A&P Association: Howe v. Carmichael

  

Ohura A&P Showgrounds near Taumaranui is proving a legal battleground with dispute over who is in control of Ohura’s Agricultural & Pastoral Association coupled with allegations of a land grab engineered by locals Maria and Les Howe on behalf of local hapu Ngati Toi.  Attempting to assert their control, Howes legal claims filed in the District Court were thrown out as either lacking the required detail or seeking remedies a District Court has no power to grant.  

News reports tell of the Howe family gaining control of the Association at its August 2025 annual general meeting, voted in by supporters recently signed up as Association members.

Manner of their appointment is disputed.

The Howes sued in the District Court alleging the old guard, now supposedly out of office, were improperly retaining control of Association property.

Judge Rowe pointed out that District Courts do not have a general power to oversee governance of A&P Associations.  That lies with the High Court.

The Howes specific claims that members of the old guard were liable for defamation, trespass, negligence, misrepresentation, invasion of privacy and breach of statutory duty were struck out.

Insufficient detail was provided to support these claims.

It is a basic tenet of New Zealand’s legal system that any claim must include sufficient detail enabling defendants to respond.     

Judge Rowe questioned why the Howes included Ngati Toi as plaintiff in their claim.

Hapu and iwi do not have a legal existence separate from their members.  Individual members cannot be dragged into court proceedings without their consent.

There was no evidence that the Howes had consent from individual Ngati Toi members to take legal action in their name, Judge Rowe said.

Howe v. Carmichael – District Court (9.02.26)

26.074

Insolvency: re Tawhiti

  

Agreeing not to sue for balance of a debt due did not prevent financier Otis Trustee Ltd voting against a scheme of arrangement put up by insolvent house removal specialist Shannon Tawhiti offering creditors three cents in the dollar.

Mr Tawhiti lives in Havelock North.  His Hawkes Bay removal business was described as once being worth over twenty million dollars, owning over one hundred properties.

No longer.

He faces bankruptcy; naming personal, market and business disruptions for collapse of his business operations, all exacerbated by COVID-19 pandemic restrictions.

Otis Trustee Ltd, controlled by Auckland-based Ian McKay, put a key part of Mr Tawhiti’s business operations into receivership after defaults on payments due.

Companies Office receivership records show an Otis debt of some $800,000 was not repaid in full.

The High Court was told of a 2025 stand-still agreement between Otis Trustee and Mr Tawhiti.  Otis agreed not to take any legal action against Mr Tawhiti personally; but reserved the right to claim in any bankruptcy.

Mr Tawhiti’s Insolvency Act offer of three cents in the dollar to creditors in final settlement of debts owed will avoid potential bankruptcy.

He says the proposal will be funded by family members, friends and future earnings.

When counting creditor votes on Mr Tawhiti’s offered part-payment scheme, a proposed trustee handling voting procedures disallowed a vote against sent in by Otis Trustee.

Otis claims it is now owed $2.037 million by Mr Tawhiti.

The trustee says wording of the stand-still agreement prevents Otis Trustee from voting.

In the High Court, Associate Judge Skelton ruled Otis’ vote should have been accepted provisionally, with a final ruling on validity left to the High Court.

All Insolvency Act part-payment schemes require High Court approval after creditors vote.

The proposed trustee is now required to have all Mr Tawhiti’s creditors reconsider his part-payment proposal, with Otis Trustee’s vote to be included, provisionally or otherwise.

re Tawhiti – High Court (9.02.26)

26.073

Trademark: Blue River Dairy v. Spring Sheep Dairy

  

Asked to sort out the sheep from the goats, the High Court decided they are both the same when it comes to trade mark protection for milk-based products, giving protection to Landcorp’s SPRING SHEEP trademark, preventing Hong Kong-owned Blue River Dairy using SPRING GOAT as a trademark for sale of its product in New Zealand.

Spring Sheep Dairy LP is a joint venture between government-owned Landcorp and SLC Ventures LP.

It challenged Blue River’s 2017 Intellectual Property Office application for registration of SPRING GOAT as a trademark.  It claimed SPRING GOAT was sufficiently similar to its existing SPRING SHEEP trademark as to cause confusion where they competed in the same product market.

