New Zealand Case Law: Decisions & Judgments

Topic

Forbearance to sue

Legal area

Court

10 May 2021

SUN v WEI [2021] NZHC 1040

Citation

[2021] NZHC 1040
Court

High Court

The Court found that the plaintiff has an arguable case that consideration exists because the loans advanced and the granting of extended time to repay (forbearance to sue) can constitute consideration, and antecedent indebtedness may support the instruments as promissory notes under the Bills of Exchange Act; consequently it was not appropriate to strike out the claim or enter summary judgment for the defendants, and the caveat could not be removed as it rests on an arguable mortgage interest.
24 Jul 2014

THE NATIONAL HEART FOUNDATION OF NEW ZEALAND v PALMER [2014] NZHC 1740

Citation

[2014] NZHC 1740
Court

High Court

The appeal is allowed because as a matter of law the relevant chattels were relationship property that passed to Mr Burton by survivorship and therefore the Palmers could not have provided services by 'loaning' chattels that were already Mr Burton's; the LRTPA's reference to unenforceability relates to promises not to the existence of services, so no arguable LRTPA claim existed and the Family Court's grant of an extension of time was set aside.
25 Jul 2013

FARRELL AND ROGAN AS LIQUIDATORS OF CONTRACT ENGINEERING LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION) v FENCES & KERBS LIMITED CA773/2012 [2013] NZCA 329

Citation

[2013] NZCA 329
Court

Court of Appeal

Mere receipt of payment in satisfaction of an antecedent debt does not constitute 'value' under s 296(3) of the Companies Act 1993; instead the creditor must have given new value at the time of receipt that is real and substantial (forbearance may qualify only if it is real and substantial and evidenced); accordingly the impugned payments were set aside and amounts recovered with interest; High Court insolvency finding upheld.
17 May 2011

SULLIVAN V R J MAGNESS LTD HC AK CIV-2010-404-007663

Citation

openlaw-3249ccb5_5533_4360_8722_c3f6d8bc233d.pdf
Court

High Court

The High Court allowed the appeal because the evidence showed the appellant was acting as director for DCTS when he gave the assurance, there was no basis to lift the corporate veil nor to infer he acted in a dual personal capacity, and therefore he could not be held personally liable for the company's debt.
15 Oct 2010

MARAC FINANCE LIMITED V DB MCFARLANE HC WN CIV-2010-485-185

Citation

openlaw-ec140257_045d_4afb_9f4b_52dcebffa701.pdf
Court

High Court

Summary judgment was granted because the defendant had no reasonably arguable defence: the guarantee and deed were binding despite the lender's non-signature, the apparent date error was a drafting mistake construed/rectified so the loan term commenced from the agreement date, the independent advice formality did not bar enforcement given the solicitors' certificate and the lender's election to proceed, and the Deed imposed principal debtor liability on the guarantor; accordingly plaintiff was entitled to judgment for the calculated sum.
12 Aug 2010

SAUNDERS & ORS V THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED HC PMN CIV-2008-454-389

Citation

openlaw-6d947143_9220_492b_9f8d_d20db5a96a5b.pdf
Court

High Court

The plaintiffs' claim failed because the conduct relied upon constituted normal family love and affection and did not amount to qualifying services; there was no sufficient nexus between any forbearance and the alleged promise; medical and professional evidence established testamentary capacity when the last will was made; and there was no evidence of undue influence by the caregiver. Therefore all aspects of the plaintiffs' claims were dismissed and costs were ordered against the estate.
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.

New Zealand Case Law

SUN v WEI [2021] NZHC 1040

THE NATIONAL HEART FOUNDATION OF NEW ZEALAND v PALMER [2014] NZHC 1740

FARRELL AND ROGAN AS LIQUIDATORS OF CONTRACT ENGINEERING LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION) v FENCES & KERBS LIMITED CA773/2012 [2013] NZCA 329

SULLIVAN V R J MAGNESS LTD HC AK CIV-2010-404-007663

MARAC FINANCE LIMITED V DB MCFARLANE HC WN CIV-2010-485-185

SAUNDERS & ORS V THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED HC PMN CIV-2008-454-389

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