Andrew Barker QC

General Background

Andrew is an experienced trial and appellate advocate.  He has a broad practice encompassing most areas of commercial dispute.  As well as general contract and tort claims, he has particular interests in the areas of trust litigation, company law, insolvency, construction law, professional liability and land law. 

A selection of some of Andrew's more significant instructions can be seen in his Case History.

Andrew has lectured law at both the University of Otago and the University of Auckland (see Professional Activities).   He also regularly presents seminars for the New Zealand Law Society and ADLSi (see Publications and Seminars). He is a regular contributor to academic and trade journals (see Publications and Seminars).  He is the New Zealand Bar Association’s representative on the Rules Committee, the body that sets the rules of procedure for all New Zealand courts. 

Professional Activities

  • Queens Counsel - 2017
  • Barrister - 2002 to present
  • Lecturer - Faculty of Law, University of Otago - 1999 to 2001
  • Senior Litigation Solicitor - Russell McVeagh (Auckland) - 1994 to 1998
  • Clerk to Judges of the New Zealand Court of Appeal - 1995
  • Solicitor at Community Law Centre in Mangere (through Russell McVeagh) - 1995 to 1996

Teaching

  • Civil Litigation - LLB course - University of Otago - 2008 to 2009
  • Civil Procedure - LLB course - University of Otago - 2006
  • Tort Law - LLM course - University of Auckland - 2003
  • The Law of Torts - LLB course - University of Otago - 2000 to 2002
  • Civil Procedure - LLB course - University of Otago - 2001 to 2002
  • Property Law - LLB course - University of Otago (tutor) - 2000 to 2002

Case History

 

Cases

  • Kawarau Village Holdings Ltd v Sun [2018] 1 NZLR 378 (CA, SC) - enforceability of sale and purchase agreements for stage 1 of the Hilton Hotel development in Queenstown.
  • Custom Street Hotel Ltd v Plus Construction Ltd (arbitration, HC, CA) - termination of the construction contract relating to the construction of the Sofitel Hotel in Auckland.
  • Fish Man Ltd (in liq) v Hadfield [2018] 2 NZLR 428 (CA) - principles of equitable tracing and the rights of creditor’s to property disclaimed by the Official Assignee.
  • Activedocs Ltd v Cadre Investments Ltd (2017) 11 NZCLC 98-05 (CA) - shareholder/company dispute over the terms of a preference share issue.
  • Probus South Pacific Inc v Probus NZ Inc (2015) 114 IPR 630 – use of the Probus name by the Probus Clubs of New Zealand.
  • Yandina Investments Ltd v ANZ National Bank Ltd (2014) 26 NZTC 21-064 (HC, CA, SC) –dispute over the terms of the lease of a Boeing 747.
  • Telco 1 v Telco 2 - private arbitration over the terms of sale of telecommunications company).
  • BNZ Investments Ltd v CIR (2009) 24 NZTC 23,582 – allegations of tax avoidance on cross-border structured finance transactions.
  • Waller & Anor v Davies & Ors [2007] 2 NZLR 508 (CA, SC) - Land Transfer Act fraud and imputation of knowledge.
  • Accent Management Ltd & Ors v CIR (2005) 22 NZTC 19,027 – allegations of tax avoidance in forestry investment (the Trinity tax “scheme”).
  • Various substantial trust disputes, including Mitchell v Griffiths (removal of trustees), Re W A Stephenson Memorial Trust (variation of the Stephenson family trusts), Peacock v Nelson (removal of trustees), Calderwood v Calderwood (challenge to establishment of trusts).
  • Various substantive construction disputes, including Perpetual Trust Ltd v Mainzeal Property and Construction Ltd (construction of the Botany Town Centre), Body Corporate no 338356 v Endean (construction of the Endean building), Takanini Central Residential Ltd v Terra Group NZ Ltd (dispute between Engineer and owner).
  • Various claims under the Public Works Act, including Treasury Properties Ltd v AG (offer back of land under s 40), Jaafar Holdings Ltd v Auckland Council (claim for compensation under s 60). 

Other significant recent instructions

  • Acting for trading bank in the “bank fees” litigation.
  • Acting for major charitable institution in resolution of competing claims relating to substantive bequest.
  • Acting for departing (and remaining) partners in various dissolutions of law firms.
  • Acting for trading bank in the resolution of a claim based on misleading conduct in derivatives trading. 

