22 Mar 2023
The court refused indemnity or increased costs because the proceeding was a straightforward summary judgment involving a genuine evidential dispute and did not amount to exceptional conduct; the plaintiff was awarded scale costs on category 2, band B for the proceeding and disbursements as allowed by the Registrar; costs for the costs application were declined.
21 Dec 2022
Where the vendor had a contractual right to cancel after the condition failed but, over a nine-month period, by repeated communications, permitting works, invoicing for variations and consistent conduct towards settlement, unequivocally represented it would perform, those actions amounted to an election to affirm and waiver of the right to cancel; accordingly the defendant had no arguable defence and summary judgment for specific performance was entered for the plaintiff.
27 Oct 2021
The defendant has no real defence: the Capital Note Agreements permitted election on or after the conversion date and there was no clear and unambiguous representation by the plaintiff to take shares, no reasonable reliance causing unrecoverable detriment, and no proven breach of s131 that makes repayment unconscionable; accordingly plaintiff is entitled to judgment for repayment plus interest.
13 Aug 2015
The Court of Appeal allowed the appeal because Tower had not made an unequivocal election to settle by immediate cash payment on the pleaded basis and the High Court erred in making a finding that an election had been made by reason of delay where that cause of action was not pleaded and the insurer was prejudiced; the matter must be reheard in the High Court.
8 May 2015
Tower had the contractual right to reinstate; Tower did not make an unequivocal election to pay replacement-value cash by words or conduct, but by a narrow margin the court found that after prolonged delay the law effectively treated Tower as having elected to settle by cash at indemnity/present day value; quantum of indemnity value was not proven and must be agreed or determined.
20 Mar 2014
Where a house is established to be not economically repairable the insured, not the insurer, has the right to elect whether to rebuild on the existing site, rebuild elsewhere or buy another house; if the insured elects to buy another house the insurer must pay the cost of that house up to the notional cost of rebuilding the original house on its existing site, and until the insured incurs reinstatement costs the insurer need only pay present day value.
27 Apr 2007
The defendant's conduct, notably the 11 August 2005 letter indicating imminent settlement and inviting preparatory steps, constituted an unequivocal election to affirm the contract and thereby prevented the defendant from exercising its later purported cancellation under clause 2.7 as extended; consequently the plaintiff is entitled to the relief sought, subject to determination of the appropriate form of judgment given outstanding factual issues.
3 Nov 2005
Leave to appeal was denied because the dispute raised principally factual issues about election/waiver that do not involve matters of general or commercial importance under s 13(2), and on the facts the Court of Appeal correctly found the appellant's conduct amounted to an election or waiver preventing cancellation under clause 22.
15 Aug 2005
The Court held that Whangamata Homes' post-30 June 2003 conduct (demanding payment for extras, solicitor's letter requesting the transfer in anticipation of settlement, and subsequent correspondence acknowledging title and invoicing) constituted an unequivocal election to continue the contract, thereby precluding later cancellation under clause 22; accordingly the appellants were entitled to specific performance and leave to seek summary judgment.