New Zealand Case Law: Decisions & Judgments

Topic

Enforcement of guarantees

Legal area

Court

29 Oct 2010

SOUTH CANTERBURY FINANCE LIMITED V WAYNE FRANCIS TYLER HC PMN CIV-2010-454-328

Citation

openlaw-415ae48e_1f9d_4c4c_bc32_a1d4dce2de2f.pdf
Court

High Court

Clause 29 of the General Security Agreement conferred a broad right to indemnity costs for legal services arising from default or enforcement of secured moneys, that right extends to costs incurred in enforcing the guarantee against the guarantor, and accordingly plaintiff was entitled to indemnity costs; quantum fixed at $24,000 as reasonably incurred.
14 Oct 2008

ACE VENDING LIMITED AND SAM HOLDINGS LIMITED V BJ HARRIS AND ANOR HC WN CIV 2008-485-1479

Citation

openlaw-21c06360_a455_4add_a3be_1ed2bb50ec4e.pdf
Court

High Court

The court held that plaintiffs' forbearance to demand repayment and to sue on existing guarantees constituted valid consideration for the 2005 guarantee because plaintiffs honestly believed they had a good cause of action and the claim was not sham or frivolous; defendants abandoned other defences and raised no credible factual dispute, so there was no arguable defence and summary judgment was properly granted for $570,547.70, supported also by the first defendant's subsequent acknowledgement in the property sale and deed of assignment.
7 Oct 2008

COMMERCIAL RECEIVABLES LIMITED V JS THWAITES AND ORS HC WN CIV 2008-485-807

Citation

openlaw-0ca7c88e_ec29_4459_8b45_b7a0df7cf1de.pdf
Court

High Court

Defendants failed to discharge the evidential burden to show any reasonably arguable defence that CRL breached statutory or common law duties; the affidavit evidence established CRL acted reasonably in marketing and maintaining the yacht and incurred reasonable costs, so summary judgment was appropriate against the guarantors, with a trust asset enquiry for the trustees.
22 May 2007

DYSART TIMBERS LTD V NIELSEN AND ANOR CA CA253/05

Citation

openlaw-893648b9_16d0_42af_8706_225db8206a4c.pdf
Court

Court of Appeal

Clause 5, read in the context of the recitals and the deed as a whole, referred only to the Castlerock and Trimac companies covered by the deed (the debts identified in the background) and did not operate to release the respondents' liabilities under their personal guarantees in respect of the Castlerock Group debt; accordingly the respondents remained liable and judgment was entered for the appellant.
24 Apr 2007

KROON V WESTPAC BANKING CORPORATION & KROON V AUCKLAND FINANCE LTD HC AK CIV 2006-404-4720

Citation

openlaw-c33fa251_044e_4096_9efb_21aff4804e4c.pdf
Court

High Court

The debtor failed to show the claim against the valuers was sufficiently viable and likely to be resolved in the near term to justify depriving creditors of their prima facie right to adjudication; balancing public interest, enforcement of guarantees and the benefit of Official Assignee investigation, the court exercised its discretion to adjudicate the debtor bankrupt.

New Zealand Case Law

SOUTH CANTERBURY FINANCE LIMITED V WAYNE FRANCIS TYLER HC PMN CIV-2010-454-328

ACE VENDING LIMITED AND SAM HOLDINGS LIMITED V BJ HARRIS AND ANOR HC WN CIV 2008-485-1479

COMMERCIAL RECEIVABLES LIMITED V JS THWAITES AND ORS HC WN CIV 2008-485-807

DYSART TIMBERS LTD V NIELSEN AND ANOR CA CA253/05

KROON V WESTPAC BANKING CORPORATION & KROON V AUCKLAND FINANCE LTD HC AK CIV 2006-404-4720