mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1739
Outcome: affirmed
The appellant, a citizen of Bangladesh, sought judicial review in the Federal Magistrates Court of a decision of the Refugee Review Tribunal refusing to grant him a protection visa. Barnes FM refused the application: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1739. The appellant now appeals to this Court. 2 The appellant claimed that he came from a "high profiled political oriented family" who had "political and business opponents to eradicate them". He claimed that while undertaking a Bachelor of Commerce degree at a university in Bangladesh in 1998 he became involved in the Awami League and participated in "different party programs including anti-government and anti-fundamentalism movement to uphold the party objectives". He became the assistant organising secretary of the branch of the Awami League for 2001-2002 and an "influential leader of (his) area". 3 In October 2001 the new BNP government in Bangladesh, in alliance with the Jamat-e-Islami of Bangladesh, "started oppression against activists and leaders of the Awami League". This became so critical that the appellant went into hiding in July 2002 because the government filed a "false case" against him and the police started searching for him.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: applied
The appellant should be given leave to raise this ground, primarily because, as counsel for the appellant pointed out, the operation of s 424A has been the subject of a recent Full Court decision, handed down on 24 February 2006: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. In SZEEU there crystallised for the first time at appellate level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 and the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. 36 If s 424A(1) applies, the obligation is not met by putting the information orally to the applicant in the course of the Tribunal hearing, it must be put in writing: SAAP . And this is so whether or not failure to provide the information would result in any unfairness, as long as the information formed the reason, or part of the reason, for affirming the decision: SZEEU at [215]. 42 Even if the "information" here were caught by s 424A(1), the exception in s 424A(3)(b) would apply. If the "information" is given by the applicant at the Tribunal hearing, it is excluded from the operation of subs (1), even though it might have also been provided to the Tribunal from another source. In SZEEU at [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said: "While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source." This construction is consistent with the purpose of providing procedural fairness in Tribunal reviews (albeit in exclusively statutory form: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61) which underlies Div 4 of Pt 7. If an applicant "gave" the "information" for the purpose of the Tribunal review application (in contrast to SAAP , where the Tribunal had obtained the information from a witness other than the applicant) that is something necessarily within the knowledge of the applicant himself. It is not unfair for the Tribunal to then make such use of the information as it thinks fit.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27
Outcome: applied
The appellant should be given leave to raise this ground, primarily because, as counsel for the appellant pointed out, the operation of s 424A has been the subject of a recent Full Court decision, handed down on 24 February 2006: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. In SZEEU there crystallised for the first time at appellate level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 and the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. 35 The "application" in s 424A(3)(b) means the application before the Tribunal. So information which an applicant might have given in the initial protection visa application is not excluded by subs (3) from the requirements of subs (1): Al Shamry .
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: applied
The appellant should be given leave to raise this ground, primarily because, as counsel for the appellant pointed out, the operation of s 424A has been the subject of a recent Full Court decision, handed down on 24 February 2006: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. In SZEEU there crystallised for the first time at appellate level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 and the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. 36 If s 424A(1) applies, the obligation is not met by putting the information orally to the applicant in the course of the Tribunal hearing, it must be put in writing: SAAP . And this is so whether or not failure to provide the information would result in any unfairness, as long as the information formed the reason, or part of the reason, for affirming the decision: SZEEU at [215]. 42 Even if the "information" here were caught by s 424A(1), the exception in s 424A(3)(b) would apply. If the "information" is given by the applicant at the Tribunal hearing, it is excluded from the operation of subs (1), even though it might have also been provided to the Tribunal from another source. In SZEEU at [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said: "While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source." This construction is consistent with the purpose of providing procedural fairness in Tribunal reviews (albeit in exclusively statutory form: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61) which underlies Div 4 of Pt 7. If an applicant "gave" the "information" for the purpose of the Tribunal review application (in contrast to SAAP , where the Tribunal had obtained the information from a witness other than the applicant) that is something necessarily within the knowledge of the applicant himself. It is not unfair for the Tribunal to then make such use of the information as it thinks fit.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61
Outcome: cited
Even if the "information" here were caught by s 424A(1), the exception in s 424A(3)(b) would apply. If the "information" is given by the applicant at the Tribunal hearing, it is excluded from the operation of subs (1), even though it might have also been provided to the Tribunal from another source. In SZEEU at [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said: "While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source." This construction is consistent with the purpose of providing procedural fairness in Tribunal reviews (albeit in exclusively statutory form: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61) which underlies Div 4 of Pt 7. If an applicant "gave" the "information" for the purpose of the Tribunal review application (in contrast to SAAP , where the Tribunal had obtained the information from a witness other than the applicant) that is something necessarily within the knowledge of the applicant himself. It is not unfair for the Tribunal to then make such use of the information as it thinks fit.
