mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: HIH Insurance Ltd and Related Matters [2004] NSWSC 5
Outcome: cited
As Barrett J observed in HIH Insurance Ltd and Related Matters [2004] NSWSC 5 ( HIH ) at [12], it appears that in some cases a strict approach has not been taken to the jurisdictional question posed by the expression "a debt to the company". In some cases, Judges have granted approval under s 477(2A) without discussion of the jurisdictional question. It can be just as important to decide that a compromised claim is not one of a debt to the company as to decide that it is. In Spalla v St George Motor Finance Ltd (No 7) [2006] FCA 1177 , for example, a challenge was made to a compromise entered into by a liquidator on the ground that approval under s 477(2A) had not been obtained, and Kenny J had no hesitation in holding that the submission failed because it was "based on a misunderstanding as to what constitutes a 'debt' under the relevant section" (at [143]). 26 In HIH [2004] NSWSC 5 at [12] and QBE Workers Compensation (NSW) Ltd v GJ Formwork Pty Ltd (2006) 56 ACSR 687 ( QBE ) at [4]-[5], Barrett J said that where there is room for argument about whether a claim is one of a debt to the company, the court should err on the side of treating the claim as a debt rather than decline to grant approval under s 477(2A). His Honour pointed out that the opening words of s 477(1) have the effect of making the power to compromise contained in para (d) of that subsection subject to subss (2A) and (2B). It follows that if it transpired that a claim was, indeed, one of "a debt to the company" within subs (2A), a compromise of it without approval of the Court, of the committee of inspection or of a resolution of the creditors, would lie outside the power of the liquidator. 28 Be all this as it may, as Barrett J acknowledged in HIH [2004] NSWSC 5 , if the claim is "unquestionably" not a debt, the correct approach is to dismiss any application under s 477(2A) as unnecessary (at [12]). 36 Cases in which a liquidator has applied under both s 477(2A) and s 479(3) include HIH [2004] NSWSC 5 , QBE 56 ACSR 687, Re Gate Gourmet Australia Pty Ltd (in liq) (2005) 23 ACLC 834; Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 925 , and Re United Medical Protection; Application of Lombe Ltd (as prov liq) (2003) 46 ACSR 98.
Case: McGrath re HIH Insurance Ltd [2005] NSWSC 731
Outcome: cited
Applications by liquidators for confidentiality orders in respect of compromises for which they have sought Court approval have been considered in McGrath re HIH Insurance Ltd [2005] NSWSC 731 and Re JN Taylor Holdings Ltd (in liq) [2007] SASC 193. The administration of justice, including the just and efficient winding up of a company, requires that proper compromises be facilitated rather than obstructed. Apart from the requirement of leave, Mr Hamilton would have been entitled to bargain for and reach agreement upon a confidentiality r&eacute;gime in respect of the compromise that he has reached with Mr Parsons and CBI. He and they would have been entitled, in particular, to preserve their negotiations and agreement against disclosure to Mr Yii.
Case: Nambucca Investments Pty Ltd v Snoco Ltd [1999] NSWSC 211
Outcome: cited
The meaning of the word "debt" can be affected by its context. There is a line of authority to the effect that the expression "a debt to the company" in s 477(2A) bears its familiar meaning of a sum of money that is either immediately payable, or that, by reason of an existing obligation, will become payable in the future ( debitum in praesenti , solvendum in futuro ): Luxtrend [1997] 2 Qd R 86 ; Re Tietyens Investments Pty Ltd (in liq) (Receiver and Manager appointed) (1999) 31 ACSR 1 ( Tietyens ) at [92] [94]; and see Austin R P and Ramsay I M, Ford's Principles of Corporations Law (13 th ed, LexisNexis Butterworths, 2007) at [28-260] p1412. Accordingly, claims by liquidators to recover amounts paid away by the company under voidable transactions have been held to lie outside the predecessor provision of s 477(2A), namely, s 477(2A) of the Corporations Law : Luxtrend [1997] 2 Qd R 86 ; Nambucca Investments Pty Ltd v Snoco Ltd [1999] NSWSC 211 at [2] . In Tietyens 31 ACSR 1 a claim of equitable damages based on accessorial liability for breaches of trust, the primary cause of action being a claim based on Barnes v Addy (1874) 9 Ch App 244, was similarly held not to be a claim of a debt to the company.
