CHIEF EXECUTIVE OF THE DEPARTMENT OF INTERNAL AFFAIRS v NZ TRUSTEES ASSOCIATION CHARITABLE TRUST [2019] NZHC 2684

CHIEF EXECUTIVE OF THE DEPARTMENT OF INTERNAL AFFAIRS v NZ TRUSTEES ASSOCIATIONCHARITABLE TRUST [2019] NZHC 2684 [21 October 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-2464[2019] NZHC 2684BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF INTERNAL AFFAIRSPlaintiffAND NZ TRUSTEES ASSOCIATIONCHARITABLE TRUSTFirst DefendantERROL BRUCE ANDERSONSecond DefendantHearing: 5 September 2019 (further evidence received on 4 October 2019and further memorandum received on 10 October 2019)Appearances: J Parry for PlaintiffNo appearance for First DefendantSecond Defendant in personJudgment: 21 October 2019JUDGMENT OF LANG J[on application seeking pecuniary penalties andorder for enforcement of undertaking]This judgment was delivered by me on 21 October 2019 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] The first defendant, NZ Trustees Association Charitable Trust (NZTA), wasincorporated as a charitable trust on 27 May 1997. It was then registered as acharitable entity with the Charities Commission from 18 September 2007 until beingderegistered at its own request on 30 May 2016.[2] NZTA provides services to estates, boards of trustees and directors,foundations, trusts and other fiduciary enterprises. These consist of advice andinformation regarding the manner in which such entities should appropriately carryout their functions and duties.[3] At all material times the second defendant, Mr Errol Anderson, was afounding trustee and the Registrar of NZTA.[4] The functions formerly carried out by the Charities Commission weretransferred to the plaintiff on 1 July 2012. It is now responsible for overseeing theactivities of entities such as NZTA.[5] During 2018 the Department of Internal Affairs (DIA) received complaintsfrom entities who said they had received unsolicited emails from NZTA. Afterinvestigating these complaints the DIA concluded NZTA, assisted by Mr Anderson,was breaching its obligations under the Unsolicited Electronic Messages Act 2007 (theAct) by sending unsolicited messages electronically to entities it considered might beinterested in becoming members of NZTA and utilising its services.[6] The DIA subsequently entered into a written agreement known as anEnforceable Undertaking with NZTA and Mr Anderson on 13 August 2018. Underthis agreement NZTA and Mr Anderson agreed they would not send out unsolicitedemails in the future. The DIA contends the respondents subsequently breached theterms of the undertaking by sending further unsolicited emails to several entities andorganisations in September 2018.[7] The DIA now seeks an order under s 35 of the Act directing the respondentsto comply with the terms of the undertaking in the future. It also seeks pecuniarypenalties against both respondents in relation to the events that led to the undertakingbeing signed.Background[8] The facts on which the Court is required to determine these issues arecontained in a document headed "Agreed Facts" and signed by the parties on 4 and5 September 2018. This records that NZTA advertises its services on the websitewww.nzta.org.nz. It also controls the email account office@nzta.org.nz. NZTArenders membership subscriptions to trustees, directors, executives, administerscorporate bodies and individuals who wish to take advantage of the services it offers.[9] Between October 2015 and March 2018 NZTA offered up to seven differenttypes of membership subscriptions to its members. In return it offered services to itsmembers in the form of website listings, subsidised annual financial reviews, supportservices for board members, automatic affiliation of website listing with the AustralianTrustee Association, and access to an 0800 number and email helpdesk. Membersalso received a bulletin published by NZTA under the name "Estate and TrustBulletin".[10] The issues that led to the present proceeding appear to have begun at theAnnual General Meeting held by NZTA on 2 October 2015. The minutes of thatmeeting record the following issue being discussed:4. Donation of Membership to Charities: Errol Anderson said that theTrustees Association had been offered the opportunity to reach a substantialnumber of charities by a 3rd party email service. Errol said that if only 3% ofthe 26,000 of charities in New Zealand were received the Donation ofmembership then the Trustees Association membership would increasesubstantially and the sector would benefit. Council agreed in principle thatthe Donation by email had merit and the project was to proceed with a reportback to Council on progress. EA to action.[11] The DIA learned that between October 2015 and March 2018 NZTA,prompted by Mr Anderson, was responsible for eight separate events or incidents inwhich it sent out unsolicited emails to a large number of entities and organisations inbreach of the Act. In total the DIA received 105 complaints from 78 separate entitiesin relation to these events.