The Constitution

Business Law Relating to EntitiesBLAW 211ACTB 201 Part A 20074RULESMoral RulesLegal Rules

Laws = Rule enforceable by the StateLEGAL SYSTEMPublic LawConstitutional LawAdministrative LawInternational LawCriminal LawLEGAL SYSTEMCivil LawContractTortFamilyPropertyEquityLEGAL SYSTEMCriminal Proceeding Action by State for breach of Criminal Law (The Queens Peace)

Civil ProceedingAction bought by one individual against another. (The individual may be the Crown if they are involved in Civil Wrong)The ConstitutionDoes new Zealand have one?

What is a Constitution?Rules and practices that determine the composition and functions of Government and which regulate the rights and duties between citizen and state

Types of constitutionConstitutional monarchyMonarchyDictatorshipRepublicThe Kingdom of New Zealand

Head of StateElizabeth, Queen of New ZealandThe Governor-General

Constitutional ConceptsRule of LawSeparation of PowersExecutiveLegislatureJudiciaryExecutive Administers the lawLegislature Making the lawJudiciary Enforcing the lawACTB 201 Part A 200714THE EXECUTIVEHead of StateExecutive CouncilCabinetThe Prime MinisterCabinet MinistersMinisters and Government Departments- Executive Council consists of certain members of cabinet and prime minister sitting together with the Governor General or Queen when shes in New Zealand

ACTB 201 Part A 200715PARLIAMENTHead of State

House of RepresentativesMembers of ParliamentThe Speaker of the HouseSelect Committees- To be a Minister, you must be an MPACTB 201 Part A 200716JUDICIARYJudges

Quasi Judicial OfficersQuasi Judicial Officers Make decisions in terms of resolving peoples legal rights (referee in disputes tribunal)ACTB 201 Part A 200717

CONSTITUTIONAL CONVENTIONSThe Governor GeneralLaw (Examples)

Power not to assent to Bills

Power to Appoint PM

Power to appoint Ministers

Power to appoint Judges Convention (Examples)

Must Assent to Bills

Must appoint leader who has confidence of House of Reps

Must appoint on advice of PM

Must appoint on advice of A-G (Attorney-General)

Governor defeated on confidence notion must resign (loses confidence of the House)

During 3 week period after the election, outgoing ministers would carry out any instructions from Prime Minister electACTB 201 Part A 200719THE CONSTITUTIONTHE ENDSOURCES OF LAW How are Laws Made and Interpreted?LawsLegislation:StatutesSubordinate Legislation

Common Law and EquityJudge Made Law - Courts enforce the law not the police etc.ACTB 201 Part A 200722StatutesStatusSupreme Law

Overides Subordinate legislation

Overides Common Law and EquityHighest form of law (Acts of Parliament)Only Parliament can make a Statute in NZ

ACTB 201 Part A 200723StatutesParliamentary Supremacy (The Theory)

Dicey:

Parliament can make any law at all

Except, Parliament cannot bind a future parliament

Entrenchment?

The Power of the people?ACTB 201 Part A 200724StatutesHow Statutes Are Made

Bill proposed

First reading

Select Committee stage (in most cases)

Second reading

Committee stage (House in Committee) (in most cases)

Third Reading

Royal AssentPassed through by Governor General (by convention) on Royal Assent

- Bill can be passed through without the Committee stages by Government (only if urgent though)ACTB 201 Part A 200725StatutesUnited kingdom and English StatutesSubordinate LegislationStatusSubordinate to StatutesOverride common law and equity

TypesRegulations and RulesOrdersNotices

Ultra Vires

3 Types of Acts: Public Acts Applicable anywhere in NZ territory Local Acts Only apply in certain areas of NZ Private Acts Applicable only to individual people or specific organisations (most Private Acts in NZ regard rescinding adoption)

Ultra Vires Outside the powers (Latin)

ACTB 201 Part A 200727Interpretation of LegislationRules

Literal Rule (Strict literal meaning)

Golden Rule (avoid absurdity)Mischief Rule (What mischief is the Act trying to prevent)

Purposive approach Example Whosoever being married shall marry any other person during the life of the former husband or wife shall be guilty of felonySection 57 Offences Against the Person Act 1861 (UK)R v Allen (1872) LR 1 CCR 367

Under the Marriage Act any marriage registration involving a party who is already married is invalid.

Interpretation of LegislationEusdem Generis (Things of the same kind)

Unless the context otherwise requires,-

Animal means dogs, cats, guinea pigs, canaries, goldfish, and other animals.Other animals Restricted meaningACTB 201 Part A 200730Interpretation of LegislationNoscitur a Sociis (A word is known by its neighbour)

Unless the context otherwise requires,-

Road means any road, highway, street, lane, footway, or alley

Interpretation of LegislationPresumptionsAct will not bind the crown unless Act says otherwise.

