ON THIS DAY IN 1857, the US Supreme Court delivered Dred Scott v Sandford 60 US 393 (1857).
https://supreme.justia.com/us/60/393/case.html
The US Supreme Court ruled that slaves African ancestry were not citizens under the US Constitution.
The decision caused outrage and was a significant event leading up to the election of Abraham Lincoln and the Civil War from 1861 to 1865.
Sydney, Australia
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ON THIS DAY in 1939, the High Court of Australia delivered Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649 (6 March 1939).
http://www.austlii.edu.au/au/cases/cth/HCA/1939/3.html
Yerkey v Jones provides that: (1) a wife may have a guarantee set aside if the consent was obtained by undue influence, unless she received independent advice (at 649, per Dixon J); and (2) a wife has a prima facie right to have a guarantee set aside if she failed to understand the effect of the guarantee or its significance, unless steps were taken by the lender to inform the wife of such matters (at 683, per Dixon J).
Sydney, Australia
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ON 4 MARCH 2015, the High Court of Australia delivered Korda v Australian Executor Trustees (SA) Limited [2015] HCA 6 (4 March 2015).
http://www.austlii.edu.au/au/cases/cth/HCA/2015/6.html
The High Court allowed an appeal against a decision of the Victorian Court of Appeal, declaring that the respondent was not entitled to certain monies that were payable to a forest company (“the third appellant”) under Land Sale Contracts and a milling company (“the fourth appellant”) pursuant to a tree Sale Agreement. The Court held that the proceeds of the sale of at the timber and land scheme payable to the third and fourth respondent were not subject to an express trust in favour of the scheme of investors.
Sydney, Australia
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ON THIS DAY IN 1987, the High Court of Australia delivered Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221 (4 March 1987). http://www.austlii.edu.au/au/cases/cth/HCA/1987/5.html A builder was entitled to recover remuneration for building work done despite there being no written enforceable contract because the client had accepted the benefit and therefore was obliged under the doctrine of unjust enrichment or restitution to pay fair and just compensation for the benefit accrued.
Section 45 of the Builders Licensing Act 1971 (NSW) (which provided that a building contract is not enforceable unless in writing and signed) did not prevent a builder from bringing an action in quantum merit (“as much as he has earned”) for the work done and materials supplied.
A claim based upon quantum merit does not require there to be an implied contract. A claim in quantum meruit is based upon restitution or unjust enrichment.
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ON THIS DAY IN 1959, the High Court delivered Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (3 March 1959).
http://www.austlii.edu.au/au/cases/cth/HCA/1959/8.html
The unexplained failure of a party to use certain evidence may, in some circumstances, result in an inference that the evidence would not have assisted their case.
Sydney, Australia
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ON THIS DAY IN 1956, the High Court of Australia delivered R v Kirby; Ex parte Boilermakers’ Society of Australia (“Boilermakers’ case”) [1956] HCA 10; (1956) 94 CLR 254 (2 March 1956).
http://www.austlii.edu.au/au/cases/cth/HCA/1956/10.html
The Commonwealth Court of Conciliation and Arbitration was established under the Conciliation and Arbitration Act 1904 (Cth). The court was vested it with federal executive powers under s51(xxv) of the Australian Constitution regarding “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”. The court also exercised federal judicial jurisdiction and power as a court under Chapter III of the Constitution.
The High Court ruled that the Commonwealth Court of Conciliation and Arbitration was unconstitutional because it conferred non-judicial functions on a Chapter III court.
The decision confirmed the doctrine of separation of powers in the Constitution by the rule that it is unconstitutional for non-judicial power to be conferred on a Chapter III court.
Sydney, Australia
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ON THIS DAY IN 1988, the US Supreme Court delivered Hustler Magazine v Falwell 485 US 46 (1988).
https://supreme.justia.com/us/485/46/case.html
Per Rehnquist CJ at 485:
‘We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing, in addition, that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.’
Sydney, Australia
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https://supreme.justia.com/us/485/46/case.html
Per Rehnquist CJ at 485:
‘We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing, in addition, that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.’
Sydney, Australia
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ON THIS DAY IN 1803, the US Supreme Court delivered Marbury v Madison 5 US 137 (1803).
http://laws.lp.findlaw.com/getcase/us/vol/getcase/US/5/137.html
The Supreme Court of the United States held invalid legislation passed by Congress which purported to enlarge the original jurisdiction of the Supreme Court by authorising the issue of mandamus. The Court held that Congress had no power to give original jurisdiction to the Supreme Court in cases other than those described in Art III.
The decision is significant in that it sets the principle that the US Supreme Court has the ultimate power to review the validity of acts of Congress enacted in violation of the United States Constitution.
Sydney, Australia
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ON THIS DAY IN 1854, the Court of Exchequer Chamber delivered Hadley v Baxendale [1854] EWHC Exch J70
(1854) 9 Ex Ch 341; 156 ER 145 (23 February 1854).
http://www.bailii.org/ew/cases/EWHC/Exch/1854/J70.html
The decision lays down the rule for assessing damages for breach of contract. There are two limbs: (1) losses which “may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself”; or (2) losses which “may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it”.
Per Alderson B:
“Now we think the proper rule is such as the present is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made where communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor were the special circumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants. The Judge ought, therefore, to have told the jury, that, upon the fats then before them, they ought not to take the loss of profits into consideration at all in estimating the damages. There must therefore be a new trial in this case.”
Sydney, Australia
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Solicitors are sometimes asked by their clients to provide independent legal advice to satisfy the bank’s requirement that the client obtain independent legal advice when going guarantor providing security for a borrower.
Rule 58 of the NSW Solicitors Rules 2013 sets out the conditions upon which a solicitor may give independent advice on loan and security documents.
A Statutory Declaration made by the borrower evidencing the independent advice must be in the form set out in Schedules 1, 1A or 1B.
A Statutory Declaration made by the guarantor evidencing the independent advice must be in the form set out in Schedules 2 or 2A. The Statutory Declaration is to be returned to the bank.
The borrower or guarantor who receives the advice must sign an acknowledgement in the form set out in Schedule 4, 4A, 4B or 4C. The acknowledgement must be kept by the solicitor and NOT returned to the bank.
A solicitor must not sign a certificate to the effect that they have provided independent advice.
Sydney, Australia
1300 00 2088
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