DDI +64 4 917 1080 Mobile +64 21 332 512 Email [email protected]

DDI +64 4 917 1080 Mobile +64 21 332 512 Email Justin.Smith@Stoutstreet.Co.Nz

Justin Smith is a leading Wellington-based barrister who handles general commercial litigation at all levels. He is a former Crown Prosecutor (1982-1986), was a partner at Kensington Swan at Wellington and Auckland (1988-1994) and a partner at Russell McVeagh in Wellington (1994-2007).

He was a member of Russell McVeagh’s Board of Management from 2001 to 2004 and the Chairman of that Board from 2004-2006. He went to the independent bar in 2007 and was appointed Queen’s Counsel in 2013. He is a Council member of the New Zealand Bar Association. He has represented numerous clients (individuals, voluntary associations, small businesses to the largest national and international corporates) at all levels (including tribunals, arbitral tribunals, select committees, ministerial inquiries, High Court, Court of Appeal, Supreme Court).

Year of Admission to the Bar: 1981

Qualifications & Career

 Bachelor of Laws, Canterbury University General Experience  general corporate and commercial litigation  securities litigation and regulatory claims (misleading prospectuses, insider trading, market manipulation, substantial security holder obligations)  companies and companies insolvency litigation (oppression, preferences, duties of receivers and liquidators, directors’ duties, claims on behalf of insolvent companies against third party advisors, eg auditors and valuers)  Commerce Act and Fair Trading Act cases  tax litigation  valuation arbitrations and litigation  construction  health and safety litigation for major corporates  professional indemnity cases involving solicitors, auditors, valuers and other professional constructive trust claims  judicial review of decisions of statutory bodies  choice of venue/forum non conveniens disputes  civil proceedings in negligent misrepresentation and fraud  professional disciplinary matters (Law Society, Quantity Surveyors Association, and others)  RMA and related resource consent litigation

 property litigation  defamation  litigation involving infringement of copyright, trademarks, passing off, fair trading, business software piracy.  IT litigation

Client / Directory Comments

 Listed in directories, e.g. Chambers, Expert Guides, Doyles

Appointments / Professional Work

 Member AMINZ  NZLS Litigation Skills Faculty member, NZLS Expert Witness advocacy programme Faculty member, NZLS Advanced Litigation Skills advocacy programme Faculty Member  Board of Management Member Russell McVeagh 2001 – 2003  Chairman of Board of Management Russell McVeagh 2004 – 2005

Recent & Notable Cases

 Counsel for Ovation New Zealand Ltd in proceedings against the New Zealand Meat Workers and Related Trades Union Inc. in respect of incorporation of payment of piece workers in multiple facilities for work breaks in their piece work rates and related issues of payment for donning and removal of safety and hygiene equipment (trial in September 2018)

 Counsel for Trans-Tasman Resources Ltd in appeal by Greenpeace, Royal Forest and Bird Protection Society of NZ and Ors v The Environmental Protection Authority and Trans-Tasman Resources Ltd in respect of marine consents and marine discharge consents to permit offshore iron sands mining under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 for hearing in the High Court in 2018

 Counsel for Commissioner of Inland Revenue in Frucor Beverages Ltd v CIR (assessment challenge under Tax Administration Act for trial in July 2018)

 Counsel for Credit Suisse First Boston in Houghton v Saunders and Others (Securities Act/Fair Trading Act/negligence claims by shareholders of Feltex Carpets Ltd – High Court 2014, Court of Appeal 2016 and Supreme Court 2017)

 Counsel for plaintiff in Property Ventures Ltd (in rec and liq) & Ors v Forbes, Johnston & Ors (PVL Directors) PwC, Fright Aubrey Ltd (in liq) (directors duties, alleged auditor’s negligence and valuation negligence – various applications and appeals in High Court, Court of Appeal and Supreme Court 2012 to 2018 )

 Counsel for Kuwait Finance House in Kuwait Finance House (Bahrain) BSC v Teece [2017] NZHC 1308 (enforceability in New Zealand of judgment obtained in the Bahrain Chamber for Dispute Resolution (BCDR) against the defendant, a New Zealand citizen).

