Damian Chesterman

Contact

Telephone: +64 9-307-8775

Mobile: +64 21-848-048

[email protected]

Post: Bankside Chambers, Level 22, 88 Shortland Street, Auckland, New Zealand 1140.

Damian Chesterman is a commercial and civil barrister who combines over 20 years of trial experience with a strong academic background.

Damian is experienced in complex litigation and advisory work involving companies, trusts and individuals. His cases encompass directors’ and trustees’ duties, shareholder and beneficiary actions, equitable duties and remedies, contract and tort claims, the Fair Trading Act, misrepresentation and fraud. He is experienced in lease and land disputes and advises on defamation issues.

After completion of a Bachelor of Laws (LL.B First Class Hons) and Bachelor of Commerce (B.Com), Damian received a Master of Laws (LL.M Hons, International Law) from the University of Cambridge, England, where he attended on a Commonwealth Trust Scholarship. He was awarded the Pegasus Scholarship by the Inner Temple, London, through which he completed pupillages with renowned English Barristers and marshalled with the Chief Judge at The Old Bailey. Damian passed the New York Bar and is also admitted in England and Wales, New South Wales and the Australian Capital Territory.

Clients and colleagues who have observed Damian in trials have consistently described Damian as an effective cross-examiner who gives high quality and persuasive written and oral submissions. He is considered an excellent communicator who explains complex concepts in clear and simple language.

As a Crown Prosecutor, Damian was lead counsel in numerous criminal jury trials involving fraud, drug supply and serious assault and was junior counsel in manslaughter and murder trials.  His advocacy experience was further developed overseas. In Sydney he worked with Australia’s premier sports law firm, representing the Australian Olympic Committee in the lead-up to the 2000 Games, which involved blood doping prosecutions and disputes between sporting bodies. For over four years he practised in New York and London as a Senior Associate with a prominent New York product liability firm assisting in multi-billion dollar international litigation and arbitration.

Since returning to New Zealand in 2005, Damian has acted for prominent corporate entities and also individuals on high-profile litigation. These include Robt. Jones Holdings Ltd, one of New Zealand’s largest commercial property investment companies, and Duco Events Ltd, a renowned events company. For Duco, Damian successfully resolved a dispute with international television celebrity chef, Gordon Ramsay. For Robt. Jones, Damian’s most recent appearance was in the Court of Appeal in April 2018. He argued a voidable transaction case involving payments by Australian based entities over which the New Zealand courts had jurisdiction under the Insolvency (Cross-Border) Act 2006.

Damian was counsel in a landmark case against the Registrar-General of Land seeking compensation for a retired couple who were deceived out of the title to their home. This was the first case in the 140-year history of New Zealand’s land legislation to test a provision that allowed compensation for deprivation of land by fraud. Damian successfully achieved a compensation payment for the plaintiffs and the return of their title.

Damian’s depth of experience in land, trusts and leases resulted in his instruction in 2016 as lead counsel for a Maori Trust in a trial involving complex issues relating to Maori land, fiduciary duties of trustees and an unduly onerous lease. Damian achieved a successful judgment for the Trust which is now under appeal by the defendants. Damian will argue the case in the Court of Appeal in late 2018.

In 2017, Damian acted for a nation-wide construction company defending a Fair Trading Act claim by a competitor relating to an advertising campaign. Court action was avoided without any change to the advertising.

Damian’s approach to litigation is pragmatic and client focused. He understands that a client’s time and money are often better spent on their business than litigation. Where appropriate, he will explore all avenues for settlement to avoid the time, cost and uncertainty of trial. His focus on resolving claims has resulted in a number of cases being settled.

Since 2010, Damian has contributed many hours to his profession on a pro bono basis, educating young lawyers in advocacy techniques as a faculty member of the New Zealand Law Society Litigation Skills Course and as a member of the New Zealand Bar Association Training Committee.

