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Citation
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Judgment date
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| September 2008 |
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A non-beneficiary cannot recover from a solicitor for negligent or fraudulent will-drafting absent a recognized duty or recoverable loss.
Civil procedure – Strike out (Ord.18 r.19): application appropriate before trial to prevent hopeless expensive litigation; Solicitor’s liability – negligence/fraud in will-drafting: duty to intended beneficiaries recognized in limited circumstances (White v Jones) but not to remote non-beneficiaries; Locus standi – non-intended beneficiary cannot recover absent proximate duty and pleaded recoverable loss; Remoteness – speculative future bequests and emotional distress not recoverable.
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19 September 2008 |
| August 2008 |
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Refusal of stay pending appeal where public interest and prejudice to the Inquiry outweighed applicants' concerns.
Civil procedure — stay pending appeal — 'arguable appeal'/'real chance' threshold; balance of prejudice to parties; public interest and statutory time limits for Commissions of Inquiry; risk of irreparable reputational harm and burden of proof for stay applications.
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6 August 2008 |
| July 2008 |
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Respondents must disclose sources of funds under a Mareva-type disclosure order before restraint variation is considered.
* Proceeds of Crime Ordinance s43 – restraint orders – purpose: preserve realisable property for confiscation
* Court power to permit reasonable living and legal expenses under s43(2)(a) but exercise limited by need to avoid unreasonable diminution of assets
* Mareva-type disclosure – court may order disclosure of sources of funds in civil restraint proceedings
* Failure to comply with disclosure requirement justifies refusal to vary restraint order
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31 July 2008 |
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Sentence quashed where magistrate effectively punished unadmitted intent to supply; substituted 14 months for simple possession.
Criminal law – Sentencing – Illegitimate reliance on unadmitted more serious offence (possession with intent to supply) – Courts must not sentence for an offence not admitted; unrepresented accused must be informed; mitigation evidence may be received before sentence.
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29 July 2008 |
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Appointment of broad corruption inquiry upheld; direction allowing recommendation to extend terms of reference struck down as ultra vires.
* Commissions of Inquiry — scope and validity of terms of reference — requirement that subject and scope be sufficiently defined but allowance for reasonable Commission discretion.
* Delegation — distinction between permitting recommendations and unlawfully delegating statutory powers.
* Statutory power — absence of power under Ordinance to extend terms of reference; direction to recommend extension declared ultra vires and severed.
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28 July 2008 |
| June 2008 |
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25 June 2008 |
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Leave granted to seek judicial review of Planning Director’s alleged refusal or delay to consider enforcement proceedings.
Planning law – enforcement powers under s.45 Physical Planning Ordinance – whether Director’s refusal/delay to seek Minister’s consent for enforcement is amenable to judicial review; leave application promptness; standing; adequacy of private law remedies; implied duty to consider and timely exercise discretion.
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25 June 2008 |
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Court orders demolition and removal of structure on plaintiff's leased land, grants injunction, nominal damages and costs.
Land law – lease validity; wrongful interference/trespass – structure built on leased land; remedies – demolition, removal and injunction; court cannot compel executive re-determination of leases or boundaries; nominal damages and costs on ordinary basis.
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17 June 2008 |
| May 2008 |
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The Constitution restates the common-law duty requiring the prosecution to disclose material that may weaken its case or assist the defence.
Criminal law — Right to a fair trial (section 6) — Prosecution’s common-law duty to disclose witness statements and material favourable to the defence — Scope in Magistrates’ Court, summary trials and committals — Disclosure of convictions/adverse disciplinary findings — Limits to speculative fishing expeditions — Public interest immunity notice and court determination.
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13 May 2008 |
| April 2008 |
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A hotel consuming 3,200,000+ kWh in a year qualifies as a “large hotel” for that year, requiring application of the large-hotel tariff.
* Electricity law – tariff interpretation – definition of “large hotel” – annual consumption threshold determines category for that year; no statutory basis for retrospective or interim monthly rate adjustments.