 Counsel for the Financial Markets Authority in FMA v Warminger [2017] NZHC 1471 and [2017] NZHC 327 (claims of market manipulation under the Securities Markets Act 1988)

 Counsel for Fujitsu in Commerce Commission v Fujitsu [2017] NZDC 21512 (Fair Trading Act)

 Counsel for Capital + Merchant in Capital + Merchant Finance Ltd (In rec and liq) v Perpetual Trust Ltd [2016] NZHC 2512 (claims against Corporate Trustee in negligence and breach of statutory duty)

 Counsel for Commissioner of Inland Revenue in APN Holdings Ltd v CIR [2016] NZHC 244 (assessment challenge under Tax Administration Act)

 Counsel for Official Assignee in Official Assignee v Kingston Developments Group Ltd [2015] NZHC 1416, [2016] NZCA 415 (claim by Official Assignee as statutory agent under the Criminal Proceeds (Recovery) Act 2009 in respect of failure by respondent to settle real estate transaction)

 Counsel for appellant in McIntosh v Fisk [2015] NZHC 1403, [2016] NZCA 74 claims to recover payouts in Ponzi scheme under Companies Act and Property law Act

 Counsel for defendant in Okkerse v Aotearoa Enterprises Ltd [2014] NZHC 3317 (claim under s.174 of the Companies Act 1993)

 Counsel for Commissioner of Inland Revenue in ASB Bank Ltd v CIR (assessment challenge under the Tax Administration Act 1994 – High Court 201)

 Counsel for BayWa Aktiengesellschaft (second defendant) in TFG Society Inc v Chief Executive of Land Information New Zealand, BayWa Aktiengesellschaft and Turners & Growers Ltd (judicial review of alleged decision under New Zealand’s Overseas Investment Act 2005 concerning whether BayWa had complied with conditions subject to which consent to acquire New Zealand investments had been granted. 2014)

 Counsel for plaintiff in Calder Stewart Industries Ltd v Joie de Vivre Canterbury Ltd (partition of industrial land holdings in Christchurch 2013-2014)

 Counsel for plaintiffs in Eaton & Anor v LDC Finance (in rec) (Securities Act 1978, Personal Property Securities Act 1999, constructive trusts and tracing – High Court 2012 and 2013)

 Counsel for appellant in NZ Wind Farms Ltd v Palmerston North City Council (appeal under the Resource Management Act 1991 in respect of Environment Court’s cancellation of resource consent – High Court 2013, Court of Appeal 2014)

 Counsel for second defendant in Crystal Imports Ltd v Allianz NZ Ltd and HHR Christchurch NTC Ltd (acting for Host Hotels (international hotel chain) in insurance claims arising from Christchurch earthquakes – High Court 2013 and Court of Appeal 2015)

 Counsel for plaintiff in Commerce Commission v Deutsche Bahn AG, Schenker AG, Brinks, Bax Global Inc, Kuehne & Nagel International AG, Panalpina Geologistics International (Bermuda) Ltd and EGL Inc (cartelism in freight forwarding – High Court 2010 – Court of Appeal 2012)

 Counsel for defendant in NZ Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd (NIWA) (judicial review of decisions made by defendant in respect of temperature records in New Zealand – High Court 2012 – Court of Appeal 2013)

 Counsel for plaintiff in Financial Markets Authority (formerly Securities Commission) v Carrington Securities LP, Whimp and Others (misleading conduct in contravention of the Securities Markets Act 1988, s 13 – High Court 2011)

 Counsel for plaintiff Carlin Enterprises Ltd v Fright Aubrey (in liquidation) Ltd and Anor (land valuation litigation – High Court 2011)

 Counsel for Contact in Contact (and ors) v Electricity Authority (appeal in respect of Authority’s finding that an Undesirable Trading Situation developed – High Court 2012)

 Counsel for third to ninth (society) respondents in Meridian Energy Ltd v Central Otago District Council and others (appeal to High Court from Environment Court’s decision to decline Meridian’s resource consent application for Lake Hayes wind turbine project – High Court 2010)

 Counsel (in Court of Appeal) for appellant in Commerce Commission v Progressive Enterprises (Fair Trading Act case 2009-2010)

 Counsel for defendant in Alcatel-Lucent NZ Ltd v Juniper Networks Australia Pty Ltd (claim to prevent Juniper refusing to supply Alcatel with services necessary to maintain Telecom's mobile network 2009)

