Chapter 4
Relocation of other provisions in the Judicature Act 1908

Commercial provisions

4.14There are a number of provisions in Part 3 of the Judicature Act 1908 relating to what could broadly be termed “commercial issues”. These are:

4.15Some of these provisions were included in the Act at the time of its enactment, reflecting the placement of similar provisions in the United Kingdom legislation upon which the New Zealand Judicature Act 1908 was based. Others appear to have been included when amendments to the common law relating to commercial matters have been needed and no sensible alternative statute could be found.

4.16In Issues Paper 29, we asked whether each of the commercial provisions set out above should be retained and, if so, where they should be located in the future (given our proposals for the repeal the Judicature Act 1908 and the creation a consolidated Courts Act).34

Should any or all of the provisions be retained?

4.17We can deal with the question of whether the above provisions should be retained relatively briefly, as no submitters advocated for the repeal of any of these provisions. Their reasons generally came down to one or more of three things: the provisions are still being used; they provide welcome clarity; and/or a failure to retain them would send an unintended message.

4.18We consider these reasons to be legitimate and, accordingly, we recommend that all of these sections be retained. There is one matter where further comment is, however, required, and that is with respect to the liquidation of associations.

4.19In Issues Paper 29 we asked “if [sections 17A to 17E] are retained, do you agree that the reference to partnerships in section 17A of the Judicature Act is unnecessary?”.35  While two submitters agreed, the Law Society noted that the “Partnership Act [1908] has limited application to partnerships, applying only to those which have a ‘view to profit’ (section 4). Partnerships where the common goal is other than profit would be excluded from both Acts [the Partnership Act and the Limited Partnership Act].”

4.20We accept the Law Society’s argument that the Partnership Act 1908 only applies to partnerships with a “view to profit” and, therefore, that the reference to partnerships in s 17A is required to catch other types of partnership. We note, though, that there does not seem to be a similar qualification in the Limited Partnerships Act 2008 for limited partnerships, and the Law Society provided no specific reference in its submission as it did with s 4 of the Partnership Act 1908.

4.21We recommend, therefore, that the reference to “partnerships” remains, but that the overall situation be clarified when these sections are redrafted in new legislation. In particular, there should be clear and specific references to the “associations” that are excluded from the ambit of these sections by the operation of other Acts (as opposed to the “general” exclusion for bodies corporate in s 17A(1)(c)).36

Where should the provisions be located in the future?

4.22In Issues Paper 29, we put forward two primary options for dealing with the commercial provisions in the Judicature Act 1908 in the future. One was leaving them in a “rump” (and potentially renamed) Judicature Act, and the other was moving those provisions that need to survive to an entirely new statute. We also asked for submitters’ views on any other options for dealing with the commercial provisions.

4.23Submitters’ views were mixed on the question of the best location for the commercial provisions – one submitter favoured the provisions being disseminated into the most appropriate existing Acts for them, others advocated for an entirely new Act, and one submitter saw merit in having a “rump” Judicature Act.

4.24We do not favour the first option, as we have not been able to determine, and no-one was able to suggest, appropriate Acts for all of the provisions. The closest was, perhaps, the Mercantile Law Act 1908, which deals with, amongst other things, matters like mercantile agents, bills of lading and carriers. However, that Act has stood for over one hundred years in the form in which it stands, and it is a relatively cohesive Act as to its subject matter.

4.25We are also not attracted to the third option, as it will be much “cleaner” to repeal the Judicature Act 1908 in its entirety, and a “rump” may not be an obvious place for users to look for these sections.

4.26While we had some reservations about recommending the passing of a new Act for such a small number of provisions, it would be relatively simple to include the commercial provisions in a self-contained part of a new Courts Bill, to be carved off into a separate statute when it reaches the Committee of the Whole stage in the House.

R10 The following sections of the Judicature Act 1908 should be retained in a new miscellaneous commercial matters statute:
  • Sections 17A to 17E (Liquidation of associations);
  • Sections 84 to 86 (Sureties);
  • Section 88 (Lost instruments);
  • Section 90 (Stipulations in contracts as to time);
  • Section 92 (Discharge of debt by acceptance of part in satisfaction); and
  • Sections 94A and 94B (Payments under mistake).
R11 The new liquidation of associations provisions should clarify the “associations” that are excluded from their ambit by the operation of other Acts.
34Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 28, at chapter 14.
35At Q39.
36For example, some exclusions would be incorporated societies, which are dealt with by the Incorporated Societies Act 1908, partnerships with a view to profit, which are covered by the Partnerships Act 1908, and limited partnerships, which are dealt with by the Limited Partnerships Act 2008.