Mosman Municipal Council v Darling & Anor [1988] NSWLEC 17 (18 March 1988).
Tag Archives: LOWER NORTH SHORE
Re National Australia Bank Limited v Salvatore Nobile and Francesca Nobile and Domenico Martelli and Catena Martelli [1988] FCA 72
Re National Australia Bank Limited v Salvatore Nobile and Francesca Nobile and Domenico Martelli and Catena Martelli [1988] FCA 72; 100 ALR 227 (17 March 1988).
http://www.austlii.edu.au/au/cases/cth/FCA/1988/72.html
Sydney, Australia
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Child care centre
Mosman Municipal Council v Darling & Anor [1988] NSWLEC 17 (18 March 1988).
Hustler Magazine v Falwell 485 US 46 (1988)
ON 23 FEBRUARY 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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Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 (19 February 1988).
http://www.austlii.edu.au/au/cases/cth/HCA/1988/7.html
Maher owned a commercial property at Nowra. Waltons was a national department store. Waltons and Maher entered into negotiations regarding the lease of Maher’s property conditional upon Maher demolishing the existing building and constructing a new one in accordance with Waltons’ requriements.
Waltons provided Maher with a draft lease contract. Maher suggested amendments and indicated they needed to complete the agreement in the next day or so in order to arrange building supplies before Christmas. Maher indicated that he did not want to demolish the building until he knew there was no problem with the lease. The solicitor for Waltons said to Maher that Waltons had informed him that the amendments were acceptable but would obtain formal instructions and inform him by the next day if they did not agree with any of the amendments. The solicitor for Waltons then sent Maher’s solicitor a redrafted lease with the suggested amendments and did not object to the amendments the next day, or at all. Maher then sent Waltons an executed lease by way of exchange and then proceeded with the demolition. A week later, Waltons had concerns about the transaction and, not having exchanged their counterpart of the lease, instructed their solicitor to go slow. Waltons then became aware that the building had been demolished and when the new building was 40% completed advised Maher that they did not wish to proceed with the transaction.
Maher sued Waltons in the Supreme Court of NSW, obtaining an order for specific performance or damages in lieu. An appeal to the NSW Court of Appeal was dismissed, as was an appeal to the High Court of Australia.
Per Mason CJ, Wilson, Brennan and Deane JJJ, Waltons was bound to enter into a lease agreement and estopped from denying an implied promise to complete the contract as it would be unconscionable for Waltons to take a course of inaction that exposed Maher to detriment by acting on a false assumption.
The High Court brought together proprietary and promissory estoppel under the broader principle of equitable estoppel. When a person makes a non-contractual or voluntary promise and knowingly induces the other party to act to his or her detriment in reliance on that promise, that person is precluded from resiling from the promise without avoiding the detriment. The person who makes the promise is liable to either honour the promise or avoid detriment to the other party.
Per Brennan J at 428-9:
“In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant’s property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff’s reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.”
Sydney, Australia
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Baumgartner v Baumgartner [1987] HCA 59
ON 10 DECEMBER 1987, the High Court of Australia delivered Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 (10 December 1987).
http://www.austlii.edu.au/au/cases/cth/HCA/1987/59.html
The parties had lived together in a de facto relationship. They pooled their earnings to meet all outgoings of the joint relationship, including mortgage payments over the family home purchased with the husband as the only registered proprietor.
After about four years the relationship came to an end. The wife sought a declaration that she held an interest in the property in trust. The husband asserted that only he held the legal title to the property.
The court held that the wife held a beneficial interest in the property by way of constructive trust.
Per Mason CJ, Wilson and Deane JJ at 149:
“The case is accordingly one in which the parties have pooled their earnings for the purposes of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child. Their contributions, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation the appellant’s assertion, after the relationship had failed, that the Leumeah property, which was financed in part through the pooled funds, is his sole property, is his property beneficially to the exclusion of any interest at all on the part of the respondent, amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent.”
The High Court declared that the parties hold beneficial interests in the property of 55% to the husband and 45% to the wife, subject to adjustments.
Sydney, Australia
1300 00 2088
Montreal Protocol on Substances that Deplete the Ozone Layer
ON 16 SEPTEMBER 1987, the Montreal Protocol on Substances that Deplete the Ozone Lawyer was agreed.
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-2-a&chapter=27&lang=en
BA, LLB, Grad Cert Leg Prac, Acc Spec Lawyer
Williams v R [1987] HCA 36
ON 26 AUGUST 1987, the High Court of Australia delivered Williams v R [1987] HCA 36; (1986) 161 CLR 278 (26 August 1987).
Powers of arrest without warrant must be conducted strictly as they interfere with an individual’s liberty. The police must bring an arrested person before a justice without unreasonable delay. The police are not entitled to delay this process to allow time for further questioning or investigation. The police may not arrest a person for the purpose of questioning.
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Carter v Rafferty 826 F.2d 1299 (1987)
ON 21 AUGUST 1987, the United States Court of Appeals, Third Circuit delivered Carter v Rafferty 826 F.2d 1299 (1987).
http://law.justia.com/cases/federal/appellate-courts/F2/826/1299/321412/
Sydney, Australia
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Rogan v Director General of Technical and Further Education (1987) 10 NSWLR 348
ON 5 AUGUST 1987, the NSW Court of Appeal delivered Rogan v Director General of Technical and Further Education (1987) 10 NSWLR 348.
Per McHugh JA at 350:
“The pay of an employee is a wider concept than that of the salary applicable to the office which the employee holds. It concerns every payment made to the employee in his character as an employee in respect of the performance of the duties of his office or position. The allowance in this case was aid to the employee in his capacity as an employee in respect of his duties performed by him on behalf of the employer. That is sufficient to make the allowance part of the ‘pay of the employee'”.
Sydney, Australia
1300 00 2088
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