New Zealand Case Law: Decisions & Judgments

Topic

Mutuality

Legal area

Court

25 Feb 2021

ANYSLEY DEVELOPMENTS LIMITED v THREE60DEGREES LIMITED [2021] NZHC 280 [25 February 2021]

Citation

[2021] NZHC 280
Court

High Court

The Court found it reasonably arguable on the affidavit evidence that the $5,750 payment by DRH4 to the respondent was a mistaken overpayment and that the benefit of that payment was equitably assigned or otherwise available to Anysley so as to constitute a reasonably arguable counterclaim/credit; accordingly there was a genuine and substantial dispute as to the debt claimed and the statutory demand must be set aside.
15 Oct 2010

NYLEX (NEW ZEALAND) LIMITED (IN RECEIVERSHIP & IN LIQUIDATION) V INDEPENDENT TIMBER MERCHANTS CO-OPERATIVE LIMITED HC AK CIV-2010-404-002207

Citation

openlaw-d135311c_f637_49e4_906e_54bda6bf6194.pdf
Court

High Court

The Member Loyalty Programme benefits were earned by individual transacting shareholders and not ITM, so they were not contractually available for set-off by ITM; furthermore, any equitable/non-contractual set-off cannot be relied on because Nylex was in administration/receivership and liquidation and the Companies Act's mutuality-based statutory set-off rules apply, with no mutuality between ITM and Nylex, therefore ITM has no defence and judgment must be entered for Nylex.
24 Nov 2008

B MCCULLOUGH AND ANOR V BASE CONTROL LIMITED (IN LIQUIDATION) HC AK CIV 2008-404-3375

Citation

openlaw-309198e2_8a02_405c_8d43_99258ef6e00b.pdf
Court

High Court

Set-off under s 310 was available: there was sufficient mutuality because the appellants incurred personal liability as guarantors; their payment to the bank gave rise to a quantifiable subrogated claim which could be taken into account for set-off despite payment occurring after liquidation (authorities including Day and Stein); s 310(2)/(3) did not apply because the payment/subrogation was not a transaction or assignment within the specified/restricted periods that would attract the preference test; accounting reclassification could not alter the legal obligations shown by the loan and guar…
8 Aug 2008

STOLTEN AND ORS V SHANG YOUNG HC CIV 2008-404-001497

Citation

openlaw-0426fad7_3fc0_4b0e_a98c_5e65ef3be48b.pdf
Court

High Court

The memorandum of transfer must be construed as a whole; the Transferor's covenant that the land described in the First Schedule shall be subject to and benefit from the general scheme imports mutuality of burden and benefit across all lots, so the building scheme binds the defendant despite subdivision; the defendant had no real defence, summary judgment was appropriate, and an injunction was necessary because damages were inadequate and building would risk defeating the scheme.
21 Nov 2007

CEDENCO FOODS V AKIAKI LIMITED (FORMERLY CIRCLE PACIFIC LIMITED) HC NAP CIV 2007-441-439

Citation

openlaw-ddb6fd7c_1dfd_4bc2_925f_af56c4ccbfc1.pdf
Court

High Court

Cedenco could not recover or set off losses said to have been suffered by its subsidiary Sunrise because there was no mutuality or identity between Cedenco and Sunrise and the parties did not contemplate the contract operating for Sunrise's benefit; lifting the corporate veil was not justified; equitable set-off therefore unavailable; summary judgment for Circle was properly given and the appeal is dismissed.

New Zealand Case Law

ANYSLEY DEVELOPMENTS LIMITED v THREE60DEGREES LIMITED [2021] NZHC 280 [25 February 2021]

NYLEX (NEW ZEALAND) LIMITED (IN RECEIVERSHIP & IN LIQUIDATION) V INDEPENDENT TIMBER MERCHANTS CO-OPERATIVE LIMITED HC AK CIV-2010-404-002207

B MCCULLOUGH AND ANOR V BASE CONTROL LIMITED (IN LIQUIDATION) HC AK CIV 2008-404-3375

STOLTEN AND ORS V SHANG YOUNG HC CIV 2008-404-001497

CEDENCO FOODS V AKIAKI LIMITED (FORMERLY CIRCLE PACIFIC LIMITED) HC NAP CIV 2007-441-439