LLB (Hons) (Auck)

LLM University of Pennsylvania

Barrister Sole: 2002

Silk: 2007

My practice principally involves commercial dispute work.  I have had a particular focus on contractual disputes, tort, construction and structural engineering issues, regulatory matters, including trade practices, judicial review and property disputes.  I recently acted for TVNZ in the Sky TV copyright litigation, now settled.  I have a specialist practice in defamation.  I have acted for the Commerce Commission on a number of major consumer protection proceedings, including litigation over the fees provisions in the Credit Contracts Consumer Finance Act 2003, where the Supreme Court has upheld the Commission’s position on the interpretation of the CCCFA.

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.

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

• Oxygen Air Ltd v LG Electronics Australia Pty Ltd CIV 2015-404-2184. Licensing dispute; alleged breach of contract. Counsel for LG. Four week trial commencing 13 May 2019.
• BOC/ICBC v CBL Corporation Ltd (in voluntary administration) CIV 2018-404-946, counsel for BOC/ICBC.
• Williams v Craig  [2017] 3 NZLR 215 (HC) (defamation; defences of self-defence privilege, truth and honest opinion). Counsel for Colin Craig.  Verdict for plaintiff. Judgment setting aside verdict and ordering a new trial on both liability and damages: [2017] NZHC 724. Court of Appeal ordering a new trial on damages only: [2018] NZCA 31.  Leave granted to appeal to Supreme Court.  Judgment in favour of Craig.  Material misdirections. General re-trial ordered: [2019] 1 NZLR 457; [2019] NZSC 38.
• H K Sun & others v Peninsula Road Limited (In Receivership and In Liquidation) and others (Queenstown property development; contract; vendor’s inability to complete entire project; whether entitled to require settlement; appellants entitlement to cancel for repudiation). Counsel for the plaintiff in the Court of Appeal [2016] NZCA 427 and Supreme Court [2018] 1 NZLR 738 (SC).  Appeals successful. 
• Kidd v van Heeren [2015] NZHC 517, Fogarty J.  Partnership issues; status of South African judgment in determining issues in NZ proceedings; issue estoppel; 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.  [2015] NZCA 574 (refusal of stay application by van Heeren). [2016] NZCA 401, [2017] 3 NZLR 141 affirming High Court judgment of Fogarty J.  [2016] NZSC 163:  refusing application by van Heeren for leave to appeal; [2017] NZHC 3199:  enforcement orders; [2017] NZHC 3199:  enforcement of interim payment order; [2019) NZCA 352: finding that van Heeren is the beneficial owner of WWL; appointment of receivers to the shares of WWL to sell Huka Lodge and other assets to satisfy interim payment order; leave to appeal sought from Supreme Court. [2019] NZHC 1761:  information orders, van Heeren required to exercise powers in respect of Liechtenstein foundations.  Judgment No. 5 [2015] NZHC 3191:  increased costs order. Judgment No. 6 [2015] NZHC 2455: refusal to stay.  Judgment No. 7 [2015] NZHC 2475: enforcement powers; attendance for examination. Judgment No. 8 [2015] NZHC 3250: refusal to stay (reasons). Judgment No. 9 [2016] NZHC 307: confidentiality issues. Judgment No. 10 [2016] NZHC 658: refusal to stay costs order. Judgment No. 11 [2016] NZHC 576: confidentiality issues. Judgment No. 12: without notice interim orders - restraining orders, disclosure order, artwork inspection orders.
• 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.  Six week trial set down for 30 April 2018.  Settled.
• Commerce Commission v Harmoney Limited CIV [2019] 2NZLR 81 (Peer-to-Peer lending; whether “Platform Fee” is a credit fee under the CCCFA and must be a "reasonable fee" under s.41; application under s.100A Commerce Act 1986), Courtney J, confirming - inter alia - Platform Fee is a credit fee.  Appeal by Harmoney:  preliminary issue regarding appeal rights under s.100A.  Court of Appeal hearing 26 March 2019.
• Commerce Commission v Ferratum Limited CIV 2018-404-1032 CCCFA Lender Responsibility Principles; high-cost, short-term lending.  Counsel for the Commission.  Trial anticipated 2019.
• Cato v Manaia Media and others CIV-2017-404-3091.  Defamation. Article in NZ Horse & Pony magazine. Pre-trial ruling that article capable of defamatory meanings:  Hinton J [2019] NZHC 440.  Counsel for plaintiff. Three week trial 21 October 2019.
• Hugh Green estate:  counsel for unborn beneficiaries.
• St Patrick's Square development:  non-notified consent.  Judicial review.  Resolved.
• 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.
• Sportzone Motorcycles Limited and Motor Trade Finances Limited v Commerce Commission:
  [2016] 1 NZLR 1024(SC); [2014] 3 NZLR 355(HC); [2015] 3 NZLR 19 (CA); creditor’s entitlement to recover costs through credit fees.  Counsel for Commission.
• 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 (NC); [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 Commission as intervenor, in HC, CA and SC.
• 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.
• Commerce Commission v Forsyth Barr Ltd and others (CreditSails investment scheme; securities; Fair Trading Act). Settled. 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 in respect of claims by home owners under the Fair Trading Act alleging over-valued new homes: 600 claimants; responsible for designing ADR process; overall responsibility for litigation strategy.
• Gosper & Olssen v Fletcher Homes Ltd & anor, HC Wellington, (test case with respect to the allegations against Fletcher Homes Ltd). Junior 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 by defendant 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.  Settled.
• 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 (Lion Nathan acquisition of Montana; breach of Securities Act and Stock Exchange Rules). Junior counsel for Allied Domecq.
• Benjamin Developments Ltd v Robt. Jones (Pacific) Ltd [1994] 3 NZLR 189 (contract). Junior counsel for plaintiff in HC and CA.
• Fonterra v Guiney CIV 2018-485-303 defamation proceedings.  Counsel for Fonterra.  Settled.
• Arbitrator in construction dispute under NZS 3910:2013. Settled.
• 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.
• NZX Market Disciplinary Tribunal  (participant rules; alleged market manipulation).  Counsel for NZX.
• Hugh Green Estate.  Counsel for one of the beneficiary groups.
• 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.
• Body Corporate v Auckland Council and others, CIV-2014-404-0455.  (Leaky building and structural engineering claim.) Counsel for structural engineer.  Settled.
• 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. Settled/mediation. Counsel for auditors.
• 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.
• Commercial arbitration (contract issues). Appointed arbitrator.
• Commercial 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 CIV 2009-404-000537; (2010) 20 PRNZ 8 (encumbrance securing covenant in gross; landowners right to discharge; clog on equity of redemption). Settled following trial and prior to appeal hearing. 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.
• Lease dispute.  Appointed Expert.
• Lease dispute:  Arbitrator.
• 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 CRI 2004-004-14009; [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 proceeding; 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. 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.
• Counsel for
• 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 proceedings). 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 successful). 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 between 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)