contact theory NZs APPROACH ATM Flashcards
what is the main dominant theory here in nz
there is not one main theory in NZ and approaches have been changed over time
what are the two main predominant theories in NZ
traditional and global approach
what is the traditional approach
the traditional approach pushes the idea of certainty predictability, parties adhere to the clear terms of the contract
what is the global approach
says it is better to apply legal rules how they would apply in the real world, commercial sense and context
what did the nz sc say about implication
NZ SC has clearly said that implication only arises after interpretation
because you must make sense of the express terms
before you can say or reject the idea of an implied term.
Planet Kids v Auckland Council is the leading authority for
frustration in NZ.
what damages do not exist in nz
There are no exemplary or punitive damages in NZ -
damages are merely compensatory
there is no question of punishing the contract breaker.
what did Vector Gas (Supreme Court) hold in relation to prior negotaitations
that prior negotiations may be admissible in NZ.
2021 SC case of Bathurst confirms NZ move to what type of approach
a modern approach to contract interpretation
how did planet kids apply frustration
It applied a multi-factorial approach which looked at all relevant considerations and made decision based on what is going to be the most just outcome for the particular case
(contextual and circumstantial rather than based on ridged rules).
what did the employment court in the airline case say regarding prior negotiations
the decision was held to be an error of law, not in the sense of the use of them completely however it was the WAY in which they were used, suggesting the use of prior negotiations isn’t strictly not permitted
Clarity to admissibility came in the Supreme Court case of Bathurst in 2021. It held that
prior negotiations and subsequent conduct may be determined as admissible by a two stage test of evidence
what was the two step test developed in bathurst in nz supreme court regarding prior negotiations and subsequent conduct
evidence will be admissible where it is prima facie relevant
and
its probative value outweighs the time that admitting it would add to the proceeding.
the modern approach in bathurst was first given rise to prior in
in ICS by Lord Hoffman
which departed from the traditional approach to contract interpretation that was limited to the four corners of the contract unless there was ambiguity.
