Limitation Period: Heartland Bank v. Campbell

  

The High Court allowed Heartland Bank to chase down part of a $910,000 debt otherwise statute-barred as being more than six years overdue because delays arose from the Bank’s generosity in allowing Taranaki debtors Caroline and Calvin Campbell extra time to offer an acceptable repayment plan.

The High Court was told $910,000 remained owing from a 2012 commercial transaction in which the Campbells and their family trust borrowed $780,000 to purchase a commercial property on Port View Crescent in New Plymouth.  They stood as guarantors.  Funds were borrowed in the name of a company controlled by Ms Campbell.

This venture into commercial property was not a success.  Two tenants left.  There was insufficient cash to service the Heartland Bank loan.

Evidence was given of Heartland calling up the loan in 2017.

A subsequent forced sale of Port View did not cover the full debt.

Heartland Bank issued a charging order over the Campbells’ New Plymouth home; first step to having Heartland sell their home to recover the guaranteed shortfall.

Charging order enforcement was delayed several years while the Campbells first made a complaint to the Banking Ombudsman about manner of the Port View forced sale and then continued their ultimately unsuccessful discussions with Heartland about settling the outstanding debt.

Heartland pressed the Campbells to sell their home.  They entertained plans to subdivide before sale.

For Heartland, time ran out.

A Limitation Act six year rule meant the remaining debt was no longer recoverable; it was time-barred.

The charging order lapsed.

Back in the High Court, Justice Gardiner gave approval for Heartland Bank to resume its charging order sale of the Campbells’ family home to recover the remaining debt, now calculated at $417,400.

Refusing approval would discourage banks from continuing to negotiate with customers as the six year time limit approached, she said.

The amount Heartland Bank is allowed to recover was reduced, in part, by the Bank deciding to lower the interest rate compounding on unpaid arrears from eighteen per cent to five per cent.

Heartland Bank Ltd v. Campbell – High Court (9.12.25)

26.044

Restraint of Trade: Raine & Horne v. Bratschi

  

Rebranding Mike Pero real estate franchises as Raine & Horne still leaves real estate staff bound by earlier Mike Pero restraints of trade should they leave to set up in competition, the High Court signalled in a dispute over what was formerly a Southland Mike Pero franchise.

After Australian financial service group Liberty Financial Group bought out Mike Pero’s real estate franchises in 2020, it set about re-branding the seventy-something branches as Raine & Horne.

Not all Mike Pero franchises are enamoured with the re-brand.

The High Court was told Sheree Williams and Kathrine Bratschi, holders of a Mike Pero franchise in Gore, called it quits.

Ms Williams paid the $50,000 termination fee stated in their Mike Pero franchise agreement, plus a further sum to be released from a restraint of trade agreement preventing her from selling real estate in Gore for the next two years.

Ms Bratschi did not do similar, before taking up work in 2025 with rival firm Aritzo Real Estate.

She claimed in the High Court that her contract was with Mike Pero and that newcomer Raine & Horne could not enforce a Mike Pero restraint of trade against her.   

In a preliminary High Court hearing, Justice Osborne ruled Liberty Financial has a strong argument that re-branding does not affect its right to enforce existing Mike Pero restraints of trade.

Whilst allowing Ms Bratschi to continue working for Aritzo, he ruled she must keep full records of all sales made for two years through Aritzo, should a later full court hearing decide Liberty is entitled to damages.

The court was told Raine & Horne has yet to set up shop in Gore since Liberty’s Mike Pero branded franchise folded.

Raine & Horne New Zealand Pty Ltd v. Bratschi – High Court (8.12.25)

26.042

Maori Land: Malcolm v. Te Hana Trust

  

A 26 year delay in registering with Land Information a status change for Maori land led to protracted legal argument over who owned a Bay of Plenty property, highlighting ongoing problems integrating Maori title into the separate Land Information registry which records ownership of most New Zealand land.

