New Zealand Case Law: Decisions & Judgments

Topic

Priority of securities

Legal area

Court

28 Jul 2023

PLUS CONSTRUCTION COMPANY LIMITED v JL TRUSTEE NOMINEE LIMITED [2023] NZHC 1986

Citation

[2023] NZHC 1986
Court

High Court

Summary judgment was dismissed because the defendants established multiple arguable defences that raise real questions for trial: an arguable (non‑documentary) joint venture that could impose duties of loyalty on PCCL; arguable breaches (fund diversion, failure to maintain bond/support) giving rise to set-off and counterclaims; arguable tort claims for interference with contractual relations and knowing receipt of misapplied funds; and an arguable restriction on PCCL's ability to enforce the loan arising from priority deeds and overrun guarantees until written discharge by third‑party lenders…
10 Aug 2020

GOWER v FTG SECURITIES LIMITED [2020] NZHC 2011

Citation

[2020] NZHC 2011
Court

High Court

The Transfer Deed of 15 June 2015 did not effect a valid statutory assignment of the Tuam debts and securities and, as determined in the consolidated -1710 judgment, it also did not effect an equitable assignment; accordingly CAML retains legal and equitable title as second-ranking secured creditor under the Priority Deed, FTG has no entitlement to any receivership surplus, cross-applications are dismissed, and directions/orders follow for distribution priorities and reservation of costs.
4 Oct 2019

EASTLIGHT ASSET TRADING NO. 5 LIMITED v GROUND SUPPORT (WGTN NO. 1) LIMITED[2019] NZHC 2534

Citation

[2019] NZHC 2534
Court

High Court

The general security agreement unambiguously charged all of Ribble's present and future property including the two properties; appointment of a receiver under that GSA vested the receiver with authority to deal with those properties; consequently the company's director lacked authority to enter into the purported sale to Eastlight and Eastlight acquired no equitable interest to support its caveat, so the caveat must lapse.
22 Jul 2019

CHEN v SANCTUARY DEVELOPMENTS NO 8 LTD [2019] NZHC 1476

Citation

[2019] NZHC 1476
Court

High Court

The plaintiff established a reasonably arguable case that the 30 June 2015 Loan Agreement granted him an equitable entitlement to a second mortgage on settlement and that the contractual and factual matrix did not make that entitlement patently extinguished by the failure of the GS Scheme or by subsequent documents; accordingly under s 145A the caveat should not lapse and substantive proceedings should be ordered to determine the plaintiff's entitlement.
7 Oct 2015

GLOBAL PACIFIC CORPORATION LIMITED v HANSLAY HOLDINGS LIMITED [2015] NZHC 2425 [7 October 2015]

Citation

[2015] NZHC 2425
Court

High Court

Global Pacific made out an arguable case that it earned its brokerage fee by procuring and presenting Killarney Capital's letter(s) of offer within the mandate agreement meaning it acquired a caveatable interest; the residual discretion to remove the caveat was not exercised because valuations and priority analysis showed sufficient freeboard to give Global Pacific a realistic expectation of some recovery and it has priority against the purchaser's later security, so the caveat should remain pending substantive proceedings.
15 May 2015

GIBSON AND ANOR v ROBERT BURNES TRUSTEE (2009) LTD AND ORS [2015] NZHC 1022

Citation

[2015] NZHC 1022
Court

High Court

The SSAs were not transactions in the ordinary course of NZF's business given their novelty, timing during an acute liquidity crisis, involvement of a related party, the absence of Trustee consent or required valuation/evidence, and the urgent, non-routine purpose; accordingly the SSAs could not defeat the Trustee's prior floating charge and the Trustee's interest prevails over the Hillview Trust interests.
12 Dec 2013

BOS INTERNATIONAL (AUSTRALIA) LIMITED v STRATEGIC NOMINEES LIMITED (IN RECEIVERSHIP) CA327/2013 [2013] NZCA 643

Citation

[2013] NZCA 643
Court

Court of Appeal

Capitalised interest under the Senior Facility Agreement was contractually converted into principal (both pre- and post-default where BOS exercised its contractual option to capitalise); accordingly such capitalised amounts were not 'interest' for the purposes of the Intercreditor Deed's priority provisions, the non-waiver clauses did not permit BOS to retrospectively recharacterise or reverse its prior election to capitalise, and therefore BOS's priority was limited to its Nominated Amount of NZD 27,549,000 with the excess payable to Strategic.
12 Jun 2012

THE OFFICIAL ASSIGNEE V PAVAN HC WN CIV-2012-485-000240

Citation

openlaw-f1765efa_0e52_463f_ac92_b8331bcbbbea.pdf
Court

High Court

The court construed the loan and guarantee documentation objectively and held that the second Basecorp loan and its guarantee created registrable security in the guarantors' personal land only for obligations under that specific Basecorp contract; the guarantee did not extend to secure the separate Guardian Trust loan assigned later to Basecorp, so Basecorp's enforceable security against 2 Cortina Avenue is limited to the balance of the second Basecorp loan (approximately $5,476.12 as at 30 April 2012), and Basecorp had no valid security over 5 Neville Street, 86 Woodland Road or the earthmov…
26 Oct 2011

HARDING AND SCHOLFIELD V LDC FINANCE LIMITED (IN RECEIVERSHIP) HC CHCH CIV 2008-409-001140

Citation

openlaw-1fe04e8c_25ae_4425_a222_29bc2e09ce81.pdf
Court

High Court

The judge exercised case management discretion under the High Court Rules and ordered a split trial: the proprietary issues (Securities Act breach and tracing, and first plaintiffs' proprietary/damages claim) will be tried first to allow prompt resolution and potential distribution of the disputed fund; wilful blindness/dishonest assistance claims against professional firms (PWC, Buddle Findlay and possibly the Nelson firm) will be separately case-managed because joinder of multiple firms would cause substantial delay and disproportionate costs relative to the $8.8m fund; Buddle Findlay was j…
12 Oct 2009

KONNISFIELD FINANCE LTD V AUTOMOTIVE WHOLESALE MARKETING LTD (IN LIQUIDATION) AND ANOR HC CHCH CIV 2009-409-1874

Citation

openlaw-0e843ede_042e_4117_b66e_a10d7f6aa118.pdf
Court

High Court

Documentary evidence established that De Vere held a prior registered security interest acquired for value, so Konnisfield could not show a good arguable case under s167 PPSA; therefore the interim order was discharged and the application dismissed.