212 exam

Question 1

Control v Independence test

Answer 1

Does A tell B what to do?

Question 2

The integration test

Answer 2

How integrated is B into A’s organisation

Question 3

The economic test

Answer 3

Who takes the financial risk?

Question 4

The Close connection test (2)

Answer 4

• Is the wrong so connected with the employment that the employer has introduced the risk of wrong?
• Has the employer created an opportunity for an abuse of power

Question 5

What is a De Facto relationship?

Answer 5

Two people who are not married or in a civil union that live together as a couple

Question 6

How do you determine if they live together as a couple (9)

Answer 6

1. Duration of the relationship
2. nature and extent of common residence
3. Does a sexual relationship exist
4. The degree of financial dependence of independence
5. the ownership, use, and acquisition of property
6. The commitment to a shared life
7. The care and support of a child
8. the performance of house hold duties
9. the reputation of the relationship

Question 7

A unilateral mistake is when…

Answer 7

the mistaken party was influenced to enter the contract by mistake that was material to that part; and

The other party was aware of this mistake

Question 8

A common mistake is when…

Answer 8

All parties were influenced to enter the contract by the same mistake

Question 9

A mutual mistake is when…

Answer 9

The complaining party and at least one other party were influenced to enter the same contract by different mistakes about the same matter (cross purposes)

Question 10

Compromise process (6)

Answer 10

• Company formulates a proposal
• Proposal circulated with the certain prescribed information to the companies creditors
• creditors vote
• approval required by a majority number and 75% in value of the creditors voting
• if approved it is binding on al creditors of the company and no court approval is needed
• individual creditors can apply to the court of relief.

Question 11

Voluntary administration - initiating phase

Answer 11

• Administrator appointed and initial creditors meeting is held
• Rights of creditors compromised upon appointment of an administrator

Question 12

Voluntary administration - Decision Phase

Answer 12

• Second or main meeting
• administrator states his opinion of what form of administration would be in the interest of creditors, and creditors vote for one of three options
  1. deed of company arrangement
  2. Winding up
  3. end of administration

Question 13

Voluntary administration - Transition phase

Answer 13

Administration of the company ceases or transits a deed of company arrangement or a winding up

Question 14

Liquidation process - happens because

Answer 14

-Company cant pay its debts
- usually satisfied by creditors after 15 working days of not receiving payment

Question 15

Liquidation process - What happens

Answer 15

• Application is made to the high court
• proceedings are advertised and called in open court
• if court is satisfied that company cannot pay its debts they will appoint a liquidator
• will usually be an Official assignee or another suitable person

Question 16

In the liquidation process there is not attempt…

Answer 16

to preserve the company

Question 17

Order of payment

Answer 17

• secured creditors
• liquidation costs
• preferential costs
• employee claims
• kiwisaver obligation
• GST, IRD, PAYE
• Unsecured creditors
• Shareholders

Question 18

Misrepresentation elements (3)

Answer 18

A false statement of past or present fact
2. The false statement was material in inducing to the party it was made to enter the contract
3. As a result of relying on the truth of the false statement the party suffered a loss

Question 19

Unconscionable bargans elements (3)

Answer 19

1. Special advantage
2. Knowledge
   - The stronger party knew of the weaker parties special disadvantage
3. Victimisation
   - Active extortion of a benefit
   - passive acceptance of a benefit in unconscionable circumstances

Question 20

Age - test

Answer 20

• A contract against a minor is not enforceable unless the court sees it fair and reasonable to do so.

Question 21

Mental disorder test

Answer 21

the MDP proves that they did not understand what they were doing when entering into a contract because of they’re mental disorder and;

That the other party was aware at the time the contract was entered into of the mental disorder

Question 22

Intoxication test

Answer 22

The IP proves that they were not able to appreciate what they were doing when entering into a contract as a result of being intoxicated; and

That the other party was aware at the time the contract was entered into of the IP’s state

Question 23

Offer is the…

Answer 23

clear an unambiguous undertaking bound by terms which become binding upon acceptance

Question 24

Acceptance is the…

Answer 24

Unconditional assent sent by the offeree to the terms of the offer communicated by the offeror

Question 25

Intention to be bound

Answer 25

agreement is not enforce ale unless parties intended it to be bound

Question 26

Consideration is the

Answer 26

is the price paid by the promisee for the promise of the promisor.

Question 27

property that one partner receives is…

Answer 27

not relationship property unless it is used to the benefit of both parties then it becomes relationship property

Question 28

kiwi saver earned…

Answer 28

after the relationship has begun is relationship property

Question 29

What is a relationship property agreement?

Answer 29

persons may enter into an agreement they think fit regarding the status, ownership and division of their property

Question 30

What is the process of completing a relationship property agreement?

Answer 30

The agreement must be in writing each party has to sign. both parties must receive seperate legal advice. the same solicitor to give advice and witness the signing.

Question 31

Doctrine of part performance

Answer 31

1. Is there and enforceable agreement but for S24 of the property laws act 2007?
2. Has there been an oral arrangement to do something which is:
   a. Clearly a step in the direction of a contractual obligation or right under the agreement
   b. Was on the balance of probabilities done on the basis that a contract for the sale of land was in alleged existence
3. Do the circumstances in which the part performance was acted make it unconscionable for the defendant to take advantage of section 24 of the property laws act 2007?