court appeal – Prosecute Bush Cheney http://prosecutebushcheney.org/ Sun, 17 Apr 2022 08:28:00 +0000 en-US hourly 1 https://wordpress.org/?v=5.9.3 https://prosecutebushcheney.org/wp-content/uploads/2021/08/cropped-icon-32x32.png court appeal – Prosecute Bush Cheney http://prosecutebushcheney.org/ 32 32 Civil Law – Scope of interference limited by Court of Appeal with temporary injunction passed by Magistrate’s Court: High Court of Rajasthan https://prosecutebushcheney.org/civil-law-scope-of-interference-limited-by-court-of-appeal-with-temporary-injunction-passed-by-magistrates-court-high-court-of-rajasthan/ Sun, 06 Feb 2022 08:00:00 +0000 https://prosecutebushcheney.org/civil-law-scope-of-interference-limited-by-court-of-appeal-with-temporary-injunction-passed-by-magistrates-court-high-court-of-rajasthan/ The High Court of Rajasthan, Jaipur observed that the scope of interference by the appellate court is limited where the magistrate court has exercised its discretionary and equitable jurisdiction to grant the temporary injunction in favor of the plaintiff and against the plaintiffs. defendants. Judge Sudesh Bansalwhile having the means, observed, “This Court is of […]]]>

The High Court of Rajasthan, Jaipur observed that the scope of interference by the appellate court is limited where the magistrate court has exercised its discretionary and equitable jurisdiction to grant the temporary injunction in favor of the plaintiff and against the plaintiffs. defendants.

Judge Sudesh Bansalwhile having the means, observed,

“This Court is of the considered opinion that this is not a case where the Court of Appeal should exercise its power to interfere with the temporary injunction order made by the trial court. Thus, no interference is necessary with the contested order and, therefore, the appeal is hereby dismissed.”

In the present case, the petitioner challenged an order under which a request filed under Ordinance 39 Rules 1 & 2 CPC was granted and during the trial of the civil action for specific execution filed by the respondent no. 1-plaintiff, the appellants-the defendants were forced not to transfer the disputed land and to maintain the status quo until the decision of the civil action.

The consideration before this Court is that where the trial court has exercised its discretionary and equitable jurisdiction to grant the temporary injunction in favor of the plaintiff and against the defendants, should this Court interfere with the temporary injunction order made by the trial court, under its appellate jurisdiction?

The court held that under Ordinance 39, Rules 1 and 2 CCP, it is res integra that if the trial court has exercised its discretion in granting an injunction, the jurisdiction of the Court of Appeal to interfere is very limited. The court observed that interference can only be made in situations where the Court of Appeal is satisfied that the trial court acted arbitrarily or contrary to law or that the findings of the trial court are perverse or capricious, patently incorrect and totally indefensible. If the view taken by the trial court is a possible view, there is no need for the Court of Appeal to interfere with it, the court added.

The court was of the view that the issues raised by the appellant in this Court, disputing either questions of fact or questions of law, can be decided by the trial court during the trial at the proper stage and it is not not permitted in law to usurp the jurisdiction of the trial court by the appellate court, while exercising its appellate jurisdiction against the order granting the interim injunction.

The court reiterated that all of these factual and legal issues can be considered by the trial court during the trial and after recording the parties’ evidence. The court added that in this case, the trial court cannot be said to have exercised its discretion and fair jurisdiction in an arbitrary and capricious manner. The contested order cannot be qualified as an abusive order or is vitiated by serious illegality or a jurisdictional error; moreover, the view taken by the trial court is not an impossible view, the court observed.

The court relied on Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass (2004)in which Apex Court held that unless and until a case of irreparable loss or damage is established by a party to the suit, the court should not allow the nature of the property to be altered, which which also includes alienation or transfer of ownership which may lead to loss or damage to the party who may ultimately prevail and may further lead to multiplicity of proceedings.

In addition, we also relied on Dev Prakash vs. Indra (2018) in which the Supreme Court observed that the very essence of the concept of temporary injunction and receivership for the duration of a civil litigation involving property is to prevent its threat of waste, damage and alienation by any party thereto, to the immeasurable prejudice of the other party or to make the situation irreversible not only to influence the final decision but also to render illusory the reparation granted.

The court observed that prima facie consideration must also be given to the nature of the loss, harm or injury that would be caused to the party if they were restrained by temporary injunction during the trial.

The court observed that the trial court’s order was eloquent and reasoned, as the trial court found that there was a prima facie case in favor of the plaintiff, after weighing the respective pleadings, documents and other present circumstances. Apart from the prima facie case, the trial court also independently dealt with the points of balance of convenience and irreparable harm, the court added.

Appearing for the appellant, Adv. Sukriti Kasliwal argued that the trial court committed gross illegality and perversity in granting the injunction in the present case, while the civil suit for specific execution itself is bad in law and is not likely to succeed on the merits, therefore, the plaintiff was not entitled to any temporary joinder in his favor.

Case title: Rudresh Jhunjhunwala and Ors. vs. Satish Kumar and Ors.

Citation: 2022 LiveLaw (Raj) 54

Click here to read/download the judgment

]]>
Contemporary Common Law Developments in Contract Law: Implications for Reform in Malaysia – Mary Lim | What you think https://prosecutebushcheney.org/contemporary-common-law-developments-in-contract-law-implications-for-reform-in-malaysia-mary-lim-what-you-think/ Thu, 09 Dec 2021 00:02:10 +0000 https://prosecutebushcheney.org/contemporary-common-law-developments-in-contract-law-implications-for-reform-in-malaysia-mary-lim-what-you-think/ [ad_1] DECEMBER 9 – There is an appointment by His Majesty the King of a person known as the Law Revision Commissioner. This appointment is made under a little-known law called the Law Revision Law of 1968 or Law 1. The Law Revision Commissioner has the primary power and function of reviewing and reprinting all […]]]>


[ad_1]

DECEMBER 9 – There is an appointment by His Majesty the King of a person known as the Law Revision Commissioner. This appointment is made under a little-known law called the Law Revision Law of 1968 or Law 1.

The Law Revision Commissioner has the primary power and function of reviewing and reprinting all laws passed by Parliament and this includes all laws prior to Merdeka.

Revision is essentially an exercise in updating our laws and keeping in our treasury only those laws that are still in force with a language in tandem with current legislation.

One would have thought that this exercise should be done by Parliament or the legislative assemblies of the respective states since all laws are promulgated by Parliament. Under Law 1, this function of reviewing our laws is left in the hands of the Law Review Commissioner.

Here is an example of the powers of the commissioner. The Commissioner may omit from any revised law, for example:

* Any provision which has ceased to have effect;

* Any preamble or part of a preamble of a law;

* Any adoption clause;

* Any part of a law which can be more conveniently included as subsidiary law.

In this revision exercise, the commissioner can even add a long or short title or modify an existing title; provide or modify tables of contents, consolidate or divide into one or more laws; transfer any provision of one statute to another statute to which that provision more correctly belongs; modify, insert or omit punctuation marks.

There is more; a total of about 24 powers. But, there is a strict prescription to all of these powers.

The Commissioner is expressly informed that the powers conferred “should not be interpreted as implying a power to make modifications or modifications to the substance of a law”.

In 2006, I was appointed Commissioner of Law Revision or CLR as the position is more commonly known. But, I wasn’t just the CLR.