Blue River and Spring Sheep are two of three main sheep milking operators in New Zealand.

In the High Court, Justice McQueen said it is the word ‘spring’ which does the heavy-lifting in both brands.  Both use the word ‘spring’ as the first word.

This is likely to confuse customers, she ruled.  Even an attentive customer would likely perceive SPRING GOAT to be a brand extension of SPRING SHEEP and attribute both products to the same source, she added.   

Blue River’s application to register SPRING GOAT as a trade mark was disallowed.

Separately, Blue River asked that Spring Sheep Dairy’s existing registration for SPRING SHEEP be revoked for non-use.

Failure to make commercial use of a trademark for a three year period can lead to revocation.  This ‘use it or lose it’ rule is intended to prevent clogging the trademark register with unused trademarks.

The High Court reviewed Spring Sheep Dairy’s use of its SPRING SHEEP trademark for the period 2016–2019; the period surrounding Blue River’s filing for SPRING SHEEP’s revocation.

Revocation was refused.

The High Court heard evidence of Spring Sheep Dairy selling branded SPRING SHEEP product to cheesemakers since 2015 and a branded gelato product from the following year.

In addition, brand awareness existed with preliminary steps taken by Spring Sheep to have its infant formula stocked by supermarkets across New Zealand.

Finally, Blue River asked that Spring Sheep’s trade mark protection be limited to sheep milk product only.

Stating that this would be pernickety, Justice McQueen allowed that the trademark could be used across milk-based products derived from other animals.

Blue River itself did not limit its application to only goat milk products in its unsuccessful application to trademark SPRING GOAT, she noted.

Blue River markets cows’ milk, sheep and goat milk products.

Blue River Dairy LP v. Spring Sheep Dairy NZ Limited Partnership – High Court (5.02.26)

26.072

Appeal: NZ Premium Trading v. AFFCO

  

More than five years out of time, Hawkes Bay’s Andrew Parkinson was refused permission to appeal an eight million dollar loss of profits claim against meat processor AFFCO, in part because Parkinson’s NZ Premium Trading Company Ltd has yet to pay AFFCO $77,600 previously ordered by the High Court.

Problems for exporter NZ Premium kicked off over a decade ago with China border controls disrupting meat imports from New Zealand.

One of AFFCO’s meat processing plants was ‘de-listed’ by Chinese authorities for a time.

Some of NZ Premium’s AFFCO product was held up at the border.

Its trade account with AFFCO was a mess, complicated by NZ Premium’s habit of making payments in lump sums with no reference to specific invoice numbers and its further habit of claiming credits without first waiting for AFFCO approval.

Unable to reconcile their trade account, both sides headed to the High Court making claims and counter claims.

End result: NZ Premium was ordered in 2018 to pay $97,900.  AFFCO recovered part-payment from funds NZ Premium paid into court prior to trial, leaving $77,600 still outstanding.

NZ Premium signalled a planned appeal, but did nothing during the twenty working days allowed.  

Over five years later, Mr Parkinson sought leave for his company NZ Premium to appeal out of time.

He claims an eight million dollar loss of profits claim was not properly considered at the 2018 trial.  This claim turned on Mr Parkinson’s disputed claim that AFFCO had agreed to supply forty containers of product for a customer named as Shandong Taihua Food.  AFFCO’s failure to deliver saw Shandong then cancel a proposed long-term contract, he claims.

Delays in bringing an appeal arose because of COVID-19 pandemic restrictions plus his need to get on and ‘make a living,’ generating funds to pay for an appeal, he said. 

It was not in the interests of justice to allow an appeal out of time, the Court of Appeal ruled.

The delay was substantial.  The $77,600 previously ordered by the High Court remained unpaid.  And the likelihood of a successful appeal was weak, the court said.

NZ Premium Trading Co Ltd v. AFFCO New Zealand Ltd – Court of Appeal (5.02.26)

26.071

Guarantee: Federal Capital v. Simunovich

  

With short-term loans taken out by interests associated with Peter Simunovich to prop up his ailing fishing operations in Australia, his supposed $450,000 repayment guarantee proved unenforceable after he gained control of collateral securities.

