New Zealand Case Law: Decisions & Judgments

Topic

Change of position

Legal area

Court

15 Jul 2020

PUBLIC TRUST OF ROTORUA v RYDER-ROGERS [2020] NZHC 1688

Citation

[2020] NZHC 1688
Court

High Court

Application dismissed because the debtor had ample opportunity to file a statement of defence and to apply to set aside the formal proof judgment but did not; the procedural misinformation was not the material cause of failing to defend; the debtor failed to provide sufficient evidential foundation for the asserted defences or to prove non‑insolvency; threshold for exercising inherent jurisdiction was not met.
9 Jun 2020

SURICATA TRUST SERVICES LIMITED (IN LIQUIDATION) v VAEALIKI as executor of the estate of MATTHEW JAMES BUTTERFIELD [2020] NZHC 1275

Citation

[2020] NZHC 1275
Court

High Court

Costs were not awarded to the third defendant and the defendant's application for costs was dismissed; the court reserved the question of costs for the litigation because the plaintiff had a prima facie case and the defendants raised affirmative defences (change of position and lack of knowledge) that were arguable and appropriately require trial to resolve, consistent with NZI Bank v Philpott and High Court Rules guidance.
20 Dec 2019

TAYLOR v ASTERON LIFE LTD [2019] NZCA 683

Citation

[2019] NZCA 683
Court

Court of Appeal

The application for a stay is declined because the appellant failed to provide detailed, credible financial disclosure or security; the High Court's adverse credibility findings undermined the appellant's claims about asset ownership and trust structures; the balance of convenience and risk of prejudice to the respondent favour refusal; and the general rule requiring security for a stay was not satisfied such as to justify departure.
7 May 2019

TAYLOR v ASTERON LIFE LIMITED [2019] NZHC 978

Citation

[2019] NZHC 978
Court

High Court

Court accepted plaintiff suffered a Sickness but, on the admissible evidence, found he was not Totally Disabled; documentary and witness evidence demonstrated he worked substantially (>10 hours/week) and remained actively involved in the business so that Monthly Earned Income (calculated as 1/12th of net profit per policy) abated any entitlement; plaintiff deliberately misrepresented his working and provided false accounting material, breaching the duty of utmost good faith; under the Contract and Commercial Law Act 2017 and common law principles insurer was entitled to cancel and obtain rest…
4 Apr 2019

SHARMA & ORS v MUNDATH & ORS [2019] NZHC 705

Citation

[2019] NZHC 705
Court

High Court

Leave to file a statement of defence was granted because the second defendant articulated an arguable defence that puts the plaintiffs to proof, the explanation for delay (counsel error) was accepted and the plaintiffs would not suffer irreparable injury from permitting a defence; delay alone was not fatal and costs were awarded to the plaintiffs on a 2B basis.
28 May 2018

JELLICOE NORTH LIMITED v SMITH & DAVIES LIMITED [2018] NZHC 1215

Citation

[2018] NZHC 1215
Court

High Court

The statutory demand was set aside because Jellicoe North Ltd established an arguable, genuine and substantial dispute: it produced a schedule and evidence suggesting payments received were applied for the benefit of Smith & Davies Ltd and raised an arguable denial of receipt as to a specific payment; given the summary nature of s290 proceedings the court could not conclude there was no real prospect of the applicant establishing a defence to repayment on restitutionary or equitable grounds.
21 Dec 2012

AWLY INVESTMENTS LIMITED V MCPHAIL, HC CHCH CIV-2012-409-000086

Citation

openlaw-408d8bae_db70_48be_a93e_cb9e6ba75d99.pdf
Court

High Court

The inducement payment was given for the defendants' agreement to make the agreement to lease unconditional; the defendants performed that obligation before payment so there was no total failure of consideration and the plaintiff was not entitled to restitution of the inducement payment; alternatively, the defendants would have been entitled to succeed on a change of position defence.
11 Jan 2011

MARAC FINANCE LIMITED V MURRAY JOHN GREER HC AK CIV-2010-404-4957

Citation

openlaw-4b449c17_4597_42bf_a893_3c04894104e4.pdf
Court

High Court

The court declined the defendants' application for an adjournment because there were no compelling circumstances justifying further delay given the existing timetable, the prejudice to the plaintiffs from delay, and the view that receivers should be able to form a view on indemnity within the available time; defendants were ordered to file submissions by 5.00 pm on 19 January 2011.
17 Mar 2010

FIVE STAR FINANCE LTD (IN LIQUIDATION) V J S WILLIAMS HC AK CIV-2009-404-005422

Citation

openlaw-76ae76b3_6696_4705_b42e_6d3e3b2fc3eb.pdf
Court

High Court

On the undisputed documentary and ledger evidence the payments to the defendant were not referable to any bona fide share sale or consideration, were traceable to misapplied company funds, and any reasonable recipient in her position would have been put on inquiry such that she had constructive knowledge (or it was unconscionable for her to retain the funds); there was no arguable defence of entitlement or adequate change of position, so summary judgment was properly entered for the plaintiff for $505,000 plus interest and costs.
30 Oct 2006

PATRICIA LINDA OWENS V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT CA CA131/05

Citation

openlaw-84b40585_15bf_4587_a775_450a6386db5c.pdf
Court

Court of Appeal

The Court held that under s86(9A) the chief executive may consider relative fault and the increased equity of the beneficiary's property when deciding whether it would be inequitable to require repayment of an overpayment; accordingly the appeals are dismissed.