Whiteboard for 6 November 2008
Recent cases
LAND LAW - appeal concerned failed application under s60 Property Law Act 1952 to have transfer of Mr Lightbody's half interest in house property, to a family trust, set aside - in 1995 Mr Lightbody became personally liable for debts of his jewellery business (Capro Three Ltd) to its major supplier, Regal Castings Ltd – Regal agreed to convert Capro's indebtedness into a term loan and conditionally wrote off interest then accrued – it was further agreed that term loan would be paid by monthly instalments with balance to be paid at conclusion of 5 years – Mr Lightbody accepted personal liability for term loan and Regal continued to make supplies which Capro needed in order to continue its business – Capro duly made monthly payments, but fell into arrests on its current account with Regal – in 1998, without notifying Regal, Mr and Mrs Lightbody transferred their house, their only substantial asset, to a family trust in respect of which they, and a solicitor, were trustees – transfer was in exchange for an unsecured acknowledgement of indebtedness, equal to amount of purchase price, payable 7 years later – trustees became registered as proprietors of property under Land Transfer Act 1952 - over next 4 years Mr and Mrs Lightbody gradually forgave the debt, beginning with a gift on day of transfer – during that time Capro continued to trade with Regal, substantially reducing amount of original indebtedness – however, Capro eventually went into voluntary liquidation, still owing Regal a large sum of money, including part of term loan – My Lightbody was later made bankrupt
Whether transfer of house to trustees should, and could, be set aside on an application by Regal under s60 Property Law Act 1952 – whether Mr Lightbody’s transfer of joint interest in house property was, in terms of s60(1), an alienation with intent to defraud creditors - whether property interest was received by trustees in good faith without knowledge, at that time, of any intent to defraud – whether, in any event, indefeasibility provisions of Land Transfer Act precluded making of order sought by Regal, in absence of any application by OA – rule laid down in Freeman v Pope, discussed – position of volunteers and concept of indefeasiblity, considered – invocation of the in personam "exception" to indefeasibility, examined
HELD: expression "intent to defraud" in s60(1) had been regarded as shorthand for intent to hinder, delay or defeat a creditor, in exercise of any right of recourse of the creditor, in respect of property of the debtor - this was how concept was now expressed in s345(1)(a) Property Law Act 2007 – given background, including absence of any mention to solicitor trustee, at time of transfer, that there was a major overdue debt owing to Regal, conclusion reached that real reason for transfer was to protect house against a claim by Regal, in the event Capro collapsed – this was not a bona fide family arrangement – it was intended to protect house against Regal; to hinder or defeat its right of recourse to house – arrangement created an inevitable and significant risk for Regal – accordingly transfer must be characterised as having been made with fraudulent intent in terms of s60 – Regal had an in personam claim in respect of interest which Mr Lightbody transferred to himself and his co-trustees – Mr Lightbody's knowledge tainted the receipt by trustees of the property – taking property as joint tenants, trustees must be treated as one purchaser who had knowledge of intent to defraud – clearly, Regal had a cause of action against trustees, namely the right to pursue its s60 application – there was nothing inconsistent with the Torrens system in upholding an in personam claim, in these circumstances, against the registered interest of trustees as successors to Mr Lightbody – necessary elements of in personam jurisdiction were satisfied – appeal allowed – declaration made that trustees held a one-half share of their interest in property, upon trust for Official Assignee of estate of Mr Lightbody, to be dealt with by Assignee for benefit of Mr Lightbody’s creditors – trustees were ordered to transfer, to OA, a one-half share in the property subject to mortgage to ANZ National Bank Ltd.
Regal Castings Ltd v Lightbody & Ors (SC 72-2007, 23 October 2008)
From the Times
TORTS - REMEDIES - The CA held that an account of profits cannot be awarded for a claim based on a non-proprietary tort. The Commission of the European Communities found that the defendants had entered into illegal cartels. The claimant issued follow-on proceedings having purchased products from the defendants. On appeal, Devenish Nutrition Ltd sought to set aside the decision of Lewison J on a preliminary point of law and to establish the principle that in an action for breach of statutory duty the court can in appropriate circumstances make a restitutionary award, (i.e. a sum of money assessed by reference to the gain which the wrongdoer has made as a result of the wrong, in place of compensatory damages, that is, damages which compensate the claimant for loss suffered as a result of the wrongdoing.)
Devenish Nutrition Ltd v Sanofi-Aventis SA (France) & Others [2008] EWCA Civ 1086
Notices & Notes
Cloud computing and Privacy - the latest Technology and Privacy Forum
The Office of the Privacy Commissioner invites you to a forum where Natahan Torkington explores they the web meests the world and the privacy problems involved. Thursday, 20th November 2008 12.30 – 1.30 pm. Seminar Rooms 1 & 2, Ground Floor, KPMG Centre, 18 Viaduct Harbour Avenue, Auckland
KPMG have sponsored tea and coffee - please feel free to bring your own packed lunch.
To reserve a place, please contact Amir Shrestha, +64 9 302 8680 Pleases RSVP by no later than 15th November 2008..
RAMs Christmas drinks
Recently Admitted Members Christmas drinks are to be held on 4 December 2008, at Seba Bar, Fort Street from 5:30pm.
There is not charge.
