New Zealand Case Law: Decisions & Judgments

Topic

Treaty interpretation

Legal area

Court

5 Jul 2018

ORTMANN v UNITED STATES OF AMERICA [2018] NZCA 233

Citation

[2018] 3 NZLR 475
Court

Court of Appeal

Double criminality remains a requirement under the Extradition Act and the NZ–US Treaty; in assessing eligibility under the ROC procedure courts transpose circumstances (including copyright status) rather than require proof of foreign law; digital files can constitute 'objects' and infringing copies under s131 Copyright Act 1994 and therefore criminal copyright liability can extend to online dissemination; the ROC in this case was properly certified, admissible and contained sufficient admissible evidence to justify committal on the mapped New Zealand offences (Crimes Act ss228,249,240,246,98…
20 Jun 2018

PATTY TZU CHOU LIN v COMMISSIONER OF INLAND REVENUE [2018] NZSC 54

Citation

[2018] NZSC 54
Court

Supreme Court

Leave to appeal refused because the issue does not meet the threshold of public importance given the 2009 CFC law change and ongoing renegotiation of the NZ/China DTA, there is no appearance of miscarriage of justice, and the Court of Appeal's plain text interpretation of art 23(3) is sufficient.
8 Mar 2018

COMMISSIONER OF INLAND REVENUE v LIN [2018] NZCA 38

Citation

[2018] NZCA 38
Court

Court of Appeal

Article 23(2)(a) of the China DTA provides relief only against juridical double taxation and requires Chinese tax to have been paid by the New Zealand resident on income derived by that resident in China; tax spared to Chinese CFCs is not tax paid by the resident and therefore does not qualify for a New Zealand tax credit.
12 May 2017

LIN v THE COMMISSIONER OF INLAND REVENUE [2017] NZHC 969

Citation

[2017] NZCCLR 24
Court

High Court

Article 23(2)(a) of the China–New Zealand DTA includes Chinese tax paid by a Chinese CFC as "Chinese tax paid in respect of income derived by a resident of New Zealand", and Article 23(3) tax sparing applies to tax spared to the CFC; accordingly the New Zealand resident is entitled to credits for both tax paid and tax spared to the CFC and New Zealand domestic law must be read and applied to give effect to those treaty entitlements; the Commissioner's assessments for the years in dispute are incorrect to the extent affected.
14 Sept 2015

ORTMANN v THE DISTRICT COURT AT NORTH SHORE [2015] NZCA 443

Citation

[2015] NZCA 443
Court

Court of Appeal

The Court dismissed the expedited appeals and declined to stay the extradition hearing because statutory jurisdiction over extradition lies in the District Court, appellate intervention in pre-trial timetabling is only justified in exceptional cases and none were shown, and any asserted need for US counsel/experts and associated natural justice complaints are best determined at first instance by the District Court (with adjournment powers) and are subject to adequate remedies by judicial review or appeal if necessary.
6 Mar 2015

PONSONBY v MAITLAND [2015] NZHC 380

Citation

[2015] NZHC 380
Court

High Court

The Family Court correctly gave precedence to the Hague Convention return application under Article 16 and s109 of the Care of Children Act because paternity proceedings were a collateral attempt to alter the applicant's custody status at the time of retention, potentially frustrating the operation of the Convention; CROC does not displace the Convention's priority and does not require paternity proceedings be heard first; appeal dismissed.
1 Mar 2013

USA V DOTCOM & ORS COA CA526/2012

Citation

COA CA526/2012
Court

Court of Appeal

The Court held that the Extradition Act's record of the case regime for exempted countries does not authorise general pre-hearing disclosure orders against a requesting state like the United States; s25 requires a summary of evidence and only those accompanying documents that are essential and not capable of summary, and the proper channel for seeking further material is the treaty mechanism (art 12) unless cogent evidence indicates abuse of process; accordingly the District Court's broad disclosure orders were quashed and the cross-appeal dismissed.
7 Sept 2012

SZONDY V THE DISTRICT COURT AT AUCKLAND HC AK CIV-2012-404-001733

Citation

openlaw-d87d1c7e_5fd8_44d3_baf6_5a1019a0e9bf.pdf
Court

High Court

The High Court held that the Hungarian charges, which allege the applicant led lenders into error and obtained money by misleading them about his ability to repay, fall within art II(6) of the extradition treaty (obtaining money by false pretences); s5(2)'s totality-of-conduct approach applies; and on the evidence a properly directed jury could convict, so a prima facie case was established; accordingly the judicial review application was dismissed.
15 Sept 2009

BUJAK V THE DISTRICT COURT AT CHRISTCHURCH AND ANOR SC 64/2009

Citation

BUJAK V THE DISTRICT COURT AT CHRISTCHURCH AND ANOR SC 64/2009
Court

Supreme Court

The application for leave to appeal is dismissed because the Court of Appeal correctly held that the supporting materials were true copies properly authenticated and that certified translations did not render the materials inadmissible hearsay; the applicant's arguments lacked merit and did not justify further appeal.