Court : New Zealand Court of Appeal
Introduction [1] A District Court jury found Mr Maligi guilty of one count of aggravated robbery. He was convicted and sentenced by Judge Andree Wiltens on that charge to a term of imprisonment of three years and nine months.[1] [2] On 10 January 2014, Mr Maligi filed a notice of appeal against conviction and sentence. [3] He now seeks bail pending the hearing of his appeal. No date for the hearing has yet been set. Mr Maligi has been in custody since 13 October 2013. Grounds of the application for bail [4] The application is brought on the grounds that the strength of the appeal and Mr Maligis personal circumstances are such that bail ought to be granted. [5] The proposed appeal points are that: (a) The Judge erred in ruling that a hearing under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 relating to a coaccused (Mr Stowers) should be held at the same time as the trial. A separate hearing should have been ordered. (b) The Judge wrongly included Mr Stowers in the...
Tag this Judgment!Court : New Zealand Court of Appeal
[1] The appellant, Thyssen Carter Wong, was convicted after a jury trial in the District Court at Auckland on one charge of possessing 2.6 grams of methamphetamine for supply and one charge of possessing an offensive weapon. He was also acquitted on a charge of supplying methamphetamine. The appellant was then sentenced by Judge Sinclair to seven months home detention, together with six months of post-release conditions.[1] He appeals to this Court against his conviction. [2] Mr Wong applies for bail pending appeal under s 403A(c) of the Criminal Procedure Act 2011 and s 55 of the Bail Act 2000 and the suspension of his home detention sentence. [3] A sentence of home detention is no longer automatically suspended when an appeal is brought in a case to which the Criminal Procedure Act applies,[2] or where, as here, the matter falls in the transitional period.[3] It is not disputed that this Court ought not to suspend a sentence without also granting bail.[4] [4] Bail is opposed by the C...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by ORegan P) Introduction [1] This is an application for an extension of time to apply for the allocation of a hearing date and to file the case on appeal. The application is made under r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules). The application is opposed. Appeal [2] The appeal to which the application relates is an appeal against a decision of Williams J.[1] In that decision, Williams J struck out the claim made by Mr Reid and Mrs Christine Barber as trustees of the Marangairoa Trust against Ms Cottle and the law firm that acted for her in the transaction that is subject to the present proceedings, Cooper Rapley Lawyers. The reason Williams J struck out the claim was that the res judicata doctrine applied.[2] That was because a claim by Mrs Barber against Ms Cottle that was dismissed by Mallon J in 2008,[3] arose from the same facts and was based on the same actions of Ms Cottle as those founding the present claim. Mrs Barber applied to this Court for an ext...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Venning J) Introduction [1] Yao Wei He appeals against a judgment of Associate Judge Doogue declining to grant him leave to bring proceedings in the name of NZ Products International Limited (NZPIL) against Zhixiong Chen (Mr Chen Snr) and Youngzhou Chen (Mr Chen Jnr).[1] Background [2] NZPIL was incorporated on 18 June 2010. Mr He and Mr Chen Jnr are its de jure directors. Mr He and his wife hold 50 per cent of the shares in NZPIL. The balance 50 per cent of the shares are held by the Chen interests through a trustee company and Mr Chen Jnr and his wife. [3] Prior to the incorporation of NZPIL Mr He carried on a business which involved the purchase of New Zealand made dairy and health supplements in retail stores in New Zealand and the export of them for sale into Hong Kong and China through Mr Hes contacts in those markets. [4] Mr He and Mr Chen Snr were known to each other. Mr He says that Mr Chen Snr suggested that they establish a commercial joint venture (CJV) to exploit...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Harrison J) [1] We refer to Randerson Js comprehensive minute dated 28 March 2014 and memoranda filed by Mr Machirus and by Ms Currie and others dated 4 April and 8 April 2014 respectively. [2] Mr Machirus seeks leave to intervene and present submissions in relation to this appeal. Ms Currie opposes. At [4] and [5] of his minute, Randerson J noted that, first, Mr Machirus is not a party to the proceeding currently before this Court and, second, pointed out in particular that, as the issues arising on this appeal are largely of a legal nature, there is little that a self represented party in an unrelated proceeding could materially add. Randerson J also noted that Mr Machirus is entitled to be present at the hearing of this appeal but is not entitled to address submissions. Mr Machirus consented to the application being dealt with on the papers. [3] Mr Machirus memorandum dated 4 April 2014 does not address the points made by Randerson J. He has not advanced any substantive or...