Adam is a solicitor at Franks Ogilvie. He joined the firm in September 2023 and completed an LLB/BA in 2024, majoring in History and Public Policy. He was admitted as a barrister and solicitor of the High Court in June 2025.
Prior to working at Franks Ogilvie, Adam was part of the team at the New Zealand Free Speech Union, running much of the back-end work of the organisation. He also interned for a Member of Parliament in 2020.
Adam is passionate about liberal democratic values and the importance of a robust civil society. Outside his work and studies, he enjoys getting out into the various tracks and DOC huts in the Wellington region.
Summary
The High Court dismissed an application for judicial review of the Wellington City Council’s (“Council”) installation and maintenance of the rainbow crossing (“Crossing”). The Court found the Council acted lawfully when it installed the crossing and was permitted to continue its maintenance.
Background
The Council sought advice from the New Zealand Transport Agency (“NZTA”) on the Crossing. NZTA informed the Council it would be unlawful under the Transport Rule on Traffic Control Devices (“TCD Rule”) and threatened enforcement action if it was installed. The Council installed the Crossing in October 2018, but NZTA did not pursue enforcement action.
Over the next few years the Council continued to communicate with NZTA on compliance and possible alternatives to the Crossing. The Council conducted surveys of pedestrian and vehicle use of the intersection, and communicated with NZTA regarding a possible exemption to the TCD Rule. No exemption was granted or declined, though draft NZTA documents from the time indicated an intention to decline an exemption, on safety grounds. During this time NZTA maintained its view that the Crossing was not compliant with the TCD Rule and a subsequent amendment in 2020 (“2020 Amendment”).
The 2020 Amendment permitted road art in lower-risk environments, so long as the art did not resemble other markings intended for traffic control. Following the 2020 Amendment, the Council conducted more surveys which showed that vehicle speeds through the intersection were reasonably low and trending down. These surveys also showed that the Crossing did not influence pedestrian behaviour when crossing the road.
In 2024, three “concerned Wellington ratepayers” applied for judicial review of the Crossing. They sought a declaration that it was contrary to the TCD Rule and a direction for NZTA to reconsider a 2021 determination by the Director of Land Transport that the Crossing did not contravene the TCD Rule.
The case
Applicability of the 2018 TCD Rule and 2020 Amendment
The Court first determined that the Crossing’s lawfulness was to be decided under the TCD Rule at the time of its installation (“2018 Rule”). Neither the 2020 Amendment nor the Land Transport Act provided for retroactive application, so the 2020 Amendment could only apply prospectively to road marking installations.
The Court noted the general principle of administrative law that a statutory power must be exercised for the purpose of that power, but alternative purposes may be pursued provided they do not compromise the power’s primary purpose. The Court determined that expressing LGBT pride was a permitted alternative purpose of the Crossing, provided that it also had a purpose directly connected to the use of the road and did not otherwise compromise the TCD Rule.
Did the Rainbow Crossing comply with the 2018 TCD Rule?
Clause 5.5 of the 2018 Rule prohibited road markings that were advertisements or unconnected with the use of the road. While most pedestrians crossed the street outside the rainbow markings, during busy periods pedestrians fanned out across the Crossing. The Court determined that the Crossing guided pedestrians to where they could cross at the intersection, which was a sufficient connection with the use of the road.
The Court determined that the Crossing did not mislead pedestrians, so the alternative purpose of expressing LGBT pride did not compromise the purpose of road safety. The Crossing had a starkly different design to a pedestrian crossing’s spaced-apart white lines. The Crossing’s traffic signals also distinguished it from a pedestrian crossing, and it did not have the other features required of pedestrian crossings, such as the black and white poles with orange discs or globes.
The applicants did not present any evidence that the Crossing was compromising pedestrian safety. Surveys of the crossing showed frequent jay-walking, but this was not due to pedestrians believing they had right of way. Pedestrians respected the traffic signals and only crossed on a ‘red’ signal when there were no approaching vehicles.
As the Crossing carried a purpose connected to the use of the road and did not otherwise compromise safety or any other purposes of the TCD Rule, the Court determined that the Crossing complied with the 2018 Rule and was lawfully installed.
Did the Rainbow Crossing comply with the 2020 Amendment?
The Court formed the view that the Council’s ongoing maintenance of the Crossing did not constitute “installing” it for the purposes of the 2020 Amendment, so regardless of whether the Rainbow Crossing complied with the 2020 Amendment the Council was permitted to maintain it. In case that view was wrong, the Court still gave its opinion that the Crossing complied with the 2020 Amendment.
Clause 5.6 of the 2020 Amendment provided for roadway art in “lower risk” environments that were not similar to other road markings and did not mislead pedestrians. The rule included an example where “a series of long rectangles are painted on the road, parallel to the kerb and perpendicular to oncoming vehicle traffic” that resembled or were similar to a pedestrian crossing as road markings incompliant with rule 5.6.