Four years earlier, the CLR had taken on an additional portfolio and had become the Law Review and Reform Commissioner. The Research Unit of the Public Prosecutor’s Office is placed under the supervision of the CLR.

Thus, the task of law reform came under the auspices of the CLR. However, until that date, Act 1 and the appointment of the CLR remain unchanged; and I understand that there is yet another research unit at AGC.

Why am I referring to the office of the CLR and the powers granted under Act 1 to the CLR as we are here this morning on the cases of the Contracts Act 1950 and more specifically, the development of contemporary customary law in Malaysia?

Perhaps its relevance will become clearer when we understand the broader intent of this round of talks.

English commercial law was first introduced into the Straits Settlements through the Civil Law Ordinance of 1878. In 1899, the Contract Act, modeled on the Indian Contract Act of 1872, was adopted. then promulgated.

It applied to the four Federated Malaysian States. This law was later extended to the non-federated Malaysian states through the Contracts Ordinance of 1950.

The contracting ordinance was then revised under the powers that I explained a moment ago. With effect from July 1, 1974, the Contracts Ordinance became the Contracts Act 1950 and constitutes Act 137 of the Malaysia series of laws.

The Indian contract law is said to be in fact “a code of English law”. Our contract law should not be viewed any differently. As a Code, one should be able to find all the answers in its pages.

Yet, as you will hear, the contracting parties have repeatedly called upon our courts to the common law for assistance, for development. For example, our provisions on coercion [section 15 of the Contracts Act] are said to be archaic, disregarding commercial realities and pressures, that economic constraint must be properly recognized.

In the recent decision of Pakistan International Airline Corporation v Times Travel (UK) Ltd [2021] UKSC 40, [2021] 3 WLR 727, the English courts have even recognized the concept of a lawful act of economic coercion.

Likewise, the concepts or at least the arguments of inequity and unequal bargaining have been left out, namely that our existing article 16 on “abuse of influence” would simply be inadequate to deal with modern quarrels in law and order. conference rooms.

So in Saas Marwi vs. Chan Hwan Hua [2001] 3 CLJ 98, the Court of Appeal suggested that “we should recognize the broader doctrine of unequal bargaining power. We can adopt the English doctrine of unconsciousness in toto ”. The Court of Appeal held that this was a choice available under section 3 of the Civil Law Act 1956. [Act 67].

What about the treatment of illegality as addressed by the Supreme Court in Patel vs. Mirza [2016] UKSC 42 – is it within the scope of article 24? What about the law of restitution, of unjust enrichment?

Does this fall under the law or have we pushed its terms beyond its limits? The recent Federal Court decision in Cubic Electronics Sdn Bhd vs. Mars Telecommunications Sdn Bhd [2019] 6 MLJ 15 has satisfactorily terminated the damages position; is it in tandem with the rest of the other common law jurisdictions.

The contracting parties have repeatedly called on our courts to use the common law for assistance, for development.  - Photo by Yusof Mat Isa
The contracting parties have repeatedly called on our courts to use the common law for assistance, for development. – Photo by Yusof Mat Isa

Another example is electronic transactions. If one looked to the requirements of the law on forming a valid and concluded agreement, and by the time one arrives at it, it is more likely than not that the many parties involved in an electronic transaction or a web contract have already clicked and sent a response via the impossible algorithms.

How many of us have really gone through and read the countless terms and conditions before clicking the “I agree” or “I agree” or even “Pay” button? The fear is that this law of the last century will not be able to resolve the disputes that arise from these e-commerce transactions.

There is certainly more.

It is clear and obvious that the law on contracts needs revision, and swiftly. And the revision of the Law on Contracts, a law that regulates and underpins many fundamental aspects of our daily lives, our businesses, our industry, our government and more; cannot be left to the court. Court observations can be challenged as obiter or worse, by carelessness. There are only limits that the courts can model on the facts in order to do justice.

The revision of our law on contractual obligations to take into account and accommodate developments in Common Law must be undertaken in a responsible manner, through agreement and discourse; extensive, in-depth and refined deliberations by appropriate experts; many of whom are already attending this webinar and those to come in the coming days.

This task fits perfectly into the additional function of the CLR, that of reform. But, as I pointed out at the beginning, this task can, with respect, go beyond the powers of the CLR; certainly not as a review exercise, but as a reform project.

In the UK, reform matters are by statute the responsibility of the Law Reform Commissioner. A sitting judge of the Court of Appeal directs this appointment. Sir Nicholas Green is assisted by an independent and permanent secretariat

In fact, just last week the Law Commission “confirmed that existing law in England and Wales is capable of adapting and applying to smart legal contracts, without the need for reform statutory law. The Law Commission notes that in some contexts a progressive development of the common law is all that is needed to facilitate the use of smart legal contracts within the existing legal framework.

We need this. We need an independent legal commission to undertake all the reforms.

Its urgent work will then be able to integrate all the studies and recommendations which, it is hoped, will result from this series for greater confidence in the evolution of our law of contractual obligations; that law and common law can really be ad ditto.

* Datuk Mary Lim Thiam Suan is a judge at the Federal Court of Malaysia and here is her remarks delivered at the Faculty of Law of the University of Malaysia on December 4th.

** This is the personal opinion of the author or post and does not necessarily represent the views of Malaysian courier.

[ad_2]

]]>
The Opportunities and Challenges of Applying Common Law Principles to a Multicultural Nation – Family and Marriage https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation-family-and-marriage/ https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation-family-and-marriage/#respond Wed, 15 Sep 2021 12:39:48 +0000 https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation-family-and-marriage/ [ad_1] Canada: The opportunities and challenges of applying common law principles to a multicultural nation September 15, 2021 Clark Wilson LLP To print this article, simply register or connect to Mondaq.com. The common law legal system builds on itself, with higher courts setting a precedent for lower courts and so on. As society evolves, so […]]]>


[ad_1]

Canada: The opportunities and challenges of applying common law principles to a multicultural nation

To print this article, simply register or connect to Mondaq.com.

The common law legal system builds on itself, with higher courts setting a precedent for lower courts and so on. As society evolves, so does the common law, but some traditional legal tests remain in place long after societal norms have advanced. This can cause problems when trying to apply traditional legal tests to modern society. A recent decision of the British Columbia Court of Appeal, Kaur vs. Singh 1, demonstrates the importance of the contextual application of traditional common law principles in a multicultural nation.

The appellant, Ms. Kaur, and the respondent, Mr. Singh, celebrated a civil marriage on February 6, 2019 so that the parties began to live together. Their plan was to delay the consummation of the marriage until after their traditional Gurdwara ceremony, in accordance with the Sikh religion. While living together, the relationship became difficult and the sanity of the parties declined. The relationship ended, and Kaur made an unchallenged request to have the civil marriage annulled for non-consummation. The lower court dismissed the petition, stating that the parties had failed the required legal test as they both agreed that there was no physical, physiological or psychological reason not to consummate the marriage.2. Ms. Kaur appealed.

