New Zealand Case Law: Decisions & Judgments

Topic

Change of position defence

Legal area

Court

1 Nov 2019

YOUNG v HUNT [2019] NZHC 2822

Citation

[2019] NZHC 2822
Court

High Court

Summary judgment was granted because the claimant proved unjust enrichment: $146,175 was received into the joint account by the defendant (by survivorship), there was a corresponding deprivation to the trust, and no juristic reason existed for the enrichment; knowledge was not required and no viable defence (including change of position or claimant negligence) was established. Separately, beneficiaries hold a proprietary equitable interest in the total $181,175 and are entitled to tracing remedies and discovery to pursue recovery of the remainder.
5 Sept 2019

WORLDWIDE HOLIDAYS LTD v WANG [2019] NZHC 2218

Citation

[2019] NZHC 2218
Court

High Court

The Court found Ms Wang was Worldwide's agent and owed fiduciary duties, misappropriated customer payments by directing funds to her personal account and concealing receipts by rolling forward payment dates; Worldwide traced and established misappropriation to the value of $1,310,729 and was entitled to equitable and contractual relief; the acknowledgement of debt signed by Ms Wang (and guaranteed by Ms Jun) was a valid enforceable deed and duress was not proved; Worldwide traced funds through Ms Wang to Ms Lin and the money had and received claim against Ms Lin succeeded except to the extent…
26 May 2017

HAMISH MCINTOSH v JOHN HOWARD ROSS FISK AND DAVID JOHN BRIDGMAN [2017] NZSC 78 [26 May 2017]

Citation

[2017] 1 NZLR 863
Court

Supreme Court

The respondents (liquidators) were entitled to set aside and recover the fictitious profit component of payments made by the insolvent Ponzi operator; the statutory clawback provisions of the Companies Act and Property Law Act apply to dispositions/payments made from co-mingled trust funds held and misapplied by the company; an innocent recipient acted in good faith and had a defence for value only to the extent of the real and substantial antecedent capital provided ($500,000), but not for the fictitious profits ($454,047); the change of position defence did not apply on the facts.
27 Jan 2017

COMMISSIONER OF INLAND REVENUE v STUART DOUGLAS ROBERTSON [2017] NZHC 31

Citation

[2017] NZHC 31
Court

High Court

Summary judgment was dismissed because the Commissioner's causes of action were arguably tenable: insolvency set-off on liquidation likely extinguished any pre‑liquidation refund entitlement so the September 2010 payments were arguably mistaken and recoverable; the liquidator had arguable liability under s301 for misapplication by paying proceeds out without seeking court directions; Ex parte James and money‑had‑and‑received claims were not clearly bound to fail; defendant's defences (change of position, estoppel, rejection of claim, s248 stay) raised triable issues and there was an unresolve…
15 Jul 2016

HENRY DAVID LEVIN AND VIVIENNE JUDITH MADSEN-RIES AS LIQUIDATORS OF TE PUA ROAD DEVELOPMENT LIMITED (IN LIQUIDATION) v NEL [2016] NZHC 1603

Citation

[2016] NZHC 1603
Court

High Court

Leave was granted to the liquidators to file and serve a second amended statement of claim adding a s 348 Property Law Act cause of action; leave was conditional that if a trial Judge adjourned the trial for reasons of evidential prejudice caused by the late amendment the liquidators must meet any costs order caused by that adjournment; no formal pleading in response was required and the new allegations are assumed denied for present purposes.
17 Dec 2015

SANSON AND ANOR v EBERT CONSTRUCTION LIMITED [2015] NZHC 3046

Citation

[2015] NZHC 3046
Court

High Court

The Court exercised its discretion under s 87 Judicature Act 1908 to award interest on sums ordered recovered and held that interest should run from the date of liquidation because the respondent had, through its CEO, sufficient knowledge of the risk and benefited from use of the funds; respondent's delay and asserted prejudice did not justify denying interest.
16 Jun 2015

MCINTOSH V FISK CA250/2015 [2015] NZCA 247

Citation

(2015) 22 PRNZ 609
Court

Court of Appeal

MacKenzie J did not err: the appellant failed to show that publication would cause harm of the serious and objectively supportable type required to displace the open justice presumption; the nature of the appellant's defences necessarily places his finances in issue and disclosure is required for public adjudication, and publication would not impugn his probity or justify suppression.
15 Dec 2014

WEST CITY CONSTRUCTION LIMITED v HENRY DAVID LEVIN AND DAVID STUART VANCE AS LIQUIDATORS OF ST GEORGE DEVELOPMENTS LIMITED (IN LIQUIDATION) [2014] NZSC 183

Citation

[2014] NZSC 183
Court

Supreme Court

On the facts the Court accepted the High Court finding that the parties agreed in or about November 2005 that the bond would be assigned to West City and that West City completed the contracted work on that basis; that agreement gave rise to an equitable assignment vested prior to 22 January 2006 and therefore the later formal deed of 3 October 2006 did not create a voidable preference under s 292, so the Court restored the High Court judgment.
6 Oct 2014

GRANT & KHOV v BB2 HOLDINGS LIMITED [2014] NZHC 2504

Citation

[2014] NZHC 2504
Court

High Court

The Court found Doyle By Design insolvent during the relevant periods; Blackbird was partly unsecured by early 2010 (recognised by its director) so payments in 2010 ($6,876.15) were received as payments to an unsecured creditor and are voidable under s 292 because they exceed what unsecured creditors would receive; liquidators failed to prove Blackbird was not fully secured for earlier payments (2008–2009) so those payments were not set aside; s 296(3) defence rejected on change of position grounds; order for recovery of $6,876.15 plus costs to respondent on a 2B basis (costs netted against r…
16 Apr 2014

D GRANT and S KHOV as liquidators of Insulae Building Consultants Limited (In Liquidation) v NAUHRIA PRECAST LIMITED [2014] NZHC 800

Citation

[2014] NZHC 800
Court

High Court

The continuing business relationship began on 7 February 2011 and ran to the final payment, therefore all payments were part of a s292(4B) running account; the liquidators could not validly pick a peak indebtedness date within that two year period to isolate recoverable transactions; NPL's unregistered security was prima facie effective against unsecured creditors under the PPSA and there was no evidence of preferential payments; NPL had an arguable change of position defence; accordingly the liquidators' recovery application must be dismissed.