DOCSLIB.ORG

Supreme Court of NSW Court of Appeal Decisions Reserved at 20 April 2018

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Supreme Court of NSW Court of Appeal Decisions Reserved at 20 April 2018 Supreme Court of NSW Court of Appeal Decisions Reserved at 20 April 2018 Number Case Name Heard Issues Judgment Below REAL PROPERTY - s37A of the Conveyancing Act 1919 (NSW) – whether intention to defraud creditors – rearrangement of properties between A and her husband. Husband subsequently bankrupted – bankruptcy arose out of voluntary liquation of company - whether at Edward Ted Lakis and Anor time of arrangement there was a likelihood 1 2017/145647 Lardis v Lakis 21/07/2017 v Michael Victor Lardis and that property would be subject to significant Anor [2017] NSWSC 321 recovery claims - credit of witnesses – trial judge’s assessment of evidence in absence of cross examination – whether defence made out – whether A entitled to take steps to protect own interests by preventing further encumbering of property by her husband ADMINISTRATIVE LAW – Proceeds of Crimes Act 2002 (Cth) – refusal to exclude property from forfeiture – s94 precludes AD v Commissioner of making an exclusion application under s93 Lower court decision not 2 2016/147755 the Australian Federal 1/08/2017 outside a 15 month period dating from the on Caselaw Police “conviction day” – “conviction day” includes date of sentencing – AD subsequently resentenced by CCA – motion for summary dismissal of appeal for lack of utility – property vested absolutely in Commonwealth after forfeiture under s96 - whether appeal futile by reason of expiration of 15 month period from “conviction day” – whether Director of Public Prosecutions (Cth) v Chan [2001] NSWCA 249 ought to be followed - Constitution – whether institutional integrity of Court distorted by removal of power of Court to decide issue – whether legislation required Court to implement decision of the Executive – whether unconscionable restraint on AD from accessing restrained funds to defend proceedings ADMINISTRATIVE LAW (judicial review) – the applicant, a barrister, sued the respondent in the Local Court to recover the costs of legal work carried out on the Pentelow v Bell respondent’s instructions – stay of Lawyers Pty Ltd proceedings in Local Court set aside on appeal to Supreme Court – judgment and Delivery of judgment costs ordered in applicant’s favour – Pentelow v Bell T/as Bell has been delayed, with applicant subsequently brought appeal to 3 2016/345890 10/08/2017 Lawyers [2016] NSWDC consent of the parties, District Court against determination of costs 186 pending the decision review panel pursuant to Legal Profession of the High Court in Act 2004 (NSW), ss 382 and 384 – whether Coshott v Spencer primary judge erred in holding applicant (S4/2018) could not recover for professional work she had undertaken in herself conducting the proceedings – whether primary judge erred in finding that the “Chorley exception” does not apply to barristers in New South Wales TORTS (other) – respondent and his friends visited licenced premises in Manly Charles State of New South in December 2011 – respondent forcibly Henry Thomlinson v The 4 2016/386053 13/09/2017 Wales v Thomlinson ejected from club by police – respondent State of New South brought proceedings against the State of Wales [2016] NSWDC 369 New South Wales alleging assault, battery, unlawful arrest, false imprisonment and malicious prosecution – State of New South Wales admitted vicarious liability for conduct of relevant police officers pursuant toLaw Reform (Vicarious Liability) Act 1983 (NSW), s 9B(2) – primary judge awarded the respondent damages in the sum of $147,796 for assault, battery and false imprisonment – whether primary judge erred in finding that assault and battery had been made out – whether primary judge erred in failing to find that police were lawfully acting to effect occupier’s revocation of respondent’s licence to remain on premises – whether primary judge erred in failing to find that police were lawfully exercising power underLiquor Act 2007 (NSW), s 77 – whether primary judge should have found that conduct of police involved lawful and reasonable use of force and that search and transport of respondent was lawful – whether primary judge erred in approach to fact-finding TORTS (negligence) – first respondent employed by the second respondent company which hired his labour to the appellant – first respondent involved in replacement of railway sleepers as part of railway maintenance work conducted under the supervision of the appellant – allegation Alan Donald v Rail Rail Corporation New that first respondent suffered severe injury Corporation of New South 5 2017/51509 4/10/2017 South Wales v Donald to his back as a result of having engaged in Wales (No 11) [2016] jack-hammering and the moving of railway NSWSC 1897 sleepers and rubble – appellant and second respondent both disputed that the first respondent’s injuries were suffered at work – primary judge gave judgment for the first respondent in the sum of $1,132,579 – whether