LLB (Hons) (Auck)

LLM University of Pennsylvania

Barrister Sole: 2002

Silk: 2007

I am principally involved in commercial dispute work at both trial and appellate levels:  contract, tort, construction and structural engineering issues (I was counsel assisting the Royal Commission of Inquiry into Building Failures Caused by the Canterbury Earthquakes), regulatory matters, judicial review and property disputes.  I have a substantial specialist practice in defamation, acting for both plaintiff and defendants.  I have acted for the Commerce Commission in a number of important consumer protection cases, including proceedings dealing with the fees provisions in the Credit Contracts Consumer Finance Act 2003, where the Supreme Court upheld the Commission’s position on the correct interpretation of the “reasonable fees” provisions in the Act, and proceedings to determine the application of the Act to P2P lending.  I am currently acting for the Commission in proceedings under the CCCFA that involve “payday” lending that is to go trial in June 2020.

I attended Takapuna Grammar School, the University of Auckland and the University of Pennsylvania.  I have taught at law schools in New Zealand, the United States and Canada.  I am a former President of the New Zealand Bar Association.

Education

• Takapuna Grammar School
• University of Auckland
• University of Pennsylvania Law School

Academic Awards

• Prizes in Equity, Family Law and Jurisprudence
• Post Graduate Scholar (overseas tenure)
• American Trial Lawyers Association Prize in Environmental Law

Legal Practice

• 1969-1970: Russell McVeagh - Law Clerk
• 1973: University of Michigan, School of Law - Teaching Fellow
• 1974-1978: University of Auckland, Faculty of Law - Senior Lecturer (tenured)
• 1979: Lewis and Clark Law School, Portland, Oregon, USA - Visiting Professor (Environmental Law)
• 1979-1980: University of Western Ontario, Faculty of Law, London, Ontario, Canada - Visiting Professor (Torts, Contract, Administrative Law)
• 1980-1986: Dalhousie University, Faculty of Law, Nova Scotia, Canada - Associate Professor, tenured (Torts, Contract, Administrative Law)
• 1986-2002: Chapman Tripp - Litigation Partner; Chairperson - National Board; Chairperson - Partner Admission Committee
• 2002: Barrister Sole
• 2007: Queen's Counsel
• 2011-2012: Counsel assisting the Royal Commission of Inquiry into Building Failures Caused by the Canterbury Earthquakes
• 2012-2014:  President, New Zealand Bar Association

Appointments and Professional Activities

• 2019 Founding member, Lawyers for Climate Action NZ Inc
• 2014-date: Independent Director and Chair of Westhaven Marina Limited (WML is a wholly owned subsidiary of Panuku Development, Auckland, which is an Auckland Council-Controlled Organisation)
• 2011-2014: Rules Committee member
• 2010-2012: Legal Research Foundation Council
• 2009-2011: New Zealand Law Society, appointed member Auckland branch
• 2009-date: SPCA Prosecutions Panel
• Faculty Member, NZLS Litigation Skills Programme
• LEADR - Founding Director of the NZ Chapter
• 2000-2005: Trustee, Great Barrier Rescue
• 1982-1986: Director, Dalhousie - Indonesia Environmental Law Programme
• 1973-1978: Director, Environmental Defence Society Inc
• 1973-1978: Councillor, Devonport Borough Council
  • Chairman, Planning Hearings Committee
  • Chairman, Recycling Committee

