Chris and his team have significant expertise across a broad range of disciplines. Chris’ primary expertise is as a specialist advocate. As a client you can expect that expertise to drive intelligent, practical and appropriate solutions to your issues.
Civil litigation is a generic term covering disputes in which a party seeks redress in the form of monetary damages or court orders requiring steps to be taken or not taken. These disputes arise between a variety of legal entities, including individuals, companies, local authorities and government departments.
Among the different types of civil disputes are claims for breach of contract, torts (civil wrongs such as negligence, nuisance and defamation) and disputes between trustees and co-owners of property. Unless settled without the need for a trial, civil disputes are initially determined through an adversarial trial in the District Court or High Court. The current limit of the District Court’s monetary jurisdiction is $200,000. Claims for amounts higher than $200,000 are filed in/determined by the High Court. Certain statutory claims can only be heard, at first instance, in the High Court.
If you are involved in a civil dispute (whether or not a proceeding has already been issued) Chris and his team of civil litigation specialists can help by fusing their understanding of the relevant legal aspects with sensible advice to suit your particular needs.
Chris and his team have extensive experience in cases relating to the interpretation and application of commercial documents, trade-competition issues, shipping, transport, insurance, banking, finance, intellectual property and certain claims in accordance with the Commerce Act, Securities Act and/or Companies Act. Chris also has extensive experience in acting both for and against financial advisors and firms and individuals offering financial products and services, including dealing with actions by the Financial Markets Authority and the Serious Fraud Office.
Construction litigation can entail claims based in tort, often in negligence, or claims relating to the terms of the construction contract between the parties. The effect of variations and retention payments are of particular interest to us. The Construction Contracts Act 2002 applies to all such contracts entered into after 1 April 2003, whether or not governed by New Zealand law, and whether written, oral, or partly written and partly oral. Among other objectives, the Act provides mechanisms for timely payments between parties to construction contracts and remedies for the recovery of payments under construction contracts.
When a construction project significantly fails to go as planned, any delay to a resolution of the inevitable dispute that follows simply compounds the problem. Chris approaches construction litigation with the aim of resolving disputes as quickly and efficiently as possible so that the construction project is not compromised.
Knowing when to take the next step in pursuing unpaid debts can be a difficult decision, and often creditors become embroiled in extensive correspondence with debtors when trying to negotiate payment. Chris has had extensive experience in providing creditor clients with efficient and cost effective returns on outstanding debts. Demand on payment may often result in a negotiated settlement for payment of the debt. Failing that there are other options open to creditor clients to assist in achieving a recovery of the debt, including the issue of a court order. There are also various enforcement steps available such as obtaining charging orders (a charge over a property), attachment and garnishee orders (automatic deduction of funds from income), sale orders (requiring sale of personal property), and bankruptcy and liquidation proceedings.
Chris is regularly consulted with as to the formulation of the most efficient recovery strategy to adopt when recovering debts in New Zealand. Chris also has experience in recovering overseas debts, particularly in the various States and Territories of Australia. Chris and his team focus on promoting negotiation and settlement between the parties, and are dedicated to providing clients with legal and practical advice on how to achieve maximum recovery with minimal delay and expense.
Reducing and eliminating the risk of liability in employment disputes involves a consultative approach, an adherence to compliance and good communication from the outset of all employment relationships. There are a number of express and implied obligations imposed on all parties to employment relationships and managing this area of law requires not only extensive knowledge, but also real world experience.
Not only does Chris provide advice for employment disputes and problems involving grievances, performance management, bullying and harassment, he can also assist with non-contentious employment issues such as drafting collective and individual employment agreements and company policies, ensuring compliance with such policies including health and safety and human rights law, assisting clients with investigative and disciplinary action/processes, and restructuring/redundancy processes. Chris and his team have experience acting for both large and small employers, as well as employees from all walks of life, and aim to provide not only employment advice but also practical advice in a prompt and efficient manner.
Such disputes often include the interpretation and enforcement of technology-related agreements (both onsite and cloud software licensing and/or development, hardware acquisition and maintenance), electronic commerce, computer misuse, protection of domain names, copyright enforcement, web hosting and telco supply agreements. In many instances Chris has worked alongside some of the leading experts in computer forensics to ensure that the right evidence is obtained and presented to the Court. If you have an Information Technology matter, Chris can assist.
Chris and his team have a wealth of experience in all of these areas of the law and have acted in all manner of insurance disputes. These include defending claims made by the insurer (essentially on behalf of the insured), acting for the insurer when a claim is made against it pursuant to cover being declined, and of course acting for the insured in the same circumstances.
