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LAWCOMM 401 Commercial Law

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LAWCOMM 401 Commercial Law

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LAWCOMM 401 Commercial Law

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Course Code: LAWCOMM401
University: The University Of Auckland

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Country: New Zealand

Question:
Relevance of Common Law to New Zealand laws;  In this question please do cover the following
Explain meaning of common law
What is common law
Explain the origen of common law
Why is the common law part of NZ law
How it is recognised as part of law
Example of areas of law in NZ that uses the common law
Answer:

The Common Law in New Zealand
The New Zealand laws borrow a lot from the English legal system, such as its common law tradition and constitutional framework (Grezille, 2005). The common law, which is built from decisions made in both England and in New Zealand, is widely applied within the jurisprudence of New Zealand. Courts derive principles from previous judgements and apply them to underlying policy as in common law jurisdictions (Lucke, 1982).
The court policy in New Zealand is to promote uniformity, hence the need for the application of the common law (McLintock, 1966). The English Laws Act of 1858 extended the applicability of United Kingdom statutes in New Zealand as far as the circumstances of New Zealand allowed. However, in 1947, New Zealand adopted the Statute of Westminster and this means that parliament has the sole authority to make laws (McGee, 2017). Despite this change, the common law still remains widely applicable in New Zealand because it promotes uniformity in determining cases.
As in most common law jurisdictions, there is wide reference to previously-determined similar cases in determining cases presented before the New Zealand courts (Stychin & Mulcahy, 2010). There is also wide application of stare decisis in New Zealand (Kozel, 2010). This means that there is heavy reliance on past judicial decisions in determining the current cases presented before the court. The New Zealand Council of Law Reporting Act of 1938 authorised the New Zealand Law Society to begin publishing New Zealand law reports. These law reports are therefore recognized as the authoritative statement of judge-made laws (case laws) in New Zealand. Most of the law of tort and contract law in New Zealand is based on cases that were decided over one hundred years ago. The common law continues to evolve today in New Zealand. Legal precedents established today form part of the law applicable in future.
The relationship between the common law and New Zealand laws cannot be ignored. The common law forms an integral part of the laws of New Zealand. There is wide application of the common law and just as much reliance on it within New Zealand. A majority of court decisions have been made in New Zealand by applying the common law. However, certain statutory provisions limit the application of the common law in New Zealand. New Zealand courts have made certain changes which have brought certain differences in the common law as applied in England from that in New Zealand. A judge is free to reject a legal precedent on reasonable grounds. Therefore, there is a limitation on the applicability of the common law within the legal system of New Zealand.
 The common law is also deficient on certain issues; which presents the need for statutory provisions. Parliament is recognized as the supreme law-making body and statutory provisions are therefore held in higher esteem than common law provisions. It is important to note that despite the statute of Westminster being passed, the common law still remains largely applicable within the legal framework of New Zealand. It is also important to note that it is because of its deficiencies that it falls below statutes in the pecking order of the jurisprudence of New Zealand.
Legal Business Structure of Maori Incorporations
A Maori Incorporation is similar to a company and can be established over any Maori land (Ministry of Justice, 2018). It has as much power as is granted to limited liability companies. The main purpose of Maori incorporations is to facilitate the use and administration of Maori freehold land on behalf of its owners.
The Te Ture Whenua Maori Act of 1993 or the Maori Land Act of 1993 has provisions which regulate the institutional structure of Maori incorporations. According to the Maori Incorporations Constitution Regulations of 1994, there are certain provisions which govern the formation of Maori incorporations
Establishing a Maori Incorporation
In order for landowners to establish a Maori incorporation, they should make an application to the Maori Land Court. Before making the application, they should have held a meeting in which they agreed to form the incorporation and subsequently send a copy of the minutes of the meeting to the Maori Land Court. Once the land court assesses the application and is satisfied upon doing so, it issues an order of incorporation and appoints the initial committee of management of the incorporation.
Internal Management
Constitution
According to the law, Maori incorporations should have a constitution which governs their internal management. The constitution should be drafted in strict accordance with the regulations of the Act. A copy of the constitution must be submitted to the Registrar of the Maori Land Court district in question.
Constitutional changes within a Maori incorporation is allowed. However, the changes must strictly confirm with the legislations regulating Maori incorporations.
Committee of Management
As stipulated in Section 269 of the Maori Land Act of 1993 a Maori incorporation should have a committee of management which is in-charge of the running and management of the corporation. Members of the committee make decisions regarding the incorporation just as much as a board of directors would for a company. Their duties are similar to those of a trustee, under whose custody land is vested. The members of the committee are elected by the shareholders in accordance with the constitution.
A Maori incorporation acts through its committee of management. The committee shall comply with the resolutions agreed by the shareholders. A newly constituted Maori incorporation committee is expected to have elected a chairperson within one month.
Leasing Land
A Maori incorporation can grant lease of any land it holds. However, according to the law, any lease over Maori free-holding land for a term of more than 52 years must be agreed to by a resolution passed by the shareholders owning at least fifty percent of the shares approved by the Maori Land Court.
Record-keeping
Just like any other business entity, a Maori incorporation should have an efficient management of its accounting records. Financial statements must be drafted with regard to the generally-accepted rules of financial practice. The committee of management is in charge of running the incorporation and has to submit financial statements to shareholders. The committee must also ensure that the financial statements are filed with the Registrar under whose court district the land is located. It is also important for a Maori incorporation to appoint an auditor and a share valuer as directed by the Maori Land Act of 1993.
References
Greville M. (2005). An introduction to New Zealand law and sources of legal information. New York. New York University School of Law. Retrieved on 25th/10/2018 from https://www.nyulawglobal.org/globalex/New_Zealand.html
Kozel, R. J. (2010). State Decisis as Judicial Doctrine. Wash. & Lee L. Rev., 67, 411.
Lucke H.K. (1982). The common law: Judicial impartiality and judge-made law. Law Quarterly Review, 29:84.
 McGee. (2017) Parliamentary Practice in New Zealand. Auckland: 4th ed. Oratia Books
McLintock A.H. (1966). Sources of law from An Encyclopedia of New Zealand. Retrieved on 25th/10/2018 from https://teara.govt.nz/en/1966/legal-system
Ministry of Justice. (2018). Maori land trust & incorporations. Retrieved on 25th/10/2018 from https://www.maorilandcourt.govt.nz/your-maori-land/trusts-and-incorporations/#maori-incorporation
Plucknett, T. F. T. (2001). A concise history of the common law. The Lawbook Exchange, Ltd.
Stychin C.F. Mulcahy L. (2010) Legal methods and systems. Edinburg: 4th ed. Thomas Reuters

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