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Preview: New Zealand Business Law Quarterly

New Zealand Business Law Quarterly



Volume 12, Number 4, December 2006



Published: Mon, 05 Mar 2007 12:52:49 EST

 



NOTES AND COMMENT

Mon, 05 Mar 2007 12:52:49 EST

Volume 12, Number 4, December 2006



Do Banks Owe a Duty of Care in Administering Mareva Injunctions?

Mon, 05 Mar 2007 12:52:49 EST

Volume 12, Number 4, December 2006 p.01



The Fraudulent Proposer and Section 10 of the Insurance Law Reform Act 1977

Mon, 05 Mar 2007 12:52:49 EST

Volume 12, Number 4, December 2006 p.307



ARTICLES

Mon, 05 Mar 2007 12:52:49 EST

Volume 12, Number 4, December 2006



Understanding the Director's Fiduciary Obligation

Mon, 05 Mar 2007 12:52:49 EST

Volume 12, Number 4, December 2006 p.315
It is trite law that a director is a fiduciary to his or her company and must act in the interests of the company. However, identifying the "interests of the company" is not so straightforward. Different theories of the nature of the company and different stakeholders interested in the company all present varying claims on what constitutes the company and its interests. This paper considers those arguments and suggests that, for the purpose of determining the object and content of the director's fiduciary obligation, the interests of the company should be understood in the light of the company's changing life cycle.



Enforcing Payment Obligations Under the Construction Contracts Act 2002

Mon, 05 Mar 2007 12:52:49 EST

Volume 12, Number 4, December 2006 p.336
The Construction Contracts Act 2002 provides fast-track processes through which payment obligations are created and enforced for parties involved in a construction contract. Payment obligations arising under the Act are only temporary, and can be re-litigated in later proceedings under the construction contract. This article raises three sets of critical questions about the enforcement of the payment obligations. First, what is the legal basis of such a temporary payment obligation? What defences are available -- just those permitted by ss 74 and 79 of the Act, or a wider range of defences implicit in the Act itself? And, as regards the temporary nature of the payment obligation, does adjudication alone have that character, or is it extended to the payment claim process or even to a judgment obtained under the Act embodying the payment obligation? Secondly, what types of adjudicator's determination are enforceable and what are not? Even though a determination under s 48(1)(a) imposing the liability to pay is clearly enforceable, do the two enforcement proceedings for it (the debt recovery proceedings and the entry as a judgment proceedings) really overlap? If so, is one of them surplus to requirements? Thirdly, where claimants have used the payment obligation under the Act as a basis for issuing a statutory demand against a debtor company, do its provisions apply to the liquidation proceedings to the exclusion of the Companies Act 1993? If not, how should the courts apply the Construction Contracts Act in the liquidation proceedings and how is the Act relevant to the proceedings in other ways? The author offers answers to all of these questions.



Copyright's Protection of Facts and Information

Mon, 05 Mar 2007 12:52:49 EST

Volume 12, Number 4, December 2006 p.360
A common saying in copyright law is that there is no copyright in facts or information (the idea/expression dichotomy). If this saying were true, facts and information could be extracted from one work and used freely in another, and it would strengthen the often-made argument that copyright does not create a monopoly. But as this article explains, the saying is simply a myth: copyright law is used to prevent a second comer from copying facts and information. The causes are the courts' seemingly blind adherence to the proverb "thou shalt not steal", the use of the compilation category of work and the "sweat of the brow test". The protection of facts and information is undesirable, but it is too late to turn back the clock. A solution is proposed: a flexible substantiality test that can be used to make it more likely that only directly competing material will infringe copyright in factual works.



Shareholder Ratification of Directors' Breaches of Duty in Financial Transactions: A New Zealand Perspective

Mon, 05 Mar 2007 12:52:49 EST

Volume 12, Number 4, December 2006 p.384
The common law rules relating to shareholder ratification of directors' breaches of duty are complex and, to an extent, confusing. In New Zealand, the situation is exacerbated by statutory intervention, in the form of the partial codification of directors' duties under the Companies Act 1993 and related provisions. In this paper, originally presented at the 23rd Annual Banking and Financial Services Law Conference on 12 August 2006, the common law rules and New Zealand statutory interventions in this area are examined. The paper proceeds by way of considering "lines of defence" for a party seeking to uphold a transaction which may be challenged on the basis it was entered into in breach of directors' duties.



Gambling on Essential Facilities: Withholding Data as an Abuse of Market Power in European Competition Law

Mon, 05 Mar 2007 12:52:49 EST

Volume 12, Number 4, December 2006 p.395
In Europe and the United States, courts and regulators have long been accustomed to using the so-called essential facilities doctrine in dealing with claims that access to physical infrastructure is being unreasonably denied. For various reasons the doctrine has had less of a forensic airing in New Zealand. Historically less common (and in New Zealand as yet unknown) are attempts to apply similar reasoning to situations where what is being withheld (be it actively or constructively) is access to supposedly "essential" information. The decision of Etherton J in Attheraces Ltd v The British Horseracing Board Ltd was a recent attempt to do just that. The authors subject both the essential facilities doctrine and Etherton J's novel application of it to detailed scrutiny and conclude that the doctrine, intellectually incoherent at the best of times, is even less useful when applied to intangibles. The real significance of the Attheraces litigation, they argue, lies both in the counterfactual it provides for testing the assumption that intellectual property is somehow "different" in competition terms and in Etherton J's closely reasoned rejection of the British Horseracing Board's claims at various points in the analysis that by withholding the data sought it was merely seeking to price the externalities from which free-riding third parties were benefiting.