Estate: Stirrup v. Rahurahu

 

Wording of their mother’s will did not properly carry out terms of a family understanding Helena Stirrup claims, leading to a dispute over ownership of a Rotorua home later occupied by her sister to the exclusion of Helena and her siblings.

The legal train of events started with a 1986 relationship property settlement in which Hemi Colin Scott transferred his half interest in the family home on Dawson Drive in Ngongotaha to his spouse Mary Anne Scott.  She now had full legal ownership of the family home.

She died eleven years later.  Her 1996 will gave widowed spouse Hemi rights to occupy Dawson Drive until he died or earlier remarried.

When he remarried just over a decade later, Dawson Drive came to be registered in the sole name of Leonie Rahurahu, one of their daughters.  She treated it as her own, borrowing against security of the property.

It wasn’t until after their father’s death in 2024 that Leonie’s sister Helena Stirrup took legal action claiming a share of the value of Dawson Drive.

Helena claims that while their mother’s will gave ownership of Dawson Drive to Leonie, half the value was to be shared between Leonie’s four siblings, including Helena.  This is disputed.

Helena lodged a caveat against title to Dawson Drive, protecting her claimed interest.

Associate Judge Taylor ruled the caveat remain until the dispute is resolved.

The court was told of offers made to settle their dispute, including a suggestion Dawson Drive be put on the market with Leonie to receive half the sale price (and be required to pay off mortgages registered against the title) and her four siblings to share the other half.

Stirrup v. Rahurahu – High Court (25.02.25)

25.072

Contract: Stoneburn Farm v. Rural Air Work

 

Five weeks before his death from cancer, Lindsay McNicol agreed to buy a former topdressing aircraft from Rural Air for $250,000 on a handshake deal after a brief inspection and not requiring an engineering inspection.  Son James challenges the deal as an unenforceable bargain, alleging Rural Air took advantage of his late father’s then cognitive difficulties.  The High Court put Rural Air’s claim for payment on hold, pending detailed evidence as to Lindsay’s medical condition at time of his purchase.

Since the January 2024 transaction, the Fletcher aircraft has been sitting at Hawkes Bay airport incurring parking fees.

Rural Air Work Ltd is controlled by Joshua Calder.

He told the High Court that Lindsay McNicol both viewed and purchased the aircraft on the same day in 2024 with an oral agreement to buy at $250,000; paying a ten per cent deposit with the balance due in two weeks.  The buyer was Mr McNicol’s company: Stoneburn Farm Ltd.     

Stoneburn Farm paid the deposit.  Rural Air sued after Mr McNicol’s death, when the balance was not paid.

By this time, Stoneburn Farm was under control of Mr McNicol’s son James.  He lives in Australia.

Son James challenges whether there is an enforceable contract.

The first he heard of the purchase was advice from his father days before his death of plans to convert the aircraft into a ‘caravan’ and go tripping around Australia, he says.

He claims Mr Calder took advantage of an elderly 78 year old man with underlying health issues.  The High Court was told Lindsay McNicol’s prostate cancer had spread to his brain prior to his death.

Mr Calder says Mr McNicol drove himself to the viewing and showed no evidence of being impaired in any way in course of their discussions.

Son James claims the purchase is an unenforceable unconscionable bargain.

Courts will not enforce contracts where a stronger party knows the weaker was under a disadvantage and took advantage of that fact.

What is a ‘disadvantage’ depends on the circumstances.  It can include ignorance, lack of education, illness, age, mental or physical infirmity, stress or anxiety.

Associate Judge Skelton refused Rural Air’s application for fast-track summary judgment on its claim.

Detailed evidence is needed as to Lindsay McNicol’s medical condition at time of his $250,000 purchase on behalf of Stoneburn Farm.

Stoneburn Farm Ltd v. Rural Air Work Ltd – High Court (24.02.25)

25.071

Maori: Tuhoe-Te Uru v. Mason

 

First came the Treaty settlement; now an internecine battle within Tuhoe over forestry rights to a 2,100 hectare Matahi forestry block valued at some $9.4 million, with allegations of intimidation to silence critics of disputed logging operations.