The two systems of recording land ownership have little in common.

Changes of ownership to Maori land are overseen by specialist Maori land courts; a regime designed to maintain a written record of ownership changes, ensuring land in customary Maori ownership devolves according to Maori custom.

By contrast, there is no judicial oversight of changes to ownership for land described as‘general land,’ recorded on an electronic register maintained by Land Information.

General land encompasses most residential, commercial and rural land in New Zealand.

For general land, the maxim is: ‘the register is everything.’  Any person registered with Land Information as owner of general land, in the absence of fraud, has conclusive rights of ownership.

Tight legal procedures surrounding transfers of general land minimise instances of fraud.

Administrative problems have followed a partial integration of the two separate records of land ownership.

For Maori land having status of ‘Maori freehold land,’ ownership can be recorded on a Land Information title (with Land Transfer Act rules applying).  The requirement for Maori Land Court oversight is signalled by noting on the Land Information title that the land in question has Maori freehold status.

For Te Poroa whanau in Bay of Plenty, administrative stuff-ups led to disputed ownership of a small block of ancestral land.

Maori Land Court records said it was Maori freehold land; Land Information records said it was general land. 

The Maori Appellate Court was told that the Maori Land Court approved in 1996 a two hectare property in Maori ownership, then currently held as general land, to be given the status of Maori freehold land.

By oversight, this change in status was not noted on the existing Land Information title.

Ten years later, the property was transferred to a family trust, known as the Te Hana Family Trust; part of a whanau estate planning scheme.

With no designation on the Land Information title that this land was Maori freehold land, lawyers did not realise Maori Land Court approval was needed.

This mistake emerged only after deaths of Joseph and Grace Malcolm, who set up the Te Hana Trust.

Those inheriting from Joseph and Grace said the land was theirs.  Earlier transfer of the family’s Maori freehold land to trustees of the Te Hana Trust was invalid; no Maori Land Court approval was given, they said.

Beneficiaries of the Te Hana Trust said their interest was noted on the title first; the land was theirs.  Trustees of their Trust said failure to get Maori Land Court approval was an honest mistake, they were not party to any fraud; Land Transfer Act rules meant the Trust could not be removed as owner.

The Maori Appellate Court said land cannot have two different statuses at the same time.  It cannot be both general land and Maori freehold land.

The effect of Land Transfer Act rules is that status of general land changes only when that status change is registered on the Land Information title, it ruled.

Te Hana Trust is owner, the court said.  There was no fraud in the manner it became registered as owner.

When Te Hana Trust’s ownership was registered, status of the land was recorded, albeit incorrectly, as general land.  No Maori Land Court approval was then required.

Belatedly correcting the Land Information register to record the land’s status as Maori freehold was irrelevant to validity of Te Hana Trusts’ existing ownership.

Malcolm v. Te Hana Trust – Maori Appellate Court (8.12.25)

26.041

Cartel: Commerce Commission v. Sweetspot

  

Naively assuming that a proposed market share arrangement was industry practice, and comforted that a competition lawyer had signed off on the deal as tickety-boo, was not enough to save Auckland-based courier company GoSweetSpot from a $525,000 fine for cartel behaviour in breach of the Commerce Act

Sweetspot Group Ltd was the first penalised in a Commerce Commission crackdown on anti-competitive behaviour within the annual one billion dollar courier industry.

The High Court was told of market sharing arrangements signed by Sweetspot in 2015 with Freightways’ subsidiary Post Haste Group, and in 2019 with Freightways itself, in which each agreed not to poach the other’s customers.

If offered work by an existing customer of their erstwhile competitor, each agreed not to quote for the new work.  The new job could be taken up only after discussions with their supposed competitor.

These non-compete arrangements had been bundled into a wider agreement on pricing for use of Sweetspot’s industry specific proprietary software.  

Commerce Commission was told Freightways initiated these agreements, then having Sweetspot sign.  Freightways told Sweetspot the deal had been signed off by a competition lawyer as compliant with the Commerce Act.

