Smithton ltd (formerly Hobart) brought a claim for a loss suffered when the two companies Insureprofit ltd and Mariona ltd failed on their obligations to pay margin calls under contract with the claimant. The claim was brought against Mr Naggar who was a majority shareholder of Hobart and himself and his family owned and controlled the two companies who went insolvent. Hobart alleged that Mr Nagger was either a de facto or shadow director and had breached the duties he owed towards the company.
The judge in this case, recognised that there is a distinction in the tests between shadow and the facto directors, as described by David Richards J in the McKillen judgement, however the parties decided not to make a distinction between the concepts in the evidence given. Therefore the judge decided to take the same approach, which may have impaired the decision and the interpretation for de facto and shadow director.
Is important to establish the ‘identification of the hat’ that Mr Naggar was holding with and for the company so to establish whether he was a de facto or a shadow director. According to Ultraframe (UK) Ltd V Fielding where the alleged shadow director is also a creditor of the company, he is entitled to protect his own interest as creditor without becoming a shadow director. Therefore a position of strong influence is not necessarily a fiduciary position. Mr Nagger himself was the major shareholder of Hobart and had a strong influence over the company but this does not mean he was a shadow director.
De Facto Directors
In Secretary of State for Trade and Industry v Tjolle Jacob J refused to formulate a decisive test for de facto director as he saw the question as one of fact and degree. HMRC v Holland Lord Hope alleged tha...
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...o the principles laid down by this case, Mr Keane referred to Mr Nagger and Mr Townsley as the ‘driving forces behind the business’ but there was no indication that either of them ran the Hobart business and that Mr Nagger was part of the management of the company.
Furthermore, some of Hobart’s allegations referred to facts happened in 2006 before Hobart spun off to become a separate company from DDI. This refers to Mr Keane allegation on him seeking Mr Naggar’s consent for decisions. In addition other decisions made by Mr Naggar’s were totally explicable as they were entirely consistent with his role as chairman of DDI.
Further evidence was given that would imply that Mr Nagger could have been a shadow director. An example is the issue on whether to change the name of Dawnay Day Capital Markets ltd. However, there was no evidence that Mr Naggars consent was needed
Analysis / Ruling of the Court. The district court granted the employer’s motion for summary judgement on the sexual harassment claim due to the fact that Sherry Lynch treated both men and women equally in this case; that is, she behaved in the same vulgar and inappropriate way towards both genders. For this reason, Smith’s gender was not a contributing factor to the harassment, which is one of the conditions that would have to be met for the sexual harassment claim. The appellate court agreed and affirmed the district court’s judgement. The district court ended up excluding evidence pertaining to the sexual harassment claim because the sexual harassment claim had been dismissed on summary judgement, and because the court decided that the details of the harassment bore little relevance to the retaliation case whereas this evidence would be unfairly prejudicial to Hy-Vee. The appellate court affirmed the district court’s judgement. Smith did not offer any specifics on what evidence she would have wanted to present, which made it hard for the court to determine whether this evidence was material to the retaliation case or not. In her opposition to the motion in limine, she said she only wanted to discuss the harassment case in general, including mentioning that Lynch had harassed/touched her inappropriately. Hy-Vee had no objection to this, and Smith got to present this much evidence in the trial. Therefore, the appellate court found that she waived any objection to the
The second part, “Why It Happened: Eighty-Five Years,” explains the origins of the firm and its founding and operating principles, and it sets the basics for why several deviations from these founding principles eventually led the firm astray.
...production position. This employee did not use any analytically discernment outside of the parameter set forth by the company, which would constitute the use of judgment or assessments beyond the guidelines of the company. This would validate the appeals court ruling in favor of the appellant and the reversal of the lower court ruling.
... be found in Mr. Hill’s case given he position set out by the majority judgement in this case.
... decision also brings suspiscion about whether or not if things go south is he going to take any accountability. In conclusion, this case truly represents the use of unauthorized practice of law.
as decisive inferences complying with NJ law to validate his position, in contrast with the
In Palgo Holdings v Gowans , the High Court considered the distinction between a security in the form of a pawn or pledge and a security in the form of a chattel mortgage. The question was whether section 6 of the Pawnbrokers and Second-hand Dealers Act 1996 (NSW) (‘the 1996 Pawnbrokers Act’) extended to a business that structured its loan agreements as chattel mortgages. In a four to one majority (Kirby J dissenting) the High Court found that chattel mortgages fell outside the ambit of section 6 of the 1996 Pawnbrokers Act. However, beyond the apparent simplicity of this decision, the reasoning of the majority raises a number of questions. Was it a “turning back to literalism” as Kirby J suggested, or was it simply a case where the court declares that parliament has missed its target?
At the behest of Solicitor General John Les, an inquiry was launched in February o...
Andrews N, Strangers to Justice No Longer: The Reversal of the Privity Rule under the Contracts (Rights of Third Parties) Act 1999 (2001) 60 The Cambridge Law Journal 353
R v Secretary of State for Transport, ex parte Factortame Ltd and others [1999] All ER (D) 1173.
Lord Selborne in the case of Wilson v Northampton and Banbury Junction Rly Co[ (1874) 9 Ch App 279.] had outlined the purpose of specific performance. His Lordship stated that specific performance will only be granted when it can by that means do more perfect and complete justice. The purpose of granting specific performance is to ensure that justice can be uphold as perfect as it could be. However, the specific performance will only be granted when there is inadequate and insufficient remedy of damages to any case of breach of
... It is disappointing that Lord Scott did not take this opportunity to endorse the criteria laid down in Re Chime Corp Ltd and neither did he provide further guidance as to when the courts power under section 994 should be exercised.
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
In Krell v. Henry {1903} a plea of frustration succeeded because the court held that the common purpose for which the contact was entered into, could no longer be carried out. But in the same year for similar set of facts, the Court of Appeal decided in Herne Bay v. Hutton [1903] that the contract had not been frustrated because the "common formation of the contract" had not changed. It clearly was a policy decision which shows the reluctance of the courts to provide an escape route for a party for whom the contract ha...
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...