HELD. The Superior court followed Xxxxxxx, and awarded the tenant damages. The Court of Appeal overturned the judgment. The C.A.Q. held: That the lease expressly stated that the tenant was not entitled to any exclusivity arrangement whatsoever. That a use clause did not create an implicit exclusivity arrangement. That in general, LL’s are free to lease space to whomever they choose, unless they expressly provide for an exclusivity agreement in their lease. That the conduct of the landlord in the case did not amount to a violation of the duty of good faith, or an abuse of rights, especially given the fact that the lease contained an express exclusion of any possible exclusivity clause. Although the LL does generally have an obligation to maintain an appropriate balance/synergy in his premises, he may diverge from this obligation where he expressly provides for such in the lease. The LL’s motivation was not malicious, he just wanted to attract more customers to his shopping centers. The presence of a good competitor would not necessarily harm a tenant in the long term. It would certainly benefit the other tenants of the center in the long term, by attracting customers, and this might even drive up the plaintiff’s own sales! Xxxxx: Basically, the C.A.Q. overturned Posluns. Exoneration and Indemnity Clauses Landlord Lease Examples: LL exoneration Example The right to carry out repairs, additions, block light etc… without any recourse for the tenant: S. 6.4, “The Landlord also reserves the right to replace or rearrange any or all of said Common Areas and Facilities, without recourse by the tenant against the LL by reason of such removal or replacement, change of from or intended use or rearrangement… The LL shall not be liable for any damage caused to the Tenant or to the Tenant’s officers, employees, agents, representatives or visitors, or to any other person utilizing the Common Areas and Facilities, nor for any damages resulting from the utilization of the Common Areas and Facilities.
HELD allowing the appeal and awarding costs to the appellant in the High Court and in the appeal: The parties made Article 4.3.2 of the agreement a condition precedent to arbitration. The question whether the Claim was time-barred and prescribed raised an issue of procedural arbitrability, which rule 8(a) of the Construction Industry Arbitration Rules of the American Arbitration Association puts within the purview of the arbitrator. Since the respondent, DCG Properties, unsuccessfully challenged the arbitrator’s assumption of jurisdiction in the dispute, and did not appeal the arbitrator’s decision through the arbitral appeal process, the High Court should not have entertained a case which DCG Properties brought on the same issue. That litigation occasioned the court to make a conflicting decision to that of the arbitrator on the same grounds as DCG Properties had unsuccessfully challenged the arbitration. Saint Lucia has a strong public policy in favour of arbitration which the Arbitration Act exemplifies. The court, in support of that policy, should cause parties to act in accordance with the processes provided by that Act. Xxxxx Xxxxxx v Xxxx Xxxxxx Xxxxxxxx Inc., 537 U.S. 79 (10 December 2002) Contec Corporation v Remote Solutions Co. Ltd., 398 F.3d 205 (2d Cir. 2005), adopted. JUDGMENT [1] XXXXXXX, X.X.: The outcome of this appeal hinges on the interpretation of certain clauses contained in a contract between the parties in this appeal, which relate to claims and arbitration. Contractual provisions [2] The grounds of appeal, which will be set out later in this judgment, mirror some of the provisions that the agreement between the parties contain, which counsel for White Construction urged us to consider in the appeal. Other provisions were referred to in the submissions by both counsel. I set out their contents at this juncture in order to put this appeal into the contractual context. [3] The contractual provisions to which counsel referred us are Articles 4.3.1, 4.3.2, 4.4.1, 4.4.2, 4.4.3, 4.6.1, 4.6.2, 4.6.3, 13.1.1, 13.3.1, 13.4.2 and 13.7.1.
HELD. Such employee may also displace a less senior employee (utilizing total City seniority) in another department in a classification which the employee has previously held and performed in a satisfactory manner.
HELD. (1) Xxxxxx was acting as complete stranger to the contract between Xxxxxxxxx and Dew and thus on account of privity of contract couldn’t xxx Xxxxxxxxx for breach of its agreement with Dew. It was a mere beneficiary to it on account of Price Maintenance Clause.
