New Zealand Case Law: Decisions & Judgments

Topic

Unconscionability

Legal area

Court

19 Dec 2022

WASHIKITA v SMITH [2022] NZHC 3524

Citation

[2022] NZHC 3524
Court

High Court

Summary judgment granted for plaintiff. Defendant's asserted right of first refusal was not proved and, in any event, was too uncertain and not in writing so unenforceable; invoices and claimed reimbursement lacked credibility and contemporaneous support; defendant did not have a reasonable expectation of an equitable interest to invoke a constructive trust; part performance did not apply; factual disputes were either spurious or insufficient to defeat summary judgment; balance of convenience favoured plaintiff given lengthy unpaid occupation and owners' circumstances.
13 Apr 2022

KHALESI & ANOR v LANE & ANOR [2022] NZHC 787

Citation

[2022] NZHC 787
Court

High Court

On the summary record the applicants put forward a reasonably arguable case: contemporaneous texts and emails support that an oral agreement was concluded, the $100,000 Bartercard payment occurred after formation and constitutes part performance, and the respondents' conduct (including chasing confirmation and later commentary about resolving Bartercard) makes it reasonably arguable that it would be unconscionable to rely on the writing requirement; accordingly the caveats must not lapse pending substantive hearing.
29 Mar 2022

PARKINS v PARKINS [2022] NZHC 606

Citation

[2022] NZHC 606
Court

High Court

Although appellant made greater early labour contributions, he failed to prove it would be unconscionable for the legal owners (the estate) to retain full legal title or to yield the 25% personal interest claimed; consequently no institutional constructive trust arose and the District Court's dismissal was correct.
30 Aug 2021

MURRAY v MURRAY [2021] NZHC 2257

Citation

[2021] NZHC 2257
Court

High Court

Discovery must be relevant to pleaded issues and proportionate. The Court refused broad intrusive categories that were speculative or of low probative value (Sylvia's 20-year-old bank records; police/education records; WINZ disclosures; communications re Harry Marsh) and ordered targeted discovery limited to: any unpaid household bills of the deceased; deletion of item 38 from the consent schedule; and personal bank statements of Tania and Daniel for July 2017–August 2019. The remainder of the tailored discovery application was dismissed and costs were awarded against the applicants for most…
1 Mar 2021

ALPINE SOUTH FISHING LTD (IN LIQUIDATION) v KIM [2021] NZHC 319

Citation

[2021] NZHC 319
Court

High Court

The Court found the plaintiff's prospects of success to be low on an interlocutory impression, the plaintiff is impecunious and has had prior opportunity to provide security; a fair and proportionate quantum of security for costs is $35,000 to protect the defendant without being oppressive. The proceeding is stayed until that sum is paid; if not paid within three months defendant may apply to strike out. Indemnity costs sought were refused because it was unlikely the loan agreement's costs clauses would be read to cover defending these substantive causes of action at trial.
23 Sept 2020

EPSOM WOODS LIMITED v WAITAKERE FARMS LIMITED [2020] NZSC 99

Citation

[2020] NZSC 99
Court

Supreme Court

Leave to appeal dismissed because the proposed appeal raised no matter of general or public importance; the Court of Appeal correctly applied the established three-limb test for in personam claims and on the facts Epsom could not establish unconscionable conduct—mere notice of an unregistered interest did not suffice to defeat indefeasibility.
5 Jun 2020

127 HOBSON STREET LIMITED v HONEY BEES PRESCHOOL LIMITED [2020] NZSC 53

Citation

[2020] 1 NZLR 17
Court

Supreme Court

The indemnity clause in the Collateral Deed is not an unenforceable penalty because, properly construed, it was confined to indemnifying payment obligations (rent and outgoings) for the initial lease term and its consequences were not out of all proportion (not exorbitant) to Honey Bees' legitimate interest in securing installation of a second lift and protecting the commercial viability of the preschool; the proportionality test does not require mandatory calculation of common law damages in every case.
15 May 2020

MCVEIGH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 1018 [15 May 2020]

Citation

[2020] NZHC 1018
Court

High Court

The interlocutory injunction was refused because the applicants failed to show the high threshold required to restrain a call on performance/retention bonds: there was no allegation or evidence of fraud, no strong prima facie case that the bond did not respond to the demand, no demonstrated unconscionability, and the bond and contract terms unambiguously permitted a demand on the occurrence of an Insolvency Event irrespective of termination disputes; moreover contractual remedies and the commercial purpose of bonds weighed against injunction.
8 May 2020

SMITH v BALL [2020] NZHC 944

Citation

[2020] NZHC 944
Court

High Court

Court concluded there was an express trust: on the 1993 transfer CMDL took legal title but held units 3,4 and 5/38 Dominion Street on trust for Ray Smith; CML holds shares in CMDL on trust by attribution of Ball's knowledge; writing requirements of Property Law Act s49A(2) were satisfied by contemporaneous documents and equity would not permit statutory formality to defeat the trust. Loan transfers ($303,000 and $646,500) were advances from Ray Smith to CMDL used to preserve the trust property; Ball did not breach fiduciary duties in those transfers given the finding that the beneficial inter…
11 Feb 2020

TUV v CHIEF OF NEW ZEALAND DEFENCE FORCE [2020] NZCA 12

Citation

[2020] 2 NZLR 446
Court

Court of Appeal

S 149 does not operate as a statutory bar to setting aside a settlement that is void or voidable for reasons such as incapacity; the orthodox two‑limb test of O'Connor v Hart applies in the employment context so a settlement entered into by an incapacitated employee is voidable only if the employer knew or ought to have known of the incapacity; on the facts the employer did not know and the settlement was therefore binding.