The High Court was told of a series of short term loans taken out in 2019 by Simunovich-owned Seafish Tasmania Pty Ltd; cash needed to refinance existing debt and pay quota licence fees.

Seafish was at risk of Australian authorities confiscating its quota allocation; a fishing quota valued by Seafish at $23 million. 

Litigation followed failure to repay two six month loans falling due late 2019; loans arranged through Auckland-based Federal Capital Ltd, controlled by Mel Stewart.

Legal issues centred on a May 2019 security sharing agreement, a tri-partite agreement between Federal Capital, Mr Simunovich and existing Seafish financier FE Investments Ltd.  FE held mortgage security over Seafish quota.

Mr Stewart held controlling interests in both Federal Capital and FE Investments.

The High Court was told Mr Stewart was under the impression that the sharing agreement would enable Federal Capital to extend Mr Simunovich’s obligation as guarantor of FE Investments existing loans to include the new Federal Capital funding.

Not so, ruled the High Court.

Property Law Act rules state there is no liability as guarantor unless the guarantee is in writing, signed by the guarantor.

Mr Simunovich did sign as named guarantor on Federal Capital loan documents, but there was no operative clause in these documents imposing a guarantee.

Federal Capital argued in the High Court that it could enforce existing FE Investments guarantees as permitted by the tri-partite security sharing agreement signed by Mr Simunovich as guarantor.

The legal complication was that interests associated with Mr Simunovich bought out FE Investments’ debt in February 2020 at a time when FE threatened to call in its loan and sell off Seafish’s quota.  The deal was structured as cash in return for an assignment of FE Investments’ rights.

Mr Simunovich now wore two of the three hats in their tri-partite agreement; personally as guarantor of FE Investment’s loans and separately as owner of these same loans. 

Justice Harvey ruled the tri-partite agreement gave Mr Stewart’s Federal Capital the right only to share in the proceeds of any enforcement by FE Investment; it could not force FE Investment to enforce its rights against Mr Simunovich.

Mr Stewart and Mr Simunovich go back a long way.  In the early 2000s Simunovich money helped fund Mr Stewart’s investment in FE Investment, the High Court was told.

Federal Capital Ltd v. Simunovich – High Court (2.02.26)

26.070

Asset Forfeiture: Commssioner of Police v. Morris

  

Four years after Daniel Basil Morris’ conviction for possession and supply of meth, his parents recovered $81,200 out of assets otherwise forfeit as proceeds of crime being financial assistance they provided for his purchase of a New Plymouth home.

Morris was convicted in 2021 of methamphetamine possession for supply plus possession of material and equipment for cooking meth.

Restraining orders were imposed over his Parsons Street house in Vogeltown, plus two Subaru Impreza motor vehicles.

During examination on oath about extent of his assets, he disclosed that his parents helped fund purchase of Parsons Street and stood as guarantors for his mortgage.

The High Court was told Morris died at home in 2024.  Circumstances of his death are not suspicious.    

Police sought Criminal Proceeds (Recovery) Act forfeiture for the $136,400 realised from sale of Parsons Street and the two Subarus.

Justice Grau approved an agreed settlement between Police and Morris’ parents having $81,200 diverted to a bank account of their choice.  This represented a loan to their son for purchase of Parsons Street, plus mortgage interest payments they made following his death.

The remaining $55,200 was forfeit.

Commissioner of Police v. Morris – High Court (30.01.26)

26.069

Money Laundering: R. v. Sharma

  

Sentenced to three years nine months imprisonment for money laundering, Suren Sharma laundered $1.8 million over a twelve month period, money paid online by investment scam victims, shifting his activities from bank to bank after warnings the transactions appeared to be fraudulent.

The District Court dismissed his claim to be an innocent bystander, merely acting as a conduit for a supposedly legitimate bitcoin investment scheme.

A common pattern for all twelve victims saw Sharma transfer their funds deposited into his bank accounts across to his son’s bank account in Australia, retaining a ten per cent commission; this commission then filtered through multiple bank accounts he controlled, with some withdrawn in cash at Sky City casino in Auckland.

