General Background

Andrew practises in most areas of civil litigation. He is an experienced advocate in the primary courts of first instance and appeal, and has appeared as counsel in some of New Zealand's more significant pieces of commercial litigation over the last 20 years (see Case History).

Andrew's areas of practice cover the range of commercial disputes, including contract and tort claims, trust litigation, company and shareholder disputes, insolvency (corporate and personal), financial services, construction law, professional liability, land law, disciplinary tribunals and the like. A summary of the cases he has been involved in over the last few years gives some idea of his more recent practice (see Recent Cases).

Andrew started practice in the litigation department of Russell McVeagh. After five years at that firm, he left to study for a Masters of Law at the University of Toronto. On his return to New Zealand in 1999, he moved to the University of Otago where he lectured Tort Law and Civil Procedure, before joining the independent bar in 2001.

Andrew still maintains his academic interest in the development of the law. As well as lecturing at various Universities over the years (see Teaching under Professional Activities) he also regularly presents at profession-wide seminars offered by the Auckland District Law Society and the New Zealand Law Society (see Seminars under Publications).

Andrew is also a regular contributor to academic and trade journals (see Publications).

Andrew started practice in the litigation department of Russell McVeagh. After five years at that firm, he left to study for a Masters of Law at the University of Toronto. On his return to New Zealand in 1999, he moved to the University of Otago where he lectured Tort Law and Civil Procedure, before joining the independent bar in 2001.

Andrew still maintains his academic interest in the development of the law. As well as lecturing at various Universities over the years (see Teaching under Professional Activities) he also regularly presents at profession-wide seminars offered by the Aucklnad District Law Society and the New Zealand Law Society (see Seminars under Publications).

Andrew is also a regular contributor to academic and trade journals (see Publications).

Selected Recent Cases

APPEARANCES IN THE HIGH COURT, COURT OF APPEAL OR SUPREME COURT OR BEFORE SIMILAR AUTHORITIES SINCE 2010

(Excludes arbitrations, mediations, judicial settlement conferences, and appearances before disciplinary or other private tribunals)