• Commerce Commission v Ferratum Limited CIV 2018-404-1032 CCCFA Lender Responsibility Principles; high-cost, short-term lending.  Counsel for the Commission.  Trial June 2020.
• Cato v Manaia Media and others CIV-2017-404-3091.  Defamation. Online article in NZ Horse & Pony magazine. Pre-trial ruling that article capable of defamatory meanings:  [2019] NZHC 440:  further meanings struck out by Hinton J reinstated: [2019] NZCA 661.  Counsel for plaintiff. Trial pending.
• Williams v Craig   Defamation; defences of self-defence privilege, truth and honest opinion. Counsel for defendant.  Jury trial, verdict for plaintiff. Verdict set aside and new trial ordered on both liability and damages: [2017] NZHC 724; [2017] 3 NZLR 215 Court of Appeal:  new trial on damages only [2018] NZCA 31.  Supreme Court:   general re-trial ordered: [2019] NZSC 38; [2019] 1 NZLR 457. Settled.
• Oxygen Air Ltd v LG Electronics Australia Pty Ltd.  Licensing dispute; alleged breach of contract.  Judgment for LG on both the claim and counterclaim; [2019] NZHC 2786. Appeal filed by plaintiff.  Trial and appeal counsel for LG.
• H K Sun & others v Peninsula Road Limited (In Receivership and In Liquidation) and others (CA).  Queenstown alpine village development; alleged breach of contract by purchasers; vendor’s inability to complete entire project; whether entitled to require settlement; purchasers’ right to cancel for repudiation.  Trial judgment for vendor.  Retained as counsel for the purchasers in the Court of Appeal:  [2016] NZCA 427 and Supreme Court: [2018] 1 NZLR 738  Judgment for the purchasers in both CA and SC. 
• Sportzone Motorcycles Limited and Motor Trade Finances Limited v Commerce Commission:
  [2014] 3 NZLR 355(HC); [2015] 3 NZLR 19 (CA); [2016] 1 NZLR 1024(SC);  Creditor’s entitlement to recover costs through credit fees; meaning of “reasonable fee”.  Counsel for Commission.
• Kidd v van Heeren   Partnership issues; status of South African judgment in determining issues in NZ proceedings; issue estoppel; Judgment No. 1 [2015] NZHC 517, Fogarty J: orders for account and interim payment of USD 25 million;  Judgment No. 2 [2015] NZHC 1270;  Judgment No. 3 [2015] NZHC 1572;  Judgment No. 4 [2015] NZHC 2082: refusing variation of orders;  Judgment No. 5 [2015] NZHC 3191:  increased costs; Judgment No. 6 [2015] NZHC 2455:  stay refused; [2015] NZCA 574:  refusing stay application by van Heeren; [2016] NZCA 401, [2017] 3 NZLR 141: affirming judgment No.1 of Fogarty J – issue estoppel and interim payment;  [2016] NZSC 163:  leave to appeal refused; Judgment No. 7 [2015] NZHC 2455:  refusal to stay (costs); Judgment No. 8 [2015] NZHC 3250:  refusal to stay (reasons); Judgment No. 9 [2016] NZHC 307:  confidentiality issues; Judgment No. 10 [2016] NZHC 658:  costs; Judgment No. 11 [2016] NZHC 576:  costs; [2017] NZHC 1304:  restraining orders, disclosure orders, artwork inspection orders; [2017] NZHC 3199, Jagose J:  enforcement of interim payment order; [2019) NZCA 352: reversing High Court and appointing receivers to the shares of WWL to sell Huka Lodge and other partnership assets to force compliance with interim payment order; [2019] NZHC 1761:  information orders, van Heeren required to exercise powers held in respect of Liechtenstein foundations.
• Rongotai Investments Limited v Land Valuation Tribunal & Ors CIV 2019-485-662.  Application for judicial recusal for apparent bias; interim order refused [2019] NZHC 3040.
• University of Canterbury:  advising on contract issues in relation to death of University of Canterbury student.
• Craig v Stringer  CA 312/2019.  Defamation.  Counsel for appellant in appeal against judgment of Palmer J, staying proceedings.  Hearing March 2020.
• Craig v MacGregor CA 514/2019:  Defamation.  Counsel for appellant in appeal against judgment of Hinton J.
• CBL class action: instructed to advise proposed representative plaintiff.
• Southern Response:  instructed to advise proposed representative plaintiffs.
• CBL Corporation Ltd (in voluntary administration).  Counsel for lender group.  Settled.
• Sky Television v TVNZ & Ors  CIV-2016-404-2693.  Alleged breach of copyright; online news coverage of rugby games; fair dealing defence.  Counsel for TVNZ.  Settled.
• Commerce Commission v Harmoney Limited [2019] 2 NZLR 81.  P2P lending; whether “Platform Fee” is a credit fee under the CCCFA and must be a "reasonable fee" under s.41; Court opinion sought under s.100A Commerce Act 1986: Platform Fee is a credit fee.  Counsel for Commission.
