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UNJUST ENRICHMENT IN NEW ZEALAND

Lloyd's Maritime and Commercial Law Quarterly

UNJUST ENRICHMENT IN NEW ZEALAND

Peter Watts *

CASES

110. Cleary v Cockroft [2020] NZHC 1453 (HC: Osborne J)
Mutual wills—unconscionability
This case can be briefly noted as an illustration of the hurdles that exist in establishing an agreement between two testators not to alter their wills following the death of the first to die.
The husband and wife in this case each had three children from previous relationships. They each signed wills in parallel terms in 2009, leaving their assets to the other and providing that, if the survivor failed to live for 14 days beyond the other’s death, the assets would go to the six children equally. Six months after the wife’s death in 2011, the husband created a new will which left all his assets, including those inherited from his wife, to only his three children.
Decision: The challenge to the husband’s will failed.
Held: (1) In order to challenge a will on the basis of the mutual wills doctrine a clear agreement to make irrevocable mutual wills is required. “An honorary agreement” or “mutual expectation or desire” is not sufficient (Lewis v Cotton [2000] NZCA 399; [2001] 2 NZLR 21 applied). (2) The parallel statutory regime introduced by the Wills Act 2007, s.30 took the matter no further on the facts.
Comment: For another unsuccessful mutual wills plea, see McNeish v McArthur [2019] NZHC 3281; [2020] 2 NZLR 287.
111. Dold v Murphy [2020] NZCA 313 (CA: Kós P, Clifford and Collins JJ)
Duress—lawful action—greenmail
Three parties beneficially owned the shares in a tourism company called Cruise Whitsundays Ltd (CWL). Two of the parties, including the plaintiff, each held 46.9 per cent of the shares, and the third, the defendant, held 6.2 per cent. There came a point when one of CWL’s projects involved a significant amount of management time and the defendant considered that he had put in far more time than his minority shareholding would suggest he should have. The parties agreed to put the shares on the market seeking in the region of A$75 million. The parties then received a conditional offer of A$110 million, which was much more than expected. The defendant managed to get the offeror to increase the price to A$112 million. The defendant then refused to sign a sale agreement unless the
Unjust enrichment in New Zealand

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