It was not compliant.

Later admitting to breaching the Act, Sweetspot told the Commerce Commission it was not aware of the illegality when signing up.

The High Court imposed a $525,000 fine.

Commerce Commission v. Sweetspot Group Ltd – High Court (8.12.25)

26.043

Lawyer: Stebbing v. Stebbing

  

Law firm Farry Law was disqualified from acting in fiercely fought litigation between two branches of the Stebbing family after allegations it has taken a partisan approach assisting brother Robert whilst still acting as supposedly independent trustee of a Stebbing family trust.

Vaughan Stebbing alleges his brother is conniving to cut Vaughan’s children out of their expected inheritance of Stebbing assets.  Robert alleges he was misled in discussions following their father’s 2009 death which led to corporate restructuring seeing Vaughan’s children being the ultimate beneficiaries of Stebbing family assets.

Their father Eldred Stebbing became a legend in music circles, setting up an Auckland recording studio in the 1950s.

At time of his death, he owned a fifty per cent stake in two companies: Stebbing Recording Centre Ltd and Stebbing Properties Ltd.  Sons Robert and Vaughan each held a twenty five per cent stake.

The High Court was told subsequent corporate restructuring saw multiple family trusts established.  Trust deeds were carefully drafted to avoid spouses having any claim against Stebbing assets on divorce.

The High Court was told that Robert only learnt decades later that nearly all Stebbing assets might pass eventually to Vaughan’s children; his spouse could inherit only an eight per cent stake held in Robert’s own name.

A monumental falling out between brothers has seen each suing the other.

The court was told Vaughan’s 2023 offer to buy out his brother at $13 million was refused.

In a preliminary High Court hearing, Vaughan had legal advisors Farry Law restrained from acting as counsel for brother Robert in any subsequent court hearing.

He alleges Robert, in league with Farry Law as family trustee, is secretly rewriting trust deeds to now exclude his children as beneficiaries.

He alleges copies of draft documents were not released when requested, while copies with critical sections redacted were provided to accounting advisors.

Associate Judge Sussock said this highly charged dispute has arisen through a failure to provide documents when requested, with no real explanation given.

Farry Law’s legal advice to Robert is likely to be a central issue in any subsequent court hearing, she said.  It is not appropriate for Farry Law to then also represent Robert in court, she ruled.

Lawyers cannot be a witness at trial and also act as counsel; there is a clear conflict, affecting counsel’s objectivity.

Stebbing v. Stebbing – High Court (5.12.25)

26.040

Insurance: FMA v. Tower

  

For the second time, Tower Insurance has overcharged customers entitled to multi-policy discounts.  The first, saw Tower in 2017 get a telling off from the Commerce Commission but no financial penalty in return for a promise to upgrade its systems.  The second, under a new regulator in 2025, saw Tower negotiate a seven million dollar penalty with the Financial Markets Authority.  Now, Tower has decided to ditch multi-policy discounts.

Tower talked its way out of a threatened 2017 prosecution by promising it would fix internal systems causing premium miscalculations and undertaking to compensate all affected customers.

Tower’s project Bluebird was supposed to iron out problems experienced in migrating data from legacy systems.  It was not successful.

The High Court was told similar problems arose subsequently; another migration issue, but a different one.

Tower self-reported to the Financial Markets Authority (FMA) its overcharging of customers for a ten year period ending early 2025.

Some 61,000 customers were affected; overcharged about eleven million dollars.

Over the same period, other customers were under-charged nearly ten million dollars.

Tower compensated customers overcharged.  It did not pursue customers under-charged.

It was not enough to miscalculate premiums, Tower also mis-described the discount policies it inaccurately applied.

Tower faced legal action under the Financial Markets Conduct Act both for overcharging customers and for publishing misleading marketing material and Facebook posts which misrepresented its supposed multi-policy discounts.