• Harmoney Ltd v Commerce Commission  [2019] 3 NZLR 518:  whether there is a right of appeal under s.100A.  Counsel for Commission.
• Waterhouse v Contractors Bonding [2014] 1 NZLR 91 (SC): litigation funding agreement; whether champertous; whether Saunders v Houghton should be followed where funding is for individual litigants. Counsel for appellant in the Supreme Court.
• Hugh Green estate:  counsel for unborn beneficiaries.
• St Patrick's Square development:  non-notified resource consent.  Impact on St. Patrick’s Cathedral. Judicial review.  Counsel for Catholic Diocese of Auckland.  Settled.
• Ngati Whaoa Runanga Trust v Waiotapu Limited Partnership:  arbitration; review of current market rental.  Award appealed for error of law, leave refused: [2017] NZHC 2597.  Application to set aside: award confirmed [2018] NZHC 1003.  Counsel for Waiotapu.
• Commerce Commission v Budget Loans Limited CIV 2015-404-00649.  Lawfulness of lending practices; representative action on behalf of borrowers. Counsel for Commission.
• Body Corporate 325261 v Cooke & Others CIV 2011-404-8000.  Earthquake engineering issues; alleged negligence of structural engineers. Interlocutory judgments [2014] NZHC 331; [2014] NZHC 761. Settled in week 3 of trial.  Counsel for structural engineers.
• Lange v Atkinson & anor, [1997] 2 NZLR 22; [1998] 3 NZLR 424 (CA); [2001] 1 NZLR 257 (PC); [2001] 3 NZLR 385 (CA).  Defamation; qualified privilege for political speech. Junior counsel for defendants.
• Fonterra Co-operative Group Ltd v The Grate Kiwi Cheese Co Ltd & another (2009) 19 PRNZ 824; [2011] NZCA 67; [2011] NZSC 68. Entitlement to raw milk under the Dairy Industry Restructuring Act; meaning of an "independent processor". Counsel for Commerce Commission as intervenor, in HC, CA and SC.
• Commerce Commission v Forsyth Barr Ltd and others:  CreditSails investment scheme; securities; Fair Trading Act. Substantial refund to investors. Counsel for Commission.
• Auckland Regional Council v Rodney District Council and Parihoa Farms Limited CIV 2007-404-3464; [2007] NZRMA 535; [2007] BCL 925; [2007] BCL 979; [2007] Your Environment 2007. Judicial review proceedings brought by the ARC to set aside a resource consent for construction of a house overlooking the Te Henga Walkway on the Muriwai-Bethells coast. Counsel for Parihoa Farms.  Settled in favour of Parihoa Farms following review hearing.
• Hosking v Runting & anor [2003] 3 NZLR 385; [2005] 1 NZLR 1 (CA).  Tort of privacy. Counsel for intervener ACP Media Ltd.
• Fletcher Homes Ltd.  Claims by homeowners under the Fair Trading Act alleging over-valued new homes: 600 claimants; responsible for designing ADR process; overall responsibility for litigation strategy.  Counsel for Fletcher Homes.
• Gosper & Olssen v Fletcher Homes Ltd & anor, HC Wellington.  Test case with respect to the allegations against Fletcher Homes Ltd.  Counsel for defendant.  Judgement for Fletcher Homes.
• Kuwait Finance House (Bahrain) B.S.C v Teece [2014] NZHC 3162; [2015] NZAR 36. Summary judgment; attempted enforcement of decision of Bahrain Chamber of Dispute Resolution (BCDR); BCDR not a court; recognition and summary judgment refused. Application for determination of a separate question prior to trial: whether BCDR a Court: order made  [2016] NZHC 498, [2016] NZAR 391.  Further judgment following trial on preliminary issue:  BCDR a court of Bahrain.  Counsel for Teece.
• Teece v Kuwait Finance House (Bahrain) B.S.C and others CIV 2014-404-957.  Minority oppression; special fiduciary issues. Five week trial before Woodhouse J.  Settled at the end of week one. Counsel for plaintiff.
• Cutting v Liu [2014] 3 NZLR 224.  Intervention rule; entitlement of barrister sole to sue for unpaid fees. Appointed as amicus curiae.
• Complaint by Allied Domecq to the Standing Committee of the New Zealand Stock Exchange re Lion Nathan acquisition of Montana; breach of Securities Act and Stock Exchange Rules. Counsel for Allied Domecq.
• Benjamin Developments Ltd v Robt. Jones (Pacific) Ltd [1994] 3 NZLR 189.  Contract. Counsel for plaintiff in HC and CA.
• Fonterra v Guiney CIV 2018-485-303.  Defamation.  Counsel for Fonterra.  Settled.
• Arbitrator in construction dispute under NZS 3910:2013. Settled.
• NZX Market Disciplinary Tribunal.  Participant rules; alleged market manipulation.  Counsel for NZX.
• Major construction dispute. Acting for owner. Settled.
• Defamation claim against the NBR. Counsel for plaintiff. Settled.