The Court of Appeal: A Contextual Approach to Traditional Legal Principles

The Honorable Justice Grauer reviewed the nearly 80-year-old Supreme Court of Canada decision in Heil vs. Heil 3, which is still authoritative for the principle according to which, in order to obtain the cancellation for non-consumption, it is necessary to provide proof of some incapacity, “which is in certain cases a structural defect, but which can also result from a condition, with the effect of creating in the mind of the [individual] an aversion to the physical act of consumption “4. Contemporary jurisprudence has clarified that there must be a real incapacity which is not “a mere capricious refusal”5, and this incapacity may be the result of impotence or other disabilities that are physical, or of a psychological and emotional nature.

The Court concluded that the common law principles in Kaurrequired a contextual application to reflect the multicultural society in which we live. A sincere religious and cultural belief can be regarded as a psychological incapacity in accordance with the evolution of legal principles 6to justify the cancellation. The evidence established that the management of the relationship was based on the religious and cultural considerations of the parties. The Court found that “[t]The real aversion to consumption arose out of their religious beliefs, creating a real incapacity “7. The lower court did not sufficiently take into account that the parties’ agreement to abstain reflected an underlying aversion to consumption before completing the traditional Sikh Gurdwara ceremony – and that “[t]his belief pre-existed the interpersonal struggles between the parties “8.

Importantly, the Court advised any future party to present evidence of distinct cultural and religious norms where those norms may influence and impact the conduct of the parties. A diverse understanding of religion and respective practices can be helpful for a judge and educational for those who adjudicate similar cases afterwards.

Footnotes

1 Kaur v. Singh, 2021 BCCA 320 [Kair].
2 Same as 8.
3 Heil v. Heil, [1942] RCS 160 [Heil].
4 Ibid. p. 163.
5 Kaur, supra note 1 to 16.
6 See generally Jomha v. Jomaa, 2010 ABQB 135; Grewal v. Sohal, 2004 BCSC 1549.
7 Kaur, supra note 1 to 20.
8 Kaur, supra note 1 to 24.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

POPULAR ARTICLES ON: Canadian Family and Marriage

So, you haven’t done a power of attorney?

O’Sullivan Estate Lawyers LLP

In our review “Planning for Disability Using a Power of Attorney”, we discuss the benefits of having a power of attorney for personal care (medical and other decisions) and for property …

If you die rich, have you failed?

Dentons

Recently, James Bond actor Daniel Craig made headlines when he said the inheritances were “unpleasant” and noted that he planned to dispose of his estimated $ 160 million fortune before his move. dead.

Cross-border domestic contracts

O’Sullivan Estate Lawyers LLP

There are many considerations that go into making the decision to move to a new jurisdiction. Which might not be that obvious, or sadly it might even be at the bottom of the to-do list …

[ad_2]

]]>
https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation-family-and-marriage/feed/ 0
The opportunities and challenges of applying common law principles to a multicultural nation https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation/ Mon, 13 Sep 2021 07:00:00 +0000 https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation/ [ad_1] The common law legal system builds on itself, with higher courts setting a precedent for lower courts and so on. As society evolves, so does the common law, but some traditional legal tests remain in place long after societal norms have advanced. This can cause problems when trying to apply traditional legal tests to […]]]>


[ad_1]

The common law legal system builds on itself, with higher courts setting a precedent for lower courts and so on. As society evolves, so does the common law, but some traditional legal tests remain in place long after societal norms have advanced. This can cause problems when trying to apply traditional legal tests to modern society. A recent decision of the British Columbia Court of Appeal, Kaur vs. Singh [1], demonstrates the importance of the contextual application of traditional common law principles in a multicultural nation.

The appellant, Ms. Kaur, and the respondent, Mr. Singh, celebrated their civil marriage on February 6, 2019 so that the parties began to live together. Their plan was to delay the consummation of the marriage until after their traditional Gurdwara ceremony, in accordance with the Sikh religion. Living together, the relationship became difficult and the sanity of the parties declined. The relationship ended, and Kaur made an unchallenged request to have the civil marriage annulled for non-consummation. The lower court dismissed the petition, stating that the parties had failed the required legal test as they both agreed that there was no physical, physiological or psychological reason not to consummate the marriage. [2]. Ms. Kaur appealed.

The Court of Appeal: A Contextual Approach to Traditional Legal Principles

The Honorable Justice Grauer reviewed the nearly 80-year-old Supreme Court of Canada decision in Heil vs. Heil [3], which is still authoritative for the principle according to which, to obtain the cancellation for non-consumption, it is necessary to provide proof of some incapacity, “which in certain cases is a structural defect, but which can also result from mental incapacity. condition, with the effect of creating in the mind of the [individual] an aversion to the physical act of consumption ” [4]. Contemporary jurisprudence has clarified that there must be a real incapacity which is not “a simple capricious refusal” [5], and this incapacity may be the result of impotence or other disabilities that are physical, or of a psychological and emotional nature.

The Court found the principles of common law in Kaur required a contextual application to reflect the multicultural society in which we live. A sincere religious and cultural belief can be regarded as a psychological incapacity in accordance with the evolution of legal principles [6] to justify the cancellation. The evidence established that the management of the relationship was based on the religious and cultural considerations of the parties. The Court concluded that “[t]The real aversion to consumption arose out of their religious beliefs, creating a real incapacity ” [7]. The lower court did not sufficiently take into account that the parties’ agreement to abstain reflected an underlying aversion to consumption before completing the traditional Sikh Gurdwara ceremony – and that “[t]his belief pre-existed the interpersonal struggles between the parties ” [8].

Importantly, the Court advised any future party to present evidence of distinct cultural and religious norms where those norms may influence and impact the conduct of the parties. A diverse understanding of religion and respective practices can be helpful for a judge and educational for those who adjudicate similar cases afterwards.

[ad_2]

]]>
Common law applies “in accordance with cultural norms” of parties seeking annulment: court https://prosecutebushcheney.org/common-law-applies-in-accordance-with-cultural-norms-of-parties-seeking-annulment-court/ https://prosecutebushcheney.org/common-law-applies-in-accordance-with-cultural-norms-of-parties-seeking-annulment-court/#respond Wed, 08 Sep 2021 12:57:00 +0000 https://prosecutebushcheney.org/common-law-applies-in-accordance-with-cultural-norms-of-parties-seeking-annulment-court/ [ad_1] The British Columbia Court of Appeal allowed annulment of the marriage on the grounds that the union was not consummated, stressing the “role that an honest and sincere religious belief can play in determining incapacity. “. In Kaur vs. Singh, 2021 BCCA 320, the court heard that the appellant, Prabhjot Kaur, had met her […]]]>


[ad_1]

The British Columbia Court of Appeal allowed annulment of the marriage on the grounds that the union was not consummated, stressing the “role that an honest and sincere religious belief can play in determining incapacity. “.

In Kaur vs. Singh, 2021 BCCA 320, the court heard that the appellant, Prabhjot Kaur, had met her spouse, the respondent, Gurvinder Partap Singh, at Selkirk College, where they were both students.

According to court documents, the two “decided to get married and did so in a civil ceremony held on February 6, 2019”.

“Their plan,” said the appellant, was “to delay the consummation of the marriage until after the Sikh religious ceremony which they planned to undergo later, in accordance with their tradition.”

Kaur explained that the couple “wanted to get married in a civil ceremony so that they could live together, which would be against their religion, but postponed the consumption until they had undergone a traditional Gurdwara ceremony.”

According to court documents, the couple lived in the same house, which they shared with friends, but they lived “separately”. The appellant testified that the relationship was in trouble and that the couple would have “a lot of arguments”.

