New Zealand Case Law: Decisions & Judgments

Topic

Enforcement of personal guarantee

Legal area

Court

29 Jul 2022

CARTERS v CANCIAN [2022] NZHC 1862

Citation

[2022] NZHC 1862
Court

High Court

The Court found Carters satisfied the statutory prima facie requirements under s13 (debt, act of bankruptcy, certainty and payable). Section 42 did not apply because the judgment on the guarantee was not under appeal. Balancing the discretionary factors under ss37/38, the Court concluded the debtor had shown a bona fide, potentially meritorious course (possible civil claim against Tauranga City Council supported by reports) and that a short, conditional halt would not operate unjustly on Carters; accordingly the application for adjudication was halted for a limited period (four months) with d…
27 Apr 2012

M CHAPMAN-SMITH AND LABYRINTH HOLDINGS TRUSTEE COMPANY LIMITED AS TRUSTEES OF THE MICHAEL CHAPMAN-SMITH FAMILY TRUST V MB ALLERBY AND PA MCBRIDE AS TRUSTEES OF THE ALLERBY FAMILY TRUST & ANOR HC WN CIV-2011-485-2114

Citation

openlaw-51ae98bc_56b4_4239_977c_1a9c4b1230d9.pdf
Court

High Court

The November Agreement constituted a valid written guarantee signed by the defendant and supported by consideration (forbearance/rescheduling); the agreement objectively imposed a monetary repayment obligation of $304,000 on the principal debtor and a personal guarantee by the defendant; the defendant's contentions about repayment in shares, on-lending to EEL, or need to join EEL are not arguable defences to enforcement of the personal guarantee, and summary judgment is therefore appropriate.

New Zealand Case Law

CARTERS v CANCIAN [2022] NZHC 1862

M CHAPMAN-SMITH AND LABYRINTH HOLDINGS TRUSTEE COMPANY LIMITED AS TRUSTEES OF THE MICHAEL CHAPMAN-SMITH FAMILY TRUST V MB ALLERBY AND PA MCBRIDE AS TRUSTEES OF THE ALLERBY FAMILY TRUST & ANOR HC WN CIV-2011-485-2114