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Citation
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Judgment date
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| May 2009 |
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Court dismissed the divorce petition for want of prosecution due to inordinate delay and lack of proof of service; interlocutory applications dismissed too.
Family law – Divorce – Delay and want of prosecution – Validity and service of originating petition – Interlocutory applications dependent on main action – Transfer to Magistrates’ Court; jurisdictional limits (s.39(2)(e) Courts Act) – Dismissal includes ancillary applications – Costs: each party to bear own costs.
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6 May 2009 |
| March 2009 |
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Custody to the mother and failure to fulfill chikamwini duties justified awarding household effects and the three-door house to the plaintiff.
Matrimonial property — Division after dissolution — Award of household effects to custodian parent; chikamwini (matrilineal) customary obligation to build wife a house — failure to build affects division; sale of matrimonial chattels during pending proceedings.
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13 March 2009 |
| January 2009 |
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Court refused interim injunction and stay preventing the Electoral Commission enforcing revised nomination fees, leaving judicial review to proceed.
Electoral law – Power to fix nomination deposits – Judicial review and interlocutory injunction – American Cyanamid principles – Public interest in preserving electoral calendar – No statutory duty to consult.
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16 January 2009 |
| June 2008 |
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Summary judgment entered where defendant’s general denial was unsupported; unpaid hospital fees, collection charges and interest awarded.
Civil procedure – Summary judgment (Order 14) – Requirements: notice of intention to defend, service of statement of claim, supporting affidavit verifying facts and stating no defense – Documentary evidence (invoices, statements, payment receipts, identification of responsible person) – General denial insufficient to raise triable issue – Judgment for unpaid hospital fees with collection charges and interest.
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18 June 2008 |
| April 2008 |
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25 April 2008 |
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Default judgment set aside where defendant disclosed a real prospect of defence that the debt was incurred personally, not by the company.
Civil procedure – Setting aside default judgment – Order 13 Rule 9 – affidavit of merits required for regular judgments – defence showing debt was personal, not that of company.
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24 April 2008 |
| March 2007 |
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Contract for sale of goods: plaintiff supplied goods to specification; defendant's quality complaint not proved, plaintiff awarded unpaid price and loss of profits.
Contract for sale of goods – description and specifications – interpretation of proforma invoice and order; burden of proof on quality complaint; commercial testing (SGS/South African Wheat Board) v. Malawi Bureau of Standards; breach/repudiation for non-payment; damages for unpaid price and loss of profits; counterclaim dismissed
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16 March 2007 |
| October 2006 |
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Interlocutory injunction restraining termination of a statutory chief officer refused for lack of a good arguable case and because damages suffice.
Interlocutory injunction; employment contract vs judicial review; American Cyanamid principles; doctrine of necessity; adequacy of damages.
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30 October 2006 |
| February 2006 |
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14 February 2006 |
| October 2005 |
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A predominantly labour dispute should generally be transferred to the Industrial Relations Court after case-by-case assessment.
Jurisdiction — High Court v Industrial Relations Court — transfer of labour disputes; Labour Relations Act s64; case-by-case guidelines for transfer; ancillary non-labour claims do not preclude transfer.
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25 October 2005 |
| May 2005 |
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Buyer entitled to refund of deposit with agreed 50% interest for seller’s prolonged non-delivery of contracted PABX.
Sale of goods – sale by description and implied conditions; non-delivery and remedies – refund for total failure of consideration; frustration – defence rejected where supplier’s conduct shows procurement and promises; interest on deposit at agreed contractual rate; nominal damages where consequential loss not proved.
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30 May 2005 |
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Conversion to writ disallowed where fraud was alleged from the outset; application dismissed for inordinate delay and non‑prosecution.
Civil procedure – Originating summons v writ – Order 28 r 8 RSC – Conversion to writ only where fraud arises during proceedings; fraud pleaded at outset precludes conversion – Delay and failure to prosecute – dismissal and costs.
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18 May 2005 |
| April 2005 |
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Buyer’s claim for non-delivery fails where contract was conditional on USG availability and non-delivery was excused by force majeure.
