New Zealand Case Law: Decisions & Judgments

Topic

Incorporation by reference

Legal area

Court

1 Nov 2023

AIVITA HEALTHY NZ LTD v UNIPHARM MANUFACTURING CO. LTD [2023] NZCA 540

Citation

[2023] NZCA 540
Court

Court of Appeal

Clause 4.2 of the shareholders agreement objectively incorporated the pre-emptive rights in the contemporaneous draft constitution by reference; the clause properly deemed a transfer notice on certain triggering events (including change of control) and required application of the pre-emptive machinery, but because the price had not been agreed or determined under clause 5.3 the offer had not yet been made under clause 5.4 and the respondents had not lost their rights; the Court affirmed the High Court's order for specific performance requiring the appellant to offer its shares to the other sh…
29 Mar 2023

CHORUS LIMITED v MINISTER FOR THE DIGITAL ECONOMY AND COMMUNICATIONS [2023] NZHC 662

Citation

[2023] NZHC 662
Court

High Court

The Minister erred in law by misinterpreting 'UFB contract' and 'materially different' and by treating the Regulations as requiring incorporation of the WSA, Reference Offer, technical standards and the Commission's SPOI determination; those incorporated provisions were unlawful and were severable; severance of specified provisions left a textually coherent instrument that preserved the Regulations' statutory purpose, so the court declared specified provisions invalid and severed them rather than quashing the entire instrument.
22 Dec 2022

CHORUS LIMITED v MINISTER FOR THE DIGITAL ECONOMY AND COMMUNICATIONS [2022] NZHC 3602

Citation

[2022] NZHC 3602
Court

High Court

The Court held the Minister erred in law: the Constraint clause (sch 1AA cl 14/15) prevents recommending first regulations that prescribe service descriptions or conditions that are materially different from the terms set out in a UFB contract (the NIPA). The WSA/Reference Offer and other incorporated documents are not terms 'set out in' the UFB contract; incorporation by reference of those additional materials into the Regulations has a freezing effect and therefore produces descriptions/conditions materially different from the NIPA. The Minister also misinterpreted the purpose of anchor ser…
26 Aug 2022

LOW VOLUME VEHICLE TECHNICAL ASSOCIATION INCORPORATED v DRIVE NZ CLASSIC LIMITED [2022] NZCA 405

Citation

[2022] NZCA 405
Court

Court of Appeal

Because the regulatory regime embodied in the Land Transport Rule and the Low Volume Vehicle Code is directed to public road safety rather than protecting the private economic interests of LVV producers, Drive NZ lacked the necessary proximity and recognition of the novel duty would be contrary to policy; accordingly the pleaded negligence cause of action disclosed no reasonably arguable claim and was struck out. The Court did not decide the assignment point as it was unnecessary to the outcome.
30 Jun 2022

TAVENDALE & PARTNERS LTD v DINEEN [2022] NZHC 1530

Citation

[2022] NZHC 1530
Court

High Court

Applying a prima facie review the Court found there was at least a prima facie case that the Heads of Agreement dated 26 September 2014 was legally binding and (through cl 7.3 and/or incorporation of the 2014 draft shareholders agreement) contained an arbitration agreement covering disputes about the HOA and the incorporated shareholders agreement including the claims pleaded. The proceeding was therefore stayed and referred to arbitration, with the stay to remain at least until the arbitral tribunal determines its jurisdiction; costs awarded to defendant.
9 Sept 2015

SMITH CRANE & CONSTRUCTION LTD v HALL [2015] NZCA 427

Citation

[2015] NZCA 427
Court

Court of Appeal

Leave to appeal was declined because the central contested matter—whether the terms of the attached standard employment agreement were incorporated into the signed letter of offer—was a question of fact or of contract construction insulated from appeal by s214(1); the Employment Court did not err in its approach and no question of law of sufficient importance was established.
9 Feb 2015

CROWN ASSET MANAGEMENT LTD v CAMERON [2015] NZHC 98

Citation

[2015] NZHC 98
Court

High Court

Plaintiff failed to prove that the indebtedness sued upon fell within the definition of secured moneys under the 2009 mortgage or that earlier mortgage no 638239.5 was incorporated into the 2009 guarantee; SCF records were inadequate to establish the legal identity of the borrower or loan terms, therefore claims under the guarantee and in debt failed and judgment entered for the defendants.
11 Apr 2011

UDC FINANCE LIMITED V SCOTT & ORS HC AK CIV-2009-404-5140

Citation

openlaw-b0839d1a_be24_4003_b7fd_e9fa94f5f2d6.pdf
Court

High Court

The defendants raised an arguable defence regarding whether the Security Agreement signed by Horizon was incorporated into the Loan Schedule so as to permit acceleration; however, their delay in applying to set aside judgment was only modestly explained, and critically setting the judgment aside would not produce practical relief because the loan would in any event have fallen due shortly after the judgment date; on balance there was no miscarriage of justice warranting setting aside, so the application was dismissed.
8 Dec 2009

WELLS & OR V WELLS & OR HC AK CIV-2008-404-006379

Citation

openlaw-1ab20dd0_1e22_446b_9d71_baf63ea93d05.pdf
Court

High Court

The handwritten document and diagram did not evince the requisite intention to partially revoke or vary the earlier duly executed will; the wording was conditional and ambiguous, the diagram was inconsistent with the memorandum and lacked formal testamentary status, and the extrinsic evidence was insufficient to establish a codicil, so probate was granted only for the will dated 10 February 2002.
3 Jul 2009

WESTPAC NEW ZEALAND LIMITED V CLARK SC 67/2008

Citation

WESTPAC NEW ZEALAND LIMITED V CLARK SC 67/2008
Court

Supreme Court

A registered mortgage, although it confers indefeasibility as to title, does not secure obligations arising under a separate unregistered forged loan agreement signed by an impostor unless the registered mortgage (read with any registered memorandum under s155A) unambiguously incorporates obligations of the registered proprietor; here the mortgage/memorandum addressed 'you' to the registered proprietor and did not incorporate the impostor's forged loan, so registration would have secured nothing and the solicitor's failure to register caused no recoverable loss.