Chris and his team have the capacity, experience and expertise to deal with any insurance dispute, from negotiations to litigation.
The main issue with earthquake claims is quantum. Insurers generally accept that the insured is entitled to cover and it is simply a matter of determining the level of the payment. With the help of your building consultant or insurance assessor, Chris and his team can determine the issues quickly and advise on the amount you should be claiming. We are then able to assist you in resolving your claim in a timely and economic manner. Likewise, when acting for insurers, particularly where cover is not genuinely disputed, Chris and the team are quickly able to determine what aspects of the quantum are claimable under the policy, and advise insurers on a prompt resolution to the claim.
Property disputes involving land can range from trying to enforce or cancel sale and purchase agreements or leases, to disputes about easements (the right to cross or use someone else’s land), boundaries and Resource Management and zoning issues, to disputes between neighbours. Remedies can range from the enforcement of proprietary rights to claims for damages, declaratory relief, and/or injunctions to prevent third parties from interfering with your use of your property. Because property disputes can involve so many areas of law there is no such thing as a typical property claim, and there is no one Act which covers all property disputes.
What happens at the end of a marriage or civil union often requires careful consideration, particularly as to how the relationship property between the spouses or partners will be divided. There is a presumption of equal sharing of all property acquired during the course of a relationship, and one of the key issues is determining the value of that relationship property. If parties are unable to agree about that, it is often preferable (in order to avoid proceedings) to engage expert valuers so that the parties can quickly and confidently resolve that issue and subsequently resolve all the property issues between them. This can be particularly important when matrimonial property issues involve family trusts and companies.
A number of statutes create both offences and crimes. In terms of the latter, the maximum penalties involved can be significantly higher, including lengthy jail terms. Chris has been successful in having statutory charges withdrawn in a number of prosecutions. It is important to note that not all statutory prosecutions are defendable, making it essential that all relevant matters are put before the Court to ensure that an appropriate sentence is achieved which is not too punitive for the defendant. Chris can assist.
Contesting a will is often an important issue for family members. The Family Protection Act allows for particular classes of people to apply for provision or further provision out of the estate of a deceased person. To be successful an applicant must show that the deceased breached the moral duty he/she was owed at the time of death. When determining the issue the Court will take into account all of the circumstances before it. All family protection claims must be lodged within a strict time limit as an administrator can start to distribute an estate in accordance with the will after 6 months unless he/she has received notice of an intention to claim against the estate. It is therefore better to signal any family protection claim well before the six-month period. As with general litigation, most claims settle without the need for a hearing, and after sharing relevant information, it is quite usual for the claims to be settled by all related parties.
Chris has seen a growth in claims being made for the removal of executors and trustees. The test usually having to be run before the Court is whether it has become “expedient” to replace that person. That person may have shown that they cannot possibly act in an even-handed way towards beneficiaries (by events or disposition or conflict). The Courts are generally willing to remove and replace executors and trustees if it that course will be a suitable, practical and efficient means of advancing the interests of the estate and/or trust and its beneficiaries. Chris can assist with all your estate and trust concerns.
Criminal offences are usually prosecuted by the state, may be determined by jury or a judge alone, and can have penalties ranging from small fines to long periods of imprisonment. Regardless of the type of offence, obtaining legal advice as soon as possible after the charge is issued is of critical importance.
Competent advice may not only assist in deciding on the correct plea, but a lawyer can also advise as to the circumstances which may give rise to mitigating factors, thereby resulting a reduced sentence. Often the real contest between the state and the offender isn’t as to guilt, but is instead the appropriate sentence to impose. Knowledge as to the finer points of the law is essential, and something which Chris can assist with.
A defamatory statement is any words spoken or written which tends to lower the opinion held by ordinary people about you, has the effect of having others avoid you, is false to your discredit or is made without justification with the intent to injure you by exposing you to hatred, contempt or ridicule or which tends to make others with to shun and avoid you. Statements can range from those made to one person only to those published to the entire world such as posts on Facebook, Twitter or a Blog.
There are number of defences to a defamation claim including honest opinion, truth, absolute and qualified privilege.
Often a prompt request for a retraction and apology from the maker of the statement will suffice but sometimes that will be refused. In that situation, the only legal recourse is to issue proceedings for defamation. If it’s a trade competitor in question, the statement made may also amount to misleading and deceptive conduct. If it’s a blogger, then it is important to squarely assess the obligations owed by the internet service provider in question. Chris and members of his team have been involved in several defamation actions including a number of internet defamation cases involving the need for urgent Court orders and has guided clients (both plaintiffs and defendants) to positive outcomes in this rather technical area of the law.
