20 Oct 2021
The debtor failed to establish a genuine, triable cross claim under s17(1)(d)(ii) because the charging order claim was speculative, unsupported by evidential proof of personal loss, primarily concerned loss to the trust not the debtor, and involved an implausible chain of contingencies; accordingly the bankruptcy notice was not set aside and no stay or adjournment was warranted.
29 Nov 2013
The Court had jurisdiction to review the Associate Judge's chambers decision; the Calvert Guarantee was enforceable despite imperfect deed formalities because the parties objectively intended to be bound and consideration existed as a continuing guarantee covering later advances; the 2009 loan agreements were secured by that continuing guarantee; the Bank was not required to serve a s122 PLA notice on Mr Calvert in relation to CFNZ's Hot Water Beach mortgage and, in any event, he suffered no prejudice; accordingly the review application was dismissed.
18 Feb 2013
The Court held that Jansen held-over after the lease expired and thereby became a monthly tenant under clause 38; covenants to pay rent and reinstate touched and concerned the land and ran with the reversion so Petra could enforce them; the guarantors remained liable under the guarantee; Petra's re-entry was justified by the circumstances and Petra was entitled to damages for reinstatement and loss of rent, but the appropriate assessment produced damages of $72,500 (reduced from the District Court/global figure) and contractual interest at 15% from 19 December 2007.
14 Dec 2011
Leave to appeal was granted because the central issue—whether estoppel can render an unwritten or unsigned guarantee enforceable—is a novel question of law of general importance potentially extending beyond pre-Property Law Act guarantees, and the interests of justice justified a further appeal despite the modest amount at stake.
11 Sept 2009
Appeal allowed because the documentary record was ambiguous on the critical issue of whether the parties agreed a fixed two year sub-lease term; that ambiguity meant there was an arguable defence requiring oral evidence, cross-examination and credibility findings, so summary judgment was inappropriate; enforceability of any guarantee depends on establishing the agreed term and any writing satisfying the Contracts Enforcement Act 1956.
7 Sept 2009
Defendant has no reasonably arguable defence: no actionable loss existed because no sale had been completed; plaintiff complied with its duties under s176 (obtained valuations, engaged competent agents, provided adequate publicity) and defendant failed to plead or adduce evidence that plaintiff was mortgagee in possession; the guarantee is supported and/or authenticated by the deed and acknowledgment of consideration; summary judgment for plaintiff is warranted, subject to entry of judgment on amounts to be specified by plaintiff.
19 Oct 2007
Court found defendant breached duty to obtain informed consent when acting for both spouses but did not know of any undue influence; breach did not cause plaintiff's loss because on the evidence it was more likely than not that plaintiff would have signed the guarantee regardless; guarantee was enforceable by the bank.