primary judge erred in finding that a reasonably adequate system of task rotation or in built breaks would have operated to eliminate or substantially reduce the risk of harm – whether primary judge erred in finding that first respondent’s back injuries were caused by the appellant’s negligence – whether primary judge erred in finding that first respondent was not guilty of contributory negligence – whether primary judge erred in certain factual findings INSURANCE – appellant company held insurance policies with the respondent providing cover for amounts it became liable to pay by way of compensation or damages to a third party for personal injury or property damage – appellant was engaged to provide refurbishment work on a gold processing mill – mill failed when welding work completed by appellant disintegrated – client commenced arbitration proceedings against appellant for breach of contract and misleading or Weir Services deceptive conduct – before arbitral tribunal Weir Services Australia Pty Australia Pty Ltd v issued its final award, appellant entered Limited v AXA Corporate 6 2017/99799 24/10/2017 AXA Corporate into “cap and collar” agreement with client Solutions Assurance [2017] Solutions Assurance under which it agreed to pay a minimum of NSWSC 259 $2 million whatever the outcome of the arbitration, in return for the potential damages being capped at $10.725 million – arbitral tribunal ultimately dismissed claim against appellant – primary judge dismissed appellant’s claim on insurance policies for collar amount and defence costs – whether primary judge mischaracterised appellant’s case as to the occurrence which was said to trigger coverage under the policies – whether primary judge erred in finding that professional services exclusion in policies applied to bar appellant’s claim TORTS (other) – false imprisonment – detention of concession card holder to verify entitlement to use concessional Opal Card – where holder did not produce photo identification – whether regulation 77C of State of New South Passenger Transport Regulation 2007 Le v State of New South 7 2017/93694 31/10/2017 Wales v Le entitled authorised officer to detain Wales [2017] NSWDC 38 passenger - whether authorised officer entitled to detain until radio check verified entitlement – whether authorised officer entitled to detain on suspicion that concession card was stolen TORTS (other) – Blue Vision carries on business providing project management and planning services – allegation two former employees of Blue Vision, Mr Chidiac and Mr Gunasegaram, diverted business opportunities from Blue Vision to a company they had incorporated, Aspire Corporation – Blue Vision brought Gunasegaram v Blue proceedings against Mr Chidiac and Mr Visions Management Gunasegaram, alleging breach of fiduciary Blue Visions Management 2017/168664 8 Pty Limited; Blue 17/11/2017 duty and tort of deceit, and against Aspire Pty Limited v Chidiac [2017] 2017/168769 Visions Management v Corporation, alleging accessory or vicarious NSWSC 255 Chidiac liability – primary judge dismissed claims against Mr Chidiac and Aspire Corporation, but found Mr Gunasegaram liable in deceit – whether primary judge erred by “reformulating” a set of representations said to have been made by Mr Gunasegaram but not pleaded by Blue Vision – whether primary judge erred in assessment of damages TAX – Deputy Commissioner brought a Frangieh v Deputy Deputy Commissioner of claim against the appellant for unpaid tax, 9 2017/112808 Commissioner of 2/02/2018 Taxation v Frangieh (No penalties and interest – appellant brought a Taxation 3) [2017] NSWSC 252 cross-claim, alleging misfeasance in public office, abuse of process and breach of duty to act in good faith – cross-claim arises out of actions of the Deputy Commissioner’s employees in bringing claim against appellant – Deputy Commissioner’s claim against appellant dismissed by consent – primary judge dismissed cross-claim – whether primary judge erred in finding that the Deputy Commissioner was the wrong defendant and was not vicariously liable for the acts of public officers – whether primary judge erred in finding that an action alleging misfeasance requires conscious maladministration in the sense of actual bad faith – whether primary judge made certain factual errors – whether primary judge erred in failing to find that Australian Taxation Office debt recovery officers have a duty to consider whether exercising debt recovery functions is oppressive in the circumstances EQUITY – discretionary family trust established for the benefit of the appellants’ family – by its terms, trust due to vest on 1 January 2024 – at that point,
Load more

Recommended publications
  • Damages for Deceit: a Case Study in the Making of American Common Law