Case: QBE Workers Compensation (NSW) Ltd v GJ Formwork Pty Ltd (2006) 56 ACSR 687
Outcome: cited
In HIH [2004] NSWSC 5 at [12] and QBE Workers Compensation (NSW) Ltd v GJ Formwork Pty Ltd (2006) 56 ACSR 687 ( QBE ) at [4]-[5], Barrett J said that where there is room for argument about whether a claim is one of a debt to the company, the court should err on the side of treating the claim as a debt rather than decline to grant approval under s 477(2A). His Honour pointed out that the opening words of s 477(1) have the effect of making the power to compromise contained in para (d) of that subsection subject to subss (2A) and (2B). It follows that if it transpired that a claim was, indeed, one of "a debt to the company" within subs (2A), a compromise of it without approval of the Court, of the committee of inspection or of a resolution of the creditors, would lie outside the power of the liquidator. 29 According to the Points of Claim, the present claim is based exclusively on the voidable transaction provisions of the Act, as those provisions apply to two specific payments made by Newpage. The facts of the present case are very different from those that were before Barrett J in HIH and QBE . 30 In HIH and QBE , the liquidator also sought and obtained a direction under s 479(3) of the Act that he was justified in entering into the compromise (in HIH the approval sought and obtained was founded on s 477(2B), as well as on s 477(2A)). 31 Section 479(3) of the Act provides: The liquidator may apply to the Court for directions in relation to any particular matter arising under the winding up. 32 When recommending the removal of the necessity of approval of the exercise of a liquidator's powers, the Harmer Report stated (at [610]) that the creditors would still have power to give directions to which a liquidator must have regard (the then s 379 of the Companies Code, and now s 479 of the Act), and that the actions of a liquidator could be reviewed by the courts (the then s 538 of the Companies Code , and now s 1321 of the Act). Section 379 of the Companies Code which the Report cited, like s 479 of the Act, also provided in subs (3) for a liquidator to apply to the Court for directions. 36 Cases in which a liquidator has applied under both s 477(2A) and s 479(3) include HIH [2004] NSWSC 5 , QBE 56 ACSR 687, Re Gate Gourmet Australia Pty Ltd (in liq) (2005) 23 ACLC 834; Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 925 , and Re United Medical Protection; Application of Lombe Ltd (as prov liq) (2003) 46 ACSR 98.
Case: Re Gate Gourmet Australia Pty Ltd (in liq) (2005) 23 ACLC 834
Outcome: cited
Cases in which a liquidator has applied under both s 477(2A) and s 479(3) include HIH [2004] NSWSC 5 , QBE 56 ACSR 687, Re Gate Gourmet Australia Pty Ltd (in liq) (2005) 23 ACLC 834; Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 925 , and Re United Medical Protection; Application of Lombe Ltd (as prov liq) (2003) 46 ACSR 98.
Case: Re GB Nathan and Co Pty Ltd (in liq) (1991) 24 NSWLR 674
Outcome: cited
It must be remembered that there is a distinction between s 477(2A) and s 479(3): where the claim is of a debt to the company of more than $20,000, the liquidator lacks power to compromise the debt in the absence of "approval", and s 479(3) does not empower the court to grant powers to a liquidator. The different role of directions under s 479(3) of providing guidance and protection to the liquidator appears from the judgments in Re GB Nathan and Co Pty Ltd (in liq) (1991) 24 NSWLR 674, 679-680; Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83 at 85 ( Spedley ); State Bank of New South Wales v Turner Corporation Ltd (1994) 14 ACSR 480 at 483.
Case: Re JN Taylor Holdings Ltd (in liq) [2007] SASC 193
Outcome: followed
Applications by liquidators for confidentiality orders in respect of compromises for which they have sought Court approval have been considered in McGrath re HIH Insurance Ltd [2005] NSWSC 731 and Re JN Taylor Holdings Ltd (in liq) [2007] SASC 193. The administration of justice, including the just and efficient winding up of a company, requires that proper compromises be facilitated rather than obstructed. Apart from the requirement of leave, Mr Hamilton would have been entitled to bargain for and reach agreement upon a confidentiality r&eacute;gime in respect of the compromise that he has reached with Mr Parsons and CBI. He and they would have been entitled, in particular, to preserve their negotiations and agreement against disclosure to Mr Yii.
Case: Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83
Outcome: cited
It must be remembered that there is a distinction between s 477(2A) and s 479(3): where the claim is of a debt to the company of more than $20,000, the liquidator lacks power to compromise the debt in the absence of "approval", and s 479(3) does not empower the court to grant powers to a liquidator. The different role of directions under s 479(3) of providing guidance and protection to the liquidator appears from the judgments in Re GB Nathan and Co Pty Ltd (in liq) (1991) 24 NSWLR 674, 679-680; Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83 at 85 ( Spedley ); State Bank of New South Wales v Turner Corporation Ltd (1994) 14 ACSR 480 at 483. 35 Whether under s 477(2A) or s 479(3), the Court does not enter upon the commercial merits of the compromise. Rather, its concern is with such matters as "lack of good faith, some error in law or principle, or real and substantial ground for doubting the prudence of the liquidator's conduct" ( Spedley 9 ACSR 83 at 85-6 (a s 479(3) directions case)).
