Loan funds and the trustee's profit

Legal Studies ◽  
1993 ◽  
Vol 13 (3) ◽  
pp. 371-380
Author(s):  
Lee Aitken
Keyword(s):  
Supreme Court ◽  
Conventional Approach ◽  
Purchase Price ◽  
High Court ◽  
First Case ◽  
The Supreme Court ◽  
High Court Of Australia

A trustee or fiduciary may mix trust money with his own, purchase property, and make a profit upon its sale when the property subsequently increases in value. Frequently, however, the trustee will use the misapplied money in order to raise further funds by way of a loan with which he then purchases the property. In the first case, equity’s conventional approach is to apportion the increase in value rateably between the funds from the trust and the trustee’s own contribution so that the trust obtains that proportion of the profit derived which the misapplied funds bear to the purchase price. This result flows from the decision of Hudson J in the Supreme Court of victoria in Scott v Scott from which no cross-appeal was taken to the High Court of Australia.

scholarly journals THE HIGH COURT OF AUSTRALIA AND THE SUPREME COURT OF THE UNITED STATES - A CENTENARY REFLECTION

2012 ◽  
Vol 16 (1) ◽  
pp. 45-78
Author(s):  
Michael J Kirby CMG
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
First Century ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia ◽  
Federal Supreme

In October 2003 in Melbourne, the High Court of Australia celebrated the centenary of its first sitting.  According to the Australian Constitution, it is the “Federal Supreme Court” of the Australian Commonwealth.1  Although the Constitution envisaged the establishment of the High Court, the first sitting of the new court did not take place until a statute had provided for the court and the appointment of its first Justices.  They took their seats in a ceremony held in the Banco Court in the Supreme Court of Victoria on 6 October 1903.  Exactly a century later, the present Justices assembled in the same courtroom for a sitting to mark the first century of the Court.

Appealing to Whom? Australia's ‘Appellate Jurisdiction’ Over Nauru

2007 ◽  
Vol 56 (3) ◽  
pp. 641-658
Author(s):  
Gregory Dale
Keyword(s):  
Supreme Court ◽  
Asylum Seekers ◽  
The Other ◽  
Law Reform ◽  
Question Mark ◽  
High Court ◽  
Perceived Utility ◽  
The Supreme Court ◽  
Significant Case ◽  
High Court Of Australia

A peculiar and unique agreement exists between Australia and Nauru, which has ensured that, since 1976, appeals may be brought from the Supreme Court of Nauru, an independent Republic, to the High Court of Australia by virtue of a bilateral treaty1 and statutes of the respective Parliaments.2 In 1998 and 1999 two High Court judgments left a question mark hanging over the constitutional validity of this appellate scheme.3 Furthermore, in 2001, the Australian Law Reform Commission (ALRC) expressed the view that Australia should terminate the agreement as the arrangement was of no perceived ‘utility’ to Australia.4 For 29 years only two rather trivial cases were appealed from the Supreme Court to Australia's High Court.5 In 2005 a much more significant case, Ruhani, 6 was appealed from Nauru to Australia. The case was not only significant in that it concerned the validity of the so-called ‘Pacific Solution’, which involved Australia holding asylum-seekers offshore in Nauru for the processing of their refugee claims, but it also raised doubts about the desirability of the offshore municipal model of foreign appeals. This article examines the latter of those issues, intending to demonstrate that the model of foreign appeal adopted in the Nauru Treaty is a compromised version of appeal in comparison with the other two more common models.

scholarly journals PERSONAL LIABILITY OF A DIRECTOR IN TERMS OF SECTION 424(1) OF THE COMPANIES ACT 61 OF 1973 IN RELATION TO DEFAULT JUDGMENT IN TERMS OF RULE 39 OF THE UNIFORM RULES OF THE HIGH COURT: AN ANALYSIS OF Minnaar v Van Rooyen NO [2015] ZASCA 114

Obiter ◽  
2016 ◽  
Vol 37 (3) ◽  
Author(s):  
Simphiwe Phungula
Keyword(s):  
Supreme Court ◽  
Application Process ◽  
High Court ◽  
First Case ◽  
Litigation Process ◽  
The Supreme Court ◽  
Action Process ◽  
Default Judgment ◽  
A Company ◽  
Court Of Appeal