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Asher J) Introduction [1] On 4 November 2011 the appellant Susan Bourton was arraigned on 81 counts of fraudulent offending over a nine and a half year period. Ms Bourton had worked first as an insurance broker and consultant and later as a business banking manager at Westpac Bank. In the course of this she had been involved in a number of transactions that gave rise to the various charges. A useful summary of the facts relating to the offending can be found at [9] to [37] of the trial Judges sentencing notes,[1] and a more extended version in his reasons for verdicts.[2] [2] Without notice Ms Bourton entered a number of guilty pleas on arraignment on the first day of trial before Judge Connell sitting alone. She was found guilty and convicted of the remaining charges. The counts can be summarised as follows: (a) accessing a computer system and thereby dishonestly or by deception, and without claim of right, obtaining either a benefit, service or pecuniary advantage, or causi...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Goddard J) Introduction [1] The appellant, who represented himself, was tried before Judge Behrens and a jury in the Nelson District Court and found guilty on one charge of obtaining the sum of NZ$97,985 by deception.[1] Prior to trial the appellant had been successively assigned four different counsel on legal aid: this was over the 19 month period following his arrest in January 2011. His relationship with the last of these lawyers, Mr Riddoch, was terminated a fortnight before trial. Mr Riddoch was then appointed as amicus curiae to assist the Court. Although not within the traditional amicus role, Mr Riddoch also provided the appellant with a great deal of assistance throughout the trial. [2] Following conviction, the appellant was sentenced by Judge Behrens to two years and three months imprisonment.[2] He now appeals against conviction on the ground that the trial was unfair because his defence could not have been adequately conducted without the assistance of counsel. ...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by ORegan P) [1] This is an appeal against a decision by MacKenzie J in which he struck out claims made by the appellants against the first and second respondents.[1] In a later judgment, MacKenzie J awarded costs against the appellants.[2] Parties [2] The appeal was brought in the name of Mr Reid only. Counsel for the respondents, Ms Laurenson, argued that, since the High Court proceeding was in the name of Mr Reid and Mr Hale as trustees of the Frederick Frank Family Trust, the appeal against the High Court decision should also be made by both of the trustees. We agree. We allowed Mr Reid to make an oral application to amend the notice of appeal by including Mr Hale, who was present in court during the hearing of the appeal, as an additional appellant. We allowed the amendment. We direct the Registrar to amend the Court file and the entry for the file in the court database accordingly. Background [3] The background to the claim is summarised in the High Court judgment in terms...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by French J) Introduction [1] Mr Wikeley was served with a bankruptcy notice by the respondents. The respondents had obtained a judgment against him and wanted to enforce it. Mr Wikeley applied to the High Court to have the bankruptcy notice set aside on the ground that he had a cross claim against the judgment debt. His application was heard by Associate Judge Bell. The Judge dismissed the application.[1] Mr Wikeley now appeals that decision. [2] The key issues raised by the appeal are as follows: (a) Does Mr Wikeleys professed cross claim satisfy the elements of an equitable set-off “ in particular, is there a sufficient degree of interdependence between the cross claim and the respondents judgment debt, as required by the case law? (b) Was the Associate Judge correct to find that: (i) it was a foregone conclusion the respondents would obtain relief under the oppressed minority shareholder provisions of the Companies Act 1993; and (ii) this was a complete answer to Mr Wi...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Ellen France J) Introduction [1] In a judgment delivered on 15 December 2011, Mr Corbetts application for leave to adduce further evidence in support of his appeal in this Court was dismissed.[1] Mr Corbett by an affidavit dated 27 February 2014 seeks recall of that judgment. The application is opposed. Background [2] Mr Corbetts application to adduce further evidence related to his appeal against a decision of Priestley J finding that Mr Corbett is an incapacitated person and appointing a litigation guardian.[2] That appeal has a hearing date of 22 May 2014 in this Court. The appeal arises in the context of Mr Corbetts proceeding against the respondents who are the trustees of a family trust. The application for recall [3] The leading statement in New Zealand as to recall of judgments remains that of Wild CJ in Horowhenua County v Nash (No 2):[3] Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise ther...
Tag this Judgment!