Publications and Seminars

  • "Update on Negligent Misstatement", ADLS (2017) (with Marcus Roberts).
  • “Tort Law Update”, NZLS CLE Seminar (April 2016) (with Professor Geoff McLay). 
  •  “Issues in Unjust Enrichment”, NZLS CLE Seminar (2014). 
  • “Advocacy”, presentation to participants in the NZLS mooting contest (2014), (2015).
  • "Kembla and the Defendant Summary Judgment: Is the Emperor wearing any clothes?" (2013) NZ Lawyer Issue 204
  • “One test to rule them all (and of inferior courts to bind them)” (2012) NZ Lawyer Issue 190.
  • “Tort Law”, NZLS CLE Seminar (2013) (with Professor Stephen Todd).
  • Chapter on "Permanent Injunctions", in Blanchard ed, Civil Remedies in New Zealand (1st ed) (2003); (2nd ed) (2011).
  • Chapter on "Interlocutory Injunctions", in Blanchard ed, Civil Remedies in New Zealand (1st ed) (2003); (2nd ed) (2011).
  • “General Principles of Good Advocacy”, ADLS CLE Seminar (2011).
  • "Remoteness of damages in tort and contract", in "Current issues in remedies", NZLS CLE Seminar (2010).
  • "Economics of Evidence, Procedure and Litigation", (Book review) [2009] NZLJ 330.
  • Commentary on papers by Dr A Butler ("What is the least we can expect of a trustee?") and Bill Patterson ("When is a trust a trust?") at the Legal Research Foundation Seminar, "A modern law of trusts" (2009).
  • "Update on Tort Law", ADLS CLE Seminar (2008).
  • "Damages for a loss of chance in negligence: the availability of an alternative remedy" [2007] NZLJ 151.
  • "Update on Tort Law", ADLS CLE Seminar (2006).
  • "Damages for the loss of a chance: the availability of an alternative remedy", LexisNexis Commercial Litigation Masterclass (2005).
  • "Update on Tort Law: The approach to the duty of care in New Zealand", ADLS CLE Seminar (2003).
  • "The duty of care and the search for certainty: Sullivan v Moody, Cooper v Hobart, and problems in the South Pacific" [2003] NZLJ 44.
  • "Ideas on the purpose of civil procedure" [2002] New Zealand Law Review 437.
  • "Lights in the fog: secondary victims and the recovery for mental injury in New Zealand" (2002) 10 Tort Law Review 1.
  • "Divining an approach to the duty of care: the New Zealand Court of Appeal and claims for negligent misstatement" (2001) 10 OLR 91.
  • "Causation and Risk in the Law of Torts" (Book review) (2000) 19 NZULR 136.

Andrew Barker QC

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Qualifications

BA LLB (Hons) (Auck) 1994

LLM (Toronto) 1999

Barrister Sole: 2002

Queens Counsel: 2017

 

 

Areas of Practice

Qualifications

BA LLB (Hons) (Auck) 1994

LLM (Toronto) 1999

Barrister Sole: 2002

Queens Counsel: 2017

 

 

General Background

Andrew is an experienced trial and appellate advocate.  He has a broad practice encompassing most areas of commercial dispute.  As well as general contract and tort claims, he has particular interests in the areas of trust litigation, company law, insolvency, construction law, professional liability and land law. 

A selection of some of Andrew's more significant instructions can be seen in his Case History.

Andrew has lectured law at both the University of Otago and the University of Auckland (see Professional Activities).   He also regularly presents seminars for the New Zealand Law Society and ADLSi (see Publications and Seminars). He is a regular contributor to academic and trade journals (see Publications and Seminars).  He is the New Zealand Bar Association’s representative on the Rules Committee, the body that sets the rules of procedure for all New Zealand courts. 

Professional Activities

  • Queens Counsel - 2017
  • Barrister - 2002 to present
  • Lecturer - Faculty of Law, University of Otago - 1999 to 2001
  • Senior Litigation Solicitor - Russell McVeagh (Auckland) - 1994 to 1998
  • Clerk to Judges of the New Zealand Court of Appeal - 1995
  • Solicitor at Community Law Centre in Mangere (through Russell McVeagh) - 1995 to 1996

Teaching

  • Civil Litigation - LLB course - University of Otago - 2008 to 2009
  • Civil Procedure - LLB course - University of Otago - 2006
  • Tort Law - LLM course - University of Auckland - 2003
  • The Law of Torts - LLB course - University of Otago - 2000 to 2002
  • Civil Procedure - LLB course - University of Otago - 2001 to 2002
  • Property Law - LLB course - University of Otago (tutor) - 2000 to 2002

Case History

 

