teams in the country. We have a New Zealand wide reputation for delivering successful results with integrity and responsibility. 

If you are faced with a dispute, either in your business or personal life, our team can apply its commercial insight and unrivalled experience to your case. We’re skilled at developing innovative and successful strategies to ensure the best outcome.
We’re experienced at representing clients in complex cases before the Privy Council, Supreme Court, Court of Appeal and High Court. Over the years our firm has also produced several of the country’s leading judges.
We provide expertise in all areas of dispute resolution:
  • Commercial and contractual disputes
  • Real estate and leases
  • Contentious trusts and estates
  • Relationship property
  • Care of children and family
  • Employment and Health & Safety
  • Arbitration
  • Insolvency and credit recovery
  • Professional and product liability
  • Judicial review and public law
  • Intellectual property
  • Maori
  • Construction
We are recommended as a Leading Firm for Litigation & Dispute Resolution by The Legal 500 Asia Pacific 2020, Chambers Asia-Pacific 2020 and Chambers Global 2020 legal guides.  A client describes the team as "efficient, empathetic, commercially savvy and focused on achieving good results." Another comments that "there is a high level of partner engagement and proactiveness."

A previous Chambers directory described the team as "one of the strongest dispute resolution teams in the country with a New Zealand-wide reputation for delivering successful results with integrity and responsibility"

If you need advice on a dispute, please get in touch with any of our team below.


Recent Projects

  • Appearing as lead counsel in the Maori Land Court opposing an application for succession with disputes as to the interpretation of the will.
  • Appearing in both the IPONZ Office and the High Court in respect of a trademark dispute.
  • Acting for individuals defending an application by the liquidators of Ross Asset Management Limited to claw back funds paid out to investors.
  • Acting for a large North Island Iwi making a fiduciary claim in excess of $50 million against the Crown.
  • Acting for a Regional Council in respect of an application to judicially review that council’s bylaws and successfully obtaining an order for security for costs.
  • Appearing and delivering submissions in the Court of Appeal on a Family Protection Act 1955 dispute regarding a $10 million estate.
  • Acting for and advising two large regional councils in respect of the numerous applications of different Iwi under the Takutai Moana Act to obtain rights to coastal and marine regions in the South Island.
  • Acting for the trustees of a Trust over five years and regularly advising the trustees as to the interpretation of the complex 70 page Trust Deed.
  • Acting for a valuation company in a negligence dispute arising our of earthquake damage to a large port in a claim worth $170 million.
  • Acting for the Canterbury Regional Council in relation to the Application for Judicial Review of the Navigational Safety Bylaw 2016.
  • Debt collection work for local authorities and various companies.
  • Advising clients from a variety of backgrounds on relationship property division and drafting section 21 and section 21A separation agreements.
  • Undertaking due diligence in respect of Māori rights and interests and the impact this may have on the sale and/or purchase of land.
  • Acting for the Canterbury Regional Council and Southland Regional Council in relation to prosecutions under the Resource Management Act 1991.
  • Successfully obtaining without notice injunctions freezing defendants' assets.
  • Acting in construction contract adjudications.
  • Acting as lead counsel in a significant claim involving a company that collapsed owing in excess of $30m involving application of the Securities Act and the Financial Markets Conduct Act.
  • Acting in the High Court on a major relationship property appeal involving property exceeding $28 million and complex business and trust arrangements.
  • Acting as Senior Counsel in the Supreme Court for Allied concrete on the interpretation of the Companies Act insolvent transaction provisions in an appeal. We were granted leave to appeal direct from the High Court to Supreme Court.
  • Acting for Canterbury Regional Council, Selwyn District Council, Waimakariri District Council and Christchurch City Council in the High Court and Court of Appeal in litigation brought by property developers to challenge a decision of the Minister for Canterbury Earthquake Recovery.
  • Acting or advising CERA in relation to earthquake recovery matters.
  • Successfully acting as Senior Counsel for the Anglican Church in the Court of Appeal and High Court in relation to the de-construction of Christchurch Cathedral and successfully opposing leave before the Supreme Court.
  • Successfully acting against the Statutory Management of Aorangi Securities Limited for a US investor for $6,000,000.
  • Being appointed by the High Court to act as counsel for Canterbury Policy Holders in the liquidation of Western Pacific Insurance Limited (In Liq) to seek payment of moneys from reinsurers for the benefit of those who suffered loss in the Canterbury Earthquakes.
  • Acting as counsel in the Supreme Court and the Court of Appeal in New Zealand's leading trust case, Kain & Ors v Hutton & Ors [2008] 3 NZLR 589 (SC), [2007] 3 NZLR349.
  • Acting for a major North Island Iwi in a claim against the Crown for breach of fiduciary duty and the unlawful taking of Maori land.
  • Successfully representing a director in the investigation of security claims related to Hanover Finance Limited and acting in the defence of civil proceedings.
  • Appeared in Chirnside v Fay [2007] in the Supreme Court which is New Zealand's leading case on fuduciary duties in joint ventures.
  • Representing the Anglican Church in relation to the use of insurance funds for the Transitional Cathedral.
  • Acting as counsel in multiple negligent valuer and negligent solicitor cases including the defence of prominent North and South Island firms on behalf of insurers.
  • Acting for a major policy holder in Re ACS before the High Court concerning approval of New Zealand's first solvent scheme of arrangement under the Companies Act 1993.
  • Acting as counsel for Save Our Arts Centre in the highly publicized litigation Save Our Arts Centre v The Arts Centre of Christchurch Trust Board, the University of Canterbury, and the Christchurch City Council.
  • Successful representation of Te Rununga o Ngai Tahu before the Privy Council in the case of Ngati Apa Ki Te Waipounamu Trust v The Attorney General and Ors [2006] UK PC 49.
  • Acting as counsel in the Supreme Court in the leading case on fiduciary obligations, Chirnside v Fay [2007] 1 NZLR 433.
  • Acting as counsel in the decision of ANZ National Bank v Macpherson Properties Ltd CIV 2008 409 561 on rectification and transfer fraud.
  • Acting as counsel in Celibriala v Inwood CIV 2008 409 120 to restrain a sale of land for failure to comply with a right of first refusal.
  • Acting as counsel for specialist medical practitioners against an errant director for breach of fiduciary obligations in a joint venture.
  • Acting as counsel (with Peter Whiteside) on behalf of a group of unit owners in a case concerning unit entitlements under the Unit Titles Act 2010 following demolition of apartments caused by the 2011 Canterbury earthquake.
  • Acting on behalf of investors in the winding up of entities related to South Canterbury Finance and Aorangi Securities Limited.
  • Attending mediations on behalf of professional indemnity insurers in cases involving allegedly negligent financial advice.
  • Acting for defendants in financial advice claims.
  • Advising on strategy in a probate litigation matters involving residential property in Auckland and Christchurch.
  • Advising a large corporate trust organisation on matters arising from the application of its trust deed.
  • Assisting company directors with an application for termination of a liquidation.
  • Successfully negotiating the discontinuance of a Fair Trading Act claim on behalf of a defendant.
  • Acting for a defendant in a civil claim by the Financial Markets Authority.
  • Acting for a defendant in a claim concerning alleged negligent building work.
  • Acting for plaintiffs in various conveyancing litigation matters, including a claim for specific performance.
  • Acting in various debt recovery (breach of contract) matters.
  • Advice on Valuer Negligence cases for a major lender.
  • Arbitration for a State-Owned Enterprise.
  • Acting for Policy Holders for a Collapsed Insurance Company.
  • Counsel for Christchurch City Council in complex civil litigation over alleged land transfer fraud.
  • Counsel for property owners in High Court and Court of Appeal in dispute over neighbours application to obtain access over their land.
  • Acting for Professional Indemnity Insurers.