This took place through 2022-2023.  

The largest sum lost by any one victim was one million dollars, money supposedly invested through an entity called Worldinitiative AG Alliance.

Another victim, investing $100,000 through an entity called Argus International, had a private investigator chase up where his money had gone.  Mr Sharma, pressed to explain how the money came to pass through a bank account he controlled, produced a forged document supposedly signed by the victim giving Sharma authority to deal with the money.

The District Court was told of Sharma switching to a BNZ account after being warned by Westpac of suspected fraudulent activity in respect of funds passing through his Westpac account.

When BNZ closed Sharma’s account on suspicion of fraudulent activity, he switched to ASB, then ANZ, then turned full circle and reactivated use of his Westpac account.

Four banks warned him of suspicious transactions passing through his bank accounts.  At best, his behaviour was grossly reckless, Judge Bell ruled.

The court was told Sharma was a Justice of the Peace at time of offending, having in the past sat as a judge in court hearing minor offences.

Now aged 74, he holds qualifications in accountancy and filed client tax returns with Inland Revenue as a tax agent.

The court was told the High Court found Sharma liable in 2011 for acting fraudulently in breach of Companies Act director duties.

No reduction in sentence was made for Sharma’s offer to pay reparations at twenty dollars per week.  Full reimbursement for victims would take over 1600 years.

R. v. Sharma – District Court (29.01.26)

26.068

Trust: Bryers v. Broughton

  

Before his death at Whanganui in 2012, Toherangi Broughton transferred his substantial block of shares in customary Maori land to daughter Morania.  Her siblings were dismayed; their rights to inherit by descent were lost.  They were doubly dismayed when she in turn gifted this share to her son Perry Bryers.  They were appeased when he transferred his shares to a Toherangi Broughton Family Trust for the benefit of wider whanau, subsequently challenging his later efforts to get back these shares from the Trust.

In what was a departure from normal practice, the Maori Land Court refused recovery, ordering his shares remain within the Trust. 

The Maori Land Court was told of long-standing tensions between Toherangi Broughton’s descendants over circumstances in which Perry Bryers came to control their forebear’s landholdings.

Perry came to control this land prior to Toherangi’s death.

Some four years before Toherangi died, Perry transferred his shareholding, giving control over substantial blocks of Maori land, to a whanau trust named in Toherangi’s honour.

Years later, he wanted to reverse the process; taking the shares back out of Trust ownership, holding the land for the sole benefit of his immediate family.

In the Maori Land Court, Judge Warren commented the general rule is that termination of trust status for Maori land is normally approved, unless there are compelling reasons not to.

Commonly, all trust beneficiaries will have agreed to termination.  Or trust board dysfunction coupled with wider whanau issues justify termination.

There was no evidence of trust board dysfunction in this case.

Judge Warren ruled collective whanau benefit is to take priority over Perry family individual autonomy.

The size of shareholding previously gifted by Perry to the Trust is such that its return would imperil the Trust’s economic viability, compromising benefits wider whanau would otherwise enjoy, he said.

Principles of the Te Ture Whenua Maori Act are best served by maintaining the status quo, leaving the shareholding within the Trust under control of trustees, ensuring the land is retained and available for the benefit of wider whanau, he ruled.

Bryers v. Broughton – Maori Land Court (28.01.26)

26.067

Pastoral Lease: Glenthorne Station v. Commissioner of Crown Lands

  

With rent renewals still disputed for Crown land forming part of his South Island high country Glenthorne Station, investment banker John Shrimpton claims his offer to buy out the leasehold interest using legal rules still on the books since the late 1800s must be honoured.  His ingenious legal move was thwarted in the High Court; whilst the rules still exist, his offer comes 130 years too late.  Operation of ‘first come, first served’ land sales lapsed in 1892.  

The High Court was taken through a detailed survey of South Island land acquisitions made by early colonial governments.

Through what are now recognised as a series of grossly unfair purchases compounded by subsequent government failures to honour promises made, Ngai Tahu were systematically dispossessed of nearly all their land.

