Court : New Zealand Court of Appeal
Introduction [1] Mr Goodwin has filed an appeal from a decision of Associate Judge Matthews that adjudicated him bankrupt.[1] He owes money as a judgment debtor to Mr Copland, the respondent in these proceedings and the judgment creditor. Background [2] In May 2006, the parties and an associated company settled a proceeding that had been issued in the High Court at Dunedin. The terms of that settlement required Mr Goodwin to pay Mr Copland USD 495,000, 30,000 of which was for costs. The bulk of the payment was due on 29 September 2006 and the costs component a month later. [3] Neither payment was made so in October 2006 Mr Copland obtained a judgment in his favour ordering payment as required by the settlement agreement. With no payment forthcoming, Mr Copland on 23 July 2012 applied for the issue of a bankruptcy notice and substituted service orders. The bankruptcy notice was served by substituted means on 31 July 2012. On 15 August of that year Mr Copland applied to adjudicate Mr Goo...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by White J) [1] Janine Mears pleaded guilty in the District Court at Dunedin to three charges of theft by a person in a special relationship, one charge of dishonestly using a document with intention to obtain pecuniary advantage and one charge of forgery. She was sentenced by Judge MacAskill to a total of four years and three months imprisonment with a minimum period of imprisonment of two years.[1] [2] Mrs Mears appeals on the grounds that the sentence for the most serious theft charge of four years imprisonment was manifestly excessive and that the Court should not have imposed a minimum period of imprisonment. She does not challenge the cumulative sentence of three months imprisonment for the forgery charge. Concurrent sentences of nine months, six months and two years imprisonment were imposed on the other theft charges. [3] Over a six year period, Mrs Mears fraudulently stole $380,000 from a small business where she was employed as credit controller. She used four methods:...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Mallon J) Introduction [1] Ms Byrne was sentenced to 12 months imprisonment following her conviction at trial on a charge of burglary.[1] She appeals against that sentence contending that a sentence of home detention should have been imposed. In the alternative she contends that the term of imprisonment was manifestly excessive. Background [2] Ms Byrne was working as a security guard in Dunedin. In that capacity she attended alarm activations at one of the cricket clubs in that city. From that work she had knowledge of the deactivation code for that clubs alarm. Using that knowledge she was able to enter the cricket clubs premises in the early hours of 15 December 2011. She took $600 from the till for the clubs bar facilities. To cover her tracks she entered a false record of her whereabouts in her employers security log. [3] Ms Byrne was charged and her trial took place on 23 to 25 September 2013.[2] She was sentenced by Judge Crosbie on 11 November 2013. She continued to de...
Tag this Judgment!Court : New Zealand Court of Appeal
[1] Mr Bell has moved for bail pending his appeal against a sentence of two years, three months imprisonment. [2] The grounds advanced are that no credit was given for reparation, there were strong factors favouring home detention, and imprisonment is disproportionately severe because of Mr Bells mental health difficulties and the impact on his family. There is evidence that Mr Bell suffers anxiety and dissociative amnesia. [3] However, the prospects of the sentence being reduced to a point where home detention is available do not appear strong enough to warrant bail. Mr Bell evidently did not seek to benefit himself directly, but his frauds were extensive and premeditated. He occupied a senior position. He caused others very substantial losses, and there is evidently no prospect of full reparation. The Crown case was strong, and guilty pleas were entered late. The Judge adopted a starting point of four years and discounted it substantially for mental health considerations, guilty plea...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Dobson J) [1] On 4 November 2013 the appellant, Mr Naiker, was sentenced in the Auckland District Court to five months home detention on two convictions for possession of an offensive weapon and one conviction for a threatening act.[1] He has appealed that sentence as being manifestly excessive. The sentence has been suspended pending determination of his appeal. [2] The offending occurred after the breakup of a relationship with the complainant. Mr Naiker was 17 at the time of the offending, and the girl involved somewhat younger. They began a relationship when they were both students at the same secondary school, and it developed to the point that Mr Naiker had moved in with the complainant, living in her mothers flat. Mr Naiker was expelled from the school in early March 2013 and the complainant ended her relationship with him shortly thereafter. [3] Shortly after the complainant had ended the relationship, Mr Naiker went to her home, uninvited, and argued with her. During...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by White J) Introduction [1] The 17 level Shangri-La residential apartment tower on Jervois Road, Herne Bay, Auckland, was a œleaky building? which cost over $6 million to make weatherproof by work which included recladding the south-western half of the building with a glass curtain wall. [2] This appeal relates to a dispute between the majority of the owners of the units in the tower, represented by the appellant, Body Corporate 114424 (the Body Corporate), and the first respondents, LV Trust Holdings Ltd and KP Trust Holdings Ltd (the applicants). The applicants own the only unit in the tower which occupies more than one level, namely all of level 15 and part of level 16, which is the top level and which also contains a lift and services block and a deck. [3] The dispute is about two issues: first, the allocation between the owners of the units of the costs incurred by the Body Corporate in carrying out the remedial work; and, second, a claim for compensation by the appl...