Case: Allen v Anthony (1816) 35 ER 679
Outcome: applied
any event, I have come to the view that even if there is to be a comparison of the two competing interests as suggested by Perpetual, the interests of the retirees have priority. Even accepting that Perpetual took the mortgage at arm's length, in the normal course of its business and for valuable consideration, I have formed this view for the following reasons: (i) the earlier equitable interest in the property of the retirees I have generally regarded as a stronger claim than the later interest of Perpetual; (ii) fairness and justice does not require or indicate the earlier equitable interest of the retirees should be postponed (see Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326 at 341 (per Mason and Deane JJ)); (iii) any lack of notice by Perpetual is only one aspect of the circumstances I have taken into account, which does not displace the earlier interest of the retirees; (iv) Perpetual knew by itself, or its agents, that the properties were occupied, or at the very least expected the properties would be tenanted, even if Perpetual did not know the exact terms of the Contract of Sale or Agreement for Sale of Real Estate or of the lease. If I am wrong in this regard as to knowledge or expectation, this would still not alter my view as to the competing position; (v) the retirees were in fact in possession of the property which I regard as significant, although not 'decisive' (cf Burke v Dawes [1938] HCA 6 ; 59 CLR 1 per Evatt J at 26); (vi) Perpetual had constructive notice of the retirees' rights and it took its interest subject to them, and this occurs even if the tenant is in possession pursuant to additional entitlements: Hunt v Luck (1902) 1 Ch 428; Lowe v Clyne [1968] 2 NSWR 292 ; Daniels v Davison (1809) 16 Ves 249; and Allen v Anthony (1816) 35 ER 679, and particularly McMahon v Swan [1924] VLR 397 at 405-406 and Burke v Dawes 59 CLR 1 at 26-27 per Evatt J; (vii) Perpetual in failing to investigate the interest of the retirees did so at its 'peril' (see Evatt J at 27 in Burke v Dawes [1938] HCA 6 ; 59 CLR 1 ; and Lowe v Clyne [1968] 2 NSWR 292) ; (viii) whilst the retirees did not lodge timely caveats, the failure of the retirees to lodge a caveat is explicable. They were in fact still registered proprietors. In any event, 'the exception in s 42(2)(e) makes the failure to lodge a caveat of no moment, because it takes away from the registered proprietor that paramountcy which actual registration confers; and the only purpose of a caveat is to prevent such registration' (see Burke v Dawes [1938] HCA 6 ; 59 CLR 1 at 25-26 per Evatt J); (ix) further, I do not regard the failure to lodge a timely caveat as sufficient to postpone the retirees' interests, particularly as there was no evidence that Perpetual relied on the registration or absence of caveat (see IGA Distribution Pty Ltd v King &amp; Taylor Pty Ltd [2002] VSC 440 at [205] per Nettle J); and (x) no retiree consented to or ratified the mortgage to Perpetual.
Case: Allsop v Marshall (1942) 59 WN (NSW) 159
Outcome: cited
submitted that the mortgage was registered simultaneously with the transfer, with the result that the purchaser/mortgagor never obtained unencumbered title enabling the creation of a tenancy (referring to Abbey National Building Society v Cann [1991] 1 AC 56 at 93; Allsop v Marshall (1942) 59 WN (NSW) 159 at 161-162; Austin Construction Co (Australia) Ltd v Becketts Holdings Pty Ltd (1958) 75 WN (NSW) 444 at 447; Sogelease Australia Ltd v Boston Australia Ltd (1991) 26 NSWLR 1 at 5-8).
