Estoppel by Convention and Pre-Contractual Understandings: The Position and Practical Consequences

2011 ◽  
Vol 42 (3) ◽  
pp. 511
Author(s):  
Kristin Bunting
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Common Assumption ◽  
House Of Lords ◽  
The Supreme Court ◽  
The Law

Recently, the House of Lords held in Chartbrook Ltd v Persimmon Homes Ltd that an understanding or common assumption reached by contracting parties in the course of their pre-contractual negotiations, including "an assumption that certain words will bear a certain meaning" can provide the basis for an estoppel by convention claim. This was reaffirmed by the New Zealand Supreme Court in Vector Gas Ltd v Bay of Plenty Energy Ltd. Both the House of Lords and the Supreme Court assumed that this was well established. Given that the issue was unsettled in England and with two divergent lines of authority in Australia, the House of Lords and Supreme Court should not have assumed this. In light of this development in the law, it is also argued that where the evidence proves that the parties established an understanding as to the meaning of a term in a proposed contract, then surely that is the meaning of that term, as a matter of interpretation. In addition, allowing consideration of pre-contractual negotiations to prove an estoppel by convention has undermined the rule that pre-contractual negotiations are inadmissible as an aid to interpretation of a contract.

scholarly journals Human Rights and Parliamentary Sovereignty in New Zealand

2004 ◽  
Vol 35 (2) ◽  
pp. 341 ◽  
Author(s):  
Petra Butler
Keyword(s):  
Human Rights ◽  
New Zealand ◽  
Supreme Court ◽  
Special Focus ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Supreme Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Court Of Appeal

The paper examines whether there was any basis for Parliament to enact section 3(2) of the Supreme Court Act 2003 in regard to human rights decisions of the Court of Appeal. The paper asks whether the Court of Appeal has indeed been "activist" in its human rights decisions. The discussion focuses on the areas where judicial activism might be suspected, firstly the filling of legislative gaps, and secondly statutory interpretation, with a special focus on implied repeal. Relevant decisions of the House of Lords under the Human Rights Act 1998 (UK) are used as a contrast to the decisions of the New Zealand Court of Appeal. The paper comes to the conclusion that the New Zealand Court of Appeal has not been activist in the area of human rights.

scholarly journals Takamore v Clarke: Tikanga and Merits-Based Resolution of Burial Disputes, a Just Outcome?

2021 ◽  
Author(s):  
◽  
Matthew Webb
Keyword(s):  
New Zealand ◽  
Cultural Identity ◽  
Supreme Court ◽  
General Application ◽  
The Supreme Court ◽  
The Law ◽  
Court Intervention

<p>Burial disputes are something of a novelty in New Zealand. Most are resolved amicably by those with ties to the deceased. The exception to has been the long-running case of Takamore v Clarke, the matter finally being resolved by the Supreme Court this year. Burial disputes raise fundamental issues of religious and cultural identity (including tikanga Māori), personhood, and the meaning of family. Despite their rarity in New Zealand, the response of the law in resolving such disputes should “fit the fuss”, having regard to the context in which they arise. This essay begins by discussing the form of resolution advocated for by the majority and minority in Takamore. Their respective approaches are essentially the same, especially with regards to tikanga Māori. This is one of Court intervention coupled with a merits-based assessment of the dispute. However the Court failed to apprehend there was no pressing need for burial, prior to creating a solution of general application. The experience of comparable jurisdictions, where speedy resolution has been necessary (such as Australia) demonstrates that the role of the Court applying such a test in burial disputes is misconceived. Rather than providing “justice” for the parties concerned, merits-based resolution produces unfair and unconvincing outcomes. The more just response is to ensure the parties never get to Court, via mediation. Insofar as agreement is not possible, the role of the Court should be supervisory in the application of a prescriptive test emphasising expediency and ensuring the dispute is resolved out of Court.</p>

scholarly journals The Law of Contribution – An Equitable Doctrine or Part of the Law of Unjust Enrichment?