• Mitre 10 (NZ) Ltd v Thistle Dome Holdings Limited [2015] NZHC 3289. Effect of ss.232-234 Property Law Act 2007; alleged breach of covenant to repair in lease, arbitration notice issued by TDHL prior to settlement. Any rights TDHL had arising from breach of covenant terminated on assignment of lease. Counsel for Mitre 10
• QEII Trust covenant.  Application to set aside covenant; contractual mistake; breach of FTA.  Counsel for landowner.
• Advising in respect of major electricity supply contract.
• Advising NZX in relation to compliance issues.
• New Zealand Markets Disciplinary Tribunal, counsel for market participant.
• Claim against auditors arising out of a finance company collapse. Mediation. Counsel for auditors.  Settled.
• Smith and others v Auckland Council and others CIV 2014-404-8351.  Weathertightness issues; whether HCNZ/HNZ owes non delegable duties of care. Settled. Counsel for HCNZ/HNZ.
• Wendco (NZ) Limited v Wiri Licensing Trust [2014] NZHC 1481.  Accessway rights under Lease Agreement; derogation from grant; equitable easements: [2014] NZHC 485 interim-interim application; [2014] NZHC 820 interim application. Counsel for Wendco in High Court.
• Wendco (NZ) Limited v Wiri Licensing Trust CIV 2014-404-0712.  Judicial review; lawfulness of non-notified resource consent. Counsel for Wendco in High Court.
• Commerce Commission investigation into interest rate swaps.  Alleged FTA breaches. Settled. Counsel for a major bank.
• Arbitration, contract issues. Appointed arbitrator.
• Arbitration, share purchase; warranty and FTA issues. Counsel for applicant.
• Commerce Commission investigation into car parking issues. Counsel for operator.
• Professional partnership dispute. Counsel for individual partners. Settled following mediation.
• Advice to Crown Law on threatened defamation proceedings.
• Counsel for defendant publisher in threatened defamation proceedings. Settled.
• Counsel for plaintiff in claim arising out of alleged breach of warranty and other breaches on sale of shares.  Settled.
• Advice on powers of removal arising under Standing Orders and Rules of an incorporated body.
• Commerce Commission v Bluestone Mortgages NZ Ltd [2012] NZHC 1946.  Credit Contracts and Consumer Finance Act; lawfulness of credit fees. Settled.  Counsel for Commission.
• TVNZ v West; TVWorks v Sundborn [2011] 3 NZLR 825.  Appeal under Broadcasting Act against decision of Broadcasting Standards Authority. Appointed as Amicus Curiae to argue case for respondents.
• Saito Offshore Pty Ltd v Wing Hung Printing Co Ltd [2011] 1 NZLR 754 (CA).  Breach of licence agreement; misuse of confidential information; protest to jurisdiction dismissed. Counsel for plaintiff. Settled.
• Commerce Commission v Visy Board (NZ) and others  [2012] NZCA 383.  Cartel proceedings; protest to jurisdiction. Counsel for individual defendant.
• Counsel for plaintiff marinas in proceedings against regional and territorial authorities challenging the legality of fees levied against a number of Auckland marinas. Settled.
• Advice on liability of local authority for issuing CCC and Notice to Fix leading to loss of sales by developer.
• Advising on liability for pumping pressure failures on offshore oil rig, including Letter of Request procedures.
• Parihoa Farms Ltd v Rodney District Council; (2010) 20 PRNZ 8. Encumbrance securing covenant in gross; landowners right to discharge; clog on equity of redemption. Settled following trial.  Counsel for plaintiff.
• Energizer NZ Limited v Panasonic NZ Limited, CIV 2009-404-4087.  Fair Trading Act; interim injunction. Counsel for Panasonic.  Settled.
• Peters v TVNZ CIV 2004-404-3311.  Defamation Act; successful application for leave to file late s 41 notice in response to defences of qualified privilege and honest opinion. Counsel for Winston Peters on the application.
• Appointed Expert:  lease dispute.
• Arbitrator:  lease dispute.
• Counsel for defendant in proceedings against finance company directors and officers.
• Counsel for plaintiff in professional liability claim.  Settled.
• Counsel for a major local authority in an arbitration regarding compensation under the Public Works Act.
• Hellaby Holdings Limited v ASB Management Services Limited & ors, HC Auckland.  Asset acquisition. Counsel for fifth defendant.  Settled.
• Advice on the 'alternative solutions' provisions of the Building Act (judicial review issues).
• Commerce Commission v Cards NZ Ltd & ors, HC Wellington, 2006.  Commerce Act, ss27, 30. Second counsel for third defendant.  Settled.