Case: Anderson v Weston (1840) 133 ER 117
Outcome: applied
I find as fact that the mortgages were entered into and created on, and intended to be effective from and on, the date which each mortgage document bears: Anderson v Weston (1840) 133 ER 117; Dillon v Gange (1941) 64 CLR 253. There was no other evidence which would indicate to the contrary, and the principal sums under the mortgage were in fact advanced by Perpetual on these dates.
Case: Associated Beauty Aids Pty Ltd v Federal Commissioner of Taxation (1965) 113 CLR 662
Outcome: cited
the case of Gainsford the creation of the lease and the mortgage occurred on the same day as settlement. There was no specific evidence of the exact time during that day when each transaction was entered into between the parties. However, at settlement, MFLPH then and there obtained possession of the property so was able to provide such to Gainsford pursuant to the agreement for lease previously entered into and the actual lease which was to commence on 9 December 2004, the settlement day. The intention of the parties as to commencement of the lease was clear; no presumption or prima facie position as to the commencement of the lease therefore need be applied (cf Forster v Jojodex Australia Pty Ltd (1972) 127 CLR 421 at 440-441 per Gibbs J, and Associated Beauty Aids Pty Ltd v Federal Commissioner of Taxation (1965) 113 CLR 662 at 668). The intention of the retirees and MFLPH was that upon the actual time of settlement, MFLPH would grant a tenancy in possession to the retirees, the retirees no longer being entitled to possession of the property. Of course, each retiree remained in actual possession throughout all the transactions, their actual possession never being disturbed.
Case: Austin Construction Co (Australia) Ltd v Becketts Holdings Pty Ltd (1958) 75 WN (NSW) 444
Outcome: cited
submitted that the mortgage was registered simultaneously with the transfer, with the result that the purchaser/mortgagor never obtained unencumbered title enabling the creation of a tenancy (referring to Abbey National Building Society v Cann [1991] 1 AC 56 at 93; Allsop v Marshall (1942) 59 WN (NSW) 159 at 161-162; Austin Construction Co (Australia) Ltd v Becketts Holdings Pty Ltd (1958) 75 WN (NSW) 444 at 447; Sogelease Australia Ltd v Boston Australia Ltd (1991) 26 NSWLR 1 at 5-8).
Case: Australian Maritime Safety Authority v Quirk (1998) NSW ConvR 55-858
Outcome: cited
the authorities show that it is very common to speak of an estate for life created in terms of a lease as a lease (see Australian Maritime Safety Authority v Quirk (1998) NSW ConvR 55-858 per Bryson J). If the lease is not void for uncertainty, one then needs to determine whether this interest of a life tenancy is one encompassed with the notion of tenancy in s 42(2)(e) and s 40(3)(d).
Case: Barclay's Bank plc v Zaroovabli [1997] Ch 321
Outcome: cited
submitted that the cases upon which the retirees rely in an attempt to distinguish Abbey have no application in this case (referring to Koompahtoo Aboriginal Land Council v KLALC Property &amp; Investment Pty Ltd [2006] NSWSC 856 ; Barclay's Bank plc v Zaroovabli [1997] Ch 321; HKCB Finance Limited v Yuen Yi Wan [2004] HKEC 1564).
Case: Black v Garnock [2007] HCA 31 ; (2007) 230 CLR 438 at 449-450
Outcome: cited
turn to the nature of the interest of each retiree. In my view, each retiree had an equitable interest in the land by reason of the fact that each was entitled to specific performance of the Contract of Sale or Agreement for Sale of Real Estate or the Deed of Agreement to the possession of the property as a tenant immediately upon settlement. The extent of that interest is to be determined by the form in which specific performance would be granted by a court. The retirees were entitled as against MFLPH to an order requiring MFLPH to sign and deliver to the retirees upon settlement a lease of the property upon the terms agreed, relevantly for life, subject to the condition that the retiree stay in possession for a certain period and pay the nominal rent (see Downie v Lockwood [1965] VR 257; Craddock Bros v Hunt [1923] 2 Ch 136; Chan v Cresdon Pty Ltd (1989) 168 CLR 242; Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at 332-333, [53]; Black v Garnock [2007] HCA 31 ; (2007) 230 CLR 438 at 449-450, [32] ). It is not necessary that specific performance be available at the time of the hearing: Bunny Industries Ltd v FSW Enterprises Pty Ltd [1982] Qd R 712. It is important to appreciate that the availability and the nature of specific performance is a precondition to the recognition of an equitable interest and the extent of that equitable interest in the property. Here, as I have said, a court, by reference to the terms of agreement between the retirees and MFLPH, would give each retiree possession of the land upon settlement by making an order that MFLPH sign and deliver a lease of the property to each retiree effective from the moment of settlement.
