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Citation
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Judgment date
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| July 2019 |
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31 July 2019 |
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Criminal law
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7 July 2019 |
| June 2019 |
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Costs
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21 June 2019 |
| May 2019 |
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Civil Remedies
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10 May 2019 |
| April 2019 |
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Bail pending appeal refused: procedural defect in DNA sampling and trial counsel omissions do not show strong chance of success.
Criminal law – bail pending appeal – ineffective assistance of counsel – challenge to DNA evidence obtained after arrest – written consent procedural irregularity does not automatically render DNA evidence inadmissible under local statute; new medical evidence of scar’s cause may be insufficiently probative to undermine DNA-based conviction.
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29 April 2019 |
| March 2019 |
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Court discharged charging order where default-judgment creditor knew company could not defend, risking prejudice to shareholder-creditor.
Company law – enforcement of judgment against company asset by charging order – discretion to make charging order absolute – consideration of prejudice to other creditors – effect of shareholders’ agreement preventing company from instructing solicitors – disputed debt and competing valuations – just and equitable winding up as alternative remedy.
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7 March 2019 |
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7 March 2019 |
| February 2019 |
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Criminal law
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25 February 2019 |
| January 2019 |
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25 January 2019 |
| December 2018 |
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Minister’s 2008 letter created an equitable sale; 2015 lease set aside and freehold ordered transferable for US$3,450 upon payment.
Crown land – Conditional Purchase Lease – Minister’s letter approving freehold transfer – Variation/waiver binding in equity where promise is clear and payment tendered; equitable contract for sale conferring beneficial interest; attempted tender and Treasury refusal; common mistake and economic duress – May 2015 CPL set aside; declaration for transfer upon payment of US$3,450; offset of post-March 2009 payments.
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19 December 2018 |
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12 December 2018 |
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By-laws require EC approval for short-term holiday lettings; approval requirement valid, lump-sum legal-cost levy invalid.
Strata law – By-law construction – Short-term holiday lettings characterised as commercial use requiring EC approval; regulation of short-term rentals not a prohibited restriction under STO s20(4). By-laws – No implied term that EC approval not be unreasonably withheld absent clear wording and statutory framework. Enforcement – Fines must reflect actual days of unlawful occupation; lump-sum legal-cost levy beyond by-law powers invalid. Restitution – Unjust enrichment, mesne profits, quantum meruit, account of profits and Wrotham Park damages not available on the facts.
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7 December 2018 |
| November 2018 |
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Costs awarded to Crown; 6% compounded interest from 1 March 2007 on US$657,500 equitable compensation.
• Equity – Knowing receipt of Crown land – equitable compensation awarded for unauthorised disposal of trust assets. • Costs – Costs follow the event; discretion to depart considered (Ritter v Godfrey; Capron v TCIG; In re Elgindata). • Interest – Judgment rate of 6% per annum, compounded annually, awarded from date of knowing receipt (1 March 2007) on the full compensatory sum.
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6 November 2018 |
| October 2018 |
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Civil Remedies
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19 October 2018 |
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Criminal law
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16 October 2018 |
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Civil Procedure
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12 October 2018 |
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Freight forwarder liable only for amounts due; alleged expedited‑clearance promise and duty set‑off dismissed; indemnity costs awarded.
* Contract / Maritime forwarding – claim for unpaid forwarding and clearing charges; defendant paid carrier directly so freight element abandoned by plaintiff.
* Set‑off – alleged overpayment of customs duty due to duplicate invoice – customer responsible for providing accurate information; set‑off dismissed.
* Contract formation / terms – alleged oral promise to expedite clearance (48–72 hours) — no binding guarantee found; delays due to respondent's late payment and Customs inspection beyond forwarder's control.
* Remoteness of damage – claimed consequential losses (airfares, labour, lost income) held too remote and not recoverable.
* Costs – counterclaim found insincere; indemnity costs awarded for counterclaim.
