New Zealand Case Law: Decisions & Judgments

Topic

Guarantor liability

Legal area

Court

29 Sept 2023

PRICE & ORS v KILLARNEY CAPITAL LIMITED [2023] NZHC 2753

Citation

[2023] NZHC 2753
Court

High Court

No serious question to be tried that defendant breached s176: defendant obtained credible forced‑sale valuations and marketing advice, conducted a reasonable tender/marketing process (national and international), achieved sale prices consistent with agent appraisals and forced‑sale valuations despite plaintiffs' obstruction, plaintiffs provided no undertaking as to damages nor paid into Court, and on balance of convenience and overall justice an interim injunction would be unjustified; application dismissed.
21 Sept 2023

DENNIS v GOODE [2023] NZHC 2650

Citation

[2023] NZHC 2650
Court

High Court

The creditor's release of the charging order over the co-guarantor's property prejudiced the guarantor and discharged the guarantor's liability pro tanto such that Mr Goode was liable for 50% of the judgment debt less amounts he had paid; interest included in the certificate of judgment could not be claimed because statutory procedural requirements of s25 Interest on Money Claims Act 2016 were not complied with; GST to be invoiced correctly; accordingly the Court ordered payment of the net half-share outstanding and adjourned the bankruptcy adjudication subject to payment and costs.
28 Aug 2023

HEARTLAND BANK LTD v AUCKLAND CONCRETE LTD [2023] NZHC 2361

Citation

[2023] NZHC 2361
Court

High Court

The guarantee was an all‑obligations commercial guarantee and s 9C CCCFA did not apply because the lending was not consumer credit; Heartland had no continuing contractual or statutory duty to notify Burton of overdraft limit increases beyond relying on the borrower and its authorised director to agree variations; Burton, as director and informed guarantor, had means and responsibility to monitor company finances; plaintiff established there was no real defence and summary judgment was appropriate.
17 Nov 2022

ECOWORLD AQUARIUM LIMITED v PORT MARLBOROUGH NEW ZEALAND LIMITED [2022] NZHC 3016

Citation

[2022] NZHC 3016
Court

High Court

No binding 10-year renewal existed: the 16 September 2015 communication was at most an offer contingent on further agreement and formal written variation; EcoWorld never accepted and there was no covenant in writing for PLA s261; consequently s264 relief, specific performance and estoppel failed. Port entitled to possession; EcoWorld and guarantor liable for reasonable costs to remove improvements and for legal costs under the lease.
29 Apr 2022

MARPHONA TRUSTEES LTD v NYX LTD [2022] NZHC 792

Citation

[2022] NZHC 792
Court

High Court

The strike-out application was dismissed because the statement of defence, read with the prior interlocutory judgment, disclosed arguable defences that a guarantor may assert where those defences are available to the principal debtor and because procedural non-compliance by the defendant did not, on the facts, amount to sufficient prejudice or abuse to justify striking the defence; the defendant was ordered to amend his pleading and allowed to proceed subject to case management directions.
13 Dec 2021

KUMAR v SARSFIELD ENGINEERING LIMITED [2021] NZHC 3408

Citation

[2021] NZHC 3408
Court

High Court

Clause 17.2(a) of the Agreement contained an obvious and commercially significant drafting error: the opening references to "Customer" must be read as "Guarantor". Correcting that linguistic mistake by construction preserved the guarantor's liability under the anti‑discharge provision (cl 17.2(a)(vii)), so the guarantor was not discharged by the variation and summary judgment for the respondent was properly entered.
4 Oct 2021

IKON BUILDING CO-OPERATION LTD v DUMASIA [2021] NZHC 2624

Citation

[2021] NZHC 2624
Court

High Court

Ikon failed to prove both that the conditional sale was a disposition from which the defendant intended to defeat creditors and that the requisite intent existed; conversion of land into cash for adequate consideration does not, without more, establish the necessary intent to defeat payment under r17.41, therefore leave to issue a pre-judgment charging order is refused and the existing charging order is discharged.
6 Aug 2020

CASATA LIMITED v FARR [2020] NZHC 1952

Citation

[2020] NZHC 1952
Court

High Court

Casata satisfied the statutory prerequisites for bankruptcy under s11 and s13; after weighing the debtor's arguments (delay, health, alleged unfairness, promise by creditor) the Court found those factors insufficient to justify refusing to exercise its discretion and ordered the debtor adjudicated bankrupt effective 14 August 2020 at 4:00 pm unless full judgment and interest paid by that time.
21 Sept 2018

STOCKCO LTD v SHARPIN [2018] NZHC 2486

Citation

[2018] NZHC 2486
Court

High Court

The court held that no special relationship existed between Rural and Mr Williams sufficient to give rise to a duty of care in tort leading to an indemnity; there was insufficient proximity, no clear assumption of responsibility or induced reliance by Rural to pay proceeds to Stockco, the alleged duty would be novel and unnecessary given alternative remedies, and policy considerations (including floodgates and existing indemnities) weighed against imposing such a duty; accordingly the third party's claim could not succeed and summary judgment was entered for Rural Livestock Limited.
27 Feb 2018

CONQUEROR INTERNATIONAL LTD v MACH’S GLADIATOR LTD [2018] NZHC 265

Citation

[2018] NZHC 265
Court

High Court

Defendants failed to prove on the balance of probabilities that an enforceable oral variation to the written ASP existed; the ASP and HOA govern allocation of uncompleted contracts and prepayments, HSD must pay the agreed wash‑up amount $438,006.26 and reimburse Conqueror for the EFAFLEX debt (€37,692); disputed EFAFLEX stock was obsolete and not payable; Le Breton is liable as guarantor/covenantor; contractual and statutory interest and indemnity costs are recoverable as ordered.