Common Law will not be altered unless there is no other interpretation.

Implied repeal

Clear wording required to restrict the liberty of the individual

Cannot take private property without compensation without clear words

No retrospective effect without clear wordsInterpretation of LegislationInterpretation Act 1999 and Interpretation Sections

Case Law

Hansard

Treaty of Waitangi

DictionariesCommon Law and EquityCommon Law Equity Distinction

Status

Where does it Come From?COURT PROCEEDINGSProcedure and Pleadings

Trials (Hearings)

Law Reports

Case AnalysisDoctrine of Precedent

Hierarchy of the Courts

Case Analysis

Reading a Judgment

The Facts

The Applicable Law

Distinguishing Cases

Ratio Decidendi

Obiter Dictum

Findings of Fact

The Decision in the Case

SOURCES OF LAWTHE ENDTREATY OF WAITANGI

AN OVERVIEW OF THE LEGAL POSITIONBackground:Missionaries and whalers Colonial Office attitude to NZThe Elizabeth Incident British ResidentConfederation of United Tribes of New ZealandFrench settlementNew Zealand CompanyLt Governor HobsonTreaty signed on 6 February 1840.The Nature of Treaties in LawAgreements between sovereign states

Recognised as binding in International Law

No legal means of enforcement in International Law (although breaches may have consequences)

A treaty is not a law of a state unless incorporated into domestic law by statute.Circumstances in which the Treaty was signedTreaty between the Crown (of United Kingdom) and various Maori Chiefs

Drafted by Hobsons staff - No legal training for such a task.

Drafted hastily

One draft given to missionary to translate into Maori

An English language copy and a Maori language copy signed.

The two copies are not entirely the same. (Contra proferentum)

The Maori version contains words that do not accurately reflect the precise meaning of the equivalent English words.The Essential Provisions of the Treaty(Article 1) - Confederation of United Tribes and Independent Chiefs cede sovereignty to the Queen of England

(Article 2) - Queen guarantees:Undisturbed possession of Land forests, fisheries and other properties; and

Chiefs grant exclusive right of pre-emption of land to the crown.

(Article 3) - Queen grants status of British Subjects to Maori people.Problems of Translation (Examples)Article 1Cede sovereignty

KawanatangaGovernanceComplete government Full sovereignty

This could mean some sort of protectorate

Problems of Translation (Examples)Article 2Undisturbed possession of Land forests, fisheries and other properties

RangitiratangaUnqualified exercise of chieftainshipToangaTreasuresAnything highly prized

Legal Status of the TreatyInternational legal personality (Statehood) required for a treaty

Was the Confederation of the United Tribes of New Zealand plus Independent Chiefs a state as understood in 1840?Legal Status of the TreatyNegative arguments:

Not a treaty at all Consent to annexation

Maori not politically organised

No consensus of government

No consensus of law

Therefore not a stateLegal Status of the TreatyAffirmative Arguments:Tribal societies were subject of treaties with European states for a long time before 1840 (State Practice)

Maori had a developed system of law and land tenure

There was a form of political organisation amongst MaoriJudicial OpinionThe Ends of the SpectrumWi Parata v Bishop of Wellington [1]

No body politic to form a treaty with so no cession of sovereignty. To that extent the treaty is a simple nullity. [2]

NZ Maori Council v A-G [3]

[1] (1877) 3 NZ Jur (NS) 72[2] Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72 at 78[3] [1987] 1 NZLR 641The Treaty TodayMany Acts now refer to the treaty.

Treaty as an aid to interpretation generally.

Proposal to entrench Treaty of Waitangi in a written constitution:

Gives the Court power to strike down policies or laws in breach of the Treaty

Gives power to majority to amend the terms of the Treaty without consent of Maori people.The Waitangi Tribunal

Treaty of Waitangi Act 1975

Maori alleging a breach of the Treaty may bring a claim to the Waitangi Tribunal

Tribunal has power to investigate claims that the Treaty has been breached.

Tribunal makes decisions on claims and makes recommendations to the Government

Tribunal decisions are not binding. The decision on whether or not to remedy a breach is political.

LAW OF PROPERTYINTRODUCTIONREAL PROPERTYLand (including things fixed to land e.g. buildings paths fences retaining walls)

PERSONAL PROPERTYChattels (Possession e.g. car , computer, furniture.)

