Negligence: Southland Indoor Leisure v. Invercargill City

A sixteen million dollars damages award against Invercargill City following Southland Indoor Leisure Centre’s catastrophic roof collapse was cut in half by the Supreme Court.  The Leisure Centre itself was partly to blame by not following up on an earlier engineering report.

IAG Insurance paid out when the Leisure Centre roof collapsed in 2010 under weight of snow.  IAG then took legal action in the name of the Leisure Centre against Invercargill City alleging negligence by Council when signing off on construction.  A compliance certificate was issued without checking construction complied with the building code.  The primary cause of the roof collapse was a missing weld in one roof truss; if in place the roof would have held.

Supreme Court judges were split 3-2 over whether the Leisure Centre was partly to blame.  The majority ruled there was contributory negligence.  When the Leisure Centre sought expert engineering advice in 2006 about persistent roof leaks, it also asked for an ‘assessment of the roof … to be certain it is absolutely safe’.  Concerns had been voiced following contemporary media reports of a stadium roof collapse in Poland: 65 died and 170 were injured.  The engineering report recommended truss welds and support fixings be inspected.  No inspection was carried out.  Failure to inspect amounted to contributory negligence, the Court ruled.  An inspection would most likely have identified the problem and seen the roof strengthened.  The Leisure Centre was fifty per cent to blame for the subsequent roof collapse.

Southland Indoor Leisure Centre v. Invercargill City – Supreme Court (14.12.17)

18.021

Estate: re Carson

After having no contact with their father for over forty years, four children of reclusive Nelson-based Wayde Carson learnt their late father had cut them out of his will.  He intended his multi-million dollar estate boosted by wise investments following a Lotto win be used to promote Galloway cattle.  Estate trustees got a High Court order delaying implementation of the will to give his children time to get legal advice.       

Mr Carson died in 2015.  He had no contact with his children after separating from their mother in 1974.  He left instructions that his death was not to be advertised, siblings were not to be told and there was to be no contact with his four estranged children.  His will directed that the balance of his estate was to go into his Carson Family Trust.  The Trust’s primary purpose is to promote Galloway cattle.  Also named as discretionary beneficiaries are Lincoln University, his children and grandchildren, and his relatives.

Estate trustees expressed concern his children would lose all rights to challenge the will once estate assets had been transferred across to the Carson Family Trust.  By chance, one of the children learnt of her father’s death over two years after the event when trying to contact him with news his eldest child was ill with cancer.  The trustees then discovered all four children now live in Australia.  At the trustees’ request, the High Court ordered implementation of the will be delayed six months, allowing the children time to consider making claims under the Family Protection Act.  This Act allows estate claims by family members not otherwise adequately provided for.  Rights under the Act expire once an estate is distributed.  The High Court ordered one million dollars be transferred immediately into the Carson Family Trust for the trustees at their discretion to distribute amongst the four children.  The value of Mr Carson’s estate was not disclosed.

re Estate David Wayde Carson – High Court (14.12.17)

18.019

Post judgment note: Mr Carson's four children subsequently made Family Protection Act claims against his seventeen million dollar estate, each being awarded $1.25 million dollars.  Each has a contingent right to share in his residuary estate as a discretionary beneficiary of the Carson Family Trust which is intended to operate as a trust promoting Galloway cattle.  Payment to the children from this Trust is at the discretion of Carson Trust trustees. 

Kiwisaver: Commissioner of Police v. Harrison

KiwiSaver funds totalling $109,200 held in the name of convicted fraudster Joanne Harrison cannot be seized as proceeds of crime the High Court ruled.

Sentenced to three years and seven months jail for a $726,000 fraud whilst general manager at the Ministry of Transport, Harrison challenged government attempts to seize her KiwiSaver funds.  Government is seeking reimbursement from assets allegedly acquired with tainted funds: a property in Waikuku Road, Waimate North; bank accounts; a BMW; cash; jewellery; high value watches; and Harrison’s KiwiSaver account.

Justice Ellis ruled ‘lock-in’ rules in the KiwiSaver Act override any power to seize accounts as proceeds of crime.  Any criminals intending to use a Kiwisaver account as a safe haven for ill-gotten gains were warned the Criminal Proceeds (Recovery) Act has a general anti-avoidance provision allowing courts to unwind any arrangement designed to defeat seizure.           

The court was told Harrison intends to leave New Zealand permanently when released from prison.  She is expected to then apply for withdrawal of her KiwiSaver balance.

Commissioner of Police v. Harrison – High Court (14.12.17)

18.020