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3 October 2018 |
| September 2018 |
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5 September 2018 |
| August 2018 |
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Attorney General may be sued for the Registrar; rectification under RLO s.140(1) denied absent fraud or mistake and applicant lacked standing.
* Constitutional law – Crown Proceedings Ordinance s.13(1) – Attorney General may be sued in representative capacity for Crown officers; not repugnant to Constitution.
* Registered Land – Rectification of Register s.140(1) RLO – requires fraud or mistake; mere adjudication to Crown and existing restriction insufficient.
* Land Adjudication – finality where interested party fails to obtain Letters of Administration or to appeal adjudicator's decision.
* Title restrictions – preserve putative claims/right to be allowed by Crown but do not themselves create proprietary title.
* Standing – only personal representative of deceased estate may bring claim to rectify title on estate's behalf.
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31 August 2018 |
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Application to vacate a clear, signed guilty plea dismissed; sentence concerns and counsel's advice do not prove involuntariness.
Criminal procedure – application to withdraw plea – whether plea equivocal or involuntary – appreciation of elements of offence – concern over sentence not equivalent to duress – onus on applicant to show justice requires vacating plea.
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2 August 2018 |
| July 2018 |
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Civil Remedies
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27 July 2018 |
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Leave granted to review power company's ongoing refusals to supply electricity, considering statutory duty under section 11 and public interest.
Administrative law — Judicial review — Leave to apply — Time limits and extension of time under Order 53 r4(1) — Electricity Ordinance s11 — Supplier’s statutory duty to supply electricity versus right to refuse — Interim relief to process and supply applications — Public interest in scope of statutory duty.
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19 July 2018 |
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The respondent manager is entitled to its contractual 30–35% fee on advance reservations fulfilled after termination.
Contract construction — resort rental and management agreements; interpretation of clause 1.4 and clause 8.3; entitlement to advance reservation deposits and timing of manager’s fee (30%/35%) on reservations fulfilled after termination; commercial common sense and objective contractual meaning.
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17 July 2018 |
| June 2018 |
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The applicants successfully challenged an unpublished blanket policy limiting work-permit renewals to one year as unlawful.
* Administrative law – Immigration – Unpublished ministerial directive – Blanket policy limiting work-permit renewals to one year – Unlawful fettering of discretion and denial of opportunity to make representations (R (Lumba) principles).
* Immigration law – Work permits for skilled workers – statutory discretion under section 24/37 and Regulation 43 – decisions to be made on merits.
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4 June 2018 |
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Commission lacked power to issue section 20 summons absent a formal inquiry; summons quashed; CRO protects bank records.
Integrity Commission Ordinance – section 20 summons powers limited to formal inquiries under section 46; ultra vires issuance of summons in absence of Inquiry; procedural signature requirement treated as drafting inconsistency; service abroad cannot lawfully compel attendance; Confidential Relationships Ordinance protects bank records from compelled disclosure without consent or court production order.
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4 June 2018 |
| April 2018 |
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The applicant may sell: service valid and registered charge enforceable despite company execution irregularities.
Registered Land Ordinance s72, s107 and s151; Companies Ordinance s78; service on companies by post to registered office; statutory deeming provision for execution of instruments by companies; registration completes a charge (s64(3)); rectification required to challenge registered charge; principles on striking out for delay (delay must be contumelious or cause substantial prejudice).
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20 April 2018 |
| March 2018 |
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Early guilty pleas mitigated sentence but six years' concurrent custody ordered for premeditated robbery; immigration charges result in deportation.
Criminal law – Robbery – Premeditated entry by roof, possession of weapon and large amount of stolen cash – aggravation v mitigation – early guilty plea and remand credit – concurrent six-year custodial sentence; immigration offence disposed by deportation.
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27 March 2018 |
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Court dismissed borrower’s breach and estoppel claims; lender’s suspension of drawdowns justified by cost discrepancies and lack of borrower funds.