The applicants argued that the Crossing too closely resembled a pedestrian crossing, but the Court determined that the design was sufficiently different, distinguishing the Crossing from the example given in the 2020 Amendment. The Court also determined that the crossing was a “lower risk environment” owing to speed bumps on either side of the crossing and the low motorist speeds.
As the Crossing was distinct from other road markings and was located within a “lower risk” environment, even if it had to comply with the 2020 Amendment the Crossing was lawful.
Result
The Court dismissed the application for judicial review. The installation of the Crossing was lawful. NZTA and local authorities now have judicial guidance of the circumstances where a rainbow crossing may be lawfully installed.
This case is a reminder of the principle that laws are prospective by default and will not have a retroactive effect unless specified and empowered by Parliament. Changing a rule without retrospective effect will not change the lawfulness of an action already undertaken.
For further information on this or similar cases please contact Director Brigitte Morten.
The Court of Appeal upheld a High Court decision to decline a property developer’s application for summary judgment that it was the “Controlling Member” of a residents’ society, formed for the purpose of a development. The Court upheld a summary judgment that the “Controlling Member” position had been disestablished when the developer had sold all its land in the development.
Property development company Mangawhai Developments Ltd (“MDL”) was incorporated in 2005 alongside the Lake View Estate Residents Society Inc. (“Society”) for the purpose of developing and managing the Lakes View Estate (“Estate”). The Society’s responsibilities were the management of the Estate’s development and community facilities, with each residential property bound by a covenant to the Society. The Society’s rules had a position of “Controlling Member”, held by MDL as the developer. The “Controlling Member” was required to be present for the Society’s general meetings be quorate, at which it had a controlling vote. The Society’s rules (“Rules”) provided that MDL had the position of “Controlling Member” until the development was complete.
In 2009, MDL went into receivership. Shortly before this MDL had sold its remaining undeveloped land (“Land”), which was on-sold to a couple, the Ruitermans, and financiers Vermont Street Partners Ltd (“New Owners”). In 2017, the New Owners attempted to subdivide the Land and tried to claim the “Controlling Member” status for themselves. They got into a dispute with the existing residents, which was not settled until 2021. In 2019, during this dispute the Society resolved at a general meeting to remove the “Controlling Member” status from the Rules. MDL remained in receivership during this time, and its receiver did not attend the meeting which proceeded nonetheless.
In 2022, with the support of a few residents opposed to the New Owner’s development, MDL came out of receivership and attempted to assert its status as “Controlling Member”. MDL stated that as neither MDL nor its receiver had been present at the Society’s general meeting that removed the “Controlling Member” from the Rules, the meetings were not quorate and the rule changes were invalid. The New Owners rejected this claim, and the dispute went to litigation.
The High Court declined an application from MDL for summary judgment that it retained its status as “Controlling Member”. It gave summary judgment in favour of the New Owners that after MDL sold off the last of its land in the Estate, its role in the development was over, so the whole premise for the “Controlling Member” had fallen away and MDL no longer had that status. The Court also declined an application for summary judgment from the New Owners that MDL was estopped (precluded) from asserting “Controlling Member” status and that MDL’s action was an abuse of process.
MDL appealed against the High Court’s declaration that it was no longer the controlling member.
Clause 4.3 of the Rules stated that the “Developer” would be the “Controlling Member” of the Society until development of the Estate was completed. After this, they would be deemed to have resigned from the position, which would also be disestablished. “Developer” was specifically defined as MDL.
The Court of Appeal held that this prevented anyone but MDL from holding the position of “Controlling Member” as there was no provision for assignment or succession. This precluded the New Owners from taking on the “Controlling Member” status. Had MDL been contracted by a third party to develop the land, or was purchased outright, this position may have been maintained, but instead the Land was simply sold.
The Court of Appeal agreed with the High Court that the sale of the Land meant that MDL had lost the position of “Controlling Member”. Without any land to develop, MDL could no longer proceed as the developer, so for MDL the development was complete. Under the Rules this deemed MDL as having resigned from the position of “Controlling Member”.
The Court also dismissed the New Owner’s appeal against the declined application for summary judgment that MDL was estopped from asserting “Controlling Member” status due to MDL’s silence on its status during its receivership. There was no identified duty for MDL’s director to speak; there was no clear ascertainable loss to the New Owners. It was also not clear whether their reliance on this silence was reasonable, as the New Owners never attempted to contact MDL’s director about the “Controlling Member” status until several years after they had purchased the land. The Court also dismissed their appeal against the declined application to strike out proceedings on the grounds of an abuse of process. The Court held that MDL was entitled to have the matter of its status determined at trial.
The Court of Appeal dismissed MDL’s appeal, upholding the High Court’s summary judgment that MDL was no longer the “Controlling Member” of the Society. The New Owners would not require MDL’s permission to undertake any development, but would still be subject to the Rules of the Society, under the control of the residents.
