1.* A partner in a firm which gives negligent advice may personally liable for the adverse consequences

2. * A director in a limited company will usually be held personally liable for the consequences of any advice s/he gives which is negligent

3. * A director in a limited company may be held personally liable for the financial consequences of reckless trading by the company

4. * A limited company cannot be sued in the same way that a natural person can be sued

5. * A limited company has a separate legal identity from its owners and directors

6. * Partners in firms typically take out professional indemnity insurance policies against the risk of giving negligent advice

7. * Professional indemnity insurance cover partners against bad business decisions

8. * The employees of a limited company are responsible for its debts

9. * The Crown in New Zealand is virtually the New Zealand government

10. * Unless someone can show good title to land in New Zealand it must be owned by the Crown

11. * Land ownership rules in NZ developed from rules under Feudalism in Europe

12. * In 1840 Maori had similar understanding of land ownership to the English system

13. * All land bought from Maori in the first decades of colonial rule was bought fairly

14. * A potential problem in interpreting Treaty of Waitangi concerned the fact that Maori believed by signing the Treaty they confirmed what had been discussed up to that point but the English thought that having signed the Treaty, whatever was discussed beforehand could be safely ignored

15. * The misunderstanding by the circumstances described in the previous question concerned the English oral tradition compared to the Maori use of writing in the legal process

16. * The necessary criteria identified as being present to show a contract has been formed may also be present in an agreement that is only morally binding except there will be no intention to create legal relations in a purely morally binding arrangement

17. * The court will make a rebuttable presumption that in social or family arrangements there is always an intention to create legal relations

18. * Unlike the position in Civil Law Countries there must be consideration present if an agreement is to be legally enforceable in a Common Law country

19. * Law in Common Law countries developed mainly from written Roman Law established when the Roman Empire ruled the land around the Mediterranean Sea.

* In New Zealand a draft Act of Parliament is a Bill which passes through various stages of discussion

and becomes law when signed by the British Queen's representative in NZ, the solicitor-general

* A building contract over $20,000 in value is not legally enforceable unless it is in writing

* Terms of a contract have to be made by prior express agreement as terms cannot be implied

into a contract

* A term that is necessary for business efficacy can be implied into a contract

* If an agreement has been entered into in writing and both parties signed the agreement but one

party did not willingly sign the agreement, the agreement is unenforceable

* It automatically follows that if one party to an agreement has used its economic position to

persuade the other party to agree to disadvantageous terms, that the agreement is not enforceable

* Being in breach of a contract by not doing what a party agreed to do, makes a party liable to the other

party in damages as money to compensate that party for the harm or loss caused by the breach

* Once an agreement is made between two parties then providing there is an agreement for the

payment of some money, the agreement is always a legally enforceable contract

* The element of "consideration" in a contract means that the parties have thought about it and have

considered their intentions under the agreement

* An agreement may have the basic components of a contract but unless there was an intention to

create legal relations when it was made, it is not a legally enforceable agreement

* Capacity to contract concerns a party's mental ability to be able to know what they are doing when

making a contract for example by reason of age or mental state, either permanent or temporary

therefore it is impossible to make a legally binding contract after drinking alcohol

* A deed is an agreement made in a specific form which, unlike a contract, can create legally

binding obligations without the presence of consideration

* Before legislation changed the position, an advertisement offering to sell an article at a certain

price did not bind the seller to have to sell at the advertised price because it was not an offer but

was only an invitation to treat inviting the buyer to offer to buy at the advertised price which the

seller could accept or reject

* If an offer is accepted by post then the 'postal rule' says the offer is accepted when the letter

is put into the letter box by the offeree regardless of whether the offeror ever received that letter

* Even if the Courts consider the parties real intention was to enter into a binding agreement unless

the nature of the agreement is 100% certain on every point they will not enforce an agreement

* If agreements are made in a business setting there is a presumption by the Court that there was no

intention to create legal relations if one party actually thought that when it entered the agreement

* If agreements are made in a social or family setting there is a presumption by the Court that there

was an intention to create legal relations which either party may argue against

* A legally binding contract can be made by A promising to do something for B in exchange for a

promise by B to do something for A

* Some legislation in New Zealand applies solely to construction work including the

Construction Contracts Act 2002 and the Building Act 2004

* A builder and a property owner agree a price to extend a house, which requires a building consent but

has not yet been applied for. Shortly before the builder is due to start work, the owner tells the

builder she will not be proceeding with the work and because there is no building consent, then under

s73(1) Contract and Commercial Law Act 2017 because they had not got a building consent when

they made their agreement, it was an illegal contract so the builder cannot take action against her

to recover as damages, the profit etc. the builder would have made if the work had proceeded