Case: Re Tietyens Investments Pty Ltd (in liq) (Receiver and Manager appointed) (1999) 31 ACSR 1
Outcome: followed
The meaning of the word "debt" can be affected by its context. There is a line of authority to the effect that the expression "a debt to the company" in s 477(2A) bears its familiar meaning of a sum of money that is either immediately payable, or that, by reason of an existing obligation, will become payable in the future ( debitum in praesenti , solvendum in futuro ): Luxtrend [1997] 2 Qd R 86 ; Re Tietyens Investments Pty Ltd (in liq) (Receiver and Manager appointed) (1999) 31 ACSR 1 ( Tietyens ) at [92] [94]; and see Austin R P and Ramsay I M, Ford's Principles of Corporations Law (13 th ed, LexisNexis Butterworths, 2007) at [28-260] p1412. Accordingly, claims by liquidators to recover amounts paid away by the company under voidable transactions have been held to lie outside the predecessor provision of s 477(2A), namely, s 477(2A) of the Corporations Law : Luxtrend [1997] 2 Qd R 86 ; Nambucca Investments Pty Ltd v Snoco Ltd [1999] NSWSC 211 at [2] . In Tietyens 31 ACSR 1 a claim of equitable damages based on accessorial liability for breaches of trust, the primary cause of action being a claim based on Barnes v Addy (1874) 9 Ch App 244, was similarly held not to be a claim of a debt to the company. 37 In Dean-Willcocks v ATTT Investments Pty Ltd (1999) 17 ACLC 1310, an application was made under s 477(2A) for the Court's approval of an arrangement by which a secured creditor of the company would inject funds in exchange for a particular asset. There was no dispute about the monies owing. Young J held that the Court had no jurisdiction to grant approval under s 477(2A) because what was proposed was not a compromise of a debt, and that the proper course, if the liquidator wanted to pursue the matter, would be for him to seek directions under s 479(3). In Tietyens 31 ACSR 1, Weinberg J held that he lacked jurisdiction under s 477(2A) but gave directions under s 479(3).
Case: Re United Medical Protection; Application of Lombe Ltd (as prov liq) (2003) 46 ACSR 98
Outcome: cited
Cases in which a liquidator has applied under both s 477(2A) and s 479(3) include HIH [2004] NSWSC 5 , QBE 56 ACSR 687, Re Gate Gourmet Australia Pty Ltd (in liq) (2005) 23 ACLC 834; Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 925 , and Re United Medical Protection; Application of Lombe Ltd (as prov liq) (2003) 46 ACSR 98.
Case: Spalla v St George Motor Finance Ltd (No 7) [2006] FCA 1177
Outcome: cited
As Barrett J observed in HIH Insurance Ltd and Related Matters [2004] NSWSC 5 ( HIH ) at [12], it appears that in some cases a strict approach has not been taken to the jurisdictional question posed by the expression "a debt to the company". In some cases, Judges have granted approval under s 477(2A) without discussion of the jurisdictional question. It can be just as important to decide that a compromised claim is not one of a debt to the company as to decide that it is. In Spalla v St George Motor Finance Ltd (No 7) [2006] FCA 1177 , for example, a challenge was made to a compromise entered into by a liquidator on the ground that approval under s 477(2A) had not been obtained, and Kenny J had no hesitation in holding that the submission failed because it was "based on a misunderstanding as to what constitutes a 'debt' under the relevant section" (at [143]).
Case: State Bank of NSW v Turner Corporation Ltd (1994) 14 ACSR 480
Outcome: cited
It must be remembered that there is a distinction between s 477(2A) and s 479(3): where the claim is of a debt to the company of more than $20,000, the liquidator lacks power to compromise the debt in the absence of "approval", and s 479(3) does not empower the court to grant powers to a liquidator. The different role of directions under s 479(3) of providing guidance and protection to the liquidator appears from the judgments in Re GB Nathan and Co Pty Ltd (in liq) (1991) 24 NSWLR 674, 679-680; Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83 at 85 ( Spedley ); State Bank of New South Wales v Turner Corporation Ltd (1994) 14 ACSR 480 at 483.
Case: Adelaide Brighton Cement v AWU [2002] FCA 601
Outcome: followed
The applicant referred to Adelaide Brighton Cement v AWU [2002] FCA 601 , when faced with similar issues, von Doussa J, after considering Davids Distribution noted at [18]: The degree of specificity in a notice sufficient to enable the employer to take appropriate defensive action must be judged against the nature of the employer's undertaking and the way in which that undertaking operates. In that case, as here, the employer operated 12 hour day and night shifts and was left not knowing at what time on what day it would need to allocate labour to maintain its operations. His Honour found there was a serious question to be tried that the notice of industrial action failed to meet the requirements of s 170MO(5) (now 441 (6) of the Act ).
