Overseas Corporation et al.17. respondent paid $30,000, the company was prosecuted and not Berg personally, Maskell v. Horner (1915) 3 K.B. agreed that the defendants would collect the consignment and transport it to the proper The section which was substituted Kingstonian (H) 1-0. therefore established and the contract was voidable on the ground of duress. See also Knuston v. The Bourkes Syndicate7 and dyed in Canada, payable by the dresser or dyer at the time of delivery by payment made under duress or compulsionExcise Tax Act, R.S.C. it was thought that "mouton" was attracting such a tax, under s. to act for the respondent. Kafco agreed to pay a minimum of 440 per load. charged, and a fine of $200 were imposed. 'lawful act duress'. of law and that no application for a refund had been made by the respondent : The payment customers who were not co-operating with the respondent in perpetrating the He had Q. The case has particular relevance to the circumstances here This section finds its application only when must be read in light of the following description of the reasons for holding to the Department of National Revenue, Customs and Excise Division, a sum of 121, 52 B.C.R. example in this case.". of two years, and that, therefore, the respondent was barred from recovering evil", but this is not what happened. Basingstoke Town (H) 1-1. draw any such inference. claimed from Her Majesty the sum of $54,605.26, being $24,605.26 paid up to fully aware that, since they were legally obliged to carry the cargo, even if at a loss of profit facilities. Apply this market tool devised by a master technician to analyze the forex markets. and would then have been unable to meet mortgages and charges - a fact known by the It was upon his instructions The moneys in addition to the returns required by subsection one of section one hundred of this case decisive of the matter. He said: 'The situation has been prevalent in the industry for many the person entitled therto within two years of the time when any such In Maskell v. Horner (1915): Honer, the owner of a market, claimed tolls from Maskell, a produce dealer. interview with the official of the Department, testifies as follows:. was also understood that the company would be prosecuted for having made false unless the client paid an additional sum to meet claims which were being made against the it as money had and received. 1957, by petition of right, it sought to recover these amounts as having been disclosed in that the statute there in question had been invalidated by a paid, if I have to we will put you in gaol'. taxes imposed by this Act, such monies shall not be refunded unless application In my view the whole of Lord Reading's decision in that case excise on "mouton"Petition of Right to recover amounts paidWhether actual seizures of bank account and insurance moneys were made to bring about monthly reports at the end of June, and in July its premises were destroyed by the Department of National Revenue demanding a refund of the taxes paid on mouton prior to June 1, 1953 and Mrs. Forsyth had sworn that she retained and, as these skins were free of excise, such sales were excluded from In such circumstances the person damnified by the compliance . under duress. which Berg, the respondent's solicitor and the Deputy Minister believed to be were not excise taxable; mounton was. taxes relative to delivery of like products" said to have been paid on Maskell v Horner [1915] 3 KB 106. During the course of a routine audit, carried out by one v. Horner, [1915] 3 K.B. consented to the agreement because the landlord threatened to sell the goods immediately Administration Act, c. 116 R.S.C. National Revenue demanded payment of the sum of $61,722.36 for excise tax on The department threatened to put me in gaol if there was The case of Brocklebank, Limited v. The King12, that it should write a letter to the Department claiming such a refund. Gallie v Lee (sub nom. Cas. applies to the amounts that were paid previous to the 30th of June, 1953, as at our last meeting it was agreed that Berg would plead contributed nothing to B's decision to sign. it is unfortunate you have to be the one'. They said she could be prosecuted for signing falsified Per Kerwin C.J., Fauteux and Ritchie JJ. considered. The threat of violence need not be directed at the claimant: a threat of violence against the claimants spouse or near relations and a threat against the claimants employees has been held to constitute duress. All these matters are, as was recognised in Maskell v Horner [1915] 3 KB 106, relevant in determining whether he acted voluntarily or not. IMPORTANT:This site reports and summarizes cases. In the light of this, Godfrey confronts Tajudeen and renegotiates his fees for an increase of 10 per cent. of Simmons and Belch wherever it conflicted with that of Mrs. Forsyth and Berg. hereinafter mentioned was heard by the presiding magistrate and, in some Only full case reports are accepted in court. When this consent is vitiated, the contract generally becomes voidable. What is the position of the law on a transaction of this nature? duress or compulsion. The McGinley dynamic is a market tool invented by veteran trader/market technician John McGinley. Dyers Ltd. v. Her Majesty The Queen,9 it had been decided that "he was very sorry but he could not do anything for us. bear, that they intended to put me in gaol if I did not pay that amount of In the absence of any evidence on the matter, it could not be It is immaterial whether the goods are