Mark O’Brien QC
Mark has practiced successfully as a commercial litigation lawyer and advocate for over 25 years. His areas of expertise include arbitration, company, competition, contract, insolvency, insurance and reinsurance, oil and gas, property, technology, and testementary estate issues.
Mark joined the independent bar in 2013. Prior to this, he was a senior litigation partner with Bell Gully, having joined the firm in 1985 after two years with a London firm. He became a partner with Bell Gully in 1988, was Chair of the firm’s Wellington office and Deputy Chair of the firm from 2003 to 2008.
He has appeared as counsel before all levels of the New Zealand courts, accumulating a broad experience from a variety of cases and issues. He is regularly involved in the analysis and resolution of disputes through litigation, arbitration, mediation and negotiation.
He is identified as a leading lawyer in Chambers Asia Pacific 2013, with the previous editions noting he “is well known for his regular involvement in complex commercial cases”. Chambers has also described him as a “savvy advocate” with “good instincts” who “gets straight to the heart of thorny problems”. He has also recognised as a leading litigation and dispute resolution lawyer by other international legal guides, including the Asia Pacific Legal 500 2013, Who’s Who Legal, PLC Which Lawyer and the IFLR1000.
Qualifications and Career
- Bachelor of Laws, Victoria University
- Company – acting for listed and unlisted companies, and regulatory bodies, on company law, regulatory and associated matters including significant director claims and shareholder disputes;
- Competition – acted for a prominent international airline and concluded the settlement of significant cartel proceedings in relation to surcharges in the air cargo industry; acted for one of the major trading banks on and co-led the resolution of proceedings alleging price fixing on credit card interchange fees;
- Contract – a variety of contractual issues in various industry sectors including agriculture, banking, company, construction, energy, finance, film, mining, real estate, etc.;
- Energy – representing leading oil and gas explorers and producers and electricity transmitters in recent cases, negotiations and regulatory issues;
- Estates – a variety of cases for charitable institutions and individuals involving testamentary estates;
- Film – acted for a leading NZ film company on the resolution of negotiations for a major production;
- Insolvency – acting for liquidators and receivers on financial disputes, insolvencies and workouts, including several leading cases in the area, and was one of the initial contributing authors to Brookers ‘Insolvency Law’;
- Insurance and reinsurance – acting on professional indemnity and D&O issues and on several matters arising from recent earthquake losses, including for a substantial lessor and for an international reinsurer on the defense of a significant summary judgment claim and ongoing issues;
- Property – a variety of leading and other land issues;
- Technology – advising on software and other technology related issues;
- Trusts – acted in two leading constructive trust cases and advised on several others.
Recent and Notable Cases
- X Company Valuation Arbitration 2014: A contested company valuation, with various technical and market issues, international and local experts and significant differences between experts and parties. Mark acted for the majority shareholders.
- Sturgess and Jet Trustees v Dunphy, Masfen & Ors  NZCA 266. Wide rangingappeals against the High Court judgment in the Greymouth case below. The appeals were dismissed. An application for leave to appeal to the Supreme Court was also dismissed. Mark acted for the respondents.
- Greymouth Holdings Ltd v Jet Trustees Ltd  NZHC 1013: An extensive shareholder dispute and seven week trial. It involved an application by the majority under the Companies Act, establishing oppression and prejudicial conduct by the minority, and related claims of breach of contract and director’s duties and a derivative action by the company. Mark acted for the majority shareholders and company.
- Estate of W E Robb  NZHC 1561: An application under the Wills Act 2007 for the validation of an unsigned will, complicated by an unfulfilled intention to transfer property prior to death and then forgive the debt in the will. Mark appeared for two of the charitable beneficiaries.
- NZ Local Government Insurance Corp Ltd v R+V Versicherung AG  NZHC 690: A significant reinsurance case arising out of the Canterbury earthquakes. Mark appeared for the defendant reinsurer in opposing a summary judgment application brought by the reinsured and in securing a stay of proceedings in favour of arbitration.
- Commerce Commission v Singapore Airlines Cargo Pty Ltd  NZHC 3583: A penalty judgment following a settlement in the ‘air cargo litigation’ brought by against several international airlines. The primary proceeding is referred to below (CC v Air NZ Ltd).
- McCulloch v Quinn  NZHC 16: A strike-out application by several defendants of a s174 Companies Act claim based on alleged breaches of statutory and fiduciary duty. Mark acted for other defendants in this and wider litigation affecting the same parties.
- Pike River Coal Ltd (in Rec) v O’Malley Farming Ltd HC, Wgtn, CIV-2011-418-626: A successful application under the Property Law Act by PRCL’s receivers for relief from cancellation of a lease of a rail loading facility. The case was significant for the receivers and for the principles to be applied on such an application when the lease commitments are not being adopted. Mark acted for the receivers.
- Commerce Commission v Air New Zealand Ltd & Ors (2011) 9 NZBLC 103, 318: This case arose out of an international investigation into alleged price fixing of surcharge components in the international air cargo industry. The defendants included several international airlines. Mark acted as local counsel for Singapore Airlines Cargo Pty Ltd. The issue of significance in the case (part one of an intended two part trial) concerned the location of the market for air cargo services to NZ; a significant legal and economic issue under the Commerce Act and more generally in relation to cross border trading and service activities.
- Smith v Albany Power Centre Ltd (in liq) (2011) 20 PRNZ 322: An appeal against a decision declining a trial adjournment based on the unexpected unavailability of the applicant’s longstanding counsel; of significance for the discussion and application of principles concerning adjournments where counsel of choice is (unexpectedly) unavailable.
- Greymouth Gas Kaimiro Ltd v GXL Royalties Ltd  1 NZLR 289: An unsuccessful appeal to the Supreme Court against a decision on the interpretation of a restriction on assignments in a Royalty Deed. Mark acted for the appellants.
- ALF No. 9 Pty Ltd v Ellis  NZCA 529: A successful appeal by ALF, for which Mark acted, against a High Court strike-out decision. The issues concerned a forced sale by debenture holders of the business of the grantor and whether (as the HC had wrongly found) this included a sale of any rights accruing to the grantor against the debenture holder as a consequence of the sale; the assignment to a litigation funder, by the grantor’s liquidator, of bare litigation rights; and contract interpretation principles post the then recent and seminal Supreme Court case Vector Gas case.