mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Calliden Group Limited in the matter of Calliden Group Limited [2007] FCA 2019
Outcome: cited
a full search of Westport's records has been undertaken. Westport has no means of compelling brokers/agents to conduct searches on its behalf. Westport has done all that is within its power, and is confident that it has identified every policyholder contained within its own records. The diligence of the search that has been undertaken is a consideration relevant to the decision whether or not to grant a dispensation: Calliden Group Limited in the matter of Calliden Group Limited [2007] FCA 2019 ( Calliden Group Limited ) at [62]. Second, the evidence is that the direct policyholders who have not been identified are unlikely ever to make a claim. The policies that they hold are short-tail in nature, and it can be assumed that any claim would have been notified by now. The chance of the unidentified policyholders being affected by the scheme in reality, as distinct from theoretically, is therefore low. Re Insurance Australia Ltd involved the transfer of a portfolio of 72,500 compulsory third party motor accident insurance policies. I noted that, given the length of time since the expiration of the last period of insurance, it was unlikely that many further claims would be made. I considered that it would be "excessive" to require notice to be given to all 72,500 policyholders, and required that notice only be given to those policyholders in respect of whose policies there was a notified claim that was unsettled or was otherwise outstanding: see [26]-[27]. See also Calliden Group Limited at [62]. The fact that additional steps will be taken to draw the scheme to the attention of the affected policyholders (see [33]-[36] above) has been held to be a factor favouring the granting of a dispensation under s 17C(5) (or the equivalent provision of the Life Insurance Act 1995 ) in several cases, including GIO Personal Investment Services Ltd at [18], Commonwealth Life Ltd at [6] and [10], Challenger Life Limited at [5], and Calliden Group Limited at [62]. Fourth, the proposed scheme is an "intra-group" scheme, that is to say, the policies are being transferred not from one corporate group to another, but within the Swiss Re group. Because the transfer will not involve any real change in the practices and "culture" of the insurer, there seems to be a reduced imperative for notification. This consideration has been relied upon as supporting the granting of a dispensation: MMIA Pty Limited and QBE Insurance (Australia) Limited [2008] FCA 1239 at [24] ; Calliden Group Limited at [62]. Fifth, APRA does not oppose the making of the order. The fact that APRA, which is charged with the responsibility of protecting the interests of policyholders, has raised no objection has been said to be a matter in favour of a dispensation: see, eg Commonwealth Life Ltd at [6] and [10], Challenger Life Limited at [5]; Calliden Group Limited at [62].
Case: Challenger Life Limited [2004] FCA 618
Outcome: cited
Court has said that the granting of a dispensation under s 17C(5) (or its analogue in the Life Insurance Act 1995 (Cth), s 191(5)) is a "matter of considerable importance and should not be regarded as a matter of course": Munich Reinsurance Company of Australasia Limited [2004] FCA 1391 at [4] , per Tamberlin J. See also Challenger Life Limited [2004] FCA 618 ( Challenger Life Limited ) at [2]-[3], per Gyles J. This is because, as Sackville J stated in The Application of Commonwealth Life Ltd &amp; Anor [2003] FCA 501 ( Commonwealth Life Ltd ) at [8]: Clearly enough, the policy underlying the statutory requirement ... is to give every affected policyholder a summary of the scheme and, an opportunity, if he or she so desires, to make submissions to the Court in respect of any application for confirmation of the scheme. A right to be heard in relation to a proposed scheme may be of little value if a person does not know of the proposal. The fact that additional steps will be taken to draw the scheme to the attention of the affected policyholders (see [33]-[36] above) has been held to be a factor favouring the granting of a dispensation under s 17C(5) (or the equivalent provision of the Life Insurance Act 1995 ) in several cases, including GIO Personal Investment Services Ltd at [18], Commonwealth Life Ltd at [6] and [10], Challenger Life Limited at [5], and Calliden Group Limited at [62]. Fifth, APRA does not oppose the making of the order. The fact that APRA, which is charged with the responsibility of protecting the interests of policyholders, has raised no objection has been said to be a matter in favour of a dispensation: see, eg Commonwealth Life Ltd at [6] and [10], Challenger Life Limited at [5]; Calliden Group Limited at [62].