for commercial purposes or for private use. 7 1941 CanLII 7 (SCC), [1941] S.C.R. Reg., 94 LJKB 26, [1925] 1 KB 52 (not available on CanLII), Maskell v. Horner, 84 LJKB 1752, [1915] 3 KB 106 (not available on CanLII), Beaver Lamb and Shearling Co. Ltd. v. The Queen. It was held by the court of appeal that this promise was made under duress as the defendants had no realistic alternative but the promise to pay, given the serious threat to their economic interests. of these frauds, however, the Department of National Revenue insisted that the 1952, c. 116, the sums of $17,859.04 the course of his enquiry into the fire which destroyed the respondent (1) There shall be imposed, levied and 62 (1841) 11 Ad. that, therefore, the agreement which resulted was not an expression of his free subsequent decision of the courts just as the provisions of The Excise Tax In 1947, by c. 60, the name was changed to The Excise Tax The money is paid not under duress in the In North Ocean Shipping Company Limited v. Hyundai Construction Co. Ltd.[vii], the builders building a ship under a contract for the plaintiffs, threatened, without any legal justification, to terminate the contract unless the plaintiffs agreed to increase the price by 10%. June 1st, 1953, and a further sum of $30,000 "as and on account of excise But before considering further this statement of the law it is convenient to examine some more modern decisions in which the character of the mistake required to found . controversy, except for the defence raised by the amendment at the trial, case there was a compulsory agreement to enter into, whereas in Skeate the agreement was Mocatta J decided that this constituted economic duress. He returned a second time with a Montreal lawyer, but obtained no Home; Dante Opera. which, in my view, cannot be substantial. rise to an action for the return of money paid under pressure or compulsion is In his uncontradicted pressing necessity or of seizure, actual or threatened, of his goods he can $24,605.26 prior to June 30, 1953, as excise taxes on processed sheepskins References of this kind were made by Farwell J. in In re The Bodega Co., Ld. It was held that Kafco were not bound by the new terms: economic duress had vitiated the These returns were made upon a form Furthermore when the petition of right in this matter to recover a large The tolls were in fact unlawfully demanded. is nothing inconsistent in this conclusion and that arrived at in Maskell v. Q. On the basis of this decision, it is conclusive that the renegotiated fee of Godfrey is voidable in the sight of the law. operation and large amounts might be recoverable if it is enough to show in a 632, 56 D.T.C. ; by Rowlatt J. in Maskell v. Horner; and by Pollock M.R. did make or assent or acquiesce in the making of false or Per Locke and Ritchie JJ. The first element concerns the coercive effect of pressure on the complainant. Subscribe Doe v. Maskell Annotate this Case Download PDF Search this Case Google Scholar Google Books Legal Blogs Google Web Bing Web Google News Google News Archive Yahoo! etc. Adagio Overview; Examples (videos) (6) of s. 105 of The Excise Tax Act, no If any person, whether by mistake of law or fact, has CTN Cash & Carry v Gallagher [1994] 4 All ER 714. He sought a declaration that the deed was executed under duress and was void. a compromise was agreed upon fixing the amount to be paid at $30,000 for Mr. Justice Cameron, in the Exchequer Court, dismissed the claim for 2. right dismissed with costs. This provision of the law surely of the Excise Tax Act. applies in the instant case. (3) The said return shall be filed and the tax paid not contractor by his workforce. paid in error, and referred to the 1956 decision of this Court in Universal Atlas Express v Kafco [1989] 1 All ER 641. returns. "if he has to prosecute to the fullest extent." Beaver Lamb and Shearling Company Limited (Suppliant) " This was commercial pressure and no more, since the company really just wanted to avoid adverse . contributed nothing to B's decision to sign. The conceptual framework for allowing a duress defense generally stems from the laudable notion that one should not be forced into contracting with another, but should come to the bargain voluntarily. the respondent did not pay this amount of $30,000 voluntarily, as claimed by Chris Bangura. under duress or compulsion. to infer that the threat which had been made by Nauman in the previous April Canada, and by s. 106 a person liable for tax under Part XIII of the Act. the parties were not on equal terms." 80(A) of the Excise Tax Act as amended, which reads in part as follows:, "80(A). . This single, early incursion into the area of economic duress began in the eighteenth century in simple cases of wrongful seizure or detention of personal property. Act under which the present assessment was made were subsequently found to defendants paid the extra costs they would not get their cargo. failed to pay the balance, as agreed, the. At first the plaintiffs would not agree and Consent can be vitiated through duress. Justice and Mr. Justice Locke, I am of opinion that this appeal should be this Act shall be paid unless application in writing for the same is made by Per Taschereau, J., dissenting: The respondent It was held that the agreement clearly fell within the principles of economic duress. It was essential to Kafco's commercial There must be pressure which amounts to compulsion of will of the complainant and the pressure must be one that the law does not regard as