Case: Bunny Industries Ltd v FSW Enterprises Pty Ltd [1982] Qd R 712
Outcome: cited
turn to the nature of the interest of each retiree. In my view, each retiree had an equitable interest in the land by reason of the fact that each was entitled to specific performance of the Contract of Sale or Agreement for Sale of Real Estate or the Deed of Agreement to the possession of the property as a tenant immediately upon settlement. The extent of that interest is to be determined by the form in which specific performance would be granted by a court. The retirees were entitled as against MFLPH to an order requiring MFLPH to sign and deliver to the retirees upon settlement a lease of the property upon the terms agreed, relevantly for life, subject to the condition that the retiree stay in possession for a certain period and pay the nominal rent (see Downie v Lockwood [1965] VR 257; Craddock Bros v Hunt [1923] 2 Ch 136; Chan v Cresdon Pty Ltd (1989) 168 CLR 242; Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at 332-333, [53]; Black v Garnock [2007] HCA 31 ; (2007) 230 CLR 438 at 449-450, [32] ). It is not necessary that specific performance be available at the time of the hearing: Bunny Industries Ltd v FSW Enterprises Pty Ltd [1982] Qd R 712. It is important to appreciate that the availability and the nature of specific performance is a precondition to the recognition of an equitable interest and the extent of that equitable interest in the property. Here, as I have said, a court, by reference to the terms of agreement between the retirees and MFLPH, would give each retiree possession of the land upon settlement by making an order that MFLPH sign and deliver a lease of the property to each retiree effective from the moment of settlement.
Case: Chan v Cresdon Pty Ltd [1989] HCA 63 ; (1989) 168 CLR 242
Outcome: cited
turn to the nature of the interest of each retiree. In my view, each retiree had an equitable interest in the land by reason of the fact that each was entitled to specific performance of the Contract of Sale or Agreement for Sale of Real Estate or the Deed of Agreement to the possession of the property as a tenant immediately upon settlement. The extent of that interest is to be determined by the form in which specific performance would be granted by a court. The retirees were entitled as against MFLPH to an order requiring MFLPH to sign and deliver to the retirees upon settlement a lease of the property upon the terms agreed, relevantly for life, subject to the condition that the retiree stay in possession for a certain period and pay the nominal rent (see Downie v Lockwood [1965] VR 257; Craddock Bros v Hunt [1923] 2 Ch 136; Chan v Cresdon Pty Ltd (1989) 168 CLR 242; Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at 332-333, [53]; Black v Garnock [2007] HCA 31 ; (2007) 230 CLR 438 at 449-450, [32] ). It is not necessary that specific performance be available at the time of the hearing: Bunny Industries Ltd v FSW Enterprises Pty Ltd [1982] Qd R 712. It is important to appreciate that the availability and the nature of specific performance is a precondition to the recognition of an equitable interest and the extent of that equitable interest in the property. Here, as I have said, a court, by reference to the terms of agreement between the retirees and MFLPH, would give each retiree possession of the land upon settlement by making an order that MFLPH sign and deliver a lease of the property to each retiree effective from the moment of settlement. First, the retirees argued that their entering into possession pursuant to an agreement to grant a lease and paying rent will give rise to a common law tenancy, citing Chan v Cresdon Pty Ltd [1989] HCA 63 ; (1989) 168 CLR 242. In that case, Mason CJ, Brennan, Deane and McHugh JJ stated (at 248): It is well settled that entry into occupation followed by payment of rent under an agreement for a future lease brings into existence a common law tenancy from year to year, so long as the payment of rent is referable to a yearly tenancy, as where it is for an aliquot part of a year...