Simon Foote

Contact

Telephone: +64 9-307-8784

Mobile: +64 27-243-8370

[email protected]

Post: PO Box 1121, Shortland Street, Auckland, New Zealand 1140.

Simon is a commercial litigator focused on commercial and civil litigation and arbitration. He has particular expertise in complex construction and engineering disputes, shareholder disputes and international arbitration.

Simon’s construction experience includes three major cases about power stations. One of these culminated in a 10 month High Court trial involving multiple engineering disciplines. In another, Simon was briefed by Australian solicitors in international arbitration proceedings to act for a Japanese turbine manufacturer concerning the commissioning and performance of a geothermal power plant. Presently, Simon acts for the developers of major commercial and residential buildings at Alexandra Park.

Simon is regularly briefed by insurance companies, including in respect of disputes arising out of the Christchurch earthquakes.  He also acts for builders, architects, project managers and home owners in leaky building litigation.

Simon has broad experience in other commercial litigation.  He has conducted trials and arbitral hearings about dairy, arable and deer farms.  He has acted in numerous shareholder disputes; for a national shipping register; for boat builders, marina operators and a major online payment provider. He has acted for lessors and lessees in lease disputes and for private clients in defamation, family protection and family trust matters. Simon recently appeared as lead counsel for the New Zealand Bar Association in the Supreme Court in a case concerning the eligibility of  self represented lawyers and litigants in person for awards of costs.

Simon has a particular interest in investment treaty arbitration and has been claimant’s counsel in an investment treaty claim against Australia as well as advising corporates on investment treaty issues. Simon has a Diploma in International Commercial Arbitration and is presently a PhD Candidate in investment treaty law at Victoria University. Simon chaired the World Bar Conference session on investment treaties in September 2014, presented on the TPPA at the AMINZ Conference in 2016 and 2017 and appeared for AMINZ before the TPPA Select Committee.

Simon is a member of Bankside’s Singapore Chambers (with Sir Ian Barker QC, Sir David Williams QC, Hon Paul Heath QC and Campbell McLachlan QC) and is a Fellow of the Chartered Institute of Arbitrators (UK) and the Arbitrators’ and Mediators’ Institute of New Zealand. Simon has been appointed as an arbitrator in domestic and international arbitrations.

Simon spent three years as a Crown Prosecutor.  He is a member of the Crown Panel for Manukau City.  He is currently counsel for the Crown in a multi-defendant trial concerning indecent assault and obstruction of justice charges beginning in March 2019.

Recent and Notable Cases

  • Lead counsel for the New Zealand Bar Association in McGuire v Secretary for Justice: Supreme Court hearing concerning costs awards for self represented litigants.
  • Counsel (with Tom Weston QC) in litigation and arbitration proceedings concerning a commercial and residential development at Alexandra Park, Auckland (Canam Construction v Auckland Trotting Club).
  • Lead counsel for liquidator regarding ownership of equitable interests in a large commercial development in Queenstown (McCloy v Gapes).
  • Lead counsel for developers of a large residential subdivision South West of Auckland in dispute with former director (Khan v Kahawai Point Development).
  • Lead counsel in family dispute over estate property in Hamilton (Laboyrie v Mills).
  • Lead counsel in Trans-Tasman dispute about on-line payment systems.
  • Junior counsel (to Tom Weston QC) for a Japanese client in  international commercial arbitration proceedings concerning a geothermal power station.
  • Lead counsel in a domestic arbitration about the intra-family sale and value of a large parcel of arable farm land in South Canterbury.
  • Lead counsel in a High Court trial concerning misrepresentation in the sale and purchase of a Northland dairy farm (Aldrie Holdings v Prout).
  • Junior counsel (to David Goddard QC) for Vero Insurance in a High Court trial about earthquake damage to the Britten Motorcycle Museum (Prattley Enterprises v Vero Insurance) and lead counsel for Vero and AAI in other High Court earthquake related disputes.
  • Lead Counsel for a director of a log broking and shipping company in a $30 million shareholder dispute.
  • Junior counsel (to Joe Smouha QC and David Williams QC) for Philip Morris Tobacco in investment treaty arbitration against Australia concerning legislation mandating plain packaging of cigarettes (Philip Morris Asia v Australia).
  • Junior counsel (to Tom Weston QC) for Genesis Power in long running litigation against Carter Holt Harvey and Rolls-Royce concerning the construction and operation of a co-generation power plant in New Zealand.  This matter culminated in a ten month trial in the High Court in 2009-2010.
  • Lead counsel for AAI Insurance in Court of Appeal hearing concerning the existence of a settlement agreement in respect of commercial buildings damaged in the Christchurch earthquakes.
  • Lead counsel for the successful party in the Court of Appeal’s leading decision regarding director’s liability under the Fair Trading Act (Kinsman v Cornfields Ltd).
  • Lead counsel for the Taiwanese Shipping Register in successful defence of High Court litigation concerning a leaky ship involving complex jurisdictional and duty of care issues.
  • Lead counsel in High Court equitable claim concerning succession issues on a large family farming operation in the South Island.
  • Lead and junior counsel for the Crown in approximately 60 criminal trials involving a wide range of indictable offences.