Insurance fraud: who am I hurting?

Insurance fraud has been around since insurance began. It is often perceived as a ‘victimless crime’, where the only ‘losers’ are big insurance companies that can afford the loss.

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Affidavits of documents in multi-party litigation: Court of Appeal provides welcome guidance

The current James Hardie litigation concerns allegations that certain exterior cladding products manufactured by the James Hardie group were defective, which defects are alleged to have caused moisture ingress and associated damages.

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When is a lawyer not a lawyer?

The recent case of Burcher v Auckland Standards Committee No 5 [2020] NZHC 43 raises again the question: when is a lawyer not a lawyer?

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Extended Subsidy or Restructuring – What are your options at the expiry of the Wage Subsidy?

On 14 March 2020, as part of its budget announcement, the Government outlined that the COVID-19 Wage Subsidy would be extended.

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Does the Property (Relationships) Act apply to polyamorous relationships?

A recent case from the Auckland High Court has raised a novel new issue: whether the Property (Relationships) Act 1976 (“PRA”) applies to a “polyamorous relationship”? A polyamorous relationship is where a relationship exists between more than two people, which is consented to by the parties involved.

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Domestic violence during the lockdown – help is still available

Regrettably, it is predicted that there will be a rise in domestic violence during the COVID-19 lockdown. This is an unintended consequence of families being kept home, stressed and potentially out of employment due to the COVID-19 pandemic. It is also an unintended consequence for people living in already abusive homes, as they are having to spend more time with their abuser - and thus be at a heightened risk of further abuse.

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The impact of COVID-19 on cashflow and solvency

The continuing spread of COVID-19 and government measures in response means an economic downturn with increasing business failures. What should business owners consider in these circumstances?

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The impact of COVID-19 on performance of contracts

The spread of COVID-19 and government measures in response are affecting supply chains and the ability of businesses to perform their contracts. What if your business or your supplier (or other counterparty) is prevented from carrying out its obligations?

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A trust transformation

It is often said that New Zealand has one of the highest rates of trusts per capita – the government estimates there are somewhere between 300,000 and 500,000 trusts operating in New Zealand. 2019 brings a long-anticipated change to the law of trusts in the form of the Trusts Act 2019.

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A digital future for statutory demands?

The 21st century has brought with it some fascinating developments, smartphones, social media, and service of statutory demands by email? The judgment of Lester AJ in the High Court decision of Upright Scaffolding Ltd v Pinnies Painters & Plasterers Ltd seems to have settled the decades old question of whether service of a statutory demand by email is possible under the Companies Act 1993.

