New Zealand Case Law: Decisions & Judgments

Topic

Stay pending arbitration

Legal area

Court

6 Jul 2018

OMV NEW ZEALAND LTD v PRECINCT PROPERTIES HOLDINGS LTD [2018] NZCA [240]

Citation

[2018] NZCA
Court

Court of Appeal

Clause 44.3 operates as an exception to the lease's arbitration clause (cl 44.1) and permits the landlord to bring court proceedings for unpaid rent; a tenant may plead a defence that rent is not payable, but set-offs and counterclaims arising from alleged breaches or misrepresentations are for arbitration; therefore the High Court rightly refused to stay the landlord's summary judgment proceedings and the appeal is dismissed.
8 Sept 2016

HORTIVENTURE LIMITED v ALPINE SUN LIMITED [2016] NZHC 2130

Citation

[2016] NZHC 2130
Court

High Court

The early possession application was struck out because Alpine Sun already had possession, the claim for early possession was otiose with no prospect of success, and the court therefore exercised its discretion to strike out the application and award costs to Hortiventure on a scale 2B basis.
5 May 2016

DRAKE CITY LTD v TASMAN-JONES [2016] NZHC 899

Citation

[2016] NZHC 899
Court

High Court

Clause 44.3 of the lease preserved the landlord's contractual right to commence proceedings for recovery of rent and other monies payable under the lease, so Drake's claim for rent and outgoings is not stayed by the lease arbitration clause; on transfer of the reversion Drake can enforce rent payable after transfer free of any set-off based on prior landlord's breaches; and the liquidator's disclaimer did not affect the defendants' liabilities as guarantors under s269(3) Companies Act 1993, so the defendants' application to dismiss or stay was dismissed.
17 May 2010

C A HARDING V A R HARDING AND ANOR HC WHA CIV-2010-488-000218

Citation

openlaw-22c1191a_dcd0_4e79_9d30_f047fddd32d5.pdf
Court

High Court

The court granted a declaratory judgment that the property should be sold but declined to make a bare order for sale because an enforceable sale order requires directions as to the manner of sale; given the arbitration clause the court reserved the stay application and the parties' rights, and therefore adjourned to allow the parties to agree the sale process rather than compel immediate arbitration or make an unenforceable sale order.
6 Apr 2006

SHELL (PETROLEUM MINING) CO LTD V TODD PETROLEUM MINING CO LTD AND ANOR HC WN CIV-2004-485-2233

Citation

openlaw-061e7a97_1fc1_448c_bcb1_b98aea0d7486.pdf
Court

High Court

s34 relief was refused because the statutory precondition (impracticability of using the constitution's own procedure) was not met, the dispute over retrospectivity fell within the heads of agreement dispute resolution/arbitration clause so a stay would lie, and the Court would not make potentially retrospective amendments without hearing all potentially affected third parties; leave to amend to add a declaration was refused because no live practical issue was shown and affected parties were not before the Court; the proceeding was dismissed.

New Zealand Case Law

OMV NEW ZEALAND LTD v PRECINCT PROPERTIES HOLDINGS LTD [2018] NZCA [240]

HORTIVENTURE LIMITED v ALPINE SUN LIMITED [2016] NZHC 2130

DRAKE CITY LTD v TASMAN-JONES [2016] NZHC 899

C A HARDING V A R HARDING AND ANOR HC WHA CIV-2010-488-000218

SHELL (PETROLEUM MINING) CO LTD V TODD PETROLEUM MINING CO LTD AND ANOR HC WN CIV-2004-485-2233