Kingfish Lodge (1993) Ltd v Archer

[2000] NZCA 158

Civil

02/Aug/2000	CA133/99	Kingfish Lodge (1993) Ltd v Archer & Ors	Land - land locked land - "physical access" - s129B Property Law Act 1952 - general principles for determining whether land locked - sea access only "physical access" - exercise of discretion.
08/Aug/2000	CA92/00	Crowhurst & Anor v Lawton & Ors	Judgment - recall - appeal against refusal - failure to deal specifically with point argued - other countervailing circumstances - appeal dismissed.
14/Aug/2000	CA267/99	Owen & Anor v Residual Health Management Unit & Ors	LIMITATION OF PROCEEDINGS - recognisable psychiatric disorder or illness is a "bodily injury" within s4(7) Limitation Act 1950 - proceeding by parents for mental shock caused by injuries to their child suffered at birth as result of alleged negligence of defendants - proceedings commenced without leave more than 2 years and less than 6 years after that even - leave never sought - proceeding statute barred.
15/Aug/2000	CA133/00	Commissioner of Police v Campbell	EMPLOYMENT CONTRACTS - construction of employment contract of non-sworn member of police - no claim able to be made directly based on ss56 and 58 State Sector Act 1988 - but open to a Court to conduct that reference to those sections in the contract gave rise to contractual rights - question of interpretation are for Employment Court - no right of appeal existing - s135 Employment Contracts Act 1991.
17/Aug/2000	CA64/00	Body Corporate 97010 v Auckland City Council & Anor	RESOURCE MANAGEMENT - applications for variation of conditions imposed on resource consent and for extension of time to implement consent as varied - ss127 and 125 Resource Management Act 1991 - distinction between activity and conditions imposed upon it - on variation simpliciter the consent holder enjoys the protection of the consent - therefore comparison of effects is between those which might occur if the development proceeded as originally consented and those which may occur as a result of the variation - but on extension application concern is with effects of proceeding with development later in time - consent authority must consider whether policies and objectives of a proposed plan notified since the original consent will be compromised - not entitled simply to give greater weight to operative plan.
18/Aug/2000	CA69/00	Pauling v Williams & Minister of Health	Civil procedure - inappropriate use of R 418 - appeal allowed with consent. REASONS FOR JUDGMENT: 18/8/00.
21/Aug/2000	CA30/00	Richards & Anor v Murgatroyd & Ors	Alleged misrepresentations inducing appellants as purchasers to buy farm - factual findings by trial judge upheld and appeal dismissed.
22/Aug/2000	CA290/99	Mobil Oil NZ Ltd v Bagnall & Anor	Contract - termination - effect of - covenantor obliged to assign its rights - whether effective assignment of rights - failure by respondents to adduce evidence assignment ineffective - respondents at first instance had acknowledged assignment effective - not open to respondents to claim assignment ineffective vis-…-vis appellant as contractual terms conclusive in absence of evidence to contrary
22/Aug/2000	CA242/99	Bryce & Anor v Residual Health Management Unit	Tort - negligence - claim by mother of child injured by negligence of hospital for future economic losses of mother through need to care for child - claim not within Queenstown Lakes DC v Palmer [1991] 1 NZLR 549 - no duty of care - claim barred by accident compensation legislation.
23/Aug/2000	CA52/00	Maroroa v Attorney-General	Appeal against judgment of the Employment Court finding that the Chief Executive Officer had power to delegate right to dismiss without notice under s41 of the State Sector Act 1988.  Appeal dismissed.
23/Aug/2000	CA4/00	Empress Abalone Ltd v Langdon & Ors	Employment law - approach to the construction of employment contract not excluded by s135 of the Employment Contracts Act - approach too narrow - relevant evidence excluded - appeal referred back to Employment Court.