  • Kawarau Village Holdings Ltd v Sun (Supreme Court 2017) (dispute over settlement of purchase by purchasers in stage 1 of the Hilton Hotel development in Queenstown) (awaiting decision).  Leave decision is Kawarau Village Holdings Ltd v Sun [2016] NZSC 171.  Court of Appeal decision is Ho Kok Sun & Ors v Peninsular Road Ltd (in rec and liq) [2016] NZCA 427
  • Activedocs Ltd v Cadre Investments Ltd, [2017] NZCA 121  (substantive appeal, dividend rights on preference shares). 
  • Detection Services Ltd & Ors v Pickering & Ors, [2017] NZHC 709 (application to have separate question determined before trial). 
  • Rapid Metal Developments NZ Ltd v Access One Scaffolding Ltd [2017] NZHC 204 (discovery application). 
  • NZ Mint v Greys Ave Investments Ltd [2016] NZHC 2165 (application by defendant to rescind orders striking out defence and debarring from defending).
  • Custom Street Hotel Ltd v Plus Construction Ltd [2016] NZHC 2011 (dispute over construction of the Sofitel Hotel, appeal against arbitral award).  Application for leave to appeal to the Court of Appeal Custom Street Hotel Ltd v Plus Construction NZ Ltd [2016] NZHC 2934.  Application for leave to appeal to the High Court is Customs Street Hotel Ltd v Plus Construction NZ Ltd [2016] NZHC 1180. 
  • 136 Fanshawe Ltd v Wilson Parking New Zealand Ltd [2016] NZHC 1854 (application for leave to appeal arbitral award). 
  • Fish Man Ltd (in liq) v Hadfield (2016) 4 NZTR 26-014, [2016] NZAR 1198 (substantive proceedings to determine rights to property and priority in bankruptcy) (appointed as an amicus curiae to assist the court).
  • Takanini Central Residential Ltd v Terra Group NZ Ltd [2016] NZHC 478 (construction of residential subdivision; application to set aside various statutory demands).
  • Twentieth Century Fox Film Corporation v Dotcom [2016] NZHC 88 (application to vary freezing orders over assets). 
  • NZ Mint v Greys Ave Investments Ltd [2015] NZHC 2828 (breach of right of first refusal, strike out application). 
  • Greys Avenue Investments Ltd v NZ Mint Ltd (2015) 22 PRNZ 801(contested costs application on withdrawal of statutory demand).
  • Probus South Pacific Inc v Probus NZ Inc (2015) 114 IPR 630 (appeal from decision of Registrar of Companies as to change of name of incorporated society).
  • NZ Mint Ltd v Greys Avenue Investments Ltd [2015] NZHC 2051 (application for relief against cancellation of lease).
  • White v Hewett (2015) 22 PRNZ 692 (partnership dispute, confidentiality orders/discovery).
  • Body Corporate no 338356 v Endean [2014] NZHC 2644 (leaking apartment building, application to strike out amended statement of claim).
  • Eco Maintenance Ltd v Leighton Contractors PTY Ltd [2014] NZHC 2340 (termination of services contract, defended interlocutory injunction).
  • Endeavour Glass Packaging Ltd v Fraser [2014] NZHC 756 (directors duties, trial by formal proof).
  • Mitchell v Griffiths [2014] NZHC 751 (application to approve settlement and variations to Trust Deed).