The Uniform Rules of the High Court regulate procedure to be followed from the beginning of the matter until it is settled or decided by the courts. The Rules provide for the procedure to be followed prior to the litigation process when the court is not yet involved. During the litigation process, when the court is involved, the court establishes whether proper procedure has been followed before the matter is heard. The court will then conduct the litigation process, either the application process or the action process, and make a determination. The Rules may again provide guidance to the court when granting an order in that specific matter. However, complications may arise when the Uniform Rules clash with the procedures to be followed by the court in terms of the Statute.In Minnaar v Van Rooyen NO ([2015] ZASCA 114) the Supreme Court of Appeal was called upon to interpret section 424(1) of the Companies Act of 1973, in order to determine whether section 39(1) of the Uniform Rules allowed the court to grant a default judgment for a relief under section 424(1). The Supreme Court of Appeal upheld the appeal against the decision of the court a quo, that the court has the discretion to grant a default judgment for a relief under section 424(1), without evidence. The SCA held that there must be evidence establishing – on a balance of probabilities – that a former director of a company has acted recklessly before such an order can be granted. In the absence of that evidence an order granted under section 424(1) of the Companies Act is erroneously made, and had to be set aside. Since this is the first case decided by the Supreme Court of Appeal regarding the interpretation of Rule 39(1) and section 424(1), it is imperative that attention is drawn to the decision and how it has impacted on the Uniform Rules of the High Court. The aim of this paper is to interpret and determine how the court reached this conclusion, and how this conclusion has set out a new approach of interpreting Rule 39(1) of the Uniform Rules of the High Court and section 424(1) of the Companies Act.

scholarly journals Freedom of speech issues in Peach v Toohey and a hypothetical variant of that case

2004 ◽  
Vol 10 (1) ◽  
pp. 139-152
Author(s):  
Patrick Keyzer
Keyword(s):  
Property Rights ◽  
Supreme Court ◽  
Free Speech ◽  
Freedom Of Speech ◽  
Right To Know ◽  
High Court ◽  
The Public ◽  
The Supreme Court ◽  
The Law ◽  
High Court Of Australia

The purpose of this article is to consider the tensions within Australian free speech jurisprudence based on a hypothetical variant of the facts of the decision of the Supreme Court of the Northen Territory in Peach v Toohey. In particular, this article briefly explores the competing legal interests  that operate when journalists seek access to restricted areas, in this case aborginal land, in the course of an investigation. After considering the case and the issues it raises the author develops a hypothetical that draws out some of the deeper tensions in this area of the law. The article concludes with proposals for new apporoaches to the test developed by the High Court of Australia in Lange v Australian Broadcasting Corporation for the balancing of freedom to discuss political and governmental affairs—including the public right to know — against other legitimate objectives such as the maintence of property rights and the privacy interests that can be associated with propety rights. 

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

Public Committee Against Torture in Israel v. Government of Israel. Case No. HCJ 769/02

2007 ◽  
Vol 101 (2) ◽  
pp. 459-465 ◽  
Author(s):  
Daniel Bodansky ◽  
Orna Ben-Naftali ◽  
Keren Michaeli
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Armed Conflicts ◽  
Direct Part ◽  
Customary International Law ◽  
High Court ◽  
Additional Protocol ◽  
Court Of Justice ◽  
The Supreme Court

Public Committee Against Torture in Israel v. Government of Israel. Case No. HCJ 769/02. At <http://elyonl.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf>.Supreme Court of Israel, sitting as the High Court of Justice, December 13, 2006.In Public Committee Against Torture in Israel v. Government of Israel1 Targeted Killings) the Supreme Court of Israel, sitting as the High Court of Justice, examined the legality of Israel's “preventative targeted killings” of members of militant Palestinian organizations. The Court's unanimous conclusion reads:The result of the examination is not that such strikes are always permissible or that they are always forbidden. The approach of customary international law applying to armed conflicts of an international nature is that civilians are protected from attacks by the army. However, that protection does not exist regarding those civilians “for such time as they take a direct part in hostilities” (§51(3) of [Additional Protocol I]). Harming such civilians, even if the result is death, is permitted, on the condition that there is no less harmful means, and on the condition that innocent civilians are not harmed. Harm to the latter must be proportional. (Para. 60)

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

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