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COMLAW 101 Study Guide - Cross Purposes, Contractual Mistakes Act 1977, Contract


Department
Commercial Law
Course Code
COMLAW 101
Professor
Alex Sims

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Overview of obligations
Obligation = a responsibility to act in a certain way to another person
Plaintiff must show harm is done to him. Proof of harm is not enough.
Single event can cause multiple obligations but the remedy can be claimed once. “no
double dipping at compensation”.
Statutory Liability
Some statues expressly create a right to sue for damages and other remedies e.g.
Consumers Guarantees Act 1993 creates remedies for consumers who receive
defective goods or substandard services
Fair Trading Act 1993: Prohibits certain conduct by persons who are in trade. Covers
misleading and deceptive conduct, false representations and other unfair trade practices.
Creates civil and criminal liabilities
Section 9 of the Fair Trading Act: (civil liability only)
“No person shall, in trade, engage in conduct that is misleading or deceptive or is
likely to mislead or deceive”.
2 requirements: defendant must be in trade: defendant must be acting in a business
context
defendant must have been misleading or deceptive: 3 steps drawn from AMP
Finance NZ Ltd V Heaven J; conduct capable of misleading, plaintiff mislead by the
conduct, reasonable that the plaintiff was mislead.
Puff: Statement made about a product, will be caught if a representation of a fact is
false
Criminal liability: must prove every requirement
2 elements: actus reus physical act; mens rea accused’s state of mind
3 types of criminal liability. Public welfare matters and public regulatory offences are
strict or absolute.
Mens rea offences: prosecution has to establish the accused had the necessary mens rea.
Millar v Ministry of Transport
Millar was driving while he was disqualified. He believed his disqualification had ended but
it wasn’t so. The Court said if Millar could prove that what he believed was true then he
would not be charged.
Strict liability: accused can avoid liability if they can prove she was not at fault
Civil Aviation Dept v MacKenzie
`Defendant unknowingly caught telephone wires while flying on low altitude. The wires
were dragged close to people who were fishing. Defendant was charged for flying an
airplane in a way which could have caused harm to people.
Absolute liability: no defence available even if he was not at fault so liable regardless.

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Protecting Privacy
Privacy Act 1993: governs the collection, use and disclosure of personal information.
12 Main principles to remember:
1. Organisation collects information that is relevant to its legitimate purposes
2. Person information collected from the subject directly
3. Subjects are told what the information is used for, collected and seen by whom and who
it is shared with
4. Personal information must not be collected in an unfair manner
5. Personal information must be kept securely
6. Subjects are allowed to access their information
7. Subjects can correct their information
8. Personal information must be up to date and accurate before using
9. Personal information must not be kept longer than necessary
10. Personal information only to be used for the purpose it was collected for
11. Personal information can’t be disclosed unless otherwise stated
12. Organisation can’t assign the same unique identifier that another organisation has
assigned to the subject
Can’t go to Court for breaching the Privacy Act
Complaints procedure go to a Privacy Commissioner (free)
Remedies : injunctions/damages (damages = must be harm)
Exceptions to the Privacy Act: the media, law enforcements or statistical or research
purposes where individuals can’t be identified
Public registers can’t combine personal information from a public register and sell
it.
Section 67 anyone can complain to the Privacy Commissioner
Denial of principal 6: prejudice against NZ’s security, defence or international
relations, likely that foreign govts would not trust NZ govt with confidential
information, endangers an individual,

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Unsolicited Electronic Messages Act 2007
in force as at 5 September 2007
aka electronic junk mail, spam
Act covers emails, instant messaging, mobile phone messaging NOT FAX OR VOICE
MESSAGING
Even one UCEM = breach of Act
Breach = civil liability
Enforced by Department of Internal Affairs breaching = formal warning,
infringement notice issued, Court action taken i.e. damages, injunctions
Section 3: purpose of the Act
a) Prohibit unsolicited electronic messages from NZ being sent, in order to:
(i) promote a safe and more secure environment for the use of information and
communications technologies in NZ; and
(ii) reduce the barriers to the uptake and effective use of information and communications
technologies by businesses and the wider community in NZ; and
(iii)reduce costs for businesses and community that arises from UEM; and
b) Commercial electronic messages need a unsubscribe button and the senders details
c) prohibit address-harvesting software/lists from being used
d) discourage people from using information and communications technologies
inappropriately
S9 prohibit of sending UCEM
UCEM checklist
Is the message electronic?
Is the message commercial?
Is the message unsolicited?
Consent needs to be given otherwise it is an unsolicited message.
Consent = express or inferred
Express = direct signal from recipient that they give consent e.g. fill a paper form or tick a
box on a website
Inferred = consent that arises from a conduct and the business and other relationships of
the sender and the recipient e.g. you provided your email address, general expectation that
there is a follow up electronic communication
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