Default Charges in agreements & contracts

[pompeyfaith]

Re: Default Charges in agreements & contracts

Nah mate cos you were in wales/england at the time of the contract

Plus all their agreements state it is English law. Wonder why eh?

So they can get a 6 yr default period instead of 5 yrs ?

[mystery1]

Re: Default Charges in agreements & contracts

That was the Hungarian case no? It's in the EU so it went via Luxembourg / Brussles (or the Euro courts of Justice) whatever they call themselves....

I said before EU and UK is allowed but not inter-continent

Again http://www.publications.parliament.u...0721/son-2.htm


20. Moreover, in the courts of New Zealand, Australia and Canada parallel developments took place. In New Zealand Institute of Agriculture Science Inc v Ellesmere County [1976] 1 NZLR 630. Cooke J (subsequently Lord Cooke of Thorndon) speaking for the court said, at p 636:

"Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and the degree and seriousness of the non-compliance."
This observation was subsequently cited in the Charles case in the Privy Council to which I have referred.

21. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the Australian High Court addressed the same problem. In the joint judgment of McHugh, Gummow, Kirby and Hayne JJ the court concluded, at para 93:

"In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with a statutory command and those which have not They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute.'"
This reasoning contains an improved analytical framework for examining such questions. In the evolution of this corner of the law in the common law world the decision in Project Blue Sky is most valuable.

22. In Canada there have been developments along similar lines. The starting point is British Columbia (Attorney General) v Canada (Attorney General); An Act respecting the Vancouver Island Railway (Re) [1994] 2 SCR 41. The mandatory/directory distinction was strongly criticized. For the majority Iacobucci J observed: "courts tend to ask, simply: would it be seriously inconvenient to regard the performance of some statutory direction as an imperative?" My understanding is that, seven of the Supreme Court Justices were agreed on this point, with Lamer CJ and McLachlin J dissenting. In Society Promoting Environmental Conservation v Canada (Attorney-General) (2003) 228 DLR (4th) 693 this development was taken a stage further by the Federal Court of Appeal. Relying on Lord Hailsham's dictum, Evans JA gave the main judgment for the court with Strayer JA concurring in the result and reasoning on this point, at p 710, para 35:

"(iv) . . . the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, including the frustration of the purposes of the legislation, public expense and hardship to third parties, the less likely it is that a court will conclude that legislative intent is best implemented by a declaration of invalidity."
I regard the developments in Canada as very similar to those in New Zealand and Australia.

23. Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, as held in Attorney General's Reference (No 3 of 1999), the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction. In my view it follows that the approach of the Court of Appeal was incorrect."



Irrelevant to the incorporation of terms but when it comes to foreign judgements it's exactly on point. Note it is from a House of Lords judgement and if it's good enough for the highest court in the land there is no reason the principle can't apply in the lower courts.

M1

[mystery1]

Re: Default Charges in agreements & contracts

So they can get a 6 yr default period instead of 5 yrs ?

Not up here

M1

[Never-In-Doubt]

Re: Default Charges in agreements & contracts

That link is criminal law, not common law - we are specifically referring common law here, not criminal

anyway, it's interesting so keep the info coming, learn something new everyday - thanks

[Never-In-Doubt]

Re: Default Charges in agreements & contracts

So they can get a 6 yr default period instead of 5 yrs ?

No cos a default lasts 6 years wherever you may live.... but no its because english law is easier for them to interpret manipulate

Statute (Limitations Act) is 5 years in Scotland, as you know.

[mystery1]

Re: Default Charges in agreements & contracts

That link is criminal law, not common law - we are specifically referring common law here, not criminal

anyway, it's interesting so keep the info coming, learn something new everyday - thanks

http://www.bailii.org/uk/cases/UKHL/2003/12.html

" The theory of the agreement which becomes enforceable conditionally upon the act providing consideration was developed by Sir Garfield Barwick CJ in his dissenting judgment in the High Court of Australia in Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd (The New York Star) (1978) 139 CLR 231 and adopted by the Privy Council when it affirmed his judgment on appeal: see The New York Star [1981] 1 WLR 138."

Civil

M1

[transformer999]

Re: Default Charges in agreements & contracts

http://www.bailii.org/uk/cases/UKHL/2003/12.html

" The theory of the agreement which becomes enforceable conditionally upon the act providing consideration was developed by Sir Garfield Barwick CJ in his dissenting judgment in the High Court of Australia in Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd (The New York Star) (1978) 139 CLR 231 and adopted by the Privy Council when it affirmed his judgment on appeal: see The New York Star [1981] 1 WLR 138."

Civil

M1

Thanks Mystery1 for that...that is why I am so confused...this is the kinda stuff that has me thinking that if you can use a case law to help your case what is the problem?

