12 Sept 2017
The application was not served within the statutory time and was withdrawn; therefore the proceeding was treated as a nullity and, applying the general rule that a discontinuing party pays costs, the applicant must pay the respondent's costs in the sum awarded.
29 Jun 2016
The court held there was no substantial factual dispute: the irrevocable NZD letter of credit issued by BNZ complied with the clear contractual wording in favour of Ecotech; on the facts Ecotech was in breach by failing to deliver the house and the purchaser had received no benefit for the payment so there was a total failure of consideration such that the deposit became recoverable by restitution and constituted a 'debt due' for the purposes of s289; accordingly the statutory demand was valid and the application to set it aside was dismissed.
1 Sept 2015
Both statutory demands were set aside because issuing notices against both companies showed there was a substantive dispute as to which company owed the debt, rendering the s 289 procedure inappropriate; consequently both notices were flawed and must be set aside; costs awarded on a 2B basis for one proceeding plus 10% of 2B for specified steps in the second proceeding, and disbursements to each applicant; no uplift for abuse of process was awarded.
19 Jul 2012
There was a sufficient evidentiary foundation of a genuine and substantial dispute as to whether the shareholder advances were repayable on demand (given conflicting affidavits, the commercial context of a start-up funded by shareholder advances and absence of decisive contemporaneous documentation), therefore the statutory demand must be set aside; further, issuing and opposing the demand in the context of the concurrent s174 proceedings was inappropriate and warranted an uplift in costs.