ABSTRACT
This article examines the recent case law discussion of the doctrine of frustration in New Zealand since the Supreme Court’s decision in Planet Kids Ltd v Auckland Council. It shows that, while the multi-factorial approach set out by Rix LJ in The Sea Angel was adopted in Planet Kids, the subsequent lower court decisions have not had much need of this approach. Instead, the frustration analysis in these cases has revolved around familiar issues such as the foreseeability and allocation of risk under the contract. Indeed, the allocation of risk under the contract can still be seen to be the determinative factor in these recent cases, despite the adoption of the multi-factorial approach by the Supreme Court. Finally, this article will argue that, despite the massive disruption caused by COVID-19 and the attendant lockdowns, it is unlikely that we will see a major redrawing of the bounds of the frustration doctrine.
Roberts, Marcus, An Update on Frustration in New Zealand: The Multifactorial Approach in the Age of COVID-19 (December 1, 2021).
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