Loan: Piacun v. Witham

  

High Court ordered Auckland builder Maurice Witham repay immediately an overdue $430,000 loan from acquaintance Tony Piacun, arranged at a time when Mr Whitham’s business was facing strong financial headwinds and he was supposedly acting in Mr Piacun’s best interests holding an enduring power of attorney on Mr Piacun’s behalf.

Put to one side for a later full hearing in the High Court were Mr Witham’s claims that he is owed money for work done on two properties owned by Mr Piacun and that a dispute about interest on the $430,000 loan has not been finalised.

There is no argument that the $430,000 loan is overdue and unpaid, Justice O’Gorman said.  It is to be repaid immediately, she ruled.

The court was told of the two being acquainted since 2009; Mr Witham’s children mowed lawns for Mr Piacun’s late mother.

Mr Witham says he provided financial assistance to Mr Piacun after his mother’s death; paying for her funeral and paying rates arrears.  

Mr Witham says he then provided further assistance intended to improve Mr Piacun’s financial position; renovating a property Mr Piacun owns in Thames and renovating an Auckland property in Sandringham inherited from his mother, with work starting in late 2020.

In 2021, Mr Piacun signed a power of attorney in favour of Mr Witham and his spouse.

Within a few months, this power of attorney was used to access Mr Piacun’s bank account.

Mr Piacun alleges $939,000 was wrongly drawn down from his account, with $678,000 outstanding after some repayments made by the Whithams.

They say these drawdowns were done either with Mr Piacun’s permission or were reimbursement for renovation work completed on his behalf.

Mr Piacun revoked their power of attorney, appointing his daughter instead.

Included in the disputed $678,000 is an October 2022 loan of $425,000 signed by Mr Piacun between himself and a company owned by the Withams called Hibiscus Views Trust Ltd.  The Whithams personally guaranteed Hibiscus Views December 2025 repayment.

While the loan was stated to be for $425,000 bank records show $430,000 was in fact drawn down from Mr Piacun’s bank account.

Mr Piacun’s daughter later initiated legal action, alleging withdrawals from her father’s bank account have been made without his authority and in breach of fiduciary duties the Withams owed him through the power of attorney they then held.

While ordering the overdue $430,000 be repaid immediately, Justice O’Gorman said a full court hearing is needed to determine any credit for the Withams against the balance claimed.

The Withams say it was agreed that they would contribute towards Mr Piacun’s living expenses in lieu of interest on the loan.

Their claim to a credit for renovations done for Mr Piacun’s benefit is complicated by the fact that this work was not invoiced by Mr Witham personally, instead invoiced by a company controlled by Mr Witham called Orewa Solutions Ltd. 

Orewa Solutions went into liquidation insolvent in January 2025.

Piacun v. Witham – High Court (31.08.26)

26.245

Nuisance: Larsen v. Runes Investments

  

Each neighbour blamed the other for landslip damage on Fenton Street in Thames, with the High Court ruling upside neighbour Christine Larsen liable in the tort of nuisance for failing to properly stabilise her driveway.  She was ordered to install a proper retaining wall and pay $350,000 damages to neighbouring property owner, an Australian-registered company: Runes Investments Pty Ltd. 

Property owners are liable in nuisance for the foreseeable consequences of any ongoing activity causing substantial interference with a neighbour’s use of their land.

Runes Investment complained ongoing water run-off from Ms Larsen’s driveway led to a landslip on Runes Investments’ property in the aftermath of cyclone Gabrielle in 2023 and was an ongoing threat to other properties further downhill.

Runes Investments purchased 303A Fenton Street in 2013; Ms Larsen, neighbouring 303B the following year.

Ms Larsen claimed the landslip was caused by Runes Investments excavations for its driveway at 303A.

Evidence was given of Ms Larsen’s neighbouring concrete driveway at 303B being constructed by a previous owner on top of fill, raising the level of this driveway above the then natural contour of the land.