The marriage was still not consummated when the appellant left the house. “It was effectively the end of the relationship,” the court noted.

Kaur asked for “a declaration annulling her civil marriage with the respondent” citing “non-consummation” as a reason. However, Justice J. Miriam Gropper of the British Columbia Supreme Court dismissed the motion.

According to court documents, Justice Gropper “accepted that there was no consummation of the marriage, but found that the parties had failed to meet the common law requirement of non-consummation resulting from a physical or psychological disability ”.

On appeal, Kaur argued that Gropper J. erred in failing to “give proper weight to the appellant’s belief in the necessity of a Sikh Gurdwara ceremony prior to consumption”; by failing to “take into consideration the consent of the respondent; ”And“ by concluding that there was no psychological disability ”.

Justice J. Christopher Grauer, writing for the Court of Appeal, noted that “the founding Canadian decision on annulment is Heil vs. Heil, [1942] RCS 160.

“Although seminal, it must be recognized as reflecting notions of gender roles which are now outdated,” he said.

In Heil, explained Judge Grauer, the Supreme Court ruled that: “The simple refusal of a woman to have marital relations because of her whim is not a sufficient reason to justify a judgment of nullity of the marriage; there must be some disability, which in some cases is a structural defect, but in some cases may result from a mental state creating an invincible aversion to the physical act of consuming. Such a mental state can be inferred from the proven facts, and justifies a decree of annulment of marriage.

Heil settled the law, “he noted,” and set out the test for granting an annulment order: there must be some disability, “which in some cases is a structural defect, but which can also result from a mental disorder. condition, with the effect of creating in the mind of the woman an aversion to the physical act of consumption. “

The judge acknowledged that the British Columbia Court of Appeal “upheld the Heil test in Juretic vs. Ruiz, 1999 BCCA 417, and in KHL vs. GQL, 2003 BCCA 313.

However, Judge Grauer wrote, “in the multicultural society reflected in our nation, the common law principles at issue here must be applied contextually, in accordance with the cultural norms of the parties seeking annulment.”

“This has been explored in Jomha [v. Jomaa 2010 ABQB 135], “he added.” I consider that a psychological disability consistent with the principles discussed in these cases can arise as significantly from sincere religious and cultural beliefs as other forms of psychological aversion, both of which are, contextually, a ” normal and predictable reaction ‘as discussed in Grewal [v. Sohal 2004 BCSC 1549]. “

“In this case, IMHO, the judge focused too much on the physical and psychological aspects of capacity in the traditional sense discussed in the cases. In this way, she did not fully appreciate, as we now must, the role that an honest and sincere religious belief can play in the determination of incapacity, ”said Judge Grauer.

The judge determined that the evidence “established that the parties’ decisions on how to manage their relationship were based on religious and cultural considerations.”

“They wanted to live together, but according to their cultural norms, they couldn’t do it without ceremony. Hence the civil ceremony. But once living together, they could not consummate the marriage in accordance with their religion until they underwent the traditional Sikh Gurdwara ceremony, and therefore did not consummate it. Although they had other reasons, including avoiding pregnancy, these did not require non-use. The real aversion to consumption arose from their religious beliefs, creating a real incapacity, ”he added.

Judge Grauer also pointed out that “it would have been useful for the judge, and would be useful for such cases in the future, to have more precise evidence concerning the cultural and religious norms of the parties and, above all, the manner and the extent to which these norms impacted the non-consummation of marriage.

“The applicant for annulment based on a psychological inability to consume, whether based on a sincere religious belief or otherwise, must establish a disability on the balance of probabilities,” he noted.

Judge Grauer, with the consent of Justices Peter Willcock and Joyce DeWitt-Van Oosten, decided to allow the appeal and annulled the marriage in a decision released on August 27.

Georgialee Lang, Independent Family Lawyer

Georgialee Lang, a freelance family law practitioner in Vancouver, said her first impression was that the BC Supreme Court chambers judge “was applying the law correctly.”

“Although these cases are relatively rare, it is clear that this decision is important,” she said, noting that the Court of Appeal “advanced the law to include religious and cultural beliefs as factors that shape an individual’s emotional and psychological mind and spirit.

“As the [British Columbia Court of Appeal] identified, the aversion to wholeness stemmed from the appellant’s religious beliefs, and the court recognized the powerful role that religion plays in the lives of those who are committed to the tenets of their faith. I think this case may have implications for other areas of law where arguments based on faith and culture are at play, ”she added.

Ari Wormeli, family lawyer and partner at YLaw in Vancouver, believes that “this decision is actually going to affect fewer people than it looks.”

“While the step of viewing a conscious and voluntarily assumed impediment (adherence to a set of religious principles) as ‘invincible aversion’ in the same way as, for example, the inability to achieve an erection unconsciously and unintentionally caused by psychological trauma could be considered a significant change, and although I am not an expert on religions or other philosophies, note that this was based on very narrow grounds and likely will not have wide application , at least not as it is, ”he explained.

“This is because when a lot of people get married, they have the religious ceremony around the same time,” Wormeli added, noting that “in this case, it didn’t happen”.

As an example, Wormeli explained that “if a Catholic person says, ‘No sex before marriage’ and then marries in a church ceremony, they will not be able to avail themselves of this new decision. because his religious principles are no longer an obstacle. “

“In terms of lessons for lawyers, it is that unusual bets sometimes pay off in terms of widening the eyes of the courts,” he added, noting that “it is conceivable in the future that this voluntary assumption of involuntary principles (i.e., you can choose to be a Jew, and in particular an Orthodox Jew, in which case wearing the kippah becomes obligatory if you are male) can be used to open again plus the door.

“If you see an angle of attack that has not been tried (especially a legal argument, where the standard is fairness and you don’t have to worry about deference) and you have a client who is ready to take that risk, go for that, ”he said.

Regarding takeaways in the future, Wormeli said “the question would be: if my client doesn’t fit into what I’ll call the ‘traditional’ cancellation categories, but wants everything Likewise a cancellation, you might delve into how your client’s reasons for not consummating the relationship might equate to the voluntary assumption of a previously dictated set of principles.

“In order to be really careful, if possible, expert evidence could be presented (from a religious leader or possibly a professor of philosophy) regarding the requirement for followers of a certain belief system to follow certain restrictions, ”he added.

Counsel for the appellant did not respond to the request for comment. The respondent represented himself on appeal.

If you have any information, ideas for articles or tips for The Lawyer Daily please contact Amanda Jérôme at Amanda.Jerome@lexisnexis.ca or dial 416-524-2152.

[ad_2]

]]>
https://prosecutebushcheney.org/common-law-applies-in-accordance-with-cultural-norms-of-parties-seeking-annulment-court/feed/ 0
The High Court concludes that the common law ‘necessary or proper party’ gateway for service out of court does not apply where the principal defendant has voluntarily submitted to the jurisdiction of the court https://prosecutebushcheney.org/the-high-court-concludes-that-the-common-law-necessary-or-proper-party-gateway-for-service-out-of-court-does-not-apply-where-the-principal-defendant-has-voluntarily-submitted-to-the-jurisdiction-of/ Wed, 18 Aug 2021 07:00:00 +0000 https://prosecutebushcheney.org/the-high-court-concludes-that-the-common-law-necessary-or-proper-party-gateway-for-service-out-of-court-does-not-apply-where-the-principal-defendant-has-voluntarily-submitted-to-the-j The High Court has held that the “necessary or proper party” gateway contained in CPR Practice Direction 6B, Section 3.1(3) does not apply where the principal defendant has voluntarily submitted to the jurisdiction of the court: ID versus LU and BZ [2021] EWHC 1851 (Comm). In a case in which neither party was domiciled or […]]]>

The High Court has held that the “necessary or proper party” gateway contained in CPR Practice Direction 6B, Section 3.1(3) does not apply where the principal defendant has voluntarily submitted to the jurisdiction of the court: ID versus LU and BZ [2021] EWHC 1851 (Comm).