Contract law – conditional sale agreement – delivery contingent on third party (US Government) availability – force majeure and frustration invoked by administrative/market interference – unsuccessful variation/negotiation does not constitute binding rescission.
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26 April 2005 |
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Plaintiff awarded 15% collection costs where sworn affidavit showed part payment occurred after service and claim was duly pleaded.
Civil procedure — debt recovery — entitlement to collection costs under Legal Practitioners (Scale and Minimum Charges) Rules — affidavit evidence on date of part payment preferred to unsworn oral submissions — pleading of collection costs.
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12 April 2005 |
| March 2005 |
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Summary judgment refused where triable issues exist on whether defendant was legally liable as agent despite disclosed principals.
Civil procedure — Summary judgment (Order 14) — Leave to defend where real or substantial question to be tried — Agency — whether defendant was agent at law or only commercial agent — effect of disclosed principal — prior course of dealing and implied liability.
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1 March 2005 |
| February 2005 |
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A taxation review must be conducted by the taxing officer; the applicant failed to comply with Order 62 procedural requirements.
Civil procedure – taxation of costs – Order 62 RSC (rules 33 and 34) – review of taxing officer’s decision – jurisdiction to review – procedural requirement to file and serve written objections.
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17 February 2005 |
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The respondent held liable for assault and battery by its employee; damages to be assessed by the Registrar.
Tort — Assault and battery by security guard — Credibility findings — Employer liability for agent’s wrongful act — Assessment of damages — Evidentiary weight of visitor register and witness consistency.
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16 February 2005 |
| December 2004 |
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Respondent not liable where applicant voluntarily operated dangerous machinery contrary to warnings and assignment.
Negligence — duty of care — foreseeability of harm — breach — safety signage and established safe practice — unauthorized deviation from assigned task — claimant's sole/primary fault.
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31 December 2004 |
| October 2004 |
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Plaintiff failed to prove employer negligence and relied on unpleaded allegations; claim dismissed with costs.
Employer liability – negligence alleged for failure to repair machine, provide safer methods or protective measures; variance between pleadings and evidence; court will not decide on unpleaded issues; causation and operator conduct in machinery accidents.
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22 October 2004 |
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18 October 2004 |
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Court allowed defective affidavit, found no willful default on discovery, and declined to strike out the defence with costs to plaintiff.
Civil procedure — Specific discovery — Discovery of documents evidencing remittance of funds — Admissibility of defective supporting affidavit (power of attorney not exhibited) — Court’s discretion to admit affidavit — Interlocutory inquiry limited to whether produced documents fall within ordered class — Disputed factual issues to be resolved at trial — No willful default; application to strike out defence dismissed.
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6 October 2004 |
| August 2004 |
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31 August 2004 |
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The plaintiff is entitled to compound interest at 1% above bank rate on the unpaid judgment balance from February 2004.
Judgment interest — instalment agreements as waiver of immediate payment — entitlement to compound interest at 1% above bank lending rate (Zgambo v KFCTA) — interest period from default of instalments.
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27 August 2004 |
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Default judgment set aside where defendant’s affidavit and proposed defence showed a prima facie real prospect of success.
Civil procedure – Default judgment – Order 19 r.9 – Setting aside regularly entered default judgment requires affidavit evidence of a defence on the merits with a real prospect of success; contractual compliance as prima facie defence to wrongful termination; constitutional and ILO challenges reserved for trial.
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27 August 2004 |
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A defendant who satisfies a default judgment cannot later set it aside to avoid sheriff fees.
Civil procedure – default judgment – attenuated statement of claim – sufficiency of particulars where defendant knows details – Order 6 r 2(1) Rules of Supreme Court; setting aside judgment – effect of satisfaction of judgment; approbation and reprobation; liability for sheriff fees and costs.
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26 August 2004 |
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Action struck out because the plaintiff’s counsel lacked a practising licence; counsel ordered to pay costs.
Civil procedure – striking out proceedings commenced by an unlicensed legal practitioner – uncontested application – undertaking to discontinue – solicitor to bear costs to be taxed.
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26 August 2004 |
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Dismissal for alleged corruption without disciplinary hearing breached the Employment Act and contractual natural justice; compensation and costs awarded.
