In a recent decision the New Zealand Supreme Court made significant changes to the doctrine of equitable contribution as that doctrine applies in New Zealand. The Court rejected the test previously applied to determine if the liabilities of two wrongdoers are sufficiently co-ordinate such that a right to claim contribution arises. In its place, the Court favoured a two-stage approach that, in substance, looks first at whether payment by either wrongdoer would discharge the liability of the other, and then assesses the amount of contribution to award based on what is just and reasonable. This article considers issues arising from this change in approach. It finds that complex issues of law can arise when assessing whether liabilities are discharged. However, it is suggested that this is a preferable approach to that previously adopted to assess whether liabilities are co-ordinate. The Supreme Court’s approach may also have opened the door for future courts to adopt an unjust enrichment analysis to claims for contribution.
Victoria Stace, The Vexed Topic of Equitable Contribution, New Zealand Law Review, volume 2017, number 3, October 2017, pp 467-484.