New Zealand Case Law: Decisions & Judgments | LexChat

Topic

Non-waiver clauses

Legal area

Court

12 Dec 2013

BOS INTERNATIONAL (AUSTRALIA) LIMITED v STRATEGIC NOMINEES LIMITED (IN RECEIVERSHIP) CA327/2013 [2013] NZCA 643

Citation

[2013] NZCA 643
Court

Court of Appeal

Capitalised interest under the Senior Facility Agreement was contractually converted into principal (both pre- and post-default where BOS exercised its contractual option to capitalise); accordingly such capitalised amounts were not 'interest' for the purposes of the Intercreditor Deed's priority provisions, the non-waiver clauses did not permit BOS to retrospectively recharacterise or reverse its prior election to capitalise, and therefore BOS's priority was limited to its Nominated Amount of NZD 27,549,000 with the excess payable to Strategic.
29 Apr 2013

STRATEGIC NOMINEES LIMITED (IN RECEIVERSHIP) V BOS INTERNATIONAL (AUSTRALIA) LIMITED HC AK CIV 2012-404-006007

Citation

openlaw-27549d36_50c6_4a59_ab19_9b78bbbf5e9e.pdf
Court

High Court

The court held that interest capitalised in accordance with the Senior Facility Agreement ceased to be interest and became part of the principal facility outstanding for the purposes of the inter creditor deed; the deletion of '(including capitalised interest)' from paragraph (b) supports that construction; non-waiver clauses did not permit BOS to reverse its prior election to capitalise interest and treat it as interest again; on that basis BOS received $804,586.91 in excess and judgment in that sum was entered for Strategic.