Cancellation

Body Corporate 202254 v Taylor

"In trade" within the meaning of s 9 FTA encompasses an agent who undertakes business on account of some other party.

Newport v Coburn

A "mere conduit" is not liable under s 9 FTA.

Taco Co of Australia Inc v Taco Bell Pty Ltd

A misrepresentation under the CRA is misleading within the meaning of s 9 FTA.

Unilever NZ Ltd v Cerebos Gregg's

A misrepresentation under the CRA is misleading within the meaning of s 9 FTA.

Hughes v Huppert

Affirmation according to s 7(5) CRA does not remove the right to damages for misrepresentation under s 6 CRA.

Tinnock v Birkenhead Heights Ltd

Breach of a dispute resolution clause in a building contract is "substantial" within the meaning of s 7(4)(b) CRA.

Nicholls v Tamariki Ltd (in liq)

Cancelling party who only seeks damages may not need to show that it was ready, willing and able to perform the contract.

Red Eagle Corp Ltd v Ellis

Construction of "misleading"/"deceptive" in s 9 FTA: determined by an objective assessment; the conduct of the defendant must be capable of being misleading/deceptive; requirement of causation.

Taylor Bros Ltd v Taylor Group Ltd

Construction of "misleading"/"deceptive" in s 9 FTA: one has to apply the ordinary words to the particular facts.

Mills v United Building Society

Construction of "misleading"/"deceptive" in s 9 FTA: that someone has been misled/deceived is not conclusive.

Progeni Systems Ltd v Hampton Studies Ltd

Defines "essential" within the meaning of s 7(4)(a) CRA.

Jolly v Palmer

Defines "substantial" within the meaning of s 7(4)(b) CRA; cancellation after having affirmed the contract (e.g. by resale) amounts to a repudiation of the contract.

Yu v T & P Developments Ltd

Defines when a term in the contract is broken before and at completion.

Betham v Margetts

Describes anticipatory repudiation within s 7(2) CRA.

Newmans Tours Ltd v Ranier Investments Ltd.

Describes s 9 CRA jurisdiction.

Hay v Chalmers

Example of "in trade" within the meaning of s 9 FTA.

New Zealand Tenancy Bonds Ltd v Mooney

Example of an essential term within the meaning of s 7(4)(a) CRA.

Hochster v De la Tour

Example of an explicit anticipatory repudiation within s 7(2) CRA ("by words").

Gallagher v Young

Example of s 7(4)(b) CRA.

Hansen v Boocock

Example of s 7(4)(b)(i) CRA.

Car and Universal Finance Co Ltd v Caldwell

Example of s 8(1)(b) CRA.

Jackson v McClintock

Example of s 9(4) CRA.

Harvey Corp Ltd v Barker

Expectation damages and damages for a lost benefit cannot be claimed under the FTA.

Cox & Coxon Ltd v Leipst

Expectation damages cannot be claimed under the FTA.

Sharplin v Henderson

If a contracting-out clause does not cover a particular breach, the remedies under the CRA will apply.

Garratt v Ikeda

If accrued unconditionally before cancellation, purchaser has to pay the deposit even after cancellation took effect.

Brown v Langwoods Photo Stores Ltd

If accrued unconditionally before cancellation, purchaser has to pay the deposit even after cancellation took effect; courts have wide discretion to grant relief under s 9 CRA.

Broadlands Finance v Inwood

Instead of cancellation under the CRA, a right of rejection applies to the sale of goods, ss 32, 36 f SGA.

Starlight Enterprises Ltd v Lapco Enterprises Ltd.

No repudiation, no right to cancel under s 7(2) CRA; whether party intend to perform or not is assessed from the point of view of a reasonable person.

Forde v Electrodry NZ

Not required that relief under s 9 CRA be pleaded ("the court, in any proceedings ..., may ... if it is just and practicable to do so, make an order").

Nectar Ltd v SPHC Operations (NZ) Ltd

Parties are presumed to know the terms of their own contract.

Brooklands Motor Co Ltd (in rec) v Bridge Wholesale Acceptance Corp (Australia) Ltd

Reasonable bystander test for s 7(3)(c) CRA.

Savill v NZI Finance Ltd

S 9 FTA also applies to situations not covered by the CRA.

Lovelock v Franklyn

Sale to a third person is an example of an implicit anticipatory repudiation within s 7(2) CRA ("by conduct").

Broadcasting Corp of NZ v Nielsen

Secondary obligations survive cancellation by virtue of s 5 CRA.

Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1)

Silence falls under s 2(2) FTA ("engaging in conduct").

Moodie v Agriultural Ventures Ltd

Ss 7-9 CRA do not apply to the sale of goods.

Finch Motors Ltd v Quin (No 2)

The CRA does not apply to contracts for the sale of goods, ss 60(2) SGA, 15(d) CRA.

Jack v Guy

The obligation to obtain resource consent is an essential term for the purposes of anticipatory repudiation within s 7(2) CRA.

Young v Hunt

The plaintiff has to prove that "the performance of the term is essential to him", s 7(4)(a) CRA.

Mana Property Trustee Ltd v James Developments Ltd

The time by which a contract must be performed matters for s 7(2) CRA; a breach of an essential term with only a minor effect entitles cancellation under s 7(4)(a) CRA and so, under s 7(4)(b), does a breach of any term, even a minor term, if it has a serious effect.

White and Carter (Councils) Ltd v McGregor

To cancel is only an option: the entitled party can complete performance and demand the consideration.

Cullinane v McGuigan

To determine "substantially", the courts take subjective and objective factors (money) into account.

Pearson v Wynn

To determine "substantially", the courts take subjective and objective factors (money) into account.

Burch v Willoughby Consultants Ltd

Under 9(2)(b) CRA, damages for loss of income, mental suffering and distress can be awarded.

Ingram v Patcroft Properties Ltd

What if cancelling party is unwilling or unable to perform the contract; party must not benefit from its own wrong.

Noble Investments v Keenan

What if cancelling party is unwilling or unable to perform the contract; party must not benefit from its own wrong.

Thompson v Vincent

What if cancelling party unaware of justifiable grounds; s 9 CRA empowers a court to grant relief to both parties (not only to the cancelling party).

Donnelly v Westpac Banking Corp

What if one party cancels on unjustifiable grounds.

Denarau Investments Ltd v Ludlow

Whether party intend to perform or not within s 7(2) CRA is assessed from the point of view of a reasonable person.

Oxborough v North Harbour Builders Ltd

Whether party intend to perform or not within s 7(2) CRA is assessed from the point of view of a reasonable person; defines when a stipulation is broken before and at completion; the continuation of the repudiation gives the innocent party a continuing right to cancel; a further breach after affirmation revives the right to cancel.