In 2017, Tuhoe received Matahi forest, some forty kilometres from Whakatane, in part settlement of its historical Treaty of Waitangi claims.

Treaty settlement assets were transferred to a custodial trustee company controlled by Tuhoe.

Some descendants of Ngai Tama Tuhirae from Omuriwaka marae, a hapu within Tuhoe, claim Matahi forest as their own; customary Maori land, over which they have absolute control, they say.

The High Court was told Tuhoe took exception to clandestine logging operations within Matahi forest with sections of the forest felled and logs trucked away, apparently under supervision of Omuriwaka marae members.

Contractors ignored requests to stop logging operations.  They also ignored a Tuhoe trespass notice.

Justice McQueen imposed a temporary restraining order, halting logging and requiring all heavy equipment be removed from the forest, pending a court hearing to consider Omuriwaka’s claims.    

Tuhoe told the High Court some members of the marae claim they hold ‘aboriginal title’ to the forest, stating this gives them the status of Maori customary ownership to the exclusion of Tuhoe’s registered land ownership.

They have intimidated both members of their own marae and Tuhoe management challenging their claim to customary ownership, Tuhoe says.

Evidence was given that similar claims to customary ownership of Matahi forest by Omuriwaka members were dismissed by the Maori Land Court back in 2017.

Tuhoe-Te Uru Taumatua Trust v. Mason – High Court (21.02.25)

25.070

Overseas Investment: Land Information v. Jarvis

 

Setting up a trust structure to work around Overseas Investment Act rules controlling purchase of land by offshore residents cost Auckland lawyer Andrew James Jarvis $275,000; a civil penalty imposed following his assistance in having two Singaporean residents purchase forestry assets in New Zealand without first getting overseas investment approval. 

The forestry blocks were purchased in 2011 and 2014, with Jarvis acting for two separate clients.  The High Court was told Jarvis had no specific expertise at the time in dealing with Overseas Investment Act issues.  He responded to one client’s query about compliance with the Act by stating ‘on the face of it’ the deal he set up did not contravene the Act.

The arrangement he recommended saw formation of a New Zealand incorporated company for each deal, with a New Zealand national as controlling shareholder.  Each investor then lent money to this company for purchase of forestry assets.

Jarvis took the view that each investor was simply a creditor; Overseas Investment Act rules on purchase did not apply.

Evidence was given of a back-up understanding that the controlling shareholder in each case would be answerable to the creditor/investor who would later take full control of ‘his’ company and with it, full control of the forestry asset.  This trust arrangement amounted to an offence; evading or circumventing operation of the Act.

Land Information New Zealand enforces the rules.

The High Court approved an agreed settlement between Jarvis and Land Information with Jarvis admitting liability and paying a $275,000 penalty.

Land Information New Zealand v. Jarvis – High Court (20.02.25)

25.068

Arbitration: Antipodes NZ v. Accel (HK)

 

An e-commerce foray into the China market by Antipodes cosmetics led to a bust up with its Hong Kong-based distributor and an over four million dollar penalty following Accel (HK)’s successful claim for loss of profits.

Controlled by Elizabeth Barbalich, Antipodes New Zealand Ltd positions itself in the market as supplier of premium nature-based skin care products.

A 2019 marketing services agreement with Accel (Hong Kong) has not gone well.

Twenty months into the arrangement, Antipodes fired Accel alleging a failure to reach sales targets.  It also alleges Accel damaged Antipodes’ brand by selling product at a significantly discounted price.

When Antipodes sued claiming breach of contract, the High Court referred their dispute to arbitration, as required by their agreement.

Arbitration saw Antipodes ordered to pay Accel: USD 2.2 million, RMB 227,000 plus NZD 671,000 costs.

Reasons for this result are unknown.  Arbitrations are heard in private.

Stung by this outcome, Antipodes was back in the High Court claiming errors were made by the arbitrator.

Arbitration rulings can be reviewed for errors of law only, not errors of fact.

Both the High Court and the Court of Appeal ruled there had been no errors of law.

The arbitrator had clearly set out the relevant legal principles she relied on.