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The amenability of private school decisions to judicial review

The question of whether private school decisions are amenable to judicial review has yet to be answered in New Zealand. James Anson-Holland’s recent article The Amenability of Private School Decisions to Judicial Review published in the Public Law Review (2019) 30 PLR 106 discusses the conflicting judicial and academic debate within the Commonwealth in order to conclude that private education is sufficiently public to attract judicial review.

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Workplace bullying - employer fined

Most employers are committed to providing a safe and productive working environment free from all forms of physical, emotional and verbal abuse. However, from time-to-time a case comes before the courts which is noteworthy.

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Three tips for breaches of contract

Jeremy Johnson, Partner at Wynn Williams talks to Jake Millar, CEO of Unfiltered about three tips for how best to resolve a breach of contract. The video includes documenting everything from the beginning, checking the contract multiple times and hoping for the best, but planning for the worst.

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Employees’ rights under triangular employment relationships expanded

New Zealand’s response to the age of flexibility is a new law that will come into force on 27 June 2020 which will enable employees to raise a personal grievance against any organisation that has the ability to direct or control the employee’s day-to-day work.

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Dealing with NZTA disputes – cooperate or litigate?

In October 2018 the NZ Transport Agency (NZTA) announced that it was undertaking an extensive review of its 850 open compliance files. This announcement came with the message that the NZTA would be toughening up its compliance regime and would no longer be prioritising education over enforcement.

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Supreme Court decides reinstatement benefits cannot be assigned

The Supreme Court has decided the case of Xu v IAG NZ Ltd against the homeowners by a 3:2 majority.

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Directors’ liability in the spotlight

When Mainzeal Property and Construction Limited (Mainzeal) collapsed in February 2013, it left behind a raft of unsecured creditors who were jointly owed just over $110 million. The proceedings brought by Mainzeal’s liquidators against its former directors were for the effective benefit of these creditors.

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Introduction to the Privacy Bill 2018 – mandatory reporting of privacy breaches

The highly anticipated Privacy Bill was introduced to Parliament in March 2018 and is due to come into effect in July 2019. It will replace the Privacy Act 1993 and aims to bring New Zealand’s privacy law framework up-to-date with the digital society we live in. The reform also brings New Zealand in line with international laws, including the European General Data Protection Regulation.

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Ebert's retention fund clarified

The recent receivership and subsequent liquidation of Ebert Construction Limited (Ebert) has been well publicised with significant public interest about another large construction firm in financial trouble.

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Review of the Property (Relationships) Act 1976

The Law Commission is reviewing the Property (Relationships) Act 1976 (Act). As part of its review, the Law Commission has recently released their preferred approach for changes to the Act.

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Construction update: payment claims for deposits – are they allowed?

The parties to a construction contract will commonly come to an arrangement where the principal will need to make a payment to the contractor before any work is undertaken. That is, the principal must pay a deposit or security. The same is also true as between contractor and subcontractor.

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Cost of non-compliance: falling foul of AML/CFT obligations

The recent decision of the High Court in Department of Internal Affairs v Qian Duoduo Limited comes as a timely reminder to reporting entities about the risks associated with failing to comply with the Anti-Money Laundering and Countering Financing of Terrorism regime under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.

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Insurance fraud – recovery of exemplary damages

A recent UK case has provided an opening for awards of exemplary damages for serious insurance fraud.

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Voidability of third-party payments

A company is teetering on the verge of insolvency. Its creditors are numerous. The company arranges for a third party to settle some of its debts on its behalf, but nonetheless tips over into liquidation. Can the liquidators recover the monies paid to the company’s creditors?

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The neighbourly bane of trees blocking light: what can you do?

Boundary trees block your views, access to light, or even Wi-Fi signals. What can you do? This was the issue that came before the High Court on appeal from the District Court in Vickery v Thoroughgood [2018] NZHC 2303.

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Receiverships: who, what and why

The recent enforced receivership of national construction firm Ebert Construction has thrust receiverships back into the spotlight. With some 95 staff laid off and creditors owed around $40 million, the consequences of a high-profile company being forced into a receivership are apparent. Nonetheless, many people involved in the construction industry, and the general public, may have little knowledge of what a receivership entails.

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Court of Appeal rejects QBE’s appeal contending double insurance

The Court of Appeal has rejected QBE’s appeal in QBE Insurance (International) Limited v Allianz Australia Insurance Limited [2018] NZCA 239.

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Privacy law shake-up! What does the EU General Data Protection Regulation mean for your company?

Unless you’re willing to pay a fine of up to 4% of your company's annual global turnover or €20 million for failing to comply with the European Union’s General Data Protection Regulation (GDPR), it's time to review your company's privacy policy and practices.

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Review of insurance contract law – calling for submissions

Do not let the unlucky submission closing date of Friday 13 July 2018 put you off having a say in the Government's review of insurance contract law.

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Family Protection Act: (un)enforceable contracting out provisions

The situation is seen all too often. In contemplation of spousal separation, or in preparation for death, individuals and members of their immediate family will often enter into inter vivos deeds of separation or deeds of family arrangement. The purpose for entering into these deeds often involves managing sensitive interfamilial relationships.

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Hawkins liable for $13.4 million: summary of the latest case involving builder negligence

In a judgment released on 1 May 2018 Downs J, in a 344 paragraph judgment, has found H Construction North Island Limited (formerly Hawkins Construction North Island Limited) liable for serious building defects at the Botany Downs Secondary College.

