Tim Smith

Written By Phil Houghton

Listed as a leading individual for commercial disputes in The Legal 500, Tim has over 20 years of experience in litigation, acting for both commercial and public sector clients, and has appeared as counsel in a number of New Zealand’s leading cases in the fields of public law, tort, contractual interpretation, energy, insolvency, tax, competition and litigation funding.  He has appeared regularly in courts and tribunals in both the United Kingdom, where he practised as a barrister in London, and New Zealand - including as lead counsel at all levels of the New Zealand court system.  He also has extensive experience in mediations.

Prior to joining the independent bar in New Zealand, Tim was a partner at Bell Gully, having previously been a partner at the Wellington Crown Solicitor’s Office, Luke Cunningham Clere, and, before that, Crown Counsel in, and Deputy Team Leader of, the tax and commercial team of the Crown Law Office. He has also worked in the litigation department of Russell McVeagh, been a barrister at 4 New Square (a leading set of commercial chambers in London) and a research assistant to the Chairman of the Law Commission of England and Wales (now Lord Carnwath).  

In addition to litigation and general advisory work, Tim is also experienced in working on public inquiries, regulatory investigations and advising on legislative reform and the writing of public reports.

  • Company law/Insolvency

    • Advice and representation to the Companies Office, the Official Assignee, liquidators, company directors and other commercial entities arising out of company law and insolvency matters.

    • Cases include being:

      • Lead counsel for Westland Co-operative Dairy Company Ltd in obtaining approval for a scheme of arrangement under Part 15 of the Companies Act 1993: Re Westland Co-operative Dairy Company Ltd [2019] NZHC 1683.

      • Lead counsel for liquidators in matters arising from the “Arena” Ponzi scheme: Graham v McNicholl [2019] NZHC 1973; Graham v Tyler and Chipmunk One Limited [2019] NZHC 430.

      • Lead counsel for the Registrar of Companies in appeals against his decision to ban certain directors following the collapse of South Canterbury Finance, including opposing discovery orders in relation to exercising powers under section 385 of the Companies Act 1993: Brand v Registrar of Companies [2016] NZHC 2983.

      • Junior counsel for liquidators funded by LPF Group in a claim against PwC (as auditors) and the directors of Property Developments Ltd, including defending PwC’s challenge to the liquidators’ funding agreement: Walker v Forbes [2015] 3 NZLR 831 (and appearing as junior counsel on the papers in the Supreme Court: PricewaterhouseCoopers v Walker [2018] 1 NZLR 735). See also Walker v Official Assignee [2014] NZHC 975 (appearing as lead counsel) regarding whether a proof of debt was “evidence” for the purposes of section 233 of the Insolvency 2006 and Walker v Forbes [2013] NZHC 412 regarding seeking leave to proceed against a bankrupt.

      • Lead counsel for liquidators in striking out aspects of claims for breach of the New Zealand Bill of Rights Act 1990 and breach of privacy: Henderson v Slevin [2015] NZHC 366.

      • Lead counsel for a liquidator in the Court of Appeal in a case concerning whether a liquidator may issue a statutory demand for a debt owed to a company in liquidation at a time when a receiver has been appointed by a secured creditor, the debt forms part of the secured assets, and the secured creditor has not surrendered the security: Gibbston Downs Wines Ltd v Property Ventures Ltd (in rec and liq) [2013] NZCA 546.

      • Junior counsel for the Official Assignee in the Court of Appeal in a case concerning appeals from decisions of the Official Assignee: Glynbrook 2001 Limited v Official Assignee for New Zealand [2012] NZCA 289.

      • Lead counsel for the Attorney-General in an application to set aside a bankruptcy: Farrow v Attorney-General, HC Wellington, 4/5/2010 – CIV-2010-485-515.

    Energy/Mining

    • Advice and representation on a broad range of energy and mining matters for both regulators and commercial clients, including in confidential arbitrations.

    • Cases include being:

      • Lead counsel for GXL Royalties Ltd (a Todd subsidiary) in proceedings against Greymouth Gas Kaimiro Ltd in relation to access to data under a royalties agreement – including challenging confidentiality claims: GXL Royalties v Greymouth Gas Kaimiro Ltd [2015] NZHC 1076.

