NZDB510 – AMCL510 Introduction to Commercial Law
Branches of law, and law, ethics and morality
John and Martha have been living together as partners for 7 years and both work at the bank where they are responsible for the investment. John and Martha have a relationship property together. They decided to separate and during this time Martha discovered that John took some money out of one of the client’s accounts while they were married. The client is Ben a mutual and trusted friend. Martha is angry at John and decided to go to the police and provide them with the evidence just to spite John.
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(a) John is charged with an offense and he has to appear in court.
(i) Would this case be part of the public law or private law? Why do you say so? Explain please. (2 marks)
(ii) What area of law does this matter fall under? (1 mark)
(iii) What will be the standard of proof and who will have to proof it (2 marks)
(b) Ben was very disappointed in his friend breaking the trust relationship of years between them. He decided to claim back his money and some other money that John borrowed from him that is also still in John’s possession.
(i) Would this case be part of public law or private law? Why do you say so? Explain please. (2 marks)
(ii) In the court case between Ben and John, each will be referred to by particular titles as well as their names. What title will be given to Ben and what title to John or how will they be referred to? (2 marks)
(c) Martha decided to claim for 50 % of the relationship property on the advice of a friend? What will be the standard of proof expected from Martha in a court? (1 mark)
(d) Martha’s friend Gayle reports John to the (fictitious) New Zealand Institute of Honest Investors. She believes John might have breached a code or professional standard laid down by the Institute. If John is found to have breached these rules, the Institute may be able to take disciplinary action against him.
(i) Do the codes and professional standards lay down principles of law or ethical principles? Explain how you reached your conclusion. (2 marks)
(ii) Gayle is so angry and agitated with John that she told Martha that she thinks a breach of the principles will cause John to go to prison without any legal action having to be taken by the courts. Do you think this statement is true or false? Motivate your answer. (2 marks)
(iii) Gayle told Martha: “What John did is completely immoral and therefore it is illegal”. Is it correct to say that something immoral is always illegal? Explain your answer. (2 marks)
(iv). Martha’s Pastor told her that what John did goes against religious principles. Explain two characteristics of legal rules to Julius, showing how these are different from religious rules. (4 marks)
[Question 1 total: 20 marks]
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Treaty of Waitangi
a. What are the powers of the Waitangi Tribunal? (4 marks)
b. It has been said that a source of friction between Maori and Pākehā about the Treaty of Waitangi is the word or concept of “sovereignty”. Concerning the Treaty of Waitangi, discuss why these issues have arisen. (1 mark)
c. Do some research and tell me the history that led to the Foreshore and Seabed Act 2004 and why it was controversial and when and with what it was eventually replaced? (4 marks)
d. What is the relevance of the Treaty of Waitangi Amendment Act 2006? (1 mark)
[Question 2 total: 10 Marks]
New Zealand Constitution and Parliamentary law-making:
a. Discuss what makes up New Zealand’s constitutional status? Then explain what the advantages and disadvantages are of having one constitutional document vs the position in New Zealand. (4 marks)
b. Each piece of legislation in New Zealand passes through a process. Briefly describe that the parliamentary process an Act goes through before it becomes law. (Note: you may use a diagram in your answer if you choose). (4 marks)
c. Research and then identify two constitutional roles of the Governor-General (2 marks)
d. What does it mean if I say that our Constitution Act is “entrenched”? Is this statement true or false (in other words is the NZ Bill of Rights Act entrenched or not? (1 mark)
e. Is this statement true or false and motivate your answer: “The New Zealand Constitution is superior law”?