 Acting for NZX Ltd in a variety of disciplinary and regulatory matters (2007-to date)

 Counsel assisting Takeovers Panel in respect of investigation and determination into compliance with Takeovers Code by Dorset Management Corporation in the partial takeover of Rubicon Ltd by the Knott Funds (2009)

 Counsel for AgResearch in GE Free NZ v Environmental Risk Management Authority and AgResearch Limited: (Judicial review of ERMA's handling of development and field testing applications for genetically modified organisms) (High Court 2009, in Court of Appeal 2010)

 Counsel for Chartwell in Chartwell NZ Pty Ltd v Macdonald Investments Ltd: Claim in respect of removal of operator from gas field under JV agreement and farm in agreement provisions (2009)

 Counsel for plaintiffs in Mark et al v Attorney-General, LINZ, Transit NZ, Kapiti Coast District Council: proceedings for offerback under Public Works Act 1981 (2008 to date)

 Counsel for Healthcare NZ Ltd in Healthcare NZ Ltd v Fairfax Media Publications Ltd and APN News and Media NZ Ltd (injunction to protect confidentiality) (2007 - 2008)

 Counsel for Todd Petroleum Mining in litigation against Shell/OMV in relation to operatorship of Maui, Kapuni, Pohokura and other Taranaki Oil and gas fields (High Court and Court of Appeal) (2005 to 2008)

 Counsel for Todd Pohokura in Pohokura Offtake litigation against Shell/OMV (High Court) (2006 to 2007)

 Counsel in HWR v Maslin Stevenson (High Court) (Litigation over pre-exemption rights in joint venture) (2007/2008)

 Counsel for Todd Taranaki in Pohokura/McKee Mangahewa condensate storage litigation against Shell/OMV (High Court) (2006 to 2007)

 Counsel for Todd Petroleum Mining in Greymouth Petroleum v Todd Petroleum Mining Limited as to ownership/access to gas wells (High Court) (2006)

 Counsel for NZX in relation to Access Brokerage collapse in disciplinary, regulatory, and High Court litigation (2005 to 2008)

 Counsel for Telecom in Commerce Commission litigation relating to compliance with Door to Door Sales Act/FTA TA in respect of mobile phone sales (2004 to 2006)

 Counsel for Telecom in respect of infrastructure rating litigation (High Court, Court of Appeal, and Land Valuation Tribunal) (2004 to 2008)

 Counsel for AgResearch in MADGE v ERMA and AgResearch (High Court) a judicial review of genetic engineering approvals granted under the HASNO Act (2004)

 Counsel for AgResearch in Bleakley v ERMA and AgResearch (High Court) a judicial Review and appeal in respect of genetic engineering approvals granted under the HASNO Act (2003)

 Counsel for Telecom in business loss claim for water damage against AMP and others (High Court) (2003 to 2007)

 Counsel (High Court and Court of Appeal) for Tranz Rail (now KiwiRail) in Tranz Rail v Wellington District Court (Commerce Commission) where judicial review was successfully applied for in respect of a search warrant obtained by the Commission (2002)

 Counsel for Fonterra in valuation arbitration to establish value of NZ Dairy Board for buyout of minority interests (2002)

 Counsel for Tranz Rail (now KiwiRail) in Ministerial Inquiry into Safety and Health at Tranz Rail (an inquiry into the adequacy of Tranz Rail's health and safety risk management system, its compliance with the Health and Safety in Employment Act 1992, the necessity for rail safety, policy and legislative changes and the adequacy of the then LTSA's oversight of the Railway Safety and Corridor Management Act 1992 (Now Railways Act 2005) (2000)

 Counsel for IBM in High Court litigation against the NZ Government (Police) and negotiations with Treasury in respect of the INCIS national crime fighting computer system for which IBM was contracted to NZ Government and lead counsel for IBM in subsequent Ministerial Inquiry into INCIS (2000)

 Counsel for Tranz Rail (now KiwiRail) in R v Tranz Rail where Tranz Rail was tried on indictment in the High Court for injuring with intent and criminal nuisance in respect of the Morgan Jones incident - a safety system case involving expert safety system evidence from witnesses from Railtrack in the UK and others (1996)