The High Court approved a negotiated settlement between the FMA and Tower with Tower ordered to pay a seven million dollar penalty.

FMA has first claim on this money to pay its costs.

Financial Markets Authority v. Tower Ltd – High Court (5.12.25)

20.039

Asset Forfeiture: Commissioner of Police v. Jacobson

  

With an extensive marketing campaign for his business and an impressively diversified investment portfolio, Sharma Saili Jacobson could be the textbook example of a successful entrepreneur.  But no. His Whangarei business was dealing in drugs; the investment portfolio seized as proceeds of crime.

In a court approved settlement, Jacobson agreed to surrender investment assets totalling $222,300.

Police claim he generated income totalling at least $963,000 but settled for an agreed lower figure of $222,300.

In 2023, Jacobson’s sentence was reduced on appeal to two years and eight months imprisonment for possession and dealing.

The High Court was told of Jacobson marketing a variety of prohibited drugs through use of mass texts sent to over one hundred people each time.

To camouflage his trail, he changed his phone number every 28 days.

Police analysis of his phone records identified some 3600 transactions with nearly 400 different customers over a twenty month period.

As part of the negotiated settlement, Jacobsen agreed to surrender assets held in cash, bank deposits with three different banks, cryptocurrency and shares in six NZX listed companies.

Jacobson also signed a statutory declaration stating he has no other assets available to meet a proceeds of crime forfeiture order.

If untrue, Police may later seize further assets that come to light.

Commissioner of Police v. Jacobson – High Court (5.12.25)

26.038

Structured Finance: Nirvana Farm v. FR Waipuna

  

It was a structured finance deal akin to a mortgage Nirvana Farm claimed, trying to revive its lapsed option to repurchase its Taranaki land blocks being planted out in pursuit of carbon credits.  Nirvana struggled to find the cash needed to buy land recently valued at $7.8 million with its option price to buy being $4.69 million.   

Controlled by Whanganui honey producer Henry Mathews, Nirvana’s financial position has been fragile since market prices for honey plummeted during the covid-19 pandemic.

At a time when Nirvana owed BNZ some $52 million, a credit line was opened up with Singapore-based Vitol Asia Ltd offering $55 million in exchange for carbon credits.

The High Court was told Vitol’s financing required Nirvana to plant a new forest on some 3000 hectares of land near Stratford, land then currently used for harvesting manuka honey.

In 2022, foresters PF Olsen Ltd were contracted to plant and manage the new plantation on Nirvana’s behalf.

Evidence was given of Nirvana failing from the outset to pay Olsen’s contracting charges on time.  This led to Vitol Asia making good Nirvana’s defaults, for a brief period.

Olsen subsequently demanded invoices be pre-paid, before work would continue.  This resulted in Vitol Asia banging heads together, seeking a commercial solution.

Nirvana offered Olsen mortgage security over the Stratford land; giving it the status of a secured creditor for unpaid invoices.  Olsen declined, suggesting Nirvana sell its land to Olsen with a right to buy this land back later for a fixed price.

Nirvana’s further offer of mortgage security was refused.

A subsequent 2024 contract saw Nirvana agree to sell its land to Olsen for $3.86 million, being the balance of the contract price due under their forestry management contract.  In addition, Nirvana was required to make monthly payments of $50,000; to cover Olsen’s ‘interest and other costs.’

Nirvana had the option to buy back the land in three month’s time.  It failed to raise the cash.

Lodging caveats over the land to block Olsen’s planned onward sale, Nirvana claimed its sale plus option to buy back was analogous to a mortgage.

Olsen was in breach of duties as a mortgagee by not giving Nirvana sufficient time to refinance, it alleged.

Associate Judge Skelton ordered removal of the caveats, allowing Olsen’s onwards sale to proceed.

It was clear from the 2024 discussions that Olsen was not willing to take mortgage security, he said.  It wanted title to the land.  There was no intention that the sale plus option to buy back could be construed as a common law mortgage, he said.