In a case in which neither party was domiciled or resident in England, and the subject matter of the dispute related exclusively to Ukraine, the High Court confirmed that this gateway should not be applied in such a way as to allow a party unconnected with the jurisdiction to sue in England against their will solely because of another defendant’s willingness to submit to the jurisdiction for their own reasons.

Following the end of the Brexit transition period on 31 December 2020, common law gateways for service out of court with leave of court have gained in importance, as they apply to defendants domiciled in the EU as well as non-EU defendants (unless there is a jurisdiction clause in favor of the English court, in which case proceedings can be served without the need to obtain permission from the court) .

It is therefore helpful that the High Court has confirmed that a plaintiff seeking leave from the court under the “necessary or proper party” gateway cannot rely on a principal defendant who has voluntarily submitted to jurisdiction. but which could not otherwise have been served in accordance with the CPR. It should be noted, however, that the claimant has applied for leave to appeal against the High Court‘s decision.

context

The plaintiff and the two defendants (D1 and D2) were Ukrainian nationals. The plaintiff and D2 were both domiciled and residing in Ukraine. D1 was domiciled in an EU Member State.

After issuing the claim form, the claimant sent a copy of the claim form and claim details to D1. D1 acknowledged service and in doing so voluntarily submitted to the jurisdiction of the English court.

Plaintiff subsequently obtained leave to serve the Out of Jurisdiction Proceedings on D2, primarily on the basis that D2 was a “necessary or proper party” to the claim brought against D1 for the purposes of CPR Practice Direction 6B, subsection 3.1(3) . This provides, insofar as it is material:

“3.1 The plaintiff may serve a claim form out of jurisdiction with leave of the court under Rule 6.36 where – …

3) A claim is made against a person (“the defendant”) on whom the claim form has been or will be served (other than on the basis of this paragraph) and –

(a) there is a genuine dispute between the plaintiff and the defendant that it is reasonable for the court to decide; and

(b) the applicant wishes to serve the application form on another person who is a necessary or appropriate party to this application. »

D2 sought to have the order authorizing service and purported service on D2 set aside. D2 also sought a declaration that the English court lacked jurisdiction to adjudicate the claim against D2 or, in the alternative, that the English court should not exercise any jurisdiction it might have.

D2 argued that the applicant was not entitled to invoke subsection 3.1(3), essentially, because at the time D1 was sent, the application form and details of the D1 application could not be validly served under the CPR. Indeed, D1 had an irrefutable objection to jurisdiction by reference to Article 4 of the recast Brussels Regulation (EU) No 1215/2012, which required that he be sued before the courts of the Member State of EU in which he was domiciled (subject to exceptions provided for in the regulations, which did not apply here).

Decision

The High Court (His Honor Judge Pelling QC sitting as High Court Judge) granted D2’s claim on the grounds that: (a) the gateways relied on by the claimant were not available in the circumstances; and (b) in any event, it was clear in all the circumstances that England and Wales was not the appropriate place to make the claim.

Gateway “Necessary or appropriate part”

D2 relied on the decision of the House of Lords in John Russell and Company Ltd v Cayzer Irvine and Company Ltd [1916] 2 AC 298. This was a case tried under the old Rules of the Supreme Court (RSC) rather than the CPR and therefore the High Court had to decide whether John Russell still applied.

The relevant CBC permitted service out of jurisdiction where: “any person out of jurisdiction is a necessary or proper party to an action duly brought against another person duly served in the jurisdiction”.

John Russell was a claim against two registered Scottish companies. The first defendants decided to submit to the jurisdiction of the English court and the plaintiff then served the second defendants in Scotland. The second defendants sought to have service of the proceeding set aside on the ground that the action had not been “properly brought against another person duly served in the jurisdiction”. The House of Lords agreed, holding that a party unconnected with the jurisdiction should not be engaged against their will in litigation in that jurisdiction other than in accordance with the procedure provided by the CBC.

The High Court in this case observed that John Russell has not been overruled by any subsequent decision of the House of Lords or the Supreme Court, but that it should be read subject to the decision of the Court of Appeal in The Benarty [1983] 1 Lloyd’s Rep 361. The Benarty restricts the principle established in John Russell, limiting it to cases where, at the time the action was brought, there was no one on whom the action could be served and it was only later that one of the defendants accepted service in the spring. The High Court questioned the validity of the distinction drawn in The Benarty but nevertheless considered itself bound by this distinction.

There was no evidence to suggest that the claim against D1 did not fall within the narrower conception of the principle in John Russell. The High Court therefore accepted that, that the broader view of John Russell or the narrower vision adopted in The Benarty applied, D2 was entitled to prevail.

The High Court did not consider that the change in language between the relevant RSC and the current language of the gateway in Section 3.1(3) either removed the principle in John Russell or the limitation imposed by The Benarty.

The court observed that the overriding importance of John Russell now is that it establishes part of the context in which subsection 3.1(3) is to be interpreted, by identifying a rationale for adopting a restrictive interpretation of what has always been described as an anomalous provision that has the ability to be exorbitant in its scope. Subsection 3.1(3) has two elements that together protect against this effect:

  • The first requirement, that the claim form must have been served on the principal respondent other than in reliance on subsection 3.1(3), is intended to ensure that a party unconnected with the jurisdiction is not drawn into a litigation in England merely because another defendant to the claim, who could not be served with the proceedings otherwise than by consent, considers it proper that the claim against him should be resolved in England.
  • The second requirement, that there is a real issue which it is reasonable for the court to adjudicate against the primary defendant, is a merits-based protection, designed to ensure that a party who is outside the jurisdiction cannot be brought into jurisdiction by reference to a claim that has been served on a primary defendant but is doomed to fail.

The court found that on the facts there was a genuine dispute between the plaintiff and D1 which it was reasonable for the court to find. However, that said nothing about where this issue should be resolved and whether a party unconnected with the jurisdiction should be brought into that jurisdiction against their will because another defendant in the proceeding considered them to be in their commercial interest to voluntarily submit to the jurisdiction of the English court.

Forum conventions

The High Court indicated that even if subsection 3.1(3) had been available to the claimant, it would have declined jurisdiction over it. forum conveniens lands. The request had no real connection with the jurisdiction. None of the parties was domiciled or resident in England and the subject matter of the litigation related exclusively to Ukraine.

Even if, contrary to the conclusions of the Court, the principle in John Russell was no longer a technical basis for denying jurisdiction, the court would have considered the fact that the only basis on which the court could have jurisdiction was the voluntary submission of another defendant as a powerful discretionary factor justifying the setting aside of the permission on forum conveniens lands. The court reiterated that subsection 3.1(3) is anomalous and should not be applied in such a way as to allow a party unconnected with the jurisdiction to be engaged in litigation in England against their will solely because of the will of another defendant to submit to the jurisdiction for their own reasons.