It is good to discuss as we can all learn somethng new. If someone can tell me 100% that I cannot use that case then I will stop. It is not about making this subject in to 1000 paged debate...but on a serious note...the case law that I found would be extremely beneficial to my case as it has similar circumstances plus what the judge made his final decision and outcome of the case.... is exactly what I need in my case.

The above links you have provided Mystery1 are very useful and like I said I would like to look in to this more.

If Paul was able to comment on this then we would know 100% one way or the other.

Thanks Niddy, Oscar and Garlok for your input and I think it is good that you have put your comments in as it has given me a chance to look over the fence and see what might happen too..and knowing my luck will probably be a pretty lot

[Never-In-Doubt]

Re: Default Charges in agreements & contracts

http://www.bailii.org/uk/cases/UKHL/2003/12.html

" The theory of the agreement which becomes enforceable conditionally upon the act providing consideration was developed by Sir Garfield Barwick CJ in his dissenting judgment in the High Court of Australia in Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd (The New York Star) (1978) 139 CLR 231 and adopted by the Privy Council when it affirmed his judgment on appeal: see The New York Star [1981] 1 WLR 138."

Civil

M1

Cheers

[transformer999]

Re: Default Charges in agreements & contracts

Cheers

See what a healthy debate brings out we all learn something new

[transformer999]

Re: Default Charges in agreements & contracts

Palmer on Bailment

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• Iran v Barakat [2009] Q.B. 22
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• R v Kelly [1999] Q.B. 621
• Sunrock Aircraft v SASDNS [2007] 2 Lloyd's Rep. 612
• Sony v Cinram [2008] EWCA Civ 995
• Yearworth v North Bristol NHS Trust [2009] EWCA 37
• Wincanton v P&O [2001] EWCA Civ 227
• Marcq v Christie's [2004] Q.B. 286
• The Makhutai [1996] A.C. 650
• Datec Electronic Holdings v United Parcels Service Ltd. [2007] 1 W.L.R. 1325
• Lukoil-Kalingradmorneft v Tata Ltd. [1999] 2 Lloyd's Rep. 129
• The Pioneer Container [1994] 2 A.C. 324
• East West v DKBS [2003] Q.B. 1509
• Blackpool Ladder v BWB (unreported, CA)
• Lister v Hesley Hall [2002] 1 A.C. 215
• Costello v Chief Constable of Derbyshire [2001] 1 W.L.R. 1437
• The Starsin [2004] 1 A.C. 715
• Sandeman Coprimar v Transitos y Transportos [2003] Q.B. 1270
• Waverley BC v Fletcher [1996] Q.B. 337
• Smith v Bridgend [2002] 1 A.C. 336
• Othos, McAlpine v Panatown [2001] 1 A.C. 518
• Nolan v Nolan (2003) 10 VR 626

• Hill v Reglon Pty. Ltd. [2007] NSWCA 295 (NEW SOUTH WALES COURT OF APPEAL)

[garlok]

Re: Default Charges in agreements & contracts

So as I read the arguments that are being put forward above the decisions of this court:-

>http://www.ngex.com/nigeria/govt/con...n/con7p1p1.htm

and the Constitution behind it means that I can use the case law under the overall jurisdiction of this court to petition for the death penalty to be mandatorily imposed on anyone found guilty of blasphemy or adultery which are both civil offences here in the UK?

This also is a Commonwealth country like Australia.

regards
Garlok

[Never-In-Doubt]

Re: Default Charges in agreements & contracts

So as I read the arguments that are being put forward above the decisions of this court:-

>http://www.ngex.com/nigeria/govt/con...n/con7p1p1.htm

and the Constitution behind it means that I can use the case law under the overall jurisdiction of this court to petition for the death penalty to be mandatorily imposed on anyone found guilty of blasphemy or adultery which are both civil offences here in the UK?

This also is a Commonwealth country like Australia.

regards
Garlok

Based on what we're reading here, that's my assessment - however I feel confident enough in my original reply that Aus law is quite irrelevant here otherwise we could all start to interpret foreign law over here.....

But I'm staying quiet cos I really don't know

[pompeyfaith]

Re: Default Charges in agreements & contracts

Well it could be asked IF it can be used why has no one in the legal profession used it before.

[Never-In-Doubt]

Re: Default Charges in agreements & contracts

I'll email paul and ask for clarity now....

Put an end to this debacle once and for all.....

[garlok]

Re: Default Charges in agreements & contracts

I think you're right mate. I will make a call to one who did read for the bar later on today and see what he says. I could quote about a dozen instances to furnish this side of the argument like that of Supreme Courts overseas and their jurisdictions and sentencing.

Like I said you cannot cherry pick the bits that suit you, bring it on and you are likely to be laughed out of a British court, if it is taken into account are you (not you personnalyy of course) preapred to take the harsher side of the argument which may well run against you.

Will try and get a professional legal opinion for you later to post up here.

regards
Garlok