24/Aug/2000	CA8/00	Robert Bryce & Co Ltd v Stowehill Investments Ltd & Anor	LEASES - sublessee covenanting with head lessee to pay ground rents "payable" under head leases - head lessee subsequently acquired freehold but there was no merger - sublessee refusing to continue to pay ground rents on basis of Rye v Rye [1962] AC 496 alleging no enforceable covenant for payment of rent under head leases - freehold owner could not sue itself - held that although s66A Property Law Act, abrogating Rye v Rye, did not directly apply, the common law must be taken to have changed to avoid unacceptable incongruity with the section - covenants in head leases remained extant - ground rentals were "payable".
24/Aug/2000	CA90/00	McVeagh v Attorney General	Civil procedure - time bar under Mental Health Act 1969 - proceedings not brought within six months - res judicata.
28/Aug/2000	CA255/99	Bruns v Official Assignee	INSOLVENCY - bankruptcy - Official Assignee acting on legal advice consented to striking out of claim made by bankrupt before adjudication - no basis for overturning decision - after his discharge the bankrupt had all personal claims re-vested in him by Court order - he sought to revive claim against a person who had also been bankrupt and discharged - leave to do so declined - only remedy was to prove in the bankruptcy of the defendant - no binding agreement by Assignee to disclaim certain onerous property of companies - discretion under s269 Companies Act 1993 cannot be fettered by agreement
28/Aug/2000	CA281/98	Property Restoration Ltd & Bruns v Official Assignee	INSOLVENCY - bankruptcy - Official Assignee acting on legal advice consented to striking out of claim made by bankrupt before adjudication - no basis for overturning decision - after his discharge the bankrupt had all personal claims re-vested in him by Court order - he sought to revive claim against a person who had also been bankrupt and discharged - leave to do so declined - only remedy was to prove in the bankruptcy of the defendant - no binding agreement by Assignee to disclaim certain onerous property of companies - discretion under s269 Companies Act 1993 cannot be fettered by agreement
28/Aug/2000	CA291/98	Bruns & Ors v Wadsworth Norton & Ors	INSOLVENCY - bankruptcy - Official Assignee acting on legal advice consented to striking out of claim made by bankrupt before adjudication - no basis for overturning decision - after his discharge the bankrupt had all personal claims re-vested in him by Court order - he sought to revive claim against a person who had also been bankrupt and discharged - leave to do so declined - only remedy was to prove in the bankruptcy of the defendant - no binding agreement by Assignee to disclaim certain onerous property of companies - discretion under s269 Companies Act 1993 cannot be fettered by agreement
28/Aug/2000	CA178/99	Bruns & Ors v Wadsworth Norton & Ors	INSOLVENCY - bankruptcy - Official Assignee acting on legal advice consented to striking out of claim made by bankrupt before adjudication - no basis for overturning decision - after his discharge the bankrupt had all personal claims re-vested in him by Court order - he sought to revive claim against a person who had also been bankrupt and discharged - leave to do so declined - only remedy was to prove in the bankruptcy of the defendant - no binding agreement by Assignee to disclaim certain onerous property of companies - discretion under s269 Companies Act 1993 cannot be fettered by agreement
29/Aug/2000	CA131/00	Lewis v Wilson & Horton Ltd & Ors	No grounds upon which District Court Judge could have made order under s140 Criminal Justice Act 1985 prohibiting publication of identity of appellant.   Failure of Judge to give reasons in circumstances where order affected the principle of open justice and s14 of the New Zealand Bill of Rights Act 1990 was error of law.   High Court correct to quash s140 order.   Appeal dismissed.
30/Aug/2000	CA45/00	West v Martin & West	Appeal against judgment in favour of the respondents dated 8 February 2000 -property vested in Official Assignee pursuant to s 42 of the Insolvency Act 1967 - appellant alleges denied "basic _ democratic rights_" by not being present at the hearing and that his "_reserved fundamental property rights that pertain to citizens by common law and immemorial custom" had been overlooked by the Judge (citing Magna Carta 1297 (25 Edw. 1, c. 29) and the Treaty of Waitangi - appeal dismissed.
31/Aug/2000	CA307/99	E N Ramsbottom Ltd v Chambers	Employment - whether employee who walked off premises was dismissed - whether employer obliged to check with employee that he had intended to abandon his employment and in failing to do so had dismissed the employee.