Much of what Antipodes claimed were errors of law were complaints about the arbitrator’s loss of profits calculations.  Valuations are questions of fact, not questions of law.

The arbitration outcome stands.

Antipodes New Zealand Ltd v. Accel (HK) Company Ltd – High Court (2.07.21) & Court of Appeal (20.02.25)

25.069

Inteuri IPO: re Inteuri Education Group Ltd

 

Class action by Intueri Education’s aggrieved investors has been settled out of court for an undisclosed sum with High Court approval given for a pro-rata distribution covering individual financial losses suffered by nearly 300 investors who joined a class action alleging directors and promoters of Intueri’s $175 million public float in 2014 made misleading statements about student numbers and revenue streams.

Auckland-based litigation funders stand to get 25 per cent of the pie left after payment of admin and litigation costs; Intueri investors share the remainder.

Not only are details of the settlement supressed, but evidence provided to the High Court seeking court approval for a formula dividing spoils between investors was similarly supressed.

Litigation funder LPF Group, however, was more forthcoming; publishing an interview with class action co-ordinators vaguely disclosing that investors would recover ‘between thirty per cent and fifty per cent of losses.’ 

Intueri investors claimed the company misrepresented the size of its business operations, its student success rate and its source of revenue at time of the public float.

Intueri sold to the public a package of three private training establishments delivering NZQA-accredited qualifications to domestic and international students.

A mis-match between financial data presented publicly to prospective investors and data reported privately to the Tertiary Education Commission led to an investigation.

It was found a substantial part of Intueri’s cashflow had been student fees from students who had withdrawn from courses; student fees sourced from government-funded StudyLink student loans.

On one calculation, fifty per cent of then current revenue and one hundred per cent of profit was attributable to revenue from these ghost students.

It was claimed Inteuri’s public float would never have got off the ground if this was known.

A class action settlement was negotiated on behalf of both those who subscribed to the 2014 public float and those who subsequently purchased on the secondary market.

In 2017, Inteuri went into liquidation.   

The High Court approved a pro rata distribution to class action shareholders calculated on any loss made on the difference between the price paid for shares and the price on sale.  Shareholders making a profit on sale receive nothing.

Justice Gardiner agreed investors should not receive compensation for loss of use of their money, despite some investors being held out of their money for longer than others.

All investors have been out of pocket since at least 2017.  Administrative costs of calculating various payments due individual investors would outweigh the return otherwise available to those investors.

re Intueri Education Group Ltd – High Court (17.02.25)

25.067

Insurance: Fletcher v. Resolution Life

 

Formerly a partner at Tauranga law firm Sharp Tudhope, Darryl Fletcher’s continued entitlement to insurance payments for ‘total disablement’ following a 2011 head injury are dependent upon his agreeing to further medical examination from specialists nominated by insurer Resolution Life, the High Court ruled.  Mr Fletcher has resisted Resolution’s demands, arguing he cannot be forced to comply and reports from his own medical advisers are sufficient.

Resolution Life Australasia, formerly known as AMP Life, inherited Mr Fletcher’s case file after its 2017 buyout of National Mutual.

Staff questioned why Mr Fletcher was still receiving monthly disability payments for what was described in 2011 as a mild head injury suffered in a rugby game. The usual prognosis is that any issues would resolve within three to six months.

Statutory insurer Accident Compensation stopped compensation payments to Mr Fletcher one year after the accident.

Mr Fletcher’s ongoing payments from what is now Resolution Life arose from a group insurance policy benefitting Sharp Tudhope’s partners through its membership of the Lawlink national network of law firms.

In 2019, Resolution stopped its monthly payments to Mr Fletcher.  This led to a High Court dispute over wording of Lawlink’s insurance cover.

Mr Fletcher argued Resolution’s contract was with Lawlink; he was merely the beneficiary of this contract.

Contract wording meant Lawlink had to provide all relevant information; this wording did not apply to him, he said.

Mr Fletcher claimed he was under no obligation to be assessed by head injury specialists nominated by Resolution.  Ongoing evidence provided by his own specialist should suffice.  This evidence indicated Mr Fletcher continues to suffer difficulties in concentrating for long periods of time.

