Bird v Bicknell [1987] 2 NZLR 542 is a cited case in New Zealand regarding fraud merely being a factor (albeit an important factor) in determining whether an exclusion clause is valid or not.[1] It is contrasted with M E Torbett Ltd v Keirlor Motels Ltd where is held that an exclusion clause is simply not valid where a party has committed fraud.
| Bird v Bicknell | |
|---|---|
 | |
| Court | High Court of New Zealand |
| Full case name | David Bird and Denise Beatrix Bird v Janice Bicknell, Dominic Faanoi, Dennise Faanoi, Ceedric Rodrigues and Robert Martin |
| Decided | 23 September 1987 |
| Citation(s) | [1987] 2 NZLR 542 |
| Transcript(s) | http://www.nzlii.org/nz/cases/NZHC/1987/277.pdf |
| Court membership | |
| Judge(s) sitting | Hillyer J |
Background edit
Bird was in the business of selling franchises regarding a chemical process, which they told Bicknell was secret only to them, and that a patent application was pending. These claims were later discovered to be fraudulent, and Bicknell refused to make the final payment on his franchise. Bird pointed out the contract had a clause agreeing to no warranties were given about the patent.
Bird sued Bicknell.
Held edit
The court found that the exclusion clause was not "fair and reasonable".
References edit
- ^ Chetwin, Maree; Graw, Stephen; Tiong, Raymond (January 2006). An introduction to the Law of Contract in New Zealand (4th ed.). Thomson Brookers. p. 243. ISBN 0-86472-555-8.
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