    \\jciprod01\productn\N\NYS\71-3\NYS302.txt unknown Seq: 1 3-JAN-17 15:23 DAMAGES FOR DECEIT: A CASE STUDY IN THE MAKING OF AMERICAN COMMON LAW EDWARD J. NORMAND* “We reach the land of mystery when constitution and statute are silent, and the judge must look to the common law for the rule that fits the case.” BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS INTRODUCTION .......................................... 334 R I. GROUNDS FOR THIS CASE STUDY . 338 R II. THE INCIPIENT NEW YORK COMMON LAW . 341 R A. The Adoption of English Common Law . 341 R B. The Cases of the Diseased Sheep . 344 R 1. Jeffrey v. Bigelow & Tracy . 344 R 2. Crain v. Petrie ............................... 345 R III. POTENTIAL RECOVERIES—EXAMPLES . 346 R IV. THE BUDDING NEW YORK LAW: 1845–1918 . 348 R V. THE PIVOTAL DECADE: 1919–1928 . 350 R A. Ritzwoller v. Lurie ............................... 350 R B. Wood v. Dudley ................................. 351 R C. Reno v. Bull ..................................... 352 R D. Questions After Reno v. Bull. 353 R VI. THE GROWING UNCERTAINTY: 1930–1982. 356 R A. Forgone Legal Claims . 356 R B. The Nature of Pecuniary Loss . 358 R C. Fading Indignation with Fraud . 360 R 1. Consequential Damages . 360 R 2. Punitive Damages ............................ 361 R 3. The Wrongdoer Rule . 363 R VII. THE CONTINUING QUANDARY: 1980–PRESENT . 365 R * The author is a partner at Boies, Schiller & Flexner LLP in New York. J.D., University of Pennsylvania, 1995; A.B., College of William & Mary, 1992. Law clerk to the Honorable Joseph M. McLaughlin, United States Court of Appeals for the Second Circuit, 1997–98, and the Honorable Marjorie O.
    [Show full text]
  • Misrepresentation: the Pitfalls of Pre-Contract Statements
    inbrief Misrepresentation: the pitfalls of pre-contract statements Inside What makes a misrepresentation actionable? Causes of action Remedies Risk management Practical tips inbrief Introduction Prior to the conclusion of a contract What makes a misrepresentation complete the work in the stated timescale. parties will often make statements actionable? However, the statement of opinion carries with it an implied representation of fact, namely that to each other - during negotiations, There are various conditions that must be satisfied the supplier in fact held such an opinion. In an in tender documents and in a variety to make a misrepresentation actionable: appropriate context, it also carries with it an of other ways. Most pre-contract implied representation of fact that the supplier 1. There must be a statement by the statements are carefully considered. had reasonable grounds for holding that representor or his agent. The statement But sometimes statements are made opinion and perhaps also the further implied can be oral, written or by conduct. which are false or misleading. When representation that it had carried out a proper false statements induce an innocent 2. The statement must be a statement of fact analysis of the amount of time needed to (as opposed to a statement of opinion or complete the work. Proving that those implied party to enter into a contract the future intention). representations of fact were false would in consequences can be serious. principle lead to liability in misrepresentation. 3. The representation must be made to the The purpose of this guide is to representee or to a class of which the The key point is that actionable consider the litigation risks generated representee is a member.
    [Show full text]
  • In the Age of Statutes, Why Do We Still Turn to the Common Law Torts?: Lessons from the Statutory Prohibitions on Misleading Conduct in Australia
    JOBNAME: No Job Name PAGE: 57 SESS: 1 OUTPUT: Fri Nov 18 15:05:08 2016 /journals/journal/tlj/vol23pt2/part_2 In the age of statutes, why do we still turn to the common law torts?: Lessons from the statutory prohibitions on misleading conduct in Australia Jeannie Marie Paterson* and Elise Bant† One unique feature of Australian Consumer Law is that the protection afforded by the statutory prohibition on misleading conduct is not limited to individual consumers but extends to all parties in ‘trade or commerce’. Liability under the statutory regime does not require any element of fault and offers a broad range of remedies to successful plaintiffs. One might expect a diminished role for common law torts in this context. However, while this is perhaps true of the torts of passing off and deceit, the tort of negligent misrepresentation continues to influence commercial litigation. This article explores this trend and the possible reasons for it. What has happened in Australia in regard to the statutory prohibition on misleading conduct may provide lessons in other contexts and for other jurisdictions about the relationship between the common law and overlapping statutory claims. Introduction Australia is unique among many developed economies in containing in its statutory consumer protection law, a broad and categorical prohibition on misleading conduct,1 which extends beyond protecting individual consumers to all transactions in trade or commerce and which is repeated, with some variation, in numerous accompanying statutes.2 The statutory prohibition typically applies in a wider range of circumstances than torts operating in a similar field because liability is not premised on any element of fault and does not require proof of loss or damage.
