Litigation Success:

I have been appointed senior counsel in a number of significant cases, including the following where my clients were successful in their litigation:

· CIR v Rangatira – a significant case on the taxation of share market gains by companies, which later went to the Privy Council.Opposing Counsel was one of the three most highly rated civil litigators in New Zealand

· TEC Saunders v EM Houghton [2010] 3 NZLR 331 a leading case on representative actions involving litigation funders. Some 1800+ investors in the Feltex IPO challenged the veracity of statements/representations made in/associated with a prospectus. The case is the largest prospectus liability claim ever brought in New Zealand. Amongst opposing counsel was the top rated barrister in New Zealand.

. Poverty Bay Electric Power Board v CIR - one of two major cases on the tax deductibility of expenditure, the second of which (Auckland Gas Co Ltd v CIR) went on to the Privy Council;

· Erris Promotions v CIR a case where I represented more than 150 plaintiffs in group litigation. Objection was taken to a judge sitting in proceedings involving an ex-client. Mr JA Farmer QC, a leading litigation & disputes resolution lawyer, was counsel opposing.

. Air New Zealand, Qantas, Wellington International Airport, Auckland International Airport v BARNZ and ors, unreported, Wgtn HC. Acted for Air New Zealand, Qantas, Wellington International Airport, Auckland International Airport and BARNZ and ors as noted above with Ms Mai Chen assisting me



Taxation Litigation



I have appeared in more Court of Appeal tax cases than any other active senior barrister in New Zealand, including the following examples of note, all of which involved successful outcomes for my clients.

· Thornton Estates Limited v CIR – where the accounting treatment of unsold land in a property developer’s accounts was disputed;

· Turakina Maori Girls College Board of Trustees v CIR a GST dispute

. Piers v CIR – the leading New Zealand authority on taxation of sharemarket gains by superannuation funds or trusts;

· James Bull v CIR a case involving tax incentives for the primary sector.



Commercial Litigation/Company Law Litigation:



I have acted as senior counsel in some significant commercial cases, including Arklow v MacLean, which is summarized in the Law Report as follows:

“The plaintiffs intended to buy an island for forestry and property development. They approached the defendant merchant bank to assist in finding other investors. The defendants agreed to protect the confidentiality of the plaintiffs ’information, including an information memorandum prepared by the plaintiffs, a merchant bank’s draft proposal disclosing a sale price, valuations of forests and a mill on the island, a proposed property development and interest from a Japanese Investor. However, a month later the defendants informed the plaintiffs that they would no longer act for them and a few months thereafter the island was sold to parties introduced by the defendants. The plaintiffs sued the defendants for beach of fiduciary duty and misuse of confidential information. The Judge found for the plaintiff on both grounds on the basis that the defendants had misused the plaintiff’s information, in particular as to the vendor’s sale price, valuations, the Japanese company and by appropriating the plaintiff’s business opportunity. The defendants appealed to the Court of Appeal.

Held:

1. (Per Richardson P, Gault and Keith JJ) There was more than on category of fiduciary relationship attracting different kinds of fiduciary obligations. A fiduciary duty of fidelity and loyalty existed where one party was entitled to expect that the other would act in his interests in and for the purposes of the relationship (e.g. in employment) and lasted only as long as the parties’ relationship. A fiduciary duty of confidentially arose from imparting information to another in confidence and survived termination of the relationship (see p.688/3; p. 691/4).
2. (Per Richardson, P, Gault and Keith JJ) (Thomas dissenting) The defendants did not owe the plaintiffs a fiduciary duty of loyalty because they were not retained by the plaintiffs and only undertook to protect confidentiality or, if there was such a duty, it ended when the defendants refused to act for the plaintiffs. However, the defendants owed a fiduciary duty of confidentiality because they undertook to receive the plaintiff’s information in confidence and not to disclose it without the plaintiffs’ authority or use it for any purpose other than that for which it was disclosed. Misuse of confidential information required information with the necessary quality of confidence and misuse of that information while it remained confidential. The defendants did not misuse the plaintiff’s information because the vendor told the defendants of the price in August, the purchasers relied on their own independent valuations, the purchasers were previously known to the defendants and the Japanese company was not approached (see p.690/27; p.699/22-p.701/12). ”

The case later went to the Privy Council on appeal, and I represented the same parties before their Lordships in the Privy Council. My clients were again successful in the Privy Council, and the Privy Council’s judgment is reported in the New Zealand Law reports. Nicholas Underhill QC appeared as opposing counsel in the Privy Council.