Financial crime is typically crime committed by professionals or individuals in positions of financial trust. Chris has represented several company directors charged with criminal offences. In a number of cases, the directors were initially sued in civil proceedings arising out of the same circumstances that lead to them being charged with a criminal offence. Chris has also acted as lead counsel in one of New Zealand’s largest tax evasion cases.
Financial crime is a subset of financial markets law and often incorporates an element of fraud involving breaches of certain sections of the Crimes Act, Securities Act, Companies Act, Financial Markets Conduct Act, Financial Advisers Act, Anti-Money Laundering and Countering Financing Terrorism Act and the Tax Administration Act. Criminal convictions in breach of the provisions of these Acts can be punishable by imprisonment. Not all financial crime involves dishonesty. Sections 220 (Theft by a person in special relationship) and section 242 (False statement by promoter, etc) are two examples. Chris has been defence counsel in a number of investigations conducted by the Financial Markets Authority as well as a prosecution by the Serious Fraud Office involving 29 charges arising from the collapse of precious metals trading business.
Chris has extensive experience with corporate insolvency, particularly with the appointment of liquidators to recover debts owed by a company. Conflict often results between secured and unsecured creditors and the interests of the liquidator, however Chris and his team are equipped to represent any party and ensure that their rights are fully realized.
Chris also has particular experience with voidable transactions, the equitable tracing of funds in and out of insolvent companies, and the means by which directors can be held personally liable to meet the debts in a company’s liquidation.
In personal solvency (bankruptcy) the Official Assignee has powers similar to liquidators, subject to Court oversight. Chris and his team also have considerable experience in all facets of bankruptcy law, and can assist in any insolvency proceeding.
The Copyright Act creates a property right in certain original works and provides protections against unauthorised use, reproduction or adaptation of a copyright owner’s creative work. Industrial properties law provides protections against the unauthorized use of commercial or industrial IP (trademarks patents). IP claims generally seek both damages and restraining orders to compensate the copyright owner for any losses, and/or strip the infringer of any profits as well as prohibit any future copyright violation.
Chris has been counsel in a number of District and High Court claims where the enforcement of copyright and/or a trademark was in issue. He has also acted in registration disputes involving trademarks before the IPONZ’s Trademarks Commissioner.
Leaky home owners also require pragmatic advice regarding their prospects of actually recovering the money required to fix their properties, as in many instances the parties involved in construction either have no assets, no insurance or (in the case of some individuals) have simply folded up and moved overseas. Consideration also needs to be given to the timing of litigation, as there are strict time limits for bringing leaky building claims both in the Courts and the Weathertight Homes Tribunal. In some cases a home owner’s interests will best be served by accepting the government’s Financial Assistance Package (FAP), especially as accepting the FAP does not remove the right to pursue parties other than local authorities (Councils) for the portion of the repair costs not recovered through the FAP.
For defendants/respondents to leaky building claims, whether in the Courts or the Weathertight Homes Tribunal, Chris and his team offer advice on the extent of the client’s liability (if any), and whether there are any factual or legal difficulties with the claim faced which provide a defence or help to reduce liability. If your liability insurance cover has been compromised because of weathertightntess issues, we have expert insurance lawyers that may be able to help with this as well. Chris and his team will also be able to assist in recovering any settlement paid to a home owner from others that may have been involved in construction.
A professional negligence claim is based on an allegation that the professional involved failed to use the standard of care reasonably expected of skilled members of his/her profession. A successful claimant must prove that the professional’s failure to meet the relevant standard caused the loss, damage or injury for which the claimant seeks a remedy.At the heart of these matters is the scope of the duty of care owed by the professional, which might depend on factors such as the tasks typically carried out by members of the relevant profession, and any statements the professional has made regarding his/her area of competence.
If it is found that the professional owed and breached a duty of care to the claimant, the Court must assess the loss suffered by the claimant as a result of the professional’s breach. Assessing this loss can be a complex task and often involves careful analyses of conflicting pieces of evidence.
As with other types of civil litigation, professional negligence claims are frequently resolved by way of alternative dispute resolution (out of court settlements). This method of resolving disputes might be preferable for a variety of reasons, and especially in cases where the professional’s reputation is at stake. It might also be that the parties have a genuine desire to preserve their commercial relationship. Chris and his team factor in these considerations when providing sound strategic advice to clients.
