New Zealand Case Law: Decisions & Judgments

Topic

Anticipatory breach

Legal area

Court

6 Oct 2017

KAWARAU VILLAGE HOLDINGS LIMITED v HO KOK SUN AND OTHERS [2017] NZSC 150 [6 October 2017]

Citation

[2017] NZSC 150
Court

Supreme Court

The agreements for sale and purchase included a covenant (cl 5.7 read in context with the agreements and associated consents and precinct governance provisions) obliging the vendor to complete the Precinct (the three stages); that obligation was an essential term of the contracts; because the vendor had put it out of its power to complete stages two and three at the time it called for settlement the purchasers were not obliged to settle and were entitled to cancel; appeal dismissed and appellants ordered to pay costs.
31 May 2017

FOREST HOLDINGS LTD v MANGATU BLOCKS INCORPORATION [2017] NZHC 1174

Citation

[2017] NZHC 1174
Court

High Court

Leave to appeal was refused because the legal issue identified depended on unresolved factual questions that must be determined by the arbitrator first; admitting additional post-decision evidence was unnecessary and irrelevant to the statutory leave test; therefore there was no useful purpose in granting leave to the Court of Appeal at this stage.
15 Mar 2017

FOREST HOLDINGS LTD v MANGATU BLOCKS INCORPORATION [2017] NZHC 448

Citation

[2017] NZAR 671
Court

High Court

The High Court allowed the appeal, set aside the arbitrator's Damages Award and remitted the question of damages to the arbitrator for reassessment; the Court held that the arbitrator erred in concluding Forest Holdings was likely limited to nominal damages without permitting factual inquiry into the commercial dynamics during any 120-day notice period and valuation of the asset at repudiation, applying the compensatory principle and established authorities that subsequent events may be considered only if they were a real possibility at the relevant date.
9 Sept 2016

HO KOK SUN AND ORS v PENINSULA ROAD LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION) [2016] NZCA 427

Citation

(2016) 18 NZCPR 319
Court

Court of Appeal

The Court held the ASPs, read in context with the Draft Outline Plans, resource consents and ASP provisions (notably cl 5.7), imposed a qualified positive obligation on the vendors to complete Stages 2 and 3; that obligation was essential to purchasers; by receivership, asset split and subsequent sale the vendors were incapable of procuring completion such that breach was inevitable and amounted to repudiation; purchasers validly cancelled and are entitled to return of deposits.
14 Mar 2014

HO KOK SUN & ORS v PENINSULA ROAD LIMITED [2014] NZHC 478

Citation

[2014] NZHC 478
Court

High Court

The Court ordered specific discovery of documents bearing on the scope and validity of practical completion certificates because those documents were directly relevant to whether the vendor was ready, willing and able to settle; the plaintiffs' third discovery request was refused as a fishing expedition; the defendants' counterclaim, while substantially overlapping with the defence, raised additional quantifiable issues (notably quantum and mitigation) sufficient to warrant an order for security for costs against the defendants in the sum of $109,700; additional security from 98 plaintiffs wa…
11 Jun 2012

RCL v APBL HC INV CIV-2012-425-000145

Citation

openlaw-1d5d2c5f_8165_4561_811a_ab3e42acc477.pdf
Court

High Court

Where parents agreed that children could stay abroad only for a defined period and one parent unequivocally repudiates that agreement, the repudiation can constitute an anticipatory breach making subsequent removal wrongful; here the Court found the children remained habitually resident in the UK, the mother repudiated the return agreement, the father did not consent or acquiesce, s106 defences failed, and therefore s105 required prompt return to the United Kingdom.
5 Apr 2012

WAIMEA ESTATES (NELSON) LIMITED V MARR HOLDINGS LIMITED HC NEL CIV-2012-442-000130

Citation

openlaw-b8857513_1f58_4561_afb9_9542a6b2d1bf.pdf
Court

High Court

There was a serious issue to be tried and the balance of convenience favoured maintaining the interim injunction because the grapes were perishable and the defendant's inability to pay damages meant damages would not be an adequate remedy for the plaintiff; accordingly the interlocutory injunction previously granted was not set aside and remains until further order.
21 Feb 2012

ATRIUM MANAGEMENT LIMITED V QUAYSIDE TRUSTEE LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION) COA CA316/2011

Citation

COA CA316/2011
Court

Court of Appeal

Clause 3 of the October agreement, obliging Quayside to deliver an executed management agreement containing the exclusive holiday letting rights, was objectively essential to Atrium; Quayside admitted it could not perform that essential obligation because parts of the draft management agreement were ultra vires; therefore Atrium was entitled to cancel for anticipatory breach and summary judgment was appropriate for repayment of deposits. Frustration did not apply because Russell was an interpretation of existing law, and severance could not preserve the core exclusivity right without changing…
26 Sept 2006

ELDERWOOD TRUSTEES LIMITED V KIM HC AK CIV-2006-404-3647

Citation

openlaw-5e05bcbc_2172_49d1_b11d_0ccdc8ed7ab2.pdf
Court

High Court

Defendant's evidence was inherently improbable and lacked credible particularity; clause 16 expressly states access is to be provided "when it is available," so obligation was not a pre-settlement condition; anticipatory breach was not established on objective assessment; plaintiff satisfied the burden under r136 and summary judgment for specific performance was warranted.
23 Dec 2005

KEN & KEN CORPORATION LIMITED V UMEZAKI AND UMEZAKI HC AK CIV-2005-404-4999

Citation

openlaw-06576c1f_0f18_4e70_b663_3a363c59eb77.pdf
Court

High Court

Summary judgment was inappropriate because there was a real and arguable defence that the share sale agreement obligations were inter-dependent with the supply agreement such that triable issues arose; the District Court had not established as a matter of law that repudiatory conduct occurred warranting cancellation and immediate recovery of the balance.