  • Yandina Investments Ltd v ANZ National Bank Ltd [2013] NZCA 469 (aircraft leases, substantive appeal).  Application for leave to appeal to Supreme Court is Yandina Investments Ltd v ANZ National Bank Ltd [2014] 26 NZTC 21-064.  High Court decision is Yandina Investments Ltd v ANZ National Bank Ltd [2012] 25 NZTC 20 – 219.
  • Endeavour Glass Packaging Ltd v Fraser [2014] NZHC 463 (application for adjournment of trial).
  • Szembrener v Pepper NZ (Custodians) Ltd [2014] NZHC 324 (defended interlocutory injunction).
  • Telco 1 v Telco 2 (private arbitration before Alan Galbraith QC) (discovery issues) (2014).
  • Intercity Group Ltd v Naked Bus NZ Ltd (interlocutory injunction, interim orders) (2013).
  • GDB v CDB [2013] NZHC 2054 (relationship property, trial).  Earlier summary judgment application (in Court of Appeal) is Barnes v Barnes [2012] 29 FRNZ 46.
  • Griffiths v Mitchell [2013] NZHC 1628 (trusts dispute, application for joinder of parties).
  • Gillespie v Guest (No 1) [2013] NZHC 668/669 (failed property investment, various discovery applications/strikeout application).
  • Simpson v Blythe [2013] NZHC 497 (interlocutory injunction).
  • Perpetual Trust Ltd v Mainzeal Property and Construction Ltd [2013] NZHC 3404 (dispute over construction of Botany Downs, strikeout application).
  • Re W A Stephenson Memorial Trust [2012] NZHC 3132 (trusts dispute, application to vary trust).
  • Martin v Short [2012] NZHC 2664 (contract dispute, appeal from District Court).
  • Herbert v NZ Guardian Trust Co Ltd [2012] NZCA 442 (Personal insolvency, substantive appeal).
  • Perpetual Trust Ltd v Mainzeal Property and Construction Ltd [2012] NZHC 223 (dispute over construction of Botany Downs, defended application to discontinue proceeding against certain defendants).
  • BBX Financial Solutions PTY Ltd v Wallace [2011] NZCA 667 (contract dispute, civil appeal).  Application for leave to appeal to Court of Appeal is Wallace v BBX Financial Solutions Ltd High Court, Auckland, Duffy J, 22/11/2010.
  • Woodroffe v Coleman [2011] 13 NZCPR 161 (fraudulent disposition, application to maintain caveat).
  • Yandina Investments Ltd v ANZ National Bank Ltd [2011] NZTC 20 – 089 (aircharft leases; application to transfer proceedings).
  • Yandina Investments Ltd v Commissioner of Inland Revenue [2011] 25 NZTC 20 – 079 (aircraft leases, application to have cases heard together).
  • Stanaway Real Estate Ltd v Cooper & Co Real Estate Ltd High Court, Auckland, Keane J, 18/5/2011  (dispute over commission, application for leave to appeal arbitral award).
  • Treasury Properties Ltd v Attorney General High Court, Auckland, Toogood J, 15/7/2011 (Public Works Act/contract, trial).
  • Stockco Ltd v Tawhiti-Ariki Limited High Court, Auckland, Woolford J, 28/4/2011 (stock financing, trial).
  • Real Cool Holdings Ltd v Page & McRae Ltd High Court, Tauranga, Priestley J, 12/11/2010 (construction dispute, application for leave to appeal against arbitral award).
  • Dunick v Nicholson High Court, Auckland, Lang J, 19/8/2010 (interlocutory injunction).
  • Williams v Hill High Court, Auckland, Associate Judge Bell, 4/8/2010 (shareholder dispute, summary judgment).