Prior to 1876, New Zealand operated with a quasi-federal system of government, having nine provincial legislatures.

Canterbury Province decided to parcel out huge swathes of pristine land now under its control by what became known as ‘open selection.’  Purchasing settlers need only write their name in a book next to section of land, pay the better of forty shillings or two pounds per acre, and the land was theirs: first come, first served.

High country land did not sell; pastoral farming is always marginally economic in rough mountainous country.

In 1873, Canterbury’s Provincial Council transferred on trust more than 300,000 acres of unsold high country land (121,000 hectares in today’s measurement) to Canterbury University.

Terms of trust require the University to hold this land available for ‘open selection,’ leasing it out in the interim, with rental income forming part of the University’s endowment.  

With Glenthorne Station, near Lake Coleridge, unable to reach agreement in its currently disputed rent review for that 36 per cent of its farm currently leased from Canterbury University, Mr Shrimpton set about making an ‘open selection’ offer to buy the freehold.

In the High Court, he conceded two pounds an acre is not an appropriate price; he is willing to pay market price.

The High Court ruled ‘open selection’ is no longer available.

Dissolution of provincial governments meant control over sale of pastoral leasehold land now lies with central government, specifically with the Commissioner of Crown Lands.

Sale to Glenthorne Station requires agreement of University of Canterbury, the Secretary of Education and the Commissioner of Crown Lands, Justice Boldt ruled.

Further complication is that the Ngai Tahu Claims Settlement Act gives Ngai Tahu right of first refusal should the freehold be offered for sale.

Glenthorne Station’s lease has been running on with lease payments disputed since 2009.

Glenthorne Station Ltd v. Commissioner of Crown Lands – High Court (27.01.26)

26.066

Corporate Governance: Lawless v. Ellis

  

Applying well-recognised accountancy rules defining what amounts to ‘control,’ compared with having ‘influence,’ may have helped squabbles over potential conflicts of interest within Tuwharetoa trust activities; a governance issue now common to many iwi as kinship relationships can overwhelm commercial realities.

What to outsiders looks to be an arcane judicial debate in the Maori Land Court about corporate governance was a tricky question over how many hats one person should wear, given that commercial activities for major iwi groups now operate under business structures similarly seen with large corporates: one central holding company with separate activities and interests hived off into a multitude of subsidiary companies, partnerships and trusts.

All these separate entities need policy direction of their own, coupled with general ‘head office’ oversight.

Add to this complexity the overlay of Maori culture; the common kinship shared by those both running and benefitting from iwi commercial operations.

Close family ties, compounded by historical cross-family disputes and jealousies, can led to what might be delicately called sub-optimal decision making.

Seeking to minimise such problems, trust deed for Ngati Tuwharetoa’s Lake Taupo Forest Trust restricts the circumstances in which any trustee can be involved in activities of any subsidiary.

Trust beneficiary Tane Lawless questioned whether a trustee should be allowed to continue with contract work for a Trust subsidiary: New Zealand Forest Managers (2022) Limited Partnership.

His Maori Land Court application continued as a test case after the trustee’s death.

The legal issue boiled down to whether Forest Managers was a ‘trust entity’ as defined by the trust deed.  If so, contracting work was disallowed as a conflict of interest.

Forest Managers exists as a partnership, but differs from the norm.

As a limited partnership it is made up of limited partners (who are not involved in management, are not liable for partnership debts, and do share in profits) and a general partner (who makes management decisions, is liable for partnership debts, and shares in profits).

For Forest Managers, decisions made by its general partner lie ultimately with Lake Taupo Forest Trust and a separate trust, Lake Rotoaira Forest Trust.  They each get to appoint two of the general partner’s four directors.

Forest Managers is not a ‘trust entity,’ Judge Warren ruled.

Lake Taupo Forest Trust does not have ‘control’ of Forest Managers; it does not appoint a majority of directors.

Neither does it have ‘indirect control’ through appointment of half the directors, he ruled.  This ‘limited’ or ‘shared’ control cannot be considered operative control.