Case: The Application of Commonwealth Life Ltd &amp; Anor [2003] FCA 501
Outcome: cited
Court has said that the granting of a dispensation under s 17C(5) (or its analogue in the Life Insurance Act 1995 (Cth), s 191(5)) is a "matter of considerable importance and should not be regarded as a matter of course": Munich Reinsurance Company of Australasia Limited [2004] FCA 1391 at [4] , per Tamberlin J. See also Challenger Life Limited [2004] FCA 618 ( Challenger Life Limited ) at [2]-[3], per Gyles J. This is because, as Sackville J stated in The Application of Commonwealth Life Ltd &amp; Anor [2003] FCA 501 ( Commonwealth Life Ltd ) at [8]: Clearly enough, the policy underlying the statutory requirement ... is to give every affected policyholder a summary of the scheme and, an opportunity, if he or she so desires, to make submissions to the Court in respect of any application for confirmation of the scheme. A right to be heard in relation to a proposed scheme may be of little value if a person does not know of the proposal. The fact that additional steps will be taken to draw the scheme to the attention of the affected policyholders (see [33]-[36] above) has been held to be a factor favouring the granting of a dispensation under s 17C(5) (or the equivalent provision of the Life Insurance Act 1995 ) in several cases, including GIO Personal Investment Services Ltd at [18], Commonwealth Life Ltd at [6] and [10], Challenger Life Limited at [5], and Calliden Group Limited at [62]. Fifth, APRA does not oppose the making of the order. The fact that APRA, which is charged with the responsibility of protecting the interests of policyholders, has raised no objection has been said to be a matter in favour of a dispensation: see, eg Commonwealth Life Ltd at [6] and [10], Challenger Life Limited at [5]; Calliden Group Limited at [62].
Case: In the matter of GIO Personal Investment Services Ltd and AMP Life Ltd [2000] FCA 1871
Outcome: cited
In the matter of GIO Personal Investment Services Ltd and AMP Life Ltd [2000] FCA 1871 ( GIO Personal Investment Services Ltd ), Emmett J noted (at [16]-[18]) that, despite certain steps being taken to keep track of policyholders, the company did not have a current address for all its policyholders. His Honour observed that a notice of intention to make the application had been published in newspapers in all States and Territories, and that the notice included a telephone number by which policyholders could make enquiries and request copies of the scheme summary documents free of charge. Given the steps that the company had taken to locate its policyholders, and the alternative steps that the company had taken to draw the scheme to their attention, his Honour considered it appropriate to dispense with compliance with s 191(2)(c) of the Life Insurance Act 1995 : see [19].
Case: Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450
Outcome: cited
term "affected policyholder" is defined in s 17C(1) of the Act as "the holder of a policy affected by the scheme". In Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450 ( Re Insurance Australia Ltd ) at [19]-[20], I held: that the expression "affected policyholder" referred to a policy that was affected by the scheme, not to a holder who was affected by the scheme; and that the holders of policies that had been issued by the transferee company, or that had been issued by the transferor company but were not to be transferred under the scheme were not "affected policyholders". In the present case, all of the direct insurance policies and all of the reinsurance policies of Westport are sought to be transferred to either SRI or SRCAU. It follows that all of Westport's policyholders are "affected policyholders". The policyholders of SRI and SRCAU, however, are not, and are therefore not required by s 17C(2)(c) to be provided with an approved summary of either scheme. The need for the dispensation Westport seeks a dispensation because it is not able to identify all of its policyholders, and is therefore unable to comply with s 17C(2)(c). There is an additional reason why a dispensation is sought. This additional reason applies to certain policyholders that Westport has been able to identify. Section 17C(2)(c) requires that the approved summary be "given" to affected policyholders. Section 121 of the Act provides various ways in which a document may be "given" to a person for the purposes of the Act. In the case of a body corporate other than Lloyd's (being the society of that name incorporated by Lloyd's Act 1871 (UK)) that is not incorporated in Australia, s 121 provides that the document may be given by being left at, or by being sent by registered post to, the body corporate at its address for service notified to APRA. Where no such address has been notified to APRA, the Act appears to require that the document simply be "given" to the body corporate, as distinct from being posted to it at its last known address, without explanation as to how it is to be "given" to the foreign body corporate. Re Insurance Australia Ltd involved the transfer of a portfolio of 72,500 compulsory third party motor accident insurance policies. I noted that, given the length of time since the expiration of the last period of insurance, it was unlikely that many further claims would be made. I considered that it would be "excessive" to require notice to be given to all 72,500 policyholders, and required that notice only be given to those policyholders in respect of whose policies there was a notified claim that was unsettled or was otherwise outstanding: see [26]-[27]. See also Calliden Group Limited at [62].