Prior to the 2023 cyclone Gabrielle landslip, Runes Investments got specialist engineering and geo-technical reports on five occasions on how to best remediate intermittent flooding and minor slips emanating from Ms Larsen’s 303B.

Construction of a properly drained retaining wall on Ms Larsen’s property was recommended.

She was provided with copies of these reports.

The court was told she obtained no specialist reports of her own and chose to ignore the reports provided by Rune Investments, taking the view she had been advised ‘not to do anything as it had been like that for years’ and nothing had happened.

Post-cyclone Gabrielle, engineers suggested a rudimentary timber retaining wall installed by Ms Larsen and a friend had in fact accentuated the problem, creating further erosion by concentrating water runoff.

Confirming an earlier District Court ruling, Justice Kawharu ruled Ms Larsen liable in nuisance for failing to take reasonably prompt and effective steps to deal with the problem.

Driveway construction for Ms Larsen’s 303B created a known defect risking future damage to her neighbour’s property, she said.

The extent of damage wrought following cyclone Gabrielle might not have been anticipated, but the risk of it occurring was known.

Damages of $350,000 for Rune Investments was calculated as the cost of remediating its property.

To avoid further damage to Rune Investments’ property at 303A, Ms Larsen was ordered to install a properly drained retaining wall.

Larsen v. Runes Investments Pty Ltd – High Court (28.08.26)

26.244

Loan: Hill v. Down

  

Russel Down twisted and turned in multiple failed attempts to avoid repaying the balance well overdue on a $60,000 loan received from his sister fifteen years ago.

The District Court dismissed his claim that the loan was made not to him personally, but to his Auckland used car dealership, wound up insolvent back in 2013.

He was ordered to honour a 2022 family agreement with payment from his share of their late father’s estate; another agreement he denied existed.

Evidence was given of Mr Russel borrowing $60,000 from his sister Christine Hill and her husband back in 2009, to purchase stock for his car dealership on Wairau Road in Auckland’s North Shore.   

The loan was unsecured.  No interest was agreed.

Partial repayments were made in dribs and drabs over the next four years, leaving $31,500 still unpaid in early 2013, several months before his car yard folded.

Arrangements were firmed up in early 2022 when Mr Down signed an acknowledgement that money was still owed, agreeing to assign to his sister the inheritance he expected from their late father’s estate; this to be in full and final payment.

It was only later in court that he admitted ever signing this agreement.

The court was told their father died in 2005 with each of his children to receive a one-eighth share of the family home in Levin, with sale postponed until his widow chose to live elsewhere.

In late 2023 she shifted out. The house was sold, with Mr Down in line to receive a $68,000 inheritance.

The house sold for a far greater sum than anyone anticipated at time of the 2022 family arrangement where Mr Down agreed to hand over all his expected inheritance in repayment of the $31,500 unpaid debt.

Sister Christine told the court it was understood when signing that her brother’s potential inheritance could come in at either more or less than what was owed; each side took the risk.

If it was less, she was going to take the loss, Christine said.

Later, Christine decided out of fairness to her brother that she would not claim his full $68,000 inheritance, instead taking $40,500: the unpaid debt still owed of $31,500 plus $9000 as interest.

Mr Down agreed to this compromise; making a ten dollar test payment into her nominated bank account, ostensibly a precursor to payment of the agreed $40,500.

The court was told Mr Down then kept his entire inheritance, refusing to pay his sister anything.

Judge Rowe ordered payment of the agreed $40,500; on equitable grounds of promissory estoppel.

Terms of the compromise were agreed.

Mr Down’s oral agreement was further evidenced by his conduct in making the ten dollar test payment.

Sister Christine took him at his word, deciding in response not take any action freezing payment he might otherwise receive from their later father’s estate.

This response was to her detriment; now unable to freeze Mr Down’s share as he had already received payment.

Ordered to pay the agreed $40,500, Mr Down cannot now go back on his word, Judge Rowe said.