31/Aug/2000	CA58/00	Living Word Distributors Ltd v Human Rights Action Group	Censorship - Interpretation of s3(1) of Films, Videos and Publications Classification Act 1993 - meaning of "matters such as sex ..." - subject matter limitations - consideration of sexual orientation under s3(3) as prohibited ground of discrimination under Human Rights Act 1993 - impact of Bill of Rights - High Court and Board of Review erred in treating s19 as prevailing over s14 - decisions quashed and remitted to Board.

Criminal

01/Aug/2000	122/00 19/00 121/00 16/00 120/00 15/00	HARRIS Craig Alistair v R HARRIS Rochelle Ellen v R HARRIS Clayton Alistair v R	Convictions relating to cannabis, fraud and money laundering.  Validity of search warrants: Summary Proceedings Act s 204; release of information by bank without warrant; presence of ACC officer during execution of search warrant s 198(3); validity of conspiracy count; no evidence submissions; form of conspiracy count; whether "serious offence" may coincide with or must precede money laundering (s 257A(2)); whether jury should be discharged following their photography by associate of accused; whether remarks by juror constituted bias; whether summing up balanced; whether sentence is excessive.
03/Aug/2000	47/00	BATT Alice Faye v R	Social welfare fraud - relationship in nature of marriage.  Evidence of absent witness allowed to be read, ingredients of offences - alleged misdirections.  Question whether while denying relationship accused had nevertheless accepted that if relationship existed she was aware that was so.  Distinction between such awareness and awareness she had to inform DSW.  Misdirection established in this respect.  Appeal allowed.  New trial directed.
07/Aug/2000	136/00	POTAE Stephen Michael v R	Search warrant issues - none of any merit.  Inducement under s20 Evidence Act 1908 - what constitutes an inducement, whether likely to cause untrue admission principles discussed.  Appeal dismissed with Court holding inducement given but not likely to cause untrue admission.  Evidence therefore admissible.
10/Aug/2000	134/00 133/00 128/00	WAGSTAFF Kathryn Margaret v R SPELLACEY Shirley Anne v R SPELLACEY Anthony Ronald v R	Appeals against making of forfeiture orders and refusal of third party relief by person convicted of serious crime, his mother who said she had lent him $100,000 and his de facto partner. - mother's claim allowed on the basis that the facts central to her credibility as to whether the loan was ever made and the date on which it was made were never put to her in cross-examination and her appeal remitted to the District Court for rehearing. - both other appeals dismissed with the de facto partner's appeal being dismissed on the basis that she had failed to quantify her contributions to the land and his being dismissed on the basis of discretion.
10/Aug/2000	99/00	RAE Heather Murdock v R	HUMAN RIGHTS - detention under Land Transport Act 1998 - application of Bill of Rights - motorist providing positive evidential breath test - detained during 10 minute period in which to elect blood test - entitled to continuing right to take legal advice - obligation of facilitation continuing - 10 minute period extendable to allow for taking of advice.
10/Aug/2000	198/00	MALONEY Peejay Tapukehika v R (on the papers)
16/Aug/2000	196/00	BERRY Richard John v R	Criminal Law-Sentence-accessory after fact to aggravated robbery involving home invasion-ascertainment of maximum sentence under s312-maximum 5 years-sentence of 2« years on erroneous assumption maximum 19 years reduced to 12 months with leave to apply for home detention.
16/Aug/2000	211/00	FLYGER Mark Alexander v R	Trial on indictment before Judge alone - s 347 Crimes Act 1961 - dismissal of accused's application at end of Crown case - Judge applied "no case" test - accused then gave evidence - appeal against conviction on the grounds of miscarriage of justice in that the Judge should have applied a "beyond reasonable doubt" test on the s 347 application - Judge's approach was correct - observations on s 347
16/Aug/2000	221/00	MAIHI Corey Jamie v R	Criminal Law - Sentence appeal on disparity - difference clearly justified on the factual analysis and total circumstances.
