Andrew Butler

Admitted in 1994 and till recently a partner at one of New Zealand’s leading commercial law firms, Andrew’s practice focuses on commercial, trusts and public law.

Andrew is a seasoned advocate, with extensive experience before New Zealand’s superior courts, including over 10 appearances in the Supreme Court, 35 substantive appearances before the Court of Appeal and 60 before the High Court, as well as before a number of tribunals. Much of his work has been at the cutting edge, with many of his cases being reported in the law reports both in New Zealand and overseas.

His client service has been recognised by the international directories.

He has an accomplished academic background, both as a student and a teacher, combined with an ability to give practical advice and recommendations. He is the co-author of the leading textbook on the New Zealand Bill of Rights Act 1990, and general editor of the leading and frequently cited commentary, Equity and Trusts in New Zealand.

Andrew has been recognised by all major legal directories. Chambers Asia-Pacific has regarded him as a “notable practitioner” as part of Russell McVeagh’s Band 1 public law team; Who’s Who Legal, Litigation (2018); Legal 500, Litigation (2018), Best Lawyers for Trusts and Estates (since 2008), Public Law, and Litigation; and the International Law Office Client Choice Awards 2018, Public Law.

Review Andrew’s CV here.

Trust and equity experience
Andrew is an acknowledged authority on the law of trusts and equity in New Zealand:

  • Andrew is general editor of New Zealand’s leading 1300 page text, Equity and Trusts in New Zealand, 2nd edition (2009). This text is frequently cited by the Courts. In addition to his general editorship role of that text, he has authored 15 of the 44 chapters.
  • Andrew is a regular presenter at New Zealand Law Society Continuing Legal Education seminars. Relevantly, he has presented on trusts and equity related issues at the biennial Trusts Law Conference (2005, 2007, 2013, 2015, 2017), the Family Law Conference (2011) and the Equitable Remedies Workshop (2013).
  • He has also regularly presented seminars to the Trusts Law Special Interest Group of Chartered Accountants Australia New Zealand (CAANZ) and to the New Zealand branch of the Society of Trust and Estate Practitioners (STEP), including the STEP Australasian Conference 2016.
  • He was a member of the Trusts Law Reform Advisory Group which assisted the New Zealand Law Commission on its series of reports relating to the reform of the Law of Trusts in New Zealand (2010-2014).
  • He has been recommended by his peer group in the category of Trusts and Estates in the international legal directory Best Lawyers (2013, 2014, 2015, 2016, 2017).
  • He lectured in Equity and Succession and Trusts while a lecturer and senior lecturer at the Law Faculty, Victoria University of Wellington (1991 – 1999).
  • Andrew is a member of the Society of Trust and Estate Practitioners (STEP).

Andrew has substantial experience both in litigation and advisory work. Highlights include the following matters that can be disclosed:

  • Co-counsel for the trustees in Clayton v Clayton [Vaughan Road] [2016] 1 NZLR 551 and Clayton v Clayton [Claymark] [2016] 1 NZLR 590. These are the leading decisions of New Zealand’s Supreme Court on several aspects of trusts law following relationship breakdown, including the treatment of trusts under relationship property legislation, powers, nuptial settlements, sham trusts.
  • He appeared for Credit Suisse AG in its protest to jurisdiction in Ivanishvili v Credit Suisse [2018] NZHC 1755. The former Prime Minister of Georgia, Bidzina Ivanishvili, and his family, sought to sue Swiss bank, Credit Suisse AG, in New Zealand for losses alleged to have arisen from fraud and mismanagement of assets connected to a New Zealand law governed trust of which a Credit Suisse Trust AG subsidiary is a trustee. Andrew was lead counsel for the Bank in its successful protest to the jurisdiction of New Zealand Courts in that case. (The High Court’s decision is currently under appeal.)
  • Lead counsel in Kiwi Internet Marketing Limited v Trent [2017] NZHC 1374. Although this case presents as a statutory demand case, the context was a complex series of interlocking companies and trusts at the heart of a matrimonial property dispute.
  • Andrew has substantial experience in the interface between trusts and insolvency. A prominent example is representing Allan and Jean Hubbard during the course of their statutory management. Statutory management is a uniquely New Zealand regime under which, by ministerial fiat, entities (including trusts) and individuals can be placed under the day to day management of persons appointed by the Minister. This typically arises in context of alleged mismanagement of funds or scenarios in which there is a concern that the financial position of the entities or individuals will cause harm to a section of the public. The power is rarely used. Andrew was part of the Russell McVeagh team which represented Mr and Mrs Hubbard during the course of their statutory management. He was lead counsel in all court hearings. Multiple proceedings were initiated in order to resolve the status of property associated with Mr and Mrs Hubbard. At the time at which they were placed into statutory management, Mr Hubbard was regarded as the richest man in New Zealand’s South Island.
  • Andrew has been lead advisor and counsel in respect of numerous trust-related disputes that have been settled (Rogers v Strongforth Investments Ltd [2014] NZHC 3186; J W Thomson v Kelvin Thomson Holdings Limited CIV-2013-409-1543).
  • Andrew was part of Russell McVeagh’s team of advisors in relation to New Zealand aspects of the protracted Pugachev litigation.
  • He has been advising New Zealand Guardian Trust – a statutory trustee corporation – in respect of a number of contentious trusts matters in which litigation has been commenced.
  • He regularly advises trustees and beneficiaries on the interpretation of trust documents and related issues such as management of conflicts of interest, provision of information to beneficiaries, variation, and interaction with family law statues (Property (Relationships) Act 1976 and Family Proceedings Act 1980).
  • Andrew has advised charitable trusts on interpretation, charitable status, variation by court application and so on.
  • Andrew provided specialist trust law advice as part of the amendments to the Wi Pere Trust effected by the Māori Purposes Act 2017.
  • Andrew provided substantial advice and drafting on the Māori Land Court’s standard trust deed for ahu whenua trusts.
  • Andrew provided specialist trust law advice on the structuring of Fonterra shareholdings so as to enable interests in Fonterra to be publicly offered.

