28 Jan 2020
MONTGOMERIE v MONTGOMERIE [2020] NZCA 3
- Citation
- [2020] NZCA 3
- Court
- Court of Appeal
The Court held the March 2017 agreement required repayment of the capped debt by 15 October 2018 (time being of the essence); the possibility of non‑payment was contemplated and provided for so frustration did not apply (neither wholly nor partially); the 2017 agreement failed leaving the parties to revert to the 2011 loan agreement, and clause 6 of the 2011 agreement obliges the defaulting party to pay indemnity costs; accordingly summary judgment was properly entered and the appeal is dismissed.