Chief Executive of the Department of Internal Affairs v NZ Trustees Association Charitable Trust
[2019] NZHC 2684
•21 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-2464
[2019] NZHC 2684
BETWEEN CHIEF EXECUTIVE OF THE
DEPARTMENT OF INTERNAL AFFAIRS
PlaintiffAND
NZ TRUSTEES ASSOCIATION CHARITABLE TRUST
First Defendant
ERROL BRUCE ANDERSON
Second Defendant
Hearing: 5 September 2019 (further evidence received on 4 October 2019 and further memorandum received on 10 October 2019) Appearances:
J Parry for Plaintiff
No appearance for First Defendant Second Defendant in person
Judgment:
21 October 2019
JUDGMENT OF LANG J
[on application seeking pecuniary penalties and order for enforcement of undertaking]
This judgment was delivered by me on 21 October 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
CHIEF EXECUTIVE OF THE DEPARTMENT OF INTERNAL AFFAIRS v NZ TRUSTEES ASSOCIATION CHARITABLE TRUST [2019] NZHC 2684 [21 October 2019]
[1] The first defendant, NZ Trustees Association Charitable Trust (NZTA), was incorporated as a charitable trust on 27 May 1997. It was then registered as a charitable entity with the Charities Commission from 18 September 2007 until being deregistered at its own request on 30 May 2016.
[2] NZTA provides services to estates, boards of trustees and directors, foundations, trusts and other fiduciary enterprises. These consist of advice and information regarding the manner in which such entities should appropriately carry out their functions and duties.
[3] At all material times the second defendant, Mr Errol Anderson, was a founding trustee and the Registrar of NZTA.
[4] The functions formerly carried out by the Charities Commission were transferred to the plaintiff on 1 July 2012. It is now responsible for overseeing the activities of entities such as NZTA.
[5] During 2018 the Department of Internal Affairs (DIA) received complaints from entities who said they had received unsolicited emails from NZTA. After investigating these complaints the DIA concluded NZTA, assisted by Mr Anderson, was breaching its obligations under the Unsolicited Electronic Messages Act 2007 (the Act) by sending unsolicited messages electronically to entities it considered might be interested in becoming members of NZTA and utilising its services.
[6] The DIA subsequently entered into a written agreement known as an Enforceable Undertaking with NZTA and Mr Anderson on 13 August 2018. Under this agreement NZTA and Mr Anderson agreed they would not send out unsolicited emails in the future. The DIA contends the respondents subsequently breached the terms of the undertaking by sending further unsolicited emails to several entities and organisations in September 2018.
[7] The DIA now seeks an order under s 35 of the Act directing the respondents to comply with the terms of the undertaking in the future. It also seeks pecuniary penalties against both respondents in relation to the events that led to the undertaking being signed.
Background
[8] The facts on which the Court is required to determine these issues are contained in a document headed “Agreed Facts” and signed by the parties on 4 and 5 September 2018. This records that NZTA advertises its services on the website It also controls the email account [email protected]. NZTA renders membership subscriptions to trustees, directors, executives, administers corporate bodies and individuals who wish to take advantage of the services it offers.
[9] Between October 2015 and March 2018 NZTA offered up to seven different types of membership subscriptions to its members. In return it offered services to its members in the form of website listings, subsidised annual financial reviews, support services for board members, automatic affiliation of website listing with the Australian Trustee Association, and access to an 0800 number and email helpdesk. Members also received a bulletin published by NZTA under the name “Estate and Trust Bulletin”.
[10] The issues that led to the present proceeding appear to have begun at the Annual General Meeting held by NZTA on 2 October 2015. The minutes of that meeting record the following issue being discussed:
4. Donation of Membership to Charities: Errol Anderson said that the Trustees Association had been offered the opportunity to reach a substantial number of charities by a 3rd party email service. Errol said that if only 3% of the 26,000 of charities in New Zealand were received the Donation of membership then the Trustees Association membership would increase substantially and the sector would benefit. Council agreed in principle that the Donation by email had merit and the project was to proceed with a report back to Council on progress. EA to action.
[11] The DIA learned that between October 2015 and March 2018 NZTA, prompted by Mr Anderson, was responsible for eight separate events or incidents in which it sent out unsolicited emails to a large number of entities and organisations in breach of the Act. In total the DIA received 105 complaints from 78 separate entities in relation to these events.