Justice Johnstone ruled Lawlink’s provision of information necessarily required Mr Fletcher to assist by attending medical examinations.  Provision of medical records and attendance for additional medical examinations are a ‘condition precedent’ for ongoing payment of monthly disability benefits, he said.

Resolution need not resume payments while Mr Fletcher refuses to attend medical appointments set by the insurer, Justice Johnstone ruled.

This ruling does not decide whether Mr Fletcher still qualifies for ongoing ‘total disability’ payments.  That is an issue to be decided by medical assessors.

Fletcher v. Resolution Life Australasia Ltd – High Court (14.02.25)

25.066

Overseas Investment: Ren v. Pan & Zhang

 

As litigation tactics go, it was a pretty brazen.  Jinyuan Pan and Ke Zhang demanded upfront security from overseas-based Xiaojin Ren for their legal costs defending her claim to ownership of an Auckland property without first filing a statement of defence on grounds their defence might incriminate them as being in breach of the Overseas Investment Act. 

In the High Court, Associate Judge Paulsen dismissed their tactic as simply a ruse to delay the day of reckoning.

Ms Ren lives in China.

Evidence was given that she met Pan and Zhang during a visit to New Zealand.  They offered to support her plans to buy property in New Zealand, with them temporarily taking title on her behalf.  This, they explained, could get around restrictions stopping overseas individuals buying residential land in New Zealand.

The Overseas Investment Act, in fact, prohibits use of trust arrangements to circumvent the rules.

Ms Ren paid across more than $1.5 million, used by Pan and Zhang to buy a property on Lucas Way in Auckland suburb Albany.  There is no written agreement; merely a verbal agreement they would hold title on her behalf, she says.

She later learnt this property had been mortgaged without her knowledge.  She told the High Court she suspects this loan was raised by Pan and Zhang to finance their other property purchases.

She demanded Lucas Way be sold and her money returned.

Having been refunded about $198,000 she sued for the balance owed.

The High Court was told Pan and Zhang have filed no statement of defence; only going so far as making a flat denial that any money is owed, while at the same time negotiating with Ms Ren’s lawyer over a possible repayment plan.

Judge Paulsen dismissed their request that Ms Ren provide security upfront for their legal costs should the case go to a full hearing and she lose.

Failure to file a statement of defence entitles Ms Ren to get judgment in her favour by default.

Judge Paulsen was told the only reason this has not yet been done, but for the stalling tactic seeking security for costs, is that Ms Ren is still finalising the exact amount she is owed.

Ren v. Pan & Zhang – High Court (14.02.25)

25.065

Bankruptcy: Highmark Homes v. Watkins

 

Eight years after her employment with Tauranga-based Highmark Homes ended acrimoniously, Nicola Watkins was bankrupted by her former employer on an unpaid court costs order enforcing recovery of a disputed loan.  Ongoing litigation between the two meant the amount she owed doubled; Highmark’s recoverable court costs eventually amounted to more than the original loan.

When bankrupting Watkins, the High Court reviewed a conveyer belt of litigation rolling through the court system, starting with a disputed company loan of a little under $22,000 provided by Highmark to Ms Watkins at a time she was short of cash building a home.

This loan was still outstanding when she was dismissed from Highmark.

Circumstances of her departure were fraught, evidenced by Highmarks’ later claim for $3500 damages to recreate work information Ms Watkins had deleted from a work laptop.  

When Highmark sued in the Disputes Tribunal to recover its $22,000 loan, Ms Watkins unsuccessfully claimed the loan was in fact part of her remuneration.

She repaid the loan only after threatened with bankruptcy for non-payment.

The High Court ordered Ms Watkins pay Highmark’s legal costs of some $14,000 on this bankruptcy application.

She did not pay these legal costs.  Years later, this triggered her bankruptcy.

Her employment dispute was appealed to the Employment Court with her allegation that Highmark’s management and its solicitor had committed perjury at a prior Employment Relations Authority hearing where her claims for wage arrears and sick pay due were unsuccessful.

Later abandoning this appeal, the Employment Court ordered she pay Highmark’s costs, totalling some $10,000.

Separately, she sued Highmark alleging defamation.

