Summary

Question 1

What is needed to have a contract?

Answer 1

• Agreement (offer and acceptance)
• Intention to enter into legal relations
• Consideration

Question 2

What is the doctrine of privity of contract?

Answer 2

Only parties to a contract can enforce that contract

Question 3

What is a possible defence for breach of contract?

Answer 3

The plaintiff has a duty to mitigate loss

Question 4

What are the remedies for breach of contract?

Answer 4

Compensatory damages (normal loss, loss in defendant’s contemplation), termination of contract (if clear party won’t carry out or serious breach), non compensatory remedies (specific performance, injunction)

Question 5

What is S9 of the FTA?

Answer 5

No person shall, in trade, engage in conduct that is misleading or deceptive or likely to mislead or deceive

Question 6

What is the definition of trade?

Answer 6

Any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supply of goods or services or to the disposition or acquisition of any interest in land

Question 7

How is S9 of FTA different from S10-13?

Answer 7

S9 results in civil liability and the rest is criminal liability

Question 8

What is S10, S11 and S13 of FTA?

Answer 8

S10 - misleading conduct - goods
S11 - misleading conduct - services
S13 - false or misleading representations

Question 9

What are possible defences to FTA?

Answer 9

S9 - no defences
S10-13 - reasonable reliance on info supplied by another person, breach due to cause beyond defendant’s control (reasonable precautions taken), contravention due to reasonable mistake

Question 10

What are the remedies for FTA?

Answer 10

Civil - injunction, damages, refund

Criminal - 200k for individuals, 600k for companies

Question 11

What is required to contract out of the FTA/CGA?

Answer 11

• Agreement in writing
• Both parties in trade
• Fair and reasonable

Question 12

What is the two-part test for consumer under the CGA?

Answer 12

Acquires from a supplier goods or services of a kind ordinarily acquired for personal, domestic, or household use or consumption

Does not acquire for the purpose of;

• resupplying in trade
• consuming in a production/manufacturing process
• repairing other goods in trade

Question 13

What are the guarantees for goods under the CGA?

Answer 13

• Acceptable quality
• Fitness for a particular purpose
• Compliance with description and samples

Question 14

What is considered acceptable quality?

Answer 14

• Fit for all purposes commonly supplied for
• Acceptable in appearance and finish
• Free from minor defects
• Safe and durable

Question 15

What are the guarantees for services under the CGA?

Answer 15

• Reasonable care and skill
• Fitness for a particular purpose
• Finish the task within reasonable time frame
• Reasonable price

Question 16

What are the remedies against suppliers under CGA?

Answer 16

If can be repaired - repair/replace

If cannot be fixed or of substantial character - refund/replacement/damages

Question 17

What are the remedies against manufacturers under CGA?

Answer 17

Damages - difference between price paid or average retail price and current value; reasonable foreseeable damages

Question 18

What is failure of a substantial character under the CGA?

Answer 18

• Goods depart in significant way from description
• Substantially unfit for common purpose
• Unsafe

Question 19

What are the elements to prove negligence?

Answer 19

• Owed a duty of care
• Breach of duty
• Breach caused harm
• Harm to plaintiff was not so remote

Question 20

Who is owed a duty of care?

Answer 20

Persons who are so closely and directly affected by my act that I ought reasonably to have them in mind when I act
(proximity, foreseeability, policy factors)

Question 21

How is requisite standard of care determined?

Answer 21

Reasonable person test - depends on facts, skills, probability of harm

Question 22

How is causation determined?

Answer 22

The but for test

Question 23

How is remoteness of harm determined?

Answer 23

Wagon Mound test - defendant is liable for the type or kind of loss that a reasonable person could foresee (liable for full extent)

Question 24

What is the egg shell skull principle?

Answer 24

You take your victims as you find them

Question 25

What are possible defences to a claim of negligence?

Answer 25

Contributory negligence and voluntary assumption of risk

Question 26

What are the elements of negligent misstatement?

Answer 26

Duty of care (reasonable reliance) Breach of duty of care Actual reliance Remoteness of harm (economic)

Question 27

What factors affect whether a duty of care is owed in negligent misstatement?