Employment law – unfair dismissal – burden on employer to justify dismissal – natural justice – requirement to issue disciplinary memorandum and afford hearing – procedural bias – compensation as remedy.
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26 August 2004 |
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The plaintiff was unfairly dismissed where redundancy was not genuine; awarded unpaid terminal benefits only.
Employment law – Unfair dismissal – Redundancy must be genuine – Burden on employer to prove reason for dismissal – Remedies: compensation for unpaid terminal benefits – Interest discretionary – Collection charges awarded.
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18 August 2004 |
| July 2004 |
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Where a consent order is silent on default, execution is limited to the instalment in default; full-judgment execution is irregular.
Execution — Seizure — writ of fieri facias — instalment orders — Section 7 Sheriff's Act — irregular execution for whole judgment where only one instalment defaulted — reimbursement of sheriff's fees — costs to defendant.
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29 July 2004 |
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A consent judgment can only be challenged by a fresh action; filing an originating motion within the same cause was improper.
Civil procedure — Consent judgment finality — Setting aside consent judgment requires a fresh action — Distinction between originating process commencing an action and a motion within an existing cause — Importance of correct party designation and new cause number.
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21 July 2004 |
| May 2004 |
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Defilement conviction upheld on one count; child testimony and nurse's medical report accepted; four-year sentence confirmed with delayed commencement adjustment.
Criminal law – Defilement – Child complainants' evidence and corroboration; admissibility of medical reports by nurses/midwives; appellate review of credibility findings; sentence review; effect of delayed judgment.
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14 May 2004 |
| March 2004 |
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Application for expedited election hearing adjourned for failure to effect adequate service; presidential immunity to be argued next.
Constitutional/election petition – service requirements for inter partes hearing – substituted service – adequacy of service – preliminary objection of presidential immunity – adjournment – costs in the cause.
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27 March 2004 |
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Adjournment for proper service; important issue of presidential immunity reserved for full argument.
Constitutional law; election petitions under s100 Parliamentary and Presidential Elections Act; service of process; interlocutory procedure; presidential immunity from suit; expedited hearing requirements.
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27 March 2004 |
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An action on dishonoured cheques succeeds despite a resale-condition defence; seized items must be returned and costs awarded to the plaintiff.
Negotiable instruments – Dishonoured cheques – Right of action accrues upon dishonour and notice; Defence of conditional payment (resale) not available in action on cheque; Counterclaim dismissed for no evidence; Return of seized property ordered; Costs to defendant.
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1 March 2004 |
| February 2004 |
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Summary judgment granted where plaintiff proved unpaid invoices and the defendant failed to establish a bona fide defence.
Civil procedure – Summary judgment (Order 14 r 1) – proof by invoices and purchase orders – defendant’s denial without affidavit – no bona fide defence – interest and costs awarded.
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27 February 2004 |
| January 2004 |
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Stay refused; summary judgment granted for repayment where defendant offered only unsupported stay application and a bare general denial.
Civil procedure – Summary judgment – Defendant’s general denial treated as sham under Order 7(16); summary judgment granted. Civil/criminal interface – Stay refused where no evidence of overlapping complainants, no chargesheet produced, and civil relief (repayment) lies outside magistrate jurisdiction
Costs – party-and-party only; no collection or contingency counsel fees
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24 January 2004 |
| December 2003 |
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Court continued attachment order where plaintiff sold preserved vehicle in bad faith and ordered consolidation and costs to defendants.
Attachment/preservation orders – ex parte orders and abuse of process – sale of preserved property – bad faith conduct – consolidation of related proceedings – costs awarded.
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30 December 2003 |
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Whether a party may withdraw from a fixed-term employment agreement before commencement where the other party’s conduct amounts to anticipatory breach.
Contract law – fixed-term employment agreement – pre-commencement withdrawal – anticipatory breach/repudiatory conduct – objective test – remedies; insufficient evidence for counterclaim.
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30 December 2003 |
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Fine alone inadequate for wildlife trafficking; imprisonment imposed despite statutory ambiguity and first-offender status.