• Southgate Centre Ltd v Mitre10, HC Auckland. Rent charge dispute. Counsel for defendant.
• HarvestPro Logging Ltd v Cordyline Holdings Ltd, HC Auckland, 2006.  PPSA issues.
• Intec v Engle and ors, HC Auckland.  Application to set aside judgment entered on foreign arbitral award. Counsel for plaintiff.
• Arbitration. Construction dispute; breach of contract, rectification and estoppel. Counsel for the contractor.
• Defamation proceedings in Fiji against the Fiji Times (internet issues). Settled. Counsel for plaintiffs.
• The Queen v Patel [2006] NZAR 690 (CA).  Application to set aside witness summons issued against a senior television journalist. Counsel for journalist.
• Independent Counsel, appointed to determine relevance and privilege issues with respect to documents seized under warrant by the Commerce Commission.  Price-fixing allegation.
• Parihoa Farms Ltd & ors v Rodney District Council & ors, HC Auckland. Judicial review proceedings; Waitakere Ranges Heritage Area Bill; steps successfully taken to prevent Bill being introduced; consultation requirements under part 6, Local Government Act 2002. Counsel for plaintiff landowners.
• Downie v Matthews, HC Auckland.  Sale and purchase dispute; specific performance. Counsel for plaintiff. Settled.
• State Services Commissioner & ors v Pauanui Publishing Ltd, HC Auckland.  Scampi Inquiry, breach of confidence by media, interim injunction. Counsel for plaintiffs.
• BT Funds Management Ltd v Murphy & anor, HC Wellington. Securities Act; appointed as Temporary Representative and Amicus responsible for determining classes of investors.
• Karam v ACP Media Ltd CIV 2003-404-0497; [2006] NZ Law Review 525; [2003] BCL 958; [2004] BCL 552.  Defamation,; North & South article on the Bain murders. Counsel for defendants.  Settled.
• Su-Chin Lin v Hall & ors, HC Auckland. Sale and purchase dispute; specific performance; third party claim against solicitors. Counsel for defendant.  Settled.
• DL Somers-Edgar & anor v Lee, HC Wellington. Defamation. Counsel for plaintiff.  Settled.
• Sreka Industries Ltd v Opus International Consultants Ltd & anor, HC Wellington.  Defamation. Counsel for plaintiff.  Settled.
• A-G v Ireland and Langwell [2002] 2 NZLR 221 (CA).  Judicial review; interpretation of s58 of the Reserves Act. Counsel for plaintiffs/respondents.
• Kamp v Smith, DC Napier. Defamation. Counsel for plaintiff.  Settled.
• Nordhoff v Chapman Tripp & anor, HC Auckland. Quistclose Trusts. Counsel for defendants.
• University of Auckland Senior Common Room v Desmone Ltd, HC Auckland, (2002) 7 NZBLC 103,580.  Employment issue. Counsel for plaintiff.
• Cedco Publishing Co Ltd v Hodder Moa Beckett and Geddes Publishing Co (UK) Ltd, HC Auckland. Breach of US licence agreement. Settled. Counsel for plaintiff.
• Commerce Commission v Alpha Club, [2000] NZBLC, Vol 6 103,062. Prosecution under s24 of the Fair Trading Act; pyramid selling. Counsel for defendant.
• ICC arbitration. Breach of licensing agreement. Counsel for plaintiff.
• Fullers Northland Ltd v ARC & anor, HC Auckland.  Judicial review of public authority tendering; commercial registration; Devonport ferry service. Counsel for plaintiff.
• PPCS Ltd v NZ Rural Press & anor, HC Auckland CP 412-SD99.  Defamation. Counsel for plaintiff.  Settled.
• Gosper v Licensing (NZ) Ltd and anor [1997] 11 PRNZ 58.  Fair Trading Act. Counsel for defendant.
• INL v Australian Consolidated Press NZ Ltd [1996] 3 NZLR 722.  Passing off. Counsel for defendant.
• TV3 Network Services Ltd v The News Corporation, HC Auckland, (1996) 7 TCLR 60.  Dispute over television rights to SuperLeague; interim injunction. Counsel for first three defendants.
• Geddes v Australian Consolidated Press NZ Ltd & ors, HC Auckland.  Defamation. Counsel for defendant.
• Telecom Corporation v Auckland City Council [1995] 3 NZLR 489. Judicial review; rateability of utilities. Junior counsel for plaintiff.
• Knox v Australian Consolidated Press NZ Ltd, HC Auckland.  Defamation. Counsel for defendant.  Settled.
• McRae v Australian Consolidated Press NZ Ltd, HC Auckland.  Defamation; new trial application.  . Junior counsel for defendant.  Settled.
• General Communications Ltd v DFC [1990] 3 NZLR 406.  Quistclose Trusts. Junior counsel (HC).
• GSH Finance Pty Ltd v Chase Securities Ltd [1989] 1 NZLR 481.  Contract. Junior counsel (CA).
• Arbitration Hawkins Construction Ltd and the Auckland City Council regarding the Aotea Centre.  Construction dispute. Junior counsel.