2017 ◽  
Vol 48 (3) ◽  
pp. 471
Author(s):  
Victoria Stace
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Enrichment Analysis ◽  
The Other ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
The Law ◽  
Significant Change

This article looks at the changes made to the equitable doctrine of contribution by the New Zealand Supreme Court in a 2016 decision, Hotchin v New Zealand Guardian Trust Co Ltd. The approach now favoured by the Supreme Court is that to establish a claim for contribution by one defendant against another, there is no need to find any greater degree of coordination between the liabilities other than that the plaintiff could pursue either defendant for its loss and either would be liable for it, in whole or in part. The underlying rationale is that by paying the plaintiff, the defendant who was pursued not only discharges itself but also discharges the other defendant's liability. If mutual discharge is established, the court then determines the amount of contribution based on what is just and reasonable in the circumstances. The Supreme Court's approach to the doctrine of equitable contribution, which is a significant change to previous law, bears similarities to the approach proposed in the leading text on unjust enrichment, raising the issue of whether a future claim for contribution could be approached using an unjust enrichment analysis.

Cross-fertilisation of Constitutional Ideas

2013 ◽  
Author(s):  
Petra Butler
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Case Law ◽  
Bill Of Rights ◽  
House Of Lords ◽  
The Supreme Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Uk Supreme Court ◽  
The Uk

This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an overview of the relevant New Zealand case law but also compares the courts' approaches to those of their UK counterparts, in particular the UK Supreme Court (formerly, the House of Lords) in regard to section 3 of the UK Human Rights Act 1998. It is argued that the perceived difference in the approaches can be explained by different contexts rather than different methodology. The chapter thereby questions the view held in New Zealand that the UK courts, and especially the Supreme Court, are more activist than the New Zealand courts.

Res Ipsa Loquitur: The Australasian Experience

1954 ◽  
Vol 12 (1) ◽  
pp. 118-132
Author(s):  
D. P. O'Connell
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Burden Of Proof ◽  
House Of Lords ◽  
Difference Of Opinion ◽  
The Subject ◽  
The Law ◽  
Court Of Appeal ◽  
Res Ipsa Loquitur

Dr. T. Ellis Lewis in this Journal in 1951 discussed the operation of the maxim res ipsa loquitur in relation to the burden of proof and proposed certain conclusions. So thorough was his analysis of the question that one would hesitate to intrude upon the field but for the fact that the problems posed by his article and specifically left open by the House of Lords in Barkway's case have recently been considered by the New Zealand Supreme Court and Court of Appeal. A frank difference of opinion on the nature of res ipsa loquitur manifested itself in each court, and hence no excuse is offered for advancing this discussion, which can only be complementary to that of Dr. Ellis Lewis. Advantage will be taken of the opportunity to consider the Australian contributions to the subject. There is perhaps too little awareness in England that many of the academic battles of the law are regularly being fought out in the Australian and New Zealand courts.

scholarly journals The Supreme Court of Canada, the House of Lords, the Judicial Committee of the Privy Council, and Administrative Law

1969 ◽  
pp. 5
Author(s):  
D. H. Clark
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Administrative Law ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
House Of Lords ◽  
Mumbo Jumbo ◽  
The Supreme Court ◽  
The Law ◽  
The Individual

The Supreme Court of Canada's contribution to the jurisprudence of administra tive law has been weak and fitful, erratic and lacking in attention to the principles of its own previous decisions. Failure to articulate points of distinction between its decisions has led to uncertainty in the law. The speaker suggested that the insufficiency of the Court's reasoning and the inadequacy of its citation might be reduced if judgments were more often delivered by more members of the Court thus increasing the individual research and writing of the Court so that its earlier fcmons would be kept in view and the case law developed more coherently. Furthermore, the Court should foUow the House of Lords in not considering itself bound by ds own decisions. The speaker regretted the Court's tendency to take mechanically conceptualise approach to substantive administrative law issues- if Canadian courts are to keep pace with those of other jurisdictions, the Supreme Court of Canada cannot continue to use outworn mumbo-jumbo as substitute for identifyltZtJ «»*"*»* societal interests that are the stuff of /hefPe?kfr aho discussed and compared the contributions of the House of Lords and of the Judicial Committee of the Privy Council. Although it has fewer members the House of Lords has more dissenters in administrative law decisions than the Supreme Court of Canada, (whereas the Privy Council until 1966 could not have dissent). While the S.C.C. has been inconsistent and weak, the Privy Council has been consistent and weak. Although there have been occasional achievements, between 1951 and 1971 the Privy Council rendered series of regressive decisions that impaired coherent development of the administrative law in England and in the Commonwealth. ReidZhh^ i*' f" H0USe °f Lof* under the influenc* of the late Lord h^'^nuJf has enjoyed as most creative °n TegreSSiVe period inPrivy relation Council to public decisions> law si™ However *• earlyhaknZd 1960's mnnt rxiicc ft ££Icrt has*eenperfo

