some lawsuits to go forward against the government is limited for policy reasons. This is because these suits may hold the government responsible for too many misfortunes, or prevent the government of agency from engaging in certain duties without the threat of exorbitant financial responsibility. The second prong of the Anns test thus prevents the government from becoming an insurer of all potential harm which the government is found to have a proximate relationship to.
The test set forth in Anns is important to understand when discussing Cooper v. Hobart, which was adopted as the test for the duty of care for the government and its agencies after Kamloops v. Nielson. This is because Cooper v. Hobart is the case which is said to have redefined Anns into the current standard, the Cooper-Anns test.
Facts of Cooper v. Hobart
Cooper v. Hobart is a case involving the Registrar of Mortgage Brokers, a statutory regulator of mortgage licenses. In the case, Eron Mortgage Corporation was a mortgage broker as defined by the Mortgage Broker’s Act. “Eron acted as a mortgage broker for large syndicated loans. It arranged for numerous lenders (or investors) to pool their funds for the purpose of making a single loan to a borrower, which was typically a developer of commercial real estate. The syndicated loans were made in the name of Eron or one of its related companies, which held the security in a trust for the investors. Cooper, an investor, had advanced money to Eron. Hobart, in his official capacity as Mortgage Broker Registrar, suspended Eron’s mortgage broker’s license in October of 1997 because Eron was allegedly using the funds of their investors for unauthorized purposes. Shortly after the suspension of its license, Eron we...
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...tending the current duty of care to a new duty of care, there were policy reason to find that there was not a proximate enough relationship between Cooper and the Registrar to establish a duty of care. The Registrar’s duties under the statute did not give rise to a duty of care to the plaintiff. However, as the new Cooper-Anns test includes the considerations of policy at both stages of the analysis, one can assume that if policy reasons are in favor of recognizing a new duty of care, the court will, in fact, recognize it.
There is a question of whether the court should have recognized a new duty of care in Cooper v. Hobart. In the Hobart case, the statute did not establish a duty of care to the plaintiffs/investors. Furthermore, the Registrar owes a duty to act in the interest of the public at large which may at time have competing interests with investors.
The amendments to the Land Title Act 1994 introduced in s. 185(1A) and s. 11A requiring reasonable steps to be taken to ensure the person who executed the instrument as mortgagor is identical with the person who is, or who is about to become, the registered proprietor of the
INTRODUCTION 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.
In the Kamloops v. Nielson case, a house being built did not pass the inspection by the city and construction was stopped, however the builder ignored the requests and continued to build the home without passing the necessary requirements for safety. The inspector also chose not to follow-up on the builder and allowed him to build the house without proper approval. The house was then sold to a couple that was unaware of the history of the home, and once problems arose with the foundation, they sued the municipality and the vendor. Similar to the Anns v. Merton case, this case questioned whether duty of care could be expanded to municipalities, and the presiding judge used the Anns test in determining duty of care.
Australian Legal Case: The Mabo Case The Mabo case commenced in the late 70's about an Aborigine Eddie Mabo who fought for his land on Murray Island, part of the Torres Strait. The issue that started the court case was when Mr Mabo appealed for a permit from the Queensland Government to visit the island. His proposal was declineed so he was unable to return home to visit his homeland.
The State of Missouri requires professionals to obtain a license before providing services to the public, in many careers. Misconceptions hold that issuance of licenses is just something that is needed in order to charge money for services. Licenses are issued however, because the public puts their trust in professionals who are more knowledgeable than they are. Many people today want to avoid the hassles and risks associated with the transfer of land, so they put their trust in licensed real estate professionals. The Missouri Broker Disclosure Form (MBDF) is a document used by the Missouri State Real Estate Commission that attempts to provide the public, knowledgeable information, about agency relationships (the fiduciary relationship between buyers/sellers and agents). It also holds real estate agents and brokers somewhat accountable to the public in representing them in their best interest; all real estate agents are required to present and explain this form to buyers and sellers. It seems in today’s society that greed, corruption, and self-interest has spread like an infectious disease and we live in a world where it is risky to put our trust in other people. The government tries to respond to that corruption by putting into place more regulations and laws to keep people honest. In summary, the Missouri Broker Disclosure Form is a document designed to help the public make an informed choice about the agency type, of the people that they are putting trust in, and the fiduciary commitments due to them.
