Commercial
Examples of work include:
- Advising an oil and gas company in a breach of warranty claim in the course of the company’s purchase of another oil and gas company. Breach of warranty by vendor. Whether consent required for change in customer loyalty scheme. Application of requirement not to unreasonably withhold consent. Quantification of losses. Dispute settled.
- Representing the only aquarium in the south island of New Zealand against its landlord the Port of Marlborough. Commercial lease, expiry, alleged unconscionable conduct of landlord in denying right to renew. Ecoworld Aquarium Ltd v Port Marlborough New Zealand Ltd [2022] NZHC 3016. https://www.nzlii.org/nz/cases/NZHC/2022/3016.html
- Representing a law firm in a professional liability claim: Use of law firm’s trust account to hold deposits of investors in property development scheme. Property developer became insolvent. Claim by investors against law firm for misleading conduct. (NZ Court of Appeal: Ng and others v Harkness Law Limited and Anr https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZCA/2015/411.html?query=harkness )
- Acting for a national rest-home company making a substantial claim against its electricity supplier for overcharging over several years. Meaning and application of market-related pricing structure. Settled.
- Acting for an aeronautical engineering and services company in relation to a commercial dispute with an airline over provision of services. Engineering company reported misconduct of airline to CAA relating to misstatement in manifest. CAA suspended airline from operating. Engineering company claim for payment for engineering services. Counterclaim of alleged wrongful report to CAA.
- Acting for a bank, including advising its board on strategy, in relation to a substantial commercial relationship dispute with a national airline. Incipient dispute resolved.
- Advising the trustees of a trust managing the proceeds of a Treaty of Waitangi settlement on mediation and dispute resolution procedures.
- Represented the successful contractor Amey in LB Silica Sand v Central Bedfordshire Council/Amey LG Ltd. Landslip in quarry allegedly due to highway drainage maintenance works. Claim against highway authority and highway maintenance contractor. Negligence/Rylands v Fletcher/strict liability under s.100 of the Highways Act 1980. Ex turpi causa in relation to claimant’s alleged breach of the same section. Breaches of planning requirements. Whether an easement existed in relation to the relevant drainage. Geotechnical evidence – cause and severity of landslip. Result: Claim struck out (Ramsey J).
- Alleged negligence in the supply/installation/upgrading of corona discharge equipment for the treatment of polythene film.
- Holliday Pigments v WBB. Supply of kaolin china clay – allegations: clay mineralogy out of specification, causing failure of chemical process for producing ultramarine blue pigment. Acted for defendant (with Andrew Bartlett KC). Result: Claim discontinued shortly before trial.
- Finance company claiming return of loans under block agreement with CFA claims providers.
- “Battle of the forms” contractual dispute after destruction of railway maintenance equipment by vandals.
- Sale of goods, supply of services including skilled services. E.g. sole distribution agreement for computer hardware, design and installation of computer system.
- Contamination of wine bottling plant allegedly by defective water softener/absence of adequate filters – claim against manufacturers and designers of plant.
- Contamination of pharmaceutical powder during grinding – suitability for use in pharmaceutical applications – purity requirements pursuant to grinding contract.
- Escape of domestic fuel oil due to tank failure during delivery causing ground contamination and possible contamination of aquifer.
- Pipeline for sewage outfall, alleged defects.
- Former contributing editor, Emden’s Construction Law.
- Bailey v HSS Alarms EWCA, The Times 20.6.00. Negligence of burglar-alarm monitoring company. Contractual chain. Duty of care to property owner where not in direct contractual relationship.
Selected Cases
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Memberships
UK:
- Professional Negligence Bar Association
- Personal Injuries Bar Assocation
- Technology & Construction Bar Association
- The London Common Law and Commercial Bar Association
NZ:
- New Zealand Law Society
- New Zealand Bar Association
- New Zealand Insurance Law Association (2014 -2025)
- Wellington Medico-Legal Society (2014-2025)
Appointments:
- Director and Vice-chair of Lambeth Law Centre, 2004 – 2005
- Chair of charity Porters’ Progress UK, 2007-2012
- Governor of Dulwich Village Infants’ School, 2012-2013
- Board member of New Zealand Choral Federation, 2018 – 2022
- Board member of St Mark’s Church School, Wellington, New Zealand, 2019 – 2025. Chair, 2023-2025
- Member of Board selection panels: World Choir Games (2022), Inline Hockey New Zealand (2025)
Recommendations
“You did a stellar job on the Bank of New Zealand recovery.”
(Senior claims manager for Bank of New Zealand’s global property insurer)
“I couldn’t have done it without your direction.”
(Manager of biodiesel plant for NZ oil and gas company)
“Thank you so much for your tenacity.”
(Individual client)
“Toby has the rare combination of legal brilliance and exceptional communication, together with humility, respect, compassion and empathy.”
(Individual client – a doctor with a serious long-term injury)
“Toby’s clear, careful thinking, calm authority and principled approach make him an exceptionally effective barrister. His personal qualities of integrity, sound judgment and experience blend to produce the consistently strong outcomes he achieves.”
(Chief scientist at New Zealand Rugby)
“Methodical and persuasive.”
Legal 500 ((2016)
“He’s very approachable and responds very quickly with detailed advice.”
Chambers & Partners (2015)
“Highly regarded for his versatility.”
Chambers & Partners (2014)
“He provides excellent advice which leaves no room for doubt.”
Legal 500 ((2014)
“Excellent in the courtroom.”
Legal 500 ((2013)
