New Zealand Case Law: Decisions & Judgments

Topic

Severability

Legal area

Court

19 Jul 2023

BODY CORPORATE 406198 v PROPERTY OPPORTUNITIES LIMITED [2023] NZCA 302

Citation

[2023] NZCA 302
Court

Court of Appeal

Clause 5.6.6 is ultra vires because it is designed to compensate an exclusive letting regime that the body corporate had no statutory power to create; that clause is void ab initio. The management agreement otherwise is intra vires and the ultra vires letting provisions are severable. The unjust enrichment claim requires reconsideration in the High Court in light of the finding that clause 5.6.6 is ultra vires.
7 May 2020

BODY CORPORATE 406198 v PROPERTY OPPORTUNITIES LTD [2020] NZHC 926

Citation

[2020] NZHC 926
Court

High Court

The Court held that rr 3.1(v) and 3.2(l) of the 5 December 2008 Amended Rules were ultra vires ss15,16 and 37(5) of the Unit Titles Act 1972 and therefore void; the guarantee contained in the third schedule to the Lease dated December 2008 was ultra vires and void; however, on the summary judgment evidence the Court could not conclude the Lease itself was void ab initio because severability of the guarantee from the Lease raised a real question to be tried.
20 Nov 2017

Low Volume Vehicle Technical Association Inc v Brett [2017] NZHC 2846

Citation

[2017] NZHC 2846
Court

High Court

LVVTA had pecuniary loss (opportunity cost of staff time) and could sue; of 35 statements 10 were defamatory of both LVVTA and Johnson, 11 of LVVTA only, 5 of Johnson only and 9 not defamatory; absolute privilege protected statements contained in an affidavit and hyperlinking to the affidavit did not defeat that privilege; qualified privilege applied to statements about LVVTA's public regulatory functions and defeated liability for LVVTA but did not protect defamatory statements about the individual (Johnson); certain Settlement Agreement clauses that impermissibly restricted freedom of expre…
15 Feb 2013

GALLAWAY COOK ALLAN V CARR COA CA437/2012

Citation

COA CA437/2012
Court

Court of Appeal

The words 'and fact' granting appeals on questions of fact were collateral and severable from the arbitration agreement; the agreement remained an enforceable submission to arbitration, the parties had substantially performed the arbitration, and the statutory purposes of the Arbitration Act favored validating the agreement and refusing to set aside the award; therefore the High Court's setting aside was overturned and the partial arbitral award reinstated.
29 Mar 2012

BIZEASSET LIMITED V SU CASA PTY LIMITED HC AK CIV-2011-404-8185

Citation

openlaw-d02e10df_9e71_48e5_a057_730e0d8b301b.pdf
Court

High Court

Clause 30 is void for uncertainty because it creates 18 distinct time/area combinations without any mechanism to determine which combination applies, leaving the vendor unable to know the limits of prohibited activity; consequently there is no operative, enforceable restraint and s 8 Illegal Contracts Act 1970 cannot be used to modify a non‑agreement into an enforceable restraint.
5 May 2008

AIR NELSON LIMITED V THE MINISTER OF TRANSPORT AND ANOR CA CA279/06

Citation

openlaw-49c2b497_8771_4146_9ebd_ec3c9c38cd84.pdf
Court

Court of Appeal

The Court recalled its earlier judgment and reissued it to limit the quashing to the parts of the Ministers' decisions dealing with Scheduled Aircraft (Terminal Users), applying the Horowhenua 'very special reason' test and concluding the decisions are severable so that non-scheduled aircraft fees and overnight parking fees remain valid.

New Zealand Case Law

BODY CORPORATE 406198 v PROPERTY OPPORTUNITIES LIMITED [2023] NZCA 302

BODY CORPORATE 406198 v PROPERTY OPPORTUNITIES LTD [2020] NZHC 926

Low Volume Vehicle Technical Association Inc v Brett [2017] NZHC 2846

GALLAWAY COOK ALLAN V CARR COA CA437/2012

BIZEASSET LIMITED V SU CASA PTY LIMITED HC AK CIV-2011-404-8185

AIR NELSON LIMITED V THE MINISTER OF TRANSPORT AND ANOR CA CA279/06