Chose in Action (Not capable of physical possession) [e.g. book debts, shares, negotiable instruments such as cheques, money{right to them cannot be asserted by taking possession, but only by taking court action}]Chattels Type of property that isnt land but is capable of physical possessionACTB 201 Part A 200755PROPERTY EXPANDING CONCEPTIntellectual property [ exclusive rights to ideas and expression]

Licences [e.g. fishing Quota]

Goodwill Intellectual Property Patents, Copyright, Trademarks etc.ACTB 201 Part A 200756Ownership

Bundle of Rights

Person with the most rights in the property is owner Restrictions on Use

Resource Management Act 1991Building Act 1991Public Works Act 1981

Common Law Nuisance and Rylands v Fletcher (1868) LR 3 HL 330 Rylands v Fletcher If you bring anything onto your land which has an adverse effect on your neighbours, you can be forced to pay damages etc.ACTB 201 Part A 200758Acquiring Ownership

Purchase

Gift:Inter Vivos (during lifetime)Under a will (after death)

Vesting by Operation of Law OWNERSHIPNemo Dat Quod Non Habet [one cannot give what one does not have]

Statutory Exceptions:Mercantile Law Act 1908Land Transfer Act 1952 ACTB 201 Part A 200760OWNERSHIPOwnership - Possession Distinction

Property as Security Real PropertyCONCEPTSBackgroundDoctrine of EstatesClassification of EstatesFee SimpleLife estateStratum EstateLeaseholdTime ClassificationFee simple

Duration uncertain

Ends when owner dies without heirs.

potentially forever ~Life EstateDuration is for life of estate holder

Duration uncertainSubject to rights of holder of land after life interest therefore no right to waste, no right to alter property w/o consent. ~Stratum EstateLand divided into unitsrights of owners of units same as fee simple in relation to unit but other obligations for common areas

This Estate created by statute. ~Leasehold EstateDuration normally specified in lease and therefore certain (Commercial leases especially)

But termination on notice is common (Residential Tenancies especially)

Right of renewal clauses

Right to occupy and use subject to the terms of the lease Classification According to UseEstate in Possession

Estate in expectancyReversionsRemaindersLegal vs Equitable Interests

Enforceability: Legal - enforceable against anyone.Equitable - defeated by bona fide purchaser for value. Legal vs Equitable InterestsCreation and Transfer:Legal formalities requiredEquitable no formality necessary (although there often is) The Land Transfer (Torrens) SystemTerminologyTitleDeedConveyanceCertificate of TitleRegistered ProprietorThe Land Transfer (Torrens) SystemBackgroundLand Transfer SystemIndefeasable TitleExceptions to Indefeasible TitleDefective TitleVoid Transactions - Frazer v Walker [1967] NZLR 1069 (PC)Fraud

FRAUDActual fraudKnowledge of fraudWilful blindness

Constructive fraud will not defeat indefeasibilityFraud against a registered proprietorHeron v Broadbent[1]

[1] (1919) 20 SR (NSW) 101 as described in Hinde McMorland and Sim Introduction to Land Law (Butterworths 1979) 89

Statutory Limitations to IndefeasibilityExamples:

Property Law Act (protection of Lessees)

Public Works Act (compulsory acquisition)

Insolvency Act (Automatic vesting in assignee)

Property (Relationships) ActProperty Law Act Puts limitations on what property owner can do in terms of a lease interestPublic Works Act Government or utilities companies can take your land away despite indefeasibility.Insolvency Act If somebody goes bankrupt, their land gets signed to official assigneeProperty Act If a relationship breaks up, and at the time one party owns a property and the other party doesnt, that party can still claim an interest in that propertyACTB 201 Part A 200775Fraud Against Unregistered InterestThe Courts ApproachRegistration of Fee Simple in name of new RP will sweep away unregistered interests unless:

Actual fraud (dishonesty of some sort) by the new RP.

If the new RPs designed object of the transfer was to cheat someone out of their known unregistered interest or right, that is fraud.

Knowledge that any trust or unregistered interest exists is in itself not enough to constitute fraud[2]

Loke Yew v Port Swettenham Rubber Co Ltd [3]

[2] Section 182 Land Transfer Act 1952[3] [1913] AC 491 (PC)

MORTGAGES~Terminology Mortgagor borrower (Gives the security)

Mortgagee lender (Receives the security) MortgagesNatureLegal MortgagesEquitable MortgagesPriorityEquity of RedemptionFairclough v Swan Brewery Co Limited [1912]AC 565

Mortgagee SalesRegistrars sale:allows mortgagee to purchasesale by auction

safe Mortgagee SalesPrivate sale:

Duty to obtain best price obtainable as at the time of sale

No need to wait for market to pick up. Proceeds of Sale Costs of sale

Repayment of debt owed to mortgagee

Repayment to subsequent mortgages

Any balance to Mortgagor