    [Show full text]
  • Rr Briefing Guide 2019 Civil Fraud Copy
    private and public shares, tangible factors exist which make it necessary to and remove any documents and material facing the accusations. They are usually judge. Receivership orders are generally Cross-border Fraud of that agreement as a means of injuring the • When a person acts as a trustee to hold These may not necessarily have their origins in • Deliver up assets to the claimant’s This is because if you do: • The defendant knew that the representation Other Orders Available to Challenging Orders property (such as vehicles and land) and impose an order that covers assets outside of described by the order. coupled with a “gagging order” to prevent applied for after a freezing order is in place. claimant and that the claimant suffered a loss. property which belongs to the a fraud claim but fraud allegations may form solicitors or make a payment into court A leading, award-winning UK and global law firm was false Those Seeking to Recover intangible property (such as goodwill in a the UK. the bank informing their customer that This is because a receivership order is applied This can lead to investigations being beneficiary part of any legal action. • You lose control. The police have their • The defendant intended that the Assets Just as anyone is entitled to bring a civil fraud business or intellectual property rights). The primary purpose of a search order is the account information has been for on the grounds that a freezing order - conducted in a number of countries Examples of unlawful means conspiracy • When an agent agrees to act on behalf The court may also order that a receiver own methods of securing evidence representation would induce the claimant to claim, an individual who is named as the The court will look into the location and nature the preserving of evidence that is relevant disclosed.
    [Show full text]
  • Deceit and Negligent Misrepresentation in Maryland
    Maryland Law Review Volume 35 | Issue 4 Article 5 Deceit and Negligent Misrepresentation in Maryland Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Torts Commons Recommended Citation Deceit and Negligent Misrepresentation in Maryland, 35 Md. L. Rev. 651 (1976) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol35/iss4/5 This Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. Notes and Comments DECEIT AND NEGLIGENT MISREPRESENTATION IN MARYLAND Falsehood is dangerous. The law recognizes that the victim of a false statement may suffer personal injury, property damage, or pecuniary loss as surely as may the victim of another's careless act.' Traditionally the torts of libel and slander have allowed recovery to victims of defamatory false statements, and the tort of deceit has provided recovery for false state- ments fraudulently made.2 But in Maryland and elsewhere, courts have been cautious in permitting recovery in tort for loss caused by misrepresentations that have been made in good faith, but carelessly. As a result of this judicial caution, the Maryland case law on this subject is confused and perhaps some- what contradictory. The purpose of this Comment is to explore the distinc- tion between the traditional common law action for deceit and the more modern action for negligent misrepresentation first recognized by the Court of Appeals as a valid cause of action in Virginia Dare Stores, Inc.
    [Show full text]
  • That Pesky Little Thing Called Fraud: an Examination of Buyers
    02_West.3d Pages: [1049–1080] Date: [September 20, 2014] Time: [13:40] That Pesky Little Thing Called Fraud: An Examination of Buyers’ Insistence Upon (and Sellers’ Too Ready Acceptance of) Undefined “Fraud Carve-Outs” in Acquisition Agreements By Glenn D. West* In those states that have a high regard for the sanctity of contract, a well-crafted waiver of reliance provision can effectively eliminate the specter of a buyer’s post-closing fraud claim based upon alleged extra-contractual representations of the seller or its agents. But undefined “fraud carve-outs” continue to find their way into acquisition agreements not- withstanding these otherwise well-crafted waiver of reliance provisions. An undefined fraud carve-out threatens to undermine not only the waiver of reliance provision, but also the contractual cap on indemnification that was otherwise stated to be the exclusive remedy for the representations and warranties that were set forth in the contract. Practi- tioners continue to exhibit a limited appreciation of the many meanings of the term “fraud” and the extent to which a generalized fraud carve-out can potentially expand the universe of claims and remedies that can be brought outside the remedies specifically bargained-for under the parties’ written agreement. Given the frequent insistence upon (and continued acceptance by many of) undefined fraud carve-outs, and recent court decisions that bring the undefined fraud carve-out issue into focus, this article will examine the various (and sometimes surprising) meanings of the term “fraud,” and the re- sulting danger of generalized fraud carve-outs, and will propose some possible responses to the buyer who insists upon including the potentially problematic phrase “except in the case of fraud” as an exception to the exclusive remedy provision of an acquisition agreement.