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Insolvency update April 2018

This article provides an update on insolvency matters with reference to recent case law.

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Purchase of real estate: High Court reminder of what not to do when another party tries to cancel an agreement

Associate Judge Sargisson's decision in Sutton v van Der AA is a timely reminder of how parties should act if they do not accept a repudiation (cancellation) of an agreement by the other party. In essence, if you do not accept the repudiation then you should conduct yourself that way by your words and actions.

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The easy allegation that's hard to prove: appealing selection decisions affected by bias

This article will look at the allegations of bias that have arisen in the New Zealand Sports Tribunal and Court of Arbitration for Sport (CAS) to explore how they tend to be decided and the differences between actual and apparent bias.

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"No Oral Variation" clauses and their enforceability: the current legal landscape in New Zealand and England

Is it possible to agree in writing that you will not alter that agreement other than by writing? It is common for commercial contracts to have a clause proscribing oral variations (or variations by conduct), or at least attempting to do so. It is also increasingly common for parties to enter into dispute about the efficacy of oral variations notwithstanding the presence of such clauses. The question for practitioners is whether such clauses are enforceable.

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Do councils now owe a duty of care to building developers?

Jonathan Pow and Isabella van Woerkom discuss the recent Supreme Court decision in Southland Indoor Leisure Centre Charitable Trust v Invercargill City Council.

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Tenants' liability for damage – High Court ruling

The Court of Appeal in Holler v Osaki confirmed that a residential tenant who damages their landlord's property carelessly can not be sued by their landlord in respect of the damage. In November 2017, the High Court released a new judgment on tenants' liability, in Linklater v Dickinson.

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Dishonest real estate agents beware

Dishonestly offending will be taken seriously when applying to be a licensed salesperson, as is demonstrated in the recent case Real Estate Agents Authority v A [2017] NZHC 2929.

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Relationship property reform – have your say

The Law Commission is reviewing the Property (Relationships) Act 1976 (PRA). Since 1976, New Zealand society has changed dramatically. The way people enter and leave relationships has evolved. The value that people place on marriages has changed and New Zealand is now more ethnically diverse.

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Insolvency update - voidable transactions and payments made by third parties

A recent High Court case: McCullagh v Robt Jones Holdings Limited [2017] NZHC 2182, provides an interesting illustration of the application of the voidable transaction regime to payments made by third parties on behalf of a debtor company.

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Eight miles too far?

Summary of Eight Mile Style v New Zealand National Party [2017] NZHC 2603. The National Party's use of the track Eminem Esque, in its 2014 election campaign was a copyright infringement.

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Supreme Court clarifies when litigation funding amounts to an abuse of process

The cost of access to the courts is commonly seen as one of, if not the most, significant barriers to access justice. This is true even for corporates. The decision in PriceWaterhouseCoopers v Walker was concerned with the validity of a litigation funding agreement between a company called SPF No. 10 Limited, the liquidators of Property Ventures Limited and related companies, Messrs Robert Walker and John Marshall.

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A new look for the law of contempt in New Zealand?

The purpose of this article is to provide a brief overview of the current position on the law of contempt and to summarise the Law Commission's recommendations and the Government's Response in order to comment on the future scope of contempt in New Zealand.

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Double Insurance or Seamless Cover? When the Inception Time of Insurance Cover Matters - Updated

The time of inception on an insurance policy was considered by the High Court in Body Corporate 74246 & Ors v QBE Insurance (International) Limited and Allianz Australia Insurance NZ [2017] NZHC 1473. This decision has been upheld by the Court of Appeal.

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Court of Appeal revisits the lawyer-litigant exception in costs

On 14 June 2017 the Court of Appeal held that the lawyer-litigant exception is not justifiable under the specific costs rules now in place. This article summarises the rationale of the decision.

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The Arbitration Amendment Bill 2017

Jeremy Johnson contributes to an article on The Arbitration Amendment Bill 2017 for LawTalk Magazine.

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Arbitration of trust disputes: a new frontier

The Arbitration Act 1996 (Act) was enacted to facilitate the arbitration of commercial disputes and to enable international arbitration so that disputes decided here can be easily enforced in other jurisdictions. In principle, the incorporation of an arbitration clause should lead to the successful resolution of such disputes in a private, expeditious, and cost-effective way.

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Is self-representation a good idea?

In New Zealand, you have a right to go to court and represent yourself; self-representation procures access to the courts. But, whether it provides access to justice is another question.

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Proposed changes to voidable transactions: feedback sought

The Government's Insolvency Working Group has this week issued its second report, which includes its recommendations on changes to the voidable transactions regime. Two key changes are proposed.

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Bankruptcy: Court clarifies its powers to approve payment proposals

You are a creditor and have served a bankruptcy notice on a judgment debtor. The debtor puts forward a payment proposal which you reject. The debtor then applies to the Court seeking to set aside the bankruptcy notice and requests that the payment proposal be approved. Does the Court have jurisdiction to approve the payment proposal, despite the creditor's refusal?