Judicial review experience

  • Unison Networks v Solar City NZ Ltd [2017] NZHC 1343 (successful challenge to jurisdiction of the Ruling Panel established under the Electricity Industry Act 2010; counsel for Unison).
  • Electoral Commission v Watson [2016] NZCA 512, [2016] 2 NZLR 63 (successful challenge to Electoral Commissions classification of satirical song and video as election advertisements; counsel for intervenor, Broadcasting Standards Authority).
  • Ngāti Whātua o Ropu Limited Partnership v Attorney-General and Minister of Building and Housing CIV 2015-404-1459 (challenge to Minister’s decision to use land subject to iwi’s right of first refusal under Treaty settlement legislation for social and affordable housing purposes; settled; counsel for Ngāti Whātua o Ropu Limited Partnership).
  • Attorney-General v Spencer [2015] NZCA 143, [2015] 3 NZLR 449 (successful challenge to decision not to accept funding application for parent caregiver; counsel for intervenor Human Rights Commission).
  • Westpac Securities NZ Ltd v Commissioner of Inland Revenue [2014] NZHC 3377, (2014) 26 NZTC 21-118 (successful challenge to CIR’s refusal to reopen taxpayer’s tax assessment due to error; counsel for Westpac).
  • Auckland Hebrew Congregation v Minister of Agriculture CIV-2011-485-1562 16 December 2011 (challenge to Minister’s decision to, in effect, ban kosher slaughter practices on animal welfare grounds; settled; counsel for Jewish communities).
  • Vector v Commerce Commission CIV 2011-485-536 (and subsequent part appeals to Court of Appeal and Supreme Court) (partly successful challenge to Commerce Commission’s interpretation of starting price adjustments for setting input methodologies for electricity lines and gas pipeline operations; counsel for Vector).
  • Healthcare of NZ Ltd v Capital and Coast DHB CIV-2011-485-1998 26 October 2011 (unsuccessful challenge to funding decisions of District Health Board reducing contract hours for community care; counsel for Healthcare).
  • GXL Royalties Ltd v Minister of Energy [2010] NZAR 518 (unsuccessful challenge to Minister’s decision on exploration permit; counsel for GXL in Court of Appeal).
  • Henderson v Privacy Commissioner CIV 2009-485-1037 29 April 2010 (successful challenge to Privacy Commissioner’s opinion on breach of Privacy Act 1993; counsel for the Director of Human Rights Proceedings).

Commercial, big ticket, litigation
Andrew has substantial experience as an advocate and trusted advisor on some of the most difficult and complex commercial and public litigation.

Andrew’s breadth and depth of commercial experience is substantial. He has been involved in big ticket litigation across a diverse range of industries, including electricity, banking, media and airports.

The subject matter of his commercial litigation is extensive: competition law (both sector specific and generic competition law), contract, public law, trusts, consumer protection, income tax and negligence.