Hill v. Down – District Court (24.08.26)

26.243

Will: re Christian Paul Money

  

A text message sent from hospital by Christian Money eleven days before his death was accepted by the High Court as a valid will, leaving all his assets to his mother and his siblings.

Wills Act sets out strict formalities for a valid will: requiring the document to be in writing, signed, and acknowledged with the signatures of two witnesses.

Testamentary wishes falling short of these requirements can be validated as a will if expressing a deceased’s ‘testamentary intentions.’

The High Court heard Christian was admitted to hospital in October 2025, aged 49.

Three days later, he sent a long text to his brother Gabriel referring to his possible death, stating what should happen to his assets.

Gabriel saw his brother in hospital later that day, where Christian confirmed what he had texted, with one minor alteration.

He wanted all left to his mother Ruth and his siblings: Gabriel and Sarah.

Evidence was given of Christian having no other immediate blood relatives.

He owned his own home and lived alone.

There was no record of Christian being married, having lived in a de facto relationship, or having children.

With no evidence of any other person having a potential interest in the estate, Justice Tantrum ruled the text message and oral variation to be Christian Money’s final will.

re Christian Paul Money – High Court (21.08.26)

26.242

Sale of Land: van Duinen v. van Duinen

  

In a father/son dispute, the High Court ruled Mark van Duinen could not block his father Robert’s sale of a property near Ashburton because Mark’s supposed claim to a 25 per cent share of the property was an oral agreement only.

Oral agreements for sale of land are valid, but Property Law Act rules require written evidence of a contract to sell land if court enforcement is needed.

In the High Court, father Robert said there was never any agreement to sell a share of the Ashburton property to his son; at best it was an oral agreement for his son to build him a dwelling on the property in return for wages, free board and contributions towards living expenses, he said.

Mark told the High Court he moved from Blenheim to Ashburton in late 2023 in response to his father’s suggestion the Ashburton property could be improved prior to sale with construction of a new dwelling.

He claims there was an agreement he be paid wages and get free board plus further agreement he would get a 25 per cent share of the property on completion.

Mark went as far as fencing off what he considered would become his 25 per cent share of the property.

Plans for the build went through several iterations before father and son fell out, with Mark trespassed from the property, complaining he had not been paid agreed wages for work done.

When his father later sold the property, Mark lodged a caveat on the title, blocking final settlement to enforce his claimed 25 per cent ownership share.

Associate judge Lester ruled the caveat could not remain.

Any supposed agreement for Mark’s share of the land was oral only; not enforceable.

Evidence was given of a handwritten agreement, signed only by Mark, setting out when progress payments for his wages might be paid.  This written document made no mention of a 25 per cent share of the land supposedly promised him.

Mark needs to come back to court with further evidence if seeking to rely instead on the equitable doctrine of part performance, Judge Lester said.

Oral contracts for sale of land are enforceable where one party has already carried out his part of the bargain.

First: Mark must prove there was in fact an oral agreement for transfer to him of a 25 per cent share of the land, Judge Lester said.

Second: it must be proved Mark completed his part of the work as promised, such that it is inequitable for this oral agreement not to be enforced.

van Duinen v. van Duinen – High Court (21.08.26)

26.241

Freezing Order: Verma v. Ali

  

Former employees of Ameer Ali’s Christchurch business Fiji Food Distributors are owed wage arrears of $450,000; Fiji Food now wound up insolvent with its only asset supposedly being a bank account containing six dollars.  The High Court refused to partially lift current freezing orders over assets allegedly linked to Fiji Food director Ameer Ali.

Fiji Food Distributors formerly traded as Krazy Price Mart.   

In 2025, Employment Relations Authority held both Fiji Food Distributors Ltd and Mr Ali liable to pay damages to four former employees. 

They remain unpaid.

The liquidator’s first report for Fiji Food after its liquidation in 2026 records the company’s only asset as a six dollar bank balance.

This report also states there are believed to be Employment Relations Authority awards of some $600,000 owed by the company, currently unpaid.