[12] Emails sent on 14 October 2015 and 1 April 2016 contained an offer of12 months free membership of NZTA. Thereafter an annual membership fee wouldbe payable if the recipients did not opt out of the scheme. Emails sent on 31 March2016 and between 16 and 21 March 2018 attached invoices for membershipsubscriptions to the recipients of earlier emails who had not opted out. Emails sent inNovember 2015, January 2016, February 2016 and April 2016 attached NZTA'spublication Estate and Trust Bulletin.[13] The Agreed Facts record that NZTA sent a total of approximately 53,000unsolicited emails to recipients during this period. They also confirm that theunsolicited emails resulted in NZTA receiving subscription payments totalling at least$48,562. Furthermore, the emails that it sent out in March 2018 post-dated the DIAnotifying NZTA that it would be in breach of its obligations under the Act if it sentout further unsolicited emails.The statutory regime[14] Section 3 of the Act describes the purposes of the Act as follows:3 Purposes of this ActThe purposes of this Act are to—(a) prohibit unsolicited commercial electronic messages with a NewZealand link from being sent, in order to—(i) promote a safer and more secure environment for the use ofinformation and communications technologies in New Zealand;and(ii) reduce impediments to the uptake and effective use ofinformation and communications technologies by businesses andthe wider community in New Zealand; and(iii) reduce the costs to businesses and the wider community that arisefrom unsolicited commercial electronic messages; and(b) require commercial electronic messages to include accurate informationabout the person who authorised the sending of the message and afunctional unsubscribe facility in order to enable the recipient to instructthe sender that no further messages are to be sent to the recipient; and(c) prohibit address-harvesting software or a harvested-address list frombeing used in connection with sending unsolicited commercialelectronic messages in contravention of this Act; and(d) deter people from using information and communications technologiesinappropriately.[13] Section 9 of the Act prohibits the sending of unsolicited commercial electronicmessages:9 Unsolicited commercial electronic messages must not be sent(1) A person must not send, or cause to be sent, an unsolicited commercialelectronic message that has a New Zealand link.(2) If a recipient uses an unsubscribe facility in accordance with section11(1)(a), the recipient's consent to receiving a commercial electronicmessage from the sender is deemed to have been withdrawn with effectfrom the day that is 5 working days after the day on which theunsubscribe facility was used.(3) A person who contends that a recipient consented to receiving acommercial electronic message has the onus of proof in relation to thatmatter.[14] Section 6 of the Act provides the following definition of "commercialelectronic message":For the purposes of this Act, commercial electronic message—(a) means an electronic message that—(i) markets or promotes—(A) goods; or(B) services; or(C) land; or(D) an interest in land; or(E) a business or investment opportunity; or(ii) assists or enables a person to obtain dishonestly a financialadvantage or gain from another person; or(iii) provides a link, or directs a recipient, to a message that does 1 ormore of the things listed in subparagraphs (i) and (ii); butIt is common ground that all of the emails sent by NZTA constituted commercialelectronic messages in terms of this definition.[15] Section 4 of the Act defines the term "unsolicited commercial electronicmessage" as meaning a commercial electronic message that the recipient has notconsented to receiving. The term "consented to receiving" is in turn defined by s 4 ofthe Act as follows:consented to receiving—(a) means—(i) express consent, whether given by the relevant electronicaddress-holder or any other person who uses the relevantelectronic address; or(ii) consent that can reasonably be inferred from—(A) the conduct and the business and other relationships of thepersons concerned; and(B) any other circumstances specified in the regulations; or(iii) consent that is deemed to have been given when the followingcircumstances apply:(A) an electronic address has been conspicuously published bya person in a business or official capacity; and(B) the publication of the address is not accompanied by astatement to the effect that the relevant electronic address-holder does not want to receive unsolicited electronicmessages at that electronic address; and(C) the message sent to that address is relevant to the business,role, functions, or duties of the person in a business orofficial capacity; but(b) does not include the circumstances specified in the regulations fromwhich consent cannot be inferred[16] The Act imposes sanctions for "civil liability events". Such events include thesending of unsolicited commercial electronic messages, the sending of such messageswith inaccurate sender information or the sending of such messages that fail to containa functional unsubscribe facility.1[17] The primary sanctions sought in the present case are pecuniary penalties unders 45 of the Act. The Court has the power to order a pecuniary penalty not exceeding$200,000 in the case of an individual and not exceeding $500,000 in the case of anorganisation.21 Unsolicited Electronic Messages Act 2007, s 18.2 Sections 45(3) and (4).A Application for pecuniary penaltyApproach[18] Section 45 of the Act provides as follows:45 Pecuniary penalties for civil liability event(1) On the application of the enforcement department, the Court may ordera person (the perpetrator) to pay a pecuniary penalty to the Crown, orany other person specified by the Court, if the Court is satisfied that theperpetrator has committed a civil liability event.