The rules of public and administrative law govern the public’s relationship with the state. They exist to ensure that the government and state do not overstep the powers given to them and to give individuals a means through which to check this power. This area of law impacts individuals’ day to day interaction with government agencies for example, when local council make housing and planning decisions and decisions made by the Accident Compensation Corporation. It also regulates broader issues relating to the Bill of Rights and the Treaty of Waitangi.
Chris has been counsel in several judicial review applications where the High Court examined the decision making process undertaken by a number of specific government agencies. He has also been engaged to consult on the litigation strategy in respect to a judicial review application to overturn the decision of an incorporated society.
It is not uncommon for the majority of the shareholders of a company to cause the company to undertake actions that one or more of the minority shareholders disagree with, or which would prejudice those minority shareholders. Another common scenario is where different factions of shareholders each have an even share of the shareholding a company, and equal representation on the board of directors of a company, so that the company is “deadlocked” with neither side able to break that deadlock.
Many of these shareholder disputes arise as a result of the absence of a written shareholders agreement and/or constitution. But even with a written agreement disputes arise as to how that agreement should be interpreted and what the individual shareholders respective rights are pursuant to the agreement. In this situation, in some shareholders disputes issues can arise relating to minority oppression. Chris has been counsel in a number of matters where claims were raised, pursuant to section 174 of the Companies Act 1993, that the affairs a company had been conducted in a manner that was oppressive, discriminatory or unfairly prejudicial to one of more shareholders. While most shareholders disputes are resolved via a settlement in a number of instances a referral to High Court was necessary to restrain the offending conduct. Chris has also been counsel in several matters involving applications, by one shareholder, to appoint an interim liquidator due to the existence of a deadlock within the company’s board of directors, as well as in negotiating agreed resolution to such disputes. See interim liquidations. Contact Chris for assistance.
Most taxation disputes between the tax payer (individual or corporate) and the Inland Revenue Department are resolved by way of a negotiated resolution. The Taxation Review Authority is usually the first judicial body who will hear and determine a taxation challenge following an unresolved taxation assessment which is challenged by a tax payer. The High Court also has jurisdiction, in certain circumstances, to hear and determine a taxation challenge.
Assessment challenges fall into the category of civil disputes. Whereas, certain acts or omissions relating to the non payment of tax are deemed to be regulatory or criminal offences under the Tax Administration Act 1994 and the Crimes Act 1961. Such acts and omissions include a failure to file a tax return, the non payment of GST and/or PAYE and the deliberate under or non reporting of income (tax evasion). Taxation prosecutions are commenced in the District Court irrespective of the level of offending.
Chris can assist whether the matter needs a negotiated resolution with the Inland Revenue Department or the formulation of a suitable defence response in the case of a criminal prosecution.
The Health and Safety at Work Act 2015 (“the Act”) which comes into force on 4 April 2016 provides that employers, officers of the business, and particular employees are subject to a duty to ensure to a reasonably practicable standard the health and safety of workers and other persons at risk from work carried out. Workers also have a duty to take reasonable care for their own health and safety, and so prosecutions for breaches of a duty could potentially affect a large portion of New Zealand’s workforce.
As penalties range between fines of potentially $50,000 and $3 million, and possibly even imprisonment, obtaining legal advice as early as possible after a health and safety incident is crucial to protect employers and employees.
Chris has experience in defending prosecutions under the previous health and safety legislation. As with the Act, Chris is focused on reducing risks and can provide sound advice on the most appropriate way in which to protect employees and employers from potential liability.
Chris’ trial experience is extensive. He’s appeared as lead or junior counsel in over 75 witness hearings in the past 17 years and more than 650 mediations and judicial settlement conferences.
The best resolutions are most often negotiated ones. Between 80-90% of all of Chris’ cases result in a successful resolution without the principal dispute ever seeing the inside of a courtroom.
This ability to successfully resolve disputes is significant. The settlements Chris negotiates for his clients are favourable, timely and often less costly than courtroom proceedings.
He continues to receive regular instructions from a number of top New Zealand and Australian law firms, publicly listed companies, private companies and high net worth individuals.
Copies of written references from some of New Zealand’s and Australia’s senior commercial solicitors are available on request.
Here are some examples of Chris’ experience:
The single most important thing you can do for your business is to ensure that you get paid. Chris can help you with creditor protection and debt recovery.
Providing exceptional service and goods are important aspects of running a successful business. Unfortunately, many businesses do not achieve their full potential simply because they have been let down through late or non-payment by their clients. Effective and efficient credit control requires having well planned credit protection mechanisms and debt collection processes. Chris and his team assist manufacturers, wholesalers, retailers, service professionals, financers and lenders, landlords etc to protect themselves from debtor defaults and to recover unpaid debts ranging in amounts from a few thousand to several million.
