Whiteboard for 10 July 2008
Recent cases
LAW PRACTITIONERS - appeal from HC finding appellant law firm breached a duty of care, by not including a provision dealing specifically with the passing of risk, in a contract for sale and purchase of a marina complex under construction – whether, by not including a specific stipulation as to when risk passed, law firm exposed respondent client to risk of suit, founded upon an argument risk passed prior to settlement date, in which event respondent purchaser would have to accept settlement, and make payment for marina, which had been gravely damaged in a storm – following damage to marina respondent had refused to settle and vendor had sued respondent for specific performance and damages – following mediation claim was settled by agreement, under which respondent paid vendor $1.1M – advice to settle had been made on recommendation of independent counsel - respondent then sued appellant alleging negligence, breach of fiduciary duty and estoppel – HCJ gave judgment in favour of respondent for amount of payment to vendor, primarily on basis appellant should have included in contract a specific clause dealing with risk
HELD: in absence of contrary provision, general rule was owner of an asset bore risk of its loss – although contract did not provide expressly for transfer of risk, by providing for transfer of property, inevitable inference was that it provided concurrently for transfer of risk – further, there was no negligence by reason of failure to advise plaintiff in relation to transfer of risk – when drafting contracts a lawyer’s task was to take care to ensure client’s rights were protected; not to give client lessons in law – contract was unambiguous in its legal effect and properly safeguarded respondent’s interests – there was no reason for appellant to expect contract would be misinterpreted – appellant had withheld nothing from client – client had been informed as to possibility there would be a conflict of interest if appellant continued to advise in relation to settlement, and appellant had ensured respondent was independently advised – there was no breach of duty and no estoppel arising from conduct – appeal allowed – judgement entered for appellant
Cavell Leitch Pringle & Boyle v Thornton Estates Ltd [2008] NZCA 191
CONTRACT - appeal from HCJ finding 2nd respondent was entitled to cancel sale and purchase agreement in terms of clause 8.7 standard form Auckland District law Society (seventh edition) sale of land agreement - whether cancellation was permitted where an additional clause (clause 18) stated settlement was "conditional upon settlement of the two other agreements" and other two agreements had not settled – whether this was a true condition in terms of clause 8.7, which enabled a party to an agreement to cancel if a condition to which the agreement was subject was not fulfilled
HELD: clause 8.7 operated when agreement was expressed to be subject to conditions – clause 18 provided that "settlement" of contract was conditional on settlement of 2 other contracts – it did not say "agreement" itself was conditional – clause 18 was concerned only with timing of settlement and was not a true condition subject to clause 8.7 – appeal allowed - purported cancellation of contract by 2nd respondent was invalid
Kiwi Freeholds Queen Street Ltd & Ors v Shanti Holdings Ltd [2008] NZCA 177
From the Times
IMMIGRATION - This was a decision of the House of Lord allowing the claimant’s appeal. This case involved removal of immigrants and a refusal by the secretary of state to grant the claimant indefinite leave to remain in the country. The House of Lords examined the Immigration and Asylum Act 1999, Human Rights Act 1998 and the European Convention on Human Rights. The language of the Immigration and Asylum Act 1999 did not require a narrow construction. The immigration authorities were required to take into account the effect of the claimants proposed removal on members of his family unit, in determining whether his article 8 rights had been breached.
Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39
CRIMINAL LAW - The four appellants had been convicted of a murder in 2004. They had been convicted as accessories or secondary parties to the joint enterprise that had lead to death as it had not been alleged or proved that any of the appellants had personally struck the fatal blow. The deceased had been stabbed three times. The appeal was in relation to the jury direction. The person who had inflicted the fatal wounds had probably not been apprehended. The prosecution alleged that the appellants had a common intention for the infliction of serious bodily harm and they had all known that baseball bats, poles and knives might be used. The appeals were dismissed. The House of Lords held that the test of an accessory’s liability for an unlawful killing was his foresight of what the principal might do, not of the intention with which his act might be performed.
R v Rahman & Ors [2008] UKHL 45
Notices & notes
Commerce Commission seeks leave to appeal in NZ Bus/Mana Coach Services case
The Commerce Commission is seeking leave to appeal to the Supreme Court against the Court of Appeal decision dismissing a claim for liability against Infratil Limited. (New Zealand Bus Ltd & Anor v Commerce Commission [2008] NZCA 502)
CAB volunteers needed urgently
Both the New Lynn and Avondale Citizens Advice Bureaus are so short of volunteer lawyers for the legal rosters they are unable to continue to offer a service. New Lynn CAB operates on a Thursday
evening from 5.30pm to 7pm and Avondale operates on a Saturday morning from 9.30am to 11am. Lawyers who can volunteer to assist at the bureaus should contact Mr Thomas tel: 09 827
5907
Appointments to Securities Commission and Takeovers Panel
Appointments to the boards of two independent Crown entities, the Securities Commission and the Takeovers Panel have been announced. Keitha Dunstan and Mai Chen have been reappointed as members of the Securities Commission. Colin Giffney has been appointed as the Takeovers Panel Deputy Chair-elect and Peter Scott as a Panel member, cross-appointed from Australia..