Specific examples include:

Commerce Act

  • NZME v Commerce Commission [2018] NZCA 389, [2017] NZHC 386 (merger application between New Zealand’s two largest online and print media organisations; unsuccessful appeals to Court of Appeal and High Court; counsel for NZME and stuff).
  • E-Trans International Finance Ltd v Kiwibank Ltd [2016] NZHC 1031, [2016] 3 NZLR 241. E‑Trans International Finance Ltd v Kiwibank Ltd [2016] NZHC 1031, [2016] 3 NZLR 241 (closure of bank accounts of money transfer operator; contract / competition law; 9 day trial).
  • Vector Ltd v Commerce Commission [2013] NZHC 3289 (the so-called Input Methodologies appeals) (including earlier judicial review proceedings, Vector v Commerce Commission CIV 2011-485-536, 26 September 2011 and subsequent part appeals to the Court of Appeal and Supreme Court).

Tax

  • BNZ Investments Ltd v Commissioner of Inland Revenue (2009) 24 NZTC 23, 582 (HC) (including earlier interlocutory proceedings relating to discovery and trial matters and subsequent part appeals to Court of Appeal and Supreme Court) (unsuccessful challenge to CIR’s assessment of cross-border conduit transactions on tax avoidance arrangements; hundreds of millions of dollars tax, penalties and interest in issue; counsel for BNZ).
  • Westpac Securities Ltd v Commissioner of Inland Revenue [2014] NZHC 3377, (2014) 26 NZTC 21, 118 (successful challenge to CIR’s refusal to reopen taxpayer’s tax assessment due to error; counsel for Westpac).
  • Queenstown Airport Corp Ltd v Commissioner of Inland Revenue [2017] NZCA 20, [2017] 2 NZLR 811 (unsuccessful challenge to non-deductibility of airport runway safety area; counsel for Queenstown Airport (Court of Appeal only)).

Energy

  • Unison Networks v Solar City NZ Ltd [2017] NZHC 1343 Unison Networks v Solar City NZ Ltd [2017] NZHC 1343 (successful challenge to jurisdiction of the Ruling Panel established under the Electricity Industry Act 2010; counsel for Unison).
  • Vector Ltd v Commerce Commission [2013] NZHC 3289 (the so-called Input Methodologies appeals) (including earlier judicial review proceedings, Vector v Commerce Commission CIV 2011-485-536, 26 September 2011 and subsequent part appeals to the Court of Appeal and Supreme Court).
  • GXL Royalties Ltd v Minister of Energy [2010] NZAR 518 (unsuccessful challenge to Minister’s decision on exploration permit; counsel for GXL in Court of Appeal).

Banking

  • Andrew represented Kiwibank in defence of the class action litigation brought by “Fair Play on Fees” over the charging of so-called “exception fees” (eg late payment fees, overlimit fees, etc) on credit contracts.
  • E-Trans International Finance Ltd v Kiwibank Ltd [2016] NZHC 1031, [2016] 3 NZLR 241.
  • Westpac Securities NZ Ltd v Commissioner of Inland Revenue [2014] NZHC 3377, (2014) 26 NZTC 21-118 (successful challenge to CIR’s refusal to reopen taxpayer’s tax assessment due to error; counsel for Westpac).
  • Ivanishvili v Credit Suisse [2018] NZHC 1755 (claim for constructive trust in respect of alleged loss in value of trust investments due to alleged fraud; hundreds of millions dollars of alleged losses; successful protest to jurisdiction; counsel for Credit Suisse AG).

Fair Trading Act

  • Zenith Corporation v Commerce Commission CRI 2006-404-245, 27 May 2008.
  • PAE (New Zealand) Ltd v Brosnahan [2009] NZCA 611, (2009) 12 TCLR 626 (sale of business/alleged misrepresentations/intersection between Fair Trading Act and an “entire agreement” clause).

Public entity liability

  • Spencer v Ministry of Health [2016] NZHC 1650, [2016] 3 NZLR 513.
  • Attorney-General v Spencer [2015] NZCA 143, [2015] 3 NZLR 449.
  • Attorney-General v Body Corporate 200200 [2007] 1 NZLR 95 (leaky building/liability of industry regulator, Building Industry Authority; no duty; huge contingent liability if Crown appeal had not succeeded; counsel for Crown).

Statutory management / insolvency

  • Kiwi Internet Marketing Ltd v Trent [2017] NZHC 1374 (statutory demand/period to meet demand).

Andrew represented Allan and Jean Hubbard in multiple proceedings arising out of them being placed in statutory management in mid-2010. Proceedings included:

  • Simpson v Hubbard CIV-2010-476-581 31 August 2011.
  • Forresters Nominee Co Ltd v Hubbard Churcher Trust Management Ltd [2012] NZHC 1216.
  • Simpson v Hubbard [2012] NZHC 3020.