(2) Subject to the limits in subsections (3) and (4), the pecuniary penaltythat the Court orders the perpetrator to pay must be an amount whichthe Court considers appropriate taking into account all relevantcircumstances, including—(a) the number of commercial electronic messages sent:(b) the number of electronic addresses to which a commercialelectronic message was sent:(c) whether or not the perpetrator has committed prior civil liabilityevents.(3) If the perpetrator is an individual, the Court may order the perpetratorto pay a pecuniary penalty not exceeding $200,000 in respect of thecivil liability events that are the subject of the enforcement department'sapplication.(4) If the perpetrator is an organisation, the Court may order the perpetratorto pay a pecuniary penalty not exceeding $500,000 in respect of thecivil liability events that are the subject of the enforcement department'sapplication.[19] It is now well established that in fixing a pecuniary penalty under s 45 of theAct the Court adopts broadly the same approach as is taken when fixing pecuniarypenalties under the Commerce Act 1986.3 This requires the Court to apply the so-called Taueki methodology which is used in fixing sentences in criminal cases.4 Underthis approach the Court first fixes the starting point for the penalty to be imposedhaving regard to the overall culpability of the transgression but leaving to one sidefactors personal to the perpetrator. The Court then increases the starting point to reflect3 Chief Executive of the Department of Internal Affairs v Mansfield [2013] NZHC 2064 at [63];Chief Executive of the Department of Internal Affairs v Image Marketing Group Ltd [2014] NZHC139 at [5] and [26].4 R v Taueki [2005] 3 NZLR 372 (CA).aggravating factors personal to that party. These include factors such as whether theperpetrator has been guilty of similar conduct on previous occasions. The third andfinal step is to reduce the adjusted starting point to reflect mitigating factors personalto the perpetrator. These include factors such as whether there has been co-operationwith the DIA's investigation and an acknowledgement of responsibility.NZTAStarting point[20] In the present case the DIA submits several factors inform the starting point tobe selected for the pecuniary penalty to be imposed on NZTA. First, the conductoccurred on eight separate occasions. Secondly, it involved sending more than 53,000unsolicited emails to at least 14,698 recipients. In all likelihood, however, the emailswere sent to many more recipients than this. The respondents obtained the addressesof these recipients from the website formerly operated by the Charities Commission.[21] Next, NZTA received a direct benefit in the sum of at least $48,562.20 as aresult of the unsolicited emails. Finally, the last set of unsolicited emails was sent ata time when NZTA knew its conduct was under scrutiny by the DIA.[22] There is a dispute regarding the culpability attaching to two of the events, bothof which involved NZTA sending out approximately 14,500 unsolicited emails on 31March and 1 April 2016. Mr Anderson explains that NZTA mistakenly sent outinvoices by email and then retracted the invoices and apologised to the email recipientsthe next day.[23] Section 12(1)(a) of the Act provides that it will be a defence to an allegedbreach of s 9 of the Act where an unsolicited message is sent by mistake. The onus ison the sender of the message to establish it was sent by mistake.5 In the circumstancesof the present case I am prepared to accept Mr Anderson's explanation as to whatoccurred in March 2016 because it is highly unlikely that NZTA would have sent outa retraction and apology within 24 hours if it had not sent the invoices out by mistake.5 Unsolicited Electronic Messages Act 2007, s 12(2).Although both these events resulted in recipients receiving unsolicited emails I do notconsider they should be taken into account in assessing the pecuniary penalty to beimposed. It follows that the penalty should only reflect the fact that NZTA sent out atleast 24,000 unsolicited emails.[24] Mr Anderson also points out that NZTA has been providing services to clientsfor approximately 20 years. As a result, its activities began well before the Act waspassed. He argues that many of the persons or entities to whom unsolicited emailswere sent have acquiesced to a large extent because they began receiving unsolicitedcommunications many years ago and they have not taken active steps to stop itoccurring or to complain about NZTA's activities.[25] I accept this argument as far as it goes, but NZTA has been on notice for sometime now that the onus of ensuring clients consent to receiving NZTA'scommunications is on NZTA and not its clients.