The court was told Nirvana Farm Ltd is in receivership.  Nirvana receivers took no part in the litigation.  They raised no objection to Mr Mathews making a claim against Olsen on Nirvana’s behalf.

Nirvana Farm Ltd v. F R Waipuna Ltd – High Court (5.12.25)

26.039

Mutual Wills: re Estate of Brian Monk

  

Despite increasing numbers of blended families, the High Court refused to budge from a long-standing rule that assets disposed of under agreed mutual wills are not available for any claim by surviving children under the Family Protection Act.

Associate Judge Taylor struck out a family protection claim by the late Brian Monk’s four children, with his children concerned that his widow, who was Mr Monk’s third wife, would spend up large, leaving them with nothing.

In their separate wills, both Mr Monk and his widow stated each agreed not to change their wills, dividing their assets, on the death of whoever survived the other, equally between all children in their blended family.  Mr Monk has four children from earlier marriages; Ms Monk two children from her previous marriage.

On Mr Monk’s death in 2023, assets passed to his widow.

Her will promises that on her death her assets will be divided equally between the six children.

In the High Court, Mr Monks’ natural children alleged his widow is profligate, likely to spend ‘their’ inheritance whilst her children will remain comfortably off with expected inheritances from their grandmother.

Mr Monk’s children sued in the High Court, asking for an immediate payout under the Family Protection Act.

This Act allows family to claim against a parent’s estate.

Enacted as social legislation, it was originally intended to ensure that close family, who are in need, receive proper maintenance and support on their parent’s death.

The Act has received a liberal interpretation, resulting in court rulings rearranging inheritances as between surviving children.

Judge Taylor struck out their claim.

Court rulings stretching back nearly a century make it clear that assets passing under agreed mutual wills cannot be subject to a Family Protection Act claim, he said.

Across the Tasman, Australia’s highest court has overturned the rule.

In the New Zealand High Court, Judge Taylor was unwilling to do the same.  It is for the Court of Appeal or the Supreme Court as our higher courts to decide, he ruled.

re Estate of Brian Thomas Monk – High Court (5.12.25)

26.036

Asset Forfeiture: Commissioner of Police v. Morrison

  

Police continue to be commercially flexible when negotiating Criminal Proceeds (Recovery) Act asset confiscations.  Convicted meth dealer Tamati Morrison bargained down the value of assets to be seized and negotiated a three month pause, giving time to raise cash and avoid sale of his Upper Hutt family home.

Police reserved its right to verify the source of any funds put up in payment, wise to the possibility that proceeds of other crimes might be used to pay off this proceeds of crime penalty.

The High Court was told of Morrison’s two convictions for methamphetamine offences; in 2018 and 2022.

Police claim cash totalling $727,000 was generated by his illegal activity; Morrison claims he made $60,000, at most.

The High Court approved a negotiated proceeds of crime settlement with Morrison agreeing to pay $250,000.  Most of this will be paid with cash seized by Police earlier from Morrison, plus cash in bank accounts and sale of goods already seized.  These goods included a Chevrolet Impala, jetski and e-bike.    

A balance of $95,000 is to come from sale of Morrison’s family home, subject to him refinancing his home to raise the necessary cash.

The High Court was told the home has a current rating valuation of $640,000 with some $450,000 outstanding on a mortgage currently registered over the property.

Commissioner of Police v. Morrison – High Court (4.12.25)

26.035

Mortgagee Sale: Loan Investment Trustees v. Burrell & Porter

  

Owners of a distinctive Wellington ‘arts and crafts’ style property were still both liable for a one million dollar shortfall on mortgagee sale after part-owner, property developer Richard Burrell, bought in at the first of two mortgagee sales and then defaulted on his $3.55 million offer.

The Brougham Street property on Mount Victoria was subsequently sold by mortgagee Loan Investment Trustees Ltd for $3.26 million; a shortfall on the mortgage debt owed.