Australian constitutional specialist lecturing
How far should courts be guided by foreign law when deciding constitutional rights cases? This issue will explored by Professor Adrienne Stone at a public lecture at The University of Auckland Law School on 23 July. She will talk on "Interpreting rights in a globalised world: Some cautious words of praise for comparativism".
Recommendations for updates to privacy law
The Privacy Commissioner has released a report that proposes new means to protect privacy. The report surveys developments internationally and in New Zealand over the last four years to update earlier recommendations to the Minister of Justice for modernising New Zealand’s privacy law. .
Immigration policy changes
A number of changes to temporary entry policy and residence policy will come into effect on 28 July 2008.
Deemed rate of return set
The deemed rate of return for taxing foreign investment fund interests has been set at 10.87% for the 2007-08 income year, up from 10.27% for 2006-07..
Department of Corrections' Strategic Business Plan
The Strategic Business Plan outlines what is going to be important to the Department of Corrections over the next five years, and sets priorities for what it will do and how it will work.
Election of the 2008 - 2009 NZBA Council
Nominations close 5.00pm on Friday, 18 July 2008. Nominators and nominees must be financial members of the New Zealand Bar Association.
Bell Gully Regulator Report
The Bell Gully Regulator Report lists recent changes, decisions and developments at the main New Zealand corporate, commercial and competition regulatory bodies and also lists relevant updates from the Australian Competition and Consumer Commission. (3 July 2008)
Minter Ellison's Competition update
Minter Ellison looks at the significant developments in NZ merger control so far this year.
UK Confidential - essays on privacy
These fourteen essays "explore the underlying challenges and realities of privacy in an open society, and argue for a new settlement between the individual and society; the public and the states; the consumer and business.".
Chinese walls
The world’s fourth-largest economy is gradually liberalising its legal services market, but significant obstacles remain. (Law Society Gazette).
Land Transport Management Amendment Bill third reading
The Land Transport Management Amendment Bill received its third reading in Parliament on 3 July 2008. Royal Assent is expected to be given in July, with the Act commencing 1 August 2008.
Arbitrators' and Mediators' Institute of NZ Conference
1-3 August 2008 - Montana Brancott Winery, Blenheim, Marlborough, New Zealand.
Justice Goddard to give Ethel Benjamin address
Dunedin Art Gallery at 12.30pm for a 1pm start on Thursday 14 August.
New Zealand Governance Centre Inaugural Conference
Friday, 15 August and Saturday, 16 August 2008
The Legal Research Foundation is offering its support to this inaugural conference hosted by the New Zealand Governance Centre.The New Zealand Governance Centre has been established as an interdisciplinary Centre that will undertake and promote research in governance including corporate governance, the governance of small and medium sized enterprises, and not for profits, Maori governance, and leadership.
1st New Zealand Bar Association International Conference
The 2008 New Zealand Bar Association Annual Conference will be held in Sydney this year, the weekend of Friday 15 and Saturday 16 August 2008. The Bar Association plans an exciting programme with input from the New South Wales Bar Association. The theme of the conference is A Global Approach to Law – Life as a Barrister in the 21st century.
Twenty years on from the Cartwright Report
Key figures involved in the cervical cancer inquiry will speak at a forthcoming conference marking the twentieth anniversary of the Cartwright Report. The one-day conference, "Twenty years after the Cartwright Report: What have we learned?", will be hosted by the Faculty of Law at The University of Auckland and held at the Hyatt Regency on 29 August.
St Thomas More dinner
The annual St Thomas More Dinner is to be held at the Northern Club, Princes St, Auckland on Wednesday 10 September 2008.
The speaker is Patrick McClure, currently a director of Macquarie Bank Australia and previously the chief executive of Mission Australia, formerly Sydney City Mission. A booking form may be obtained from Bernard Smith.
IBA conference 2008
Buenos Aries 12-17 October
Early bird registrations close on 25 July 2008.
21st LawAsia Conference 2008
29 Oct - 1 Nov 2008, Kuala Lumpur Convention Centre
Judges, lawyers, academics and others interested in legal issues affecting the Asia Pacific region are invited to attend LAWASIA’s premier conference.
In the news...
Scott-Howman, Andrew "The whistleblower and religious devotion" discusses Stiekema v Centurion Management Services Limited (Employment Relations Authority, Auckland, 3 December 2007). Also in The Independent 10 July 2009 p27
"Action against Blue Chip solicitors" The New Zealand Herald, 9 July 2008
"Suspended jail term given over Stiassny internet postings" The New Zealand Herald, 9 July 2008
"Online privacy fight begins in US Senate - Google, Microsoft, Facebook face grilling" The New Zealand Herald, 9 July 2008
Internet sites
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