]]>
Ontario Court of Appeal says parties were common-law partners, not roommates https://prosecutebushcheney.org/ontario-court-of-appeal-says-parties-were-common-law-partners-not-roommates/ https://prosecutebushcheney.org/ontario-court-of-appeal-says-parties-were-common-law-partners-not-roommates/#respond Tue, 10 Aug 2021 07:00:00 +0000 https://prosecutebushcheney.org/ontario-court-of-appeal-says-parties-were-common-law-partners-not-roommates/ [ad_1] The Ontario Court of Appeal dismissed the appeal. She found no palpable and overriding error in the trial judge’s conclusion, on questions of fact and of mixed fact and law, that the parties were spouses under s. 29 of the Family Law Act, RSO 1990, c. F.3, who had lived together in a conjugal […]]]>


[ad_1]

The Ontario Court of Appeal dismissed the appeal. She found no palpable and overriding error in the trial judge’s conclusion, on questions of fact and of mixed fact and law, that the parties were spouses under s. 29 of the Family Law Act, RSO 1990, c. F.3, who had lived together in a conjugal relationship for more than two decades.

The appellant had referred to the respondent as her common-law partner, beneficiary or dependent in her will, her powers of attorney concerning property and care, the life insurance policy, the pension plan, the savings plan. group retirement, supplementary health insurance and income tax returns. On cross-examination, she also admitted that she nicknamed the Respondent her common-law partner in her will and powers of attorney because she felt he was.

It was reasonable and necessary for the trial judge to review the documentary evidence to help her make her decision, given that she found serious credibility and reliability issues on both sides, said court of Appeal.

The court of appeal then concluded that the trial judge had wrongly referred only to the criteria provided for in s. 15.2 (6) of the Divorce Act, which do not apply to common-law partners, instead of relying on the factors provided for in ss. 33 (8) and (9) of the Family Law Act, but this error was not significant enough to call into question the trial judge’s finding. The appeals court noted the significant overlap between the criteria in the Divorce Act and the Family Law Act. Both promote economic self-sufficiency within a reasonable timeframe.

The trial judge at least considered the relevant factors in deciding whether or not to award spousal support, including the appellant’s income and the respondent’s lack of contributions and work effort, mental health issues and dwindling resources, the appeals court said.

[ad_2]

]]>
https://prosecutebushcheney.org/ontario-court-of-appeal-says-parties-were-common-law-partners-not-roommates/feed/ 0
More You Know: Supreme Court of Canada Clarifies Common Law’s Discoverability Principle – Litigation, Mediation and Arbitration https://prosecutebushcheney.org/more-you-know-supreme-court-of-canada-clarifies-common-laws-discoverability-principle-litigation-mediation-and-arbitration/ https://prosecutebushcheney.org/more-you-know-supreme-court-of-canada-clarifies-common-laws-discoverability-principle-litigation-mediation-and-arbitration/#respond Thu, 05 Aug 2021 07:00:00 +0000 https://prosecutebushcheney.org/more-you-know-supreme-court-of-canada-clarifies-common-laws-discoverability-principle-litigation-mediation-and-arbitration/ [ad_1] To print this article, simply register or connect to Mondaq.com. Although procedural in nature, limitation periods are among the most important rules for litigants and litigants — taking too long to present your claim, and you may be prevented from seeking redress. Fortunately, the discoverability principle generally rules out the limitation period before the […]]]>


[ad_1]

To print this article, simply register or connect to Mondaq.com.

Although procedural in nature, limitation periods are among the most important rules for litigants and litigants — taking too long to present your claim, and you may be prevented from seeking redress. Fortunately, the discoverability principle generally rules out the limitation period before the claimant knows they have a claim. But decisive when whether a claimant discovered or should have discovered a claim is a contextual issue based on the claimant’s knowledge of material facts. In Grant Thornton LLP v. New Brunswick, 2021 SCC 31, the Supreme Court of Canada clarified the role of the common law rule of discoverability in the application of provincial limitation laws, and the standard of knowledge required to “discover” a claim under of the common law standard.

What would you like to know

  • Limitation statutes can codify, limit or oust the common law rule of discoverability.
  • Whether a statute of limitations has changed or ousted the common law rule is a matter of statutory interpretation. Clear legislative language is needed to oust the common law rule.
  • The degree of knowledge required to uncover a claim is “a plausible inference of responsibility”, more than mere suspicion or speculation, but less than certainty.

Background

In 2008, Atcon Group of Companies asked the Province of New Brunswick to guarantee certain loans it needed to meet its financial obligations. The province has agreed to provide the guarantees, on condition that Atcon receives an external review of its assets by an audit firm. The province has agreed that Atcon’s auditor Grant Thornton could conduct the external review.

In its audit report, Grant Thornton considered Atcon’s statements to be a fair representation, in all material respects, of Atcon’s financial condition. Based on Grant Thornton’s audit, the province turned over the loan guarantees to Acton.

Shortly thereafter, Atcon’s financial situation deteriorated and the lender asked the province to pay the loan guarantees. The province paid the guarantees and, at the same time, retained the services of an audit firm to perform a review of the same financial statements reviewed by Grant Thornton. The province’s audit firm provided a different report than Grant Thornton’s: Acton’s financial statements were not in accordance with GAAP and contained various material errors, including an overestimation of its assets and net income. This report was provided to the province in draft form on February 4, 2011. The report was finalized on November 30, 2012, with only minor grammatical changes.

On December 12, 2012, the Deputy Minister of Economic Development filed a formal complaint against Grant Thornton, attaching the province’s audit report. A year and a half later, on June 23, 2014, the province sued Grant Thornton for negligence. Grant Thornton requested that the province’s claim be summarily dismissed on the basis that it was prescribed by the two-year limitation period.

Two approaches to discoverability

Grant Thornton’s motion was about the standard to be applied in determining whether a claimant possesses the requisite level of knowledge to have “discovered” a claim, which triggers the two-year limitation period. As in most provinces, New Brunswick statute of limitations provides that a claim is discovered when a claimant “knew or should reasonably have known” of certain material elements of the claim.

The Motions Judge rendered summary judgment, finding that the province “knew or should have known” that it had At first glance grounds for inferring that she had a potential cause of action against the defendants as of the date she paid $ 50 million to repay the Atcon loan. In the alternative, he concluded that the province had the requisite knowledge when it received the draft report from its audit firm in February 2011.

The Court of Appeal reversed the decision, finding that the motions judge had applied the wrong test in considering “prima facie grounds for inferring … a potential cause of action”. Instead, the Court of Appeal determined that until Grant Thornton produced its audit-related records for the province’s inspection (which it refused to do), the province could not not know that the verification was not compliant.

The Supreme Court’s decision

The Supreme Court unanimously overturned the Court of Appeal’s decision and restored the motions judge’s ruling that the province’s claim was time-barred. However, he rejected the approaches to discoverability applied by the two lower courts. The Court (1) ruled on the role of the common law discovery rule in the application of the limitation period and (2) affirmed that a claim is discovered when a plaintiff has knowledge, real or suspected, material facts upon which a “plausible inference claim” of liability on the part of the defendant can be drawn.