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The final word on disclosure of trust information to beneficiaries

The Supreme Court in Erceg v Erceg [2017] NZSC 28 has confirmed the court's important role in supervising trustee decisions to not disclose information to beneficiaries. In clarifying the scope of the court's supervisory role, this decision should assist beneficiaries in holding trustees to account.

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Fluoridation of water in New Zealand – have your say

On the 17 November 2016, the Health (Fluoridation of Drinking Water) Amendment Bill (Bill) was introduced into Parliament; its aim being to amend the Health Act 1956 (Act) to enable District Health Boards (DHBs) to make decisions and give directions about the fluoridation of government drinking water supplies in their areas.

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The importance of complying with court orders

When a court makes an order, the party or parties against whom those orders are made may well query what will happen if they do not comply with those orders. The recent decision of Palmer J in Zhang v King David Investments Ltd (in Liq) [2016] NZHC 3018 provides an example of the adverse consequences which can occur.

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Injured player decides to sue – the right thing to do?

Alex McKinnon, a former Newcastle Knights NRL player left a quadriplegic after being upended in a tackle by the Melbourne Storm's Jordan McLean in 2014, is planning to sue the NRL and Mr McLean personally, seeking damages as a result of the incident.

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High Court reaffirms New Zealand's stance on suing for personal injury

In McGougan and Dingle v Depuy International Limited [2016] NZHC 2511 the High Court was required to determine the scope of the bar against claims for personal injury in s 317(1) of the Accident Compensation Act 2001 (ACA). The particular question for consideration was whether a person could bring a claim for compensatory damages (i.e. sue for damages flowing from personal injury) in New Zealand, where they have cover under the ACA, but where the conduct giving rise to the claims occurred outside of New Zealand.

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Exclusion of improperly obtained evidence in civil proceedings

On 26 October 2016, the Supreme Court released its decision in Marwood v Commissioner of Police [2016] NZSC 139. This decision required the Court to determine whether New Zealand courts have jurisdiction to exclude improperly obtained evidence in civil proceedings and, if so, whether the jurisdiction should be exercised on the facts of the case before it.

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Effective use of Arbitration Agreements and Dispute Resolution Clauses

Dispute resolution clauses are rarely excluded from commercial contracts and the inclusion of arbitration agreements within those clauses are becoming increasingly common. Dispute resolution clauses come in a range of forms and it is important that parties drafting or entering into agreements with dispute resolution clauses are familiar with the consequences of doing so.

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Update: What's all the buzz about NZ's recent drone regulations?

The Civil Aviation Authority of New Zealand (the CAA) released new rules for the flying of unmanned aircraft beginning 1 August 2015. The changes were aimed at drone operators and are found in Part 101 and Part 102 of the Civil Aviation Rules (the Rules).

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The rule against self-dealing

An important principle in the law of trusts is that a trustee must not, with some very limited exceptions, place themselves in a position in which duty and interest conflict. This is known as the rule against self-dealing. The Supreme Court has recently considered this rule in a decision in the context of ahu whenua trusts established under the Te Ture Whenua Maori Act 1993 (Act).

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Clayton v Clayton: Trust Busting

The Court of Appeal's recent decision in Clayton v Clayton has been described as redrawing the landscape on trusts and divorce. In this article I discuss the more controversial aspect of the judgment - the Court's finding that the settlor's power of appointment is relationship property. Although the context of the decision is a relationship property dispute, the Court's reasoning could be applied in other contexts, such as bankruptcy.

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Clayton v Clayton: Nipping the "Illusory Trust" in the Bud

Introduction The Court of Appeal's recent decision in Clayton v Clayton has been described as redrawing the landscape on trusts and divorce. The decision has already generated discussion within the legal community because the Court decided that a settlor's power of appointment could be relationship property. The Court went on to determine that the value of the appointment was the net value of the trust's assets. The decision is also important because it is the first New Zealand case where the concept of an "illusory trust", as distinct from a "sham trust", has been considered. It is this aspect of the decision which I intend to discuss in this article.

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Certainty at last for Creditors and Liquidators in voidable transaction claims

The Supreme Court has ruled that new value is not required for creditors to rely on the section 296 defence to voidable transactions under the Companies Act 1993. This means that creditors unfortunate enough to find themselves a party to a voidable transaction that a liquidator is attempting claw back are in a much better position to resist the liquidators claim. The Supreme Court heard three appeals in March 2014. The appeals concerned the operation of the voidable transaction regime under the Companies Act 1993, particularly section 296(3). A voidable transaction is a transaction made by an insolvent company to a creditor which results in that creditor receiving more than they would have in the liquidation of the company. Liquidators have the ability to 'claw back' voidable transactions paid to creditors up to two years prior to their appointment. The appellants in the Supreme Court were creditors of companies in liquidation and the respondents were the liquidators. Wynn Williams acted for Allied Concrete Limited who was a creditor in the appeal.

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Arbitration clauses and summary judgment: what to do when you don't think there is a dispute

Introduction 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.

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Arbitration clauses and the summary jurisdication: the Supreme Court speaks [2015] NZLJ 82

Introduction 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?