17/Aug/2000	226/00	R v WRIGHT Keith Edward	Criminal Law: Similar facts - evidence of daughters of similar offending.  Appeal against refusal to admit evidence allowed.
23/Aug/2000	191/00 190/00	BIRCH Fay Janet Francis v R THOMPSON Raymond v R	Search and seizure - search warrant issued under s198 Summary Proceedings Act and cannabis and other materials seized - original affidavit application for search warrant received at District Court lost - admission of secondary evidence - whether warrant covered search of locked briefcase and seizure of tapes and film.
24/Aug/00	164/00	CHILDS Danna Dale v R	Criminal Procedure - jury trials - judge should not communicate with jury without involvement of counsel - jury not to be distracted by consideration of penalty - direction to be given when inquiry from jury as to leniency.
24/Aug/2000	231/00	ARBUCKLE Bruce Robert v R	Sentence appeal.   3 years for false pretences concurrent on earlier sentence of 3 years but second sentence commencing 8 months later.   Judge intended not to impose cumulative sentence but s59 had that effect.   Appeal allowed.   Sentence expiring on the same date as first sentence imposed.
24/Aug/2000	219/00	LANGLEY Christopher Duncan v R (On the papers)
24/Aug/2000	216/00	THOMASON Tania Carol v R (on the papers)
24/Aug/2000	189/00	POOLE Rex Malcolm v R (On the papers)
24/Aug/2000	182/00	CHANDLER Ronald v R (On the papers)
28/Aug/2000	215/00	S (CA215/00) v R	Evidence - videotaped evidence in chief - sexual violation of a minor - request by jury for videotape to be replayed - requirement for balance - If a jury in the course of deliberations requests the replay of a video-tape of a complainant's evidence in chief it is in the discretion of a trial judge to agree to the request allowing replay in open court. If the Judge so decides it is necessary for such further steps to be taken as the Judge decides will ensure that any reinforcing effect on the Crown case is adequately balanced.  No such steps having been taken there was a risk that the conviction was unsafe.
29/Aug/2000	188/00	C (CA 188/00) v R	Crime - appeal against refusal of High Court to make suppression order - no jurisdiction in this Court to hear appeal.
29/Aug/2000	131/00	GREIG Bruce Harai v R	The appellant appealed against conviction for possession of cocaine for supply.  His contention that there was no evidential basis to support the conviction was rejected.  Also rejected were his complaints about a series of alleged factual misdirections by the Trial Judge.  His defence had been put by the Judge to the jury very succinctly.  But given that he had not made a full statement to the police setting out his position, he had not given evidence, his defence came down to the contention that the Crown had not proved its case and the Judge had summed up on the evidence, this succinct summary of his defence was sufficient.  So the conviction appeal was dismissed.  This rendered academic an appeal against sentence on an unrelated charge which was also, in any event, dismissed.
31/Aug/2000	199/00	MADDERN Ronald Eric v R	Result only.
31/Aug/2000	58/00	TIMU Ngawai v R	Appeal against sentence - appellant convicted by a jury on a number of drug offences for conspiracy and dealing in methamphetamine (Class B drug) and conspiracy and supply of cannabis (Class C drug) - she received a total effective sentence of 3 years and 7 months' imprisonment - the sentencing Judge was guided by R v Wallace [1999] 3 NZLR 159, (1999) 16 CRNZ 443 and found the appellant's offending to come at the top end of category three in Wallace - total effective sentence imposed accurately reflects the appellant's culpability - not out of line with sentence imposed on principal offender - appeal dismissed.
31/Aug/2000	207/00	REDDEN Christopher Leo v R  (On the papers)	Appeal against sentence of 10 years imprisonment for several crimes of sexual violation and indecent assault on 16 year old mentally handicapped stepdaughter.  No merit - dismissed.
31/Aug/2000	227/00	WELLS Nathan Ian v R (On the papers)
31/Aug/2000	212/00	BISSETT Andrew James v R (On the papers)
31/Aug/2000	205/00	MATEHAERE Peter Anaru v R (On the papers)
31/Aug/2000	201/00	MAHUTOTO Patricia v R (On the papers)