The High Court was told of a series of property transfers from Mr Ali to his son Azmir Ali at a time when the ultimately successful employee claims were yet to be decided by the Authority.  Assets transferred out of Mr Ali’s name were his family home at Lexington Place in Christchurch, and his shareholdings in two family companies.

In June 2026, High Court freezing orders were placed over these assets.

Two months later, Mr Ali’s brother Shabbir Ali was in the High Court asking that the freezing order be lifted from a company called Alis Family Investment Ltd.

Shabbir Ali told the court that his brother Ameer never had any ownership interest in the company.  Ameer was made a shareholder in error; the shares should have been registered years ago in name of Ameer’s son Azmir and that the subsequent transfer of these shares out of Ameer Ali’s name into name of his son Azmir was simply correcting this error, he said.

The current freezing order was blocking development plans proposed for Alis Family Investment, he said.  

Justice Osborne refused to lift the freezing order to the extent it affected Alis Family Investments.

The ‘big picture’ did not warrant any partial release, he said.

Ameer Ali and his extended family, including his son Azmir and brother Shabbir, have close family and business connections with companies being run as family businesses, he said.

Here, Ameer who was facing significant financial peril as an Employment Relations Authority hearing approached, achieved in a matter of months a situation whereby, on the face of it, he became assetless, Justice Osborne said.

Questions were raised about how the Lexington Place family home was transferred to son Azmir at no apparent cost with indications that further borrowing against Lexington Place was then put into Alis Family Investments prior to the court application to have Alis Family Investment assets released from the High Court freeze.

The court was told Ameer Ali continues to live at Lexington Place.

Son Azmir is employed by the Air Force, living in Auckland.

The asset freeze remains, Justice Osborne ruled.  There is a risk of assets being dissipated prior to a full court hearing, he said.

Yet to be heard is a full Property Law Act court hearing on whether assets currently frozen should be transferred back into the name of Ameer Ali on grounds they were transfers intended to defeat creditors’ claims.

Verma v. Ali – High Court (20.08.26)

26.240

Lease: Westhaven Investments v. Viaduct Harbour

  

Economic logic bowed to legal rules in an unsuccessful challenge by Carey family’s Westhaven Investments to a ground lease rent review for their site in downtown Auckland’s Wynyard Quarter, with $2.6 million in dispute for a further eleven year’s rent.   

Westhaven claimed new rents should be discounted to reflect the fact that when current ground leases expire in 2054 all improvements on the land pass to the lessor: Viaduct Harbour Holdings Ltd.

Investors behind Viaduct Harbour Holdings acquired large swathes of prime commercial land bordering Auckland harbour in the 1990s, from the then Auckland Harbour Board.

The area has been rejuvenated, with mixed-use commercial, residential and hospitality sectors.

Land is leased out on long-term leases, ensuring developers have sufficient time to recover a return on their capital invested as sites are redeveloped.  

Westhaven Investments building on Westhaven Drive sits on a 72 year ground lease with just over thirty years to run.  An eleven-year rent renewal came due in 2022.

Rent renewals for its lease are assessed on unimproved value of the land; the leased land is assumed to be a vacant lot.

For terminating ground leases where there is no contractual right to compensation for improvements made to the land, the day of reckoning comes at conclusion of the lease.  The lessor collects what has been described as a windfall gain: buildings constructed on the land by lessees during term of the lease.

For lessee sales during term of the lease, value of a lessee’s right of occupation steadily reduces, eventually reducing to zero.

At an arbitration to settle the 2022 rent renewal, Westhaven Investments said new rents should be reduced to reflect what a prudent lessee would pay now to take over the lease, recognising the fateful day in 2054 when the lease terminates.

Westhaven offered $340,000 annual rent for the next eleven-year period; Viaduct Holdings wanted $540,000.

Arbitrators agreed with Viaduct, stating the $540,000 calculation was consistent with both terms of the lease and the intended purpose of the rent review.

Both sides previously agreed their arbitration would be ‘final and binding.’

