Edited by Roger Halson and David Campbell
Chapter 21: New Zealand perspectives on contract remedies
This chapter considers whether there is a distinctive ‘New Zealand’ perspective on contract remedies. Insofar as the unwritten law of New Zealand is concerned, the answer to that enquiry is ‘no’. Despite occasional instances of judicial activism in this area in the early-to-mid 1990s, the approach of the New Zealand courts to contract remedies has, self-consciously or otherwise, remained largely aligned with the cognate law of England as the first source. When one turns to consider legislative solutions to perceived problems in the unwritten law relating to contract remedies in New Zealand, however, the approach has in many respects been innovatively radical, in particular through use of the so-called ‘codal’ device. But on closer inspection, the principal (partial) code in this area - the Contractual Remedies Act 1979 (now Contract and Commercial Law Act 2017, pt 2, sub-pt 3) - has merely nibbled at the law of contract remedies in minor and oblique ways. For despite its original name, the Act is concerned more with the opposite of the ‘enforcement’ of contracts (or with ‘remedies’), namely, the principles allowing parties to escape the normal consequences of (continuing) contractual obligations (i.e., ‘relief’).
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