Articles by luke Sizer
Expert determination as an alternative dispute resolution mechanism
Contractual disputes can avoid courts or arbitrators, if both parties agree Expert determination is a contractual process where parties agree to appoint an independent person - usually with specialist understanding or technical knowledge in a particular area - to resolve a dispute between those parties by issuing a binding decision.
Podular Homes: Court of Appeal unanimously overturns High Court decision on equitable liens in liquidation
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In a judgment issued yesterday (Francis v Gross [2024] NZCA 528), the Court of Appeal unanimously overturned the controversial High Court decision in Francis v Gross [2023] NZHC 1107 and held that purchasers of partly constructed modular buildings (pods) did not have equitable liens (at all, and especially not in priority to secured creditors) over those pods.
By Bridie McKinnon, David Broadmore, Kelly Paterson, luke Sizer, Olly Peers, Scott Abel, Scott Barker Verified, Cora Morrison, Mace Gorringe
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Lexology
Verified
Commerce Commission seeks its first order of pecuniary penalty for breaches of the CCCFA
On 27 August 2024, the High Court (Jagose J) released its judgment on Commerce Commission v TSB Bank Limited [2024] NZHC 2400. In that case, the Commerce Commission (the Commission) for the first time sought an award of pecuniary penalty under the Credit Contracts and Consumer Finance Act 2003 (CCCFA) for breaches of responsible lender obligations under s 9C(1) and s 41 against TSB Bank (TSB).
A new landscape on the horizon for financial services regulations
Since the beginning of 2024 one of the key focus areas for the new Government has been to reform aspects of New Zealand's financial services legislation. These reforms are intended to: Streamline the financial services regulatory landscape Provide regulator clarity Protect vulnerable consumers Promote the growth of the economy, including by removing unnecessary compliance costs currently imposed on financial service providers.
FMA's crackdown on breaches of FMCA fair dealing provisions continues
The Financial Markets Authority (FMA) filed High Court proceedings against Tower Limited (Tower) in March 2024. The FMA is seeking a declaration that Tower breached the fair dealing provisions in the Financial Markets Conduct Act 2013 (FMCA) and payment of pecuniary penalties to the Crown (the amount sought is yet unknown).
An opening for potential reform: Contracts of Insurance Bill passes first reading
We have previously published an article on the Insurance Contracts Bill, which was a Member's bill drawn from the Members' bills ballot and put before Parliament. The Insurance Contracts Bill passed its first reading in Parliament on 2 May 2024. It has now progressed from being a Member's bill to a Government bill, renamed the Contracts of Insurance Bill (Bill).
Insurance Contracts Bill: watch this space
The Insurance Contracts Bill (Bill) is a Member's Bill that was drawn from ballot on 21 March 2024. The new Bill proposes significant changes to insurance law in New Zealand, with its primary focus being on consumer protection. The Bill in its current form is directed at strengthening consumer rights. The Bill is still in its early stages but it provides an opportunity for Parliament to consider the long awaited reforms to insurance law in New Zealand.
Supreme Court releases Mainzeal judgment
This morning, after much anticipation, the Supreme Court has released its judgment in Yan v Mainzeal Property Construction Limited (in liq) [2023] NZSC 113, largely upholding the Court of Appeal's decision, and awarding damages of $39.8m against the directors collectively, with specified limits for certain directors. The decision signals that a strong emphasis on 'creditor protection' is now embedded in New Zealand company law.
UKSC rules on the Banker's Quincecare duty: no duty to second-guess customer
In recent years much ink has been spilled opining on the so called 'Quincecare' duty of care, and the limits of it (see links to our recent insolvency law updates covering the topic below).
Insolvency and restructuring newsletter - March 2023
Register now for your free, tailored, daily legal newsfeed service. Questions? Please contact Register To view this article you need a PDF viewer such as Adobe Reader. If you can't read this PDF, you can view its text here. Go back to the PDF . Australia, Canada, New Zealand, United Kingdom March 16 2023 Our last newsletter commented on high inflation, dwindling business confidence and international supply chain issues.
Significant insolvent trading decision in the UK Supreme Court - creditors' interests in the twilight zone
The United Kingdom Supreme Court has just released an important insolvency judgment in BTI 2014 LLC v Sequana SA [2022] UKSC 25 (Sequana), which concerns when and the extent to which directors of a company must consider the interests of creditors. The Court held that directors must consider the interests of creditors to differing degrees depending on the state of the company's financial affairs, with creditors' interests becoming paramount when formal insolvency procedures are inevitable.
Significant contractual interpretation case in the Supreme Court: a preview | Lexology
In a forthcoming decision, the Supreme Court has signalled that it may clarify the position on significant issues of contractual interpretation. Those issues include whether evidence of the parties' conduct before and after contractual formation can be used to interpret contracts. The Supreme Court will also consider on what basis the courts should imply terms into contracts. The decision will likely be of broad interest to the commercial community.
Court of Appeal delivers Mainzeal decision: significant implications for insolvent trading | Lexology
This update deals with the significant appeal judgment released yesterday by the Court of Appeal in the proceedings brought by the liquidators of Mainzeal Property and Construction Ltd (in Liq) (Mainzeal) against its directors. Our previous legal updates on the High Court decisions can be found here and here. This update is longer than usual: it represents our attempt to condense the Court of Appeal's 186 page judgment into something that is digestible in five minutes.
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