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Supreme courts roundup, 29 November to 5 December, 2019

05 December 2019

Decisions, proceedings and news from the highest courts in some common law jurisdictions in the last week are as follows:

Supreme Court of New Zealand

Misa v R [2019] NZSC 134 (2 December  2019). Unsuccessful appeal from the Court of Appeal.

The appellant unsuccessfully appealed to the Court of Appeal against his conviction on charges of acts of physical and sexual abuse – In the Court of Appeal the appellant argued that inadequate preparation prior to the trial meant that he had not had an effective defence and that there was new evidence which if admitted at trail would have affected the outcome – Interpretation of “miscarriage of justice” in s232 (4)(a) of the Criminal Procedure Act 2011 – Whether the new evidence would have made any material difference – Whether there was a miscarriage of justice at the appellant’s trial.

High Court of Australia

BMW Australia Ltd v Brewster; Westpac Banking Corp v Lenthall [2019] HCA 45 (4 December 2019). Successful appeals (majority) from the Supreme Court of New South Wales and the Federal Court of Australia.

Section 33ZF of Federal Court of Australia Act 1976 (Cth) and s 183 of Civil Procedure Act 2005 (NSW) provide that in representative proceeding court may make any order court thinks appropriate or necessary to ensure justice is done in proceeding – The representative proceedings commenced in Federal Court of Australia and Supreme Court of New South Wales – The proceedings were funded by litigation funders – The litigation funders entered into litigation funding agreements with small number of group members – The representative parties in each proceeding applied for common fund order – Whether s 33ZF of Federal Court of Australia Act and s 183 of Civil Procedure Act empower Federal Court of Australia and Supreme Court of New South Wales to make a common fund order.

New South Wales v Robinson [2019] HCA 46 (4 December 2019). Unsuccessful appeal (majority) from the Supreme Court of New South Wales.

Section 99(1) of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) provides that police officer may, without warrant, arrest person if police officer suspects on reasonable grounds that person is committing or has committed offence and police officer is satisfied that arrest is reasonably necessary for one or more specified reasons – Section 99(3) provides that police officer who arrests person under s 99 must, as soon as is reasonably practicable, take person before authorised officer to be dealt with according to law – The police officer had not formed intention to charge arrested person with offence at time of arrest – The police officer had not formed intention to bring the arrested person before an authorised officer to be dealt with according to law at time of arrest – The arrested person brought claim for damages for wrongful arrest and false imprisonment – Whether arrest unlawful.

Supreme Court of Canada

Kosoian v Société de transport de Montréal[2019] SCC 59 (29 November 2019). Successful appeal from a decision of the Court of Appeal for Quebec.

The appellant, K took the descending escalator in a subway station without holding the handrail - A police officer employed by the city, who had been designated as an inspector by the authority responsible for the subway system (STM), ordered her several times to hold the handrail, since the STM taught police officers that holding the handrail was an obligation under a by‑law - K refused to comply and to identify herself – The offence is non‑existent in law — The Police officer arrested and searched K – K brought civil liability action against police officer, his employer and public transit authority for which he acted as inspector — A trial judge dismissed the action, finding that the police officer had not committed any civil fault and that it was K who had behaved in an inconceivable manner by refusing to comply with the officer’s order - A majority of the Court of Appeal affirmed that decision -Whether police officer incurred civil liability and engaged his employer’s civil liability by acting as he did toward K — Whether citizen must bear share of liability because of her refusal to cooperate with police officer — Civil Code of Québec, art. 1457.

Desgagnés Transport Inc. v. Wärtsilä Canada Inc [2019] SCC 58 (28 November 2019). Successful appeal from the Court of Appeal for Quebec.