It would be more intelligible to utilise accounting terminology: Lake Taupo Forest Trust’s right to appoint half Forest Managers’ board amounts to ‘influence,’ not ‘control.’

Lawless v. Ellis – Maori Land Court (22.01.26)

26.065

Taonga: Sixtus v. Hokotehi Moriori Trust

  

Remains of an ancient waka found by chance in 2024 on the north coast of Rekohu in Chatham Islands led Catherine Sixtus to claim an ancestral interest on the basis that it was constructed in what is now modern day Germany and brought to New Zealand by her ancestors.  Ruling the waka to be Maori taonga, with ownership is to be decided under the Protected Objects Act, the Maori Appellate Court dismissed any suggestion of German historical links.

This Act gives special statutory protection to what are classified as taonga tuturu: objects more than fifty years old relating to Maori culture or history which have been manufactured in New Zealand by Maori or brought to New Zealand by Maori.

Ms Sixtus has no standing to bring any claim in respect of the waka, the Maori Appellate Court ruled.  The word Maori does not include people solely of pakeha or European descent.

Ms Sixtus argued, unsuccessfully, that since the designation Maori did not exist in early European colonisation of New Zealand, later adoption of the generic word can be taken to include all who have come to settle in New Zealand, including her German forebears.

The Appellate Court said the word Maori now has a defined statutory meaning, which does not include those having only European descent.

Even if it did, Ms Sixtus faces a difficult scientific obstacle; preliminary testing of the waka identifies that it is made of New Zealand sourced wood.

Mr Sixtus’ response is that the wood may have been taken to Europe on HMS Endeavour after Captain Cook’s first visit to New Zealand in 1769, fashioned into a waka in the Hanseatic States, later coming into possession of Moriori living on Rekohu.

Protected Objects Act ownership of the waka is yet to be resolved.

Ownership lies with the Crown, unless specific Maori ownership can be proved.

Two separate Chatham Island Moriori trusts are jointly seeking to resolve questions of ownership.

Sixtus v. Hokotehi Moriori Trust – Maori Appellate Court (21.01.26)

26.064

Freezing Order: Tianjin Junyuan Technology v. Cheng

  

Enforcing a China court order for repayment of a RMB fifty million loan, the High Court in New Zealand was suspicious of claims the debt had been repaid with Weihong Cheng rapidly reorganised her financial affairs on learning of steps taken to enforce the overseas judgment against her New Zealand assets.

In 2018, Ms Cheng and her husband Shiping Tong guaranteed their company’s RMB 50 million borrowing from Tianjin Junyuan Technology; approximately NZD 10.8 million at the time.

Junyuan Technology is incorporated in China.

When the one year loan was uplifted, Mr Tong transferred 83.8 million shares in Hong Kong listed company Lisi Group to Junyuan Technology.

Ms Cheng was to later argue Junyuan had sold-down these shares; the debt has been repaid, she claims.

Junyuan Technology says the shares were transferred as security for repayment and that the loan remains unpaid, despite two rescheduled payment dates. 

The High Court was told of both a trial and later retrial in the Tianjin People’s Court over the disputed debt.  In both trials, Mr Tong and Ms Chen were held liable for repayment; the second reducing the amount due on account of real estate transferred to Junyuan Technology in part payment.

In 2024, Junyuan Technology attempted multiple times to serve legal notice on Ms Cheng at her Christchurch home of its intention to have the China court judgment enforced through the New Zealand courts.

Evidence was given of Ms Cheng’s daughter being the only one to answer the door.  She refused to provide contact details for her mother, saying her mother was overseas.  

Legal service was achieved by court-approved substituted service on her daughter.

Appearing in court, Ms Cheng said her only New Zealand assets were some $12,700 in sundry bank accounts.

Evidence was given of Ms Cheng being trustee of, or having control over, two family trusts owning five Christchurch properties.

Learning that these properties might be seized, Ms Cheng arranged for discharge of a $3.8 million debt owed to her by these trusts and further arranged for her daughter and an independent nominee company take control of trust assets.

