New Zealand Case Law: Decisions & Judgments

Topic

Security for debt

Legal area

Court

24 Feb 2022

GILMORE v GILMORE [2022] NZHC 274

Citation

[2022] NZHC 274
Court

High Court

The court recorded a consent judgment for $257,000 plus contractual interest because the defendants accepted liability; it imposed enforceable terms to secure payment (judgment to lie in court unsealed for 120 days and requirement to grant security over specified apartments within 10 working days, with a right to register charging orders if security not granted) and reserved costs for determination on submitted briefs.
22 Jun 2020

BODY CORPORATE 68792 v WAKEFIELD PROPERTY LIMITED (formerly GATEWAY HOLDING COMPANY NO. 2 LIMITED) [2020] NZHC 1396

Citation

[2020] NZHC 1396
Court

High Court

The court held that the Body Corporate was entitled to winding up orders under s241 because Gateway failed to respond to the statutory demand and Luxe's informal unsupported offer of second mortgage security was reasonably rejected by the Administrator; s147 Unit Titles Act does not create a proprietary charge making the Body Corporate a secured creditor; Luxe failed to prove solvency or ability to pay; liquidators were appointed for both companies.
12 Oct 2017

COMMISSIONER OF INLAND REVENUE v NEW ORLEANS HOTEL (2011) LIMITED [2017] NZHC 2500

Citation

[2017] NZHC 2500
Court

High Court

New Orleans was and remains insolvent with an undisputed and increasing tax debt; the security proffered was inadequate or unsupported by admissible valuation and guarantees; there was no arguable defence to the debt and the Fresh Cut Flower threshold for leave to defend was not met; accordingly the Court refused to stay the liquidation proceeding or restrain advertising and refused leave to file a defence out of time.
23 May 2016

POLYBREEZE INTERNATIONAL LIMITED v D MANDERSON [2016] NZHC 1077

Citation

[2016] NZHC 1077
Court

High Court

The court preferred the contemporaneous letter of 1 September 2015 and the respondent's account; that document evidenced an obligation by Polybreeze International to obtain investment capital of USD 150,000 with an agreed return and an offered security by Polybreeze HQ which did not negate liability of Polybreeze International; the applicant failed to establish a real and substantial dispute under s 290(4); accordingly the application to set aside was refused and the court extended time for compliance to permit enforcement.
25 Sept 2015

AA AUCKLAND CARRIERS (2011) LIMITED v BENSON [2015] NZHC 2348

Citation

[2015] NZHC 2348
Court

High Court

Because the applicant provided security (payment into solicitors' trust account) after the originating application was filed thereby satisfying s 289(2), and because arguable solvency alone does not rebut the statutory presumption under s 287, the Court declined to set aside the statutory demand and declined to make a costs order; costs were to lie where they fall.
18 Jun 2012

THE COMMISSIONER OF INLAND REVENUE V FANTAIL MANAGEMENT LIMITED HC AK CIV-2012-404-939

Citation

openlaw-a0640cd2_339a_4ddb_86d9_f3e65d504404.pdf
Court

High Court

Although non-compliance with the statutory demand established the statutory presumption of inability to pay, the defendant demonstrated a genuinely disputed tax liability and had initiated s113 review; therefore the Court exercised its discretion to refuse immediate winding up and instead adjourned the proceeding conditionally, requiring the defendant to provide security and substantial information to prevent unfairness or undue pressure while the dispute is resolved.
30 Nov 2011

WESTPARK MARINA LIMITED V AUTOMATED SOLUTIONS LIMITED HC AK CIV-2011-404-7295

Citation

openlaw-2c42297a_37dc_4f97_a32d_c889e9c5913a.pdf
Court

High Court

The statutory demand was set aside conditionally because the applicant established at least a prima facie genuine and substantial dispute about the goods and services supplied and offered to secure the disputed sum; the respondent had not complied with procedural obligations and the amount at stake was modest, so conditional relief requiring payment into court or agreed stakeholder security was appropriate.
24 Sept 2009

PERPETUAL TRUST LIMITED V HENDERSON HC CHCH CIV 2009-409-001518

Citation

openlaw-aefbaa39_7cfd_40f3_83e2_406c2f9afeee.pdf
Court

High Court

Court exercised its discretion under s 37 Insolvency Act 2006 to grant a brief adjournment to enable full and clear evidence to be filed because the material before the Court did not satisfy it as to the debtor's ability to clear his debts, and the position of other creditors (notably FM) and the realisability of assets required clarification.
14 Feb 2007

APOLLO FRUIT LIMITED V COOPER HORTICULTURE LIMITED HC NAP CIV-2006-441-908

Citation

openlaw-5a350a29_a94d_4c43_ac7b_95d8498c8b1e.pdf
Court

High Court

The defendant failed to establish clear and persuasive grounds for a genuine dispute or set-off and did not adduce independent financial evidence to rebut expert evidence that it was unable to pay its debts; accordingly the court would not grant an unconditional stay but granted a conditional stay on provision of security for the plaintiff's undisputed debt of $351,518.77.
21 Dec 2006

NEWMARKET SECURITIES LTD AND ORS V GUY AND ANOR HC AK CIV 2005-404-004946

Citation

openlaw-547fdb31_a27d_4bfb_b0dc_8613a76c21c7.pdf
Court

High Court

The application to vary the interim injunctions was dismissed because the balance of convenience and overall justice did not favour variation: the remaining charged shares might provide inadequate security given share price volatility, defendants had access to other trust assets to meet needs, and the defendants' delay and inconsistent conduct undermined urgency and justification for relief.