Highmark again applied to have Ms Watkins bankrupted, this time on the unpaid $14,000 costs order following its first bankruptcy application.

Associate judge Brittain adjudged her bankrupt.

Ms Watkins was in court.  She refused to answer questions about her financial position.

The High Court was told that in addition to the nearly $24,000 in total owed Highmark on two unpaid court costs orders, Samson Corporation also claims $28,100.

Ms Watkins said bankruptcy should be refused; it would prejudice her ability to sue Highmark for defamation, she said.

Judge Brittain pointed out that claims in defamation are a personal right, not a property right.

Defamation claims do not pass to Insolvency Service on bankruptcy; a bankrupt can continue legal action for defamation in their own right, whilst bankrupt.

Highmark Homes Ltd v. Watkins – High Court (1.03.23 & 12.02.25)

25.064

Maori Land: McFetridge v. Tapsell

 

Search of Ancestry.com’s database led Kathleen McFetridge to question a 2009 Maori Land Court decision recording Whenuariri Tapsell as a child of her grandfather and with that his right to part-ownership of her grandfather’s customary Maori land holdings near Rotorua, land over which she has rights of inheritance.

This incorrect record has affected subsequent generations by leaving them with a smaller interest in the land than they are beneficially entitled to, she says.

Maori custom requires communally-owned Maori land to be handed down to the next generation.  A register of the ever-multiplying individual owners each with an ever-decreasing share of their forebears’ customary land is maintained by the Maori Land Court.

The court was told a 1996 Maori Land Court hearing saw customary land holdings of Taa Tapsell divided between six children on his death.

At a further hearing in 2009, the court added a seventh child to the list, diluting the ownership interests of the earlier listed six children.  This addition was a son of Taa Tapsell named Whenuarari Tapsell.  The application was made by Whenuariri’s son, Thomas, who in turn became a part-owner with Whenuarari’s death.

Ms McFetridge told the Maori Land Court that she had her DNA analysed by Ancestry.com.  Finding that the DNA analysis from a descendant of Whenuariri was also publicly available, she asked for a match.

The match indicated the two are likely distant cousins who share great-great-great-grandparents.

This is clear proof that Whenuariri was not a child of Taa Tapsell, as accepted by the court in 2009, she said.

New Zealand courts do not accept data matches on Ancestry.com as proof of descent.  There is no scientific rigour in either the manner in which DNA samples are taken or the way samples are analysed.

Ancestry.com’s website states its published information is not to be used in any judicial proceedings.

In the Maori Land Court, Chief Judge Fox ordered the 2009 decision to admit Whenuariri as a descendant be re-opened.

The decision itself was flawed; an error in court administrative procedure meant not all affected descendants were given notice of the 2009 application.  They were not given a chance to challenge the assertion that Whenuariri was a child of Taa Tapsell.

Judge Fox instructed court staff to arrange for a reputable testing service to obtain a DNA sample from Whenuariri’s son Thomas and to report back in three months with the result.

Thomas is not obliged to provide a sample.

Judge Fox indicated any failure to provide a sample will lead to the inference that Thomas’ father is not descended from Taa Tapsell.

McFetridge v. Tapsell – Maori Land Court (11.02.25)

25.063

Professional Conduct: 'Mr Gold' v. Law Society

 

Having qualified as a mature student, ‘Mr Gold’ was denied admission to practice as a lawyer by the High Court because of personality defects reflected in disproportionate and misguided aggression against those he perceived as having wrongly challenged him, plus his tendency to blame others.

The applicant, given the alias ‘Mr Gold’ in court proceedings, challenged Law Society refusal to give him the required character certificate needed for admission to the roll of barristers and solicitors.

Academic and professional qualifications alone are not sufficient for admission; applicants must also satisfy a ‘fit and proper’ test.

The fact Mr Gold responded to the Law Society refusal by making professional conduct complaints against both staff and members of the Law Society’s practice approval committee, all of whom were lawyers, gave the High Court a flavour of Mr Gold’s behaviour.

He also laid a complaint with the Human Rights Commission, a complaint subsequently abandoned, alleging the Law Society discriminated against him on grounds of gender.