      • Lead counsel assisting the Environmental Protection Authority Decision Making Committee appointed to consider the OMV Mauri Field Development marine consent application (being the first application in relation to works in the Exclusive Economic Zone (EEZ) under the EEZ and Continental Shelf (Environmental Effects) Act 2012).

      • Lead counsel for Maritime New Zealand in a District Court case challenging the correctness of another District Court decision which had limited criminal jurisdiction under the Maritime Transport Act 1994 to the edge of New Zealand’s territorial sea: Maritime New Zealand v Page [2013] DCR 102.

      • Junior counsel (oral argument was split evenly between counsel) for the Minister of Energy in a claim brought against him by Greenpeace and an iwi group seeking judicial review of the Minister’s decision to grant an offshore mining licence to Petrobras: Greenpeace of New Zealand Incorporated & Anr v The Minister of Energy and Resources & Anr, HC WN CIV-2011-485-1897 [2012] NZHC 1422 (22 June 2012).

      • Amicus curiae in a declaratory judgment proceeding regarding the interpretation of the Electricity (Hazards from Trees) Regulations: Marlborough Lines Ltd v Cassels HC WN CIV-2010-406-147 [2012] NZHC 9.

      • Junior counsel for the Crown at the Royal Commission of Inquiry into the Pike River Tragedy.

      • Lead counsel for the Attorney-General in a claim bought against him (for the Minister of Energy) and Rio Tinto relating to a dispute regarding ownership of a major minerals permit, including on issues regarding representation: Iron Ore New Zealand Ltd v Rio Tinto Mining & Exploration Ltd (2010) 20 PRNZ 478.

      • Junior counsel for Bay of Plenty Electricity Limited (a Todd subsidiary) in a contractual dispute with Vector (presenting oral argument in the Court of Appeal on the issue that would ultimately go to the Supreme Court): Vector Gas Ltd v BoPE [2010] 2 NZLR 444.

    Competition/Fair Trading

    • Advice and representation on competition law issues and Commerce Commission investigations.

    • Cases include being:

      • Junior counsel for the Attorney-General as intervener in a Supreme Court case concerning the meaning of “use” of market power in s 36 of the Commerce Act: Commerce Commission v Telecom Corporation of New Zealand [2011] 1 NZLR 577.

      • Junior counsel for Bay of Plenty Electricity Limited in the trial of a proceeding alleging breaches of sections 27 and 36 of the Commerce Act 1986: Commerce Commission v BoPE, HC Wellington, 13/12/2007, CIV-2001-485-917.

      • Lead counsel for Bay of Plenty Electricity Limited in a preliminary issue in the above proceeding on privilege and in-house counsel: Commerce Commission v BoPE (2006) 18 PRNZ 191.

      • Lead counsel for Todd and various subsidiaries on appeal following Todd’s successful defence of a Fair Trading Act prosecution in the District Court: Commerce Commission v Vero Insurance New Zealand Ltd & Ors (2006) 11 TCLR 779).

    Tax

    • Advice and representation on tax issues arising in a litigation context.

    • Cases include being:

      • Lead counsel for the Commissioner of Inland Revenue in litigation relating to the so-called Trinity Scheme (one of New Zealand’s largest tax avoidance schemes), including in the Supreme Court in seeking the revoking of leave to appeal: Muir v CIR [2016] NZSC 113, (2016) 27 NZTC 22-067. See also Muir v CIR (2015) 27 NZTC 22-34 (CA); Muir v CIR [2015] NZHC 2855; Redcliffe Forestry Venture Limited v CIR [2012] 2 NZLR 823 (CA); [2011] 1 NZLR 336 (HC); (No 2) (2010) 24 NZTC 24,079 23,991; (No 3) (2010) 24 NZTC, 24,079; Accent Management Limited v CIR (2010) 24 NZTC 24,126 and TRA No 042/03 (2011) 25 NZTC 1-006.

      • Junior Counsel for the Commissioner of Inland Revenue in the Supreme Court in New Zealand’s leading case on the scope of the High Court’s jurisdiction: CIR v Redcliffe Forestry Venture Limited [2013] 1 NZLR 804.

      • Lead counsel for the Commissioner of Inland Revenue in a case clarifying the meaning of “the principal purpose of making taxable supplies” in the GST Act 1985: CIR v Trustees in the Mangaheia Trust (2009) 24 NZTC 23,711.

    Other public law/commercial matters

    • Advice and representation on a broad range of other public law and commercial matters.