* Contract law – construction loan – whether lender’s suspension of drawdowns amounted to breach where independent valuations showed cost overruns exceeding remaining funds. * Estoppel – waiver by estoppel and promissory estoppel – requirement of unequivocal representation and detrimental reliance not satisfied. * Equity – promissory estoppel requires a clear promise, intended reliance and detriment. * Remedies – lender entitled to protect its security where borrower cannot demonstrate personal resources to complete project. * Interest – construction of charge/agreement and notice requirements reserved for separate enforcement proceedings.
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19 March 2018 |
| February 2018 |
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Administrative Review
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27 February 2018 |
| January 2018 |
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Leave granted to serve foreign defendants where serious claims of knowing receipt and breach of fiduciary duty arise in TCI.
* Civil procedure – Service out of jurisdiction – Application under Order 11 Supreme Court Rules 2000 – three-part test (serious issue; jurisdictional gateway; forum conveniens).
* Jurisdictional gateways – r 1(1)(c) (necessary or proper party) and r 1(1)(v) (claims against current/former directors/officers of TCI companies).
* Substantive claims – knowing receipt of trust property, breach of fiduciary duty, dishonest assistance, unlawful means conspiracy/unlawful interference.
* Forum conveniens – TCI an appropriate forum to try alleged breaches affecting TCI companies.
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18 January 2018 |
| November 2017 |
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Civil Procedure
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27 November 2017 |
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Whether an association's exclusion from an exclusive terminal rank constituted unlawful interference or negligent misrepresentation.
Tort—unlawful means causing loss; procuring breach of contract; association’s contractual exclusivity with third party; duty of care of an association to members; negligent misrepresentation by non‑disclosure (positive assertion required).
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17 November 2017 |
| October 2017 |
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Lease promises to permit private commercial development within a national park were invalid; the Crown cannot fetter future statutory discretion.
National parks – scope of permissible development under National Parks Ordinance; Crown contracts – inability to fetter future executive/statutory discretion; invalidity of contractual promises to grant statutorily regulated development permission; requirement of statutory process to alter park boundaries; remedies where contractual promise procures an unlawful development.
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18 October 2017 |
| September 2017 |
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Commission entitled to hold a Code of Conduct inquiry despite prior referral and delay absent evidence of prejudice.
Integrity Commission — distinction between investigation and statutory inquiry — no functus officio from referring matter to prosecutors — no statutory bar to subsequent Code inquiry after criminal proceedings unless statutory time-bar or undertaking exists — delay alone insufficient to quash inquiry absent prejudice — separation of investigative and adjudicative functions.
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13 September 2017 |
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Administrative Review
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13 September 2017 |
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Court granted summary and default judgment: guarantor’s defences were incredible; counterclaim struck out for lack of particulars.
Banking law – Guarantees and security; Summary judgment – defendant must show fair/reasonable probability of a credible defence; Guarantee covering present and future liabilities; Misrepresentation by silence – burden and credibility; Pleading requirements – particulars required for allegations of fraud/negligent misrepresentation; Default judgment for failure to file defence.
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4 September 2017 |
| July 2017 |
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Applicant must indemnify innocent third parties for compliance costs, but adversarial challenges attract reduced cost recovery.
Norwich Pharmacal/disclosure orders; preservation orders; costs of innocent third parties; application of Totalise principles to preservation orders; limits where third party takes adversarial stance; trustees' indemnity for unsuccessful jurisdictional challenges.
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26 July 2017 |
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The Declaration created no valid TCI trust: no legal transfer occurred and no beneficiaries were identified.
Trusts — validity and constitution — requirement of legal transfer of trust property to trustee; unincorporated entity cannot hold legal title — beneficiary principle — private trust void if no ascertainable human beneficiaries — estoppel not to preclude preliminary judicial determination of trust validity.
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17 July 2017 |
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Ex parte wardship granted where respondent’s secret removal of the child abroad constituted abduction, justifying return proceedings.
Wardship — Child removal from jurisdiction — Surreptitious obtaining of passport and secret departure — Conduct comparable to parental abduction — Ex parte relief justified to protect child’s welfare — Return proceedings permissible.