Please RSVP to Eileen Yee.
Property rights and sustainability - call for papers
The University of Auckland Faculty of Law and the New Zealand Centre for Environmental Law (NZCEL) will host a conference on property rights and sustainability on 16-18 April 2009 in Auckland. The conference will bring together leading academics, judges, government officials, policy analysts and practitioners to examine the future of property rights within the context of sustainable development.
Brooker's Environmental Law - Top Cases of 2008 and Meet the Judges
This after work seminar provides the ideal opportunity to hear from leading Environmental Law experts, including the Honourable Peter Salmon QC and Judge Bollard, on the top cases, legislative developments, resource management and environmental law issues for 2008
Wednesday, 12 November 2008 - Norman Shieff Room & Roof Garden, Chancery Chambers, 2- 8 Chancery Street, Auckland.
New Resource Management Law Assoc. branch
If you live in Tauranga, Whakatane or Rotorua, you can now belong to the newly formed RMLA Bay of Plenty Branch. It is holding its inaugural event on Tuesday 18 November 2008. Dr Jan Wright, Parliamentary Commissioner for the Environment, will talk about the challenges of her role and share "environmental questions" to which she would dearly like answers. The Tauranga Club, Hotel on Devonport, Devonport Road, Tauranga.
New practice guidelines for patents
A new online facility for filing patent applications will be introduced in early November 2008. IPONZ have updated its practice guidelines to reflect the enhancements that the new facility will provide.
Ngati Rangitihi signs up to the Central North Island Forests Land Collective
Representatives of Ngati Rangitihi have signed a Deed of Accession that formalises the iwi as a member of the Central North Island Forests Land Collective.
Brookers McGechan on Procedure seminar
The Judicature (High Court Rules) Amendment Act 2008 was assented on 25 September 2008 and comes into force on 1 February 2009. The Act introduces some substantive changes to the High Court Rules such as freezing orders and search orders. E-filing will come into force at a later date by order in council.
Wellington 26 November 2008 5.30 - 8.30pm and Auckland 3 December 2008 5.30 - 8.30pm.
Commerce Commission consults on telecommunications market monitoring reports
The Commerce Commission is seeking feedback on its quarterly and annual telecommunications market monitoring reports. These reports aim to give a broad indication of what progress has been made towards achieving competitive prices for telecommunications services.
BlackBerry 101: The Hidden Essentials
Dan Pinnington (Law practice magazine) writes: You can do much more with your BlackBerry by learning a few extra keystroke combinations and digging a little deeper into the device’s range of functions. Here is a plethora of shortcuts and other pointers to help you get the most bang from your favorite device.
New Zealand Pegasus Scholarship Programme 2009
The Pegasus Scholarship Trust offers the opportunity for two New Zealand litigation practitioners, who have been in practice for not more than five years, as at the 1st February 2009, to work in barristers’ chambers in London for a period of 6 weeks. Applications close 14 November 2008.
2008 NZLS Legal Challenge
This annual 5 km road race is run as part of the Push Play Corporate Challenge held in November. The Auckland race, held in the Domain, will be run on Wednesday evening 19 November with a start time of 6.30pm.
The Role of Experts in Construction Disputes
Society of Construction Law Inc Presents: The Role of Experts in Construction Disputes. The Hon Justice Heath will be speaking on the role of experts in construction disputes.
Auckland 26 November 2008.
AMINZ Mediation Forum - Auckland
Wednesday 26th November 2008 9:30am to 3:00pm
The Forum format will provide you with discussion and advice on current topics relating to your everyday practice. The interactive forum will provide people working in the area of mediation with an opportunity to deal with difficult issues they encounter..
In the news
Gibson, Anne "Unwilling buyers face court action from Whisper Cove receiver" The New Zealand Herald, Thursday 6 November 2008.
"Challenge to leaky homes ruling" The New Zealand Herald, Wednesday 5 Nov 2008 discusses Body Corporate No 195843 & Ors v North Shore City Council & Ors (HC, Auckland, CIV-2006-404-001055,1 Oct 2008, Andrews J) .
"Watson: Case 'dissolved'" The New Zealand Herald, Sunday 2 Nov 2008.
"Medals lawyer to fight crown plans to make him a witness" The New Zealand Herald, Friday 31 October 2008.
Regulation summary
Marine Mammals Protection (Banks Peninsula Sanctuary) Amendment Notice (No 2) 2008 (SR 2008/429)
In force 7 November 2008
Securities Act (Overseas Employee Share Purchase Schemes) Exemption Amendment Notice (No 3) 2008 (SR 2008/428)
In force 7 November 2008
Gas Governance (Compliance) Amendment Regulations 2008 (SR 2008/427)
In force 4 December 2008
Gas Governance (Critical Contingency Management) Regulations 2008 (SR 2008/426)
In force 4 December 2008 except Parts 3 and 4
Major Events Management Regulations 2008 (SR 2008/425)
In force 7 November 2008
Central North Island Forests Land Collective Settlement Act Commencement Order 2008 (SR 2008/424)
Parts of the Central North Island Forests Land Collective Settlement Act 2008 come into force on 31 December 2008.
Public Lending Right for New Zealand Authors Regulations 2008 (SR 2008/423)
In force 1 January 2009.