Qualifications and Career

Simon has practiced as a barrister sole since 2002.  Prior to this, he spent five years as a litigator at Russell McVeagh, two years with the International Arbitration Team at Clifford Chance at London and three years as a Crown Prosecutor.

Simon graduated LLB (Hons) from the University of Canterbury in 1992.  He was admitted to the Bar in 1993.  He also holds a Diploma in International Commercial Arbitration (DipICArb, UK) and is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and the Arbitrators’ and Mediators’ Institute of New Zealand (FAMINZ (Arb)). He is currently a PhD Candidate at Victoria University of Wellington.  His thesis concerns corporate nationality and treaty shopping in investment treaty law, and is supervised by Professor Campbell McLachlan QC.

Simon has co-authored (with David Williams QC) a chapter in Evolution in Investment Treaty Law and Arbitration, Cambridge University Press, 2011 (Brown and Miles, ed) titled Recent Developments in the Approach to Identifying an ‘Investment’ Pursuant to Article 25(1) of the ICSID Convention.

He has also published the following articles:

  • The Hitchhiker’s Guide to the TPPA; What you need to know about investment protections and investor state dispute resolution, Simon Foote and Sam Jeffs, At the Bar, September 2016.
  • The Obligation of Arbitrators to Address all Issues Which Fall for Determination But No More, Asian International Arbitration Journal, 2014 (10), p.47, Simon Foote and James Herbert.
  • New Zealand: Appeal Court Affirms Pro-enforcement Approach, Global Arbitration Review, 27 February 2013, David AR Williams QC and Simon Foote.
  • Agreements to Arbitrate: the Severability of Illegal Contractual Promises, NZ Lawyer, Issue 203, 12, Simon Foote and Anja Borchardt.
  • Reflections on a Marathon Trial [2010] NZLJ 213, Tom Weston QC and Simon Foote.
  • Limitation Clauses [2010] NZLJ 317, Tom Weston QC and Simon Foote.
  • Caveat Mediator: Exceptions to Privilege for Settlement Negotiations, NZ Lawyer, Issue 170, 17, Simon Foote and Anja Borchardt.

Simon is a current Council member of the New Zealand Bar Association, was Deputy Chair of the Organising Committee for the World Bar Conference held at Queenstown in September, 2014 and was Chair of the organising committee for the 2016, 2017 and 2018 New Zealand Bar Association annual conferences.

Simon was a director of Bankside Chambers Limited, Auckland from 2012 – 2014 and Chairman in 2015.

Simon is a member of the Crown Panel for Manukau City.

Affiliations