New Zealand Case Law: Decisions & Judgments

Topic

Acceleration clause

Legal area

Court

27 Aug 2021

TURNOVER LIMITED v BUY RIGHT CARS (2016) LIMITED [2021] NZHC 2217

Citation

[2021] NZHC 2217
Court

High Court

The alleged acts by the purchaser (personnel decisions, changes in stock composition, and aged stock disposal policies) were operational, business‑as‑usual decisions of degree rather than changes to the scope, nature or manner of the business as contemplated by the fundamental covenants; therefore no fundamental covenant was breached and the earn‑out acceleration clause was not triggered. The May Variation ceded formal operational control to purchaser upon payment on 31 August 2017. Late expert material was admitted on an issue‑by‑issue basis where relevant but some opinions were excluded or…
7 May 2021

THOMAS and THOMAS v HARNISH [2021] NZHC 1007

Citation

[2021] NZHC 1007
Court

High Court

The Court found the company defaulted by failing to pay the November 2016 instalment, the plaintiffs validly accelerated the loan and validly appointed receivers under the general security agreement and applicable law, and the receivers acted as agents of the company so the plaintiffs are not liable for the receivers' conduct; summary judgment on liability for the plaintiffs was granted and the matter was adjourned for proof of quantum.
5 Sept 2018

HEAVYWEIGHT HIRE LTD v FOREST MANAGEMENT LTD [2018] NZHC 2332

Citation

[2018] NZHC 2332
Court

High Court

On the evidence the wash-up accounting explained the disputed dockets and Heavyweight did not prove underpayment; FML must nonetheless reimburse Heavyweight for reasonable third-party discovery costs because FML failed to disclose material accounting documents; insufficient books/statements prevent the Court deciding the Bluff Structures conversion claim so FML must prepare and provide proper financial accounts and a balance sheet; the contract acceleration clause brought the full balance due on default (20 April 2015) so penalty interest applied from that date and, after accounting for inter…
14 Jun 2018

HI-TECH LTD v WAIKATO MILKING SYSTEMS PARTNERSHIP LTD [2018] NZHC 1413 [14 June 2018]

Citation

[2018] NZHC 1413
Court

High Court

Clause 9.2(b) was to be given a broad commercial construction to protect the vendor's earn‑out entitlement; it encompasses the giving up/cessation of a part of the Business (here the direct servicing function contributing c.11.67% of revenue) even absent a transfer of legal title or grant of rights to a third party, and WMS's cessation/disposal of the servicing function triggered immediate liability for the contingent sums; summary judgment accordingly granted for Hi‑Tech.
24 Nov 2017

EXPORT FINANCE LTD v MELLSOP & Ors [2017] NZHC 2908

Citation

[2017] NZHC 2908
Court

High Court

The Deed of 21 February 2014 was unambiguous and dispositive; defendants failed to produce credible, corroborated evidence of any contradictory oral agreement or estoppel, failed to establish oppression under the CCCFA or that the default interest rate was a penalty, and therefore had no real defence to defeat summary judgment; accordingly judgment for the plaintiff was entered for the claimed amounts including default interest from 30 May 2017.
9 Mar 2017

BANK OF NEW ZEALAND v VAN HEERDEN [2017] NZHC 395

Citation

[2017] NZHC 395
Court

High Court

Summary judgment was refused because the defendant raised an arguable defence of undue influence/duress as to assumption of her husband's and the company's debts, the bank failed to produce a written guarantee for the company making a material evidential gap, and on the evidence before the court it would not be appropriate to conclude the defence was hopeless without a full hearing.
5 Dec 2016

ANZ BANK NEW ZEALAND LIMITED v JOE [2016] NZHC 2925

Citation

[2016] NZHC 2925
Court

High Court

The Bank demonstrated valid assignment of Origin's loan rights, showed enforceable acceleration provisions in the loan documents and memoranda of mortgage, and established that the s119 notices operated as contractual call-ups under Koroniadis; the borrowers defaulted, the sales produced a shortfall, the guarantors failed to pay after demand, no defence was filed, and accordingly summary judgment was entered for the Bank for the claimed shortfall plus interest and costs.
16 May 2016

ASB BANK LIMITED v CARNEY [2016] NZHC 992

Citation

[2016] NZHC 992
Court

High Court

The Court of Appeal decision in Koroniadis is directly applicable: a s 119 notice that specifies acceleration under s 120(1)(d)(i) is sufficient to trigger a contractual call‑up acceleration clause; accordingly ASB validly accelerated the loan, the defendants had no defence to the claim for the sale shortfall, and summary judgment was appropriate awarding the shortfall, interest at 22.50% p.a. from 24 May 2013, and full solicitor‑client costs.
27 Oct 2015

GREYS AVENUE INVESTMENTS LIMITED v NEW ZEALAND MINT LIMITED

Citation

openlaw-f9a2057b_783a_4692_9056_e27f7e5a1e4c.pdf
Court

High Court

Where the creditor's position as creditor for the amount in the statutory demand has been vindicated by repayment through lawful deductions under the lease, withdrawal of the demand does not indicate creditor failure and costs on the setting aside application are not payable by the creditor; costs on the costs application are awarded to the successful party in respect of that application.
10 Aug 2015

BURGESS V TSB BANK LIMITED CA47/2014 [2015] NZCA 361

Citation

(2015) 16 NZCPR 728
Court

Court of Appeal

The Court held the notice complied with s120: the defaults were accurately specified as at the notice date, the action required to remedy them was adequately stated (including information enabling calculation of interest and weekly fees to date of payment), and approximations for costs did not invalidate the notice because the notice had the same effect as the prescribed form and was not misleading; minor departures were cured by Interpretation Act s26; the bank validly exercised its power of sale and was entitled to recover the shortfall; the bank was contractually entitled to indemnity cost…