[12] Emails sent on 14 October 2015 and 1 April 2016 contained an offer of 12 months free membership of NZTA. Thereafter an annual membership fee would be payable if the recipients did not opt out of the scheme. Emails sent on 31 March 2016 and between 16 and 21 March 2018 attached invoices for membership subscriptions to the recipients of earlier emails who had not opted out. Emails sent in
November 2015, January 2016, February 2016 and April 2016 attached NZTA’s
publication Estate and Trust Bulletin.
[13] The Agreed Facts record that NZTA sent a total of approximately 53,000 unsolicited emails to recipients during this period. They also confirm that the unsolicited emails resulted in NZTA receiving subscription payments totalling at least
$48,562. Furthermore, the emails that it sent out in March 2018 post-dated the DIA notifying NZTA that it would be in breach of its obligations under the Act if it sent out further unsolicited emails.
The statutory regime
[14]Section 3 of the Act describes the purposes of the Act as follows:
3 Purposes of this Act
The purposes of this Act are to—
(a)prohibit unsolicited commercial electronic messages with a New Zealand link from being sent, in order to—
(i) promote a safer and more secure environment for the use of information and communications technologies in New Zealand; and
(ii) reduce impediments to the uptake and effective use of information and communications technologies by businesses and the wider community in New Zealand; and
(iii) reduce the costs to businesses and the wider community that arise from unsolicited commercial electronic messages; and
(b)require commercial electronic messages to include accurate information about the person who authorised the sending of the message and a functional unsubscribe facility in order to enable the recipient to instruct the sender that no further messages are to be sent to the recipient; and
(c)prohibit address-harvesting software or a harvested-address list from being used in connection with sending unsolicited commercial electronic messages in contravention of this Act; and
(d)deter people from using information and communications technologies inappropriately.
[13] Section 9 of the Act prohibits the sending of unsolicited commercial electronic messages:
9 Unsolicited commercial electronic messages must not be sent
(1)A person must not send, or cause to be sent, an unsolicited commercial electronic message that has a New Zealand link.
(2)If a recipient uses an unsubscribe facility in accordance with section 11(1)(a), the recipient's consent to receiving a commercial electronic message from the sender is deemed to have been withdrawn with effect from the day that is 5 working days after the day on which the unsubscribe facility was used.
(3)A person who contends that a recipient consented to receiving a commercial electronic message has the onus of proof in relation to that matter.
[14] Section 6 of the Act provides the following definition of “commercial electronic message”:
For the purposes of this Act, commercial electronic message—
(a)means an electronic message that—
(i) markets or promotes—
(A)goods; or
(B)services; or
(C)land; or
(D)an interest in land; or
(E)a business or investment opportunity; or
(ii) assists or enables a person to obtain dishonestly a financial advantage or gain from another person; or
(iii) provides a link, or directs a recipient, to a message that does 1 or more of the things listed in subparagraphs (i) and (ii); but
…
It is common ground that all of the emails sent by NZTA constituted commercial electronic messages in terms of this definition.
[15] Section 4 of the Act defines the term “unsolicited commercial electronic message” as meaning a commercial electronic message that the recipient has not consented to receiving. The term “consented to receiving” is in turn defined by s 4 of the Act as follows:
consented to receiving—
(a)means—
(i) express consent, whether given by the relevant electronic address-holder or any other person who uses the relevant electronic address; or
(ii) consent that can reasonably be inferred from—
(A)the conduct and the business and other relationships of the persons concerned; and
(B)any other circumstances specified in the regulations; or
(iii) consent that is deemed to have been given when the following circumstances apply:
(A)an electronic address has been conspicuously published by a person in a business or official capacity; and
(B)the publication of the address is not accompanied by a statement to the effect that the relevant electronic address- holder does not want to receive unsolicited electronic messages at that electronic address; and
(C)the message sent to that address is relevant to the business, role, functions, or duties of the person in a business or official capacity; but
(b)does not include the circumstances specified in the regulations from which consent cannot be inferred
[16] The Act imposes sanctions for “civil liability events”. Such events include the sending of unsolicited commercial electronic messages, the sending of such messages with inaccurate sender information or the sending of such messages that fail to contain a functional unsubscribe facility.1
[17] The primary sanctions sought in the present case are pecuniary penalties under s 45 of the Act. The Court has the power to order a pecuniary penalty not exceeding
$200,000 in the case of an individual and not exceeding $500,000 in the case of an organisation.2
1 Unsolicited Electronic Messages Act 2007, s 18.
2 Sections 45(3) and (4).
A Application for pecuniary penalty
Approach
[18]Section 45 of the Act provides as follows:
45 Pecuniary penalties for civil liability event
(1)On the application of the enforcement department, the Court may order a person (the perpetrator) to pay a pecuniary penalty to the Crown, or any other person specified by the Court, if the Court is satisfied that the perpetrator has committed a civil liability event.