Answer 27

Contract Communication Disclaimers Defendant knows plaintiff will rely for immediate purpose Defendant has special knowledge which reasonably infers plaintiff will use (liability possible) Defendant knows statements likely to be relied on but knows nothing about plaintiff (liability unlikely)

Question 28

What rights are in the bundle of rights theory?

Answer 28

The right to; - Physically possess - Use - Exclude others from using - Transfer and receive proceeds - Abandon/destroy

Question 29

What is title?

Answer 29

Full entitlement - all in bundle of rights

Question 30

What is the Nemo dat rule?

Answer 30

No person can give better title to goods than they have

Question 31

How is real property categorised?

Answer 31

Land (fixtures), estates in land, interest in land (easements, mortgages)

Question 32

What are freehold estates in fee simple?

Answer 32

Most complete ownership of land

Question 33

What are freehold life estates?

Answer 33

Right to live/rent over duration of life

Question 34

What are leasehold estates?

Answer 34

Do not own the land; only the building on it

Question 35

How is personal property categorised?

Answer 35

Chose in possession (tangible items enforced through property rights) and chose in action (intangible items enforced through legal action)

Question 36

What is the difference between a secured creditor and an unsecured creditor?

Answer 36

Secured creditors have property rights and personal rights; unsecured only have personal

Question 37

What are registration systems for?

Answer 37

Allows different types of interests to be registered in public registers

Question 38

What are title based registers?

Answer 38

Records who has title/interest eg. Torrens system

Question 39

What are interest based registers?

Answer 39

Records only certain types of interest eg. Personal Property Securities Act

Question 40

How is the Torrens system indexed?

Answer 40

According to land's identity

Question 41

How is the PPSA indexed?

Answer 41

According to name of debtor - does not tell who owns personal property

Question 42

What is the Doctrine of Indefeasability?

Answer 42

The record of title is final evidence of everything about the title and ownership of the land (givers certainty to Torrens system)

Question 43

What is an inter vivos trust?

Answer 43

Set up while the settlor is alive. Does not require written document and settlor no longer owns assets once set up.

Question 44

What is a testamentary trust under will?

Answer 44

Takes effect after settlor dies. Formal requirements to set up.

Question 45

What must deeds/wills include?

Answer 45

``` Name of trustee Trust property Powers of trustees How income is distributed Duration ```

Question 46

What are the requirements for a valid trust?

Answer 46

Certainty of intention Certainty of beneficiaries Certainty of subject matter

Question 47

When are trusts invalidating?

Answer 47

Illegal purposes Set aside by legislation Defeating credits

Question 48

What are the two types of fiduciary relationships?

Answer 48

Status-based and fact-based

Question 49

What is required to comply with fiduciary duties?

Answer 49

No conflicts of interest No secret profits No competition with principal No misuse of principal's property

Question 50

How can conflicts be avoided?

Answer 50

Disclosure Consent Fair price (suggest independent legal advice)

Question 51

What are the 12 principles in the Privacy Act?

Answer 51

1. Info relevant to purpose 2. Collected from subject directly 3. Must be told info being collected (who, why) 4. Not collected unfairly 5. Held securely 6. Allow access 7. Request correction 8. Ensure accuracy 9. Don't keep for longer than needed 10. Only used for purpose collected 11. Info cannot be disclosed to others 12. Cannot assign same unique identifier

Question 52

What is the headstart doctrine?

Answer 52

Confidentiality until other competitors bring the product on the market

Question 53

What are possible defences to a claim of breach of confidence?

Answer 53

Public knowledge Independent discovery Disclosure in public interest

Question 54

What does copyright cover?

Answer 54

Original works; - Literary - Dramatic - Musical - Artistic - Sound recordings - Films

Question 55

What is required to register a trade mark?

Answer 55

Must be a sign Capable of being represented graphically and distinguishing Cannot be laudatory/descriptive etc.

Question 56

What can cause infringement under the Trade Marks Act?

Answer 56

Identical trademark/goods Identical trademark/similar goods Similar trademark/identical or similar goods Identical or similar trademark/any goods if well known in NZ

Question 57

What are the remedies for copyright and trademarks?

Answer 57

Injunctions Delivery up of infringing copies Account of profits Damages

Question 58

What authority can be held by an agent?

Answer 58

Actual - express or implied | Apparent