Cancellation

Taco Co of Australia v Taco Bell

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

Ingram v Patcroft Properties

A party could be seen as benefiting from its own wrong where it is unable or unwilling to perform the contract and seeks to avoid liability for its own breach by cancelling the contract on the basis of the other party's breach

Noble Investments v Keenan

A party could be seen as benefiting from its own wrong where it is unable or unwilling to perform the contract and seeks to avoid liability for its own breach by cancelling the contract on the basis of the other party's breach

Hughes v Huppert

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

Betham v Margetts

Although s 7(4) CRA does not apply to s 7(2) CRA, anticipatory repudiation normally has to relate to non-compliance with a term that is essential to the cancelling party or non-compliance which will have serious consequences for the cancelling party

Nicholls v Tamariki

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

Yu v T & P Developments

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

NZ Tenancy Bonds v Mooney

Essential term within the meaning of s 7(4)(a) CRA when a contract for the sale and purchase of property provides that the time for payment of the deposit is "strictly of the essence of the contract"

Progeni Systems v Hampton Studies

Essentiality within the meaning of s 7(4)(a) CRA is given when the representation is of such importance to the representee that without it he would not have contracted with the representor or not on those particular terms

Hochster v De la Tour

Explicit anticipatory repudiation within s 7(2) CRA ("by words") when one party informs the other that the contract will not be performed

Hansen v Boocock

If a contract incorporating an essential term is signed, it will be easier to establish its essentiality than if statements are made during negotiations Incurrence of additional costs may make effect of misrepresentation or breach substantial within the meaning of s 7(4)(b)(i) CRA

Sharplin v Henderson

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

Garratt v Ikeda

If accrued unconditionally before cancellation, a purchaser will have to pay the deposit even after cancellation took effect

Brown v Langwoods Photo Stores

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

Donnelly v Westpac Banking

If one party cancels on unjustifiable grounds, the cancellation will be effective provided proper grounds existed

Gallagher v Young

Incurrence of additional costs may make effect of misrepresentation or breach substantial within the meaning of s 7(4)(b)(i) 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 v Lapco Enterprises

No repudiation => no right to cancel under s 7(2) CRA Whether a party intends 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 ... may ... if it is just and practicable to do so, make an order")

Nectar v SPHC Operations

Parties are presumed to know the terms of their own contract

Newmans Tours v Ranier Investments

Power of the court to relief under s 9 subject to only one prerequisite: it must be "just and practicable to do so", s 9(1) CRA S 9 CRA jurisdiction extends to the restitution, reliance and expectation interest

Brooklands Motor v Bridge Wholesale Acceptance

Reasonable bystander test applies to s 7(3)(c) 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 (arbitration clauses, restraints of trade) survive cancellation by virtue of s 5 CRA

Moodie v Agriultural Ventures

Ss 7-9 CRA do not apply to the sale of goods, see 15(d) CRA

Jolly v Palmer

Substantial within the meaning of s 7(4)(b) CRA = more than trivial Cancellation after having affirmed the contract (e.g. by resale) amounts to a repudiation of the contract

Finch Motors v Quin (No 2)

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

Tinnock v Birkenhead Heights

The breach of a dispute resolution clause in a building contract is "substantial" within the meaning of s 7(4)(b) 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 v James Developments

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 to cancel 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

Thompson v Vincent

There is no requirement to specify, at the time of cancellation, the reasons for doing so S 9 CRA empowers the court to grant relief to both parties (not only to the cancelling party)

White and Carter v McGregor

To cancel is only one 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

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

Car & Universal Finance v Caldwell

Where one party prevents the other from communicating cancellation by wrongfully absconding, neither he nor those who acquire a title through him can insist on actual notification, s 8(1)(b) CRA

Denarau Investments v Ludlow

Whether a party intends 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

Whether a party intends to perform or not within s 7(2) CRA is assessed from the point of view of a reasonable person Defines when a term in a contract 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