(2)Subject to the limits in subsections (3) and (4), the pecuniary penalty that the Court orders the perpetrator to pay must be an amount which the Court considers appropriate taking into account all relevant circumstances, including—
(a) the number of commercial electronic messages sent:
(b) the number of electronic addresses to which a commercial electronic message was sent:
(c) whether or not the perpetrator has committed prior civil liability events.
(3)If the perpetrator is an individual, the Court may order the perpetrator to pay a pecuniary penalty not exceeding $200,000 in respect of the civil liability events that are the subject of the enforcement department's application.
(4)If the perpetrator is an organisation, the Court may order the perpetrator to pay a pecuniary penalty not exceeding $500,000 in respect of the civil liability events that are the subject of the enforcement department's application.
[19] It is now well established that in fixing a pecuniary penalty under s 45 of the Act the Court adopts broadly the same approach as is taken when fixing pecuniary penalties under the Commerce Act 1986.3 This requires the Court to apply the so- called Taueki methodology which is used in fixing sentences in criminal cases.4 Under this approach the Court first fixes the starting point for the penalty to be imposed having regard to the overall culpability of the transgression but leaving to one side factors personal to the perpetrator. The Court then increases the starting point to reflect
3 Chief Executive of the Department of Internal Affairs v Mansfield [2013] NZHC 2064 at [63]; Chief Executive of the Department of Internal Affairs v Image Marketing Group Ltd [2014] NZHC 139 at [5] and [26].
4 R v Taueki [2005] 3 NZLR 372 (CA).
aggravating factors personal to that party. These include factors such as whether the perpetrator has been guilty of similar conduct on previous occasions. The third and final step is to reduce the adjusted starting point to reflect mitigating factors personal to the perpetrator. These include factors such as whether there has been co-operation with the DIA’s investigation and an acknowledgement of responsibility.
NZTA
Starting point
[20] In the present case the DIA submits several factors inform the starting point to be selected for the pecuniary penalty to be imposed on NZTA. First, the conduct occurred on eight separate occasions. Secondly, it involved sending more than 53,000 unsolicited emails to at least 14,698 recipients. In all likelihood, however, the emails were sent to many more recipients than this. The respondents obtained the addresses of these recipients from the website formerly operated by the Charities Commission.
[21] Next, NZTA received a direct benefit in the sum of at least $48,562.20 as a result of the unsolicited emails. Finally, the last set of unsolicited emails was sent at a time when NZTA knew its conduct was under scrutiny by the DIA.
[22] There is a dispute regarding the culpability attaching to two of the events, both of which involved NZTA sending out approximately 14,500 unsolicited emails on 31 March and 1 April 2016. Mr Anderson explains that NZTA mistakenly sent out invoices by email and then retracted the invoices and apologised to the email recipients the next day.
[23] Section 12(1)(a) of the Act provides that it will be a defence to an alleged breach of s 9 of the Act where an unsolicited message is sent by mistake. The onus is on the sender of the message to establish it was sent by mistake.5 In the circumstances of the present case I am prepared to accept Mr Anderson’s explanation as to what occurred in March 2016 because it is highly unlikely that NZTA would have sent out a retraction and apology within 24 hours if it had not sent the invoices out by mistake.
5 Unsolicited Electronic Messages Act 2007, s 12(2).
Although both these events resulted in recipients receiving unsolicited emails I do not consider they should be taken into account in assessing the pecuniary penalty to be imposed. It follows that the penalty should only reflect the fact that NZTA sent out at least 24,000 unsolicited emails.
[24] Mr Anderson also points out that NZTA has been providing services to clients for approximately 20 years. As a result, its activities began well before the Act was passed. He argues that many of the persons or entities to whom unsolicited emails were sent have acquiesced to a large extent because they began receiving unsolicited communications many years ago and they have not taken active steps to stop it occurring or to complain about NZTA’s activities.