Wildlife law – National Parks and Wildlife Act s.110 – ambiguity in prescribed fine; penal statutes strictly construed; sentencing – first offenders (s.340 Criminal Procedure) – fine versus imprisonment; seriousness and public interest in wildlife trafficking; aggravating conduct (resistance, syndicate activity).
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28 December 2003 |
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The applicant successfully set aside a default judgment entered against the wrong party without proper service.
Civil procedure — Default judgment — Irregular judgment where originating process not served on correct legal entity — Misnomer versus amendment — Ex debito justicie relief — Insufficiency of poorly labelled exhibits to prove prior payments.
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4 December 2003 |
| November 2003 |
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Ex parte injunction and leave for review discharged: ACB lacks capacity to be sued; non-disclosure and wrong party sued.
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28 November 2003 |
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Unpleaded trial evidence of a stationary vehicle cannot be used to establish contributory negligence; defendant held vicariously liable.
Negligence – duty of care – breach causing personal injury; Contributory negligence – requirement that facts supporting the defence be pleaded; Pleadings – admissibility of evidence first raised at trial; Vicarious liability – employer liable for servant's negligence; Remittal for assessment of damages.
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21 November 2003 |
| October 2003 |
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A defendant may set aside a default injunction judgment by showing a meritorious defence and that the plaintiff lacks clean hands.
Civil procedure – setting aside default judgment (Order 19 r 9) – defendant must show bona fide defence on the merits (Farden v Richter) – equitable relief and clean hands doctrine – dispensing with service of defence – costs where judgment regularly entered.
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31 October 2003 |
| July 2003 |
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A resigned director cannot continue as managing director or occupy company offices; injunction and possession ordered.
Company law – resignation of director – effect of written resignation – Managing Director must be a director; corporate groups – legal test for group/subsidiary relationship; tenancy at will and wrongful occupation of company premises; injunctions to restrain former director from holding himself out and interfering with management; mesne profits assessed where market rental not adduced; corporate veil not lifted where no impropriety shown.
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8 July 2003 |
| June 2003 |
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Garnishee proceedings cannot attach government funds under s.10 of the Civil Procedure Act; garnishee orders discharged.
Garnishee proceedings — government funds — section 10 Civil Procedure Act prohibits injunctions/specific performance against government — Orders 49 and 77 RSC and Crown Proceedings Act 1947 inapplicable to Malawi — High Court precedent binding.
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3 June 2003 |
| February 2003 |
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Default judgment set aside as irregular; defendant granted leave to defend on payment of MK60,005 into court.
Civil procedure – Default judgment – Irregularity where special damages not liquidated – Setting aside default judgment – Meritorious defence and leave to defend – Procedural non-compliance and supplementary affidavit – Terms for setting aside.
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23 February 2003 |
| November 2002 |
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Court continued interlocutory injunction pending determination, rejecting defendants' contention that internal remedies precluded court relief.
Civil procedure — interlocutory injunction — ex parte order — alleged non-disclosure of material facts — discretion to continue injunction; Party disputes — internal remedies v. access to courts — exhaustion not an absolute bar to originating proceedings seeking declaratory relief; Natural justice — alleged breach in disciplinary proceedings; Balance of convenience — irreparable harm vs. delay.
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14 November 2002 |
| October 2002 |
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Holding a party convention in defiance of an injunction is contempt; the convention was void and contemnors fined.
Contempt of court – breach of injunction restraining party convention – service and actual notice – liability of non‑parties/assistants who knowingly aid breach – declaration void ab initio – fines with default imprisonment – costs.
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11 October 2002 |
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Whether a judgment-on-admission is interlocutory and whether a negotiation letter amounted to an unequivocal admission.
Civil procedure – Judgment on admission – Whether interlocutory or final – Admissibility of hearsay/information and belief in affidavits under Order 41 r.5 – Requirement to disclose sources and grounds – Admissions: clarity, context and negotiations – Judicial discretion to grant or refuse judgment on admission.
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2 October 2002 |
| September 2002 |
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Plaintiff failed to prove on a balance of probabilities that negligent electrical maintenance caused the house fire.
Negligence; electrical installations; causation in fire cases; standard of proof in civil claims; credibility of witnesses; assumptions versus inspection evidence.
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19 September 2002 |