The “just and equitable” test in New Zealand’s strata law: reflections and lessons for other jurisdictions

Abstract

Purpose The purpose of the paper is to examine the phrase “just and equitable”, and associated terminology, within New Zealand’s strata law, to inform other jurisdictions. In particular, this paper temporarily suspends the notion of a statutory hendiadys to consider what kind of justice is reflected in judicial consideration of the phrase. Design/methodology/approach This paper takes a mixed-methods approach, drawing on a combination of black-letter law, property law theory and insights from literary and philosophical analysis. Findings While justice is often considered as “treating like cases alike”, this is not apparent from this study. The analysis shows that different kinds of justice outcomes emerge, with some emphasis on justice as economic efficiency. In addition, the paper highlights the inherent uncertainty in what is “just and equitable” and how associated disjunctive phrases, such as “unjust or inequitable” are still treated as hendiadys, but are no more clear. Research limitations/implications The research is limited to consideration of a single jurisdiction (New Zealand), though the useful degree of case law from this jurisdiction provides broad insight. Practical implications Among other things, the paper argues for further consideration of the usefulness of the “just and equitable” test in light of the kind of justice we want to achieve. The addition of mandatory considerations to existing statutory tests may allow more of a focus, beyond the exigencies of individual cases or narrow outcomes of economic efficiency. Originality/value While there is existing literature on the “just and equitable” phrase within strata law, the paper is the first, to the best of the authors’ knowledge, to provide an analysis focused on how suspending the statutory hendiadys normally inherent in “just and equitable” provides insight into the kind of justice that emerges from the application of this test within a single strata jurisdiction. As such, the paper provides lessons for other jurisdictions on how to improve relevant statute and case law outcomes.