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Authors: Michael Lenihan, Bruce Stewart KC
Published: 20 March 2017
Pages: 101

Foreword

The continuing fall-out from the GFC has seen a high number of guarantee cases in the six years since we last did the guarantees seminar.

Significant case law developments include:

• Very useful guidance on the extent of the changes in s 27 of the Property Law Act (PLA) from the repealed Contracts Enforcements Act.
• Application for the first time in New Zealand of the doctrine of estoppel to guarantees.
• A guarantor succeeding against a creditor in stopping summary judgment because of arguable undue influence.
• A guarantor defeating a strike out application by a creditor on the basis of an arguable breach by the creditor of s 176 of the Property Law Act.
• Relief given to a mortgagor on the basis of unconscionability (which would be applicable to guarantors).

As is apparent from the above summary, the case law that has appeared is mainly in the context of interlocutory applications (which are usually summary judgment applications). Full trials of guarantor claims remain a rarity.

In addition to the case law developments, there were substantial amendments made to the Credit Contracts and Consumer Finance Act 2003 (CCCFA) that came into force in 2015.

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Content outline

• Contractual requirements
• Undue influence
• Credit Contracts and Consumer Finance Act 2003
• Mortgagee sales
• Notable decisions since 2010

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