Articles |
Veil Piercing and Corporate Groups — An Australian Perspective
Helen Anderson |
This article considers the practice of piercing the veil of corporate groups in Australia in the wake of the James Hardie scandal. This involved asbestos victims being seriously undercompensated until a Special Commission and political pressure forced the proper resourcing of a compensation fund. The theory of veil piercing will be considered in the light of the various legislative provisions available to creditors of subsidiary companies to take action against parent companies or their controllers. Measures to overcome some of the problems raised by corporate groups will also be addressed. |
Fine-Tuning Affirmation of a Contract by Election: Part 1
Rick Bigwood |
The common law election doctrine is well known to judges and lawyers but it is not always well understood. This article considers that doctrine as it applies to the choice, which occasionally confronts a contracting party, between asserting a right to hold the other party to the existing contractual relationship inter se (that is, “affirming” the contract), and exercising an inconsistent legal power allowing that contractual relationship to be put to an end (that is, “disaffirming” the contract).
The right-holder’s communicated decision not to disaffirm the contract alone results in “affirmation” of the contract and, by operation of law, permanent loss of the power that was not exercised, thereby destroying the inconsistency between the two jural alternatives that necessitated a choice in the first place. The election to affirm the contract, as opposed to disaffirming it, is the focus of this article, which will be published in two parts.
This part considers miscellaneous troubling or unsettled features of the election doctrine’s scope, rationale, criteria, relationship to other legal preclusionary categories, and operation as they relate to affirmatory decisions or conduct in particular. Part 2 will examine the difficult and controversial question of the necessary mental componentry of an effective affirmatory election, in the light of the well-recognised contemporary distinction between “actual” and “imputed” election.
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Romantic and “Real Life” Relationships in Criminal Law: Reconstructing Red Flags for Dangerousness/Lethality
Judith Buckingham |
Criminal law analyses of lethal violence towards female intimates are examined in three domestic violence settings. These scenarios reveal internally inconsistent legal evaluations of domestic homicide and incongruity with internationally established patterns of risk. Law that is unresponsive to primary domestic violence “red flags” engenders injustice for battered victims and defendants and calls into question the quality and effectiveness of domestic violence victim protection in the courts. |
The “Mirror” Principle and the Position of Unregistered Interests in the Torrens System
Janet November, Julia Rendell |
The mirror principle, namely that the land title register should accurately reflect all interests in a plot of land, is a key principle in the Torrens system. However, interests in land continue to exist outside the register. This article considers the position of unregistered interests in Torrens land, and the problems regarding their protection and their reflection on the “mirror of title”. In particular, the position of unregistered interests can be reconsidered in the light of obiter dicta in the New Zealand Supreme Court decision in Regal Castings Ltd v Lightbody [2008] NZSC 87, [2009] 2 NZLR 433. Some other jurisdictions have adopted an interest-recording system in addition to registration. Interest-recording systems confer priority and may allow interests to “run with the land”, but do not confer indefeasible title to the interest. They can offer certain benefits, such as consistency with the mirror principle, greater protection for owners of unregistered interests and enhanced facility of transfer. New Zealand has a limited example of such a system in its notification of restrictive and positive covenants on the land title register. This article concludes, however, that developing such a system is not necessarily a solution for New Zealand, especially as Regal Castings can lead the way towards an improved situation for unregistered interests. |
Reviews |
Administrative Law
Hanna Wilberg |
This review must start by paying tribute to the late Professor Michael Taggart. Mike has been a towering influence on New Zealand administrative law and a leading figure in New Zealand’s contribution to administrative law around the common law world — a mighty totara indeed.
We all expected to be enlightened by his insights, and to benefit from his legendary support, collegiality and humour for many more years to come. Instead, following his untimely passing on 13 August 2009, it now falls to us to mine the plentiful treasures in the body of scholarship that he left behind, and further to pursue the various fields of inquiry that he did so much to open up...
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Contract
Andrew Beck |
An interesting aspect of the contract decisions reported this year is the focus on claims under the Fair Trading Act 1986. There are suggestions that what appeared to be settled practice on misleading and deceptive conduct may not be so.
The Supreme Court has considered the law relating to implied conditions in offers and the approach to misleading and deceptive conduct. The Court of Appeal has also considered misleading and deceptive conduct, as well as privity of contract. The High Court has considered issues relating to formalities and electronic signatures.
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2010 Issues 