Recent and Notable Cases

McCullagh v Robt. Jones Holdings Ltd [2018] NZCCLR 8 – Companies Act 1993, ss 2, 174, 241, 253, 291, 292, 294, 295, 296, 312 – Voidable transaction – Payments by third party Australian corporations – Insolvency (Cross-Border) Act 2006 (High Court Auckland, 5-day trial, representing Robt. Jones Holdings Ltd)

Staite v Kusabs [2017] NZHC 416 – Lease – Breach of fiduciary duty by trustee of Maori Trust – Conflict of interest (breach of loyalty / self-dealing) – Knowing Receipt – Laches – Land Transfer Act 1952 – Maori Land Law – Te Ture Whenua Maori Act 1993 – Breach of right of way easement – rectification of lease – Adjustment of boundary of Maori Reserve (High Court Rotorua, 2-week trial, representing Staite / Whaoa No.1 Lands Trust)

Burgess v Monk [2017] NZHC 3255 – Breach of Trustees and fiduciary duties – Estate – Will Trust – Constructive Trust – Knowing Receipt – Professional negligence (HC Hamilton, Heath J, 10-week trial, representing Burgess)

Canterbury Regional Counsel v Peacocke & Ors, HC Tauranga, CIV-2014-470-000133, 2016 (Wylie J)– Breach of directors’ duties – good faith, reckless trading, best interest of company (Representing defendant directors)

McCullagh v Robt. Jones Holdings Ltd [2016] NZCCLR 16 – Companies Act – Voidable transaction (High Court Auckland, representing RJHL)

Burgess v Monk [2016] NZAR 438 – Disclosure of documents by trustees and executors of estate; Setting aside privilege (High Court Rotorua, originating application, representing Burgess)

Re Gerbich HC Auckland, CIV-2016-404-1835, 13 October 2016 (Moore J) – Trustee Act, s 64 A, Inherent jurisdiction of Court – Amendment of power of appointment and variation of trust deed (High Court Auckland, originating application, representing beneficiaries)

Schmidt v Registrar General of Land [2016] 2 NZLR 121; (2015) 16 NZCPR 534 – Land Transfer Act – Land Transfer Fraud (High Court Auckland, representing Schmidt)

Robt. Jones Holdings Ltd v McCullagh [2016] NZHC 2529 – Application to set aside privilege and for further discovery, (High Court Review Auckland, representing Robt. Jones Holdings Ltd)

King v PFL Finance [2015] NZCA 517 – Receiverships Act – Breach of Receiver’s duties, Credit Contract Consumer Finance Act (oppression) (Court of Appeal Wellington, representing King)

Western Park Village Ltd v Baho (2014) 16 NZCPR 139 – Contractual Remedies Act – Misrepresentation – Breach of vendor warranty under residential sale and purchase agreement – Diminution of value of property – Foreign currency date of conversion (Court of Appeal Wellington, representing Western Park Village Ltd)

Staite v Kusabs [2014] NZHC 1183 (37 TCL 24/7) – Breach of fiduciary duty – Laches – Limitation by analogy – Elements of breach of fiduciary duty of loyalty (High Court Hamilton, representing Staite / Whaoa No.1 Lands Trust)

Burmeister v Registrar General of Land (2014) 15 NZCPR 871 – Land Transfer Act – Measure of compensatory damages against RGL for deprivation of land by fraud – Land Transfer Act 1952, ss 172 and 179 (High Court Auckland, representing Burmeister)

Burmeister v Registrar General of Land (2014) 15 NZCPR 91 – Land Transfer Act 1952 – Liability of Registrar-General for compensation claim under s 172(b) of the Act for deprivation of land by fraud – Non est factum – Contributory negligence – Land Transfer Act 1952, ss 63, 172, 175, 179 and 183 (High Court Auckland, 1-week trial, representing Burmeister)

King v PFL Finance Ltd [2014] NZHC 250– Receiverships Act 1993 (breach of receiver’s duties) – Credit Contracts Consumer Finance Act 2003 (oppression) – Property Law Act 2007, s 119 Notice – Fair Trading Act 1986, s 9 (High Court Auckland, 5-week trial, representing King)

The Real Estate Agents Disciplinary Tribunal v Morgan [2014] NZREADT 82 – Agency – Misconduct under s 73 of Real Estate Agents Act – Alleged double commission – Definition of Real Estate Agent Work – (Real Estate Agents Disciplinary Tribunal, Auckland, 3-day trial, representing Morgan)

Western Park Village Ltd v Baho (2014) 15 NZCPR 180 – Sale and Purchase Agreement – Contractual Remedies Act 1979, s6 – Breach of vendor warranty – Misrepresentation – Foreign currency mortgage – Property Law Act 2007, s 119 (High Court Auckland, 2-week trial, representing Western Park Village Ltd)

Duco Limited v Gordon Ramsay & Ors CIV-2010-404-7815 – Breach of contract – Celebrity performance contract (High Court Auckland, settled 2012, representing Duco Ltd)

