New Zealand Case Law: Decisions & Judgments

Topic

Cross claim

Legal area

Court

28 Jul 2022

WESTPAC NEW ZEALAND LTD v CHEN [2022] NZHC 1834

Citation

[2022] NZHC 1834
Court

High Court

The application to set aside was dismissed because the debtor failed to establish a cross claim of true substance equal to or exceeding the judgment debt and failed to demonstrate a genuine intention to pursue it; the debtor could have raised the cross claim in defence of the summary judgment but did not, there was no contemporaneous evidence of creditor pressure at the time of sale, and therefore the statutory threshold under s 17 was not met.
1 Apr 2021

BAX v POROS [2021] NZHC 741

Citation

[2021] NZHC 741
Court

High Court

Because the Family Court and High Court had determined that Poros did not possess a relationship property claim equal to or exceeding the judgment debt and high threshold leave to appeal had been declined by the High Court, there was no longer a genuine triable cross claim; a pending leave application to the Court of Appeal did not preserve a triable claim, so the application to set aside the bankruptcy notice was dismissed.
17 Aug 2018

LISTER v LISTER [2018] NZHC 2128

Citation

[2018] NZHC 2128
Court

High Court

Application dismissed because the debtor failed to establish a s 17 cross claim: the asserted beneficial entitlement lacked mutuality with the costs debt, the debtor declined an available interim distribution that would have satisfied the debt, and the creditors’ conduct in serving the bankruptcy notice was not oppressive or abusive such that the notice should be set aside.
10 Aug 2018

UPPER HUTT CITY COUNCIL v KENT [2018] NZHC 2041

Citation

[2018] NZHC 2041
Court

High Court

The application to set aside the bankruptcy notice was dismissed because the judgment debtor failed to demonstrate a cross claim equal to or exceeding the judgment debt as required by s17 of the Insolvency Act 2006; absence of a sufficient cross claim is fatal to the application.
25 Oct 2017

ALUMINIUM PLUS WELLINGTON LIMITED (IN LIQUIDATION) v SHAW [2017] NZHC 2607

Citation

[2017] NZHC 2607
Court

High Court

The applications were dismissed because the Shaws failed to establish a genuine, triable cross claim within the meaning of s 17(7) of the Insolvency Act 2006; the matters relied upon were raised or could have been raised in the original proceedings or on appeal, an appeal does not constitute a cross claim, there was no abuse of process and service was valid, therefore the bankruptcy notices stood.
13 Apr 2017

THE MINISTRY OF JUSTICE v MCGUIRE [2017] NZHC 742

Citation

[2017] NZHC 742
Court

High Court

Application to set aside the bankruptcy notice dismissed: the sealed-order defects were technical and caused no prejudice and were cured under s418 of the Insolvency Act; there was no binding agreement or conduct by the Ministry amounting to acquiescence, laches, estoppel or unconscionability to prevent enforcement; no arguable abuse of process existed; Ministry entitled to enforce the judgment debt and to costs.
5 Dec 2014

ROBERTSON & ANOR v ASB BANK LIMITED CA616/2013 [2014] NZCA 597

Citation

[2014] NZCA 597
Court

Court of Appeal

The Court allowed the appeal because there was a reasonably arguable genuine triable cross claim under s176 of the Property Law Act based on evidence that ASB and its agents may have compromised marketing and mishandled a significant offer, and the High Court had erred by evaluating merits rather than triability; accordingly the bankruptcy notices were set aside and the High Court costs order quashed.
16 Apr 2014

WIKELEY v JACOMB CA836/2013 [2014] NZCA 146

Citation

[2014] NZCA 146
Court

Court of Appeal

The Court dismissed the appeal because the appellant failed to establish a genuine triable cross claim: the call on shares was the product of an engineered series of events suggestive of bad faith and impropriety and, in any event, the asserted claim lacked the necessary interdependence with the judgment debt to constitute an equitable set-off; therefore the bankruptcy notice could not be set aside under s17.
28 Mar 2014

DILWORTH TRUST BOARD v KUN WEI CHEN [2014] NZHC 610

Citation

[2014] NZHC 610
Court

High Court

The applicant failed to show any cross claim equal to or greater than the judgment debt that could not have been used as a defence in the summary judgment proceedings; alleged new evidence from completion of motorway works does not constitute a new cross claim but merely additional evidence of already-argued defences; the stay application was procedurally defective and, on discretionary grounds (delay, lack of leave, absence of strong appeal prospects), a stay was not justified. Accordingly both the set aside and stay applications were refused.
5 Jun 2013

THE COMMISSIONER OF INLAND REVENUE v H HAYES [2013] NZHC 1317

Citation

[2013] NZHC 1317
Court

High Court

The debtor's filings were out of time and not properly served; the statutory 10 working day limit in s17 is jurisdictional for bringing a cross claim and cannot be extended under s417 because s17 defines an act of bankruptcy; the papers do not satisfy s17(7) and High Court Rules r5.61 bar set off/counterclaims in Crown tax recovery, so the court has no jurisdiction to entertain the debtor's purported cross claim and an act of bankruptcy has occurred allowing the Commissioner to proceed.