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Articles for the keyword(s) "Good arguable case on merits"

"Jurisdiction in Trans-National Cases"

Paul Myburgh and Elsabe Schoeman, 2004

This article presents an analysis of the interpretation and application of the good arguable case on the merits test within the context of RR 219 and R 220 by New Zealand courts. Considering the differences between the New Zealand and English statutory jurisdictional dispensations, the authors criticise the New Zealand courts’ adoption of English authority in this context. The article also questions the wisdom of the separate leave regimes in RR 219 (without leave) and 220 (with leave) and calls for a redrafting of the rules.

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"Rule 219: The ‘Good Arguable Case’ Requirement"

Andrew Beck, 2002

The author criticises the adoption of the "good arguable case on the merits" test in respect of R 219 by New Zealand courts, as a result of erroneous reliance on English case law authority. Instead of facilitating the service of proceedings on foreign defendants this test, as well as the fact that the plaintiff carries the burden of proof, completely defeats the policy underlying service abroad without the leave of the court.

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"Service Abroad in Enforcement Proceedings"

Elsabe Schoeman, 2007

In Commerce Commission v Koppers Arch Wood Protection (NZ) Ltd [2007] 2 NZLR 805 jurisdiction in respect of offences committed by foreign defendants in terms of the Commerce Act 1986 was founded on R219(h), which allows for service abroad without leave of the Court. In a discussion of the case, the author comments on the application of the “good arguable case on the merits” test within the context of R219. The author also argues that statutory offences present unique challenges in terms of jurisdiction and enforcement and should rather be dealt with under R220, in terms of which the Court can exercise its discretion to grant leave after having considered all relevant factors.

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"Putting Plaintiffs Through Their Paces"

Andrew Beck, 1998

The author criticises the interpretation of the Court of Appeal decision in Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1989] 2 NZLR 50 by the Privy Council ([1990] 3 NZLR 513), which has led to the importation of the good arguable case on the merits as part of a two stage inquiry to establish jurisdiction under R 219. Instead, the good arguable case should only be invoked where there is a genuine dispute as to jurisdictional facts.

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"Damages and Territorial Jurisdiction: Judicial Interpretation of Rule 219(a) and the Case for Reform"

Giora Shapira, 2006

The author critically examines New Zealand case law on R 219(a) with specific reference to: (1) the judicial creation of a “good arguable case on the merits” test, and (2) the broad interpretation of “damages” within the context of trans-national tort actions. The author advocates law reform through the abolition of the “good arguable case” requirement and a reformulation of R 219(a), based on a comparison with other jurisdictions, to bring it in line with modern international trends.

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“Service Abroad without Leave: Taking Seaconsar Seriously’’

Elsabe Schoeman, 2010

The New Zealand High Court Rules in respect of service abroad without leave (r 6.27) now incorporate the “serious issue to be tried on the merits” test. This article examines the important difference between the “good arguable case” and “serious issue to be tried on the merits” tests using Lord Goff’s authoritative statements in Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran. The author urges the Courts to embrace Lord Goff’s clarification as an opportunity to provide certainty and accuracy in relation to the interpretation and application of the “serious issue to be tried on the merits” test.