    [Show full text]
  • CHAPTER 19 DECEIT BASED on FRAUD 19:1 False Representation
    CHAPTER 19 DECEIT BASED ON FRAUD 19:1 False Representation — Elements of Liability 19:2 Nondisclosure or Concealment — Elements of Liability 19:3 False Representation — Defined 19:4 Material Fact — Defined 19:5 Nondisclosure — Duty to Disclose 19:6 Concealment — Defined 19:7 False Representation — Reliance — Defined 19:8 Justifiable Reliance on False Representation — Defined 19:9 Justifiable Reliance — Nondisclosure or Concealment — Defined 19:10 Justifiable Reliance — No General Duty to Investigate 19:11 Reliance After Investigation 19:12 Statements of Future Intention or Promises as False Representations 19:13 Statements About the Future as False Representations 19:14 Statements of Law as False Representations 19:15 Statements of Opinion as False Representations 19:16 Affirmative Defense — Waiver by Plaintiff Before Plaintiff’s Complete Performance 19:17 Actual Damages 19:1 FALSE REPRESENTATION — ELEMENTS OF LIABILITY For the plaintiff, (name), to recover from the defendant, (name), on (his) (her) claim of deceit based on fraud, you must find all of the following have been proved by a preponderance of the evidence: 1. The defendant made a false representation of a past or present fact; 2. The fact was material; 3. At the time the representation was made, the defendant: (a) knew the representation was false; or (b) was aware that (he) (she) did not know whether the representation was true or false; 4. The defendant made the representation with the intent that (the plaintiff) (a group of persons of which the plaintiff was a member) would rely on the representation; 5. The plaintiff relied on the representation; 6. The plaintiff’s reliance was justified; and 7.
    [Show full text]
  • Liability for Innocent but Negligent Misrepresentations
    LIABILITY FOR INNOCENT BUT NEGLIGENT MISREPRESENTATIONS ARTHUR L. GOODHARTt ALTHOUGH I was never a member of the Yale Law School, I did have the great privilege of attending Professor Arthur Corbin's class on the law of contracts when I was in my senior year in Yale College in 1911-12. It was the clarity of the thoughts which he expressed in these lectures, and the force of the arguments with which he, in the kindest possible manner, demolished some of the views expressed by his students, including myself, that convinced me that the law was a subject of the most profound interest. I have therefore accepted with pleasure the invitation to contribute to the essays that have been written as a tribute to him. I cannot say anything that would be original con- cerning the branch of American law of which he is the greatest living master, so it has occurred to me that it might be of interest to him if I were to deal briefly with the recent English case of Hedley Byrne & Co. 7,. Heller & Part- ners, Ltd.,' which has given rise to much discussion. The problems in that case are of the kind that he has dealt with so successfully during his whole career, for they demand the accurate analysis which has made his books and articles of such great value. The facts of the case can be stated briefly. The appellants (the plaintiffs) are a firm of advertising agents who in 1957 placed orders for advertising with certain newspapers and television programs for one of their customers, the Easipower Company.
    [Show full text]
  • MKT323 TUTORIAL KIT.Pdf
    COVENANT UNIVERSITY NIGERIA TUTORIAL KIT OMEGA SEMESTER PROGRAMME: COMPUTER SCIENCE & MIS COURSE: MKT 323 DISCLAIMER The contents of this document are intended for practice and leaning purposes at the undergraduate level. The materials are from different sources including the internet and the contributors do not in any way claim authorship or ownership of them. The materials are also not to be used for any commercial purpose. 2 MKT 323: LEGAL ASPECT OF MARKETING QUESTION 1 1. Peter established a company last year for the production of detergent and disinfectant. In February, 2010, he came out with a detergent that has the same as Omo the name of the detergent is Omons. A lot of people bought Omons therefore there was a low demand for Omo, Unilever has now come to you to explain to them the term of Peter’s act. (a) What explanation would you give? (b) What are the common types of passing off ANSWER (1a) Its tort of passing off. Which is the selling of goods or the carrying on of business in such a manner as to mislead the public into believing that the defendant’s product or business is that of the plaintiff, Where it is proved, Unilever will be entitled to an injunction restraining Peter from continuing the wrong, to damages for any loss she has incurred thereby and to an account of the profits made by the defendant in consequence of the tort. Spalding v. Gamage: held that the plaintiff will recover damages for the loss of profits he has suffered as a result of customers being diverted from him to the defendant.