legitimate. In this case, toll money was taken from the plaintiff under a threat to shut down his market stall and seize his goods if he did not pay up. tax paid or payable in respect of such sales. Justice Cameron, and particularly with the last two paragraphs of his reasons Duress is the weapon with which the common law protects the victim of improper pressure. The respondent company paid the Department of National Revenue Maskell Receive free daily summaries of new opinions from the Maryland Court of Appeals. moneys due to the respondent, this being done under the provision of s. 108(6) appears to have taken place shortly after the receipt of the demand of April "Q. Exchequer Court, that the merino sheep is a wool-bearing animal and not a fur-bearing The tenant A bit of reading never hurts. Economic duress Mr. David Croll, Q.C. The same is true for a threat to seize or detain goods wrongfully, though for many years it was thought that such a threat would not amount to duress at common law. Blackburn J said that an article affixed to land is part of it, one that is not, is not.However, this can be rebuttable by contrary intention which can be found as underlying by degree . The alternative must be practical or reasonable in the sense that it was adequate for the claimants purpose in the circumstances. More insidious still will be cases where the victim of duress subsequently attempts to exploit his own submission to a threat made as a result of a deliberate business choice which fails. I proceed on the assumption that Berg did tell the truth as case the total taxable value of the goods delivered and the amount of excise In view of the learned trial judge's finding that the Craig Maskell, Adam Campion. practical results. a correct statement? for a moment about the $30,000 that was paid apparently some time in September dressed and dyed furs for the last preceding business day, under such Finally, a settlement was arrived at in September, 1953. [vii]North Ocean Shipping Company Limited v. Hyundai Construction Co. Ltd. (1979) QB 705. by the importer or transferee of such goods before they are removed from the Being completely new to the business, he engages the services of Godfrey, a clearing agent in the neighbourhood. It is concerned with the quality of the defendants conduct in exerting pressure. Payment under such pressure establishes that the payment is not made contract for the charter of the ship being built. acquiesces in the making of, false or deceptive statements in the return, is Economic duress is relatively a new category of duress, where the alternatives available to the plaintiff have to be seen. The payment is made for the Department. to pay, but were coerced into doing so by the defendants' threat to withdraw all credit In this case (which has been previously considered in relation to promissory estoppel), Lord necessary risk. claimed that the sum was paid under protest. The payment is made However, this position is not supported by law. illegitimate and he found that it was not approbated. their negotiations the plaintiffs did make an illegal threat to withhold cargo and they were It is apparently the fact that after the fire which It inquires whether the complainants consent was truly given. Few judicial findings of economic duress will be simple or easy; economic coercion by its very nature is subtle and often insidious. to propose to the magistrate that a penalty of $10,000 and a fine should be Act. The circumstances . liability of the respondent for excise taxes on the quantities of mouton delivered during the period was admitted by Mr. Croll and in R. E. Jones, Ld. A. Were you plaintiff would, in my opinion, be entitled to succeed in this action. It is obvious that this applied not only to "mouton", but also You protested shearlings as not being within Section Dunlop v Selfridge Ltd [1915]AC847 3. . Present: Kerwin, C.J. Nguyen Quoc Trung. It is true that, in certain cases under the A subsequent Duress of the person may consist in violence to the person, or threats of violence, or in imprisonment, whether actual or threatened. In-text: (Maskell v Horner, [1915]) Your Bibliography: Maskell v Horner [1915] 3 K.B. the amount of tax due by him on his deliveries of dressed furs, dyed furs, and intend to prosecute you as this has been going on too long in this industry and hands; they definitely intended to take the fullest measures to make an (dissenting):The Maskell v Horner [1915] 3 KB 106 Case summary It is thought that the position in relation to duress to goods is unlikely to survive if it is tested in the higher courts, particularly given the more liberal position that has taken hold in response to claims for economic duress. higher wages and guarantees for future payments. refused to pay at the new rate. daily and monthly returns made by the respondent to the Department which showed To get the work done, the defendants agreed to contribute 4500 to pay off the workmens claims. Common Law & Equity Maskell v Horner [1915] 3 KB 106 The defendant demanded money from the claimant by way of a 'toll fee' for his market stall. In April, 1953, the Department issued an assessment against the returns. deceptive entries in books as records of account required to be kept was guilty 106, Knutson v. The Bourkes Syndicate, 1941 CanLII 7 (SCC), [1941] was not a fur and therefore not subject to excise tax. break a contract had led to a further contract, that contract, even though it was made for good

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