NEW ZEALAND Trends and Developments Contributed by: Fionnghuala Cuncannon and Kate Muirhead, Cuncannon
Overview This article focuses on four key litigation trends and developments in New Zealand, relating to: • the uptick in climate litigation; • the continued innovation of the New Zealand courts in relation to class actions; • a reset of the civil procedure rules; and • other areas of law reform (including companies and directors’ duties, competition and antitrust, and insurance contracts). Climate litigation Mirroring international trends, New Zealand is expe- riencing growth in climate-related litigation. In par- ticular, there is an increasing number of proceedings brought in New Zealand: • challenging the substance of the government’s climate targets or policies that affect New Zealand, including in relation to emissions reduction plans; and • seeking more recognition for climate considera- tions in public decisions or policies. One case seeking to impose duties on corporates in relation to their contributions to climate change is pro- ceeding to trial. The plaintiff, Mr Smith, alleges public nuisance, negligence and a novel tort alleging specific duties in respect of climate change. The defendants are seven major New Zealand corporates. The Court of Appeal struck out the proceedings. The Supreme Court (New Zealand’s final appellate court) reinstated the claim in 2024. The trial is scheduled for 15 weeks beginning in April 2027. A greenwashing case was filed in late 2024 against a major energy industry participant, Z Energy, seeking declarations that Z had breached consumer protec- tion legislation in relation to an advertising campaign. In November 2025, it was announced that the pro- ceeding had settled without any admission of liability or payment. Z Energy apologised for any confusion caused by parts of the advertising campaign at issue and to any customers who thought Z was going to stop selling petrol any time soon.
In 2021, Students for Climate Solutions Inc (SFCS) sought judicial review of decisions of the Minister of Energy and Resources, arguing that the Minister, in granting petroleum exploration permits under the Crown Minerals Act 1991, had failed to adequately consider the effects of the exploration on climate change. The proceeding failed in the High Court. SFCS appealed unsuccessfully to the Court of Appeal. The Supreme Court granted leave to appeal. Without limiting the scope of the appeal, the Court directed counsel to address whether the climate change con- siderations set out in another enactment are manda- tory, permissive or irrelevant considerations when granting a petroleum exploration permit. The appeal was heard in May 2025. As of October 2025, the reserved judgment has not yet been delivered, and New Zealand is yet to see proceedings filed: • challenging the management of transition risk by directors, officers and others; • seeking damages from private polluters; or • challenging funding to projects or activities that do not align with climate action goals. Class actions New Zealand courts are continuing to innovate in order to address the issues arising from class actions (referred to in New Zealand as representative actions). The availability of common fund orders (CFOs) is a recent example. A CFO provides for a funder’s remu- neration to be fixed as a proportion of any monies recovered in the proceedings, for all class members to bear a proportionate share of that liability, and for the liability to be discharged as a first priority. In July 2024, the Court of Appeal confirmed that the High Court has jurisdiction to make CFOs in a representative action, and that CFOs may be made as early as possible ( Simons v ANZ Bank New Zealand Ltd [2024] NZCA 330). The Supreme Court declined leave to appeal. 2025 has also seen legislative activity targeting repre- sentative action litigation. The government introduced draft legislation designed to retrospectively amend the consumer finance legislation provisions at issue in the Simons case. The defendants are two major
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