 

Professional Activities

  • Silk: 2017
  • Barrister - 2001 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

Significant reported decisions

Some idea of the more significant cases that Andrew has been involved in over the years can be found in a selected review of cases that have been reported in the law reports.  A more complete survey of cases since 2010 can be found in Recent Cases.

  • Fish Man Ltd (in liq) v Hadfield (2016) 4 NZTR 26-014, [2016] NZAR 1198.  The case relates to the rights of a creditor to claim property of a bankrupt that has been disclaimed by the Official Assignee.  The case is on appeal to the Court of Appeal. It will be the first case in New Zealand at the appellate level to consider principles relating to “backwards tracing”; ie tracing through mortgage payments into the underlying asset. It will also consider the competing rights of creditors to property disclaimed by the OA (on which there is again no appellate authority).  
  • Greys Avenue Investments Ltd v NZ Mint Ltd [2015] 22 PRNZ 801.  This is the leading decision on costs following the withdrawal of a statutory demand.
  • Probus South Pacific Inc v Probus NZ Inc [2015] 114 IPR 630 involved a dispute between various incorporated societies over the right to describe themselves as Probus Clubs.  The case was of significance to the many members of Probus clubs in New Zealand and Australia.  It also raised difficult issues over the provisions in the Companies Act 1993 over right to use company names. 
  • Yandina Investments Ltd v ANZ National Bank Ltd [2011] 25 NZTC 20-079; (2011) 25 NZTC 20-089; (2012) 25 NZTC 20-129; (2014) 26 NZTC 21-064.  These cases concerned a significant commercial claim against three trading banks, relating to an investment in an aircraft lease in 1995.  The amounts at issue were over $100 million dollars.   
  • Barnes v Barnes [2012] 29 FRNZ 46 was an appeal to the Court of Appeal that raised issues of duress and unconscionability in the variation of a matrimonial property agreement. The appeal was against the grant of summary judgment. The claim subsequently went to trial; GDB v CDB [2013] NZHC 2054.  The trial turned on the interpretation of provisions of the Child Support Act 1991, and it is an important authority in that context.
  • Woodroffe v Coleman [2011] 13 NZCPR 161.  Noted (2012) 18 NZBLQ 191.  This was an application to sustain a caveat.  It raised the difficult issue of the circumstances in which a caveat can be maintained in support of a claim of fradulent mis-representation.
  • Silverpoint International Ltd v Wedding Earthmovers Ltd Noted: [2010] 16 NZBLQ 3; [2009] 15 Canta LR 349; [2009] 15 NZBLQ 124; [2008] 14 NZBLQ 78; [2007] BCL 611.  The case was, at the time, an important decision of when a party could issue a statutory demand on the basis of a payment claim or an adjudication award under the Construction Contracts Act.  The case has largely been overtaken by subsequent authority. 
  • BNZ Investments Ltd v CIR [2009] 24 NZTC 23,582.  More significant discussions of the decision are at: [2011] 19 Wai L Rev 17; [2011] 17 NZBLQ 441; [2010] 16 NZBLQ 178; [2010] NZLJ 17; [2010] NZLJ 6; [2010] 16 NZBLQ 440; [2009] 15:3 NZJTLP 183; [2009] 15:4 NZJTLP 257; [2009] NZLJ 243; [2009] 15:4 NZJTLP 352.  The case was part of the structured finance litigation between the IRD and New Zealand’s major trading banks.  The sums involved were more that $600m.  
  • Manning v Manning [2009] 27 FRNZ 586.  The case involved an application to the court for approval to distribute trust assets to beneficaries.  It is one of the few cases to have considered the impact of ordinary rules of equity (and in particular the rule in Saunders v Vautier) on trust property subject to Te Ture Whenua Maori Act 1993.
  • Waller & Anor v Davies & Ors [2007] 2 NZLR 508; [2007] 8 NZCPR 1.  The case concerned Land Transfer Act fraud, and the imputation of knowledge of an agent to the holder of a registered interest.  It remains one of the leading authorities in the area.  Andrew also appeared as counsel in the subsequent leave application to the Supreme Court; [2007] 8 NZCPR 332.
  • Accent Management Ltd & Ors v CIR [2005] 22 NZTC 19,027.  Noted or discussed: [2006] NZLJ 402; [2008] Vol 14:1 NZJTLP 67; [2006] Vol 12:4 NZJTLP 324.  This was the trial for the Trinity tax “scheme”, that ultimately ended in the Supreme Court decision in Ben Nevis Forestry Ventures Ltd v CIR [2009] 2 NZLR 289 (the leading authority on tax avoidance in New Zealand). 
  • Polynesian Spa Ltd v Osbourne & Anor [2005] NZAR 408. Noted or discussed: [2009] NZLJ 11; (2009) 23 NZULR 489; [2006] NZLJ 385; [2006] NZLJ 436; [2005] ELB 29. The case involved a death at the Poynesian Spa in Rotorua, and an application to judicially review the decision to prosecute the Spa under Health and Safety legislation.  It is a leading authority on the suseptability of prosecution decisions to judicial review, having been cited in 22 subsequent cases. 
  • Wyeth (NZ) Ltd v Anchor Products Ltd [1997] 11 PRNZ 479.  Noted or discussed: [1999] NZLJ 57; [1999] NZLJ 59.   
  • Baltic Shipping Co v Pegasus Lines SA [1996] 3 NZLR 641; [1996] 9 PRNZ 59.  Noted or discussed: 2001] NZ Law Review 105; [1999] NZ Law Review 387; [1996] BCL 33; 19 TCL 1/4; NZCLD, 5th Series, 0326.  The case is one of the few decisions of the Court of Appeal on the jurisdictional requirements of the Admiralty Act 1973 and the circumstances in which a party is entitled to arrest a ship to secure its claim against the owner. It remains one of the leading authorities in the area (with citations in 20 subsequent cases). 
  • Gutierrez v R [1997] 1 NZLR 192; [1996] 14 CRNZ 108.  Noted or discussed: [1998] NZLJ 435; [1998] NZLJ 435; [1997] BRB 24; [1996] BCL 1104; 5th Series, 0795.  This appeal concerned the obligations on Counsel in cross examing a defendant in a criminal action.  It remains the leading authority on the duty of counsel to ‘put their case’.  It has been cited in over 25 subsequent authorities. 

Publications and Seminars

  • “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 Issues 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.

Seminars

  • “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).
  • “Tort Law”, NZLS CLE Seminar (2013) (with Professor Stephen Todd).
  • “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).
  • 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).
  • "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).

Lecturing

  • Civil Procedure – University of Otago (1999 – 2001).
  • Tort Law – University of Otago (1999 – 2001).
  • Land Law (tutor) – University of Otago (1999 – 2001).
  • Civil Procedure/Civil Litigation – University of Otago (Auckland and Otago campuses) (2006 to 2009).
  • Advanced Tort Law – University of Auckland, LLM programme (2003).  