Quality representation is all about taking both a macro and micro view of any proceedings. The strategic approach to your matter or action must involve enforcement considerations.
Enforcement consideration is as much a part of a successful outcome as the determination of liability and quantum. Commercial objectives cannot be achieved without adequate enforcement. Chris ensures this is considered well before proceedings are issued. Practical success can hinge on both planning and taking the right enforcement action.
Judgments that require enforcement essentially fall into one or more of the following three categories.
Liquidated demand – A judgment creditor can seal judgment for the liquidated amount, together with interests, costs and disbursements provided they have obtained judgment on a liquidated demand. The judgment creditor must file a memorandum setting out the amount claimed and how that amount is calculated, together with any submissions in support of the claim if there is a claim costs and\or disbursements.
Land / chattels – A judgment creditor may seal judgment by default for recovery of possession of the land or chattels, together with costs to the date of sealing judgment when proceedings are for recovery of land or chattels, and a statement of defence has not been filed within the required period.
Unliquidated demand – The proceeding shall be tried to assess damages if the relief claimed is payment of an unliquidated demand and the judgment debtor does not file a statement of defence within the required number of days.
In New Zealand the District and High Courts both have their own enforcement procedures and rules. Chris and his team understand how to use these processes to achieve the best possible result.
The object of a freezing order is to prevent such dissipation or removal. Chris has appeared in support of numerous freezing order applications during the last decade.
A freezing order does not affect or allow seizure of a judgment debtor’s assets, rather it restrains them from dealing with an asset in certain ways. Freezing orders act ‘in personam’ against judgment debtors, not ‘in rem’ against their assets. They do not confer any property rights.
To be effective, freezing orders are sought on a without notice basis and are subject to the same restrictions as pertain to without notice orders.
There are many reasons why it may be desirable to seek to have a company put into liquidation. The most common reason is that the company owes a client money. Another common reason is that the company has become unmanageable due to internal conflicts (particularly common with family owned companies). In cases such as this the client wishes for the company’s affairs to be wound up, and its assets realised and distributed by a liquidator.
Liquidation will enable a liquidator to realise the company’s assets and make a distribution to creditors including the client and, where the company is solvent, shareholders. The liquidator may also conduct an investigation into the company’s affairs. This can involve setting aside transactions under which the company has stripped itself of assets or seeking to recover funds from individual directors if the directors have breached their obligations to the company.
In order to address this problem it is possible to (and Chris has on several occasions done this successfully) have an “interim liquidator” appointed to preserve the company’s assets pending the Court’s determination of whether or not to place the company into final liquidation.
Such applications are typically brought on an urgent basis and without notice to the company.
An interim liquidator does not have jurisdiction to realise the company’s assets and make distributions to creditors. Nor does an interim liquidator have the powers to make the sort of investigations and take the sort of recovery actions available to a final liquidator. Nonetheless, interim liquidators do have considerable powers they can use in order to preserve the company’s assets pending the final liquidation of the company, including, if necessary, assuming control of the operation of a company’s business.
When it goes wrong it is important to both mitigate the damage and also get to the bottom of how it went wrong in the first place. Having an independent legally trained professional undertaking a confidential in-house inquiry can greatly assist in identifying the cause of an adverse unintended outcome as well as assisting to put in place safeguards that ensure the same mistakes are not repeated.
Clients engage Chris to undertake independent inquiries in various matters ranging from, as examples, staff conflict, trusted person theft to reporting on the unauthorised leaking of information to the media. Contact Chris to discuss how he can assist.
Chris has extensive experience in applying for and executing search orders. Chris has appeared as counsel and overseen the execution of fourteen Search Orders to date. All of his client’s applications for a search order have been granted.
Chris has been counsel in over a dozen successful applications granted by the High Court, Employment Court and the Employment Relations Authority (pre 2006). Chris was counsel before the full bench of the Employment Court in Axiom Rolle PRP Valuation Services Limited v Kapadia, the leading case on the jurisdiction to grant search orders in the employment context. He has also obtained a search order as part of a parallel proceeding that had been issued in both the Australian State of Victoria and Auckland. Chris has also had one search order varied on behalf of three defendants in a copyright infringement and electronic trespass case. He has also successfully sought under urgency to have another search order discharged by the High Court.
Executing search orders requires careful preparation. Planning the execution should start well in advance of the papers being filed with the Court. At least one planning meeting should be held with the execution and search team members. Multiple site searches require considerably more planning and preparation.