New Zealand Case Law: Decisions & Judgments

Topic

Finance condition

Legal area

Court

28 Oct 2021

SAREEN v OBEROI & OR [2021] NZHC 2884

Citation

[2021] NZHC 2884
Court

High Court

Leave granted under s165 because there are reasonably arguable claims that the finance condition was arguably satisfied and that the first respondent, as director of the purchaser company, acted to prevent fulfilment and thereby breached fiduciary duties; those claims have sufficient prospect of success and it is arguably in the company's interests to pursue them, so all statutory criteria for leave are met.
3 May 2021

TUIALII and TUALA v FCQ CONSTRUCTION LIMITED [2021] NZHC 965

Citation

[2021] NZHC 965
Court

High Court

The 27 January 2021 email, read objectively in context, amounted to effective notice given within time that the purchasers had arranged finance (bank approval) and that the agreement was no longer conditional on finance but only on issue of title; therefore the vendor could not validly cancel for non‑satisfaction of the finance condition, the purchasers had an arguable caveatable interest and the caveat was upheld subject to conditions requiring commencement of specific performance proceedings within 20 working days and diligent prosecution; respondent to pay applicants' costs.
10 Feb 2021

XING MENG v ZHANG [2021] NZHC 131

Citation

[2021] NZHC 131
Court

High Court

Because the applicants succeeded in sustaining the caveat (albeit for a limited three month period) they are the successful party for the interlocutory proceeding and are entitled to costs on a Category 2B basis together with disbursements as fixed by the Registrar.
13 Sept 2019

MATTHEW FRANCIS STRACK, TRACEY LEIGH STRACK AND WMC TRUSTEE LIMITED v DAVID HARVEY GREY [2019] NZCA 432

Citation

(2019) 20 NZCPR 408
Court

Court of Appeal

Respondent failed to prove on the balance of probabilities that he could not have obtained finance; he did not take reasonable steps (no loan application, no market testing, no mortgage broker or other lenders approached, did not seek vendor finance); accordingly damages are assessed on the ordinary expectation measure and respondent must pay $150,000 (difference between contract price and resale price).
21 Sept 2018

LUCAS v KROEF [2018] NZHC 2478

Citation

[2018] NZHC 2478
Court

High Court

The caveat was removed because the purchaser failed to establish an arguable equitable interest: the agreement was formed on 23 August 2018, the 5-day finance condition expired at 5.00pm on 28 August 2018, the trustees validly exercised the escape clause and cancelled the agreement on 29 August 2018, and there was no clear and unequivocal representation by agents with authority to extend the finance date that would give rise to estoppel.
11 Aug 2017

WATENE v WIKI [2017] NZHC 1908

Citation

[2017] NZHC 1908
Court

High Court

Purchaser was entitled to avoid the contract because the finance condition remained unfulfilled after a reasonable time for obtaining title and settlement had passed; where the condition is for the purchaser's benefit and there is no vendor default, no prior notice of intention to cancel is required; accordingly the vendor must return the deposit.
28 Feb 2012

PUREWAL BS & JK LIMITED v CONNELL STREET LIMITED COA CA49/2011

Citation

openlaw-3ffa1c87_c977_4e8e_a76f_b9b8ccbdf2f2.pdf
Court

Court of Appeal

An offer of finance received by the purchaser on 15 October 2007 satisfied the REI-ADLS finance condition; the purchaser breached cl 8.7(2) by failing to notify the vendor and therefore could not rely on non-fulfilment to avoid under cl 8.7(5); alternatively the purchaser was estopped by silence/duty to speak after inducing the vendor to grant repeated extensions; appeal dismissed and High Court decision affirmed.
17 Dec 2010

CONNELL STREET LIMITED V PUREWAL B.S. & J.K. LIMITED HC AK CIV-2009-404-000870

Citation

openlaw-7e2d8b35_1e85_4d87_9fd7_f03c118600c3.pdf
Court

High Court

The finance condition was satisfied because the bank's clear, certain offer in response to Purewal's application amounted to 'arranging finance' under cl 8.1; alternatively, Purewal by its silence and conduct induced Connell to reasonably believe the contract was unconditional as to finance and is estopped from denying that position; Purewal repudiated and plaintiff is entitled to expectation damages equal to the difference between contract price and current market value less the deposit, with forfeiture of the deposit and interest on damages from issue date.
19 Jun 2009

TUPE V TUPE HC AK CIV 2009-404-1050

Citation

openlaw-2094479e_799b_4249_bc6a_2bf1579bda82.pdf
Court

High Court

Promissory estoppel was not made out because the respondents did not prove they relied on the vendors' representation to their detriment or that it was likely they would have obtained finance within the short additional period; accordingly the vendors' cancellation was effective and the caveat was unjustified.