Andrew Barker QC

Contacts

Add to Shortlist

Qualifications

BA LLB (Hons) (Auck) 1994

LLM (Toronto) 1999

Barrister Sole: 2002

Silk: 2017

 

 

Areas of Practice

Qualifications

BA LLB (Hons) (Auck) 1994

LLM (Toronto) 1999

Barrister Sole: 2002

Silk: 2017

 

 

General Background

Andrew practises in most areas of civil litigation. He is an experienced advocate in the primary courts of first instance and appeal, and has appeared as counsel in some of New Zealand's more significant pieces of commercial litigation over the last 20 years (see Case History).

Andrew's areas of practice cover the range of commercial disputes, including contract and tort claims, trust litigation, company and shareholder disputes, insolvency (corporate and personal), financial services, construction law, professional liability, land law, disciplinary tribunals and the like. A summary of the cases he has been involved in over the last few years gives some idea of his more recent practice (see Recent Cases).

Andrew started practice in the litigation department of Russell McVeagh. After five years at that firm, he left to study for a Masters of Law at the University of Toronto. On his return to New Zealand in 1999, he moved to the University of Otago where he lectured Tort Law and Civil Procedure, before joining the independent bar in 2001.

Andrew still maintains his academic interest in the development of the law. As well as lecturing at various Universities over the years (see Teaching under Professional Activities) he also regularly presents at profession-wide seminars offered by the Auckland District Law Society and the New Zealand Law Society (see Seminars under Publications).

Andrew is also a regular contributor to academic and trade journals (see Publications).

Andrew started practice in the litigation department of Russell McVeagh. After five years at that firm, he left to study for a Masters of Law at the University of Toronto. On his return to New Zealand in 1999, he moved to the University of Otago where he lectured Tort Law and Civil Procedure, before joining the independent bar in 2001.

Andrew still maintains his academic interest in the development of the law. As well as lecturing at various Universities over the years (see Teaching under Professional Activities) he also regularly presents at profession-wide seminars offered by the Aucklnad District Law Society and the New Zealand Law Society (see Seminars under Publications).

Andrew is also a regular contributor to academic and trade journals (see Publications).

Selected Recent Cases

APPEARANCES IN THE HIGH COURT, COURT OF APPEAL OR SUPREME COURT OR BEFORE SIMILAR AUTHORITIES SINCE 2010

(Excludes arbitrations, mediations, judicial settlement conferences, and appearances before disciplinary or other private tribunals)