* A misrepresentation is an untrue statement of a future fact for the purposes of the Contract and

Commercial Law Act 2017 e.g. the statement made to sell agricultural land that it will produce a

certain quantity of corn per acre next year which it fails to do

* A tells B that A's house is constructed entirely with treated timber. B relies on that being true and buys

A's house but later discovers the timber is untreated and the house leaks and rots. B says she has two

options under the Contract and Commercial Law Act 2017 being to either keep the contract in place

and claim damages or cancel the contract but lose entitlement to damages

* A tort is a 'wrong' which when committed by someone [a tortfeasor] gives someone harmed by it

a right to take action, for example the tort of trespass by placing building materials used to build a

house on an adjacent section without the owner's permission would entitle the owner to have the

materials removed and receive compensation for any damage caused

* There were once in NZ three types of trespass, to land, to property, and to a person, and trespass to

a person is now superseded by the crime of assault in New Zealand, the difference being

that trespass to a person was once only actionable if the 'injured' person pursued it whereas the

State can take action against a person committing assault [refer Crimes Act 1961] and punish them

* Nuisance is similar to trespass to land but whereas trespass is direct intrusion to land, nuisance

is indirect intrusion such as: smells, fumes, noise, smoke, dust, noxious weed seeds, crop

spray and so on which leaves one area and intrudes upon another to affect the 'quiet enjoyment'

by a person of their land

* There is a single category of the tort of nuisance

* Nuisance is the most common category of tort raised in court cases involving construction work

* Negligence is the most common tort applied in court cases generally

* If someone does something with insufficient care and skill thereby causing harm to another person

s/he is automatically liable to compensate that person for the harm caused

* Whether a person is liable to another person for the consequences of his/her negligence depends

on whether in such circumstances the Court has found that s/he owes a duty of care to that person

* Liability for the consequences of negligence are limited to physical harm to persons or property

* A person can be held concurrently liable for both a breach of contract and in the tort of negligence

* Any harm suffered that but for a person's negligence would not have arisen has to be compensated

by the negligent party

* A professional indemnity insurance policy is designed to bear the costs of defending an action

against the policy holder for his/her negligence but not to cover the cost of damages if it is proven

s/he was negligent

* Designers are particularly vulnerable to claims for negligence because their designs may lead to

defective work or even structural failure

* Just because a design is defective does not mean it was done negligently, for example the state of

industry knowledge when the design was produced was such that it was believed to be satisfactory

* Quantity surveyors are never held liable in negligence because they do not provide design services

* If a quantity surveyor negligently provides a client with a cost estimate for construction work that is far

too low, so when tenders are called, the bids are much higher, the client can accept the lowest bid

and successfully claim the difference in price between the lowest bid and the quantity surveyor's

estimate of cost, as damages

* Builders are less likely to be found liable in negligence when working under a contract to follow a

design provided by the building owner than they are to be found liable for breach of contract because

any deviation from the design leading to defective work or structural failure is a breach of contract

and the builder is liable for the consequences without any need to prove the builder was negligent

* Even when a builder accurately follows a design produced by the building owner it does not follow

that the builder cannot be held liable to some extent for the defective work that results

* A builder is in a difficult position when told to follow a design the builder believes to be defective

unless the builder makes it clear it only does so on the basis that the building owner indemnifies

the builder against any adverse consequences of doing so, otherwise when problems arise, the

the builder may be held responsible for proceeding according to a design it knew was defective

* A designer with limited experience is not required to perform to the same standard of care an

an experienced practitioner must work to in order to avoid being held liable for negligence

* An agent is someone who acts for a principal and the agent can bind the principal by his/her actions,

for example the supervisor on a building site acts as agent for the building company employing

him/her and can agree on the building company's behalf to do extra work for the principal

* If an agent acts beyond the authority the principal gives the agent but it appears to a third party that

the agent is acting correctly, then the agent's wrongful actions nevertheless bind the principal

*An example of an agent binding his/her principal for their wrongful action is a real estate agent selling

a house for the owner, the agent misrepresents the location of the boundaries of the property to

a potential purchaser who buys the house in reliance on where the agent says the boundaries are,

later discovers the site is much smaller than it was represented to be by the agent, the purchaser then

sues the vendor [not the agent] for misrepresentation, and seeks damages to compensate for the

lesser value of the house

* The instructions a principal gives to an agent to act for him/her are a warranty of authority

* Breach of a warranty given in respect to the sale of goods gives the injured party the right to

compensation but breach of a condition also allows the sale and purchase agreement to be cancelled

