New Zealand Case Law: Decisions & Judgments

Topic

Frustration of contract

Legal area

Court

16 Dec 2022

NEW ZEALAND’S BLUFF OYSTER COMPANY (2013) LTD v MAASS MUSSELS & OYSTERS LTD [2022] NZHC 3475

Citation

[2022] NZHC 3475
Court

High Court

The High Court held the HoA was frustrated by the statutory biosecurity intervention, but clause 2.3 ('additional rent') related to the acquisition of MMO's oysters (cl 4) rather than ordinary future rent, and that part of the agreement was properly severable under s68 CCLA and was wholly performed except for ascertainable payments; NZBO was liable for the outstanding unpaid portion ($195,000) but the District Court's application of 12% contractual default interest was quashed and interest is to be recalculated under applicable statutory regimes.
22 Feb 2021

PRESTIGE MOTORS LTD v MY TRUSTEE CO LIMITED [2021] NZHC 237

Citation

[2021] NZHC 237
Court

High Court

The s245 notice was non-compliant in multiple respects (failed to specify lease clauses or statutory basis, lacked supporting invoices, gave an eight working day remedy period instead of required 30, and failed to advise of s253 rights), creating a reasonable possibility the applicant will succeed on the merits; the applicant faced harm not adequately reparable by damages (loss of business, staff, customers, proprietary rights) and that harm outweighed prejudice to the landlord which retained contractual protections; accordingly interim measures restoring the status quo and re-entry were gran…
18 May 2020

NZME LIMITED v NINE ENTERTAINMENT CO. HOLDINGS LIMITED [2020] NZHC 1029

Citation

[2020] NZHC 1029
Court

High Court

The application for interim orders was dismissed because, on the balance of convenience and overall justice, NZME had low prospect of matching an unconditional competing offer that did not require Commission clearance, damages would be an inadequate but modest remedy for NZME while an injunction posed a real risk of derailing a viable third party transaction with significant job losses and public interest harm, so interim relief was refused.
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.
28 May 2019

AIR NEW ZEALAND LTD v BP OIL NEW ZEALAND LTD & ORS [2019] NZHC 1187

Citation

[2019] NZHC 1187
Court

High Court

The court found a contract for supply existed on the express and implied terms and, applying BP Refinery criteria and contextual factors, implied a term that Z must take all reasonable endeavours to supply Air NZ's fuel requirements; an unqualified continuous supply obligation was not reasonable or commercially coherent in context; the court also found Z satisfied the reasonable endeavours obligation and the contracts were not frustrated.
8 May 2019

MONTGOMERIE v MONTGOMERIE [2019] NZHC 989

Citation

[2019] NZHC 989
Court

High Court

The March 2017 Agreement required the capped debt to be repaid (or substantially repaid with accounting) by 15 October 2018; defendants did not satisfy that requirement and did not make any arguable case that the agreement was frustrated by the builder default or otherwise unenforceable; plaintiff was therefore entitled to call up and recover the total debt under the original loan agreement and summary judgment was entered for the plaintiff.
20 Dec 2017

About Image Limited v Advaro Limited [2017] NZHC 3264

Citation

[2017] NZHC 3264
Court

High Court

Representative relief was declined because all proposed represented parties are already parties and representative orders were unnecessary; however the court identified and ordered a stage-one trial of specific common issues because there are genuine common contractual and factual issues (interpretation of generic documents and the factual matrix) that will materially narrow or dispose of the litigation; privilege claims must be considered against a narrowed, pleadings‑linked discovery request and proven on a document‑by‑document basis; two non-complying plaintiffs were given an unless order…
4 Jul 2017

PETER BRENT HOME HUBBARD & ORS v KIWIRAIL LIMITED [2017] NZCA 282

Citation

(2017) 18 NZCPR 620
Court

Court of Appeal

The trigger notice and the rent sought were a valid exercise of KiwiRail's contractual rent review rights; the valuers' joint recommendation fell within the terms of the lease and KiwiRail acted reasonably and not in bad faith; appellants were obliged to pay the stipulated rent pending arbitration and declined to engage in arbitration or pay, so relief against forfeiture was properly refused and the appeal was dismissed.
15 Dec 2016

L WEST v ONEW GROUP LIMITED [2016] NZHC 3066

Citation

[2016] NZHC 3066
Court

High Court

The caveat was sustained because there is a reasonably arguable equitable interest: disputed expert evidence and unresolved factual questions about whether the vendor complied with its contractual and RMA-related obligations (including further terms obliging it to obtain and implement consents) make summary removal inappropriate; the vendor had not demonstrated it had taken required steps or that specific performance was unavailable or futile.
28 Oct 2015

THE ROMAN CATHOLIC BISHOP OF THE DIOCESE OF CHRISTCHURCH v RFD INVESTMENTS LIMITED (IN RECEIVERSHIP) (IN LIQUIDATION) [2015] NZHC 2647

Citation

[2015] NZHC 2647
Court

High Court

The Court held that Clause 25(iii) only prescribes allocation of insurance proceeds and does not imply termination of the 999 year lease; designation, notice of intention to acquire and the indemnity insurance payment did not frustrate the lease, and therefore the Bishop's leasehold interest subsisted at the time of Crown acquisition and is compensatable.