Cases

  • Kawarau Village Holdings Ltd v Sun [2018] 1 NZLR 378 (CA, SC) - enforceability of sale and purchase agreements for stage 1 of the Hilton Hotel development in Queenstown.
  • Custom Street Hotel Ltd v Plus Construction Ltd (arbitration, HC, CA) - termination of the construction contract relating to the construction of the Sofitel Hotel in Auckland.
  • Fish Man Ltd (in liq) v Hadfield [2018] 2 NZLR 428 (CA) - principles of equitable tracing and the rights of creditor’s to property disclaimed by the Official Assignee.
  • Activedocs Ltd v Cadre Investments Ltd (2017) 11 NZCLC 98-05 (CA) - shareholder/company dispute over the terms of a preference share issue.
  • Probus South Pacific Inc v Probus NZ Inc (2015) 114 IPR 630 – use of the Probus name by the Probus Clubs of New Zealand.
  • Yandina Investments Ltd v ANZ National Bank Ltd (2014) 26 NZTC 21-064 (HC, CA, SC) –dispute over the terms of the lease of a Boeing 747.
  • Telco 1 v Telco 2 - private arbitration over the terms of sale of telecommunications company).
  • BNZ Investments Ltd v CIR (2009) 24 NZTC 23,582 – allegations of tax avoidance on cross-border structured finance transactions.
  • Waller & Anor v Davies & Ors [2007] 2 NZLR 508 (CA, SC) - Land Transfer Act fraud and imputation of knowledge.
  • Accent Management Ltd & Ors v CIR (2005) 22 NZTC 19,027 – allegations of tax avoidance in forestry investment (the Trinity tax “scheme”).
  • Various substantial trust disputes, including Mitchell v Griffiths (removal of trustees), Re W A Stephenson Memorial Trust (variation of the Stephenson family trusts), Peacock v Nelson (removal of trustees), Calderwood v Calderwood (challenge to establishment of trusts).
  • Various substantive construction disputes, including Perpetual Trust Ltd v Mainzeal Property and Construction Ltd (construction of the Botany Town Centre), Body Corporate no 338356 v Endean (construction of the Endean building), Takanini Central Residential Ltd v Terra Group NZ Ltd (dispute between Engineer and owner).
  • Various claims under the Public Works Act, including Treasury Properties Ltd v AG (offer back of land under s 40), Jaafar Holdings Ltd v Auckland Council (claim for compensation under s 60). 

Other significant recent instructions

  • Acting for trading bank in the “bank fees” litigation.
  • Acting for major charitable institution in resolution of competing claims relating to substantive bequest.
  • Acting for departing (and remaining) partners in various dissolutions of law firms.
  • Acting for trading bank in the resolution of a claim based on misleading conduct in derivatives trading. 

Publications and Seminars

  • "Update on Negligent Misstatement", ADLS (2017) (with Marcus Roberts).
  • “Tort Law Update”, NZLS CLE Seminar (April 2016) (with Professor Geoff McLay). 
  •  “Issues in Unjust Enrichment”, NZLS CLE Seminar (2014). 
  • “Advocacy”, presentation to participants in the NZLS mooting contest (2014), (2015).
  • "Kembla and the Defendant Summary Judgment: Is the Emperor wearing any clothes?" (2013) NZ Lawyer Issue 204
  • “One test to rule them all (and of inferior courts to bind them)” (2012) NZ Lawyer Issue 190.
  • “Tort Law”, NZLS CLE Seminar (2013) (with Professor Stephen Todd).
  • Chapter on "Permanent Injunctions", in Blanchard ed, Civil Remedies in New Zealand (1st ed) (2003); (2nd ed) (2011).
  • Chapter on "Interlocutory Injunctions", in Blanchard ed, Civil Remedies in New Zealand (1st ed) (2003); (2nd ed) (2011).
  • “General Principles of Good Advocacy”, ADLS CLE Seminar (2011).
  • "Remoteness of damages in tort and contract", in "Current issues in remedies", NZLS CLE Seminar (2010).
  • "Economics of Evidence, Procedure and Litigation", (Book review) [2009] NZLJ 330.
  • Commentary on papers by Dr A Butler ("What is the least we can expect of a trustee?") and Bill Patterson ("When is a trust a trust?") at the Legal Research Foundation Seminar, "A modern law of trusts" (2009).
  • "Update on Tort Law", ADLS CLE Seminar (2008).
  • "Damages for a loss of chance in negligence: the availability of an alternative remedy" [2007] NZLJ 151.
  • "Update on Tort Law", ADLS CLE Seminar (2006).
  • "Damages for the loss of a chance: the availability of an alternative remedy", LexisNexis Commercial Litigation Masterclass (2005).
  • "Update on Tort Law: The approach to the duty of care in New Zealand", ADLS CLE Seminar (2003).
  • "The duty of care and the search for certainty: Sullivan v Moody, Cooper v Hobart, and problems in the South Pacific" [2003] NZLJ 44.
  • "Ideas on the purpose of civil procedure" [2002] New Zealand Law Review 437.
  • "Lights in the fog: secondary victims and the recovery for mental injury in New Zealand" (2002) 10 Tort Law Review 1.
  • "Divining an approach to the duty of care: the New Zealand Court of Appeal and claims for negligent misstatement" (2001) 10 OLR 91.
  • "Causation and Risk in the Law of Torts" (Book review) (2000) 19 NZULR 136.