New Zealand Case Law: Decisions & Judgments

Topic

Guarantee liability

Legal area

Court

12 Dec 2023

SENIOR TRUST CAPITAL LIMITED v HANNON [2023] NZHC 3628

Citation

[2023] NZHC 3628
Court

High Court

The applications were dismissed because, although the failure to file a defence was acceptably explained, Catherine did not demonstrate a reasonably arguable defence sufficient to show a miscarriage of justice: the estoppel and implied term arguments as to repayment from R1 were not tenable in the commercial context and were undermined by the contemporaneous facts and parties' positions; the duress defence was abandoned and contrary to contemporaneous evidence and affirmation; no arguable breach of s176 was established; accordingly the default judgment and the bankruptcy notice were properly…
25 Sept 2023

STRATTON PROPERTIES LTD v CONSTRUCTION PROPERTIES LTD [2023] NZHC 2666

Citation

[2023] NZHC 2666
Court

High Court

The court held the first defendant had no arguable defence to liability because the written agreements expressly reserved the vendor's right to alter stages of the development (clause 23.3) and contained exclusionary clauses that, in the commercial context between experienced parties with legal advice, precluded reliance on the alleged pre-contractual representations about Stage 2; consequently cancellation was not legally effective and specific performance was ordered against the first defendant, with leave reserved to pursue remedies against the guarantor if the purchaser fails to perform.
31 Mar 2023

MASTER BUILD SERVICES LIMITED v QUEENSTOWN LAKES DISTRICT COUNCIL [2023] NZHC 698

Citation

[2023] NZHC 698
Court

High Court

The Court held MBS has a genuine commercial interest in the homeowner's assignment because it paid under the Guarantee and recoupment was factored into the commercial product; the validity of the assignment is not defeated by the form of the Guarantee nor by the limited scope of subrogation available to guarantors; factual disputes about coverage and responsibility prevent striking out or summary judgment. Accordingly QLDC's strike out and summary judgment applications were dismissed.
9 Nov 2022

ANZ BANK NEW ZEALAND LTD v LEE [2022] NZHC 2938

Citation

[2022] NZHC 2938
Court

High Court

The applicant established a good arguable case under the guarantee, there is an identifiable asset (the respondent's residential property) and cogent evidence of asset disposal and probable absconding such that there is a real risk of dissipation; the balance of convenience favoured preservation of the respondent's equity pending determination of the substantive claim and ancillary disclosure from banks and the respondent was necessary to identify other assets; accordingly freezing and disclosure orders were justified and properly made without notice given the risk of prejudice to the applica…
12 Jul 2022

CARTERS BUILDING SUPPLIES LTD v BUDHIRAJA [2022] NZHC 1640

Citation

[2022] NZHC 1640
Court

High Court

Because the defendant had executed a guarantee making him liable as sole and principal debtor, the agreement and guarantee were validly assigned to Carters, the defendant was validly served by substituted service and took no steps or raised no reasonably arguable defence, the Court entered summary judgment for the plaintiff for the principal, accrued interest and enforcement costs and ordered contractual post‑judgment interest to continue accruing.
14 Feb 2022

TEMPEST LITIGATION FUNDERS LTD v ZHANG [2022] NZHC 170

Citation

[2022] NZHC 170
Court

High Court

The judgment was set aside because the defendant demonstrated an arguable defence that clause 34.3 does not operate to assign the lease to individual shareholders but instead triggers the landlord's consent provisions, her delay was reasonably explained by reliance on prior solicitors and language barriers, and Tempest would not suffer irreparable harm if the judgment were set aside; therefore, continuation of the default judgment would risk miscarriage of justice under r 15.10 HCR.
26 Jul 2021

SHK TRUSTEE COMPANY LIMITED v NZDMG LIMITED [2021] NZHC 1895

Citation

[2021] NZHC 1895
Court

High Court

The court dismissed the defendants' application to stay to arbitration because defendants had, by filing a substantive memorandum and participating in the summary judgment process, elected to submit the substance of the dispute to the court; the plaintiff was entitled to summary judgment for unpaid rent and outgoings for periods when access was not legally restricted, but summary judgment could not be granted for periods where clause 27.5 arguably entitled the tenant to a fair proportionate abatement (specifically 23 March–13 May 2020 and 13 August–30 August 2020), and issues about the adequa…
4 Jun 2021

SOMERFIELD INVESTMENTS LIMITED v SINFUL COFFEE LIMITED [2021] NZHC 1327

Citation

[2021] NZHC 1327
Court

High Court

Because the director's affidavit acknowledged the $10,228.85 was payable by the company and remained unpaid, there was no genuine dispute about that liability; the dispute resolution clause did not preclude summary judgment in those circumstances, and summary judgment was therefore entered for that sum while the balance of the claim was adjourned for hearing.
19 May 2021

BANK OF NEW ZEALAND v ROXBURGH [2021] NZHC 1115

Citation

[2021] NZHC 1115
Court

High Court

The defendants executed the Guarantee and Indemnity; the receiver appointment constituted an event of default making the indebtedness immediately payable; demands were made and remain unpaid; no defence was filed or shown to have any real prospect of success; accordingly summary judgment is entered for the Bank for the principal, contractual interest (calculated under the Facility Document and Master Terms and pursuant to s 22(2) of the Interest on Money Claims Act 2016) and contractual costs and disbursements.
24 Sept 2020

BRAUNINGER v WESTEND [2020] NZHC 2512

Citation

[2020] NZHC 2512
Court

High Court

The appellants failed to discharge the burden of proving a breach of the confidentiality clause because their primary evidential basis was inadmissible hearsay and the remaining admissible evidence was weak; the application to adduce further evidence on appeal was refused as not fresh and not meeting the exceptional-grounds test; accordingly the appeal is dismissed and the District Court judgment for the respondents is upheld.