This case underscores how important it is for incorporated societies to have a well-drafted constitution, and for their members to pay close attention to its provisions as decisions are made and events unfold. The effort to keep on top of a society’s rules may seem burdensome, but can save a lot of time and money should disputes later arise.
This case was determined under the Incorporated Societies Act 1908. The new Incorporated Societies Act 2022 is more prescriptive in its requirements for society constitutions and is intended to provide for more democratic governance of societies. The courts also have more extensive powers to alter society constitutions if their provisions are oppressive, or it is otherwise just and equitable to do so.
For further information on this or similar cases contact Director, Brigitte Morten.
The Restructuring Insolvency and Turnaround Association of New Zealand (“RITANZ”) declined Mr Kamal’s application for membership on character grounds. The High Court dismissed his application to quash that decision, but issued a declaratory judgement in his favour. The Court of Appeal upheld RITANZ’s decision to decline his membership application and allowed a cross-appeal by RITANZ against the declaratory judgement, which relaxed the procedural standards the High Court set for RITANZ when determining applications.
Mr Kamal was a former accountant who was subject to disciplinary sanctions by the New Zealand Institute of Chartered Accountants (“NZICA”) in 2009, 2010, and 2011. He was also convicted of six criminal tax offences in 2013, and sentenced to three months’ home detention and 150 hours of community service.
He resigned his membership with the NZICA before he could be removed, and began practicing as a liquidator. In 2015 he was found personally liable for a mishandled liquidation, and in 2018 was falsely holding himself out as a chartered accountant to prospective clients.
The Insolvency Practitioners Regulation Act 2019 (“Act”) required liquidators to become members of either NZICA or RITANZ. In 2020, the NZICA declined Mr Kamal’s application for readmission. In 2021, RITANZ also declined his application for membership, on the basis that he was not of good character.
Mr Kamal sought a judicial review of RITANZ’s decision to decline his membership. The High Court found that RITANZ had erred in its decision-making but only granted declaratory relief, giving a statement that RITANZ had been mistaken in the process it took to determine Mr Kamal’s application, but declining to overturn the decision itself. Mr Kamal appealed the High Court’s decision to uphold RITANZ’s refusal of membership, while RITANZ cross-appealed the High Court’s declaratory relief.
Fit and proper person test
The Act requires NZICA and RITANZ to issue insolvency practicing licences only if they are satisfied that the applicant is a “fit and proper” person. The Court of Appeal held that the standard was not perfection, but that RITANZ had ample evidence to show they were entitled to decline Mr Kamal’s application on the grounds that he was not “fit and proper”.
Mr Kamal submitted that the “fit and proper” test is forward looking, and that the Act contemplated that applicants who would not meet the test unconditionally may do so if they were given extra requirements, such as mentoring and supervision. The Court of Appeal agreed that the test was forward looking, but disagreed that he might be eligible for a conditional licence. The Court considered that conditional approvals would erode the “fit and proper” test so much that it would undermine the purpose of the licensing regime. It declined to quash RITANZ’s decision.
Cross-Appeal: the High Court declarations
The High Court identified four errors in how RITANZ’s declined Mr Kamal’s application for members and gave declaratory relief, without quashing the decision. These included not referring to and assessing three separate mitigating matters in a forward-looking way, and breaching the principles of natural justice by not putting an adverse finding against Mr Kamal to him.
On the mitigating factors, the Court of Appeal found that RITANZ was not required to dwell significantly on them, nor refer to them explicitly in its decision. RITANZ’s characterisation of Mr Kamal’s previous offending was accurate and relevant nonetheless, and the mitigating factors did not impact the overall outcome. This fact was acknowledged by the High Court’s refusal to quash the decision. The Court of Appeal found that omitting reference to those mitigating factors was not an error of law.
On the alleged breach of natural justice, the High Court found that RITANZ had put four adverse inferences to Mr Kamal, but not the adverse conclusion they had drawn from it, which was a breach of natural justice. The Court of Appeal held that despite not putting the conclusion to Mr Kamal, it had given him several opportunities to speak to the issues at hand before RITANZ drew its conclusions, and they were not required to adopt a more rigorous approach. Again, RITANZ had not made an error in law and the Court of Appeal quashed the High Court’s declaratory judgement.
The Court of Appeal dismissed Mr Kamal’s appeal and upheld RITANZ’s decision to decline his application for membership. The Court also upheld RITANZ’s cross-appeal and quashed the High Court’s declaratory judgement. Mr Kamal would not be allowed to practice as a liquidator.
By declining Mr Kamal the ability to meet the “fit and proper” test with a conditional licence, the Court showed how the test is a minimum standard that all insolvency practitioners must meet. This case also shows how professional bodies retain some leeway on how they decide membership applications. This is particularly so in circumstances where, despite minor procedural irregularities, the outcome would have remained the same.
For further information on this case or similar issues contact Director, Brigitte Morten.