Tag this Judgment!Court : New Zealand Court of Appeal
Introduction [1] By notice of appeal filed on 19 July 2013 Mr Mawhinney purported to appeal against a judgment of Associate Judge Christiansen given on 24 June 2013.[1] The notice of appeal named the two respondents referred to in the intituling above. Accordingly, the Registrar set security for costs at $11,760. [2] On 12 August 2013, Mr Mawhinney filed an application for a waiver of security for costs, which was refused by the Registrar. By letter dated 2 September 2013, Mr Mawhinney was advised of this decision, and of his right to review it.[2] Any application for review to a Judge must be made within 10 working days of the Registrars decision.[3] Therefore, an application to review was required to be filed by 16 September 2013. [3] The application for review of the Registrars decision was not filed until 15 January 2014, some four months out of time. Mr Mawhinney now seeks an extension of time for that application. Background [4] On 20 September 2013, Mr Mawhinney first sought an ...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by ORegan P) [1] This is an application under s 245(1) of the Immigration Act 2009 (the 2009 Act) for leave to appeal to the High Court against a decision of the Immigration and Protection Tribunal allowing the respondents appeal against a deportation notice. [2] The deportation notice had been served on Mr Jooste, who is a citizen of South Africa, because he had been convicted of a representative charge of obtaining a pecuniary advantage by deception, reflecting misappropriations made over a three year period, amounting to about $350,000. His conviction made him automatically liable for deportation. Appeal provision [3] Section 245 of the 2009 Act provides that a party to a matter before the Tribunal who is dissatisfied with any determination of the Tribunal as being erroneous in point of law may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law. [4] In the present cas...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Asher J) [1] In the early hours of Friday, 1 July 2011 the victim was in the lounge area of his home when he noted a sensor light come on outside the house. As he went to look at the security monitor the front ranchslider door imploded inwards. Realising this was a home invasion the victim ran to the rear of the house to get a steel pipe to protect himself. When he returned to the front of the house he found himself confronted by five males holding weapons, one of whom was the appellant, John Pulu. [2] He was attacked with baseball bats and a small axe, and ultimately hit on the head numerous times so that he collapsed on the ground. He was dragged toward the kitchen and an attempt was made to tie him up with plastic ties the offenders had brought with them. When disturbed by the victims partner the offenders left through the ranchslider and drove off, to be apprehended shortly thereafter by the police. A car belonging to Mr Pulu was used throughout. [3] The complainant suffe...
Tag this Judgment!Court : New Zealand Court of Appeal
(Given by Harrison J) Introduction [1] Mau Harawira pleaded guilty in the District Court at Auckland to charges of injuring with intent to injure and theft. He was convicted and sentenced by Judge David Harvey on both charges to concurrent terms of three years and two months imprisonment. [1] He appeals against that sentence on the ground that it is manifestly excessive. In particular his counsel, Ms Sellars, submits that (a) the starting point adopted by the Judge was too high and (b) insufficient credit was given for Mr Harawiras pleas of guilty and remorse. Facts [2] One afternoon in August 2012 Mr Harawira and his two co-offenders were drinking alcohol at Blockhouse Bay Beach. A 12 year old boy, AB, was also there. He allegedly mouthed some abusive words at the three men. As a result, Mr Harawira and the two others chased AB who ran a short distance to his home nearby. [3] Following a disputed facts hearing, Judge Harvey found that a short time later Mr Harawira and his co-offender...
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