New Zealand Case Law: Decisions & Judgments

Topic

Originating application without notice

Legal area

Court

1 Jul 2022

KHOV v NZDMG LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION) [2022] NZHC 1563

Citation

[2022] NZHC 1563
Court

High Court

The Court exercised its discretion under s 286(4)(b) to permit the applicants to be appointed as liquidators of the subsidiaries because they posed no perceptible risk to independence, had no prior connection with shareholders or directors that would give rise to a disqualifying continuing business relationship under s 280, and appointment of the same liquidators was in the best interests of creditors and would be expedient and cost effective; the application could properly proceed without notice under r 7.23 given urgency and protections for creditors.
3 Mar 2020

C A L Gower and A J Grace [2020] NZHC 355

Citation

[2020] NZHC 355
Court

High Court

The Court exercised its power under s 32(7) of the Receiverships Act 1993 to excuse the receivers from liability for rent and other lease payments for a limited period (15 working days) because urgency and the prospect of selling the franchise as a going concern justified temporary relief, franchisees had been meeting most rents so landlords were unlikely to be materially worse off, and dispensing with service and permitting commencement without notice was necessary in the interests of justice.
29 Jul 2019

BOSTON TRUSTEES 3131 LIMITED v CHAPMAN [2019] NZHC 1801

Citation

[2019] NZHC 1801
Court

High Court

The Court granted the application because under s52(1) Trustee Act a vesting order was appropriate and necessary to enable settlement and discharge of the mortgage; service on Mrs Chapman was dispensed with because evidence established she lacked capacity and there was no prejudice or opposing interest; the trust deed permitted a corporate sole trustee so vesting in Boston Trustees was lawful.
4 Mar 2019

SUNDE v SUNDE [2019] NZHC 325

Citation

[2019] NZHC 325
Court

High Court

Permission granted to commence by without‑notice originating application; service dispensed on incapacitated former trustees and beneficiaries because medical evidence established lack of capacity and service would serve no useful purpose; equitable interest had passed to continuing trustees and, under s 52(1)(b)(i), legal title to the listed properties was vested in the continuing trustees Kevin Paul Sunde, Roy Melvin Sunde and Marina Anne Sunde.
29 Nov 2018

WAGNER v WAGNER [2018] NZHC 3120

Citation

[2018] NZHC 3120
Court

High Court

On medical evidence the respondent was under a disability; under s 52(1)(b)(i) the Court may vest trust land in trustees where a trustee is incapacitated. The application was uncontentious, appropriately brought by originating application without notice, and a litigation guardian was unnecessary. Accordingly the Court vested the named land in the new trustees and granted procedural relief.
29 Nov 2018

HUNT v MORAN [2018] NZHC 3108

Citation

[2018] NZHC 3108
Court

High Court

Because Patricia Moran was medically established as incapacitated and had been validly discharged as trustee, the Court exercised its power under s52 Trustee Act 1956 to vest 34 Magnolia Drive in the remaining and newly appointed trustees to enable sale; the originating application procedure and without‑notice hearing were justified as the matter was uncontentious and in the interests of justice; a litigation guardian was unnecessary given the limited relief and absence of sensible opposition.
1 Mar 2018

Auckland Council and Her Majesty the Queen [2018] NZHC 275

Citation

[2018] NZHC 275
Court

High Court

The Court ordered extinguishment of the restrictive covenant because the covenant was obsolete following repurposing of the land, obtaining the required consents was impracticable due to the large and increasing number of titles, and extinguishment would not cause detriment; the Originating Application could be heard without notice and the Registrar‑General must implement the order.
21 Nov 2017

Fabish and Ors [2017] NZHC 2850

Citation

[2017] NZHC 2850
Court

High Court

The Court held it was expedient to vest the Tariki Hall land in the newly appointed trustees under s52(1)(h) and to confer on them the power to sell the land under s64(1); the originating application without notice was appropriate because there was no opposing party and the application affected only the applicants.
3 Jul 2017

JACKSON AND GRAHAM v PORWAL [2017] NZHC 1514

Citation

[2017] NZHC 1514
Court

High Court

The Court held that the receivers had a proper claim under s12 to access electronic devices likely containing company material, that urgency justified hearing the originating application without notice, and that a preservation order for forensic copying was necessary to prevent destruction or alteration of evidence and to preserve the receivers' position; accordingly orders were made requiring the respondent to produce specified devices for forensic copying and reserving leave for further inspection orders.
21 Jul 2014

VOLLEMAERE & ORS [2014] NZHC 1698

Citation

[2014] NZHC 1698
Court

High Court

The Court was satisfied that Mrs Powell had been validly removed as trustee due to incapacity supported by medical evidence, that replacement trustee had been appointed, that vesting was necessary to regularise title and enable disposal, and that no interested party would be prejudiced by proceeding without notice; accordingly vesting orders under s52 Trustee Act 1956 were granted and costs were ordered to be paid from Trust funds.