Legislation Interpretation
Purpose of Judicature Act 1908
The Act provides for rules that are to be used in securing and ensuring just, speedy and cost-effective determination and disposal of all sorts of civil proceedings and interlocutory applications in New Zealand. Section 1.4 of the Act provides that the rules set by this Act shall apply to the practice and procedures of the court in all civil proceedings and interlocutory application except in cases where appeals are filed to the Court of Appeal of Supreme Court (Judicature Act 1908).
Proposed Changes
The Judicature Act 1908 has undergone several amendments over time. The most recently proposed Bill to amend it is the Judicature Modernization Bill 2013 seeking to consolidate the Judicature Act 1908 and the Supreme Court Act 2004 and replace the two with Senior Courts Bill. It repeals the District Courts Act 1947 and replaces it with the District Courts Bill. By August 23rd, 20016, the Bill entered the stage of the Committee of the Whole House. At the Committee of the whole House stage, the Bill is considered in detail and voting on proposed changes conducted (New Zealand Parliament, 2016).
Finding Judicature Act 1908
Information on Judicature Act 1908 can be found on a variety of source. It is available on the New Zealand Parliament website which is https://www.parliament.nz. It can also be accessed at http://www.legislation.govt.nz. The later provides a concise explanation of each of the elementary rules of the act. It is also accessible on http://r126.publications.lawcom.govt.nz/
Interpretation of Case law
One of the case laws interpreting the Judicature Act 1908 was in the case of Franklin v Baycorp Ltd (1990). The legal principle to be construed was whether Associate Judges had Inherent jurisdictional powers and if so, to what extent did they exercise those powers. Doogue J found that Associate Judge’s jurisdiction was derived entirely from the Judicature Act and High Court rules but did not acknowledge whether Associate judges had inherent jurisdiction of the High Court. As per this argument, as Associate Judge has the inherent power of a High Court Judge within the confines of his or her jurisdiction but no such power to handle matters outside his or statutory jurisdiction.
Prudent Investments claim against Ace Consulting & Accounting
The claim in issue relates to the misrepresentation of a statement by one party to another. Under the law of contracts, misrepresentation is a false declaration of fact or law made by one party to another, of which upon reliance on that statement, induces the representee to enter a contract with the representor. Upon realizing the misrepresentation, the contract is voidable and in the instance of loss, the representee is entitled an award of damages. This was discussed in the case of Marlborough District Council v. Altimarloch Joint Venture Ltd and Ors ("Altimarloch") [2012] NZSC 11 where the plaintiffs had purchased a piece of land from the defendant relying on a statement by the respondent/Moorhouse agent that property extended with water rights. The price of the land was overstated, and the plaintiffs suffered financial loss as a result. The court held that this amounted to a breach of contract due to misrepresentation hence the plaintiff was entitled to damages for the loss suffered as provided for under Sec. 6 of the Contractual Remedies Act 1979 (Ferguson & McGuigan, 2012). Therefore, Prudent Investment can succeed in a claim against Ace Consulting & Accounting since their loss was as a result of a misrepresentation by the latter. Sec. 7 of the Contractual Remedies Act 1979 also allows an aggrieved party to cancel the contract in whole due to misrepresentation.
As discussed in Marlborough District Council v. Altimarloch Joint Venture Ltd and Ors, the Council was to blame for negligence resulting in the plaintiffs' loss. Negligence arises where there is a duty of care owed by one person to another. Land Information Memorandum of the Council provided land characteristic and upon reliance on it, the plaintiff bought the property (Ferguson & McGuigan, 2012). This case provides similar situation whereby on dependence on the negligent misrepresentation of Ace Consulting & Accounting, Prudent Investment lost a considerable amount of money; hence a claim against the former by the later will succeed.
Contract between Louise and Mandy, subsequently between Louise and Allison
Louise and Mandy
In determining whether Mandy's claim can stand against Louise, one has find out whether essential of elements of a contract are present. In this case, we see that there was an offer which was accepted by the other party. Believing that she would be paid, Mandy performed her part of the obligation. The price of the work was the agreed consideration. To this point, the contract was enforceable under law. Issues arise due to the disclaimer. Courts in New Zealand have had the tradition of enforcing contracts where there is a likelihood of unfair bargaining power and where the agreement would be injurious to the claimant, and then the court will rule out a clause attempting to prevent a party from enforcing their rights. If terms of a contract are oppressive, flawed bargaining process or a contract shake the court’s conscience then it will be strike down. Commerce Commission of New Zealand (2014) commenting on contracting out of Fair Trading Act fact sheet 2013 state that a business cannot enforce an agreement claiming to release it from liability to a contract out of Fair Trading Act. The situation is the same about Mandy’s case, and therefore, her claim will succeed since the terms of the agreement were unfair and oppressive (Commerce Commission of New Zealand, 2014).
In the second instance, Allison’s claim against Louise has a high likelihood of success since the terms of the contract were clear. The agreement was that she would be called to help in a need to be basis and paid according to the work she did at Louise’s business. All the elements, in this case, were satisfied including an intention to create a legally binding relationship
References
Commerce Commission of New Zealand,. (2014). Contracting out of the Fair Trading Act | Commerce Commission. Retrieved from http://www.comcom.govt.nz/fair-trading/fair-trading-act-fact-sheets/contracting-out-of-the-fair-trading-act/
Contractual Remedies Act 1979, s6 & s7. Reprinted 2011.
Ferguson, A. & McGuigan, J. (2012). NZ Supreme Court examines interplay of contractual and tortious liability. Retrieved from http://www.wilsonharle.com/nz-supreme-court-examines-interplay-of-contractual-and-tortious-liability/
Franklin v Baycorp Ltd (1990) 4 PRNZ 258.
Judicature Act 1908 of New Zealand, s 1.3 & 1.4
New Zealand Parliament, (2016). Judicature Modernisation Bill 2013. Retrieved from https://www.parliament.nz/en/pb/bills-and-laws/bills-digests/document/50PLLaw21081/judicature-modernisation-bill-2013-bills-digest-2108
