New Zealand Case Law: Decisions & Judgments

Topic

Personal guarantee

Legal area

Court

10 Aug 2023

CHEN v TAWA TRADE FINANCE LTD [2023] NZHC 2156

Citation

[2023] NZHC 2156
Court

High Court

Leave to appeal and the stay application were dismissed because Gordon J correctly exercised her discretion: the originating application procedure under r19.5 was inappropriate given substantial and contested factual issues and the existence of parallel substantive proceedings where injunctive relief could and had been sought and refused; no arguable error of law or principle was shown and there was nothing to stay.
20 Jul 2023

FLAXPOD INVESTMENTS LIMITED v GERBES [2023] NZHC 1910

Citation

[2023] NZHC 1910
Court

High Court

The without‑notice interim injunction was rescinded because the applicant did not place before the Court material information about the liquidator's dealings and an agreed payment arrangement which were material to the exercise of the Court's discretion; some claimed amounts were prospective or disputed; rescission was appropriate but made subject to the respondents paying $13,602.72 to the applicant on 21 July 2023 to protect the applicant's position pending substantive proceedings.
26 Jun 2023

WESTPAC NEW ZEALAND LIMITED v PRITCHARD [2023] NZHC 1596

Citation

[2023] NZHC 1596
Court

High Court

Westpac established its claim with comprehensive contemporaneous documentary evidence showing the advances, default, adoption of the sale and allocation of proceeds leaving a shortfall. The defendant failed to provide the requisite evidential foundation for alleged equitable or contractual defences or to contest the quantum of the debt. There was therefore no real question to be tried and summary judgment was appropriate for the plaintiff for the stated sums, interest and indemnity costs.
4 Oct 2022

BORLASE v ROBERTSON ENGINEERING LTD [2022] NZHC 2533

Citation

[2022] NZHC 2533
Court

High Court

On the facts and viewing the email holistically in context, the appellant's email was a personal guarantee of CAL's indebtedness to REL, covering debts arising from time to time (including post‑date invoices) for unpaid lease/rental payments and related liquidation costs; the alleged equitable set-off was speculative and unsupported and therefore no arguable defence existed, so summary judgment was properly entered and the appeal is dismissed.
9 Mar 2022

DAIRYWORKS LIMITED v GERALDINE CHEESE COMPANY LIMITED [2022] NZHC 399

Citation

[2022] NZHC 399
Court

High Court

Service on the first and second defendants at their registered office (despite only an index of initial disclosure being served) was effective for the purposes of the formal proof application; the plaintiff was entitled to apply for formal proof and to an award of wasted costs for the aborted formal proof hearing, but quantum must be moderated to reflect the continuing utility of the materials prepared and exclude work relating solely to the unserved third defendant; accordingly wasted costs of $7,767.50 were awarded to the plaintiff.
24 Aug 2021

CANCIAN v CARTERS, a division of Carter Holt Harvey Limited [2021] NZCA 397

Citation

[2021] NZCA 397
Court

Court of Appeal

The Court held there was no variation because clause 2.2 expressly permitted CARTERS to set or alter credit limits without notice; alternatively, even if the change to the credit limit was a variation, clause 5(b) of the guarantee was an effective anti-discharge provision covering such changes (including extensions of credit), so the guarantor remained liable; therefore the appellant had no defence and the appeal was dismissed.
30 Jun 2020

Tyres4U (NZ) Ltd v Bruce [2020] NZHC 1497

Citation

[2020] NZHC 1497
Court

High Court

The statutory prerequisites for adjudication were satisfied (final judgment obtained on admission; bankruptcy notice served and not complied with) and the debtor failed to discharge the onus to show that the related TCL proceedings raised triable cross-claims that would, if successful, defeat the judgment debt or justify the court refusing or halting adjudication under ss 37, 38 or 43; accordingly opposition and halt applications were dismissed and the matter was adjourned for undefended adjudication with costs to the creditor.
18 Mar 2020

BF7 TRADING LIMITED v EXTRASTAFF LIMITED [2020] NZHC 544

Citation

[2020] NZHC 544
Court

High Court

BF7 had acknowledged a sum was due (ultimately $9,900.08) and could not rely on an unquantified set-off contrary to the contractual no set-off clause; BF7's solvency evidence was insufficient; the Court therefore adjourned the application to allow payment of $9,900.08 by a fixed date and directed that failure to pay would result in dismissal of the application as to that sum and an order for liquidation under s 291(1)(b).
14 Jun 2019

HEARTLAND BANK LTD v DOMECQ [2019] NZHC 1356

Citation

[2019] NZHC 1356
Court

High Court

On the undisputed documentary evidence and solicitor certifications the guarantees and indemnities were valid, the defendant failed to establish any evidentially supported defence of oppression or lender contribution to loss, and had not laid a proper evidential foundation for asserted defences; accordingly there was no real question to be tried and summary judgment was entered for plaintiff for $12,814,367.23 with contractual interest and costs.
18 Dec 2018

LOOKMAN v DESIGN ELECTRONICS LTD [2018] NZHC 3396

Citation

[2018] NZHC 3396
Court

High Court

Partial summary judgment: defendants must provide the Trust with access to Design Electronics' electronic accounting system and records from 1 August 2017 and comply with clause 10 obligations (monthly meetings and provision of specified information for the relevant period); the claim for a personal guarantee under clause 6 is uncertain and cannot be resolved on summary judgment and requires trial.