Case: MMIA Pty Limited and QBE Insurance (Australia) Limited [2008] FCA 1239
Outcome: cited
the proposed scheme is an "intra-group" scheme, that is to say, the policies are being transferred not from one corporate group to another, but within the Swiss Re group. Because the transfer will not involve any real change in the practices and "culture" of the insurer, there seems to be a reduced imperative for notification. This consideration has been relied upon as supporting the granting of a dispensation: MMIA Pty Limited and QBE Insurance (Australia) Limited [2008] FCA 1239 at [24] ; Calliden Group Limited at [62].
Case: Munich Reinsurance Company of Australasia Limited [2004] FCA 1391
Outcome: cited
Court has said that the granting of a dispensation under s 17C(5) (or its analogue in the Life Insurance Act 1995 (Cth), s 191(5)) is a "matter of considerable importance and should not be regarded as a matter of course": Munich Reinsurance Company of Australasia Limited [2004] FCA 1391 at [4] , per Tamberlin J. See also Challenger Life Limited [2004] FCA 618 ( Challenger Life Limited ) at [2]-[3], per Gyles J. This is because, as Sackville J stated in The Application of Commonwealth Life Ltd &amp; Anor [2003] FCA 501 ( Commonwealth Life Ltd ) at [8]: Clearly enough, the policy underlying the statutory requirement ... is to give every affected policyholder a summary of the scheme and, an opportunity, if he or she so desires, to make submissions to the Court in respect of any application for confirmation of the scheme. A right to be heard in relation to a proposed scheme may be of little value if a person does not know of the proposal.
Case: Re Hills Motorway Ltd (2002) 43 ACSR 101
Outcome: cited
am satisfied that the proposed procedure complies with the statute and with the applicable authorities. It is not proposed that ineligible foreign shareholders constitute a separate class ( Re Hills Motorway Ltd (2002) 43 ACSR 101 at 104; Re SFE Corporation Ltd at [8]). A particular order is required to deal with the publication of further financial results by both Promina and Suncorp prior to the scheme meeting. It is necessary that the independent expert consider the effect, if any, of those results upon the opinions expressed and that there be communication with the shareholders about that ( Re Hills Motorway Ltd at 106). I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 18 December 2006 Counsel for the Plaintiff: Mr F Gleeson SC, Mr RA Dick Solicitor for the Plaintiff: Freehills Counsel for Suncorp-Metway Limited: Mr TF Bathurst QC Solicitor for Suncorp-Metway Limited: Corrs Chambers Westgarth Date of Hearing: 14 December 2006 Date of Orders: 14 December 2006 Date of Reasons: 18 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1772.html
Case: Re SFE Corporation Ltd (2006) 59 ACSR 82 ; [2006] FCA 670
Outcome: cited
am satisfied that the structure of the scheme is effective and appropriately safeguards the interests of shareholders in the event that the scheme is approved. It effectively removes the performance risk to which I have referred in other cases (eg Re SFE Corporation Ltd (2006) 59 ACSR 82 ; [2006] FCA 670 ; Re Tempo Services Ltd (2005) 53 ACSR 523 at 524; [2005] FCA 410). I am satisfied that the proposed procedure complies with the statute and with the applicable authorities. It is not proposed that ineligible foreign shareholders constitute a separate class ( Re Hills Motorway Ltd (2002) 43 ACSR 101 at 104; Re SFE Corporation Ltd at [8]). The exclusivity period and break fee are not such as to cause concern ( Re SFE Corporation Ltd at [7]). The position of foreign shareholders, reset preference shareholders and participants in share plans has been explained. The directors recommend the scheme. Australian Securities and Investments Commission and Australian Prudential Regulatory Authority have indicated that no opposition is likely. The Scheme Booklet is in appropriate form to enable shareholders to make a commercial decision. It includes an independent expert report based upon valuations, an independent actuary's report and an accountant's report. The Court does not, of course, approve the merits of the contents of the Booklet.
