Mark O'Brien

Biography

Mark has 30+ years’ experience as a successful commercial litigation lawyer and advocate.

His areas of practice include company, competition, contract, insolvency, insurance, oil and gas, property, trusts, and testamentary cases.

He joined the independent Bar in 2013 and was appointed Queen’s Counsel in 2015.

Prior to this, he was a senior litigation partner with Bell Gully. He started there in 1985 after two years with a London firm, became a partner in 1988 and was Deputy Chairman from 2003 to 2008.

He is regularly involved in the resolution of complex disputes through litigation, arbitration, mediation and negotiation.

Chambers Global comments that he is an astute and highly accomplished advocate adding that “he combines a very good focus on what is commercially sensible with an accurate view of what is legally achievable and realistically negotiable”.

He has also been recognised as a leading litigation and dispute resolution lawyer by other international legal guides including Who's Who Legal which recommends him as a national leader for litigation and for restructuring & insolvency.

Mark is also a member of Stout Street Chambers in Wellington.

Recent Experience

Litigation


CBL LTD v PWC & ORS (2019 – ongoing) Company law / Contract. Acting for PwC (defendant). Claim by liquidators of failed insurance group against directors and actuaries and others for breach of duty. PwC sought successfully to confine case, via interlocutory application, to liability limits specified in the engagement terms. Ongoing.

MAINZEAL LTD v YAN, SHIPLEY & ORS (2017 – ongoing) Company / Insolvency. Acting for liquidators and company on a significant claim against directors for ‘reckless trading’ over an extended period. High Court and Court of Appeal judgments in favour of liquidators / company. Ongoing.

VECTOR v INTELLIHUB NZ (2019-2021) Employment law / Tort. Acting for defendant on claims by Vector in respect of an employee team move from Vector to Intellihub NZ, a competitor in metering services. Ultimately resolved by agreement.

WINC AUSTRALIA PTY v NXP HOLDINGS (2019-2020) Contract / Trade Marks / Fair Trading. Acting for claimant. Application to secure interim injunction to restrain use of trade marks and similar names or marks following sale of business, where both parties continued as participants in the office supplies industry, with both selling via e-commerce platforms.

NZ IRONSANDS v TOWARD INDUSTRIES & ANOR (2018 - 2020) Contract. Acting for plaintiff. Claim by intending buyer against seller for alleged failure to use contractually required ‘all reasonable endeavours’ to achieve conditions precedent in a share sale agreement. Settled in the course of the trial.

METLIFECARE LTD – TAKEOVER (2020) Contract / Company / Takeovers. Acting for bidder on takeover contract termination. Bidder (an EQT Partners company) committed to a $1.5 billion takeover contract with Metlifecare (retirement villages) as target in December 2019. In March 2020 the Covid-19 pandemic emerged and led to a first national lockdown. Bidder terminated for ‘material adverse change’, defined to require an event causing a likelihood of significant loss of asset values or projected profit. Such provisions had been invoked only very rarely. The termination was contested but the matter settled later on 2020, in improved conditions, via a new arrangement at a significantly lower bid price.

ABANO HEALTHCARE GROUP LTD – TAKEOVER (2020) Contract / Company / Takeovers. Acting for bidder on termination. Similar to Metlifecare matter. Bidder committed to a takeover contract with Abano (dentistry) as target in late 2019 and terminated for ‘material adverse change’ after the Covid-19 pandemic in March 2020. Termination accepted.

NZME LTD v NINE ENTERTAINMENT CO – STUFF LTD (2020) Contract / Competition. Advising Stuff ’s NZ directors on issues arising with Covid-19, on concurrent purchase bid by competitor (NZME) and its application for regulatory approval of bid, on opposition to injunction to preclude sale to management and (peripherally) on successful management buy-out.

SKY NETWORK TV v TVNZ LTD, STUFF LTD & ORS (2016-2018) Copyright. Acting for Stuff (defendant). Claim by Sky TV against several media outlets for alleged breach of copyright through regular publication of segments of Sky recordings of major sports events. Defence of ‘fair dealing’, allowing use of copyright material for news reporting. Resolved by agreement on protocol allowing continuation of practice but under agreed arrangements.

WHITE v JAMES HARDIE NZ & ORS (2018) Tort / Product Liability / Company law. Acting for claimant group on initial critical hearing to maintain joinder of JH group parent on basis of potential responsibility for conduct and products of subsidiary.

SOUTHERN RESPONSE UNRESOLVED CLAIMS GROUP v SOUTHERN RESPONSE EARTHQUAKE SERVICES (2016-2018) Insurance / Class Actions. Acting for insurer. First application to bring class action by Canterbury earthquake insureds. High Court and Court of Appeal hearings and judgments. Ultimately resolved by individual settlements and agreement on an innovative alternative dispute resolution process. Class action did not proceed.

GREEN v GREEN (2016-2021) Trusts / Wills / Undue Influence. Acted for family on an appeal on testamentary will and trustee appointment issues, and related undue influence findings, concerning significant family holdings. Later resolved by agreement on separation of interests. The family interests were further restructured for philanthropic purposes by consent and court approval in 2021.

NZLG INSURANCE CORP v R+V VERSICHERUNG AG (completed 2015) Reinsurance / Insurance. Acting for an international reinsurer in complex court and arbitral proceedings concerning reinsurance and insurance claim issues arising out of the 2011 Canterbury earthquakes. Ultimately resolved by multi-party agreements.

GREYMOUTH HOLDINGS v JET TRUSTEES (completed 2015) Company law / Oil &Gas. Acting for majority shareholders and company in significant shareholder dispute with multiple hearings in the High Court and Court of Appeal. Resolved through findings of oppressive conduct by minority shareholder, followed by related arbitration and sale of minority holding.

COMMERCE COMMISSION v SINGAPORE AIRLINES CARGO PTY (completed 2014) Competition Law. Acted for one of several airlines in cartel proceedings in relation to surcharges in the international air cargo industry.

Arbitrations


TG v W Acting for lessor on rent review arbitration under long term lease of university campus

WB v JFL Acting for lessor on arbitration over allegations against lessor (rejected) that rent not payable and lease terminable due to very low ‘national building standards’ earthquake ratings.

RG v WATER BUYERS Arbitration on exercise of option to acquire irrigation scheme and on option terms including payment.

ESTATE OF E Claims by family members against charitable beneficiaries of significant ($75m plus) estate, resolved in early mediation.

Crown projects


Advising Crown on major infrastructure project issues.

Separately acting for Crown as negotiator on settlement of major class action tort claim.