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Cases

O v P

Central London County Court 2011

Cruickshanks recently won a case on behalf of a selling client of a £3.25 million property.

Our client was sued for two commissions in the Central London County Court.

Agent 1 had shown the property to the ultimate purchaser before the seller had signed their Terms and Conditions. The ultimate purchaser then through reasons of their own decided that they could no longer trust Agent 1 and viewed the property again with Agent 2 a few days later. By this time our client had signed Agent 2's Terms and Conditions.

During the course of disclosure and exchange of witness statements it was disclosed that t Agent 1 had essentially "amended" their detailed journal to suggest that they had more timely dealings with the sellers than they actually did. After a 3 day trial at the Central London County Court, and disclosure of the "real" detailed journal, the Judge found Agent 1's evidence dishonest and fraudulent. He placed no reliance on any of the Agent witnesses. Our client was awarded costs on an indemnity basis in excess of £40,000.

P A Smith t/a Alexander Watson -v- J Marks

Uxbridge County Court 2009

Agent 1 had shown the property to the ultimate purchaser not once but twice but failed to follow up and extract an offer. The Purchaser viewed the same property but a month later with Agent 2. The previously well settled concept of "introduction" to the property as being the trigger event for payment of commission no longer applies.

The test is that applied by the Court of Appeal in Foxtons v Pelkey Bicknell http://www.bailii.org/ew/cases/EWCA/Civ/2008/419.html. Which agent was the effective introducer of the purchaser to the transaction, not just the property? In assessing what is "effective" the court considers what role the agent played in the negotiations on price and terms etc. Agent 2 succeeded because he had negotiated on price and shepherded the smooth passage of the transaction. Our client received a full costs award. The claimant appealed. The appeal was disallowed.

R V K STARKOV and Another

In the Crown Court at Snaresbrook Case No. T2005/8036

John Cruickshank acted as Solicitor-Advocate for the second defendant who was charged with conspiracy to defraud and theft of sound recording equipment and original recordings belonging to Yusef Islam (a.k.a. Cat Stevens) valued in excess of £500,000. After three days of legal argument on the admissibility of evidence and a submission that no jury hearing the full evidence would convict, the prosecution offered no evidence, the defendants were acquitted and costs were recovered from the Crown.

Hamilton and Another v Papakura District Council and Another

Cruickshanks acted for the defendant.

The Hamiltons had been supplied water by Papkura D.C, who had received their supply from Watercare. It was alleged that the water supplied was contaminated by the weed spray Grazon in the catchment area for the lake from which the town water supply was taken. Damage occurred to the Hamiltons' cherry tomato crops at two of their properties, but not a third where the property was not serviced by the town's water supply. Their claims against Papkura D.C were in contract and negligence and nuisance and under the principle in Rylands v Fletcher (1869). The High Court, however, rejected these claims on the basis that Watercare complied with the 1995 drinking water standards, and owed no duty to the Hamilton's of a higher quality of water for their particular horticultural purposes.

Zandfarid v Bank of Credit and Commerce International SA (In Liquidation)

Chancery Division [1996] 1 W.L.R 1420

Cruickshanks acted for the applicant. The applicant and his wife executed a charge over their home in favour of BCCI. After BCCI's compulsory winding up, it began proceedings to enforce the security. The claimant's wife alleged that the security was unenforceable against her on the grounds of undue influence. The size of the security was sufficient to discharge the debt owed to BCCI. BCCI presented a bankruptcy petition against the claimant claiming a statement under the Insolvency Act s.269 that it would give up its security in the event that a bankruptcy order was made. The claimant contended that the bankruptcy order should not be allowed to be used to circumvent their other claims under other heads against BCCI. It was held, dismissing the appeal that BCCI could enforce its security over the property by virtue of the Law of Property Act 1925 s.30 without recourse to bankruptcy proceedings. S.269 was available to BCCI even if the debtor had no other creditors and there was no improper use by BCCI of the bankruptcy procedure.

RAMA V MILLAR

Cruickshanks, acted for Millar.

A dispute arose between two partners over compensation for breach of fiduciary duty. A scheme had been devised to take advantage of the different rates of interest payable for loans of New Zealand Dollars in different parts of the world. R had entered into a settlement without M's approval and against his wishes having taken steps to conceal what had been calculated on the basis of the completion of the transactions as originally contemplated.

This was a claim for the amount of loss as a result of Rs breach of fiduciary duty not a claim that a fiduciary should account for an unauthorised profit. Although partners had to act honestly and fairly towards each other, this did not mean that one partner could require another to undertake a financial risk to which he had not agreed. The judges held that M could not require R to hold on and be further exposed to financial risk.

GRANT ADAMS -V- THE QUEEN (1995) WLR 52

This firm was instructed on behalf of a former director of Equiticorp Holdings Limited, in relation to his appeal from a criminal conviction for conspiracy to defraud. It was the largest case involving corporate fraud in New Zealand's legal history. The High Court trial lasted in excess of four months. Because of the complexity of the financial arrangements around the globe, the High Court case used sophisticated computer spread sheets and flow charts to trace funds. In the first instance, the petition for leave to appeal was successful, and is one of seven in the entire history of the Privy Council where such petitions from the Court of Appeal of New Zealand have been successful

PREBBLE V TELEVISION NEW ZEALAND LTD

Privy Council [1994] 3 All ER 407

Cruickshanks acted for the defendants. New Zealand television transmitted a programme alleging that the Hon Pebble, then the Minister for State-Owned Enterprises in New Zealand had secretly conspired with certain highly placed businessmen and public officials to give the businessmen an unfair opportunity when certain state-owned assets were privatised to obtain unduly favourable terms, and then following his sacking, arranged for incriminating documents and computer files to be either shredded or deleted. The claimant's brought an action for libel against the defendant.

The basic concept underlying art 9 of the Bill of Rights was the need to ensure so far as possible that a member of Parliament and witnesses before committees of Parliament could speak freely without fear that what they said would later be held against them in court. That principle coupled with the wider principle that the courts and Parliament were both astute to recognise their respective constitutional roles and that the courts would not allow any challenge to be made to what was said or done within the walls of Parliament in performance of its legislative functions and proceedings.

A stay was not granted since the burden of the libel related to acts done by members of the government out of the House to which parliamentary privilege had no application and the allegations struck out were comparatively marginal.