Partnership

  • Pullington Investments Ltd v Kaiwarua-Ealing Ltd [2013] NZCA 163 (farm partnership/dispute about pre-emptive rights; farm value in excess of $50 million; counsel for successful parties).

Human rights
Andrew is acknowledged as one of New Zealand’s leading human rights lawyers. He has been active in this space for over 20 years. His most recent appearances include the following important decisions:

  • Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24 (disenfranchisement of serving prisoners/availability of declarations of inconsistency under the New Zealand Bill of Rights Act 1990, counsel for the intervenor, Human Rights Commission) (judgment of Supreme Court pending).
  • Brown v NZ Basing Ltd [2017] NZSC 139, [2018] 1 NZLR 245 (age discrimination against airline pilots; counsel for the intervenor, Human Rights Commission).
  • Spencer v Ministry of Health [2016] NZHC 1650, [2016] 3 NZLR 513.
  • Attorney-General v Spencer [2015] NZCA 143, [2015] 3 NZLR 449.
  • Electoral Commission v Watson [2016] NZCA 512, [2016] 2 NZLR 63 (freedom of expression/proper classification of satirical song and video under election broadcasting legislation; counsel for the intervenor, Broadcasting Standards Authority).
  • Attorney-General v IDEA Services Ltd [2013] 2 NZLR 512 (HC) (age discrimination; termination of funding for day services programme for intellectually disabled aged 65 and over; counsel for IDEA Services).
  • Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 (family status discrimination; refusal of funding for parent caregivers of adult disabled children; counsel for the intervenor, Human Rights Commission).

 

Seasoned advocate
Andrew has appeared as counsel in eight substantive hearings before New Zealand’s highest court, the Supreme Court. He has appeared very frequently before the Court of Appeal (over 35 times) and High Court (over 60 times) as well as the specialist ACC division of the District Court and other tribunals. He is an acknowledged appellate advocate, with a near encyclopaedic knowledge of the law. He is valued for his ability to focus on the big picture issues in a case, and ensure that the key points are isolated and debated.

Supreme Court experience
Andrew has extensive experience as counsel before New Zealand’s top court, the Supreme Court:

  • Attorney-General v Taylor [2018] NZSC (judgment pending) (whether New Zealand courts have power to issue declarations of inconsistency under the New Zealand Bill of Rights Act 1990; senior counsel for Human Rights Commission).
  • Brown v NZ Basing Ltd [2017] NZSC 139, [2018] 1 NZLR 245 (whether Hong Kong law governed pilots’ employment contract excluded age discrimination provisions of New Zealand Human Rights Act 1993; senior counsel for Human Rights Commission, intervenor).
  • J (SC 93/2016) v ACC [2017] NZSC 3 (Supreme Court’s jurisdiction to hear ACC appeals; lead counsel for ACC).
  • Co-counsel for the trustees in Clayton v Clayton [Vaughan Road] [2016] 1 NZLR 551 and Clayton v Clayton [Claymark] [2016] 1 NZLR 590 (the leading decisions on several aspects of trusts law including the treatment of trusts under relationship property legislation, powers, nuptial settlements, sham trusts; co-counsel for the trustees).
  • Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 (principles to be applied to security for costs on appeals to Court of Appeal; appointed amicus curiae by Supreme Court).
  • Environmental Defence Society Inc v NZ King Salmon [2014] NZSC 38, [2014] 1 NZLR 593 and Sustain Our Sounds Inc v NZ King Salmon [2014] NZSC 40, [2014] 1 NZLR 673 (Supreme Court’s leading decisions on proper interpretation of Resource Management Act 1991; counsel for NZKS).
  • Vector v Commerce Commission [2013] 2 NZLR 445 (challenge to Commerce Commission’s starting price reset for electricity lines input methodologies; counsel for Vector).
  • Westpac Banking Corporation v Commissioner of Inland Revenue [2008] 2 NZLR 709 (tax avoidance / discovery / relevance; counsel for BNZ).
  • Brown v Attorney-General [2005] NZSC 59, (2005) 8 HRNZ 1 (compensation for failure to approve legal aid to test Crown evidence that led to conviction and imprisonment; leave application).
  • Attorney-General v Zaoui [2005] NZSC 38, [2006] 1 NZLR 289 (interface between Immigration Act provisions on refugee status and national security threat; Crown counsel).
  • Morgan v Superintendent, Rimutaka Prison [2005] NZSC 26, [2005] 3 NZLR 1 (calculation of prisoner’s release date; senior Crown counsel).