    [Show full text]
  • A Historical Approach to Negligent Misrepresentation and Federal Rule of Civil Procedure 9(B) Kimball Dean Parkert
    A Historical Approach to Negligent Misrepresentation and Federal Rule of Civil Procedure 9(b) Kimball Dean Parkert INTRODUCTION Imagine two investors in Houston invest separately in a publicly traded art gallery in New York City. Each reaches an agreement to buy preferred stock and the gallery offers each a painting to sweeten the deal. Shortly after both deals close, a prominent art critic discovers that approximately 50 percent of the gallery's art collection is inauthentic. This includes the paintings that the company gave to the investors. When the gal- lery acquired the art it had negligently assumed that the pieces were genuine. As a result, the value of the preferred stock tum- bles and the paintings become worthless. In order to recoup their money, the investors sue the gallery for negligent misrepresentation. Both investors file their claims in federal court-the first in the Southern District of New York and the second in the Southern District of Texas. For the paint- ings, both investors plead under state law. For the preferred stock, each uses state law and the Securities Act of 19331 ("Secu- rities Act"), the latter of which creates a cause of action if a per- son provides false information in a securities transaction.2 For each claim the investors provide the minimal amount of specific- ity required under the federal pleading standard-Federal Rule of Civil Procedure (FRCP) 8(a)-which requires "a short and plain statement ... showing that the pleader is entitled to re- lief."3 The gallery moves to dismiss all claims. Although the complaints contain the same allegations, the district courts reach different results.
    [Show full text]
  • The Economic Loss Rule and Negligent Misrepresentation
    Portfolio Media. Inc. | 111 West 19th Street, 5th Floor | New York, NY 10011 | www.law360.com Phone: +1 646 783 7100 | Fax: +1 646 783 7161 | [email protected] The Economic Loss Rule And Negligent Misrepresentation Law360, New York (October 3, 2016, 10:55 AM EDT) -- In California, the economic loss rule has played a critical role in the development of the dichotomy between tort and contract law. The rule precludes plaintiffs from recovering economic losses which result from the use of a product[1]; in other words, plaintiffs may recover damages against a manufacturer for bodily injury caused by a product, or for damages to property other than the product itself.[2] At its heart, the rule’s purpose is to protect consumers’ reasonable expectations regarding recovery for injuries or damages caused by a product, without exposing manufacturers to an endless scope of liability.[3] This article focuses on the rule’s application to negligent misrepresentation causes of action, an issue that has resulted in myriad conflicting opinions by California federal district courts and the William "Skip" Martin United States Court of Appeal, Ninth Circuit. The Development of the Economic Loss Rule in California In California, the rule can be traced back to the California Supreme Court’s decision in Seely v. White Motor Company.[4] In Seely, the California Supreme Court held that economic losses are not recoverable in an action for products liability or negligence.[5] The plaintiff in Seely purchased a truck manufactured by the defendant, White
    [Show full text]
  • Common-Sense Construction of Consumer Protection Acts
    SCHWARTZ FINAL.DOC 2/21/2006 9:54:23 AM Common-Sense Construction of Consumer Protection Acts Victor E. Schwartz* & Cary Silverman** I. INTRODUCTION ............................................................................... 3 II. THE HISTORIC FOUNDATION OF CONSUMER PROTECTION ACTS ........................................................................................... 5 A. Consumer Protection Prior to the Twentieth Century............. 6 B. Origin and Development of Federal Government Regulation and Enforcement ...................................................................... 7 C. Why Congress Placed Enforcement Solely With the Government and Not With Private Lawyers Under the FTC Act ......................................................................................... 11 III. STATES ADOPT CONSUMER PROTECTION LEGISLATION.............. 15 A. Elements Necessary to Bring a Private Claim....................... 17 1. The Need to Show Reliance ............................................ 18 2. The Requisite Intent ........................................................ 20 3. The Need to Show Injury In Fact and Damages.............. 21 B. Available Remedies................................................................ 22 C. Availability of Recovery of Attorneys’ Fees and Costs.......... 25 D. Availability of Trial by Jury................................................... 27 E. Availability and Restrictions on Class Action Lawsuits ........ 28 F. Statutes of Limitations...........................................................
    [Show full text]