The King v Smail Golden Jubilee: The failure of the High Court 'to Develop and Clarify the Law' of the Torrens Volunteer Is No Cause for Jubilation

2020 ◽  
Author(s):  
Malcolm McKenzie Park ◽  
Serene Ho
Keyword(s):  
High Court ◽  
Golden Jubilee ◽  
The Law

scholarly journals INTERPRETATION AND RECTIFICATION IN AUSTRALIA

2017 ◽  
Vol 76 (3) ◽  
pp. 483-486 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
New South ◽  
Common Law ◽  
New South Wales ◽  
High Court ◽  
South Wales ◽  
Housing Corporation ◽  
Lower Courts ◽  
The Law ◽  
High Court Of Australia

Both interpretation and rectification continue to pose problems. Difficulties are compounded by blurring the boundary between the two. In Simic v New South Wales Land and Housing Corporation [2016] HCA 47, the High Court of Australia overturned the decisions of the lower courts which had held that performance bonds could be interpreted in a “loose” manner in order to correct a mistake. However, the documents could be rectified in order to reflect the actual intentions of the parties. This decision should be welcomed: the mistake was more appropriately corrected through the equitable jurisdiction than at common law. Significantly, the concurring judgments of French C.J. and Kiefel J. highlight that the law of rectification now seems to be different in Australia from the law in England. It is to be hoped that the English approach will soon be revisited (see further P. Davies, “Rectification versus Interpretation” [2016] C.L.J. 62).

scholarly journals TALKING ABOUT RAPE – AND WHY IT MATTERS: Adjudicating rape in the Western Cape High Court

2016 ◽  
Author(s):  
Stacy Moreland
Keyword(s):  
Criminal Law ◽  
Institutional Factors ◽  
Western Cape ◽  
Sexual Offences ◽  
High Court ◽  
The Law ◽  
The Relationship ◽  
Selection Of ◽  
Do So

This article asks the question: how do judges know what rape is and what it is not? The statutory definition contained in the Criminal Law (Sexual Offences and Related Matters) Amendment Act1 (SORMA) guides courts in adjudicating rape cases, and as such the definition is theirs to interpret and implement. This article analyses a small selection of recent judgements of the Western Cape High Court2 (WCHC) for answers. The article begins by establishing why judgements are an important source for understanding what rape means in society at large; it then discusses the relationship between power, language, and the law. This is followed by specific analyses of cases that show how patriarchy still defines how judges express themselves about rape. It concludes by looking at the institutional factors that discourage judges from adopting new ways of talking about rape, and their constitutional mandate to do so.

scholarly journals Who are we Trying to Protect? The Role of Vulnerability Analysis in New Zealand's Law of Negligence

2016 ◽  
Vol 47 (1) ◽  
pp. 19
Author(s):  
Scott William Hugh Fletcher
Keyword(s):  
New Zealand ◽  
City Council ◽  
High Court ◽  
North Shore ◽  
The Law ◽  
High Court Of Australia ◽  
Negligence Law ◽  
Insight Into ◽  
Consistent Application

New Zealand has incorporated ideas of vulnerability within its law of negligence for some years. It has not, however, clarified what is meant by vulnerability or the role the concept plays within the broader duty of care framework. Several obiter comments in Body Corporate No 207624 v North Shore City Council (Spencer on Byron) suggest the concept ought not to be part of the law due to its uncertain and confusing nature. Subsequent cases have, however, continued to use the concept, and continue to use it despite both its historically ill-defined nature and the additional uncertainty added by Spencer on Byron. This article argues that vulnerability can and ought to be a part of New Zealand negligence law. With a consistent application of a single test for vulnerability – that established in the High Court of Australia in Woolcock Street Investments Pty Ltd v CDG Pty Ltd – vulnerability can be conceptually certain and provide useful insight into the issues posed by the law of negligence.

scholarly journals The Law Regarding Pension Interest in South Africa has been settled! Or has it? With Reference to Ndaba v Ndaba (600/2015) [2016] ZASCA 162

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Motseotsile Clement Marumoagae
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
High Court ◽  
The Supreme Court ◽  
Golden Opportunity ◽  
The Law ◽  
Court Of Appeal

This article reflects on the law relating to pension interest in South Africa. In particular, it assesses whether the Supreme Court of Appeal in Ndaba v Ndaba had adequately clarified how this area of law should be understood. In light of the inconsistent approaches from various divisions of the High Court, it has not always been clear how the courts should interpret the law relating to pension interest in South Africa. In this paper, aspects of this area of law which have been clarified by the Supreme Court of Appeal are highlighted. This paper further demonstrates aspects of this area of law which the Supreme Court of Appeal did not settle and would potentially be subject to future litigation. This paper is based on the premise that while Ndaba v Ndaba is welcomed, the Supreme Court of Appeal nonetheless, missed a golden opportunity to authoritatively provide a basis upon which the law relating to pension interest in South Africa should be understood. 

