New Zealand Case Law: Decisions & Judgments

Topic

Personal guarantees

Legal area

Court

14 Aug 2020

CAMERON v VAN DIJK [2020] NZHC 2061

Citation

[2020] NZHC 2061
Court

High Court

Clause D(b) constituted a clear, unequivocal personal undertaking by Mr Van Dijk to place the specified funds (reduced to $1,000,000 under clause D(c)) into a solicitor's trust account by the agreed date; clause D(a) did not relieve him of that obligation; Mr Van Dijk did not establish a reasonably arguable defence or impossibility of performance; therefore specific performance ordering payment into trust was appropriate, subject to lapse if BNZ confirmed prior release of the guarantees.
24 May 2018

BRAMBLES NEW ZEALAND LTD (trading as CHEP New Zealand) v BRAID [2018] NZHC 1187

Citation

[2018] NZHC 1187
Court

High Court

Although final District Court judgments existed and an act of bankruptcy had been committed, the Court exercised its discretion under ss 36 and 37 to refuse adjudication because the debtors had no assets to satisfy judgment, the bankruptcy would achieve nothing for creditors, the debtors suffered severe economic loss caused by the Christchurch earthquakes and other hardship (including serious ill health), and there was no public interest factor outweighing these considerations; the Court declined to re‑litigate the underlying judgment beyond assessing the challenge's sufficiency to justify ad…
22 Jun 2015

CARTER HOLT HARVEY LIMITED v BRIAN SCHLEGEL [2015] NZHC 1414

Citation

[2015] NZHC 1414
Court

High Court

The creditor established the s13 requirements (debt, act of bankruptcy, timing); alternatives to bankruptcy were not available or viable; the interests of the creditor and the public (accountability for guarantees, protection of commercial community and risk from allowing an insolvent person to present as unbankrupt for financial services registration) outweigh the debtor's personal hardships; accordingly it was proper to exercise the discretion under ss36-37 to adjudicate the debtor bankrupt.
25 Nov 2013

WESTPAC NEW ZEALAND LTD v ADAMS [2013] NZHC 3113

Citation

[2013] NZHC 3113
Court

High Court

The Court held Ingrid would have had to discover the specified brix specifications, cash flow forecasts and forward price projections if it were a party because those documents are in its control, are relevant to the Adams' experts' assessment of lost profits and comparability between Edzell and Ingrid operations, and the limited scope of documents sought is proportionate; accordingly an order for non-party discovery was made and costs were allocated against Ingrid for the application with compliance costs payable by the Adams on a solicitor/client basis.
30 Oct 2013

JOHNSTON v MAPP [2013] NZHC 2858

Citation

[2013] NZHC 2858
Court

High Court

Defendant failed to prove she was a surviving de facto partner at the time of death; available evidence did not establish the alleged gifts or oral personal guarantees; as administrator the defendant applied estate proceeds in breach of the statutory trust for the siblings and those who knowingly received funds in breach of trust (or to whom funds were traceable) are liable to account, resulting in declarations and orders for repayment and accounting.
3 Oct 2013

Re LI [2013] NZHC 2582

Citation

[2013] NZHC 2582
Court

High Court

The Court approved the proposal because statutory procedures were complied with, the requisite majorities of creditors accepted the proposal, the trustee reported it was advantageous to creditors relative to bankruptcy, and despite modest returns and uncertainty about performance there was a reasonable prospect of payment and mechanisms to return the proposal to Court if default occurred.
24 Jul 2013

BRIDGECORP LTD (IN REC AND IN LIQN) v NIELSEN [2013] NZHC 1848

Citation

[2013] NZHC 1848
Court

High Court

The Official Assignee proved it was not in the public interest to discharge Nielsen: he demonstrated continued commercial irresponsibility, failure to comply adequately with bankruptcy duties and disclosure, continuing involvement and control of business and trust assets during bankruptcy, and posed a real risk of further creditor loss; conditions would be inadequate protection, therefore bankruptcy was lawfully extended until at least 23 November 2015.
23 Apr 2013

WHITE CLIFFS FORESTS LIMITED V ALISTAIR CHARLES NICHOLLS HC AK CIV 2012-404-007231

Citation

openlaw-a786386e_a22b_47f5_a30e_e5571b7837d2.pdf
Court

High Court

Contemporaneous supply records and unchallenged affidavit evidence established average supply met or exceeded the quantities defendants later relied upon; defendants' assertions of a binding supply agreement guaranteeing minimum 5 (or 7) loads were inconsistent, implausible and unsupported by contemporaneous documents, so there was no reasonably arguable defence to the plaintiff's claim under the clear, unqualified guarantee and summary judgment against the first defendant for $240,000 was warranted.
6 Dec 2011

CARL YUNG GEMS LIMITED V LEADING DESIGN JEWELLERY LIMITED HC AK CIV-2007-404-2545

Citation

openlaw-b4778331_5aec_4c75_978d_40186db071b4.pdf
Court

High Court

The May 2003 printed credit terms were not varied to a six-month credit term; the October 2003 variation resulted in CY Gems manufacturing finished product in China with Leading Design to pay invoiced price plus an additional payment equal to half of an understood 20% margin applied against the core debt by post-dated cheque; the evidence did not establish a joint venture or a guaranteed 20% margin or an entitlement to the pleaded set-off; the Fair Trading Act counterclaim and claims for aggravated/exemplary damages lacked evidential foundation; the personal guarantees remained effective and…
16 Nov 2011

ANCA PROPERTIES LIMITED V MA BURT & P M BURT HC NAP CIV-2011-441-411

Citation

openlaw-d39d8626_2f27_429e_87a3_48ecd82fabad.pdf
Court

High Court

Although the proposal obtained the requisite creditor votes, the court refused approval under s333(3)(c) because inadequate disclosure, the complexity of interposed companies and trusts, the risk to the commercial community and the need for independent investigation made it inexpedient to approve a minimal 1.5 cents in the dollar proposal; accordingly the court adjudicated both applicants bankrupt.