  • Kawarau Village Holdings Ltd v Sun (Supreme Court 2017) (dispute over settlement of purchase by purchasers in stage 1 of the Hilton Hotel development in Queenstown) (awaiting decision).  Leave decision is Kawarau Village Holdings Ltd v Sun [2016] NZSC 171.  Court of Appeal decision is Ho Kok Sun & Ors v Peninsular Road Ltd (in rec and liq) [2016] NZCA 427
  • Activedocs Ltd v Cadre Investments Ltd, [2017] NZCA 121  (substantive appeal, dividend rights on preference shares). 
  • Detection Services Ltd & Ors v Pickering & Ors, [2017] NZHC 709 (application to have separate question determined before trial). 
  • Rapid Metal Developments NZ Ltd v Access One Scaffolding Ltd [2017] NZHC 204 (discovery application). 
  • NZ Mint v Greys Ave Investments Ltd [2016] NZHC 2165 (application by defendant to rescind orders striking out defence and debarring from defending).
  • Custom Street Hotel Ltd v Plus Construction Ltd [2016] NZHC 2011 (dispute over construction of the Sofitel Hotel, appeal against arbitral award).  Application for leave to appeal to the Court of Appeal Custom Street Hotel Ltd v Plus Construction NZ Ltd [2016] NZHC 2934.  Application for leave to appeal to the High Court is Customs Street Hotel Ltd v Plus Construction NZ Ltd [2016] NZHC 1180. 
  • 136 Fanshawe Ltd v Wilson Parking New Zealand Ltd [2016] NZHC 1854 (application for leave to appeal arbitral award). 
  • Fish Man Ltd (in liq) v Hadfield (2016) 4 NZTR 26-014, [2016] NZAR 1198 (substantive proceedings to determine rights to property and priority in bankruptcy) (appointed as an amicus curiae to assist the court).
  • Takanini Central Residential Ltd v Terra Group NZ Ltd [2016] NZHC 478 (construction of residential subdivision; application to set aside various statutory demands).
  • Twentieth Century Fox Film Corporation v Dotcom [2016] NZHC 88 (application to vary freezing orders over assets). 
  • NZ Mint v Greys Ave Investments Ltd [2015] NZHC 2828 (breach of right of first refusal, strike out application). 
  • Greys Avenue Investments Ltd v NZ Mint Ltd (2015) 22 PRNZ 801(contested costs application on withdrawal of statutory demand).
  • Probus South Pacific Inc v Probus NZ Inc (2015) 114 IPR 630 (appeal from decision of Registrar of Companies as to change of name of incorporated society).
  • NZ Mint Ltd v Greys Avenue Investments Ltd [2015] NZHC 2051 (application for relief against cancellation of lease).
  • White v Hewett (2015) 22 PRNZ 692 (partnership dispute, confidentiality orders/discovery).
  • Body Corporate no 338356 v Endean [2014] NZHC 2644 (leaking apartment building, application to strike out amended statement of claim).
  • Eco Maintenance Ltd v Leighton Contractors PTY Ltd [2014] NZHC 2340 (termination of services contract, defended interlocutory injunction).
  • Endeavour Glass Packaging Ltd v Fraser [2014] NZHC 756 (directors duties, trial by formal proof).
  • Mitchell v Griffiths [2014] NZHC 751 (application to approve settlement and variations to Trust Deed).