Diana Potter, Mr Burrell’s estranged spouse, claimed unsuccessfully she should be excused part of the shortfall that they both otherwise owed Investment Trustees because it had not exercised its right to claim nearly $300,000 damages from Mr Burrell for defaulting on his contract to buy, leading to a second sale at a lower price.

With land transactions, a defaulting buyer is generally liable to pay damages for any loss on resale. 

The High Court was told of the two defaulting on a short-term $3.6 million loan from Investment Trustees secured over their Brougham Street home due for repayment in early 2025.

Mr Burrell listed the property for sale before the loan fell due, though Ms Potter refused to sign the listing agreement.  No buyer was found.

One month after the Investment Trustees loan fell due, a Family Court order transferred full ownership of Brougham Street to Ms Potter.

Investment Trustees put Brougham Street up for tender in a mortgagee sale.  It accepted Mr Burrell’s $3.55 million tender; the highest of four on offer.

One month after Mr Burrell defaulted on this purchase, Investment Trustees sold to a third party.

Associate Judge Lester ruled any damages claim Investment Trustees may have against Mr Burrell under his now-cancelled purchase does not impact on its Property Law Act rights as mortgagee to recover from both Mr Burrell and Ms Potter for the shortfall on their loan.

They were held jointly liable to pay $1.01 million.

Another claim that Investment Trustees did not take reasonable care to get the best price on sale was dismissed.

The current market was properly tested, Judge Lester ruled.

Loan Investment Trustees Ltd v. Burrell & Potter – High Court (4.12.25)

26.034

Fraud: Thompson-Bell v. R.

  

Promoted to finance administrator on her mother’s recommendation, Ariana Thompson-Bell stole nearly half a million dollars from an un-named Waikato charitable trust in a two year false invoicing scam.

Her mother made partial reimbursement.

On appeal to the High Court, Justice Becroft confirmed Thompson-Bell’s two years three months term of imprisonment, with $100,000 reparations to be paid.

Trust members asked she be spared jail. While views of victims expressed at a restorative justice conference are relevant, they are not determinative, he said. 

The court was told Thompson-Bell has a commerce degree from Waikato University, working for a short time at KPMG.

Her mother subsequently offered her promotion to a finance role at the Trust, given Thompson-Bell’s qualifications and her desire for job flexibility while raising a family.

Thompson-Bell had been working for the Trust in lesser roles since 2014.

Over a two year period, Thompson-Bell stole nearly half a million dollars in over eighty separate transactions; creating false invoices, making payments into various accounts she controlled, plus an account set up in the name of her twelve year old child.

Evidence was given that money stolen was used to fund her lifestyle; travel, restaurant meals, plus supermarket shopping.

The thefts were noticed only after suppliers complained about non-payment of legitimate invoices they had sent to the Trust.

Thompson-Bell’s mother made partial reimbursement of some $66,000; described as advance payment on her daughter’s inheritance.  Thompson-Bell herself repaid about $12,000 before sentencing in the District Court.

On appeal, Thompson-Bell claimed insufficient credit had been given on sentencing for her good character, particularly her work within the community.

Prolonged offending limits any claim of good character, Justice Becroft said.

The name of the Trust was supressed on grounds of potential reputational damage.  The Trust relies on public funding.

Thompson-Bell v. R – High Court (3.12.25)

26.032

Treaty Settlement: Smith v. Te Ara Tipuna

  

Lady Smith did not get High Court support for a representative class action seeking to hive off $50 million dollars from Ngati Porou’s Treaty Settlement to be controlled by herself and other landowners claiming to be affected by iwi plans for a Gisborne-Opotiki tourist trail.

Ms Smith alleges power over Ngati Porou settlement assets is concentrated into hands of a few, making decisions without transparency or accountability.  Dissent has been marginalised, she claims.

Her primary complaint is that decisions to construct a five hundred kilometre round-trip tourist trail between Gisborne and Opotiki, linking marae across the region, have been made without consent of landowners such as herself.