Westhaven appealed to the High Court, claiming arbitrators made an ‘error of law.’

Ruling that the arbitrators were correct, Justice Becroft accepted that the wording and commercial setting of the lease counted against any discount.

Viaduct argued that if rent were to be discounted at the ‘back end’ because of the shortening lease term, it should logically have been higher at the ‘front end.’

Lessees should not get the benefit of a back-end reduction without earlier paying a higher amount at the front end, it said.

Westhaven Investments Ltd v. Viaduct Harbour Holdings Ltd – High Court (20.08.26)

26.239

Rent-to-Buy: Wells v. Faasavalu

  

Faced with eviction from their Otara home, South Auckland couple Vainiua Faasavalu and Fia Tuiaana had the court reopen earlier litigation, belatedly arguing a thirty year rent to buy agreement for their home is an oppressive credit contract.

As a general rule, contracts for purchase of land are not covered by consumer credit protection legislation.  They are not credit contracts.  They are purchase of an asset, typically with agreement that payment in full settlement is delayed by a few weeks.

Longer delays before full payment, with a requirement to pay interest in the interim, sees rent-to-buy deals for land potentially treated as consumer credit contracts.

The High Court was told the couple signed up in March 2005 to buy their Clayton Avenue property with weekly instalments towards the purchase price plus interest spread over three decades.

The vendor was a company associated with Mr Faasavalu’s then employer.

Members of the Wells family, shareholders of this company, later took over the thirty year contract to sell.

They sued to recover possession of the land in late 2025 after Mr Faasavalu and Ms Tuiaana fell behind on weekly payments.

The Wells claim $963,500 is owed: $213,500 unpaid balance of the purchase price and $750,000 for outstanding and ongoing interest, plus charges.

The two ignored court papers served on them, resulting in an unopposed Property Law Act order requiring them to leave Clayton Avenue.

They later got High Court approval to reopen their case, saying they did not understand the significance of court documents served on them earlier.

Justice Gault said they have an arguable case that the rent-to-buy contract is a consumer credit contract that should be reviewed.  

They allege the contract is oppressive in that Mr Faasavalu was dissuaded from getting independent advice when signing up and that it was obvious he would struggle to pay weekly instalments of $460 on a then take-home pay of $600.   

While arrears still remain unpaid, the court was told the two are currently meeting a requirement they pay $650 weekly.

Whether their rent-to-buy contract should be amended as an oppressive credit contract is yet to be decided.

The disputed contract was signed in early 2005.  Rules in the subsequently repealed Credit Contracts Act still apply.

Current rules in the Credit Contracts and Consumer Finance Act came into effect several weeks after their rent-to-buy agreement was signed. 

Wells v. Faasavalu – High Court (19.08.26)

26.238

Family Trust: Norton v. Kemp-Towns

  

Registered on title to her mother’s Auckland property as trustee of her mother’s family trust gave daughter Dee Kemp-Towns no rights of personal occupation after her mother shifted to care in a retirement village, with Ms Kemp-Towns also disputing circumstances of her removal as trustee.

Ms Kemp-Towers moved into her mother’s Puriri Avenue Greenlane home in July 2024, assisting after her near ninety year old widowed mother was injured in a fall.  

Some nine months later, her mother established a family trust with Puriri Avenue later transferred to this trust.

Ms Kemp-Towers came to be registered on title to Puriri Avenue as one of two founding trustees; the other being her mother’s lawyer, Susan Norton.

The High Court was told Ms Norton arranged to have Ms Kemp-Towers replaced as joint trustee after concerns about her operation of her mother’s bank account, with allegations of improper withdrawals of some $37,000.  Police became involved.

Ms Kemp-Towers remained at Puriri Avenue, refusing to leave, after her mother’s September 2025 shift to a retirement village.

Sale of Puriri Avenue is necessary to fund village care expenses.

The High Court dismissed Ms Kemp-Towers claim that the fact her name was listed on title to Puriri Avenue gave her the right to live there.

