New Zealand Case Law: Decisions & Judgments

Topic

Disclaimer of onerous property

Legal area

Court

14 Dec 2022

ENSOM (BANKRUPT) v MORRISON KENT [2022] NZHC 3391

Citation

[2022] NZHC 3391
Court

High Court

The application to vest litigation rights was refused because it was not fair: the proposed claim lacked merit (applicant's liability had already been limited to the amount he undisputedly owed), the applicant would obtain a potential windfall post-bankruptcy, he had executed waivers of independent legal advice, there was no evidence of funding or capacity to provide security for costs and the litigation rights had no practical value to remedy any loss caused by the OA's disclaimer.
2 Nov 2022

BODY CORPORATE 372942 v THE CROWN [2022] NZHC 2854

Citation

[2022] NZHC 2854
Court

High Court

The Court applied fairness/justice factors derived from s119 jurisprudence and held it was just to vest the disclaimed unit in the Body Corporate because mortgagees had disclaimed leaving no effective enforcement route, levies and rates would continue to accrue to the detriment of other owners, relevant third parties (Crown and liquidators) did not oppose, and vesting would allow sale to satisfy debts; mortgages remain subsisting to the extent of amounts secured at the time of disclaimer but do not preclude vesting.
28 Sept 2021

LINK TECHNOLOGY 2000 LTD v PETERLAND LIMITED [2021] NZHC 2550

Citation

[2021] NZHC 2550
Court

High Court

Applicant failed to prove he was 'suffering loss or damage' at the time of the liquidator's disclaimer and failed to demonstrate it was 'just' to vest the disclaimed litigation in him given the unexplained delay, inadequate evidence of funding and company financials, weak merits and prejudice to defendants; therefore the s 269 application is dismissed.
21 Mar 2019

HADDOCK v HADDOCK [2019] NZHC 530

Citation

[2019] NZHC 530
Court

High Court

The applicant established she is a person suffering loss or damage as a result of the Official Assignee's disclaimer (mortgage interest eroding equity and need to complete sale), and in all the circumstances it was fair and appropriate to exercise the Court's discretion under s119 to vest the property in the applicant alone.
6 Jul 2017

SMARTT HOLDINGS LIMITED v DK YEOMAN LIMITED (IN LIQUIDATION) [2017] NZHC 1545

Citation

[2017] NZHC 1545
Court

High Court

The court inferred the respondent companies' shares in the applicant were disclaimed by the liquidators but held the applicant did not fit within s 269(5) as a person 'suffering loss or damage' to obtain vesting under s 269(5)(b); s 324 was not engaged; accordingly the court declined to make the vesting orders sought but, as just and practical relief under s 269(3), granted declarations that the liquidated companies have no rights under the shares and the applicant is not obliged to treat them as shareholders.
16 Sept 2016

TIMARU DISTRICT COUNCIL v THE CROWN [2016] NZHC 2170

Citation

[2016] NZHC 2170
Court

High Court

The Court has jurisdiction under s269 to vest disclaimed property in a person who has suffered loss as a result of the disclaimer; the Timaru District Council suffered loss by being unable to collect rates and enforce regulatory remedies, the land and physical property were disclaimed simultaneously, and it is just in the public interest to vest the land and all physical property located thereon in the Council to enable remediation, so the vesting order is granted.
31 Aug 2016

BODY CORPORATE 201036 [2016] NZHC 2035

Citation

(2016) 17 NZCPR 659
Court

High Court

Because the Official Assignee validly disclaimed the unit, the Body Corporate demonstrated concrete loss and disadvantage (unrecoverable levies and inability to obtain access to effect repairs) and no other party with a better interest was willing and capable of assuming responsibility, it was fair under s119 of the Insolvency Act to vest the disclaimed unit in the Body Corporate; the Crown did not object.
29 Jul 2016

THE FISH MAN LIMITED (IN LIQUIDATION) v HADFIELD [2016] NZHC 1750

Citation

[2016] NZAR 1198
Court

High Court

The Fish Man's claim did not survive Mr Hadfield's automatic discharge because the misapplication of company funds to pay mortgage obligations did not amount to fraud or fraudulent breach of trust under s304(2)(a); equitable tracing/constructive trust was unavailable because the company funds were used to discharge debt (mortgage interest/principal) rather than to acquire or materially create the asset, and there was insufficient coordination to justify tracing or backward tracing into equitable interest in the property; accordingly the court dismissed the company's s119 proprietary claim and…
27 Apr 2016

PANTHER v PANTHER [2016] NZHC 809

Citation

[2016] NZHC 809
Court

High Court

The court found the applicant had suffered loss and damage as a result of the Official Assignee's disclaimer—principally ongoing mortgage obligations, negative equity and significant remedial costs—and it was fair to exercise the discretion under s119 to vest the bankrupt's one half interest in each property in the applicant to enable regularisation of title and potential sale, while preserving the respondent's relationship property rights.
2 Feb 2016

LEWIS HOLDINGS LIMITED v BORIS VAN DELDEN AND PERI MICAELA FINNIGAN [2016] NZHC 42

Citation

[2016] NZHC 42
Court

High Court

The application to correct or recall was dismissed because the plaintiffs did not demonstrate a clerical mistake or that paragraph [101] failed to express the trial judge's intention; the requested change would fundamentally vary the judgment and recall is only available in confined circumstances, so the judgment stands.