New Zealand Case Law: Decisions & Judgments

Topic

Marshalling

Legal area

Court

27 Feb 2017

NAPIER v WAIMANA INVESTMENTS LTD [2017] NZHC 265

Citation

[2017] NZHC 265
Court

High Court

There was a serious question to be tried on whether the defendant's conduct was a departure from reasonable standards of commercial practice under s118 CCCFA, but on balance of convenience damages were an adequate remedy and the enforcement process should proceed; nevertheless overall justice warranted a short limited interim injunction (six weeks) to allow trustees to pursue voluntary sale options before defendant could exercise power of sale.
6 May 2016

GLOVER NO 2 LIMITED v BANK OF NEW ZEALAND [2016] NZCA 182

Citation

(2016) 17 NZCPR 236
Court

Court of Appeal

The 2009 GSA did create an equitable mortgage over CIT's after-acquired land (including the Tranche Two properties), but BNZ had not given a valid Property Law Act notice under the GSA/power of sale in April 2015 with respect to that equitable mortgage; accordingly the April 2015 notices did not entitle BNZ to sell the Tranche Two properties under the GSA and the appeal allowing that conclusion is required.
20 Jun 2014

RE STARPLUS HOMES LTD (IN LIQUIDATION)) v SUN [2014] NZHC 1395

Citation

[2014] NZHC 1395
Court

High Court

The Court exercised its discretion under the High Court Rules and equitable principles to allocate costs according to conduct and reasonableness: Mr Sun's adversarial and unmeritorious conduct unjustifiably increased other parties' costs and warranted increased costs awards against him to the successful building suppliers; United Timber acted responsibly and is not ordered to pay costs to other claimants; liquidators' reasonable indemnity costs as stakeholder are to be paid from the fund and are to be borne equally by Mr Sun and United Timber, with adjustments for hearing fees, and specific c…
6 May 2014

ADAMS AND BUCHANAN (AS LIQUIDATORS OF STARPLUS HOMES LTD (IN LIQUIDATION)) v SUN [2014] NZHC 912

Citation

[2014] NZHC 912
Court

High Court

Standard terms and memoranda of Magsons, Hamilton Hardware, United Timber and RD 1 created equitable mortgages that attached to present and after-acquired land; those equitable charges are valid and rank in time according to when they arose (Hamilton Hardware, RD 1, Magsons, United Timber), the registered second mortgage of Sun is valid but marshalling is available and should be applied because the order of sales by the senior mortgagee (ASAP) produced an arbitrary windfall to Sun; the Court directed proportional apportionment and reserved costs and precise quantification to allow submissions…
26 Apr 2013

TEGEL FOODS LIMITED V COASTAL CUISINE NZ LIMITED HC AK CIV-2012-404-5019

Citation

openlaw-e74f4dc7_2f4b_494a_a288_a2c46b086586.pdf
Court

High Court

Where a creditor holds a valid, unconditional guarantee and a secured purchase-money interest, the creditor retains the choice of remedies and, absent a proper basis for marshalling or contractual limit, guarantors can be sued immediately; the guarantees here either excluded marshalling or were ineffective to invoke it, and summary judgment was appropriate for the calculated outstanding sum and contractual costs.
22 May 2012

MFT PROPERTIES LIMITED V COUNTRY CLUB APARTMENTS LIMITED HC AK CIV-2010-404-5913

Citation

openlaw-cc251471_5828_4374_a198_5d9214ddfa3d.pdf
Court

High Court

The charging order 8952031.1 must be removed to permit the agreed sale to settle because the Public Trust, as superior mortgagee, effectively controls and dictates the sale and the subordinate charging order cannot prevent the sale; any marshalling rights of the respondent do not restrain the sale and can be pursued separately, but do not justify retaining the charging order prior to transfer.
20 Jun 2008

NEW ZEALAND ASSOCIATED REFRIGERATED FOOD DISTRIBUTORS LIMITED V RICHARD GRANT SIMPSON AND RONALD WALTON HC WN CIV-2007-485-1563

Citation

openlaw-1c245756_2ee5_49a4_8cc8_c585251e6de8.pdf
Court

High Court

The PMSI was confined to goods supplied after perfection (23 December 2004) and unpaid at receivership and to traceable proceeds; PPSA s82 (commingling) did not apply to expand NZARFD's claim; issue estoppel failed; marshalling did not increase NZARFD's quantification; Companies Act s293 principles could not be invoked by the receivers to 'rule off' pre-perfection indebtedness between competing secured creditors; on the balance of probabilities and applying pragmatic tracing the Court quantified NZARFD's recoverable PMSI as $134,781.66 (stock on hand) plus 20% of $380,306 accounts receivable…
3 Nov 2006

THE OFFICIAL ASSIGNEE IN BANKRUPTCY OF THE PROPERTY OF CHRISTOPHER STEPHEN CUMINGS V NEIL AINSWORTH KIRK AND PETER JOHN MULHOLLAND AND ANOR HC AK CIV 2006-404-006754

Citation

openlaw-a093f3f0_8fbc_4557_af32_7c0ecda7c41c.pdf
Court

High Court

The guarantees expressly waived any right to marshalling and the affidavits and correspondence did not disclose sufficient evidence of bad faith by the mortgagee or of dishonest assistance by the defendants; therefore the plaintiff failed to establish a seriously arguable case and the interim injunction must be dismissed.