  • Yandina Investments Ltd v ANZ National Bank Ltd [2013] NZCA 469 (aircraft leases, substantive appeal).  Application for leave to appeal to Supreme Court is Yandina Investments Ltd v ANZ National Bank Ltd [2014] 26 NZTC 21-064.  High Court decision is Yandina Investments Ltd v ANZ National Bank Ltd [2012] 25 NZTC 20 – 219.
  • Endeavour Glass Packaging Ltd v Fraser [2014] NZHC 463 (application for adjournment of trial).
  • Szembrener v Pepper NZ (Custodians) Ltd [2014] NZHC 324 (defended interlocutory injunction).
  • Telco 1 v Telco 2 (private arbitration before Alan Galbraith QC) (discovery issues) (2014).
  • Intercity Group Ltd v Naked Bus NZ Ltd (interlocutory injunction, interim orders) (2013).
  • GDB v CDB [2013] NZHC 2054 (relationship property, trial).  Earlier summary judgment application (in Court of Appeal) is Barnes v Barnes [2012] 29 FRNZ 46.
  • Griffiths v Mitchell [2013] NZHC 1628 (trusts dispute, application for joinder of parties).
  • Gillespie v Guest (No 1) [2013] NZHC 668/669 (failed property investment, various discovery applications/strikeout application).
  • Simpson v Blythe [2013] NZHC 497 (interlocutory injunction).
  • Perpetual Trust Ltd v Mainzeal Property and Construction Ltd [2013] NZHC 3404 (dispute over construction of Botany Downs, strikeout application).
  • Re W A Stephenson Memorial Trust [2012] NZHC 3132 (trusts dispute, application to vary trust).
  • Martin v Short [2012] NZHC 2664 (contract dispute, appeal from District Court).
  • Herbert v NZ Guardian Trust Co Ltd [2012] NZCA 442 (Personal insolvency, substantive appeal).
  • Perpetual Trust Ltd v Mainzeal Property and Construction Ltd [2012] NZHC 223 (dispute over construction of Botany Downs, defended application to discontinue proceeding against certain defendants).
  • BBX Financial Solutions PTY Ltd v Wallace [2011] NZCA 667 (contract dispute, civil appeal).  Application for leave to appeal to Court of Appeal is Wallace v BBX Financial Solutions Ltd High Court, Auckland, Duffy J, 22/11/2010.
  • Woodroffe v Coleman [2011] 13 NZCPR 161 (fraudulent disposition, application to maintain caveat).
  • Yandina Investments Ltd v ANZ National Bank Ltd [2011] NZTC 20 – 089 (aircharft leases; application to transfer proceedings).
  • Yandina Investments Ltd v Commissioner of Inland Revenue [2011] 25 NZTC 20 – 079 (aircraft leases, application to have cases heard together).
  • Stanaway Real Estate Ltd v Cooper & Co Real Estate Ltd High Court, Auckland, Keane J, 18/5/2011  (dispute over commission, application for leave to appeal arbitral award).
  • Treasury Properties Ltd v Attorney General High Court, Auckland, Toogood J, 15/7/2011 (Public Works Act/contract, trial).
  • Stockco Ltd v Tawhiti-Ariki Limited High Court, Auckland, Woolford J, 28/4/2011 (stock financing, trial).
  • Real Cool Holdings Ltd v Page & McRae Ltd High Court, Tauranga, Priestley J, 12/11/2010 (construction dispute, application for leave to appeal against arbitral award).
  • Dunick v Nicholson High Court, Auckland, Lang J, 19/8/2010 (interlocutory injunction).
  • Williams v Hill High Court, Auckland, Associate Judge Bell, 4/8/2010 (shareholder dispute, summary judgment).