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14 July 2017 |
| June 2017 |
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30 June 2017 |
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A winding-up petition was stayed because a reasonable buyout offer existed and the petitioner unreasonably refused the alternative remedy.
* Companies law – just and equitable winding up – minority shareholder excluded from management – availability of alternative remedy by buyout – abuse of process.
* Company valuations – independent expert valuation as basis for reasonable buyout offer.
* Procedural remedy – stay of petition to permit buyout by agreed independent expert; dismissal upon completion.
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15 June 2017 |
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Costs
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13 June 2017 |
| May 2017 |
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The successful applicant recovered standard costs; indemnity costs denied as the respondent's honest mistaken defence did not meet the high threshold.
Costs — successful plaintiff entitled to costs — indemnity costs require culpability or utterly unreasonable conduct — honest but mistaken defence insufficient; statutory interpretation — meaning of "hotel licence" in Regulations; assessment of public-interest/test-case character for costs.
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31 May 2017 |
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Court awards 2% on general damages and local short-term deposit rates on special damages, rejecting the statutory post-judgment rate.
Damages — Pre-judgment interest — statutory post-judgment rate inappropriate — general damages: 2% from date of writ — special damages: interest based on local short-term deposit rates (full rate where loss arose shortly after accident) — use local bank rates rather than UK Special Investment Account rates.
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11 May 2017 |
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Leave granted to serve foreign defendants where serious issues exist and Turks and Caicos is the appropriate forum.
Service out of jurisdiction — application under Order 11/0.11 — requirements: serious issue to be tried; good arguable case that claim falls within jurisdictional gateways (r 1(1)(c), r 1(1)(v)); forum conveniens — Turks and Caicos clearly appropriate forum — claims of breach of fiduciary duty, knowing receipt and dishonest assistance relating to transfers of TCI company assets.
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3 May 2017 |
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Application to restrain mortgagee’s sale dismissed for lack of exceptional circumstances and no undertaking in damages.
* Civil procedure – interlocutory injunction – application to restrain mortgagee’s power of sale – American Cyanamid principles applied.
* Mortgages – undertaking in damages – McLeod v Jones rule requiring payment into court of amount claimed by mortgagee before relief.
* Mortgages – sale at undervalue – mere assertion insufficient; mortgagee need only obtain best price reasonably obtainable at date of sale.
* Remedies – damages ordinarily adequate where undervalue alleged; injunction only in exceptional circumstances.
* Property law – restriction on sale to Belongers does not preclude exercise of power of sale under charge.
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3 May 2017 |
| April 2017 |
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A defendant successful after rejected settlement offers is not entitled to indemnity costs absent moral turpitude or highly unreasonable conduct.
Costs indemnity v standard; Order 62 r 3(4); high threshold for indemnity costs (moral turpitude or highly unreasonable conduct); relevance of CPR Pt 36 and payments into court; settlement offers and timing.
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24 April 2017 |
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Petition was not frivolous; challenge to Voter's List arguable, but unproven allegation of improper motive warranted a 30% costs award to other respondents.
• Election law – costs – petitioner not frivolous where challenge to Voter's List under s.80 of Elections Ordinance was arguable.
• Election law – decision by lot – ground challenging lot had no merit.
• Public officers – imputations of improper motive unsupported by evidence attract adverse costs consequences.
• Costs – proportionality and public interest in election challenges; partial costs order (30%) against petitioner for unsubstantiated imputation.
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24 April 2017 |
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Civil Procedure
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20 April 2017 |
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Court found defendant liable to repay $11,000; awarded post-judgment interest and proposed pre-judgment interest pending submissions.
Civil law – Money had and received/loan – whether payment was $11,000 for purchase or $6,000 loan; credibility of witnesses; fabricated receipt effect; discretionary award of pre-judgment interest under s.19(2) CPO; post-judgment interest under s.20(1) CPO.
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13 April 2017 |