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28 April 2008 |
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Bank breached the merchant agreement by effecting a chargeback for an unauthorised offline transaction.
Merchant agreements – authorisation and floor limits; interpretation against drafting bank where signature form left blank; chargebacks – requirement of proper authorisation; Visa pre‑compliance concerns; offline/manual "force sale" transaction validity.
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27 April 2008 |
| March 2008 |
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Second appeals are limited to points of law alone; bail pending appeal denied where no right to appeal exists.
Court of Appeal Ordinance s.18(1) – Second appeals limited to points of law alone; second appeal only from Supreme Court judgment; bail pending appeal depends on existence and prospects of lawful appeal; no clear power to refuse filing of plainly unarguable appeal.
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26 March 2008 |
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Court orders respondent to pay $90 per child weekly after finding he failed to provide proper maintenance.
Domestic Proceedings Ordinance – section 3(b) maintenance for children – liability for non-biological child treated as family – assessment of periodical payments by reference to parties’ incomes, earning capacity and children’s needs – disclosure of income and savings – assessment and payment of arrears – custody/access consideration under section 10.
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17 March 2008 |
| February 2008 |
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22 February 2008 |
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Bail pending a second appeal depends on existence of a right of appeal; s18(1) confines second appeals to points of law alone.
Court of Appeal — Second appeal from Supreme Court — Section 18(1) limited to a "point of law alone"; mixed fact-and-law grounds not permitted; second appeal confined to issues decided by Supreme Court; bail pending appeal depends on existence and prospects of an arguable right of appeal; power to refuse filing unclear.
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19 February 2008 |
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Whether insurer-indemnity interest runs from service on the insured and how interim payments are allocated between heads of damages.
* Insurance — indemnity for insured’s liability — insurer takes on insured’s liability including interest accruing from date writ served on insured.
* Interest — determination of date from which interest on general damages runs where insurer indemnifies insured.
* Allocation — interim payments should be applied first to interest on special damages, then to interest on general damages, before reducing principal.
* Application of Bristow v Judd as guidance on allocation of interim payments to differing interest-bearing heads.
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4 February 2008 |
| January 2008 |
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Ex parte injunction discharged for inadequate disclosure; contempt dismissed for lack of personal service; file statement of claim within ten days.
Civil procedure – interlocutory ex parte injunction – duty of full and frank disclosure – Mareva/Piller principles; Contempt – committal/sequestration – personal service or clear knowledge of order required; Rule 45/Order 29; Failure to prosecute – statement of claim not filed – strike out.
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18 January 2008 |
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Court struck employer from false imprisonment claim, allowed defamation claim but removed conspiracy allegation, ordered address disclosure and deletion of scandalous affidavit passage.
* Civil procedure – Order 18 r19 – striking out pleadings: court’s limited role under r19(1)(a) (no evidence admissible) and broader scope under r19(1)(b)/(d).; * False imprisonment – liability of person reporting to police; whether reporting versus actively procuring arrest distinguishes liability. ; * Defamation – abuse of process: conspiracy allegation cannot be combined with ordinary defamation to sidestep special defences (Lonhro v Fayed).; * Pleadings – sufficiency of counterclaim and need for particulars. ; * Affidavits – deletion of scandalous, irrelevant imputations. ; * Security for costs – discretion where plaintiffs reside abroad; disclosure of address and assets required.
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14 January 2008 |
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A contractual Florida venue and law clause justified staying local proceedings where the plaintiff failed to show strong cause not to stay.
* Private international law – forum-selection clauses – discretion to grant stay where disputes contractually referred to foreign forum; burden on plaintiff to show strong cause not to stay. * Choice of law – where contract prescribes foreign governing law, foreign courts are generally better placed to determine and apply that law. * Procedure – non-conforming writs are irregular but may be rendered academic where a stay is appropriate.
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2 January 2008 |