In the High Court, Justice Robinson dismissed her application to have charging orders removed from the Christchurch properties, allowing Junyuan to potentially recover the debt still owed with a forced sale.

With accrued interest also unpaid, the total due is close to double the initial ten million dollar loan.

Ms Cheng provided no concrete evidence that Junyuan has sold down the Lisi Group shares in reduction of the debt, he said.

Tianjin Junyuan Technology Development Co Ltd v. Cheng – High Court (19.01.26)

26.063

Class Action: Simons v. ASB

  

Class action does not come cheap.  Of the $135.6 million out-of-court settlement LPF Group negotiated for ASB customers claiming breaches of consumer credit disclosure rules, $28.9 million comes out for LPF’s fee plus another $3.5 million for its direct legal costs.

With some 276,000 Bank customers potentially entitled to various levels of compensation, a notional equal split would see each receiving about $375.

In 2021, ASB admitted to breaches of the Credit Contracts and Consumer Finance Act, failing to make full statutory disclosures required for customers following changes to their home and personal loans.

It agreed with the Commerce Commission to pay $8.1 million compensation to affected customers.  This agreement specifically left open customer rights to sue ASB.

In June 2021, litigation funders LPF Group Ltd and CASL Management Pty Ltd set the ball rolling with a joint class action seeking compensation for ASB customers and also for ANZ Bank customers with allegations of a similar failure by ANZ to make proper disclosures.

ASB settled out of court in late 2025; this agreement requiring court approval.

ANZ refused to settle.  It is going head to head in court against the litigation funders’ claim.  

Giving High Court approval to ASB’s $135.6 million settlement, Justice Venning said the agreed settlement was in the interests of affected bank customers given three months’ extensive negotiations between the parties, the cost of going to trial, and present uncertainty as to the outcome.

Independent legal advice supported the out-of-court settlement.

ANZ Bank said all legal costs to date of $4.7 million should be charged to the ASB settlement.

ANZ said only 17,000 ANZ customers were part of the class action claim against it.

By contrast, the ASB class action involved nearly 276,000 customers and covered a wider range of disputed issues, ANZ said.

Justice Venning ruled 65 per cent of legal costs to date are to be charged against the ASB settlement.

Simons v. ASB Bank Ltd – High Court (14.01.26)

26.062

Court Costs: Far North Community Group v. Far North District

  

Established as a lobby group to hold Far North District Council to account over its establishment of heritage areas, forty-four members of Far North Community Group were ordered jointly to contribute $10,000 towards Council legal costs after failure of an ill-fated Environment Court challenge. 

Belatedly recognising the prospect of potential personal liability, the group later formed an incorporated society to progress their legal challenge.  They were still liable for costs up to the point their incorporated society was substituted as applicant in their Environment Court litigation.

Property owners from around Mangonui challenged Far North District rules seeking to preserve examples of early colonial architecture and to allow archeological digs over private property in areas considered to be of heritage status.

In the Environment Court, a ginger group challenged operation of these rules.

It did not go well.

The Environment Court was critical of filed documents as being unclear, unstructured and convoluted.   

It was suggested to the applicants that they might reconsider their proposed challenge.

The court signalled part of their application lacked merit; in other instances, they were asking for court orders the Environment Court has no power to make.

After they pressed on, it became clear the Environment Court would not rule in their favour, with the possibility of costs awarded against them.

Unlike the High Court, it is not normal practice for the Environment Court to award costs in favour of a successful litigant; costs paid by the losing side.

But costs may be awarded against Environment Court litigants who fail to follow mandated court practice; wasting court time, imposing extra costs on other litigants.

Judge Smith ordered forty-four named members of the original ginger group pay $10,000 to Far North District; just under half Council’s legal costs up to the point this group exited the litigation, replaced, as approved by the Court, with their newly registered Far North Community Group Incorporated.

An incorporated society is a legal person, separate from its members.

This incorporated society is now their vehicle for any further litigation and is itself liable for any further costs order.

Later substitution by the Far North Community Group Inc did not absolve individual members from their liability incurred prior to incorporation, Judge Smith ruled.