Case: Re Tempo Services Ltd (2005) 53 ACSR 523, [2005] FCA 410
Outcome: cited
am satisfied that the structure of the scheme is effective and appropriately safeguards the interests of shareholders in the event that the scheme is approved. It effectively removes the performance risk to which I have referred in other cases (eg Re SFE Corporation Ltd (2006) 59 ACSR 82 ; [2006] FCA 670 ; Re Tempo Services Ltd (2005) 53 ACSR 523 at 524; [2005] FCA 410).
Case: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Outcome: cited
The circumstances in which security for costs may be ordered are not confined to particular factors: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1, at 3-4. Although the current appeals have been instituted and are to be heard on 15 May 2007 by the Full Court, a single judge has power to order the provision of security for costs of an appeal: see per Hely J in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681 at [2] ; and per Marshall J in Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1336.
Case: Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681
Outcome: cited
The circumstances in which security for costs may be ordered are not confined to particular factors: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1, at 3-4. Although the current appeals have been instituted and are to be heard on 15 May 2007 by the Full Court, a single judge has power to order the provision of security for costs of an appeal: see per Hely J in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681 at [2] ; and per Marshall J in Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1336.
Case: Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1336
Outcome: cited
The circumstances in which security for costs may be ordered are not confined to particular factors: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1, at 3-4. Although the current appeals have been instituted and are to be heard on 15 May 2007 by the Full Court, a single judge has power to order the provision of security for costs of an appeal: see per Hely J in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681 at [2] ; and per Marshall J in Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1336.
Case: Cowell v Taylor (1885) 31 Ch D 34
Outcome: cited
The cases suggest that, in the case of an appeal, where an impecunious litigant has had the benefit of a full hearing at first instance, the significance of the fact that a security for costs order may frustrate the exercise of the right of appeal should carry less weight than in the circumstances where a litigant at first instance may be put out of litigating a matter at all. As long ago as Cowell v Taylor (1885) 31 Ch D 34 at 38, Bowen LJ said: The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law, and also, I believe, in equity. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's courts, and so an insolvent party is not excluded from the courts, but only prevented, if he cannot find security, from dragging his opponent from one court to another. Spender J in Skyring v Sweeney [1999] FCA 61 at [6] said: Impecuniosity is a factor which can be taken into account as justifying the grant of security. Impecuniosity ought not to be a bar to a person prosecuting at first instance a claim, but the position on appeal seems to me to be fundamentally different. In effect, in the absence of an order for security for costs in the circumstances of this case, Mr Skyring, in effect, is given a free hit, and that seems to me to be intrinsically unfair.