She wants a detailed audit of iwi trust activities.

She asked the High Court to approve a representative action, automatically including in her claim all those of Ngati Porou descent supporting her view.  She claims to have over one thousand supporters asking to be included in a class action.

Trustee of Ngati Porou’s Treaty settlement alleges there is no such support; the unsigned list of supporters produced by Ms Smith is in fact a list of people who objected to the much-disputed Treaty Principles Bill, it suggested.

Justice McQueen ruled there is no practical benefit in progressing Ms Smith’s claim as a representative action.  Any successful action by Ms Smith, calling the Trustee to account, benefits all affected Ngati Porou.  Procedural complications of a class action are not needed, she said.

In any event, Ms Smith’s claim does not fit the requirements for a class action, Justice McQueen ruled.

Approval of a class action requires all those eligible for compensation within the named class to have the same interest; as seen with recent multi-million dollar class actions by customers seeking compensation following bank errors.

There is no evidence each of her supporters have the same interest in her specific complaint, Justice McQueen ruled.

Ms Smith is free to continue, in her own name, a legal challenge to decision-making by Ngati Porou’s post-settlement organisations.

Smith v. Te Ara Tipuna Charitable Trust – High Court (3.12.25)

25.033

Insurance: IAG v. Aubrey

  

The score sits at a one-all draw.  IAG Insurance said there is no insurance cover.  The Insurance Ombudsman said the Aubreys are covered for damage to the roof of their Twizel property.  The High Court ruled insurance contract wording is unclear.

Problems followed construction of a new house for the Aubreys at Twizel in Canterbury through 2022.  Contractors installing solar panels on the roof dented roofing sheets nearby, causing some $97,000 damage.

The Aubreys claimed on their NZI Contract Works policy, underwritten by IAG Insurance.

IAG declined cover.  Fixing faulty workmanship is excluded, it said.

Contract works policies commonly exclude liability for faulty workmanship, otherwise insurers would be underwriting the competence of contractors and the quality of their work.

The Aubreys said their claim was not about how well the solar panels were installed; it was a claim for damage the contractors did to another part of the roof.

Discussions with IAG were deadlocked.  The Aubreys took their claim to the Insurance Ombudsman: the Insurance and Financial Services Ombudsman Scheme.

The Ombudsman ruled in their favour.

As is its right, IAG asked the High Court to rule on the dispute.  It was obliged to pay the Aubrey’s legal fees; part of the rules insurance companies agree to when signing up to the Insurance Ombudsman scheme.

IAG asked for a definitive Declaratory Judgments Act ruling on its insurance contract wording.

In the High Court, Justice Gendall said no ruling could be made on key phrases in the contract; a declaratory ruling having general application could not be made when each insurance claim is heavily fact specific, he said.

Justice Gendall ruled there was a lack of clarity in IAG’s insurance policy holding IAG liable for contractor’s damage to ‘separate insured property’ and ‘other parts of the same insured property.’

Left hanging is resolution of the Insurance Ombudsman’s and IAG’s differing views of whether damaged roofing panels adjoining the Aubreys’ solar panel installation are separate from the installation, or one and the same.

IAG New Zealand Ltd v. Aubrey – High Court (28.11.25)

26.031

Fraud: Police v. Lambert

  

Exposed on Fair Go as a serial fraudster, Waikato landscaping and concrete contractor Jason Lambert was ordered to repay his victims at one hundred dollars a fortnight and put under supervision for twelve months, after which his repayment history will be reviewed.

The District Court accepted Jason Mark Lambert’s explanation that he simply got in over his head, unable to manage work as a self-employed contractor.  He now works as an employee, telling the court he had recently been acknowledged as ‘employee of the month.’

His failed attempt at self-employment started with Facebook advertisements.  Offers of work came mainly from elderly home-owners needing work done around their home.