[25] I accept this argument as far as it goes, but NZTA has been on notice for some time now that the onus of ensuring clients consent to receiving NZTA’s communications is on NZTA and not its clients.
[26] There is a limited body of case law available to assist in selecting the starting point given the factors I have identified. At the lower end of the scale is the starting point selected by Judge Blackie in Department of Internal affairs v Aksentijevic.6 In that case the respondent had sent 2,230 unsolicited commercial emails, some of which were abusive in tone. There was no evidence the respondent had derived any commercial gain from the emails. The Judge selected an initial starting point of
$10,000 and increased it by $2,000 to reflect the fact that some of the emails were abusive.
[27] In Chief Executive of the Department of Internal Affairs v Atkinson, the respondent recruited salespersons to conduct a sales campaign involving the use of more than two million unsolicited emails to a large number of New Zealand recipients.7 The campaign generated total sales of approximately $1.6 million, of which the respondent retained a margin. The emails also breached the Act because they did not include accurate sender information and failed to contain a functional
6 Department of Internal Affairs v Aksentijevic [2015] DCR 117 (DC).
7 Chief Executive of the Department of Internal Affairs v Atkinson HC Christchurch CIV 2008-409- 2391, 19 December 2008.
unsubscribe facility. The respondent’s culpability lay in the fact that he recruited the salespersons and provided them with the necessary means of sending the unsolicited emails. This included the provision of domain names, html templates for products to be sold and alternative subject lines for use in the emails. French J observed that the scale of the offending warranted a starting point “at the top of the range for those who were behind the operation”.8 A discount was required, however, to reflect the fact that the activity had commenced at a time when it was not illegal to send unsolicited emails and the respondent had cooperated with the DIA from an early stage. Taking those factors into account the Judge imposed a pecuniary penalty in the sum of $100,000.
[28] Starting points for the other two respondents in the Atkinson proceeding were subsequently fixed at $100,000 and $50,000 respectively.9 The latter reflected the markedly reduced involvement of that respondent in the activities giving rise to the proceeding.
[29] In Chief Executive of the Department of Internal Affairs v Mansfield, the respondent was responsible for conducting at least 15 email marketing campaigns in each of which between 10,000 and 80,000 unsolicited emails were sent out to a large number of email addresses over a six month period.10 The emails were sent using a database that contained between 66,809 and 80,705 email addresses at any given time. Although the respondent undoubtedly received a financial benefit as a result of the campaigns it was impossible to accurately quantify that figure.
[30] In fixing the starting point Wylie J observed that the analogy with sentencing in criminal cases could only be taken so far.11 The overriding objective of a pecuniary penalty is deterrence to both the transgressor and others who might seek to breach the requirements of the Act for commercial gain. Deterrence is achieved by imposing penalties designed to remove the financial gain that was obtained by, or could reasonably have been obtained from, the breach of the requirements of the Act. Taking
8 At [20].
9 Chief Executive of the Department of Internal Affairs v Atkinson HC Christchurch CIV 2008-409- 2391, 27 October 2009.
10 Chief Executive of the Department of Internal Affairs v Mansfield, above n 3.
11 At [65].
into account the factors to which I have referred Wylie J selected a starting point of
$100,000.
[31] In Chief Executive of the Department of Internal Affairs v Image Marketing Group Ltd, the respondent sent no fewer than 44,824 unsolicited text messages over a two month period in 2009 to cellphones connected to networks operated by the two major New Zealand service providers.12 The text messages sought to promote the sale of a product. They also breached the requirements of the Act in that they failed to contain a functioning unsubscribe facility and did not include accurate sender information. Over a nine month period during 2010 the respondent then conducted 21 advertising campaigns in which emails were sent to computers connected to the internet in New Zealand. There was no evidence adduced as to the profit these activities had generated. Peters J approved a starting point in that case of $120,000.
[32] In the present case the DIA contends a starting point of $60,000 is appropriate for NZTA. Mr Anderson is unable to speak for NZTA because he has no right of audience to speak on its behalf and NZTA has not instructed counsel to represent it in this proceeding. It is clear from the material before the Court, however, that NZTA is opposed to any pecuniary penalty being imposed.
[33] I would describe NZTA’s transgressions as being moderately serious, with the most serious aspect being the repeated conduct and the significant number of recipients who received unsolicited emails. The fact that the final activity occurred after NZTA knew the DIA was investigating its conduct also makes that particular activity more serious. I view the overall culpability of NZTA’s conduct as being significantly less than that of the respondents in Atkinson, Mansfield and Image Marketing Group. It is clearly greater, however, than that of the respondent in Aksentijevic.
