Court found appeals would only delay reporting on a matter of public interest
The Court of Appeal refused the couple behind property group Du Val permission to appeal rulings allowing details of a regulator's investigation to be reported.
In Clarke v Financial Markets Authority [2026] NZCA 401, decided on 26 August 2026, the court dismissed two applications connected to the Financial Markets Authority (FMA) inquiry into the couple's property group, Du Val.
The regulator began investigating in 2024 over allegations that the group had misused investor money and made false or misleading statements to banks and investors. On 2 August 2024, it obtained orders, granted without first notifying the couple, to trace and preserve their property and that of related entities under ss. 522–524 of the Financial Markets Conduct Act 2013.
After several Du Val entities were placed into statutory management, the FMA applied on notice for orders preserving assets, which the couple opposed. At a hearing in June 2025, the High Court banned reporting of some alleged breaches, except where they were already public. It refused, however, to hold back submissions about whether the couple might move assets out of reach or leave the country.
When the High Court later granted the orders, it removed some passages of its judgment but left in place others the couple wanted hidden.
The couple argued that the High Court had played down the risk that publicity posed to their right to a fair trial and had put too much weight on keeping proceedings public. They said reporting threatened their right to silence and their reputations, and that they had no way to control coverage while the investigation continued and no trial had begun. If the regulator laid no charges, they submitted, what was reported now could become the "last word."
The Court of Appeal rejected those arguments, finding that neither ruling revealed a genuinely arguable error of law or fact. The couple had not shown, to the high standard required, that publication would cause harm serious enough to override the openness of the courts. The High Court had been entitled to assume that media reporting would be accurate and fair, and much of the material was already public. Standard jury directions could address any unfairness, the court added.
The court decided the applications under s. 56(5) of the Senior Courts Act 2016, which sets a high bar for appealing procedural rulings before a case ends. It found the appeals would only delay reporting on a matter of public interest while posing little risk to the couple. It dismissed both applications and ordered the couple to pay the regulator's costs.