The High Court was told Mr Gold’s admission to the bar was blocked by the Law Society on evidence of his family violence following allegations aired at a Family Court hearing, allegations strongly disputed by Mr Gold.  In 2023, a protection order was made in favour of his then separated spouse.

After the Family Court hearing, Mr Gold laid complaints about three different lawyers involved: the lawyer acting for his spouse, the Family Court-appointed lawyer acting for a child and his own lawyer.

Justice O’Gorman dismissed Mr Gold’s appeal against Law Society refusal to issue a character certificate.   His behaviour falls short, by a clear margin, of the high standard required for practice as a lawyer, she said.

A misguided tendency to make personalised attacks against those he perceives to have wrongly challenged him and to retaliate by inappropriate use of legal processes makes Mr Gold unsuited to the practice of law, she said.

‘Mr Gold’ v. NZ Law Society – High Court (10.2.25)

25.062

Contract: PS Construction v. Premier Building

 

What is dead is dead and cannot be resurrected, the High Court said after a property developer tried to breathe life back into a cancelled contract before being ordered to repay a $182,000 deposit.

In 2021, Auckland joint venture builder P.S. Construction Ltd owned 50/50 by Yankai Pang and Sheng Sun put down a $182,000 deposit for a section in a subdivision to be developed by Yu Zhang’s Premier Building Services.

Mr Zhang had until end of March 2023 to get clear title to his planned subdivision.  That did not happen.

The High Court was told lawyers for P.S. Construction sent an email at 5.11 pm on deadline date in March 2023 cancelling its contract.

Two hours later, an email came back from Mr Zhang’s lawyers saying the contract still stood; a clause in the contract allowed the vendor to give notice of a six months’ deadline extension.

They said wording in the 5.11 pm cancellation email left open the possibility of this contract extension taking place.   

Associate Judge Lester ruled the 5.11 pm email merely noted that no extension had been arranged.  P.S. Construction was entitled to cancel any time after 5.00 pm, and had done so.

The contract was at an end.

Mr Zhang’s Premier Building was ordered to repay the $182,000 deposit received some nineteen months previously.

P.S. Construction Ltd v. Premier Building Services Ltd – High Court (5.02.25)

25.061

Treaty of Waitangi: Hart v. Marlborough District

 

The legal dispute was as mundane as the questioned validity of a bylaw.  The hot button issue was the extent to which the Treaty of Waitangi is an overarching constitutional document against which all laws are to be measured.  Treaty issues are subsidiary to the making of bylaws, the High Court ruled, when refusing to overturn a Marlborough District bylaw restricting vehicle access to Kaikoura coastline.

Rangitane challenged Marlborough’s 2023 East Coast Vehicle Bylaw controlling vehicle access across beaches north and south of Cape Cambell.  Council adopted a new bylaw after the 2016 Kaikoura earthquake led to an extensive uplift of coastal land.

Rangitane complains that the bylaw’s prohibition on vehicle access to some beaches is restricting its customary rights to collect seafood, a right protected by the Treaty of Waitangi.

An undercurrent to Rangitane’s High Court bylaw challenge is an ongoing dispute between Rangitane in the north and Ngati Kuri in the south as to who has historical rights to customary fishing in the area.

In recent years, a raft of legal cases have required courts to consider claims that an unstated common law rule exists in which Treaty principles apply in all areas where parliament has not otherwise specifically incorporated Treaty principles into legislation.  This argument has surfaced in disputes as varied as climate change policy and operation of pharmacies within supermarkets.

Rangitane claimed the Local Government Act power delegated to Marlborough District by parliament to make bylaws carries with it an obligation to comply with customary fishing rights enshrined in the Treaty of Waitangi.

Not so, ruled Justice McQueen.

Local councils’ sole Treaty obligations are those set out by parliament in the Local Government Act, she said.  The Act includes a requirement ‘to facilitate participation by Maori in local authority decision making processes.’

Rangitane failed in its separate challenge to Marlborough’s administrative process by which the disputed 2023 bylaw was adopted.

Hart v. Marlborough District Council – High Court (3.02.25)

25.060