The discoverability of the common law

The Supreme Court began its analysis with a review of the common law discovery rule: “a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been or would have been discovered. had to be discovered by the applicant through the exercise of due diligence.1 The rule seeks both to avoid the unfairness of excluding a claim before the claimant becomes aware of it and to realize the underlying rationale for limitation periods (the guarantee of rest, the risk of stale evidence, and the hope that the complaints will be pursued quickly).

The Court explained that the common law rule is an interpretive tool for interpreting limitation statutes. However, provincial statutes of limitation can codify, limit or oust the common law rule. Although the Court noted that the extent to which the common law rule applies is a matter of statutory interpretation, “clear legislative language” is necessary to set aside the common law rule.

After reviewing New Brunswick’s discoverability provision, the Court ruled that it codified the common law rule of discoverability.

The degree of knowledge required

The court disagreed with either court below on the level of knowledge required to uncover a claim and trigger the limitation period. Instead, he held that “a claim is discovered when a claimant has knowledge, real or suspected, of material facts upon which a plausible inference of liability on the part of the defendant can be drawn.” Where the provision sets out material facts of which the applicant must have actual or presumed knowledge, the terms of that provision shall prevail.

What is a “plausible inference” of liability? The Court held that this is a case which gives rise to a “permissible inference of fact”. The standard requires more than mere suspicion or speculation, but does not go so far as to require certainty of responsibility. A claimant does not need to know the exact type of harm they suffered or the extent or cause of the harm in order for the limitation period to begin to run.

The Court held that it is permissible to assess both direct evidence and circumstantial evidence to determine the state of knowledge of a claimant. If the evidence shows that the claimant should have discovered the material facts by exercising due diligence, implied knowledge will be established.

In that case, the Court found that the Province had actual or suspected knowledge of its claim against Grant Thornton as of the date it received its auditor’s interim report indicating that Atcon had made various material errors in its financial statements. . The Court of Appeal had set too high a standard by requiring the province to be aware of the constituent elements of negligence, as this might require a claimant to be aware of facts – such as a breach of a standard of care – which do not could only be known through the process of discovery. The province did not need access to the files relating to Grant Thornton’s audit to infer a breach of the standard of care.

The unanswered question

While the Supreme Court said that a statute of limitations would begin to run when the plaintiff should have discovered the material facts by exercising “due diligence”, Grant Thornton did not give the Court an opportunity to rule on what constitutes due diligence. This issue is an often contentious and fact-specific issue that is likely to remain an important feature of limitation disputes.

Footnote

1 Central Trust Co. v Rafuse, [1986] 2 SCR 147, at p 224, citing Kamloops (City of) vs. Nielsen, [1984] 2 RCS 2; see also Ryan vs. Moore, 2005 SCC 38, [2005] 2 SCR 53, at paragraphs 2 and 22

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

[ad_2]

]]>
https://prosecutebushcheney.org/more-you-know-supreme-court-of-canada-clarifies-common-laws-discoverability-principle-litigation-mediation-and-arbitration/feed/ 0
The Court of Appeal refuses to apply the common law rule of conciliation to annul a cohabitation agreement https://prosecutebushcheney.org/the-court-of-appeal-refuses-to-apply-the-common-law-rule-of-conciliation-to-annul-a-cohabitation-agreement/ https://prosecutebushcheney.org/the-court-of-appeal-refuses-to-apply-the-common-law-rule-of-conciliation-to-annul-a-cohabitation-agreement/#respond Wed, 28 Jul 2021 07:00:00 +0000 https://prosecutebushcheney.org/the-court-of-appeal-refuses-to-apply-the-common-law-rule-of-conciliation-to-annul-a-cohabitation-agreement/ [ad_1] The Ontario Court of Appeal, ruling favorably on the appellant’s appeal and awarding him costs in the amount of $ 2,500, quashed the motions judge’s declaration and replaced it with a declaration that the rights and obligations of the parties were governed by the cohabitation agreement. The Court of Appeal described the common law […]]]>


[ad_1]

The Ontario Court of Appeal, ruling favorably on the appellant’s appeal and awarding him costs in the amount of $ 2,500, quashed the motions judge’s declaration and replaced it with a declaration that the rights and obligations of the parties were governed by the cohabitation agreement.

The Court of Appeal described the common law rule, which states that a separation agreement becomes void upon reconciliation of the parties unless the agreement expressly or implicitly provides for it, as dating from a time when there were very different views on marriage, cohabitation, separation and divorce. . The Court of Appeal noted that the common law rule is not absolute and depends on an interpretation of the intentions of the parties, as evidenced by the entire agreement.

The appeals court, reading the agreement as a whole and in the context of the relations between the parties at the time of signing, ruled that the agreement was intended to apply despite a separation and subsequent reconciliation preceding the final separation . The agreement, which uses broad language and was meant to be lasting, provided for marriage, divorce, separation, death and cohabitation in general, including cohabitation after separation and reconciliation, the court found. call.

A reading of the agreement could conclude that the agreement would apply if the parties cohabitated under all circumstances and the payment of $ 5,000 was intended to help the respondent move into her own accommodation, the court said, adding that private arrangements regarding the division of property on a relationship breakdown should be respected, especially if independent legal advice was sought during the negotiation.

“Undoubtedly, it would have been preferable for the cohabitation agreement to contain specific provisions dealing with the possibility of separation and reconciliation, rendering this interpretation process unnecessary”, wrote Judge Gladys Pardu for the Court of Appeal.

[ad_2]

]]>
https://prosecutebushcheney.org/the-court-of-appeal-refuses-to-apply-the-common-law-rule-of-conciliation-to-annul-a-cohabitation-agreement/feed/ 0
Common law and Equitable LLC dissolution: Going, Going,. . . | Farrell Fritz, PC https://prosecutebushcheney.org/common-law-and-equitable-llc-dissolution-going-going-farrell-fritz-pc/ https://prosecutebushcheney.org/common-law-and-equitable-llc-dissolution-going-going-farrell-fritz-pc/#respond Mon, 19 Jul 2021 07:00:00 +0000 https://prosecutebushcheney.org/common-law-and-equitable-llc-dissolution-going-going-farrell-fritz-pc/ [ad_1] Recently, we wrote two articles focusing on the ongoing dispute over whether New York law recognizes a viable cause of action for the “ordinary” or “fair” dissolution of a limited liability company. . In October 2020, I blogged on a dismissal decision prior to response in Pachter vs. Winiarsky, in which a New York […]]]>


[ad_1]

Recently, we wrote two articles focusing on the ongoing dispute over whether New York law recognizes a viable cause of action for the “ordinary” or “fair” dissolution of a limited liability company. .

In October 2020, I blogged on a dismissal decision prior to response in Pachter vs. Winiarsky, in which a New York court first upheld an application to dissolve a common law LLC, even when the court, in the same decision, held that the petition failed to apply for legal dissolution under Article 702 of the Law on Limited Liability Companies.

In May 2021, Pierre Mahler blogged on a second dismissal decision prior to response in the Pachter case, in which the court considered the sufficiency of a petition / complaint amended filed after the issuance of the initial dismissal decision. In the second Pachter decision, the court essentially reversed, dismissed the common law / equity application for dissolution, but reinstated the section 702 application for dissolution.

