New Zealand Case Law: Decisions & Judgments

Topic

Interest rate swaps

Legal area

Court

30 Jun 2022

HENNAH & ORS v WESTPAC BANKING CORPORATION & OR [2022] NZHC 1526

Citation

[2022] NZHC 1526
Court

High Court

The Court found the impecuniosity threshold under HCR r 5.45 satisfied on the evidence and, balancing the parties' interests and the weaknesses identified in the plaintiffs' case, ordered modest security for costs of NZD 25,000 payable by a fixed date, refused to defer security until after discovery, required the plaintiffs to file an amended statement of claim providing clearer particulars by a set date, and dismissed the defendants' costs claim arising from the second plaintiff's discontinuance as disproportionate.
24 Jul 2020

ANZ BANK NEW ZEALAND LIMITED v BUSHLINE TRUSTEES LIMITED [2020] NZSC 71

Citation

[2020] 1 NZLR 145
Court

Supreme Court

On the balance of probabilities there was no representation or contractual undertaking by ANZ to fix the 0.7% margin for five years; the Court of Appeal erred in reversing the High Court's factual finding because the totality of the evidence (absence of corroborating ASB offer, late pleading of five-year claim, lack of knowledge by trustees, contemporaneous notes and witness evidence) did not establish the alleged five-year commitment. Appeal allowed and High Court decision restored.
4 Jun 2020

HENNAH v THE REGISTRAR OF COMPANIES [2020] NZHC 1232

Citation

[2020] NZHC 1232
Court

High Court

The application is dismissed because the applicant failed to provide the specific, mandatory information required by s329(1A) and the guidance in Commercial Management: no evidence of the ground for removal, inadequate explanation for not opposing removal, unjustified four‑plus year delay after the Commerce Commission findings, and lack of detail on remedying filing defaults, funding litigation, protecting unsecured creditors and providing security for costs; therefore it was not just and equitable to restore the company or to appoint the applicant as director.
25 Jun 2019

BUSHLINE TRUSTEES LIMITED v ANZ BANK NEW ZEALAND LIMITED [2019] NZCA 245 [24 June 2019]

Citation

[2019] 3 NZLR 455
Court

Court of Appeal

Court of Appeal allowed appeal: ANZ made a misleading Fixed Cost representation about swaps and gave enforceable undertakings to monitor/advice and to maintain a 0.70% margin (as understood by parties) which ANZ breached; s 4 Contractual Remedies Act did not permit ANZ to rely on disclaimer/no-reliance clauses to defeat those claims on the facts; damages inquiry remitted to High Court; High Court costs order quashed and CA costs awarded to appellants.
8 May 2018

RENIE GIBSON FAMILY TRUSTEE (2016) LIMITED trustee of the RENIE GIBSON FAMILY TRUST v WESTPAC BANKING CORPORATION [2018] NZHC 974

Citation

[2018] NZHC 974
Court

High Court

The Court refused to strike out or grant summary judgment because limitation and discovery issues, and the possibility of s28(b) postponement for concealment, raised contested factual questions unsuitable for summary disposal; the Fair Trading Act claim raised factual issues of discovery; negligent misstatement and duty of care claims were partly within time for losses occurring after specified dates and could be extended under s28(b) on the pleaded facts; contractual misrepresentation claims were time-barred except for inducement to execute the guarantee (a deed) which falls within 12-year l…
16 Oct 2017

BUSHLINE TRUSTEES LTD v ANZ BANK NZ LIMITED [2017] NZHC 2520

Citation

[2017] NZHC 2520
Court

High Court

Claims dismissed: the court found no binding agreement to fix margins at 0.70% for five years; the Bank made misleading statements comparing swaps to fixed loans but did not fraudulently conceal facts; crucially the swap and loan written terms (no‑reliance/entire agreement clauses) combined with solicitor's certificates of independent advice severed the proximity and reliance necessary for tort and contractual remedies and broke causation; most FTA claims were time‑barred and the CCCFA/oppression claim failed on the facts and objective commercial standards.
28 Nov 2016

CYGNET FARMS LTD v ANZ BANK NEW ZEALAND LTD [2016] NZHC 2838

Citation

[2016] NZHC 2838
Court

High Court

On the facts the bank volunteeringly compared swaps to fixed rate loans and offered and promoted market expertise; the factual relationship created a duty to take reasonable care that proffered explanations and answers to inquiries were accurate and honest; ANZ breached that duty and made actionable misrepresentations about swaps' likeness to fixed loans, suitability and availability of proactive advice; however contractual exclusion clauses and the signed no-reliance confirmations negate contractual liability and the Contractual Remedies Act s6(1)(b) precludes recovery of tort damages for an…
8 Aug 2016

BUSHLINE TRUSTEES LIMITED AND STEPHEN DANIEL COOMEY AS TRUSTEES OF BUSHLINE TRUST ONE BUSHLINE TRUSTEES LIMITED AND SHARON LOUISE COOMEY AS TRUSTEES OF BUSHLINE TRUST TWO v ANZ BANK NEW ZEALAND LIMITED [2016] NZHC 1818

Citation

[2016] NZHC 1818
Court

High Court

The court declined (effectively by withdrawal) the plaintiffs' split trial application and set an amended timetable; ordered ANZ to produce all versions of the Interest Rate SWAPs brochure/presentation used or edited by Mr Esquilant in 2007-2008; ordered ANZ to produce all documents relating to general client assessment and suitability for SWAPs between 2005 and 2013; ordered ANZ to provide an affidavit by Ms Hedley or another appropriate employee outlining steps taken to amend disclosures and distribute advisers' statements; refused a general release of the implied undertaking but endorsed a…
28 May 2015

COMMERCE COMMISSION v ANZ BANK NZ LTD [2015] NZHC 1168

Citation

(2015) 14 TCLR 71
Court

High Court

The Court has jurisdiction to grant a declaration under the Fair Trading Act despite absence of an express statutory power and it was appropriate to make a declaration here because ANZ admitted certain misleading conduct, did not oppose a declaration, a negotiated settlement provides compensation, and the public interest and practical utility (censure, deterrence, and recording of breach) justified the declaration.
12 Jun 2014

ANZ BANK NEW ZEALAND LIMITED v SURESH UNKA and KORIN UNKA as trustees of THE DUBLIN BAY FAMILY TRUST (NO 2) [2014] NZHC 1320

Citation

[2014] NZHC 1320
Court

High Court

Defendants had no arguable defence or equitable set-off: pre-contractual representations and swap risks were superseded by express entire agreement and exclusion clauses that broke causation; the bank owed no fiduciary duty or duty of care to guarantors to roll over RPHML's loan, and RPHML's failure to repay (not the bank's conduct regarding the swap) caused the losses; summary judgment for the bank was appropriate and counterclaims did not preclude judgment.