In October 2006, an accident damaged the crankshaft and the bedplate of the main engine of a shipping company’s ship - The shipping company opted to purchase a reconditioned crankshaft from a supplier - The parties entered into a contract which was formed in Montréal, Quebec, the supplier’s place of business - It contained a six‑month warranty, and limited the supplier’s liability to €50,000 - Ship’s main engine suffered major failure well after the warranty expired caused by latent defect in parts supplied - The shipping company commenced action against the supplier for damages and lost profit — Choice of law clause providing that laws in force in Quebec govern contract — The trial judge concluded that the crankshaft sold by the supplier contained a latent defect that caused the damage to the ship and then determined that the dispute was governed by the Civil Code of Québec (C.C.Q.), rather than Canadian maritime law - The majority of the Court of Appeal allowed the appeal in part finding that Canadian maritime law governed the dispute, and hence that the supplier was entitled to rely on the limitation of liability clause, which restricted its liability to €50,000 - Whether body of law governing dispute falls within federal power over navigation and shipping or provincial power over property and civil rights — Whether Canadian maritime law or Quebec civil law governs contract — Constitution Act, 1867, ss.91(10), 92(13) — Civil Code of Québec, art. 1733.

Hong Kong Court of Final Appeal

No decisions released during this period

Judicial Committee of the Privy Council

Nurse v Republic of Trinidad and Tobago [2019] UKPC 43
(28 November 2019). Unsuccessful appeal from the Court of Appeal of the Republic of Trinidad and Tobago.

On 10 July 2009 customs officers examined a container which had been imported into Trinidad and Tobago in the name of Canserve Limited - Contrary to a statement signed by Mr Nurse, the container held 51 gaming machines and associated items - Gaming machines are prohibited items under the Prohibition (Carriage, Coastwide, Importation and Exportation) Order 1992 - Canserve and Mr Nurse were charged with: making and subscribing a false declaration contrary to section 212(a) of the Customs Act; importing goods not corresponding to the customs declaration form, contrary to section 214 of the Customs Act; and importing prohibited goods, contrary to section 213(a) of the Customs Act - At trial the prosecution relied on an engineer’s report, which concluded that the machines were capable of accepting and dispensing coins and tokens - However, the engineer had been unable to operate the machines when he inspected them - After the prosecution witnesses had given evidence, the magistrate dismissed the charges on the basis that Canserve and Mr Nurse had no case to answer - The Court of Appeal allowed the appeal against that decision and ordered a retrial - What are the mental elements, if any, of the offences created by sections 212(a), 213(a) and 214 of the Customs Act (Ch. 78:01) – Whether the offences are offences of strict liability - Whether the Court of Appeal erred in applying a principle of attribution which resulted in Mr Nurse being treated as a principal, rather than as a secondary party whose liability depended on knowledge?

Singapore Court of Appeal

Oro Negro Drilling Pte Ltd v Integradora de Servicios Petroleros Oro Negro SAPI de CV [2019] SGCA 74 (27 November 2019). Successful appeal from the High Court’s decision to set aside an order granting leave to serve an originating summons out of Singapore. Injunctions granted against former directors and shareholder of Singapore companies for breaches of negative covenants.

The appellants (Singapore companies) owned and operated oil rigs in Mexico with the first appellants (Oro Negro) – The respondents owned an oil rig each (the rigs) – Whether the appellants had a good arguable case against the respondents as regards the breach of the negative covenant.

Liew Kit Fah v Koh Keng Chew [2019] SGCA 78 (27 November 2019). Successful appeal (majority) from the High Court.

Section 216 of the Companies Act (Cap 50, 2006 Rev Ed) (Companies Act) provides a statutory remedy for an oppressed minority shareholder to exit from the company in question – The most common remedy is where the delinquent majority shareholder buys out the oppressed minority shareholder – Less common, is where parties agree to dispense with the issue of liability for oppression on condition that the majority shareholder makes no admission of liability, and proceed instead on the question of valuation of the subject shares – In this case the minority agreed to dispense with the oppression suit and to part company with the majority, both parties wanted to buy out the other - Whether the Buyout Order was made pursuant to the court’s powers under s 216(2) of the Companies Act - Whether the terms of the Consent Order rendered the sale of the respondents’ shares in the Samwoh Group to the appellants akin to a sale between a willing seller and a willing buyer - Whether discounts for lack of control and lack of marketability ought to be applied to the valuation of the respondents’ shares in the Samwoh Group.