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Law Commission Adopts Pragmatic Approach to Pecuniary Penalties

The recently released Law Commission report on pecuniary penalties accepts that pecuniary penalties are a legitimate tool. However, the Law Commission has made nine recommendations that will mean future legislation invoking penalty regimes will be more principled and uniform. Unfortunately, little has been done about overhauling the pecuniary regimes that are already in place. Pecuniary penalty regimes have become increasingly prevalent, but are drafted on a somewhat ad hoc basis. That created a legislative environment that can appear unclear and unprincipled, a climate that prompted the Law Commission review.

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Private Health and Safety Prosecutions

A number of private prosecutions under the Health and Safety in Employment Act 1992 (HSEA) have been signalled in recent months. Having recently been counsel in a HSEA private prosecution, Tim Mackenzie outlines the issues that practitioners considering a HSEA prosecution should consider. Registering an interest Any party interested in a potential prosecution must first formally notify Worksafe New Zealand (Worksafe) of an interest in any enforcement action being taken. Worksafe must then advise the interested party of any decisions taken including a decision not to prosecute. If Worksafe declines to prosecute it is sensible for your client to consider their reasons and give weight to them.

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Supreme Court finds leaky home limitation periods are not water tight

Osborne & Anor v Auckland City Council & Anor [2014] NZSC 67 Introduction 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.

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Statutory demand procedure available to liquidators to collect voidable transactions

The recent decision of the Court of Appeal in Damien Grant and Stephen Khov v Lotus Gardens Limited [2014] NZCA 127 overturns a High Court decision which held that liquidators could not use the statutory demand process to collect monies under transactions that had been set aside under the voidable transaction provisions of the Companies Act 1993 (the "Act"). The Court of Appeal held that s 295 of the Act is not the only process available to liquidators to recover transactions that have been set aside. Section 295 of the Act sets out the various discretionary orders a Court can make following a transaction being set aside.

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Wolf in sheep's clothing: failed finance company investors at risk?

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.

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Can I claim for a reduction in the value of my claim?

If someone (person A) reduces the value of a claim you have against someone else (person B), can you recover the loss in the value of the claim from A?

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Directors: Call Your Brokers [2014] NZLJ 126

Nearly a year to the day after the Court of Appeal, in Steigrad v BFSL 2007 Ltd [2012] 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.

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Saunders v Vautier and the Recognition of Special Circumstances

A view as to why the NZ Courts should not trump a beneficiary's indefeasible interest in trust property. The rule in Saunders v Vautier (1841) 41 ER 482, which has long been a part of New Zealand's common law, provides that an adult beneficiary who is sui juris (or a number of adult beneficiaries acting together) who has (or between them have) an absolute, vested and indefeasible interest in the capital and income of property, or an aliquot share of capital and income as the case may be, may at any time require the immediate transfer of the property to him (or them) and consequently terminate the trust.

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The Hobbit: An Unexpected Lawsuit

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.

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Arcadia Homes Ltd (In Liq) v More To This Life

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"?

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Passing Off As Rihanna?

In a recent case from the Chancery Court, Rihanna, a prominent pop star, successfully sued Topshop, a high street fashion retailer, for passing off.

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How Safe is Your Goods Service Licence?

You are required under the Land Transport Act 1998 ("the Act") to hold and maintain a Transport Service Licence ("TSL"). If you lose your TSL, you cannot lawfully operate.

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Payment of Sum Insured Over and Above EQC Cover

On 15 May the High Court delivered a judgment in respect of a body corporate's earthquake claim against its insurer Zurich: Body Corporate 398983 v Zurich Australian Insurance Limited [2013] NZHC 1109. The issue for determination was whether the amount Zurich was to pay was in addition to the sums paid by the Earthquake Commission.

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Advertising Ethical and Socially Responsible Business

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.

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When is hilarity defamatory?

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. 

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High Court Earthquake List: Key Issues for Determination

An Earthquake List was implemented in the High Court in May 2012 to ensure that cases involving disputes arising out of the earthquakes are dealt with as swiftly as possible.

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Section 296 - Avoiding A Voidable Transaction

The recent decision of the Court of Appeal in Farrell and Rogan as Liquidators of Contract Engineering Limited (In Receivership and In Liquidation) v Fences & Kerbs Limited [2013] NZCA 91 has implications for those trading on credit.  Previously the defence in an insolvent liquidation, if the liquidator tried to claw back a payment, was available when prior value was given for the payment received.  This is no longer the case.

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New Zealand Maori Council and Others v The Attorney-General and Others [2013] NZSC 6

On the 28th of February 2013 the Supreme Court found that the Crown's intended proposal to restructure the state-owned asset Mighty River Power was not inconsistent with the principles of the Treaty of Waitangi. The Court concluded that the proposal would not materially impair the Crown's capacity to remedy any Treaty breach in respect of Maori interests in water.

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Johnson v Auckland Council [2013] NZHC 165

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%.

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Caveat Emptor - Buyer Beware

The recent High Court decision of Johnson v Auckland Council highlights the fundamental  legal principle of caveat emptor - buyer beware!

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Earthquake-prone building policy not enforceable

Six days after the 4 September 2010 earthquake, the Christchurch City Council adopted its Earthquake-Prone, Dangerous and Insanitary Buildings Policy 2010 (the Policy). The High Court has recently found it is unenforceable in terms of the level of strengthening required for earthquake-prone buildings.

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Steigrad v BFSL 2007 Ltd [2012] NZCA 604

On 20 December 2012, the Court of Appeal released its decision in Steigrad v BFSL 2007 Ltd [2012] 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.