[34] I consider the starting point of $60,000 suggested by the DIA to be too high once the two events that occurred at the end of March 2016 are removed from the equation. I consider an appropriate starting point to be $45,000.
12 Chief Executive of the Department of Internal Affairs v Image Marketing Group Ltd, above n 3.
Aggravating factors
[35] I see no basis on which to uplift the starting point to reflect aggravating factors personal to NZTA because it has never been subject to similar proceedings in the past. Furthermore, I do not propose to increase the starting point to reflect the fact that I propose to make an order under s 35(2) of the Act requiring NZTA and Mr Anderson to abide by the enforceable undertaking in the future. If they fail to abide by this order the DIA can seek further pecuniary penalties not only in relation to future breaches but also the breach that occurred in September 2018. This provides NZTA greater incentive to abide by the Enforceable Undertaking.
Mitigating factors
[36] NZTA is entitled to credit for accepting responsibility for its actions and co- operating in the creation of the Agreed Facts. Furthermore, NZTA has not contested the present proceeding. The credit to be given for these factors is tempered, however, by the fact that NZTA breached the requirements of the Act again in September 2018. It is also clear that the DIA’s investigation has resulted in a fraught relationship between NZTA and the DIA.
[37] Another mitigating factor may be the steps taken by the transgressor to ensure no further breaches will occur in the future. This is equivalent to the credit given in a criminal proceeding to an offender who has undertaken rehabilitative steps since the offending occurred. At the hearing I gave Mr Anderson the opportunity to file a further affidavit setting out the steps NZTA has taken to ensure it will not breach the Act in the future. As the DIA points out, this amounted to an indulgence given the fact that Duffy J essentially gave NZTA the same opportunity at a conference held in November 2018.
[38] Mr Anderson has now filed and served an affidavit containing the following information;
2.1STEP 1:
In March 2018 we contacted subscribers requesting that they respond for UEM Act email opt-in purposes by one of the following ..
i)confirming their email address for correspondence
ii)amending their email address for correspondence
iii)unsubscribing
iv)having their record deleted entirely
2.2STEP 2:
Following the Hearing held with Duffy J 29 November 2018, we posted a Red Letter to subscribers with the 2018 Christmas Calendar stating UEM Act requirements for email opt-in correspondence and requesting that subscribers contact our secretariat in Auckland by phone to confirm their opt-in status. A selection of around 100 of those opt-in records has been supplied to the Court and to the plaintiff within XL form.
2.3STEP 3:
We have ceased emailing any correspondence to all non-paying subscribers who have not yet opted-in, understanding that where charities have an income/expenditure of less than $20,000 we were providing free email subscription, which unfortunately for those charities we have ceased.
2.4STEP 4:
We will be posting another Red Letter, with the 2019 Christmas Calendar requesting that non-paying subscribers who have not yet confirmed opt-in status do so by one of the following..
i)go to webpage Opt-In.html
ii)email [email protected] with your details
[39] The DIA has not filed any further evidence in response to Mr Anderson’s affidavit. Instead it has responded by memorandum in which its counsel submits that NZTA has not substantiated Mr Anderson’s claims in relation to Steps 1 and 2. The DIA points out that Step 3 merely reflects compliance with the requirements of the Act and the enforceable undertaking. The DIA accepts that Step 4 may amount to a valid means of establishing the validity of NZTA’s client list but points out that the step has not yet been taken and Mr Anderson has given very little detail of the process to be followed.
[40] I accept the points that the DIA makes but I consider some credit should be given for the steps NZTA has taken or proposes to take. Whether they are sufficient to prevent further breaches occurring obviously remains to be seen.
[41] I propose to allow a credit of 20 per cent, or $9,000, to reflect mitigating factors.
Result
[42]NZTA will be required to pay a pecuniary penalty of $36,000.
Mr Anderson
[43] The DIA seeks a pecuniary penalty against Mr Anderson on the basis that he has aided and encouraged NZTA to breach the Act. It clearly views him as being the person largely if not wholly responsible for causing NZTA to breach the Act.
