New Zealand Case Law: Decisions & Judgments

Topic

Guarantee enforceability

Legal area

Court

22 Mar 2022

FIRST MORTGAGE CUSTODIANS LIMITED v HERBERT [2022] NZHC 507

Citation

[2022] NZHC 507
Court

High Court

Summary judgment was dismissed because plaintiffs did not establish there were no arguable defences; defendants raised multiple triable issues (settlement effects on interest/costs, linked cross-claim from PLA notices, plaintiffs' alleged breach by not releasing GSA preventing refinancing, arguable duress/undue influence affecting Mrs Herbert with a realistic basis for imputing inquiry to lender, and material variation issues) that are fact‑dependent and unsuitable for determination on affidavit evidence.
2 Sept 2019

REGAN & TUFFIN v BROUGHAM & ORS [2019] NZCA 401

Citation

[2019] NZCA 401
Court

Court of Appeal

The Agreement contained all necessary written terms of the principal obligation and expressly identified and was signed by the guarantor; that satisfied the writing and signature requirements of s 27(2) Property Law Act 2007 so the Agreement itself constituted an enforceable guarantee against the first respondent and the lender's requirement for a separate deed was waived by advancing funds.
3 Jul 2013

ANZ BANK NEW ZEALAND LIMITED (formerly ANZ NATIONAL BANK LIMITED) v CALVERT [2013] NZHC 1624

Citation

[2013] NZHC 1624
Court

High Court

The defendant failed to establish an arguable defence: the 2007 guarantee, though not executed as a deed, was intended and interpreted as a continuing enforceable contractual guarantee supported by consideration and extending to future advances; s122 PLA did not require notice to the defendant in respect of the CFNZ mortgage because he was not a covenantor of that mortgage; accordingly there was no miscarriage of justice and the application to set aside summary judgment was dismissed.
8 Apr 2013

WESTPAC NEW ZEALAND LIMITED V DENNIS JOSEPH GARDINER HC PMN CIV 2011-454-000586

Citation

openlaw-f43be669_40a1_4876_92c6_54a835d9e91a.pdf
Court

High Court

The guarantees were enforceable and Westpac was entitled to rely on the solicitor's certificates given Tararua Law was instructed in accordance with the bank's standard requirements; there was no arguable defence of undue influence or imprudent lending, and Westpac took reasonable steps in marketing and sale such that the sale prices were the best price reasonably obtainable. Consequently summary judgment against the fourth defendant was entered and default judgments against the first and second defendants were not set aside, permitting adjudication orders for bankruptcy.
7 Mar 2012

CCNZ LIMITED V BOOTH HC HAM CIV-2011-419-1231

Citation

openlaw-f955fde9_7205_48b7_b734_4465a9bc5703.pdf
Court

High Court

The guarantee was enforceable because the parties were effectively bound to the franchise agreement by 30 March 2007 (lawyers' communication and subsequent ratification), so consideration was not past; however the original franchise agreement expired on 30 May 2010 and was not validly renewed, so the guarantee covers only liabilities accrued and unpaid as at 30 May 2010. Accounting for an admitted advertising refund, judgment was entered for NZD 60,271.48 with contractual interest at 12% p.a. from 30 May 2010; costs were assessed at NZD 6,000 plus disbursements.
19 Jul 2010

WALLACE V BBX FINANCIAL SOLUTIONS LTD AND ANOR HC AK CIV-2010-404-208

Citation

openlaw-19ebd565_7b66_47b4_a24d_c0524782b595.pdf
Court

High Court

The appeal was allowed because the plaintiffs failed to prove that the entity enforcing the guarantee (BBX Financial Solutions Ltd) had the contractual rights under the underlying agreement at the time the guarantee was given; the guarantee and membership agreement named different corporate entities, the contracting party that could claim the debt did not exist at the relevant time, and the District Court judgment was therefore given in favour of an entity that lacked entitlement (and had in fact ceased to exist).

New Zealand Case Law

FIRST MORTGAGE CUSTODIANS LIMITED v HERBERT [2022] NZHC 507

REGAN & TUFFIN v BROUGHAM & ORS [2019] NZCA 401

ANZ BANK NEW ZEALAND LIMITED (formerly ANZ NATIONAL BANK LIMITED) v CALVERT [2013] NZHC 1624

WESTPAC NEW ZEALAND LIMITED V DENNIS JOSEPH GARDINER HC PMN CIV 2011-454-000586

CCNZ LIMITED V BOOTH HC HAM CIV-2011-419-1231

WALLACE V BBX FINANCIAL SOLUTIONS LTD AND ANOR HC AK CIV-2010-404-208