Wheeler v Miro Feeds Ltd CIV-2013-419-528 – Contractual Remedies Act 1979, s 6; Sale of Goods Act 1908, s 16 (implied conditions), Fair Trading Act 1986, s 9, 10, 13, Breach of contractual warranties – re supply of animal feed (High Court Hamilton)

Registrar-General of Land v Burmeister (2012) 13 NZCPR 504 (CA) – Land Transfer Act 1952 – Limitation period under s 180(2) of the Land Transfer Act for a claim for compensation for deprivation of land by fraud (Court of Appeal Wellington, representing Burmeister)

Robt. Jones Holdings Ltd v Prime International College Ltd HC Auckland, CIV-2012-404-3584 – Liquidation (representing RJHL)

Casares v Oktobor Group Ltd [2012] NZHC 606 – Freelance agreement – Quantum Meruit – Commission (High Court Auckland, representing Oktobor Group Ltd)

Coffey v Coffey [2012] NZHC 1765 –Property Law Act 2007, s 339(1) – Application for division of property (High Court Napier, representing defendant)

Burmeister v Registrar-General of Land [2011] 2 NZLR 678; (2011) 12 NZCPR 704 (HC) – Land Transfer Act 1952 – Indefeasibility of title – Limitation period under s 180(2) of the Land Transfer Act for a claim for compensation for deprivation of land by fraud (High Court Auckland, representing Burmeister)

TGB Holdings Ltd v BFP Trustees No 1 Ltd & Ors HC Whangarei, CIV-2009-488-000566, 8 April 2011 (Venning J) – Freezing order – rule 32 High Court Rules (represented BFP Trustees No 1 Ltd)

Johnston v Schurr [2011] NZFLR 114 (HC) Protection of Personal and Property Rights Act 1988 – Breach of statutory duty – Professional negligence (High Court, New Plymouth, 2-week trial, second counsel – representing Johnston)

Robt. Jones Holdings Ltd v Matias, DC Wellington CIV-2010-085-1214, 24 May 2011 – Breach of lease, abandonment, failure to make good, loss of bargain damages (representing Robt. Jones Holdings Ltd)

Bloor v IAG New Zealand Ltd [2010] BCL 314; HC Rotorua CIV-2004-463-425, 19 March 2010 –Insurance – Replacement cover – Alleged material non-disclosure – liquor wholesale outlet and bar destroyed by fire – threats from gang members against publican (2 ½ week trial, representing Bloor)

Burmeister v O’Brien [2010] 2 NZLR 395; (2011) 12 NZCPR 9; (2009) 12 TCLR 539 (HC) – Land Transfer Act 1952 – Fraud – Deceit – Knowing Receipt – Dishonest Assistance – Fair Trading Act 1986 – Solicitor negligence (High Court, Hamilton, 2-week trial, representing Burmeister)

Robt. Jones Holdings Ltd v Northern Crest Investments Ltd (2010) 11 NZCPR 206 – Breach of commercial lease (abandonment, failure to make-good) – loss of bargain damages (High Court Auckland – representing Robt. Jones Holdings Ltd)

Yang v Chen, HC Auckland, CIV-2007-404-001751, 1 April 2010 (Hugh Williams J) – Contempt of Court – Impact of judgment in related Australian proceeding on solicitor’s undertaking (representing Chen)

Shinton v Equvet Consultancy Ltd, CIV-2008-454-408 – Fair Trading Act 1986, Consumer Guarantees Act 1993, Negligence – sale of dressage horse to purchaser in Canada, horse allegedly lame on arrival at USA port (High Court Auckland, representing defendant syndicate members)

Decke v Almao & Greene Ltd CIV-2009-470-182 – Negligence – Under valuation of reinstatement cost for commercial premises destroyed by fire (High Court Tauranga, representing Plaintiff)

Northern Crest Investments Ltd v Robt Jones Holdings Ltd (2009) 10 NZCLC 264,515; (2009) 19 PRNZ 258 (HC) – Statutory demand (Application to set aside) – Breach of commercial lease (High Court Wellington, representing Robt. Jones Holdings Ltd)

Brownlie Brothers Ltd v Lowry [2010] DCR 371 (DC) – Interim injunction – Beverage distribution agreement – Restraint of trade – Lowry switched from distributing Pinto beverages to distributing Simply Squeezed beverages (District Court Auckland, Injunction, representing Lowry)