Modernising remedies for breach of repairing covenants

1999 ◽  
Vol 58 (2) ◽  
pp. 265-293
Author(s):  
Stuart Bridge
Keyword(s):  
Property Law ◽  
High Court ◽  
Specific Performance ◽  
Effective Compliance ◽  
The Law ◽  
Effective Remedy ◽  
Law Commission

THE obvious, and potentially most effective, remedy for breach of a repairing covenant in a lease is specific performance. All such decrees are of course discretionary. Although there are “well-established principles which govern the exercise of the discretion . . . these, like all equitable principles, are flexible and adaptable to achieve the ends of equity” (per Lord Hoffmann in Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd. [1998] A.C. 1, 9). However, since the decision of Lord Eldon L.C. in Hill v. Barclay (1810) 16 Ves. 402, specific performance of repairing covenants was considered generally unavailable on three grounds: the want of mutuality between landlord and tenant; the impossibility of defining adequately the works to be done; and the need for the constant supervision of the court to ensure that effective compliance is obtained. In its 1996 Report on Landlord and Tenant: Responsibility for State and Condition of Property (Law Com. No. 238), the Law Commission recommended legislation to give the court power to make orders for specific performance in any lease or tenancy. Now, the High Court appears to have made legislation unnecessary. In Rainbow Estates Ltd. v. Tokenhold Ltd. [1999] Ch. 64 (Lawrence Collins Q.C. sitting as a deputy) it has done Parliament's work for it.

scholarly journals Sensitivity in the law of nuisance: Should people in glass houses expect voyeurs? Fearn v Tate Gallery [2019] EWHC 246 (Ch)

2019 ◽  
Vol 21 (2) ◽  
pp. 136-139 ◽  
Author(s):  
Chris Hilson
Keyword(s):  
Case Note ◽  
High Court ◽  
The Public ◽  
Environmental Tort ◽  
Key Issues ◽  
The Law

The case Fearn v Tate Gallery involved claims brought by luxury London flat owners for breach of privacy in relation to the Tate Modern’s nearby viewing platform. One of the key issues in the case, heard by Mann J in the High Court, was whether the floor-to-ceiling glass windows of the flats – through which members of the public on the viewing platform could easily gaze – meant the residents were unduly sensitive users of the land for the purposes of the tort of nuisance. This case note considers this question along with the principle in nuisance that it is normally no defence to say that the claimant came to the nuisance. Both sensitivity and the coming to the nuisance (non-) defence are important elements of nuisance as an environmental tort and hence the case is worthy of note for environmental lawyers.

The Tortuous History of the Mutual-Mistake Defense in Michigan Contract Law

2011 ◽  
Vol 40 (2) ◽  
pp. 169-174
Author(s):  
NORMAN OTTO STOCKMEYER
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Law Schools ◽  
High Court ◽  
Complete Breakdown ◽  
History Of ◽  
Legitimate Expectations ◽  
The Law

ABSTRACT Imagine a world where courts stopped enforcing contracts. There would be a complete breakdown in commerce. Yet courts do not enforce all contracts. Contracts that are the product of fraud or duress, for example, are voidable. The law must strike a balance between protecting legitimate expectations and policing against contract wrongdoing. What if a contract is the product of a mistake? No one was at fault, yet the contract is not what the parties supposed. Should a court enforce it? Sherwood v. Walker (1887) is a landmark case in which the Michigan Supreme Court established the defense of mutual mistake, refusing to enforce a contract that was the product of the parties' erroneous assumption. Sherwood v Walker is still taught in law schools today, and has been cited as authority by courts across the country. But since it was decided, Michigan's high court has twice repudiated the case, only to later embrace it again. This paper explores the convoluted history of the defense of mutual mistake in Michigan contract law.

Corroboration of Accomplice Evidence in Swaziland: Some Thoughts on Judicial Interpretations and their Implications

1992 ◽  
Vol 36 (1) ◽  
pp. 52-65
Author(s):  
Medard R. Rwelamira
Keyword(s):  
High Court ◽  
Ritual Murder ◽  
Contemporary Situation ◽  
The Law ◽  
Judicial Interpretations

The recent decision by Justice Francis Rooney of the High Court of Swaziland in the case of Rex v. Simon Dvuba has once again brought to the fore the need to re-examine the law governing accomplice evidence and its relevance to the contemporary situation in Swaziland. In that case, the accused was charged with the murder of his brother, Mxolisi, Chief of Mpolonjeni area in the Hhohho District. It was alleged that after Mxolisi's death certain parts of his body were cut away with the intention of using them for preparing ritual muthi, mainly to enhance the accused's chances of succession to the chieftaincy to which he asserted a claim of right. Ritual murder is an offence committed in private and parties bind themselves to utmost secrecy. During the trial, four witnesses gave evidence implicating the accused. Three of them claimed to have been told by him in advance of the murder that he wanted to kill the deceased. The fourth one went even further and testified that the accused admitted to her that he was responsible. What the court found surprising was that none of the witnesses warned the deceased of his impending fate or bothered to report the matter to the relevant authorities.

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