New Zealand Case Law: Decisions & Judgments

Topic

Disclaimer

Legal area

Court

24 Apr 2023

PGG WRIGHTSON REAL ESTATE LTD v ROUTHAN [2023] NZCA 123

Citation

(2023) 24 NZCPR 97
Court

Court of Appeal

The Court of Appeal allowed the appeal in part: the agent's disclaimer did not exclude liability for the misrepresentation, the Fair Trading Act claim was not time-barred, deceit was not established, but the recoverable loss was limited to the overpayment for the farm attributable to the misstatement measured at the transaction date; downstream forced sale losses, wasted capital expenditure and interest stemming from subsequent business decisions were outside PGG's scope of duty; damages were assessed at NZD 300,000 plus interest from settlement; cross-appeal dismissed.
30 Jun 2021

WATSON v ATTORNEY-GENERAL FOR THE SECRETARY OF THE TREASURY [2021] NZHC 1596

Citation

[2021] NZHC 1596
Court

High Court

Mr Watson, as a person who suffered loss from the Official Assignee's disclaimer, was entitled to apply under s119; given the absence of opposition, the protection of the mortgagee's interest, and Mr Watson's intention to repay borrowings from sale proceeds, it was fair to vest the property in him and the Court therefore granted the vesting order.
16 Jul 2019

GOLDSTONE v GOLDSTONE [2019] NZHC 1649

Citation

[2019] NZHC 1649
Court

High Court

The Court has an implied power to make conditional or joint vesting orders under s119 where necessary for fairness, but fairness must be assessed in context including post-disclaimer conduct and practicalities; adjudication and disclaimer extinguished PRA rights and vested the asset in the Crown so Family Court cannot resolve post-vesting disputes; here the sole fairest outcome was to vest the property in Reece because he alone preserved the property by making payments after separation and joint vesting would be impractical and fail to provide a workable means to recognise his substantial pos…
14 Dec 2017

THE FISH MAN LIMITED (IN LIQUIDATION) v HADFIELD [2017] NZCA 589

Citation

[2017] NZCA 589
Court

Court of Appeal

Loss or damage under s119 must be assessed at the time of disclaimer; The Fish Man suffered no loss at that time because the property had no equity and beneficial ownership vested in the Crown on disclaimer; The Fish Man cannot establish a proprietary interest in the property by tracing, backward tracing or equitable lien because misappropriated company funds were not used to acquire the property and no sufficient transactional coordination existed; Mrs Hadfield, by contrast, suffered loss as a relationship partner and had paid mortgage installments preventing foreclosure and is entitled to h…
19 Dec 2016

PARKER [2016] NZHC 3124

Citation

[2016] NZHC 3124
Court

High Court

The Court held that the Official Assignee's disclaimer relieved the bankrupt of liabilities under the mortgage, causing the applicant measurable loss by leaving him solely responsible for mortgage payments and outgoings; given that loss, the applicant's ongoing commitment to service the secured debt, the mortgagee's consent and the Crown's non‑objection, it was fair under s119(3) to vest the bankrupt's interest in the applicant, and the Court ordered vesting accordingly.
21 Jul 2016

Goodman v Attorney-General [2016] NZHC 1668

Citation

[2016] NZHC 1668
Court

High Court

Because the Official Assignee disclaimed the company's two-fifths interest which therefore vested in the Crown, the Crown expressly declined to claim the interest and consented to the plaintiff's application, and the plaintiff established beneficial ownership, the Court exercised its power under s 269(5) to vest the two-fifths share in the plaintiff.
16 May 2016

MICHELLE JANE HODDER v THE OFFICIAL ASSIGNEE [2016] NZHC 981

Citation

[2016] NZHC 981
Court

High Court

The Court found the applicant had suffered loss as a result of the Official Assignee's disclaimer and that, having regard to the absence of other interests, the prospects of the claim, and the applicant's serious personal and financial hardship, it was fair under s119(3) to vest the disclaimed family provision cause of action in the applicant; accordingly an order vesting the claim in Michelle Jane Hodder was made.
30 Oct 2014

NYDJ APPAREL, LLC v THE COMMISSIONER OF TRADE MARKS [2014] NZHC 2678

Citation

[2014] NZHC 2678
Court

High Court

In the context of jeans—where stitching commonly functions as a badge of origin—and given NYDJ's use, promotion, retailer recognition and willingness to limit the specification to jeans, specify contrasting red or purple colour and accept a targeted disclaimer, the criss-cross stitching has sufficient distinctive character (including acquired distinctiveness) to permit registration subject to those amendments and the disclaimer.
7 Feb 2014

OCEANIC SEAFOODS LIMITED v SILLA CO LIMITED [2014] NZHC 78

Citation

[2014] NZHC 78
Court

High Court

The application to set aside the statutory demand was struck out because the applicant company was in liquidation and the liquidator had disclaimed the proceeding, leaving the applicant unable to prosecute the application; the Court exercised its control over post‑liquidation proceedings and ordered the applicant to pay the respondent's costs on a scale 2B together with disbursements to be fixed by the Registrar.
16 Jul 2009

INTELLECTUAL RESERVE INC V SINTES CA CA31/2008

Citation

openlaw-b5527bc1_1dbc_4eac_baba_a2ba1eb4d4e5.pdf
Court

Court of Appeal

The Court held the respondent's composite mark (words 'family search' combined with a distinctive koru/arrow device) was sufficiently distinctive to satisfy s 18(1)(b) and, because the respondent's services (class 45 family tracing/personal services) are materially different from the appellant's genealogy services, use is not likely to deceive or cause confusion under ss 17 and 25; registration is permitted but must be subject to a disclaimer excluding exclusive use of the words 'family search'.