[44] I accept that the evidence establishes Mr Anderson has been largely responsible for NZTA’s actions. Three factors suggest, however, that any penalty to be imposed on him should be less than $20,000 as sought by the DIA. First, the number of unsolicited messages to be taken into account has now reduced from that originally relied on by DIA. Secondly, Mr Anderson has not gained personally from the transgressions that have occurred. Any financial benefit has accrued to NZTA. Thirdly, Mr Anderson was not the only person who made the original decision to send out unsolicited messages on a widespread basis. His co-trustees were at least complicit in making that decision even though it appears that Mr Anderson is the person who has been largely responsible for implementing it. Taking these factors into account I consider an appropriate starting point for Mr Anderson is $10,000. This should be reduced by 20 per cent to reflect the mitigating factors to which I have already referred.
[45] Mr Anderson will therefore be required to pay a pecuniary penalty in the sum of $8,000.
B Order under s 35 of the Act
[46] Section 34 of the Act provides for enforceable written undertakings to be given in connection with the sending of commercial electronic messages. Section 35 provides remedies for any breach of an enforceable undertaking entered into under s 34:
35 Enforcement of undertakings
(1)If the enforcement department considers that a person who gave an undertaking under section 34 has breached 1 or more of its terms, the enforcement department may apply to the Court for an order under subsection (2).
(2)If the Court is satisfied that the person has breached 1 or more of the terms of the undertaking, the Court may make any or all of the following orders:
(a) an order directing the person to comply with the relevant terms of the undertaking:
(b) an order directing the person to pay to the enforcement department an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach:
(c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach:
(d) any other order that the Court considers appropriate.
[47] The enforceable undertaking signed by the parties in the present case has the following key terms:
7.1 NZTA and Mr Anderson undertake that they will not send, or cause to be sent, commercial electronic messages to any email addresses with a New Zealand link without obtaining prior consent. Such consent must comply with the definition of consent under section 4(1) of the Act.
7.2 NZTA and Mr Anderson agree to provide evidence establishing the consent to receive commercial electronic messages from any intended recipients of any future email campaigns, either before any further email campaigns are sent, or by 1 October 2018, whichever is earlier.
7.3 NZTA and/or Mr Anderson will provide to the Department details of the technical measures it has implemented within the organisation and the policies it has applied to ensure to the satisfaction of the Department that the approximately 14,698 recipient email addresses identified during the course of the investigation will not receive future commercial electronic messages from NZTA that contain invoices for membership to NZTA, unless NZTA have demonstrated to the Department that that recipient is a member of NZTA.
[48] The DIA contends that NZTA breached the terms of the undertaking on or about 9 September 2018 when it sent out copies of its Estate and Trust Bulletin to recipients on an unsolicited basis. The DIA points out that it was involved in correspondence with Mr Anderson during August and early September 2018 in which
NZTA was placed on notice that it would be in breach of s 9 of the Act if it sent out copies of its publication to persons who had not expressly consented to receive it.
[49] The DIA has provided an example of an email it was forwarded on 12 September 2018 from an entity called Art Hawkes Bay Incorporated. This was an email dated 9 September 2018 from NZTA attaching the Estate and Trust Bulletin. The DIA points out that NZTA has never provided it with evidence that Art Hawkes Bay Incorporated had given its prior consent to receiving copies of NZTA’s bulletin by email. It therefore says NZTA must be presumed to have sent the email to Art Hawkes Bay Incorporated on an unsolicited basis.
[50] The DIA is concerned that other recipients also received the email on 9 September 2018 on an unsolicited basis. It therefore seeks an order under s 25 to guard against the risk of further breaches occurring in the future.
[51] I accept that NZTA’s actions to date suggest there remains a risk that further breaches of the enforceable undertaking may occur in the future. I therefore accept the submission for the DIA that it is appropriate to make an order under s 35(2) of the Act to guard against this risk.
[52] I make an order under s 35(2) of the Act requiring both NZTA and Mr Anderson to comply with the terms of the enforceable undertaking dated 13 August 2018, and in particular clauses 7.1 to 7.3 of the undertaking.
Costs
[53] The parties have already reached agreement in relation to the costs payable for steps taken in this proceeding prior to the present applications being filed. No further orders are required in relation to those steps.
[54] The DIA is entitled to costs for steps taken after that point. If the parties are unable to reach agreement regarding costs I invite counsel for the DIA to file and serve a concise memorandum addressing the issue of costs and I will give directions fir the filing of any memorandum in response.
Lang J
Solicitors:
Meredith Connell, Auckland
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