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In the past recent years, we have heard in the news around cases involving assault and battery cases involving professional athletes or other celebrity figures, however, it is “not uncommon in the sport and recreation environment for a person to be harmed as a result of another’s intentional conduct, both on and off the “field of play” Cotten & Wolohan, p. 214). Nonetheless, it is important to understand that the term “liability” is often not limited to athletes-as-combatants. For example, in Law for recreation & sport managers uses an example from page 215 that discusses a youth football game regarding how a referee was attacked by three coaches and also was tackled by a 14-year-old player, resulting in charges of felony battery. Thus, Hamakawa remarks to say, ”recreation and sport managers should be aware that their organizations are not immune from incidents involving participants, parents and other spectators, coaches, and officials, security
In Terry v. Ohio (1968), Terry and two other men were noticed by police officers to be hanging around a store, and seemed to possibly be “casing a job.” They were afraid the men might be getting ready to rob the store, due to their appearance and their actions. An officer stopped the men and frisked them. They found guns on them, and arrested them (Oyez, n.d.).
Axiak v Ingram (2012) 82 NSWLR 36 (Axiak) was extremely pertinent, standing as the “only decision of this court dealing with the construction of the blameless accident provisions of the MACA”. Critically, the case established that ‘non-tortious negligence’ is excluded from the MACA’s definition of “fault” in s3. Such provisions artificially place fault upon the driver in order to secure CTP claims for victims.
The duty of prosecutorial disclosure is one that is safely entrenched in our understanding of the legal system. The prosecution must disclose evidence that relates to the case and is favorable to the defendant. While not explicitly stated in that duty, it also means that the histories of the witnesses are available to the defense. And when police officers are called to testify at cases, their disciplinary histories come into play as a factor in their credibility. Taking all this prior information into account when addressing the dilemma of the police officer with a good record who used the department computers to look at pornography using his login information, and then lied about it only to confess when the internal investigation proved
The case involved several questions the Supreme Court had to answer. The first question was whether or not Marbury had a right to the commission. The Court decided that he did have the right because the appointment was issued while Adams was still in office and took effect as soon as it was signed. The next question was to determine if the law gave Marbury remedy. The Court found that the law did provide remedy for Marbury. Adams signed the appointment and Marshall sealed it thereby giving Marbury legal right to the office he was appointed to. Therefore, denying delivery of the appointment to him was a violation of his rights and the law provides him remedy. The third question was to determine whether the Supreme Court had the authority to review acts o...
The five main issues involved with this case are: Does Marbury have the right to the commissions? Does the law grant Marbury a remedy? Does the Supreme Court have the authority to review acts ...
Since the dawn of time for a society to work it needs to have a level of structure that applies to everyone and is understood by everyone. Australian legal system is broad and complex. It is the nature of the encompassing laws and regulations which reflect how people, organisations and governments behave on the many different levels of operation and these are created to make sure that everyone understands their rights and obligations. There are two sources of Law in Australia: Statute Law regulated by Parliament and comprise of legislations and acts; and Judge-made Law or Common Law where decisions made by judges are based on previous cases.
The Australian Legal System has a rich and detailed history dating from 1066. Law is made in Parliament. We have four sources of law and three courts with different jurisdictions that interpret the law when giving out justice. Important doctrines act as the corner-stones of our legal system. There is a procedure in the courts for making appeals. Separation of powers exists between officials in the courts, the parliament and the Executive. Everyone in Australia is treated equally under the Rule of Law, no matter their office or status. The Law is always changing as society changes, but it can never be perfect and cannot please everyone.
Despite it’s longevity, consideration is not without criticism. Lord Goff observed in White v Jones that: ‘our law of contract is widely seen as deficient in the sense that it is perceived to be hampered by the presence of an unnecessary doctrine of consideration’. Abolition has been urged. Since the publication of the Law Revision Committee’s report in 1937, la...