    • Cases include being:

      • Lead counsel for WorkSafe New Zealand and the Machinery Inspector in a judicial review of the Inspector’s decision under the Amusement Devices Regulations: Off Road New Zealand (1992) Ltd v The Machinery Inspector and WorkSafe New Zealand [2019] NZAR 1712.

      • Lead counsel for the Police in three substantial appeals against councils’ local alcohol policies in Auckland, Wellington and Tasman (dealing with opening hours of both on and off licence premises): Redwood Corporation v Auckland City Council [2017] NZARLA PH 247; B&M Entertainment v Wellington City Council [2015] NZARLA PH 21 and Hospitality New Zealand v Tasman District Council [2015] NZAR 156.

      • Lead counsel for the Commissioner of Patents, Trademarks & Designs in striking out an appeal under the Patents Act 1953: Faloon v Commissioner of Patents, Trademarks & Designs [2015] NZHC 853.

      • Lead Counsel for the New Zealand Law Society in opposing leave to appeal a decision regarding security for costs: Orlov v New Zealand Law Society [2015] NZSC 8.

      • Lead counsel for the Police in an appeal against a decision to grant an on-license to the owner of an adult entertainment venue: Police v Casino Bar (No 3) Ltd (in rec) [2013] NZAR 267 (and lead counsel in the subsequent re-hearing of the application for the on-licence).

      • Lead counsel for the Capital and Coast District Health Board in a claim concerning specific performance of an oral agreement to lease: Weine v Capital and Coast District Health Board (2012) 14 NZCPR 157.

      • Junior counsel for the Attorney-General in the Supreme Court case confirming that the Crown can bear no liability for leaky home syndrome: North Shore City Council v Attorney-General [2012] 3 NZLR 341 (SCNZ).

      • Lead counsel for the Commissioner of Patents, Trademarks and Designs in an appeal raising issues concerning the scheme of the Trade Marks Act: The Muir Electrical Company Pty Ltd v The Good Guys Group Ltd (2011) 91 IPR 673.

    • Listed as a first tier leading barrister sole for commercial disputes in the 2024 edition of The Legal 500.

    • Member, Pegasus Scholarship Committee (choosing young New Zealand lawyers to attend English barristers’ chambers as Pegasus Scholars).

    • Member, New Zealand Bar Association.

    • Member, New Zealand Law Society.

    • Former Member of Commercial Bar Association, Professional Negligence Bar Association and London Commercial Law Bar Association (all UK).

  • Publications

    • “Balancing corrective justice and indeterminate regulator liability: The Court of Appeal’s decision in Strathboss”, Law Talk, May 2020.

    • “The interpretation of contracts – a lordly extrajudicial conflict and its potential significance for New Zealand” (jointly with Sam Cathro), Law Talk, February 2019.

    • “Kiwifruit and the Crown: Expanding regulator liability in Strathboss” (jointly with Duncan McLachlan), Law Talk, August 2018.

    • “Lange defamation decision rejected by English Court of Appeal”, Law Talk, August 1998 – Winner of Law Talk Writer’s Award 1998.

      Seminars and conferences

    • “Mainzeal – Directors’ duties and risks” (presentation for New Zealand Law Society – Continuing Legal Education Commercial Case Law Intensive): November 2019.

    • “Director and officer insurance and indemnities” (presentation at Legalwise Directors and Officers conference): March 2019.

    • “Expanding Crown and regulator liability” (presentation to Crown Entity Lawyers Aotearoa): September 2018.

    • “The Crown Minerals Act Review – Concerns and Operability” (panellist at New Zealand Petroleum Summit 2012): September 2012.

    • “The Crown Minerals Act Review” (presentation to government lawyers on invitation of New Zealand Petroleum and Minerals): 2012.

    • Tim was admitted to the New Zealand bar in 1998 and as a barrister of the Inner Temple in London in 2001. He holds LLB (First Class Hons.) and BA (History) degrees from the University of Otago. Tim also hold an LLM (First Class Hons.) from the University of Cambridge, where he was on a full scholarship as a Chevening Scholar and Evan Lewis-Thomas Scholar of Sidney-Sussex College. Tim was also a Chapman Scholar of the Inner Temple, being one of the three top Inner Temple Scholars in his year at Bar School in London.

Phil Houghton http://www.houghtoncreative.co.nz
Previous

Matthew Smith
Next

Taz Haradasa