f. What are the three branches of our government and their functions? (2 marks)
g. What is the difference between a “caucus” and the “cabinet? (2 marks)
h. What is a Repealing Act? (1 mark)
i. What is a “Revising” or “Revision Act”? (1 mark)
j. What is a “Retrospective Act”? (1 mark)
k. What is an “Enabling Act”? (1 mark)
l. What is a “Consolidating Act”? (1 mark)
[Question 3 total: 20 Marks]
a. Give the material facts of H v Police . (1 mark)
b. What was the legal issue in H v Police ? (1 mark)
c. What extrinsic aid to interpretation did McMullin J used in his judgment? (1 mark)
d. Name one intrinsic aid to interpretation used by Casey J in his judgment. (1 mark)
e. In the judgment of Cooke P is an obiter dictum statement. What was it? (1 mark)
f. In interpreting the statutory provision, what approaches did Cooke P use? (1 mark)
g. What was the ratio decidendi of the case? (1 mark)
h. Guidelines for interpretation comes from two sources. Name them. (1 mark)
i. What is the literal rule and what is the golden rule? (1 mark)
j. Give the section number, the Act, and quote the section of the relevant legislation that we use as the point of departure in interpreting statutes. (1 mark)
[Question 4 total: 10 Marks]
a. What is “subordinate legislation”? (and give a reason why it is used in New Zealand) . (2 marks)
b. Describe one (1) advantage and one (1) disadvantage of delegated legislation. (1 mark)
c. Explain what it means when delegated legislation is “ultra vires”. (1 mark)
d. Give an example of delegated legislation and include who has delegated the legislation and to whom. (2 marks)
e. Evaluate the accuracy of the following statement: “Delegated legislation cannot be declared invalid by a court and this is due to the fact of parliamentary supremacy”. (2 marks)
f. What are legislative instruments? (2 marks)
[Question 5 total: 10 Marks]
a. Name 5 differences between case law and statute law. (5 marks)
b. Do you think having an “embedded case law tradition” is a good/bad thing and give your reasons? (2 marks)
c. What can Parliament do to overrule a principle established by the court system that they are not happy with? (1 Mark)
New Zealand has at the heart of its judicial system a tradition of case law. Find a case from the disputes tribunal database of decisions:
http://www.justice.govt.nz/tribunals/disputes-tribunal/decisions-of-note and answer the following:
d. What is the referee careful to do with laying the case out and showing how they have reached their decision? (2 marks)
[Question 6 total: 10 Marks]
The hierarchy of courts
(a) The doctrine of Stare decisis is one of the cornerstones of our legal system. Explain the doctrine and how it influences the hierarchy of courts. (1 mark)
(b) What is the difference between a ratio decidendi and an obiter dictum? (1 marks)
(c). John’s business is in Whangarei. He must go to the High Court resulting from some business-related issues. He is not sure about the following so please advise him and give a reason for each case:
i. Whether a decision of the District Court in Whangarei will be persuasive or binding?
ii. Whether a similar decision of the Australian Court of Appeal will be persuasive or binding?
iii. Whether a similar decision in the New Zealand High Court will be persuasive or binding?
iv. Whether a decision of the Supreme Court of New Zealand will be persuasive or binding?
[Question 7 total: 10 Marks]
PART B TOTAL: 30 MARKS
Fair Trading Act 1986: • misleading or deceptive conduct
• false or misleading representations
• remedies and penalties for breach.
Questionable Fitness (Q Fitness) has entered the Christchurch fitness market with swish new gyms in various suburbs. It launches a marketing campaign with the key slogan: “Top fitness facilities at only $13.00 per week!” The advertisements are accompanied by a couple of photographs, including one of Q Fitness’ trendy bike fitness studio.
Sandy visits Q Fitness to join it. She is given a tour of the fitness facilities during which Sandy is particularly impressed by the trendy bike fitness studio, exclaiming: “This will be fantastic for my triathlon training over the cold winter months!”, in response to which the Q Fitness employee simply replies “yeah” and moves on with the tour. After the tour when Sandy indicates that she would like to join and starts completing the paperwork, she becomes aware of the following:
There is an initial joining fee of $60.00;
In addition to the weekly fee of $13.00, there is an “administration fee” of $25.00 per month;
The membership does not include access to the bike fitness studio. If Sandy wishes to train there, then she will need to pay an additional fee of $5.00 per session.
Annoyed, Sandy complains to the Commerce Commission. Q Fitness denies any wrongdoing. You are the Commerce Commission-analyse and advise if the Fair Trading Act applies and if so what provisions may have been breached here and what are the legal consequences? (15 marks)
There are ten different types of misleading representations that are prohibited according to paragraphs 13 (aj) of the Fair Trading Act 1986. Please paraphrase it or explain each representation in your own words and give an example of each. (5 Marks)
(Current Consumer Guarantees Act: • application • implied guarantees • remedies)
Rex has decided to replace the floor coverings in his house and art studio from where he sells paintings. After visiting several retailers he enters into a contract with Kiwi Discount Carpets Limited for the supply and laying of vinyl and carpet throughout his house and art studio, for $9,000. He chooses a particular shade of beige from a range of samples for the carpet and vinyl which will both fit with his décor and not interfere with his artistic inspiration.
Rex arrives back from a business trip the day the work is being done to find that the color of the carpet is very different from the sample he looked at. He also notices that there are streaks in the vinyl, and gaps in several places around the edges where it has been laid in the kitchen and his work studio. The skirting boards have also been badly gouged and scratched in two places.
Rex complains to Kiwi Discount Carpets Limited but the manager points out a clause in the contract which reads: “The provisions of the Consumer Guarantees Act 1993 shall not apply to this transaction”.
Concerning specific sections of the Consumer Guarantees Act 1993, advise Rex what legal rights he may have against Kiwi Discount Carpets Limited and what remedies he might expect. (15 marks)
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Question 4: (5 marks in Total)
i. You bought a car from a dealer and the electric windows are not working. The dealer says he is not responsible as he advertised the car as second hand (Discuss the issue). (1.5 marks)
ii. Would it be different if you bought the car privately and not from a dealer? (1.5 marks)
iii. The dealer rectified the electric problem. Then the gearbox and engine ceased and the brakes failed. Is the dealer still responsible and which section applies? (2 marks)
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