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Cathedral Decision 15 November 2012 - What it Really Means

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.

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Drastic Change to the Leaky Building Landscape

In Spencer on Byron the Supreme Court held that local authorities owe a duty of care in their inspection role to all building owners. This is a huge development, as previously such a duty only recognised residential building owners.

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Crafar Decisions Result in Little Real Change

In the recent Court of Appeal decision, rejecting an attempt to stop the sale of the 'Crafar' farms to Shanghai Pengxin, it was held that the Ministers responsible for granting consent for overseas investments have considerable flexibility in determining what business experience and acumen is relevant to any particular investment.

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A New Approach To Litigation Privilege?

If and when litigation privilege attaches to reports obtained by insurers is a hotly debated issue. The general principles can be easily stated and are well accepted: the document in question must have been prepared for the dominant purpose of providing advice in respect of reasonably anticipated litigation.

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More than leases bargained for

In the aftermath of the Christchurch earthquakes many building owners, tenants, developers, and even lawyers have turned to their leases in an attempt to figure out exactly what they happens in a disaster.

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A Contextual Approach to the Application of Bias

Howe v Keown has been one of the most controversial cases to pass through the Christchurch Courts this year.  The case concerned an injunction application to prevent the defendant, Christchurch City Councillor Aaron Keown, from participating in the Council process to appoint a new chief exectuive.  The plaintiff, a concerned ratepayer, sought the injunction principally on the grounds that the defendant illegitimately favoured the incumbent Council chief executive and had made public statements to that effect.  Fogarty J refused to award the injunction and in so doing severally curtailed the application of the law of bias to elected members in public office.

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Earthquakes, mortagees and lessees [2011] NZLJ 301

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.

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Record Keeping and Our Limitation Laws

How will changes to our limitation laws affect you?  Charlene Sell, an Associate with Wynn Williams, discusses the impact of our new limitation laws on your business’s record keeping procedures.

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Contract: Missed Opportunity? [2010] NZLJ 50

In Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] 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.

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Section 11 Contractual Remedies Act 1979 - Unintended Consequences?

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.

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Save Our Arts Centre - Response to the Opinion of Crown Law

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.

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The No Asset Procedure - Easy Bankruptcy?

Emily Walton, associate, and Edward Burrell, former solicitor, with Wynn Williams & Co, look at this from the points of view of both a creditor and a debtor.

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The Anti-Smacking Law: Implications for Judicial Review

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.

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Trustees Indemnity - Litigation Costs

A trustee is not always entitled to recoup his or her litigation expenses from the trust fund. Often a
trustee will have to await the outcome of litigation before he or she can exercise any right of indemnity. There
are now over 300,000 trusts in New Zealand and an increasing number of trust disputes are being brought before the courts (Wear “QCsaysNZneeds specialist trust bar”Lawtalk, 18 February 2008). However, it is still common for trustees to be advised that they are entitled to have their litigation expenses met out of the trust fund. This is not always the case.

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Privacy Act 2020 – Are you ready?

New Zealand’s highly anticipated Privacy Act will commence on 1 December 2020, replacing the Privacy Act 1993.

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Personal liability of building inspectors

There is currently a trend amongst plaintiffs to commence proceedings against building inspectors personally in defective building cases. This is only appropriate in very specific circumstances.

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Defective EQC Repairs? Time’s running out…

If you bought an EQC repaired house after the Canterbury Earthquakes and before 15 August 2019 and you have concerns about the quality of the repairs, the clock is ticking. You only have until 14 August 2020 to register your interest in an EQC ex gratia payment for repair costs.

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COVID-19 Trusts and Charities: What you should know

In the context of a global pandemic affecting lives and livelihoods the world over, the focus of most of us has been on those legal matters which are front and center in our lives. What has perhaps gone under the radar is the impact COVID-19 may have for our trusts and charities, many of whom hold investments that are likely to be significantly affected by the ensuing economic fallout.

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COVID-19 insolvency reforms – a job part done?

The Government has announced that it will be introducing temporary changes to the Companies Act in an effort to see as many businesses survive the economic downturn resulting from COVID-19 as possible. The changes will be welcome news to debtors , however, the news may not be so rosy for creditors, many of whom will also be feeling the pinch of the COVID-19 crisis.

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Resolving disputes in times of crisis: alternatives to going to court

The current COVID-19 situation has disrupted much of our life including the functioning of the court system. It is unlikely the courts will quickly deal with matters that do not affect life or liberty in the immediate future. However, while the courts might stand still, that does not mean disputes do. Now, more than ever, it is worth looking at the alternative ways to resolving disputes.

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Backing out of a deal as a result of COVID-19

The spread of COVID-19 and government measures in response is leading businesses to reconsider whether they should go ahead with some deals currently under negotiation. When can your business or your counterparty back out of a deal under negotiation?