The District Court was told he took up-front deposits at forty per cent of the contract price, frequently doing no work, or making minimal starts.

Customers were fobbed off with multiple excuses; Lambert always laying the blame elsewhere for delays.

Customers complaining about lack of progress were promised refunds, with nothing repaid.  One was threatened with a visit from the Mongrel Mob if continued demands were made for repayment.

Lambert was convicted on thirteen charges of deception.  Customer losses totalled some $21,000.

Judge Saunders said it was case of Lambert getting in way over his head, not knowing how to operate in business as a sole trader.

Whilst home detention would be considered the necessary sentence, that was not appropriate in this case, Judge Saunders ruled.

Supervision and a curfew enabled Lambert to continue in employment.

Police v. Lambert – District Court (28.11.25)

26.030

Estate: Firmin v. Porter

  

Their parents died six weeks apart.  Six years on, it was brothers pitted against sisters in a dispute over sale of their parents’ Bay of Plenty orchard.  In what boiled down to a dispute over price, estate lawyers resigned over the siblings failure to take a common-sense approach; getting an independent valuation and selling to the one brother living on the property.

The High Court was told Tony and Jutta Firmin purchased bare land at Awakeri, near Whakatane, in the 1970s, establishing a feijoa and berry orchard.

Jutta predeceased Tony by a matter of weeks.  He was the sole beneficiary of her estate.  On Tony’s death, his will divided his estate equally between their six children: sons Tim and Tom; daughters Cornelia, Abigail, Gisele and Petra.

Evidence was given of son Tim returning from Australia in 2015 to help his parents on the orchard.  He lived in a shed on site, described as being in poor condition and not rentable.

A below market wage was paid.  For a period, no wages were paid at all; ‘down payment’ on his deposit to buy the orchard, Tim was to later tell the High Court.

The extent of orchard work undertaken by Tim was later disputed by his sisters, claiming work was intermittent with Tim primarily focussed on breeding schnauzer dogs.

On death of their surviving parent, Tim offered to buy the orchard for $800,000.  Two sisters, acting as estate executors, declined the offer.  His purchase was conditional on finance, with Tim’s ability to obtain finance or service mortgage debt both in question.  The GST status of any deal also required clarification.

Daughter Petra subsequently offered to buy at $935,000.  In the late 1990s, she had a ‘lease-to-buy’ deal with her parents, planning to assume ownership of the orchard.  The High Court was told no sale eventuated, with the collapsed deal eventually costing Petra $40,000.  

Tim was given an opportunity to put a deal together at Petra’s now offer price of $935,000.

Meanwhile, he was asked to leave their family home, finding somewhere else to live.

Tim’s response was to file a Law Reform (Testamentary Promises) Act claim stating their father had earlier agreed that he would have first option to buy.  Brother Tom supported this claim.  They said their father’s discussions with his lawyer in the weeks prior to death indicated he wanted to change his will, recording Tim’s right of first refusal.

Tim claimed he was entitled to buy at $800,000; a valuation obtained years previously.

Justice McHerron ruled there had never been any agreement or understanding that Tim’s work on the orchard would lead to him having a right of first refusal.  No ‘testamentary promise’ existed.

Their father’s discussions with his lawyer merely canvassed the need to ensure he could remain living on the property, if he sold to Tim before he died.  Discussions did not extend to any possible change to his will, giving Tim a right of first refusal.

The lawyer said in evidence that their father’s discussions had focussed on the size of any specific bequest to Tim as compensation for unpaid wages, with $10,000 settled on as an appropriate figure.

This figure was an underestimation, Justice McHerron said.  He awarded Tim just under $25,000 for unpaid wages.  This is a debt owed by his late father’s estate.

Justice McHerron left estate lawyers to decide whether Tim should be charged for his rent free accommodation, living in their parents’ home since their deaths.

His sisters want the orchard sold, and their father’s estate finalised.

Firmin v. Porter – High Court (28.11.25)

26.029