 

Professional Activities

  • Silk: 2017
  • Barrister - 2001 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

Significant reported decisions

Some idea of the more significant cases that Andrew has been involved in over the years can be found in a selected review of cases that have been reported in the law reports.  A more complete survey of cases since 2010 can be found in Recent Cases.

  • Fish Man Ltd (in liq) v Hadfield (2016) 4 NZTR 26-014, [2016] NZAR 1198.  The case relates to the rights of a creditor to claim property of a bankrupt that has been disclaimed by the Official Assignee.  The case is on appeal to the Court of Appeal. It will be the first case in New Zealand at the appellate level to consider principles relating to “backwards tracing”; ie tracing through mortgage payments into the underlying asset. It will also consider the competing rights of creditors to property disclaimed by the OA (on which there is again no appellate authority).  
  • Greys Avenue Investments Ltd v NZ Mint Ltd [2015] 22 PRNZ 801.  This is the leading decision on costs following the withdrawal of a statutory demand.
  • Probus South Pacific Inc v Probus NZ Inc [2015] 114 IPR 630 involved a dispute between various incorporated societies over the right to describe themselves as Probus Clubs.  The case was of significance to the many members of Probus clubs in New Zealand and Australia.  It also raised difficult issues over the provisions in the Companies Act 1993 over right to use company names. 
  • Yandina Investments Ltd v ANZ National Bank Ltd [2011] 25 NZTC 20-079; (2011) 25 NZTC 20-089; (2012) 25 NZTC 20-129; (2014) 26 NZTC 21-064.  These cases concerned a significant commercial claim against three trading banks, relating to an investment in an aircraft lease in 1995.  The amounts at issue were over $100 million dollars.   
  • Barnes v Barnes [2012] 29 FRNZ 46 was an appeal to the Court of Appeal that raised issues of duress and unconscionability in the variation of a matrimonial property agreement. The appeal was against the grant of summary judgment. The claim subsequently went to trial; GDB v CDB [2013] NZHC 2054.  The trial turned on the interpretation of provisions of the Child Support Act 1991, and it is an important authority in that context.
  • Woodroffe v Coleman [2011] 13 NZCPR 161.  Noted (2012) 18 NZBLQ 191.  This was an application to sustain a caveat.  It raised the difficult issue of the circumstances in which a caveat can be maintained in support of a claim of fradulent mis-representation.
  • Silverpoint International Ltd v Wedding Earthmovers Ltd Noted: [2010] 16 NZBLQ 3; [2009] 15 Canta LR 349; [2009] 15 NZBLQ 124; [2008] 14 NZBLQ 78; [2007] BCL 611.  The case was, at the time, an important decision of when a party could issue a statutory demand on the basis of a payment claim or an adjudication award under the Construction Contracts Act.  The case has largely been overtaken by subsequent authority. 
  • BNZ Investments Ltd v CIR [2009] 24 NZTC 23,582.  More significant discussions of the decision are at: [2011] 19 Wai L Rev 17; [2011] 17 NZBLQ 441; [2010] 16 NZBLQ 178; [2010] NZLJ 17; [2010] NZLJ 6; [2010] 16 NZBLQ 440; [2009] 15:3 NZJTLP 183; [2009] 15:4 NZJTLP 257; [2009] NZLJ 243; [2009] 15:4 NZJTLP 352.  The case was part of the structured finance litigation between the IRD and New Zealand’s major trading banks.  The sums involved were more that $600m.  
  • Manning v Manning [2009] 27 FRNZ 586.  The case involved an application to the court for approval to distribute trust assets to beneficaries.  It is one of the few cases to have considered the impact of ordinary rules of equity (and in particular the rule in Saunders v Vautier) on trust property subject to Te Ture Whenua Maori Act 1993.
  • Waller & Anor v Davies & Ors [2007] 2 NZLR 508; [2007] 8 NZCPR 1.  The case concerned Land Transfer Act fraud, and the imputation of knowledge of an agent to the holder of a registered interest.  It remains one of the leading authorities in the area.  Andrew also appeared as counsel in the subsequent leave application to the Supreme Court; [2007] 8 NZCPR 332.
  • Accent Management Ltd & Ors v CIR [2005] 22 NZTC 19,027.  Noted or discussed: [2006] NZLJ 402; [2008] Vol 14:1 NZJTLP 67; [2006] Vol 12:4 NZJTLP 324.  This was the trial for the Trinity tax “scheme”, that ultimately ended in the Supreme Court decision in Ben Nevis Forestry Ventures Ltd v CIR [2009] 2 NZLR 289 (the leading authority on tax avoidance in New Zealand). 
  • Polynesian Spa Ltd v Osbourne & Anor [2005] NZAR 408. Noted or discussed: [2009] NZLJ 11; (2009) 23 NZULR 489; [2006] NZLJ 385; [2006] NZLJ 436; [2005] ELB 29. The case involved a death at the Poynesian Spa in Rotorua, and an application to judicially review the decision to prosecute the Spa under Health and Safety legislation.  It is a leading authority on the suseptability of prosecution decisions to judicial review, having been cited in 22 subsequent cases. 
  • Wyeth (NZ) Ltd v Anchor Products Ltd [1997] 11 PRNZ 479.  Noted or discussed: [1999] NZLJ 57; [1999] NZLJ 59.   
  • Baltic Shipping Co v Pegasus Lines SA [1996] 3 NZLR 641; [1996] 9 PRNZ 59.  Noted or discussed: 2001] NZ Law Review 105; [1999] NZ Law Review 387; [1996] BCL 33; 19 TCL 1/4; NZCLD, 5th Series, 0326.  The case is one of the few decisions of the Court of Appeal on the jurisdictional requirements of the Admiralty Act 1973 and the circumstances in which a party is entitled to arrest a ship to secure its claim against the owner. It remains one of the leading authorities in the area (with citations in 20 subsequent cases). 
  • Gutierrez v R [1997] 1 NZLR 192; [1996] 14 CRNZ 108.  Noted or discussed: [1998] NZLJ 435; [1998] NZLJ 435; [1997] BRB 24; [1996] BCL 1104; 5th Series, 0795.  This appeal concerned the obligations on Counsel in cross examing a defendant in a criminal action.  It remains the leading authority on the duty of counsel to ‘put their case’.  It has been cited in over 25 subsequent authorities. 

Publications and Seminars

  • “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 Issues 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.

Seminars

  • “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).
  • “Tort Law”, NZLS CLE Seminar (2013) (with Professor Stephen Todd).
  • “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).
  • 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).
  • "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).

Lecturing

  • Civil Procedure – University of Otago (1999 – 2001).
  • Tort Law – University of Otago (1999 – 2001).
  • Land Law (tutor) – University of Otago (1999 – 2001).
  • Civil Procedure/Civil Litigation – University of Otago (Auckland and Otago campuses) (2006 to 2009).
  • Advanced Tort Law – University of Auckland, LLM programme (2003).