Josh McBride

Biography

Josh was admitted to the bar in 1998. He specialises in complex commercial litigation, at both trial and appellate level, and has worked at leading litigation practices in Auckland, Sydney and London.

Josh's areas of practice include contract interpretation, shareholder/partner disputes, trade mark infringement, consumer law, joint ventures and partnerships, construction law, insolvency, fraud, administrative law, and professional negligence. Josh also acts for defendants, such as company directors, facing criminal proceedings brought by regulators.

Josh is a regular presenter at Law Society and Bar Association seminars and a faculty member of the NZLS Litigation Skills Programme. He is also involved with a number of charitable ventures in the creative sector, including the Basement Theatre Trust, of which he is a founding trustee.

Recent Experience

WARD EQUIPMENT LTD v PRESTON [2017] NZCA 444 Contract/intellectual property dispute. New Zealand licensee sought to prevent Australian licensor entering New Zealand market. Whether license agreement subject to implied term of termination by either party on reasonable notice to the other, and whether implication of term was exercise in contractual interpretation.

CLARK ROAD DEVELOPMENTS LTD v GRANDE MEADOW DEVELOPMENTS LTD [2017] NZHC 2589 Application for interim injunction to compel payments said to arise under construction contract. Whether claim to interim relief precluded by arbitration clause in contract and whether interim relief available compelling payment of damages.

ANDREWS PROPERTY SERVICES LTD v BODY CORPORATE 160361 [2017] 2 NZLR 772 (CA) Construction dispute concerning appropriateness of “overclad” cladding system for apartment complex in central Auckland. Whether builder obligated to ensure inspection by third party and warn owners of failure to inspect, and whether under a duty to undertake work outside of contract to ensure the building was code compliant.

ECOSTORE CO LTD v WORTH (2017) 15 NZELR 93 (HC) Claim alleging confidence, conversion and breach of copyright. Whether this was an employment relationship problem subject to the exclusive jurisdiction of the Employment Relations Authority.

CJ PARKER CONSTRUCTION LTD (IN LIQ) v KETAN [2017] NZCA 3 Construction dispute concerning validity of a builder’s payment claim under the Construction Contracts Act 2002. Builder’s payment claim rejected on basis that invoice did not properly explain the value of the construction work.

HAURAKI GULF ENHANCEMENT SOCIETY INC v AUCKLAND COUNCIL [2017] NZHC 1322 Judicial review proceeding alleging procedural impropriety, illegality and unreasonableness. Environmental group sought declaration that Auckland Council lease to golf club on Waiheke Island was unlawful and void. Society ordered to provide security for costs and subsequently liquidated. Minister of Conservation intervening and revoking Council’s delegated authority to approve lease.

WHANGAPARAOA COMMUNITY CENTRE PROJECT INC v THE WHANGAPARAOA COMMUNITY TRUST [2016] NZHC 951 Judicial review proceeding. Whether ratepayers’ association had authority to transfer community hall to charitable trust, and whether that decision was reviewable. Whether association and its members excluded from affairs of Trust and whether decision to reject membership applications was for improper purpose.

BERGMAN v BERGMAN [2015] NZCCLR 16 (CA) Joint venture dispute concerning dissolution of forestry venture and application for declaratory relief concerning alleged debt. Declaratory judgment sought - issue concerning onus of proof.

R v LYTTELTON [2015] NZHC 763 Historic online articles identified accused’s prior conviction. Whether this could prejudice a fair trial, as articles could be discovered using Google searches.

BODY CORPORATE 160361 (FLEETWOOD APARTMENTS) v BC 2004 LTD [2014] 3 NZLR 758 (HC) Causes of action assigned to defendant council under settlement agreement. Whether there was a genuine commercial interest and whether assignments of tort actions more restricted than assignment of contractual rights. Whether assignment frustrated or avoided apportionment considerations under the Law Reform Act 1936.

INTERCITY GROUP (NZ) LTD v NAKEDBUS NZ LTD [2014] 3 NZLR 177, (2014) 108 IPR 112 (HC) Complaints about a Google AdWords campaign using a trade marked name to trigger advertisements. Whether words likely to be taken as “use as a trade mark”. Claims of trade mark infringement, passing off, and misleading and deceptive conduct. Consideration of meaning of trade mark "use" in AdWords context, and "identicality" between the trade mark and the allegedly infringing sign.

P v P [2014] NZHC 2410 Constructive trust dispute. Overseas owner of Auckland shopping centre alleged to have concealed the true ownership of the property to assist the husband in a relationship property dispute. Whether sufficient evidence to support allegations, whether property held on express, resulting or constructive trust.

URSEM v CHUNG [2014] NZAR 1123 (HC) Arbitration provision in unsigned agreement. Whether clause binding on parties. Whether court to apply prima facie test for existence of valid arbitration agreement, or full merits review.

INTERCITY GROUP (NZ) LTD v NAKEDBUS NZ LTD (2013) 21 PRNZ 520 (HC) Discovery and confidentiality principles for electronic documents under new High Court Rules.

HERON’S FLIGHT LTD v NZ PROPERTIES INTERNATIONAL LTD [2012] 1 NZLR 424 (HC) Insolvency dispute concerning s310 of the Companies Act 1993 and its application to contested set-off claims.

CRAMPTON-SMITH v CRAMPTON-SMITH [2012] 1 NZLR 5 (CA) Consideration of circumstances in which a resulting trust can arise. Brother paid full price of land, sister registered land in own name and built houses on land. Whether a resulting trust and whether there was evidence to rebut presumption. Whether an account of profits was appropriate.

EXPLORE NZ (2004) LTD v FULLERS BAY OF ISLANDS LTD & MINISTER OF CONSERVATION [2011] 3 NZLR 449 (CA) Status of perpetually renewable lease on Urupukapuka Island in the Bay of Islands. Lease required a concession under the Reserves Act 1977 and Minister of Conservation had unlawfully renewed the lease.