On July 12, 2021, Brooklyn Commercial Division Judge Leon Ruchelsman issued the third decision in the knock-down-drag-out Pachter litigation over whether the common law / equitable dissolution of an LLC exists as a viable cause of action in New York City. This decision was made through a petition from Pachter for leave to challenge the previous dismissal.

Supporting arguments

The legal arguments put forward by the parties are interesting, so I will devote some time to the briefs, which you can read here, here, and here.

In his moving papers, Pachter argued:

Equitable dissolution, also known as common law dissolution, is a well-established doctrine allowing members of LLCs to dissolve when the management of the LLC has engaged in certain “egregious conduct” towards the LLC or other members. See Lemle vs. Lemle, 92 AD3d 494, 500 (1st Dep’t 2012).

I would better describe this argument as a “stretch”. Lemlé was not an LLC dissolution case. The appeal decision in Lemlé involved multiple companies, but no LLCs. Lemlé certainly did not address the dissolution of the common law LLC, a topic that no New York appeals court has addressed directly (but we’ll get to that later). In fact, in another section of his brief, Pachter acknowledged the lack of guidance from the appeals court:

The Applicant acknowledges that the novelty and complexity of the issues in this case will almost certainly require appellate review. [but] rather than wait for approval by the appeal of the equitable dissolution — in which case the parties would have to repeat the discovery and trial — the best course of action would be to reinstate the claim and allow the discovery to be made. and the trial to move forward in the meantime on all of the issues raised in the amended complaint.

On the ultimate merits of whether New York law would recognize the dissolution of the common law LLC, Pachter drew an analogy with other areas of LLC case law where courts have recognized common law remedies not found in the written text of the LLC law, arguing:

Equitable dissolution applies to LLCs. In Tzolis vs. Wolff, 10 NY3d 100 (2008), the Court of Appeal held that all well-established equitable doctrines for the remedy of damages caused by trust companies are available in the context of the LLC in the absence of a “clear legislative mandate to the contrary “.

This is another “stretch”. We have written on Tzolis vs. Wolff Many times. While this may be the most important LLC case to date to reach the Court of Appeal, establishing the general principle that certain “fair” / “common law” doctrines apply to LLCs, it does not. She certainly did not go so far as to say that “” all well-established fair doctrines for redressing damages caused by trust companies are available in the LLC context, “unless prohibited by LLC law.

On the contrary, as Pachter pointed out in other sections of his brief, there are three main lines of case law important to equitable concepts applicable to other forms of LLC entity:

The gist of Pachter’s argument was that the court should draw inspiration from these three lines of authority and import a fourth into LLC law: equity / common law dissolution, which originates in corporate law. companies.

Opposition arguments

In their opposition brief, the respondents argued that the main LLC dissolution case in New York, Case of 1545 Ocean Ave, LLC, 72 AD3d 121 (2d Dept 2010), categorically prohibits any notion that the courts of New York could apply common corporate law dissolution standards to LLCs:

In . . . LLCL 702, the Legislature can only have wished that the standard of dissolution provided for therein remains the sole basis for the judicial dissolution of a limited liability company. In other words, since the legislature, in determining the criteria for the dissolution of various business entities in New York, did not intersect these grounds from one type of entity to another, it would be inappropriate for this Court to import the reasons for the dissolution of the Business Company Law or Company Law to the LLCL.

The speaker Kassab Decision

On June 22, 2021, the same day Pachter’s re-argumentation motion was submitted for decision, the Appeals Division – Department Two released two important new decisions (available here and here) in the Kassab litigation. Like I written a few weeks ago, one of the decisions contains the following language echoing Ocean Avenue: “The Limited Liability Company Law 702 provides the sole basis for the judicial dissolution of a limited liability company and includes a “stricter” standard than that for the dissolution of a company.”(Citations omitted; emphasis added).

The re-argumentation decision

In his decision, Ruchelsman J. rejected for the second time Pachter’s request to recognize a viable cause of action for the dissolution of the common law, rendering two essential legal decisions.

First, the court ruled:

In Case of 1545 Ocean Avenue . . . the court ruled that the only basis for the dissolution of a limited liability company was the grounds set out in the Law on Limited Liability Companies § 702, namely judicial dissolution and that it was inappropriate “to import the grounds for dissolving the Law on Commercial Companies or the Law on Limited Liability Companies. Liability company law. ‘ Indeed, there are no cases which apply anything other than judicial dissolution to limited liability companies. The fact that other remedies are available to limited liability companies, such as piercing the corporate veil or the business judgment rule, does not mean that other methods of dissolution are possible. [Although] The petitioner argues that there is no reason why equitable dissolution should be prohibited when it is available for entities which are so similar to limited liability companies. . . it is a political argument which cannot go beyond the clear directive of Case of 1545 Ocean Avenue. Indeed, this jurisdiction is bound by Case of 1545 Ocean Avenue which interpreted Law 702 on Limited Liability Companies as prohibiting any other form of dissolution.

Second, the court ruled:

The petitioner further claims that “the law supports the viability of an equitable dissolution”. While this is certainly true in the case of ordinary companies and it may well be that the applicant has demonstrated the sufficiency of proof necessary to obtain a fair dissolution in general, this is not at all true. when it comes to limited liability companies. The cases cited by the petitioner do not support such equitable dissolution for limited liability companies. Tzolis v. Wolff. . . ruled that derivative actions were permitted in a limited liability company, however, this has nothing to do with the possibility of other forms of dissolution. In addition, in Mizrahi v. Cohen. . . the dissolution that occurred was “judicial” in accordance with Law 702 on Limited Liability Companies. . Again, while arguments based on logic or common sense may seem compelling, at this time there is no basis for a dissolution of a limited liability company that is not judicial.

Rule of law after Pachter

In PachterIn the trio of common law decisions, the dissolution of the LLC has shown brief signs of promise as a new cause of action, but now appears to be of questionable origin unless an appeals court or another. trial court would not find such a claim viable under New York law.

For petitioners / complainants, one can understand the appeal of a catch-all and non-statutory dissolution request embracing “”flagrant breaches of fiduciary duty as a means of dissolving an LLC. As our regular readers know, with few exceptions, breach of fiduciary duty, oppression, or even exclusion from the LLC, is often not enough to establish grounds for dissolution under the standards of the LLC. Case of 1545 Ocean Ave. There is a growing body of case law rejecting at the pre-response stage petitions under Section 702 alleging these grounds for dissolution (you can read some of the recent examples we blogged about. here, here, here). There is also a growing number of appeal decisions affirming these revocation grants, even going so far as to overturn refusals of revocation (the most recent being Kassab last month; we find two others here and here).

All of this shows that the means for members to dissolve a New York LLC appears to be shrinking, not expanding, which makes the operating agreement all the more important. If desired, creative writers of operating agreements, especially those representing non-controlling members, might consider listing in the operating agreement the rights and obligations that the parties consider to be truly vital. , the violation of which may constitute grounds for dissolution under SARL Law 701 (2) allowing dissolution in the event of “the occurrence of events specified in the operating agreement”. While this rarely happens in practice, it can be an approach to try to anticipate and deal with the fact that under New York’s Judicial Dissolution Act breaking up may be difficult to do.

[View source.]

[ad_2]

]]>
https://prosecutebushcheney.org/common-law-and-equitable-llc-dissolution-going-going-farrell-fritz-pc/feed/ 0