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Reported Decisions

  • Pharmazen Ltd v Anagenix IP Ltd [2019] NZHC 1520
  • Talbot v Talbot [2017] NZCA 507
  • YYK Ltd v Monkey Business Ltd [2017] NZHC 1112
  • Cain v Mettrick [2019] NZAR 668
  • Cullen Group Limited v Commissioner of Inland Revenue (2019) NZTC 24-003
  • McLaughlin v McLaughlin (2018) 4 NZTR 28-033, [2019] NZAR 286
  • Commissioner of Inland Revenue v Cullen Group Ltd (2018) 28 NZTC 23-059
  • Darlow v Raymond [2017] 3 NZLR 353
  • Southland Regional Council v Hardegger [2017] 2 NZLR 852
  • Greig v Hutchison [2015] NZFLR 587
  • J v J [2015] NZAR 861
  • Satterthwaite v Gough Holdings Ltd [2015] NZCCLR 15
  • Dalian Deepwater Developer Ltd v Dybdahl [2015] 3 NZLR 260
  • Holler v Osaki [2014] 3 NZLR 791
  • Great Christchurch Buildings Trust v Church Property Trustees [2014] 3 NZLR 236
  • Great Christchurch Buildings Trust v Church Property Trustees [2013] 2 NZLR 230
  • Howe v Keown [2011] NZAR 764
  • F M Custodians Ltd v Pinot Rouge New Zealand Ltd [2011] 12 NZCPR 155
  • Hagaman v Fairbank [2010] 20 PRNZ 68 (CA)
  • Kain v Hutton [2008] 3 NZLR 589 (SCNZ)
  • Kowhai Mainland Roof Coatings Ltd v Newman [2009] DCR 211
  • Cutler v Oceanside Developments Ltd [2009] DCR 645
  • Cousins v Heslop [2007] 18 PRNZ 677
  • Waitikiri Links Ltd v Windsor Golf Club Inc [1998] 8 NZCPR 527
  • Oldfields Ashphalts Ltd v Grovedale Cool Stores [1994] Ltd [1998] 3 NZLR 479
  • Stavefield Holdings No 29 Ltd v Nathan Securities Ltd [1993] ANZ ConvR 597
  • Grainger v Rossendale Holdings Ltd [1989] 2 NZLR 389
  • Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2013] 2 NZLR 397
  • Church Property Trustees v Attorney-General [2013] 2 NZLR 428
  • Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2012] NZAR 785
  • Reynolds v Peter [2010] 20 PRNZ 774
  • Chirnside v Fay [2007] 1 NZLR 433
  • Ngati Apa Ki Te Waipounamu Trust v Attorney General of New Zealand and others [2007] 2 NZLR 80
  • Chirnside v Fay (No 2) [2005] 3 NZLR 689
  • Shepherd v Disputes Tribunal [2004] NZAR 319
  • Chirnside & Rattray Properties Ltd v Fay, Supreme Court [2004] 3 NZLR 637, [2005] 3 NZLR 689) (CA)
  • Kraal v Earthquake Commission [2014] 3 NZLR 42
  • C v Legal Complaints Review Officer [2013] NZAR 398
  • Kain v Wynn Williams & Co [2013] 1 NZLR 498 (CA)
  • Sisson v Standards Committee(2) of the Canterbury-Westland Branch of the NZLS [2013] NZAR 416
  • C v Legal Complaints Review Officer [2012] NZAR 924; (2012) 21 PRNZ 270
  • Dominion Finance Group Ltd (in Rec and Liq) v Body Corporate 382902 (2012) 7 NZ ConvC 96-003
  • Wynn Williams & Co v Kain [2011] 3 NZLR 709
  • CAA v Griffiths [2010] DCR 169
  • PGG Wrightsons Ltd v Mid Canterbury Real Estate [2009] DCR 515
  • Williams v Cazemier [2009] 11 NZCPR 79
  • Lowe v Brankin (2005) 6 NZCPR 607
  • R v B [2003] 2 NZLR 777, (2003) 20 CRNZ 308
  • Brankin v MacLean [2003] 2 NZLR 687
  • Canterbury Regional Council v Newman [2002] 1 NZLR 289
  • Morris v Templeton (2000) 14 PRNZ 397
  • Hall v Warwick Todd Ltd (2000) 9 TCLR 448
  • Newman v Canterbury Regional Council [2000] NZRMA 420
  • Official Assignee v Brodie (2000) 15 PRNZ 89
  • Halswater Holdings Ltd v Selwyn District Council [1999] ELRNZ 192
  • Tubbs v Futurity Investments Ltd and Buchanans Foundry Ltd [1998] 1 NZLR 471
  • R v Guy (1996) 13 CRNZ 589
  • R v S (1995) 13 CRNZ
  • King v Wilkinson (1994) 2 NZ ConvC 191,828
  • A v District Court (1993) 11 CRNZ 335
  • Savin v De Vere(1986) 3 NZ ConvC 99,703
  • Anglian Sales Ltd v South Pacific Manufacturing Co Ltd [1984] 2 NZLR 249, (1984) 2 NZCLC 99,220

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Wynn Williams Christchurch
Level 5, Wynn Williams House, 47 Hereford Street, Christchurch 8013, New Zealand.
PO Box 4341, DX WX11179, Christchurch 8140.
+64 3 379 7622
+64 3 379 2467
Wynn Williams Auckland
Level 25, Vero Centre, 48 Shortland Street, Auckland 1010, New Zealand.
PO Box 2401, Shortland Street, Auckland 1140.
+64 9 300 2600
+64 9 300 2609

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