Book Review: Civil Remedies in New Zealand, 2nd Edition
Consulting Editor Sir Peter Blanchard
Reviewed by Barry Allan*
This book is inspired by a concern that many lawyers can readily identify a cause of action but may have difficulty when it comes to establishing the remedies which might be available. Indeed, for many clients, the precise nature of the cause of action may well be of little interest to them; their primary concern will often be what the law can and will do about it. The answers are to be found in Civil Remedies in New Zealand.
It is organised into 11 parts and has 12 authors. Perhaps I am old-fashioned, but I would have liked to have had the various pecuniary remedies considered in contiguous chapters, and with no duplications or overlaps. As is to be expected, compensatory damages do make up the largest and first part: they are recognised as the primary common law remedy. Thorough discussions of damages for breach of contract and negligence are provided, although the impact of s9 of the Contractual Remedies Act 1979 on contractual damages is discussed in a subsequent chapter alongside a consideration of the damages available for breach of the Fair Trading Act 1986. Foreseeability and causation are significant and conceptually difficult limitations in assessing damages for contract, tort and equity. The treatment of both is notably clear in their respective chapters.
Since the first edition (2003), the existence of equitable damages arising from breach of fiduciary duties has been accepted by our Supreme Court, so the focus is now on identifying the various causes of action in which equitable damages arise and their quantum. There is also a brief comparison between equitable damages and an account of profit, which is supplemented by a much more thorough analysis of account in the part concentrating on remedies which require disgorgement of profits. One improvement would have been some reference to the procedural rules established in Part 16 High Court Rules. I am sure I am not the only reader lacking a thorough grounding in the relatively modern remedy of restitution: the discussion of that topic was admirably clear, starting with a very basic description and moving through to an engagement with some of the more theoretical problems which are still present. This is a personal remedy: the next chapter deals with the proprietary remedies of constructive trust, equitable lien and subrogation.
Damages for breaches of the New Zealand Bill of Rights Act 1990 are in a somewhat more emergent state. There is a useful chapter speculating as to their function and when they will be available and which includes a table of all cases in which damages have been given. Although aggravated damages are in theory compensatory (and there is some consideration given to them in the torts chapter), they are given their own rather cursory chapter in the part dealing with punishment. The exemplary damages chapter provides a good background to their history and function before addressing the current test as set down by the Supreme Court in Couch. Useful guidance is provided as to how much to expect and the relationships between exemplary damages and the criminal law and the statutory bar on compensatory damages for personal injury.
Those who share liability may come under responsibilities to contribute when one liable party pays more than an appropriate share. Dealing with one of a number of parties with shared liabilities creates the risk of discharging the obligations of all parties. These important matters are dealt with in chapter 15. Another matter of concern for those who obtain pecuniary remedies is their liability for tax. A chapter is devoted to this matter.
Non-pecuniary remedies include variations on the theme of an injunction. Permanent and interim injunctions are each given their own excellent chapters. Each gives an account of the court’s jurisdiction to give an injunction and the matters which will impact upon the court’s decision to exercise that discretion. One element of particular usefulness is the discussion of the types of interests which can be protected by an injunction. Given that an interim injunction might well be applied for as a matter of urgency, I would have liked to have seen some practical guidance given as to the procedure to be followed to get one. The subsequent chapter is a detailed guide to obtaining freezing and search orders, including a lot of practical steps to be taken. Also included are short accounts dealing with pre-judgment charging orders, caveats and preservation of property orders. Given the conceptual similarity between mandatory injunctions and specific performance, it makes a lot of sense to round out this part with a succinct discussion of specific performance. Because part performance may be relied upon to enforce contracts which need to be in writing and signed, it would have been useful to discuss the question of whether a non-complying guarantee can be enforced on the basis of part performance.
Declarations are a particularly fertile and creative form of non-pecuniary remedy which are described comprehensively. The book reflects a wide view of civil remedies, so it also provides useful accounts of illegal contracts, exclusion of liability, the effect of the Limitations Act 2010 and the kinds of remedies available to assist in obtaining official information and for breaches of privacy and human rights legislation. The very last chapter deals with the civil courts’ costs regimes.
Civil Remedies In New Zealand, 2nd Edition. Consulting Editor Sir Peter Blanchard, Thomson Reuters, December 2011, 978-0-864727-32-9, 889 pages, $236 (GST and p&h excl). Available in paperback.
*Barry Allan is a former litigator who now teaches contract, tort and civil procedure at the Faculty of Law, Otago University.
Last updated on the 27th September 2012