Robt. Jones Holdings Ltd v Bangerter, HC Auckland, CIV-2008-404-3474, November 2008 – Lease – Breach of Personal Guarantee (representing Robt. Jones Holdings Ltd)

Burmeister v O’Brien [2008] 3 NZLR 842; (2009) 9 NZBLC 102,415 (HC) – Indefeasibility under the Land Transfer Act 1952 – Imputation of fraud of agent solicitor to principal bank – Credit Contract Consumer Finance Act 2003 (High Court Rotorua, representing Burmeister)

ASC Company v NZ Company – 2008 – sale and purchase agreement for coal mine (4-day Arbitration, second counsel, representing NZ Company)

Wall v Gannon HC Rotorua CIV-2006-463-239, 25 May 2007 – Land Transfer Fraud – Breach of contract – Buy back transaction (High Court Rotorua, 3-day trial, representing Gannon)

Burmeister v O’Brien (2006) 7 NZCPR 440; (2006) 11 TCLR 737 (HC) – Indefeasibility under the Land Transfer Act 1952 – Imputation of fraud of agent to principal – Credit Contract Consumer Finance Act 2003 (High Court Rotorua, representing Burmeister)

Merrie v Ministry of Economic Development HC Rotorua, CRI-2006-470-000022 (Winkelmann J) – Bankruptcy and Insolvency – leaving NZ without consent of Official Assignee – Discharge without conviction – Sentencing Act 2002, s 106 (Appeal, representing Merrie)

Wisely Holdings Ltd v Sky City Entertainment Group Ltd 2006-004-2529 – Bailment – Negligence – Consequential damages – parking valet crashed plaintiff’s Porsche (District Court Auckland, representing Wisely Holdings Ltd)

Police v Anderson [1997] 1 NZLR 324 (Tompkins J) – Criminal law – Bail – Estreatment of bail bond – Accused failing to appear – Liability of sureties – bail bond of $30,000 for an accused charged with importing heroin and who had breached bail conditions (High Court Rotorua, junior counsel (Crown Prosecutor) representing Police)

Qualifications and Career

Degrees

  • LL.M (Hons) (International Law), University of Cambridge, England (1999)
  • B.Com, University of Auckland, New Zealand (1996)
  • LL.B (First Class Honours), University of Waikato, New Zealand (1994)

Bar Admissions:

  • New York (2003)
  • England and Wales (2001)
  • New South Wales (1998)
  • Australian Capital Territory(1998)
  • New Zealand (1995)

Scholarships

  • Pegasus Scholar, Inner Temple, London (2 Crown Office Row, 3 Raymond Buildings (Grays Inn), The Old Bailey) (1999)
  • Cambridge Commonwealth Trust Scholar, University of Cambridge (1998-1999)

Professional:

  • 2005 – present: Barrister
  • 2000 – 2004: Senior Associate, Chadbourne & Parke, LLP, New York; London (Product Liability: tobacco and pharmaceutical company defence litigation)
  • 1999: Pegasus Scholarship: pupillage at 2 Crown Office Row, Inner Temple, London; pupillage at Three Raymond Buildings, Gray’s Inn, London; marshalling with Judge Hyam, The Recorder of London (Senior Judge of the Old Bailey)
  • 1998: Staff Solicitor, Browne & Co, Sydney Staff Solicitor (representation of the Australian Olympic Committee in the lead up to the 2000 Olympic Games)
  • 1996 – 1998: Crown Prosecutor, Davys Burton, Crown Solicitors, Rotorua (Criminal Law: jury trials, summary proceedings and appeals)
  • 1995 – 1996: Staff Solicitor, Minter Ellison, Rudd Watts, Auckland (Insolvency Law, Commercial law)
  • 1994 – 1995: Legal Clerk, Minter Ellison, Rudd Watts, Auckland
  • 1992 – 1993: Summer Clerk, Minter Ellison, Rudd Watts, Auckland

 

Affiliations

Affiliations

  • Member of New Zealand Law Society
  • Faculty member for New Zealand Law Society Litigation Skills Courses
  • Member of Property Law Section of New Zealand Law Society
  • Member of New Zealand Bar Association
  • Member of New Zealand Bar Association Training Committee
  • Member of Legal Research Foundation
  • Member of Bankside Chambers
  • Fellow of Cambridge Commonwealth Society