[26] There is a limited body of case law available to assist in selecting the startingpoint given the factors I have identified. At the lower end of the scale is the startingpoint selected by Judge Blackie in Department of Internal affairs v Aksentijevic.6 Inthat case the respondent had sent 2,230 unsolicited commercial emails, some of whichwere abusive in tone. There was no evidence the respondent had derived anycommercial gain from the emails. The Judge selected an initial starting point of$10,000 and increased it by $2,000 to reflect the fact that some of the emails wereabusive.[27] In Chief Executive of the Department of Internal Affairs v Atkinson, therespondent recruited salespersons to conduct a sales campaign involving the use ofmore than two million unsolicited emails to a large number of New Zealandrecipients.7 The campaign generated total sales of approximately $1.6 million, ofwhich the respondent retained a margin. The emails also breached the Act becausethey did not include accurate sender information and failed to contain a functional6 Department of Internal Affairs v Aksentijevic [2015] DCR 117 (DC).7 Chief Executive of the Department of Internal Affairs v Atkinson HC Christchurch CIV 2008-409-2391, 19 December 2008.unsubscribe facility. The respondent's culpability lay in the fact that he recruited thesalespersons and provided them with the necessary means of sending the unsolicitedemails. This included the provision of domain names, html templates for products tobe sold and alternative subject lines for use in the emails. French J observed that thescale of the offending warranted a starting point "at the top of the range for those whowere behind the operation".8 A discount was required, however, to reflect the fact thatthe activity had commenced at a time when it was not illegal to send unsolicited emailsand the respondent had cooperated with the DIA from an early stage. Taking thosefactors into account the Judge imposed a pecuniary penalty in the sum of $100,000.[28] Starting points for the other two respondents in the Atkinson proceeding weresubsequently fixed at $100,000 and $50,000 respectively.9 The latter reflected themarkedly reduced involvement of that respondent in the activities giving rise to theproceeding.[29] In Chief Executive of the Department of Internal Affairs v Mansfield, therespondent was responsible for conducting at least 15 email marketing campaigns ineach of which between 10,000 and 80,000 unsolicited emails were sent out to a largenumber of email addresses over a six month period.10 The emails were sent using adatabase that contained between 66,809 and 80,705 email addresses at any given time.Although the respondent undoubtedly received a financial benefit as a result of thecampaigns it was impossible to accurately quantify that figure.[30] In fixing the starting point Wylie J observed that the analogy with sentencingin criminal cases could only be taken so far.11 The overriding objective of a pecuniarypenalty is deterrence to both the transgressor and others who might seek to breach therequirements of the Act for commercial gain. Deterrence is achieved by imposingpenalties designed to remove the financial gain that was obtained by, or couldreasonably have been obtained from, the breach of the requirements of the Act. Taking8 At [20].9 Chief Executive of the Department of Internal Affairs v Atkinson HC Christchurch CIV 2008-409-2391, 27 October 2009.10 Chief Executive of the Department of Internal Affairs v Mansfield, above n 3.11 At [65].into account the factors to which I have referred Wylie J selected a starting point of$100,000.[31] In Chief Executive of the Department of Internal Affairs v Image MarketingGroup Ltd, the respondent sent no fewer than 44,824 unsolicited text messages over atwo month period in 2009 to cellphones connected to networks operated by the twomajor New Zealand service providers.12 The text messages sought to promote the saleof a product. They also breached the requirements of the Act in that they failed tocontain a functioning unsubscribe facility and did not include accurate senderinformation. Over a nine month period during 2010 the respondent then conducted 21advertising campaigns in which emails were sent to computers connected to theinternet in New Zealand. There was no evidence adduced as to the profit theseactivities had generated. Peters J approved a starting point in that case of $120,000.[32] In the present case the DIA contends a starting point of $60,000 is appropriatefor NZTA. Mr Anderson is unable to speak for NZTA because he has no right ofaudience to speak on its behalf and NZTA has not instructed counsel to represent it inthis proceeding. It is clear from the material before the Court, however, that NZTA isopposed to any pecuniary penalty being imposed.[33] I would describe NZTA's transgressions as being moderately serious, with themost serious aspect being the repeated conduct and the significant number ofrecipients who received unsolicited emails. The fact that the final activity occurredafter NZTA knew the DIA was investigating its conduct also makes that particularactivity more serious. I view the overall culpability of NZTA's conduct as beingsignificantly less than that of the respondents in Atkinson, Mansfield and ImageMarketing Group. It is clearly greater, however, than that of the respondent inAksentijevic.