• Buildings: Earthquake & Environmental Risk and Liability, ADLS Seminar, 16 November 2015.
• Judicial review: jurisdiction and justiciability - the public/private divide, Auckland District Law Society CLE seminar, 8 September 2009.
• Litigation funding, New Zealand Bar Association Annual Conference, Wellington 12 September 2009
• The impact of cyberspace on domestic law - defamation, New Zealand Bar Association 1st International Conference, Sydney, Australia, August 2008
• Deterring breach of contract: are equitable remedies the answer? NZ Lawyer, 27 April 2007, page 20
• More Effective Management of Defamation Cases [2006] NZ Law Review 525
• Specific Performance: Sale of Land [2006] NZLJ 196
• Equity as a Source of Contract Remedies, LexisNexis 6th Annual Contract Law Conference, 21 March 2007
• Legal Research Foundation Seminar on Media Law, More Effective Management of Defamation Cases, June 2006
• Arbitration versus Litigation: Comparative Costs Recovery Issues, First NZ Arbitration Day Conference, June 2006
• Equity as a Source of Contract Remedies, LexisNexis Contracts Master Class, July 2005
• ADLS Seminar, Privacy Law
• Solomon, Feldthusen & Mills, Cases and Materials on the Law of Torts (Carswells) 1st and 2nd Editions
• Defamation Section, Canadian Digest (3rd Edition)