* In a business partnership each partner acts as agent for every other partner as his/her principal

which is why each partner is responsible for the torts committed by any other partner when it appears

s/he has acted according to the business conducted by the partnership for example a firm of architects

in which one partner negligently designs a defective building and the other partners are also liable

for the consequences

* Partners in an ordinary partnership are only liable for the value of their shares in the partnership

when issues of legal liability arise for any reason

* In the order of development of English law, rules of equity preceded the common law

* In NZ the common law and the rules of equity were always applied in the same Court

* The role of equity in New Zealand has largely been supplanted by legislation

* Common law developed in the courts of England by the judges who followed earlier decisions with

similar facts and circumstances and by analogy determined principles to apply to similar situations

it is arguable whether judges today make law or simply discover it

* A precedent is a decision made by a judge in court with sufficient authority to serve as an example to

be followed by other judges. Lower courts follow the decisions made by judges in higher courts

* The principle of "stare decisis" is a fundamental aspect of the doctrine of judicial precedent whereby

the courts follow earlier decisions. It means "look intently at the decision"

* Civil laws relating to wrongs or harm done by one person to another person or his/her property is

known as the 'law of torts'

* There are a number of individual torts including negligence, nuisance, trespass, defamation, and the

most common of all, invasion of privacy

* If the nature of an act or omission is recognised by the law as being a tort, the person causing the

harm is liable for the consequences in a civil action

* Liability in contract, criminal law, or breach of some statutory obligation may render a person liable

for his/her acts or omissions independent of liability in tort

* Private nuisance concerns the rights of the public's use of land such as blocking a highway

* If a person who occupies land unreasonably interferes with an occupier of nearby or neighbouring

land and his/her proper use and enjoyment of the land s/he occupies, then that unreasonable

interference is the tort of public nuisance.

* The common law only developed two forms of trespass, 'trespass to goods' and 'trespass to land'

* TheAccident Compensation Act 2001 compensates for accidental injury to persons without

them having to prove their injuries were caused by someone's fault such as a negligent employer, and

having to sue for damages in court.

* The 'no fault' compensation scheme of the Accident Insurance Act 2001 allows injured parties to

be compensated for their injuries but effectively removes their right to sue the person who caused

their injuries, unless they are claiming "exemplary damages"

* 'Trespass to the land' only gave rise to a civil action until the Trespass Act 1980 was enacted

* Negligence is a word used in the legal sense that in the ordinary sense of the word means

carelessness. Basically a person who is careless thereby causing harm to others by his/her acts or

omissions may be held liable for the consequences.

* The tort of negligence was one of the first torts to be established in the English legal system

* It is usually a straightforward process in court to decide whether someone accused of being negligent

was actually negligent under the law

* In the absence of a court saying that a person owes a 'duty of care', a person will not be liable for the

consequences of his/her acts or omissions in the tort of negligence

* A duty of care is owed to the 'world at large'

* If a claimant brings a claim for the tort of negligence the court will first establish whether the

respondent owes a duty of care in those circumstances and then decide whether his/her acts or

omissions fell below the required standard of care so at to make him/her liable in negligence to the

claimant. The standard required is subjective according to the defendant's personal circumstances.

* Originally the tort of negligence was restricted to acts or omissions causing physical harm to persons

or property but in 1963 the English House of Lords held that a person giving negligent advice could

be held liable for loss in value of property I.e. economic loss without physical harm.

* The tort of defamation consists of an oral statement made in private that lowers a person's standing

amongst other optional factors.

* The only remedy available for the tort of defamation is an award of damages

* The substantial difference between a morally binding agreement and a legally binding contract is that

the former has an intention by the parties to it to create legal relations whereas the latter does not

* Apart from one or two exceptions set out in legislation, which should include some building work a

contract does not have to be in writing to be enforceable at law

* A contract can consist of an exchange of money for services or goods by the actual exchange itself

e.g. buying something in a shop, or it can consist of an exchange of promises where delivery and

payment are postponed so an action for breach can be based on either of two grounds, breach of

terms by failing to carry out the contract correctly or breach of promise by a failure to perform at all

* A contract exists when the following factors can be identified in an agreement: intention to create

legal relations; offer and acceptance; capacity to contract; genuine consent; absence of duress;

legality of purpose; and consensus ad idem (I.e. agreement on what has been agreed to).

* Freedom to contract on any terms the parties think fit is an important element of contract although in

practice it can lead to unfortunate results where for example there may be inequality of bargaining

power so that one party is taken unfair advantage of

* In addition to express terms in a contract a court will imply terms into it if such terms are in common

use in the trade to which the contract is related, regardless of whether such terms are essential for

the operation of the contract.