[34] I consider the starting point of $60,000 suggested by the DIA to be too highonce the two events that occurred at the end of March 2016 are removed from theequation. I consider an appropriate starting point to be $45,000.12 Chief Executive of the Department of Internal Affairs v Image Marketing Group Ltd, above n 3.Aggravating factors[35] I see no basis on which to uplift the starting point to reflect aggravating factorspersonal to NZTA because it has never been subject to similar proceedings in the past.Furthermore, I do not propose to increase the starting point to reflect the fact that Ipropose to make an order under s 35(2) of the Act requiring NZTA and Mr Andersonto abide by the enforceable undertaking in the future. If they fail to abide by this orderthe DIA can seek further pecuniary penalties not only in relation to future breaches butalso the breach that occurred in September 2018. This provides NZTA greaterincentive to abide by the Enforceable Undertaking.Mitigating factors[36] NZTA is entitled to credit for accepting responsibility for its actions and co-operating in the creation of the Agreed Facts. Furthermore, NZTA has not contestedthe present proceeding. The credit to be given for these factors is tempered, however,by the fact that NZTA breached the requirements of the Act again in September 2018.It is also clear that the DIA's investigation has resulted in a fraught relationshipbetween NZTA and the DIA.[37] Another mitigating factor may be the steps taken by the transgressor to ensureno further breaches will occur in the future. This is equivalent to the credit given in acriminal proceeding to an offender who has undertaken rehabilitative steps since theoffending occurred. At the hearing I gave Mr Anderson the opportunity to file a furtheraffidavit setting out the steps NZTA has taken to ensure it will not breach the Act inthe future. As the DIA points out, this amounted to an indulgence given the fact thatDuffy J essentially gave NZTA the same opportunity at a conference held in November2018.[38] Mr Anderson has now filed and served an affidavit containing the followinginformation;2.1 STEP 1:In March 2018 we contacted subscribers requesting that they respondfor UEM Act email opt-in purposes by one of the following ..i) confirming their email address for correspondenceii) amending their email address for correspondenceiii) unsubscribingiv) having their record deleted entirely2.2 STEP 2:Following the Hearing held with Duffy J 29 November 2018, weposted a Red Letter to subscribers with the 2018 Christmas Calendarstating UEM Act requirements for email opt-in correspondence andrequesting that subscribers contact our secretariat in Auckland byphone to confirm their opt-in status. A selection of around 100 ofthose opt-in records has been supplied to the Court and to the plaintiffwithin XL form.2.3 STEP 3:We have ceased emailing any correspondence to all non-payingsubscribers who have not yet opted-in, understanding that wherecharities have an income/expenditure of less than $20,000 we wereproviding free email subscription, which unfortunately for thosecharities we have ceased.2.4 STEP 4:We will be posting another Red Letter, with the 2019 ChristmasCalendar requesting that non-paying subscribers who have not yetconfirmed opt-in status do so by one of the following..i) go to webpage http://www.nzta.org.nz/Email Opt-In.htmlii) email office@nzta.org.nz with your details[39] The DIA has not filed any further evidence in response to Mr Anderson'saffidavit. Instead it has responded by memorandum in which its counsel submits thatNZTA has not substantiated Mr Anderson's claims in relation to Steps 1 and 2. TheDIA points out that Step 3 merely reflects compliance with the requirements of the Actand the enforceable undertaking. The DIA accepts that Step 4 may amount to a validmeans of establishing the validity of NZTA's client list but points out that the step hasnot yet been taken and Mr Anderson has given very little detail of the process to befollowed.[40] I accept the points that the DIA makes but I consider some credit should begiven for the steps NZTA has taken or proposes to take. Whether they are sufficientto prevent further breaches occurring obviously remains to be seen.[41] I propose to allow a credit of 20 per cent, or $9,000, to reflect mitigatingfactors.Result[42] NZTA will be required to pay a pecuniary penalty of $36,000.Mr Anderson[43] The DIA seeks a pecuniary penalty against Mr Anderson on the basis that hehas aided and encouraged NZTA to breach the Act. It clearly views him as being theperson largely if not wholly responsible for causing NZTA to breach the Act.[44] I accept that the evidence establishes Mr Anderson has been largely responsiblefor NZTA's actions. Three factors suggest, however, that any penalty to be imposedon him should be less than $20,000 as sought by the DIA. First, the number ofunsolicited messages to be taken into account has now reduced from that originallyrelied on by DIA. Secondly, Mr Anderson has not gained personally from thetransgressions that have occurred. Any financial benefit has accrued to NZTA.Thirdly, Mr Anderson was not the only person who made the original decision to sendout unsolicited messages on a widespread basis. His co-trustees were at least complicitin making that decision even though it appears that Mr Anderson is the person whohas been largely responsible for implementing it. Taking these factors into account Iconsider an appropriate starting point for Mr Anderson is $10,000. This should bereduced by 20 per cent to reflect the mitigating factors to which I have already referred.