Case: AFMEPKIU v ACI Mould Manufacturing [1999] FCA 1859
Outcome: cited
It is no answer, in the applicant's submission, to say simply that the only express temporal requirement in s 441(6) is that the notice specify the day when the action will begin. The authorities indicate that the purpose of the sub-section will not be met unless the action is described with sufficient specificity to enable the recipient of the notice (usually but not always the employer) to take appropriate defensive measures and the degree of specificity required will vary according to the nature of the employer's undertaking and the way it operates. It referred to AFMEPKIU v ACI Mould Manufacturing [1999] FCA 1859 (Goldberg J) at [25]-[28] (serious question that notice was invalid because it failed to state the end date of proposed action). 89 The respondent submitted that the Protected Action Notice is unambiguous in that the employees in question are those who are members of the respondent and who work as process technicians: there is no uncertainty as to whether the notice relates to some or all of those employees as it obviously relates to all of them. 90 The respondent then contended that the Protected Action Notice specifies that industrial action in the form of the Stoppage will commence on 6 April and that whilst it does not specify the time it will commence, the Act does not require this to be done. Section 444(6) merely requires written notice of "the day" when the intended action will begin.
Case: Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 874
Outcome: referred to
I am satisfied that I have such power: DG Whelan Rentals Pty Ltd v Australian Building Construction Employees' and Builders Labourers' Federation (1982-83) 46 ALR 339 at 346-347 and 349; Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 874 at [14] .
Case: Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union v Ardmona Foods Limited [2006] FCA 1039
Outcome: cited
The respondent, without any additional submissions, later, by email, referred the Court to the following further decisions: Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union v Ardmona Foods Limited [2006] FCA 1039 ; Blagojevch v Australian Industrial Relations Commission [2000] FCA 483 at [13] et seq; Miller v University of New South Wales [2002] FCA 882 [68] et seq especially [74], [79].
Case: Blagojevch v Australian Industrial Relations Commission [2000] FCA 483
Outcome: cited
The respondent, without any additional submissions, later, by email, referred the Court to the following further decisions: Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union v Ardmona Foods Limited [2006] FCA 1039 ; Blagojevch v Australian Industrial Relations Commission [2000] FCA 483 at [13] et seq; Miller v University of New South Wales [2002] FCA 882 [68] et seq especially [74], [79].
Case: Bogaards v McMahon (1988) 80 ALR 342
Outcome: cited
In further written submissions provided during the morning of 4 April 2007 the respondent contended that issue estoppel is not limited in its operation to issues decided by a court exercising judicial power but extends to other tribunals. It relied upon The Administration of the Territory of Papua and New Guinea v Daera Guba [1973] HCA 59 ; (1972-3) 130 CLR 353 at 452 per Gibbs J where his Honour considered the case of Stiftung v. Rayner &amp; Keeler Ltd (No. 2) (1967) 1 AC 853 and also Stephen J at 460; Barwick CJ at 402, McTiernan and Menziess JJ agreeing. It referred also to the discussion by Pincus J in Bogaards v McMahon (1988) 80 ALR 342 at 350 et seq.
Case: Burswood Resort (Management) Ltd v ALHMWU [1999] FCA 1443
Outcome: referred to
The applicant relied upon Woodside Petroleum (WA Oil) Pty Ltd v AIMPE [2005] FCA 403 where a similar issue arose. The notice of intended industrial action served by the union in that case did not make clear whether employees would perform critical safety functions including monitoring of the power supply. The seriousness of the safety issues raised weighed heavily in the balance of convenience: [2005] FCA 403 at [16] - [17] . The applicant also referred the Court to Burswood Resort (Management) Ltd v ALHMWU [1999] FCA 1443 (Carr J) at [13]-[14] (serious question to be tried as to whether "stoppages of work" refers to some or all employees); Burswood Resort (Management) Ltd v CEPU [2004] FCA 909 (Nicholson J) at [12]-[14].
Case: Burswood Resort (Management) Ltd v CEPU [2004] FCA 909
Outcome: referred to
The applicant relied upon Woodside Petroleum (WA Oil) Pty Ltd v AIMPE [2005] FCA 403 where a similar issue arose. The notice of intended industrial action served by the union in that case did not make clear whether employees would perform critical safety functions including monitoring of the power supply. The seriousness of the safety issues raised weighed heavily in the balance of convenience: [2005] FCA 403 at [16] - [17] . The applicant also referred the Court to Burswood Resort (Management) Ltd v ALHMWU [1999] FCA 1443 (Carr J) at [13]-[14] (serious question to be tried as to whether "stoppages of work" refers to some or all employees); Burswood Resort (Management) Ltd v CEPU [2004] FCA 909 (Nicholson J) at [12]-[14].
Case: DG Whelan Rentals Pty Ltd v Australian Building Construction Employees' and Builders Labourers' