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Anthony Molloy QC

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Tel: +64 9 307 9821
Fax: +64 9 366 1599
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Qualifications

LLD (Auck)

Barrister Sole: 1969

Silk: 1984

Areas of Practice

Charity Law

Equity

Liquor Law

Partnership Law

Religion and the Law

Sports Law

Tax Litigation

Taxation Law

Technology Business Startups and Financing

Trust Litigation (including Variation)

Wills and Trusts


General Background

  • Hugh Campbell Scholarship for LlM candidate with most distinguished LLB record, 1968.
  • LLD, 1978: for "contributions of special excellence to the exposition of New Zealand law".
  • Lecturer at Auckland University in:
  • Equity and the Law of Trusts 1969-70, 1987-1989
  • Tax Law 1976-1979, 2000-2001
  • Corporation Law and Finance 1970
  • Master of Tax Studies 1989.
  • Former member of NZ Council of International Commission of Jurists.
  • Former Director of Research of Legal Research Foundation.
    Supervisor of LlB Honours and PhD dissertations, University of Auckland.
  • Supervisor and assessor of MBA dissertations, University of Waikato.
  • Counsel appointed by the Bishop of Auckland to practise in the Ecclesiastical Courts of the Roman Catholic Church.
  • New Zealand Sesquicentennial Medal, 1990
  • Patron New Zealand Trustee's Association, 1997.
    Commercial:
  • Co-founder and Director of Protemix Corporation Ltd, which has obtained a large number of diabetes and metabolic therapy patents, has just completed highly successful Phase II clinical trial of a diabetes therapy, and has become the first New Zealand pharmaceutical company to be fast tracked by the United States Food and Drug Administration into Phase III trials which, if they are successful, will lead to the therapy being licensed in that country.
  • Director of two other New Zealand startup companies in medicine and laser transmission of data; and founding shareholder in a Californian medical company.
  • Established St Nesbit vineyard with Petra Molloy 1980.
  • Introduced grape cultivar vitis vinifera petit verdot into New Zealand 1985.
  • First vintage as winemaker, 1984, won gold medals in 2 successive NZ National Wine Competitions. Subsequent vintages have won numerous medals in wine exhibitions in Australia and New Zealand, as well as trophy for top high priced premium red wine at 1990 Royal Easter Show.
  • A number of the vintages have been purchased by the Government for Royal Visit, Vice Regal, and VIP entertainment; and for use in New Zealand embassies abroad.
  • Exports to UK, where the wine has attracted many favourable reviews, and is listed in a number of restaurants; and to Switzerland, Denmark, Germany and Canada.
  • Designated in 1995 as one of the classic wines of New Zealand.
  • Designer of successful system of "closed circuit" wine fermentation.

Read more...

Professional Background expand

  • Evidence for the Crown as expert witness on commercial and fiscal arrangements in the Equiticorp criminal trial (The Queen v Adams & Others, High Court, Auckland, T 240/91) and described by the High Court, in its 1992 judgment,as "a senior counsel who is an acknowledged expert in taxation".
  • One of four members of Committee of Experts Advising the Government on the Taxation System, April - December 1998.
  • Admitted to the Bar of the High Court of the Republic of Fiji in January 2001.

Recent Experience expand

  • Proceedings arising from the Management Contract between an international boxing champion and his managers.
  • Advising as to the dissolution of a multi-centre professional partnership, including contentious goodwill issues.
  • Proceedings arising from a dispute by Inland Revenue whether an international boardsailing champion was in business for tax law purposes.
  • Advising an exporter who had been obliged to pay bribes in order to secure Middle East business.
  • Advising a Government Department on the form of its legislation.
  • Hawkins Construction v Chan, a successful argument for indemnity costs following a successful defendant's application for summary judgment in respect of a multi-million dollar property deal.
  • Re Schroder; a Beddoe application for trustees of a large private trust.
  • Review of the deed constituting a large Maori Trust.
  • Proceedings for breaches of fiduciary obligations of Trustee/Directors of a manufacturing company.
  • Advising the Dutch subsidiary of a USA multi national on international tax structuring of offshore turnkey construction contracts running into several hundred million dollars.
  • Advising high wealth immigrants to New Zealand from South Africa and the USA on their tax problems, obligations and possibilities with respect to each country.
  • Settling clinical trial agreements for a US company conducting multi-centre clinical trials in South Australia and in New Zealand.
  • Winter v A-G (Acting, initially for a "dissident" trustee, and, then‹at their request, part way through the trial‹for all the trustees, in proceedings seeking successfully to resolve a wrongful distribution of $180 million of trust funds) (High Court, Fisher J, M333-IM01, judgments dated 21 December 2001 and 19 July 2002 -"I have had the benefit of ... the particularly careful and comprehensive submissions of Mr Molloy").
  • Advising a number of religious institutions including various congregations and members of the Exclusive Brethren, the Seventh Day Adventist Church, an Apostle of the Mormon Church from Utah in the USA, the Unification Church, and the Roman Catholic Church.
  • Securing recognition of the Church of Scientology as a religion and as a charity in New Zealand.
  • Settling Trust Deeds for high wealth Settlors in the USA, Canada, and South America.
  • Advising Australian promoters of proposed mass marketed investment schemes intended to secure taxation advantages as well as commercial gain.
  • Re Taranaki Electricity Trust (Acting, effectively as amicus curiae, in respect of proposed amendments to a $60 million trust) (High Court, Harrison J, M7/01, judgment dated 25 June 2002 - "Mr Molloy mounted a powerful and informed argument").
  • Re John Doe, Richard Roe and the other trustees of a certain trust (Acting successfully, under great urgency and under secrecy demanded by a due diligence process in progress, to resolve obstacles to the completion of that process being carried out in connexion with a $2 billion transaction) (High Court, Patterson J, M 985-IM02, judgment dated 9 August 2002).
  • Re Wharepuhunga Trust (hearing pending) (Advising the trustees of an $18 million trust fund over an investment gone wrong, and over judicial comments thereon and how to deal with them. Settling proceedings raising a number of issues related to the "prudent investor" issue; the ability of a court to dismiss trustees; Maori Cultural issues in relation to English Trust Law.)
  • Advising on the terms and effect of a materials transfer agreement in respect of an active biological mechanism
  • Advising a leading international professional sportsman on the taxation possibilities and pitfalls of switching teams, and country of residence, for a multi-million dollar consideration.
  • Conceiving and creating a relationship between a commercial entity and a public entity with a view to their mutual profit and development.
  • Advising on several aspects of a large venture capital investment: from Terms Sheet to Settlement.
  • Advising an Australian company on the means by which an employment law benefit plan could be created tax effectively.
  • Advising two Singaporean Banks on their dispute with the Comptroller of Income Tax (Singapore).
  • Advising English Will trustees on the manner in which a very substantial trust business could be incorporated tax effectively as a charity.
  • Advising an International yachtsman on his "residency" dispute with the New Zealand Inland Revenue.
  • Settling the terms of a tissue transfer agreement between a United States Federal agency and a private biotechnology company.
  • Advising an Australian company as to the use of the New Zealand "settlor" regime by non resident clients.
  • Advising trustees of a trust in respect of the questioning by some beneficiaries of the trustees' investment policies.
  • Advising a United States company on the extent to which its New Zealand connexions subjected it to New Zealand income tax.
  • Advising United States attorneys on the trust, duty, taxation, domicile, community property, fiscal residence, New Zealand "settlor" regime, and other issues in respect of the proposed marriage of an American heiress to a New Zealander.
  • Proceedings in a Tax Haven to compel the local agents, for a company resident in another country, to disclose and make available to the plaintiff all the files and other information that the agents held for their client company.
  • Advising a leading insurance company on a GST loophole.
  • Advising an insurance co-operative on tax compliance problems.
  • Settling a contract for the supply of an analytical software system.

Case History expand

  • Pioneered acceptance of Judicial Review in the taxation field with cases such as VH Farnsworth v Commissioner of Inland Revenue M 1556/78; Auckland Registry; Geothermal Energy New Zealand Limited v Commissioner of Inland Revenue [1979] 2 NZLR 324; Lemmington Holdings v Commissioner of Inland Revenue [1982] 1 NZLR 517, (1983) 6 TRNZ 333, [1984] 2 NZLR 214; Anzamco Ltd v Bank of New Zealand and Commissioner of Inland Revenue (1982) 5 TRNZ 764; Harkness v Commissioner of Inland Revenue (CP74/87), Hamilton Registry); and Gisborne Mills v Commissioner of Inland Revenue (1989) 13 TRNZ 185.
  • Comprehensive argument as to the concept of "residence" of natural persons for taxation purposes adopted in its totality as the judgment of the High Court on this issue in Geothermal Energy New Zealand Limited v Commissioner of Inland Revenue [1979] 2 NZLR 324.
  • Taxation Adviser to Counsel assisting the Commission of Inquiry into Certain Matters Relating to Taxation ["Winebox Inquiry"], 1994-1995..
  • Leading Counsel for the investors in six year battle against mega law firm, Russell McVeagh McKenzie Bartleet & Co, for damages for fraud on behalf of 300 of its clients over tax schemes.
  • Settling successful application to the Royal Court of the Island of Jersey for an Order compelling a Law Firm there to allow perusal of files of clients
    apparently involved in fraud on residents of other countries."
  • Represented Interim Government of the Republic of Fiji in proceedings before the Fiji Court of Appeal as to the constitutional position arising from the 2000 coup d'état: The Republic of Fiji and the Attorney-General of Fiji v Prasad March 2001

Publications and Relevant Activites expand

Books

  • Molloy on Tax Planning (Butterworths, 1970)
  • Molloy on Property Speculation Tax (Butterworths, 1973)
  • Molloy on Income Tax (Butterworths, 1976)
  • (Jointly, under Hinde ed) Studies in the Law of Landlord and Tenant (1975)
  • Molloy on Tax Disputes, Investigations, and Crimes (Fishermore, 1988)
  • (Jointly with Dr PRH Webb) Principles of the Law of Partnership (Butterworths, 1996; new edition in preparation)
  • Thirty Pieces of Silver: An Exploration of Legal Ethics (Howling at the Moon, 1998).

Papers

  • Barristers' Code of Ethics adopted by NZ Law Society, 1971.
  • Paper (jointly with Professor PRH Webb) for New Zealand Justice Department on which the Domicile Act 1976 passed by the New Zealand Parliament, and followed by many other countries, was based.
  • [Jointly with the Rt Hon Sir Ian McKay and others] Report to Minister of Revenue and Treasurer on Tax Compliance, 1998.
  • Pre-Acquisition Profits of Subsidiary Companies [1968] NZLJ 232.
  • Legal Aspects of Share Valuation [1968] NZLJ 466, 490.
  • Aspects of Flat-Owning Companies [1969] NZLJ 13, 44.
  • A Companies Commission [1969] NZLJ 277.
  • Income Tax and Family Trusts [1970] Recent Law 111.
  • Arrangements Caught by s 108 Land and Income Tax Act 1954, [1971] Accountants' Journal 466.
  • Income Tax Avoidance: The Privy Council Speaks, [1971] Accountants' Journal 18.
  • Income Tax Avoidance [1971] NZLJ 281.
  • Partnerships and Taxation of the Family Business [1973] NZLJ 43; [1973] Accountants' Journal 261.
  • Unit Partnerships, Taxation, and Family Business Ventures [1973] NZLJ 103; [1973] Accountants' Journal 286.
  • Unlimited Companies and Limited Partnerships in the Family Tax Plan [1973] NZLJ 135; Accountants' Journal 344.
  • Tax Avoidance: Engineers' Arrangement Beats s 108 [1973] Accountants' Journal 435.
  • Another Farming Trust Annihilated [1993] Accountants' Journal 73.
  • Limitations of Annihilation [1973] Accountants' Journal 108.
  • Tax Avoidance: Solicitors' Arrangement Held Not to be Ordinary Dealing [1973] Accountants' Journal 38.
  • Establishing the Existence of a Business [1973] Accountants' Journal 158.
  • Nasty Surprise for Some "On Demand" Lenders [1973] NZLJ 336.
  • Accountants' Arrangement Sheds Light on "Family Dealing" [1973] Accountants' Journal 200.
  • Annihilation of Loss Company Scheme [1974] Accountants' Journal 297.
  • Tax Avoidance: Ordinary Business or Family Dealing [1974] Accountants' Journal 386.
  • Vulnerability of Professional Service Company Schemes [1974] Accountants' Journal 483.
  • Agreement "Subject to Solicitor's Approval" [1974] NZLJ 214.
  • Taxable Profits on Share Dealing [1974] Accountants' Journal 80.
  • Fiscal Fantasy [1974] NZLJ 297.
  • Is a Reserve Fund Contribution Deductible for Income tax Purposes? [1984] Accountants' Journal 120.
  • Income Tax Treatment of Work in Progress of a Professional Taxpayer [1974] Accountants' Journal 204.
  • Voices Crying in the Wilderness? [1975] Accountants' Journal 35.
  • Transfer of Earthmoving Machinery Not Void Arrangement [1975] Accountants' Journal 1977.
  • Europa Case Laid to Rest [1976] NZLJ 232.
  • Europa in Retrospect [1976] Accountants' Journal 185.
  • Tax Deductibility of Business and Partnership Losses Attributable to Theft or Misrepresentation (1976) Taxation in Australia 75; [1976] Accountants' Journal 132.
  • Recent Tax Developments-Scope of Section 108 [1976] Recent Law 289.
  • Income Tax Provisions and Decisions of Practical Importance in Legal Practice [1977] NZLJ 195.
  • Deductibility of "Home Office" Expenses of a Professional or Business Taxpayer [1977] Recent Law 30.
  • Objections to Assessments and Other Decisions of the Commissioner of Inland Revenue [1979] NZLJ 338; [1979] Accountants' Journal 355.
  • Inquiry Needed if Offshore Schemes Rort Inland Revenue Department (1994) National Business Review 31 March 9.
  • Accountants' Report to Cook Islands Prime Minister Fails to Grasp Magnum Wine-Box Scheme (1995) National Business Review 12 May 33.
  • Taxation: Admission and Departure of Partners [1996] NZLJ 249.
  • Taxation and Partnership Expenditure [1996] NZLJ 345.
  • Taxing Partnerships: Cognate Entities [1996] NZLJ 442.
  • Capital Gains Tax on Private Land [1997] NZLJ 289.
  • Tax and Charities' Businesses [1998] NZLJ 59.
  • With Blood on Their Hands, Who Needs a Confession? [1999] The Independent 8 December.
  • There's One Law for the Fat Cats and another for the Mice (1999] The Independent 15 December.

Conference Papers

  • Four travelling seminars throughout New Zealand, on various aspects of taxation law conducted for the NZ Law Society and the NZ Society of Accountants
  • A Companies Commission: paper on company law reform delivered to New Zealand Law Society Centennial Conference 1969. This paper was the first to suggest that what is now the Securities Commission should be created. It made a number of other suggestions which subsequently featured in the Companies Act 1993, such as no par value shares and abolition of the ultra vires rule.
  • Multi-Ownership: paper presented to Auckland University Seminar on Legal and Sociological Aspects of Real Estate Auckland 1969
  • The Treaty of Waitangi: address to the Hamilton District Law Society 1971
  • Tax Avoidance: paper to International Bar Association Conference Stockholm 1972
  • Tax Avoidance: paper to Legal Research Foundation Seminar Auckland 1972
  • Partnership Law and Taxation: two day seminar for Gisborne District Law Society 1972
  • Trust Drafting and Taxation: seminar given for the Auckland District Law Society 1973
  • Company Directors' Legal Status and Responsibilities: paper to Forum 75, the conference of Auckland Accountants and Commerce Students Society Inc 1975
  • Abortion and the Law: paper to Legal Research Foundation Conference on Abortion 1975
  • Revenue Law Provisions and Doctrines Bearing on Legal Practice: seminar given for the Auckland District Law Society 1976
  • Objections to Assessments and Other Decisions of the Commissioner of Inland Revenue seminar given for the Legal Research Foundation 1979
  • Intellectual Property Transactions: paper to Techtranz International Licensing Executives Conference 1982
  • Patents: Medical Treatments, Genetic Engineering, and the Copyright Overlap: paper to triennial Conference of the NZ Law Society Dunedin 1980
  • Legal and Ethical Responsibilities and Liabilities of the Legal and Accounting Professions: paper to Legal Research Foundation Seminar on Professional Responsibility Auckland 1987
  • Professional Responsibilities: Evasion, Avoidance and Mitigation: paper to the National Tax Experts Conference of the New Zealand Society of Accountants, Rotorua, 29-30 September 1995
  • Problems in Respect of Accruals Rules and the Goods and Services Tax: paper to the Tax Workshops for members of the Auckland District Law Society, Whangarei, 18-19 November 1995, and Tauranga, 25-26 May 1996
  • Taxation Aspects of Franchising: paper to the members of the Auckland District Law Society, 28 March 1996
  • Legal Ethics: paper given to the members of the Auckland District Law Society, 15 August 1996
  • Professional Responsibility: paper given to the members of the Postgraduate Diploma Course, Department of Philosophy, University of Auckland, 18 September 1996
  • Picking One's Way Through the Minefield: paper on Trusts given to members of the Auckland District Law Society, 20 February 1997
  • The Roots of the Trust, and its Fundamental Principles: paper given to members of the New Zealand Trustees Association, 10 June 1997
  • The Nature and Ethics of the Legal Profession: paper given to members of the New Zealand Society for Law and Social Philosophy, 25 June 1997
  • Business Structures and their Comparative Taxation Implications: paper to members of the Auckland District Law Society, 31 July 1997
  • Some of the Wrinkles Which Can Arise From Friction Between Tax Law and Immigration Policy paper to members of the Auckland District Law Society, 16 September 1997
  • Seeking Tax Concessions For Businesses Carried On In Trust For Charities and Sports Clubs paper to members of the Auckland District Law Society, 16 September 1997
  • Professional Ethics, Invitation Public Lecture sponsored by the Management School, University of Waikato, Hamilton, 18 September 1998
  • Centres and Margins, keynote paper for Annual Conference of Sociological Association of Aotearoa New Zealand, Eastern Institute of Technology, Taradale Napier, 27 November 1998
  • The Law: Profession or Business? New Zealand Bar Association Summer Conference, Auckland 13 March 1999
  • The Fourth Vow, the Rule of Technicians, the Archivist and Civilization, Archives and Records Association of New Zealand Conference, Auckland, 9 July 1999
  • The Vintner's Pluck: The Vigneron's Battle with the Tax Systems of New Zealand and Australia, International Wine Law Association Conference, 29 August 1999
  • Values and Truth: Issues of Integrity in Business, public lecture sponsored by the Paget Trust, Te Awamutu, 3 September 1999
  • The Value of Values, New Zealand Business for Social Responsibility Conference, Auckland, 6 September 1999
  • Getting the Trust Wrong, paper to Auckland District Law Society Seminar on Trusts, Auckland, 16 November 1999
  • Goods and Services Tax Traps, paper to Taxation Institute of Australia GST symposium, gold coast, 20 November 1999
  • Aggressive Tax Schemes, Inland Revenue Technical and Legal Conference, Rotorua, 8-9 March 2001
  • If It Ever Was Ethical To Advise The Taking Of Aggressive Tax Positions, Is It Still Ethical To Do So? 14th Annual Australasian Tax Teachers' Association Conference,18 January 2002
  • Tax Advice 2002, Taxation Institute Of Australia 16th National Convention, Canberra, 16 March 2002
  • Legal and Taxation Aspects of Litigation Settlement, Law Society of the District of Auckland, 2 May 2002
  • International Trusts, Academy & Finance SA Trust Conference, Hotel Les Armures, Geneva, Switzerland, 16-21 September 2002
  • Equity: its Origins and its Methods, The Second New Zealand Misplaced Trust Conference, Auckland, 18-19 October 2002
  • Restrictions on the Role of International Tax Advisers, World Tax Conference, Sydney, 25-27 February 2004
  • Where the trust came from, how it evolved, its fundamental principles and observations on the future, Institute of Chartered Accountants 2004 Trust Conference 23-24 April 2004.