[45] Mr Anderson will therefore be required to pay a pecuniary penalty in the sumof $8,000.B Order under s 35 of the Act[46] Section 34 of the Act provides for enforceable written undertakings to be givenin connection with the sending of commercial electronic messages. Section 35provides remedies for any breach of an enforceable undertaking entered into unders 34:35 Enforcement of undertakings(1) If the enforcement department considers that a person who gave anundertaking under section 34 has breached 1 or more of its terms, theenforcement department may apply to the Court for an order undersubsection (2).(2) If the Court is satisfied that the person has breached 1 or more of theterms of the undertaking, the Court may make any or all of thefollowing orders:(a) an order directing the person to comply with the relevant termsof the undertaking:(b) an order directing the person to pay to the enforcementdepartment an amount up to the amount of any financial benefitthat the person has obtained directly or indirectly and that isreasonably attributable to the breach:(c) any order that the Court considers appropriate directing theperson to compensate any other person who has suffered loss ordamage as a result of the breach:(d) any other order that the Court considers appropriate.[47] The enforceable undertaking signed by the parties in the present case has thefollowing key terms:7.1 NZTA and Mr Anderson undertake that they will not send, or cause tobe sent, commercial electronic messages to any email addresses with a NewZealand link without obtaining prior consent. Such consent must comply withthe definition of consent under section 4(1) of the Act.7.2 NZTA and Mr Anderson agree to provide evidence establishing theconsent to receive commercial electronic messages from any intendedrecipients of any future email campaigns, either before any further emailcampaigns are sent, or by 1 October 2018, whichever is earlier.7.3 NZTA and/or Mr Anderson will provide to the Department details ofthe technical measures it has implemented within the organisation and thepolicies it has applied to ensure to the satisfaction of the Department that theapproximately 14,698 recipient email addresses identified during the courseof the investigation will not receive future commercial electronic messagesfrom NZTA that contain invoices for membership to NZTA, unless NZTAhave demonstrated to the Department that that recipient is a member of NZTA.[48] The DIA contends that NZTA breached the terms of the undertaking on orabout 9 September 2018 when it sent out copies of its Estate and Trust Bulletin torecipients on an unsolicited basis. The DIA points out that it was involved incorrespondence with Mr Anderson during August and early September 2018 in whichNZTA was placed on notice that it would be in breach of s 9 of the Act if it sent outcopies of its publication to persons who had not expressly consented to receive it.[49] The DIA has provided an example of an email it was forwarded on 12September 2018 from an entity called Art Hawkes Bay Incorporated. This was anemail dated 9 September 2018 from NZTA attaching the Estate and Trust Bulletin.The DIA points out that NZTA has never provided it with evidence that Art HawkesBay Incorporated had given its prior consent to receiving copies of NZTA's bulletinby email. It therefore says NZTA must be presumed to have sent the email to ArtHawkes Bay Incorporated on an unsolicited basis.[50] The DIA is concerned that other recipients also received the email on 9September 2018 on an unsolicited basis. It therefore seeks an order under s 25 to guardagainst the risk of further breaches occurring in the future.[51] I accept that NZTA's actions to date suggest there remains a risk that furtherbreaches of the enforceable undertaking may occur in the future. I therefore acceptthe submission for the DIA that it is appropriate to make an order under s 35(2) of theAct to guard against this risk.[52] I make an order under s 35(2) of the Act requiring both NZTA and Mr Andersonto comply with the terms of the enforceable undertaking dated 13 August 2018, and inparticular clauses 7.1 to 7.3 of the undertaking.Costs[53] The parties have already reached agreement in relation to the costs payable forsteps taken in this proceeding prior to the present applications being filed. No furtherorders are required in relation to those steps.[54] The DIA is entitled to costs for steps taken after that point. If the parties areunable to reach agreement regarding costs I invite counsel for the DIA to file and servea concise memorandum addressing the issue of costs and I will give directions fir thefiling of any memorandum in response.__________________________________Lang JSolicitors:Meredith Connell, Auckland