Legal formalities to have her replaced as one of the named trustees on the title were yet to be finalised.

Merely holding title to an asset as trustee gives no personal ownership rights, Associate Judge Wild ruled.

Trustees must comply with terms of any trust.

While she is named as a beneficiary, wording of her mother’s trust gives Ms Kemp-Towns no personal occupation rights.

She was given two weeks to leave.

Complaints by Ms Kemp-Towers about circumstances of her removal as a trustee were a separate legal issue, irrelevant to her unfounded claim to an occupation right, Judge Wild ruled.

Norton v. Kemp-Towns – High Court (19.08.26)

26.237

Fraud: Rivers v. R

  

Court of Appeal confirmed former chartered accountant Luke Rivers near six year sentence for fraud after Rivers (also known as Mai Qu) fraudulently under-declared taxable income for almost a decade, reducing his liability for child support payments, and then pocketed nearly one million dollars after making multiple fraudulent covid-19 wage subsidy applications.

In July 2025, Rivers surrendered this one million dollar benefit in a court-approved proceeds of crime settlement.

Court of Appeal stated his five year eleven month sentence was appropriate for offences committed, including: knowingly providing false information to Inland Revenue; using forged documents; and money laundering.

His offending was described as highly sophisticated, calculated and multi-faceted.

Amongst the fraudulent covid-19 wage subsidy applications were claims on behalf of non-existent employees in three different companies with the groundwork laid by Rivers first obtaining IRD numbers in their names using forged documents and false email addresses.

He used employee information from non-trading client companies to make further claims.

He falsely claimed to be a full-time employee of five different companies he controlled.

Investigations were hampered by his dealings with Inland Revenue being transacted variously in both his birth name and his current name.   

Money laundering charges followed Rivers actions in setting up a bank account in Singapore, using a forged passport under a false identity, to hide covid-19 subsidy payments fraudulently received.

Separately, Court of Appeal dismissed suggestions that his term of imprisonment be reduced because of the more than two years spent on electronically-monitored bail prior to sentencing.     

This cannot be considered an onerous burden justifying any reduction, the court said.

Rivers v. R – Court of Appeal (18.08.26)

26.236

Construction Adjudication: MBC Lincoln v. Floor Masters

  

A Construction Contracts Act adjudicator was within her rights cancelling an adjudication, after ruling there was no evidence that claimant MBC Lincoln was party to a now disputed flooring contract at a West Auckland supermarket.  This cancellation deprived MBC Lincoln of what would otherwise have been a $111,300 win by default.

Michael Chan’s MBC Lincoln Ltd paid in full Floor Masters invoices for flooring work, now claiming $111,300 damages alleging faulty workmanship.

After a preliminary Construction Contracts Act hearing, the adjudicator said no ruling could be given.

Paperwork suggested Floor Masters entered into a contract with either Mr Chan personally, or his Lincoln Road supermarket: Tai Ping. MBC Lincoln Ltd’s name does not appear on any paperwork.

Mr Chan controls both Tai Ping and MBC Lincoln.  Tai Ping supermarket is a tenant in MBC Lincoln’s building.

MBC Lincoln wants the adjudication to continue.  Floor Masters had failed to file its required response to MBC’s claim within Construction Contracts Act time limits.

As a general rule, a missed deadline means sudden death; the response is ignored.  The claimant wins by default.    

In the High Court, MBC Lincoln asked for judicial review of the adjudicator’s decision, claiming she should first have asked for extra evidence from MBC Lincoln justifying its claim to be a party to the flooring contract, instead of simply dismissing the adjudication.

Judges are wary of judicial review applications being used to disrupt the speedier ‘pay now, argue later’ adjudication process set out in the Construction Contracts Act.

Judicial review has been allowed where adjudicators have made fundamental errors, such as: not actually reaching a decision; or ruling on something they were never asked to decide.

In this case, Justice MacGillivray said the arbitrator could have asked MBC Lincoln for further information, but she was not obliged to.