Far North Community Group Inc v. Far North District Council – Environment Court (12.01.26)

26.061

Guarantee: Hudson v. Hobsonville Consulting

  

Where one guarantor enjoys the whole financial benefit of a guaranteed loan, fellow guarantors should stand second in line and not be liable to initially front up with any contribution the High Court ruled, requiring Auckland property developer Brian Hudson pay first on a $593,000 guaranteed debt, ahead of his former partner and fellow guarantor.

A September 2022 refinancing of funding from Kensington Finance Limited Partnership saw a three-way guarantee of repayment made by Mr Hudson, his then partner Sarah Clarke, and their company Hobsonville Consulting Ltd.

Funds were needed to complete a property redevelopment on St Vincent Avenue in Remuera, one of Mr Hudson’s projects.

With a mortgagee sale threatened, Hobsonville Consulting paid off the $550,000 owed Kensington Finance.

Left unresolved was the question of how this liability should be split between the three guarantors.

The general rule is that liability between multiple guarantors is shared equally.

Justice Becroft adopted a principle established in Australian litigation: a guarantor who obtains the whole benefit of a loan may be required to accept the whole burden, with co-guarantors having a right to recover their otherwise equal liability out of the prime guarantor’s assets should they be called to pay.

Mr Hudson was ordered to pay fifty per cent of the guaranteed $550,000 debt, with Hobsonville Consulting agreeing it would pay the other fifty per cent.

The loan was primarily for Mr Hudson’s benefit, to complete his St Vincent Ave project.

Ms Clarke is excused payment, to the extent that the other two guarantors make full payment.

Separately, Mr Hudson argued he should pay nothing.  Transfer of his fifty per cent shareholding in Hobsonville Consulting to Ms Clarke extinguished his liability on the guarantee, he claimed.  The remaining co-guarantors assumed all liability.

There was no such agreement, Justice Becroft ruled.

Even if there were, Mr Hudson provided nothing of benefit in return for the supposed agreement.  Shares in Hobsonville Consulting were essentially worthless.

Hudson v. Hobsonville Consulting Ltd – High Court (22.12.25)

26.060

House Sale: Smallbridge v. Singh

  

After failing to find a buyer for a quick on-sale of an Auckland residential property ripe for development, Paljeet Singh was ordered to pay $753,000 damages for the owners’ loss on resale.  A claim he was refused access prior to settlement, blighting chances of quickly flipping the property, was dismissed by the High Court; no access was requested.  Potential buyers had evaporated in a falling market. 

The High Court was told of a bidding war between at least five property developers and speculators at a November 2021 auction of the Smallridge family home in Avondale.  Sitting on a 930 square metre site, the property has considerable potential for re-development.

Mr Singh’s winning bid at $1.95 million left Robert and Margaret Smallbridge ecstatic; their real estate agent surprised.

As events transpired, this sale was at peak of the market.

At Mr Singh’s request, contract terms gave him twelve months to settle his purchase with rights of access prior to settlement, allowing him to have prospective buyers view the property.

The Smallridges agreed Mr Singh could use marketing material and photos prepared for their auction sale to assist his sale efforts.

They objected to Mr Singh putting a ‘for sale’ sign back up in front of their property.

It was removed, with Mr Singh later arguing in the High Court this was one example of the Smallbridges’ failure to allow access.

One year on from the auction, Mr Singh failed to settle.

He claimed the contract was cancelled, alleging the Smallbridges were in breach of contract terms over access.

Justice Walker ruled there was no evidence of access being denied.  There were no buyers in the market requiring access at the price Mr Singh wanted.

Mr Singh’s request for access by a valuer was readily given, but no valuer turned up.

His claim one purchaser backed out because of an inability to access the property was dismissed by Justice Walker.  The deal fell over because no agreement could be reached on price.

Mr Singh had no grounds for cancellation, she ruled.

He was ordered to pay $753,000 damages for the Smallridges loss on resale after they put their property back on the market in 2023.

The Smallridges then offered to accept a lesser sum from Mr Singh in order to finalise the litigation, avoiding further stress and delay.  This offer was not taken up, the court was told.

Smallridge v. Singh – High Court (19.12.25)

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