New Zealand Case Law: Decisions & Judgments

Topic

Due diligence condition

Legal area

Court

13 Apr 2022

KHALESI & ANOR v LANE & ANOR [2022] NZHC 787

Citation

[2022] NZHC 787
Court

High Court

On the summary record the applicants put forward a reasonably arguable case: contemporaneous texts and emails support that an oral agreement was concluded, the $100,000 Bartercard payment occurred after formation and constitutes part performance, and the respondents' conduct (including chasing confirmation and later commentary about resolving Bartercard) makes it reasonably arguable that it would be unconscionable to rely on the writing requirement; accordingly the caveats must not lapse pending substantive hearing.
18 Jan 2022

BIRDWOOD RODNEY TRUSTEE LTD v BLUE MOON LTD [2022] NZHC 23

Citation

[2022] NZHC 23
Court

High Court

Blue Moon acquired the right to avoid the agreement for failure to fulfil the DD condition on 30 October 2020 but, under the contract, avoidance required written notice served in accordance with clause 1.3; Blue Moon also acquired the right to cancel for Birdwood's breach (non-payment of rates) effective from 27 November 2020 once time was made of the essence and the breach was not remedied; the February 2021 email and March 2021 text did not incontrovertibly satisfy the contract's notice formalities or clearly evince cancellation such that it was patently clear the caveat could not be mainta…
14 May 2021

MELCO PROPERTY HOLDINGS (NZ) 2012 LTD v HALL [2021] NZCA 184

Citation

(2021) 22 NZCPR 186
Court

Court of Appeal

The appeal was dismissed because Melco failed to show a reasonably arguable causal link between Hall's conduct and Melco's inability to fulfil the due diligence condition; there was no evidence an engineer's report could reasonably have been obtained before the 9 January deadline, so Hall was entitled to avoid the agreement and the caveat could not be sustained; Hall had no obligation to notify Melco he would not grant an extension and no enforceable duty of good faith to forgo his commercial interests.
3 May 2021

STUDIO NEW ZEALAND LTD v WALLACE & ORS [2021] NZHC 959

Citation

[2021] NZHC 959
Court

High Court

On an objective construction of the 27 August and 7/9 September 2020 communications, the parties agreed the legally essential terms (property, price of $53.5m, due diligence condition) and manifested an immediate intention to be bound; given the parties' prior dealings and the language used, it was reasonably arguable that Bruce and Robert Wallace had ostensible authority to represent the trustees; accordingly SNZ established a reasonably arguable equitable interest supporting the caveat and the caveat should be sustained pending trial.
29 Oct 2020

MELCO PROPERTY HOLDINGS (NZ) 2012 LTD v HALL [2020] NZHC 2831

Citation

[2020] NZHC 2831
Court

High Court

Although an arguable implied term existed obliging the vendor to provide reasonable access for due diligence, Melco failed to establish an arguable causal link that any default by the vendor caused Melco's inability to fulfil or waive the due diligence condition before it expired; there was insufficient evidence that access on the disputed date would have produced a timely report or led Melco to confirm or waive the condition, so the vendor validly cancelled and the caveat cannot be maintained.
3 Jun 2015

TORBAY VIEW TRUSTEE LIMITED v GLENVAR EVERUNI LIMITED [2015] NZHC 1236

Citation

[2015] NZHC 1236
Court

High Court

The court dismissed the application to sustain the caveat: although the sub-sale was ratified, Torbay View's caveat was effectively a second caveat in respect of the same interest as Land Trust Ltd's earlier caveat and required a High Court order under s148 which was not obtained; additionally clause 20 was interdependent and not unilaterally waived by Glenvar, Glenvar validly avoided the head agreement under the contract's condition regime, and consequently Torbay View had no caveatable interest to sustain.
24 Oct 2014

MIHARO FARM LIMITED v ALLEN [2014] NZHC 2623

Citation

[2014] NZHC 2623
Court

High Court

Summary judgment was declined because there was a bona fide, material dispute of fact about whether the vendor complied with the variation's consultation obligation and whether the parties agreed to change the lot boundaries; the plaintiff failed to meet the onus under r12.2, and confirmation of satisfaction of the due diligence clause did not waive the consultation requirement nor remove cl 20.1 which remained effective.
2 Apr 2014

NOPERA LOG HOUSE LTD v M E & S L GODSIFF [2014] NZHC 639

Citation

(2014) 15 NZCPR144
Court

High Court

Nopera failed to establish an arguable case that the Godsiffs' conduct caused its failure to confirm the due diligence clause by the deadline; accordingly the Godsiffs were entitled to cancel and the caveat could not be sustained even though, generally, a contract conditional on OIA consent can pass an equitable interest.
22 Jul 2009

HERON'S FLIGHT LIMITED V NZ PROPERTIES INTERNATIONAL LIMITED HC AK CIV-2009-404-002101

Citation

openlaw-b3b1bf64_aeca_4596_9874_f380d1d3fc79.pdf
Court

High Court

The Court found that by her conduct (silence at the January meeting, presence at signing, permitting Lowndes to draft and advance the agreement) the purchaser clothed Mr Lowndes with ostensible authority to act as her legal advisor and to confirm satisfaction of the due diligence condition; his notification that the condition was satisfied bound the parties, the contracts became unconditional and the agent's commission was earned.
15 Feb 2007

CITY PROPERTY HOLDINGS LIMITED V BRITISH MERCANTILE AND LOAN TRUST COMPANY LIMITED HC AK CIV 2006-404-006807

Citation

openlaw-e689c5b3_3ad2_49b2_8065_860e0f2d75cb.pdf
Court

High Court

It was reasonably arguable that the purchaser's solicitor's letter of 28 July 2006 constituted unilateral notice of satisfaction of the due diligence condition and therefore an enforceable contract and equitable interest existed; because disputed facts and law remained, the caveat should be preserved pending the applicant commencing specific performance proceedings by a set date.