HELD. The Court held that:
HELD. The term “charge” is not defined in the Act. Nevertheless, taking into account the Act’s overall objectives of consumer protection against hidden costs, the parties are required to quantify the charge and specify the manner in which it is to be paid when they determine their contractual terms and conclude the credit agreement. However, the profit shares, as envisioned by the parties, had no fixed repayment date, were not guaranteed and ran the possibility of not eventuating. Furthermore, as the amount was to be determined by the Appellant at his sole discretion, the profit share also failed to meet the requirement of fixed quantification. Thus, said profit share did not qualify as a charge under the Act. As a result, the loans did not amount to credit agreements, in terms of Section 8(1) of the Act, as no charges were attached to them. As such, the Respondent was not required to register as a credit provider. The Court upheld the decision of the court a quo, holding that the cheques in repayment of a loan are exempted from the operation of the Act and that the Respondent was entitled to invoke the provisional sentence procedure to enforce his claims.
HELD. Xxxxxx Xxxx shall issue two separate checks for the penalty payment: (a) one check made payable to OEHHA in the amount of $1,500.00 representing 75% of the total penalty; and (b) one check to “The Chanler Group in Trust for Xxxxxxx X. Held” in the amount of $500.00 representing 25% of the total penalty. Two separate 1099s shall be issued for the above payments. The checks and 1099s shall be delivered to the addresses listed in Section 3.3 below.
HELD. Red Steer shall issue two separate checks for the penalty payment: (a) one check made payable to OEHHA in the amount of $2,250.00 representing 75% of the total penalty; and (b) one check to “The Chanler Group in Trust for Xxxxxxx X.. Held” in the amount of $750.00 representing 25% of the total penalty. Two separate 1099s shall be issued for the above payments. The checks and 1099s shall be delivered to the addresses listed in Section 3.3 below.
HELD. Action allowed. The counterclaim was dismissed. The defendants were ordered to pay the amounts owing under the agreement. Damages of $18,000 were awarded for the failure to deliver all of the required shares to Fraser. Fraser's remedy for the defendants' default was not limited to executing upon the security. The settlement established a security and stated that if that security was called upon, liability for the shortfall was limited. Such wording did not prevent Xxxxxx from declin- ing to execute upon the security. The unius est exclusio alterius maxim did not apply, since the set- tlement did not specify two options that were to apply upon default. The settlement was clear as to what the defendants' obligations were, and the defendants failed to fulfill these obligations. Xxxxxx gave the defendants notice of the default. Xxxxxx'x activity of selling his shares had no significant impact upon the share value in the relevant period. Although Xxxxxx failed to use his best efforts to obtain a release, as required by the settlement, there was no evidence that the defendants sustained damages as a result. Statutes, Regulations and Rules Cited:
HELD. Judgment of the circuit court reversed and case remanded for further proceedings. The plain language of section 12-201(n)(1) of the Family Law Article (“FL”) requires a parent to keep a child more than 35% of the overnights in order to receive the benefit of shared physical custody for child support purposes. If a parent establishes that he or she actually keeps the child overnight for more than 35% of the year, the court’s analysis should begin and end with FL § 12-201(n)(1). If, on the other hand, a parent cannot demonstrate that he or she keeps the child for more than 35% of the overnights even though the extant visitation order awards that parent more than 35% of the overnight visitation, the court may, in its discretion, nevertheless use the shared physical custody child support formula as authorized by FL § 12-201(n)(2). In exercising its discretion under FL § 12-201(n)(2), the court may consider evidence concerning the parent’s failure to keep the child more than 35% of the overnights as awarded in the visitation order. On remand, the circuit court should make the threshold factual determination under FL § 12-201(n)(1) whether Xxxxxxxx actually kept the children for more than 35% of the overnights in a year. If there were legally sufficient evidence that Xxxxxxxx kept the children more than 35% of the overnights, the statutory definition of “shared physical custody” in FL § 12-201(n)(1) would be satisfied and child support would be calculated accordingly. If, on the other hand, the evidence demonstrated that Xxxxxxxx had not met the 35% of actual overnights threshold, Xxxxxxxx xxx request the court to use the shared physical custody child support formula based on the amount of visitation awarded in the Consent Custody Order, but only if the court determines that the Consent Custody Order on its face gives Xxxxxxxx 35% or more of the overnights. Assuming that the Consent Custody Order awards Xxxxxxxx xxxx than 35% of the overnights, the court may then exercise its considered discretion pursuant to FL § 12-201(n)(2) to calculate child support based on shared physical custody. Circuit Court for Montgomery County Case No. 85056-FL REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 432 September Term, 2017 XXXXXXXX XXXX