 

Trial experience
Andrew has appeared in numerous civil trials before the High Court and tribunals including, for example:

  • Wylie v Wylie [2018] NZHC (relationship property / trusts litigation; 12 day trial) (judgment pending).
  • Kiwi Internet Marketing Ltd v Trent [2017] NZHC 1374 (period to meet statutory demand; 4 day trial).
  • Spencer v Ministry of Health [2016] NZHC 1650, [2016] 3 NZLR 513 (damages for unlawful discrimination; 5 day trial).
  • E-Trans International Finance Ltd v Kiwibank Ltd [2016] NZHC 1031, [2016] 3 NZLR 241 (closure of bank accounts of money transfer operator; contract / competition law; 9 day trial).
  • Seales v Attorney-General [2015] NZHC 1239, [2015] 3 NZLR 556 (legality of medically assisted dying; 3 day trial).
  • Pullington Investments Ltd v Kaiwarua-Ealing Ltd [2012] NZHC 2226 (appeal – [2013] NZCA 163) (partnership dispute; 2 day trial).
  • In re Forresters Nominee Co Ltd [2012] NZHC 1216 (investment scheme distribution; 2 day trial).
  • IDEA Services v Attorney-General [2011] NZHRRT 11 (unlawful discrimination; 6 day trial) (appeal – Attorney-General v IDEA Services [2013] 2 NZLR 512).
  • Carlin v Dolheguy (2010) 11 NZCPR 678 (breach of contract; 4 day trial).
  • PAE (New Zealand) Ltd v Brosnahan CIV 2005-485-843, 10 September 2008 (appeal – [2009] NZCA 611, (2009) 12 TCLR 626) (breach of contract / misrepresentation; 8 day trial).
  • BNZ Investments Ltd v Commissioner of Inland Revenue (2009) 24 NZTC 23,582 (cross border conduit transactions / tax avoidance; 11 week trial).
  • Pinpoint Pty Ltd v CIGNA Life Insurance NZ CIV-2004-485-2437 19 December 2007 (appeal – [2009] NZCA 41) (breach of contract; 5 day trial).

 

New Zealand public and constitutional law litigation and advisory work
Andrew is an acknowledged expert in the field of New Zealand public and constitutional law. He has been involved in much high profile litigation in this space and undertaken substantial advisory work. In the public law space, Andrew’s experience embraces both a Crown perspective (reflecting six years as Crown Counsel at the Crown Law Office and subsequently the provision of advice to a range of public actors while at Russell McVeagh) as well as the perspective of clients seeking to challenge decisions of Ministers, departments and public actors.

Andrew’s public law and constitutional law litigation has included work in the following areas:

(a)  Judicial review;
(b)  ACC;
(c)  Human rights.

In addition to this litigation work, Andrew’s advisory work has seen him give advice on matters such as:

(a)  the Official Information Act 1982;
(b)  the Crown Entities Act 2004, including the provision of advice to boards on the management of conflicts of interest;
(c)  the application of the Privacy Act 1993 to public sector organisations;
(d)  the Electoral Act 1993;
(e)  immigration law;
(f)  the proper approach to the interpretation of statutory powers, including by reference to general constitutional principles;
(g)  natural justice requirements;
(h)  engagement with regulatory agencies to ensure proper processes followed;
(i)  conflicts of interest.

Andrew has peer reviewed work, including draft reports, for a number of public entities including, for example, the Office of the Ombudsmen and the Parliamentary Commissioner for the Environment.

Andrew has participated in a number of public sector inquiries, including, for example, acting for Peter Hausmann and Healthcare of New Zealand Limited in respect of allegations of conflict of interest at the Hawkes Bay District Health Board, Voco Limited is respect of the Government-Shared Network conflicts of interest inquiry and Momentum Consulting in respect of a Defence Force inquiry.

Andrew was a member of the 2018 advisory group on the reform of the State Sector Act, an advisor on the Law Commission’s Search and Surveillance project and a member of the advisory group on the Law Commission’s Review of the Search and Surveillance Act (2017).

Together with former New Zealand Prime Minister, Professor Sir Geoffrey Palmer QC, Andrew has authored two books calling for a written constitution for New Zealand: A Constitution for Aotearoa New Zealand (2016) and Towards Democratic Renewal (2018).

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Maritime Tower,
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PO Box 1530,
Wellington 6140
Phone: +64 4 499 6040
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