The Judicial Legacy of Salmond J in New Zealand

2008 ◽  
Vol 38 (4) ◽  
pp. 797
Author(s):  
Peter Spiller
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Case Law ◽  
Contract Law ◽  
Reference Points ◽  
The Supreme Court ◽  
Human Reality ◽  
The Law

John Salmond was a judge of the Supreme Court of New Zealand during the years 1920-1924. This paper examines the nature of Salmond J's contribution to judicial precedent in New Zealand in five areas of the law: administrative; family; procedural; property; and contract law. Salmond J's judgments in these areas amply justified his reputation as an outstanding jurist. They were characterised by balance, fairness and a keen sense of human reality, and were presented with admirable structure and clarity. Of particular note is Salmond J's interpretion of the significant body of legislation passed from 1908 onwards. Fortified by his experience of legislative drafting at the time when this legislation was passed, Salmond J confidently supplemented the legislation with case law based on the legislative intent. The overall effect of Salmond J's judicial work was that, during the eight decades after his death, his judgments provided his successors on the bench with apposite language, frameworks and reference points in the cases before them.

scholarly journals Tracking the Pendulum Swing on Legislative Entrenchment in New Zealand

2019 ◽  
Vol 41 (2) ◽  
pp. 207-225
Author(s):  
Timothy Shiels ◽  
Andrew Geddis
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Pendulum Swing ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
The Law ◽  
Near Term ◽  
Over Time ◽  
The Way

Abstract When New Zealand’s Parliament legislates to the effect that law on some particular matter may only be enacted using a mandated procedure, can the New Zealand judiciary enforce this provision against a future Parliament that fails to comply with it? Following the Supreme Court’s recent refusal to conclusively decide this question, we examine why it still remains controversial in New Zealand. We first set the issue in a wider constitutional framework, explaining how such judicial enforcement requires considering the nature of parliamentary sovereignty and the role of the courts in defining this. The way in which the matter has been addressed over time in New Zealand and elsewhere—the pendulum swing of constitutional understandings, to use the Supreme Court’s term—is then outlined. We draw on this analysis to examine why the Supreme Court felt unable to resolve the particular question of enforceability, while also raising an as-yet unexamined question as to how such enforcement implicates the statutorily guaranteed parliamentary privilege of non-interference in the internal affairs of the House. We conclude that because it is unlikely this issue will come before the courts again in the near term, continued uncertainty over the law in this area is set to continue.

scholarly journals The functions and failings of the Abortion Supervisory Committee: A Critique of the New Zealand Supreme Court Decision in Right to Life New Zealand Inc v The Abortion Supervisory Committee

2021 ◽  
Author(s):  
◽  
Emma Jane Smith
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Judicial Review ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Right To Life ◽  
The Supreme Court ◽  
Majority Judgment ◽  
The Law ◽  
Minority View

<p>In 2012 the Supreme Court of New Zealand ruled on Right to Life New Zealand Inc v The Abortion Supervisory Committee. The case was brought by way of application for judicial review, with Right to Life New Zealand Inc arguing that the Supervisory Committee had made an error of law in interpreting its functions under the Contraception, Sterilisation, and Abortion Act 1977. A majority of the Court held that the Supervisory Committee does not have the power to review decisions made by certifying consultants in individual cases. However, both the text and the purpose of the Act support the minority view, that the Supervisory Committee must seek information about individual cases in order to fulfil its functions under the Act. It appears that the majority judgment was motivated by policy concerns due to an arguable change in Parliamentary intent since 1977. The majority should have acknowledged the policy values that guided its decision or accorded with the minority view rather than straining the statutory wording. Either of those actions would have better prompted Parliament to reform the law to reflect modern circumstances.</p>

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