New Zealand Case Law: Decisions & Judgments

Topic

Deposit recovery

Legal area

Court

8 Sept 2022

PRINCIPLE DEVELOPMENTS LTD v SLOTEMAKER [2022] NZHC 2283

Citation

[2022] NZHC 2283
Court

High Court

The statutory demand was set aside under s 290(4)(a) because there is a substantial and arguable dispute as to whether PDL breached clause 25.1: the clause reasonably refers to the existing constructed and council‑certified building platform and to earthworks that would alter or reposition the platform or its amenity, whereas the evidence shows remedial earthworks were undertaken adjacent to and to protect the platform and there is no clear change to its physical attributes; therefore it is arguable no debt is owing and the demand must be set aside.
19 Aug 2021

KINLEITH LAND AND INFRASTRUCTURE LTD v BREMWORTH LTD [2021] NZHC 2145 _x000b_

Citation

[2021] NZHC 2145
Court

High Court

There was no credible or documented variation of the SPA relieving KL&I of its obligation to pay the 10% deposit due on 17 September 2020; the Settlement Notice did not waive or extinguish Bremworth's already accrued unconditional right to the deposit and expressly preserved intermediate rights of cancellation; KL&I failed to establish a genuine and substantial dispute that the deposit was due, therefore the statutory demand could not be set aside.
30 Nov 2020

DOWNER v SIGNATURE DEVELOPMENTS LIMITED (Costs Judgment] [2020] NZHC 3157

Citation

[2020] NZHC 3157
Court

High Court

Signature breached clause 26 by consenting to the assignment without obtaining purchaser approval; the identity of the named tenant (KiNZ) was an essential term; assignment to Pukekohe Educare substantially reduced the benefit of the ASP such that purchaser was entitled to cancel under s 37(2) CCL Act and recover the $466,000 deposit; defendant took positions lacking merit and failed to accept clear legal arguments, justifying a 30% uplift on scale costs under r 14.6.
23 Sept 2020

DOWNER v SIGNATURE DEVELOPMENTS LIMITED [2020] NZHC 2488

Citation

[2020] NZHC 2488
Court

High Court

Vendor breached clause 26 by consenting to assignment of the agreement to lease without obtaining purchaser's consent; clause 26 was objectively essential to purchaser at contract formation; there was not sufficient or substantial performance to avoid cancellation; purchaser validly cancelled under s37(2)(a) (and s37(2)(b) alternatively) and is entitled to repayment of the deposit with interest.
3 Apr 2019

MQF PROPERTIES LIMITED v MOSLI [2019] NZHC 673

Citation

[2019] NZHC 673
Court

High Court

Because the deposit was unconditionally due before cancellation, the vendor could recover it as an accrued debt after cancellation; the Court had jurisdiction over the overseas defendant as the contract was to be performed and breached in New Zealand and the defendant filed no defence, warranting summary judgment.
30 Oct 2012

MACDONALD V C1 GLOUCESTER STREET LIMITED HC CHCH CIV 2010-409-001531

Citation

openlaw-a953cdc2_1d31_4823_97ce_ea715b4a15a9.pdf
Court

High Court

There was no valid variation of the written agreement: no meeting of minds, no principal representation to create apparent authority in Summerfield, and no pleaded statutory writing defence or part performance to validate an oral variation. The vendor therefore breached by providing a single title and single apartment instead of the two units and separate titles required by the contract; the purchaser validly cancelled for repudiation and is entitled to return of the deposit, interest and costs.
20 Dec 2010

HARLOW V SHERMAN LTD CA CA785/2009

Citation

openlaw-7b1422bd_19e7_458b_910d_d2dea062d7e0.pdf
Court

Court of Appeal

The Court held Sherman was not entitled to register the three covenants because the parties did not agree to them, they were created by the vendor after the agreement in breach of its duties as constructive trustee, clause 5.2(2) did not apply to voluntary covenants created post-contract, failure to requisition did not amount to acceptance, and Sherman was not ready, able and willing to settle so its cancellation was invalid; therefore the High Court judgment was set aside, deposit refund with interest ordered and costs awarded to appellants.
26 Aug 2010

LA ROSA & ANOR V MACENNOVY TRUST LIMITED HC AK CIV 2009-084-000053

Citation

openlaw-1f519053_7204_4e45_be3c_801ac09a7577.pdf
Court

High Court

Clause 17 was construed as a purchaser‑benefit subjective satisfaction clause (effectively an option) allowing the plaintiffs to cancel on subjective grounds within the due diligence period; there were no genuine factual issues preventing summary determination and the defendant's proffered defences (no consideration for extension, implied good faith breach, misrepresentation) were not arguable on the evidence, therefore summary judgment for return of the deposit with interest was appropriate.
26 Nov 2008

K V H HC AK CIV 2007-404-2244

Citation

openlaw-38d7a8b1_9be1_4998_b1f5_71028c528b83.pdf
Court

High Court

Application dismissed because it was inordinate (approximately 10 months) out of time with no application or satisfactory explanation for enlargement, and because the proposed grounds were predominantly factual with concurrent findings against the appellant and no arguable question of law or public importance to justify leave.
14 Oct 2008

CARLOS CONCEPTS LTD V KOBZA HC AK CIV 2008-404-4437

Citation

openlaw-b4b18d6f_9228_49c4_b3ab_a032db7b0663.pdf
Court

High Court

Clauses 12.1 and 8.7 impose distinct obligations: the vendor was obliged to obtain the land use consent (cl 12.1) and, separately, under cl 8.7(4) was obliged to serve notice of fulfilment; failure to give that notice entitled the purchaser to cancel under cl 8.7(5) and recover the deposit, therefore the District Court's judgment was upheld and the appeal dismissed.