New Zealand Case Law: Decisions & Judgments

Topic

Mitigation of loss

Legal area

Court

20 Oct 2023

WATSON v MASTERTON INVESTMENTS LTD [2023] NZCA 507

Citation

[2023] NZCA 507
Court

Court of Appeal

No binding lease-to-buy agreement was formed because essential terms were unresolved and parties intended to be bound only by a formal written agreement; negotiations were without prejudice and rights were expressly reserved so there was no clear unequivocal representation giving rise to waiver or estoppel; the vendor acted reasonably in marketing and accepting a bona fide resale in the circumstances including COVID-19 uncertainty, therefore the vendor did not fail to mitigate and the High Court judgment awarding damages stands.
21 Sept 2023

MILLS and MILLS v FENG and WANG [2023] NZHC 2641

Citation

[2023] NZHC 2641
Court

High Court

On undisputed facts a reasonable person in the plaintiffs' position would have declined the 15 July 2022 offer because it exposed them to a substantial risk the defendant could not settle (given his reliance on sale of his own unsellable property and low initial deposit); therefore there is no real question to be tried on mitigation and summary judgment is appropriate; charging order should continue and costs awarded.
5 Sept 2023

WHAKARURU v BATH [2023] NZHC 2474

Citation

[2023] NZHC 2474
Court

High Court

Summary judgment on resale loss was appropriate because the defendant failed to establish a reasonably arguable defence that plaintiffs did not act reasonably to mitigate. Given plaintiffs' urgent financial position, the defendant's delayed, conditional and unproven ability-to-pay offer of $1,000,000 with six months' extension was not reasonably required to be accepted or revisited, and the resale process (auction after increased marketing, acceptance of strongest post-auction conditional offer) was objectively reasonable. Calculations of penalty interest, resale costs and rates were correctl…
29 Jun 2023

ELYSIAN PROPERTY TRUSTEE LIMITED v WANG [2023] NZHC 1639

Citation

[2023] NZHC 1639
Court

High Court

Summary judgment was appropriate and entered as to liability because the defendant failed to settle as required by the agreement, the vendor validly served a settlement notice and cancelled the agreement, and the defendant's solicitors had twice acknowledged he would not dispute liability; however summary judgment as to quantum was declined because there were genuine and material disputes of fact and valuation (assessment date, market value, mitigation and seriousness of competing offers) that required trial evidence.
13 Jun 2023

PRICEWATERHOUSECOOPERS v ZAG LTD [2023] NZHC 1470

Citation

[2023] NZHC 1470
Court

High Court

The Court ordered particular discovery in part: documents exchanged between PwC and Police for the 27 February 2017 mediation and/or negotiating or agreeing the Settlement Deed that set out or respond to either party's substantive claim must be disclosed because the reasonableness and quantum of PwC's settlement is squarely pleaded, disclosure is necessary in the interests of justice under s57(3)(d) and collateral waiver arose given the Settlement Deed incorporated and waived privilege in schedule A and annexures. The Court declined to require disclosure of Project Delay documents (including…
22 May 2023

MILLS and MILLS v FENG and ENG [2023] NZHC 1199

Citation

[2023] NZHC 1199
Court

High Court

The application was dismissed because the applicant failed to establish a probable substantial miscarriage of justice: evidence indicated the co-defendant likely lacked accessible assets and was overseas, enforcement in China would be difficult but that risk falls on the joint debtor; the applicant's financial disclosure was inadequate and recent transfers suggested available assets; the applicant's counterclaims were weak and insufficient to justify a stay.
16 May 2023

DIRECTUS SOUTH EAST ASIA LIMITED v CNG INTERNATIONAL LIMITED [2023] NZHC 1161

Citation

[2023] NZHC 1161
Court

High Court

Summary judgment was granted because the defendants had no real defence to the plaintiff's claim on the clear unqualified contractual indemnity: defendants had waived or were estopped from invoking the valuation and dispute resolution mechanisms by their conduct and delay, plaintiff reasonably mitigated loss by paying the creditor to avoid further interest and costs, unconscionability allegations lacked evidential foundation, and alleged counterclaims were inchoate and could not constitute an equitable set-off sufficient to defeat the claim on summary judgment.
3 Feb 2023

TOBEM HOLDINGS LIMITED v KID COUNTRY HOLDINGS LIMITED (in liquidation) [2023] NZHC 98

Citation

[2023] NZHC 98
Court

High Court

The Lease was interpreted according to its express terms: rent was to be calculated under clause 4.10 on the basis of the resource consent for 150 children and Kid Country was liable for 50% of outgoings for the whole Development. Kid Country breached by failing to pay rent and outgoings; Tobem validly mitigated (refit and reletting) and proved reasonable mitigation costs (with duplicated invoices excluded) and loss of bargain measured by the shortfall between contractual rent and market rent actually obtained. Counterclaims failed because alleged misrepresentations did not establish induceme…
11 Oct 2022

SHK TRUSTEE COMPANY LTD v NZDMG LTD [2022] NZHC 2620

Citation

[2022] NZHC 2620
Court

High Court

Court held plaintiffs entitled to recover adjusted rent for COVID periods: 70% of rent/outgoings for Alert Level 3 and 60% for Alert Level 4 (specific sums awarded), interest at 12% from 1 August 2020 on those sums, full recovery of removal and premises reinstatement costs and legal costs; the s245 notices were not invalid despite overstating amounts; plaintiff's claim for loss of future rent after re-entry was rejected in part because plaintiff failed to mitigate; all defendants' counterclaims dismissed.
11 Mar 2022

MACSMITH’S TIRES LIMITED v GEORGE STOCK AND COMPANY LIMITED [2022] NZHC 438

Citation

[2022] NZHC 438
Court

High Court

The High Court has no jurisdiction to entertain a further appeal from a District Court decision on a Disputes Tribunal matter because the Disputes Tribunal Act makes Tribunal orders final except for the limited appeal under s50 to the District Court; accordingly the application for leave to appeal is dismissed (also out of time and without sufficient merit).