Armstrong, Carol Ann (executrix of the estate of Peter Traynor) v Quest Laboratories Pte Ltd [2019] SGCA 75 (26 November 2019).Successful appeal from the High Court. The respondents’ negligence caused the deceases to lose his full life expectancy (compared to four years of his life).

The appellant, the widow of the deceased (Mr Traynor) brought a suit on behalf of Mr Traynor’s estate against the respondents (Quest) and Dr Tan Hong Wui alleging that their negligence had caused Mr Traynor’s death – Mr Traynor had a mole removed and the respondents reviewed the lab results and confirmed that it was not malignant – The tumour was malignant and Mr Traynor died from metastatic melanoma four years later – The High Court found that the respondents’ breach was straightforward and obvious, but rejected the appellant’s claim that Mr Traynor would have need cured and instead found he would only have lived for four more years – Discussion of principles of causation in medical negligence, the use of statistical evidence, and dependence and loss of inheritance claims.

Harmonious Coretrades Pte Ltd v United Integrated Services Pte Ltd [2019] SGCA 77 (26 November 2019). Successful appeal from a decision of the High Court setting aside a final garnishee order.

The respondent, United Integrated Services Pte Ltd (UIS), was the main contractor for a construction project - It engaged a third party, Civil Tech Pte Ltd (CTPL), to carry out construction works for the project - CTPL in turn engaged the appellant, Harmonious Coretrades Pte Ltd (HCPL), as its sub-contractor – The appellant obtained a final garnishee order against the respondent – The respondent applied to set aside the Final garnishee order on the ground that the debt which it owed to a third party, CTPL – In what circumstances can the court set aside a final garnishee order.

Supreme Court of the United Kingdom

MacDonald v Carnbroe Estates Ltd [2019] UKSC 57 (4 December 2019). Partially successful appeal from the Inner House. Case remitted to the First Division of the Inner House to consider the appropriate remedy under s242(4) of the Insolvency Act 1986.

The respondents (the pursuers) are the joint liquidators of a company (Grampian) which was in business as a provider of distribution services in Scotland and the wider UK - In 2014 it encountered very serious financial difficulties and was unable to meet its payments to its creditors, National Westminster Bank Plc (NatWest) and HMRC - In 2005 NatWest had financed Grampian’s purchase of its business premises (the Property) and had retained various security interests over Grampian’s assets - In 2014 NatWest was threatening to enforce its securities if Grampian did not meet its monthly repayment obligations to NatWest - In August 2014 Grampian sold the Property to the appellant (the defender) for the sum of £550,000, most of which Grampian immediately paid to discharge in full its debt to NatWest - Grampian did not have enough remaining assets to discharge fully its debt to HMRC - Valuations of the Property in 2013 and 2014 had estimated a sale price of £1,200,000 if the Property were sold on the open market or, if a restricted marketing period of 180 days were assumed, a sale price of £800,000 - The respondent liquidators of Grampian commenced proceedings seeking reduction of the disposition of the Property to the appellant, on the basis that the sale was at a significant undervalue and therefore was a "gratuitous alienations" under section 242 of the Insolvency Act 1986 - The judge in the commercial court heard expert evidence from two surveyors. Their evidence was that the price of £550,000 was significantly below market value, but neither accepted the price of £550,000 was unreasonable in the circumstances - The respondents reclaimed (appealed) to the Inner House of the Court of Session, which reversed the decision of the commercial judge - Whether the sale of premises was a "gratuitous alienation" under section 242 of the Insolvency Act 1986.

Supreme Court of the United States

No decisions released during this period

Last updated on the 5th December 2019