It was MBC Lincoln’s responsibility to ensure the necessary Construction Contracts Act evidence was provided upfront.

MBC Lincoln’s request for judicial review was dismissed.

Its claim for $111,300 damages now takes the long route; arbitration or litigation.

MBC Lincoln Ltd v. Floor Masters Ltd – High Court (17.08.26)

26.235

Maori Land: Tawhitinui Marae v. Holloway

  

Tenancy Tribunal has no jurisdiction over occupation rights to Maori reserve land, leading trustees of a Bay of Plenty marae trust have the Maori Land Court evict troublesome occupiers of a papakainga on Old Highway Road between Tauranga and Omokoroa.  

Clayton and Charene Holloway were granted permission to live at a homestead on the site in late 2025 for a three to six month trial period, on the strict condition there was to be no drug use.

The court was told of papakainga neighbours felling threatened by the Holloways’ behaviour: drug use; setting fires; destroying boundary fences and trees; and entering neighbouring houses uninvited.

They refused to leave when asked, responding with threats.

Mr Holloway has ancestral links to the land.  He told the court of having previously lived at the homestead for many years, looking after his grandmother.

The land is now held in a trust.  Mr Holloway has no greater right to live at the homestead than any other trust beneficiary, Judge Thomas said.

Trustees decide who can reside there and how the land is managed, she said.

The Holloways become trespassers by refusing to leave after being asked by trustees, she ruled.

They were given 21 days to leave; ordered not to return to the homestead for twelve months.

Whether the Holloways can later return is a matter for negotiation with trustees, Judge Thomas said.

Tawhitinui Marae Reserve Trust v. Holloway – Maori Land Court (17.08.26)

26.234

Fence: Three Holdings Ltd v. Leggett

  

Auckland’s Herne Bay has some of the most expensive real estate in New Zealand with new neighbours spending two days in court arguing over twenty centimetres added height to a boundary fence on Sentinel Road.

As Judge Clark noted, Kristina Leggett at number 47 Sentinel Road was opposing construction of a fence on her common boundary with Darryl Montgomery’s number 2/49 when his proposed two metre high fence could be built as of right under council rules without need for neighbour’s consent.  It was primarily an argument about where the new fence should be placed and questions of access for contractors, he said.

The District Court was told their differences arose after Ms Leggett’s 2021 purchase of number 47.  Prior to her purchase, Mr Mongomery made it clear to intending buyers that the existing fence was not on the legal boundary, instead sitting inside his property at 2/49.

Subsequently, no agreement could be reached between the two on a replacement boundary fence.  Ms Leggett objected to any increase in height, claiming this would affect her privacy and block light.

Mr Montgomery wanted to increase height of their boundary fence from an existing 1.8 metres to 2.0 metres as part of the rebuild.

When they were in court seeking a Fencing Act enforcement order, with Mr Montgomery having already arranged working drawings and building quotes, Ms Leggatt then offered a compromise at 1.9 metres.

Judge Clark ordered construction of a fifteen metre long two metre high fence along their legal boundary of the type proposed by Mr Montgomery, with Ms Leggett to pay half the cost up to a maximum of $3000.  She must allow fencing contractors access through her property.

Three Holdings Ltd v. Leggett – District Court (14.08.26)

26.231

Trans-Tasman Enforcement: Supermega Market v. Sunnya

  

Found liable by a New South Wales court for ‘knowingly assisting’ a fraudulent scheme to divert business revenue from Australian nutritional products company Sunnya Pty Ltd, Auckland food manufacturer Supermega failed in attempts to block enforcement in New Zealand of Sunnya’s Australian court judgment.

The New South Wales Supreme Court ruled Supermega’s West Auckland director Yi Wu was party to a scheme in which false invoicing of Sunnya exports to China had the effect of diverting company revenue to a Sunnya director’s family company.

Supermega manufactures milk product in New Zealand under contract to Sunnya.  

