New Zealand Case Law: Decisions & Judgments

Topic

No set-off clause

Legal area

Court

29 Sept 2023

WALLACE CORPORATION LIMITED v GROSS [2023] NZHC 2731

Citation

[2023] NZHC 2731
Court

High Court

Summary judgment was dismissed because the defendant established a reasonably arguable defence based on the prevention principle: there is sufficient admissible evidence that WCL may have taken control of Podular and materially contributed to the failure of the Petra sale such that liability under the Guarantee could be extinguished; the defence is not precluded by the no set-off clause and requires full hearing, discovery and witness examination.
8 Sept 2023

CHATHAM HARDWARE LTD v CHATHAM ISLANDS MANAGEMENT LTD [2023] NZCA 433 [8 September 2023]

Citation

[2023] NZCA 433
Court

Court of Appeal

The statutory demand was not set aside because the written FSA and contemporaneous correspondence displace any asserted collateral pricing agreement; Hardware failed to follow contractual dispute procedures and produced no cogent evidence of an enforceable collateral margin or of a seriously arguable Commerce Act or Fair Trading Act claim; consequently there is no substantial dispute as to the debt and the statutory demand stands.
25 Jul 2023

SENIO HOLDNGS LTD v EVERGREEN HOMES & CONSTRUCTION LTD (COSTS) [2023] NZHC 1944

Citation

[2023] NZHC 1944
Court

High Court

The Court disallowed discrete allowances for the one‑page case management memorandum, for a separate bundle of authorities under step 41, and for a second allowance for short reply submissions and chronology because those items were trivial or covered by other steps; the Court refused a 50% uplift because respondent's arguments, while unsuccessful or unwise, were not abusive or so unmeritorious as to warrant increased costs. Senio was awarded costs on a 2B scale totalling NZD 10,994 and disbursements NZD 1,242.
19 Apr 2023

SIKA (NZ) LTD v PEGASUS ENGINEERING LTD [2023] NZHC 834

Citation

[2023] NZHC 834
Court

High Court

Summary judgment entered for Sika against Pegasus because the express no set-off clause required payment without deduction, Pegasus's pleaded crossclaims sought monetary compensation rather than avoidance of the contract and it was implausible the Court would void the contract under s43 FTA on the facts; summary judgment against Lawry was dismissed because there is a real question to be tried whether he intended to guarantee Pegasus's obligations given he crossed out references to 'Guarantor', signed in a context identifying him as director, did not sign the customer execution block and Sika…
21 Oct 2022

SAFARI BBQ PRODUCTS LIMITED v SAFARI VERVAARDIGING CC [2022] NZHC 2741 [21 October 2022]

Citation

[2022] NZHC 2741
Court

High Court

The statutory demand was partially set aside: the interest component was not a debt due at the date of the demand because interest had not been quantified and invoiced (s289) and is therefore removed; a ZAR 44,000 reduction was justified because there was a real evidential dispute over alleged overcharging on shipping (ZAR 11,000 per container) that could not be resolved on affidavit; the contractual no set-off clause was enforceable and barred SNZ from relying on counterclaims for defective goods as a set-off in this proceeding; the demand was not an abuse of process.
28 Feb 2022

SUNRISE MANAGEMENT LTD v BUNNINGS LTD [2022] NZHC 317

Citation

[2022] NZHC 317
Court

High Court

On the affidavit material it was reasonably arguable that Bunnings made pre-contractual representations about not supplying imported Chinese weatherboards, that those representations preceded and induced formation of the supply arrangement, and that Sunrise has a quantified counterclaim for recladding loss (approx $305,050) exceeding the statutory demand ($202,312.11); accordingly the statutory demand must be set aside. Alternatively, even if the contractual no set-off clause applied, the circumstances were not in the normal run of cases and it would be unconscionable to enforce the demand.
21 Dec 2021

HOSKING TRAILERS LTD v HT 2017 LTD [2021] NZHC 3559

Citation

[2021] NZHC 3559
Court

High Court

Clause 4.5 does not, in principle, preclude a defence that attacks the existence or validity of the loan obligation, but the appellants failed to establish an arguable defence under the CCCFA or FTA that causally links HT 2017's alleged misrepresentations to loss recoverable by varying or voiding the loan agreement; accordingly summary judgment for HT 2017 was upheld and the appeal dismissed.
21 Jul 2021

BANK OF NEW ZEALAND v DAVEY [2021] NZHC 1854

Citation

[2021] NZHC 1854
Court

High Court

The Bank established entitlement to summary judgment: the guarantee was valid, demand was made and unpaid, the guarantee's express no set-off/no counterclaim clause precluded the defendant's asserted counterclaims and set-offs as a defence to payment, proposed third party claims against receivers/BDO do not defeat the Bank's right to judgment, and no exercise of discretion to refuse summary judgment was warranted.
16 Jul 2021

BANK OF NEW ZEALAND v DAVEY [2021] NZHC 1816

Citation

[2021] NZHC 1816
Court

High Court

Adjournment was refused because the defendant had sufficient time and opportunity to prepare and present his defences after service and under agreed timetables, offered no identifiable or arguable new grounds that could defeat the Bank’s claim, COVID‑19 disruption did not justify further delay, adjournment would prejudice the Bank by causing wasted costs, and public interest in efficient use of court resources and integrity of processes required refusal.
14 Aug 2020

MOFFITT DAIRY LIMITED v HAZLETT LIMITED [2020] NZHC 2060

Citation

[2020] NZHC 2060
Court

High Court

The applicant failed to establish an arguable cause of action sufficient to set aside the statutory demand: the Terms of Trade validly excluded implied statutory warranties (CCLA ss138/139) and contained a no set-off clause; there were no pre-contractual representations or conduct by the supplier likely to mislead under FTA s9; absent an established breach of contract MDL cannot claim abatement; accordingly the statutory demand was not shown to be disputed on arguable grounds and the application was dismissed.