I have acted for many shareholders. Often the parties only need a clear, concise opinion on their rights and obligations arising from the terms of their shareholders’ agreement or the Companies Act 1993. Other matters are more contentious and require litigation, either to enforce the terms of a shareholders’ agreement or those rights reserved to shareholders under the Companies Act 1993. I have been involved in cases that have concerned distributions to shareholders, minority buy-out rights, financial assistance by the company to purchase shares, prejudicial conduct claims under s 174 of the Companies Act and the status of special shares such as “tracker” shares.
I have been involved in cases that have been concerned with the status of salaried partners, the taking of accounts upon termination of partnerships and joint ventures, the rights and obligations of joint venturers to each other and, in particular, the overlay of equitable principles upon the contractual terms of such relationships. TPD 2018 Limited v Godfrey and Company Limited [2021] NZHC 431 was successfully resolved after trial in the High Court. Dold v Murphy was resolved in favour of my client in the High Court which finding had to be, and was, affirmed by the Court of Appeal ([2021] 2 NZLR 834). The Court of Appeal’s decision has since been cited by the Supreme Court of the United Kingdom: Pakistan International Airline Corporation v Times Travel (UK) Ltd [2021] UKSC 40.
I regularly advise trustees on their obligations arising both generally and under the instrument of their appointment. I have extensive knowledge of the Trusts Act 2019 and its predecessor. I have advised the trustees appointed to the insolvent Kiwi Deposit Building Society throughout the nine years of that dissolution, both on their powers and obligations as statutory trustees appointed under the Buildings Societies Act 1965 and on genuine – and not so genuine – complex trust arrangements put in place by the directors of the Building Society involving corporate trustees in many jurisdictions. I have successfully defended the trustees’ decision making (Green Meadow Holdings ApS v Sargison [2018] NZHC 2216). I have argued the effectiveness of trust structures before the Judicial Committee of the Privy Council (Webb v Webb [2021] 2 NZLR 376) and remain engaged on a number of trust matters on which I act for both trustees and beneficiaries as required.
Rights to restitution arise from wrongful conduct, unjust enrichment and violation of property rights. The first might arise from a tort, the second from money had and received and the latter from the misappropriation of trust property. I have been involved in several cases involving money had and received in both the High Court and the Court of Appeal. I have acted on many matters involving the defalcations of directors and trustees and the need to trace, or follow, stolen funds or to otherwise hold errant fiduciaries to account.
I have considerable experience in insolvency matters. I have acted for receivers in the pursuit of assets and have, throughout my career, provided advice to liquidators, receivers and administrators on the procedural requirements of their roles, their duties, the priority of creditors and on litigious matters. I successfully argued one of the first “running account” voidable preference claims under s 292 of the Companies Act 1993 (Rea v Wolfgram (2009) 10 NZCLC 264,593; [2010] NZCCLR 6) and was able to secure wine stock for receivers in Sargison v Anthem Wine Company Limited (HC, Christchurch, CIV1876/09, 27 April 2010, French J), when ownership could not be established, by submitting that possession itself is present and after acquired property for the purposes of a general security agreement. In Rea v Russell [2015] NZAR 1368 I successfully argued that, even in the absence of a loan agreement, the restoration of funds wrongly paid to a company, before its liquidation, can amount to a voidable preference.
Property litigation takes many guises and I have acted for landlords faced with recalcitrant tenants and applications for relief against forfeiture (New Zealand Mint Limited v Greys Avenue Investments Limited [2015] NZHC 3051), rental reviews, the arbitration of disputes arising under leases, mortgagee sales and the obligations of mortgagees (such as in General Finance Ltd v Serepisos [2018] NZHC 541 and actions for possession (Aronui Ko Huiarau Trust Board v Harris [2015] NZHC 2911).
Throughout my career I have remained available to act on matters involving substantial relationship property and have led cases in the Family Court, the High Court, the Court of Appeal (for example, J v J (2005) 25 FRNZ 1 in which I tested the boundaries of the unequal sharing and misconduct provisions of the Property (Relationships Act 1976) and, of course, the Privy Council in Webb v Webb [2021] 2 NZLR 376.
Contractual cases generally turn on questions of interpretation and I have acted on many over the years. While it ultimately settled, Kiwi Deposit Building Society v Scanprojects ApS turned on the wording of term deposit agreements and whether interest was properly payable when a deposit was broken before term. Calibre Financial Services Limited v Mortgage Administration Services (Calibre) Limited [2014] NZAR 483 concerned the terms of a mortgage management agreement and I have successfully argued many cases for specific performance of sale and purchase agreements (Mayoral Drive Trustee Company Limited v McGuire (2007) ANZ Conv C 610 is but one example).
I often advise on the terms of employment agreements, the status of the parties to such agreements, redundancy provisions and procedure and disciplinary processes. Most cases of this kind can be resolved by discussion. Where they have not, I have appeared in both the Employment Relations Authority and Employment Court. I have attended many mediations in this context for both employer and employee.
I am experienced in all aspects of Cook Islands law. I have also been involved in proceedings in the Federal Court of Australia and have appeared in the Supreme Court of Vanuatu. I have a good knowledge of the principles of the conflict of laws and private international law generally. I have conducted proceedings under the Privacy Act and been involved in defamation cases. I have been involved in cases involving professional negligence and have represented parties in both the Real Estate Agents Disciplinary Tribunal and the Health Practitioners Disciplinary Tribunal. I have remained interested in criminal law and, in R v N [2020} NZHC 637, successfully challenged the Crown practice of not providing exhibits with its formal statements by trial callover.
I have, for many years, written those parts of this book that cover interlocutory applications, procedure for special cases, originating applications, appeals to the District Court, trial and evidence and enforcement.
I have written the following articles:
> “The Penalty for murder” [1998] NZLJ 420
> “The Crown in Council and Ultra Vires” [2000] NZLJ 37
> “Extrinsic guides to statutory interpretation” [2000] NZLJ 51
> “Enforceability of foreign laws” [2002] NZLJ 223
> “Litigation funding” [2012] NZLJ 381
> “Litigation privilege: Permanent or temporary” [2022] NZLJ 8 (considered by the High Court in Wooley v Marlborough District Council [2023] NZHC 3840)
> “Money had and received: we’re sorry, will you have us back?” [2023] NZLJ 258 (considered by the High Court in Northlake Investments Ltd v Civil Construction Ltd [2023] NZHC 2715)
> “Voidable preferences – unclear issues” (2013) NZ Lawyer 14
> “Court costs: End of the lawyer litigant exception” (2017) 910 Law Talk 48
> “Guarantees, estoppel and part performance” (2021) 21 Property Lawyer 22
I have presented the New Zealand Law Society’s seminar on costs in civil litigation in 2018 and 2021.
I have presented part of the Law Association’s civil litigation series in 2024, namely “The Middle Stages: Close of pleadings to trial”.
I have presented Legalwise’s seminar on law for school guidance counsellors in 2022 and chaired its seminars on the Overseas Investment Act in 2023 and its property update on unit titles and cross-leases in 2024.
In 2023 I presented to practitioners in the Cook Islands on directors’ duties in insolvency situations.