Trans-Tasman Proceedings Act allows quick-fire enforcement in New Zealand of judgments from Australian courts.  Once registered in New Zealand, an Australian judgment is enforceable as if it were a judgment of a New Zealand court.

In May 2025, Sunnya registered its successful Australian court judgment in New Zealand.

It holds Supermega Market Ltd liable to pay damages for assisting two former Sunnya directors in their scheme, diverting business income from Sunnya.

Australian courts have yet to determine damages payable.

In an unsuccessful challenge to New Zealand registration, Supermega argued the Australian litigation was about trademarks; excluded from trans-Tasman enforcement as ‘immovables,’ it claimed

Land is classified at law as immovable; it cannot be moved from one country to another.

Litigants have similarly argued that intellectual property rights such as patents and trademarks should be treated as ‘immovables,’ since they apply only in the territory where registered.  They cannot be enforced outside the country of registration.

Contrary to labelling used by some manufacturers, there is no such thing as worldwide patent rights or trademark rights.

In the New Zealand High Court, Justice Walker ruled Sunnya’s litigation was not in fact a dispute about trademarks, though trademarks were front and centre in some of the disputed evidence.  It was at heart a dispute about former Sunnya directors’ breach of fiduciary duty and Supermega’s knowing assistance of their breach, she said.

In any event, New Zealand’s Trade Marks Act treats trademarks as personal property, Justice Walker said.  As personal property, they cannot be construed as ‘immovable.’  

Sunnya’s Australian court judgment stands enforceable against Supermega Market in New Zealand.

Supermega Market Ltd v. Sunnya Pty Ltd – High Court (14.08.26)

26.233

Mortgagee Sale: Sood v. ASB

  

High Court dismissed attempts by Ankush and Saloni Sood to block ASB’s mortgagee sale of their Auckland properties with the Bank forcing a sale after discovering it was misled during negotiations intended to partially reduce the Soods’ three million dollar bank debt and refinance the balance.

The Soods had earlier received deposits of $375,000 in what proved to be a failed attempt to achieve a private sale of two properties at a time when the Bank was pressing for their reduction of bank loans eventually exceeding three million dollars.  The Bank belatedly learnt of their earlier contract negotiations and the fact that they had received and spent the $375,000 deposit.

The High Court was told that this purchaser is suing the Soods for recovery of the deposit paid.    

Complicating refinancing negotiations was the fact that ASB’s mortgage was collateralised across three properties owned by the Soods in Auckland suburbs of Bucklands Beach and Pakuranga Heights.

Bank loans were made through 2021 and 2022, with the Soods in financial difficulty within four years.

In October 2025, the Soods sold Bucklands Beach in partial reduction of bank borrowings.

The Bank retained security over two Pakuranga Heights properties.

Evidence was given of the Soods keeping hidden from ASB what turned out to be unsuccessful attempts to sell one or both of the Pakuranga properties, at time when they were attempting to renegotiate bank funding.

In April 2026, ASB gave formal notice of a mortgagee sale.  No mortgage payments had been made for over a year, other than net proceeds from sale of Bucklands Beach.

A little under three months later, the Bank had an unconditional sale at $1.2 million.

Seven days before settlement, the Soods asked the High Court to block the sale.

They alleged ASB failed to take reasonable care to obtain the best price.  They pointed to their earlier sale attempts as proof of market interest at higher prices.

ASB acted properly in its mortgagee sale process, Justice MacGillivray ruled.

The Bank obtained property appraisals from two different real estate firms, undertaking a second marketing programme after the properties were passed in when first offered at auction.

The $1.2 million eventual sale price was within forced sale values assessed by one real estate firm and only $80,000 below the bottom of the range assessed by the second.  

The sale price achieved was what could be reasonably expected from a forced sale in the market at the time, Justice MacGillivray said.

An injunction blocking the sale would prejudice the purchaser while further escalating the Soods’ accumulating debt owed ASB, he said.

Sood v. ASB Bank – High Court (14.08.26)

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