New Zealand Case Law: Decisions & Judgments

Topic

Frustration

Legal area

Court

10 Mar 2023

McKINLAY v WHITBURN [2023] NZHC 468

Citation

[2023] NZHC 468
Court

High Court

The 2016 settlement agreement displaced the conditionality in special condition 18 so the vendors had an unqualified contractual obligation to obtain the specified compliance documents within a reasonable time; a reasonable time has elapsed, the vendors are in breach and cannot rely on frustration or their own failures; summary judgment is granted for the Whitburns on liability, but specific performance and the purchasers' request to have the entire purchase monies held by the Registrar are not granted at summary judgment and remain for trial to determine remedies and quantification of damage…
21 Apr 2021

PRESTIGE MOTORS LTD v MY TRUSTEE CO LTD [2021] NZHC 849

Citation

[2021] NZHC 849
Court

High Court

Applicant was the successful party and entitled to costs on a 2B scale plus disbursements totalling NZD 13,790.27. The respondent's opposition was weak but not so egregious or vexatious as to justify indemnity costs or a 50% uplift; conduct outside the proceeding and irrelevant allegations could not support indemnity and increased costs awards.
27 Jan 2021

ZINDIA LIMITED v ARAPAWA ISLAND FORESTRY PARTNERSHIP [2021] NZHC 29

Citation

[2021] NZHC 29
Court

High Court

The statutory demand was set aside because there is a reasonably arguable common mistake: both parties reasonably believed the Velide resource consents permitted the harvesting or that no further consents were required, creating a genuine dispute about Zindia's liability and the quantum such that the statutory demand procedure was inappropriate to resolve the claim.
4 Nov 2016

T.K (HONG KONG) LIMITED v DIAMOND MILK FORMULAS LIMITED [2016] NZHC 2642

Citation

[2016] NZHC 2642
Court

High Court

Leave to file a statement of defence out of time was refused because the defendant is presumptively and in substance insolvent and therefore leave should not be granted to delay liquidation, and the defendant did not provide a satisfactory explanation for the delay; on the merits clause 10 is not an unenforceable penalty, the force majeure defence is arguable but not determinative, and the no-consideration argument is untenable.
19 Dec 2013

CRYSTAL IMPORTS LIMITED v CERTAIN UNDERWRITERS AT LLOYDS OF LONDON [2013] NZHC 3513

Citation

[2013] NZHC 3513
Court

High Court

The Court construed the policy to give effect to the Reinstatement of Sum Insured clause so that, absent timely written notice to the contrary, the sum insured is automatically reinstated from the date of each loss and is available for subsequent insured events; however the doctrine of merger applies so that unrepaired damage from the September earthquake was subsumed into the February total loss such that defendants' liability for September damage is limited to sums already paid before February and thereafter liability is limited to the full sum insured per item; the Average clause valuation…
5 Jun 2013

ZHANG v ZHAI & Anor [2013] NZHC 1303

Citation

[2013] NZHC 1303
Court

High Court

Plaintiff was found to be resident out of New Zealand for r 5.45(1)(a)(i) purposes; balancing the equities showed no countervailing hardship to plaintiff that outweighed the defendants' risk of an unpaid costs order given plaintiff's overseas residence and ongoing possession by defendants and the arguable defences (laches, limitation, frustration); accordingly it was just to order security for costs and the appropriate amount for a likely three‑day trial was fixed at NZD 25,000.
27 Mar 2013

N Z LOCAL AUTHORITY PROTECTION PROGRAMME DISASTER FUND v AUCKLAND COUNCIL HC AK CIV-2012-404-2864

Citation

openlaw-dd960867_6672_47e6_b190_68184c139f99.pdf
Court

High Court

Given the evolving nature of the defendant's affirmative defences and the need to test reliance and causation, the court ordered targeted interlocutory discovery and answers to interrogatories: the defendant must answer amended interrogatories and disclose decision‑making and reliance information for the relevant year, and the plaintiff must disclose its premium‑setting processes and reinsurance arrangements for the relevant year; broader or retrospective discovery and further searches beyond affidavits were refused as not shown relevant or necessary.
1 Mar 2013

RONALD JOHN ZWARST, LISA TRACY ZWARST AND CHRISTOPHER JOHN SAXTON V DAVID ANTHONY SAXTON HC GRY CIV-2012-418-000085

Citation

openlaw-ea675d11_c90b_4b59_b63a_9743e9a55b8e.pdf
Court

High Court

The defendant has no arguable defence: the prior High Court caveat judgment estops the defendant on the limitation point and explained delay; the evidence (including defendant's prior affidavits and cross-examination) establishes the existence and authenticity of the 2001 agreements and that they are enforceable; other defences (non est factum, frustration, trust non-existence, uncompleted gift, trustee consent, disclosure) are not tenable as a matter of fact or law; summary judgment for specific performance is therefore appropriate.
21 Dec 2012

AWLY INVESTMENTS LIMITED V MCPHAIL, HC CHCH CIV-2012-409-000086

Citation

openlaw-408d8bae_db70_48be_a93e_cb9e6ba75d99.pdf
Court

High Court

The inducement payment was given for the defendants' agreement to make the agreement to lease unconditional; the defendants performed that obligation before payment so there was no total failure of consideration and the plaintiff was not entitled to restitution of the inducement payment; alternatively, the defendants would have been entitled to succeed on a change of position defence.
23 Aug 2012

COLBART LIMITED V EASTPACK LIMITED HC ROT CIV 2011-463-000828

Citation

openlaw-5d3f2a7b_effe_4fd2_a263_a9e6e9d71d1d.pdf
Court

High Court

On the material before the Court there was reason to believe Colbart would be unable to meet any adverse costs award because it was recently incorporated with minimal capital, had no real property, provided equivocal trading evidence, relied on funding by Mr Campbell and offered no undertaking; accordingly security for costs in the sum of $40,000 was ordered, the proceeding stayed until payment, and costs of the application were awarded to the defendants.