Case: Skyring v Sweeney [1999] FCA 61
Outcome: cited
The cases suggest that, in the case of an appeal, where an impecunious litigant has had the benefit of a full hearing at first instance, the significance of the fact that a security for costs order may frustrate the exercise of the right of appeal should carry less weight than in the circumstances where a litigant at first instance may be put out of litigating a matter at all. As long ago as Cowell v Taylor (1885) 31 Ch D 34 at 38, Bowen LJ said: The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law, and also, I believe, in equity. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's courts, and so an insolvent party is not excluded from the courts, but only prevented, if he cannot find security, from dragging his opponent from one court to another. Spender J in Skyring v Sweeney [1999] FCA 61 at [6] said: Impecuniosity is a factor which can be taken into account as justifying the grant of security. Impecuniosity ought not to be a bar to a person prosecuting at first instance a claim, but the position on appeal seems to me to be fundamentally different. In effect, in the absence of an order for security for costs in the circumstances of this case, Mr Skyring, in effect, is given a free hit, and that seems to me to be intrinsically unfair.
Case: In the Estate of William Just, deceased (No 1) (1973) SASR 508
Outcome: cited
Secondly, he purports to sue as "managing trustee" of 26 trusts. It is unnecessary for me to consider whether or not Mr Garrett can properly appear for these trusts in the representative capacity he asserts. I would simply note, though, on the material before me and by Mr Garrett's own admission, the first two of the trusts listed are ones in respect of which he is a joint trustee along with a company, Evajade Pty Ltd. It would appear from a printout from the Australian Securities and Investment Commission's national database that that company has no current directors and that it has a sole shareholder who has entered into a personal insolvency agreement under Pt X of the Bankruptcy Act . I would note in passing that that printout is proof of its contents in this regard in the absence of evidence to the contrary. The difficulties this may pose need not be explored here: cf In the Estate of William Just, deceased (No 1) (1973) 7 SASR 508; Ford and Lee, Principles of the Law of Trusts [9380].
Case: Evajade Pty Ltd v National Australia Bank (No 2) (2005) SASC 229
Outcome: cited
Thirdly, he asserts to be sole director and shareholder (albeit in the capacity as a trustee) of 15 companies. As to the claim that he was sole director, he admitted under questioning that he was not now a director, his attention having been drawn to the provisions of s 206B(3) of the Corporations Act 2001 (Cth) and to the problems that section might cause him. They were also pointed out to him in turn by Gray J in Evajade Pty Ltd v National Australia Bank (No 2) (2005) SASC 229. Curiously two of the companies of which he asserts to be director and shareholder are Evajade Pty Ltd and the third respondent in this proceeding, The Wine Company Pty Ltd (the previous name of which was Andrew Garrett Group Pty Ltd). I have referred above to Evajade. As to The Wine Company, the ASIC national database printout reveals that company to have been de-registered on 15 January 2006 by ASIC pursuant to s 601AB of the Corporations Act 2001 (Cth). I need to emphasise this for reasons which will become apparent below. 6 Fourthly, he purports to proceed as assignee of causes of action including from the de-registered Wine Company. What is not clear is in what capacity he is acting as assignee or what those choses are. 7 Fifthly, he purports to be exercising powers of attorney on behalf of some number of persons and companies including his wife who is also an undischarged bankrupt. There is no evidence as to the type of cause of action vested in her which he is prosecuting on her behalf, let alone whether it is competent for her to assert it.
Case: Nokia Corporation v Truong [2005] FCA 1141
Outcome: followed
With respect to each of the allegedly counterfeit products, Mr Taylor explained why he believed they were not licensed by Nokia. Mr Taylor stated that he knew that the Nokia branded neck straps were counterfeit because "[t]he Applicant does not manufacture mobile phone neck straps bearing the NOKIA trade mark, or authorise the use by any third party of the trade mark NOKIA on mobile phone neck straps, for sale to the public". With respect to other products, Mr Taylor referred to the packaging, workmanship and the appearance of the Nokia brand together with other features as evidence that the products were counterfeit. I interpolate here that I accept that Mr Taylor's evidence is admissible pursuant to s 79 of the Evidence Act 1995 (Cth), alternatively, s 78 of that Act : see Nokia Corporation v Truong [2005] FCA 1141 at [35] per Crennan J and Nokia Corporation v Mai (2003) 59 IPR 413 at [11] per Kenny J. His evidence established that the Nokia Trade Marks had been applied to counterfeit goods.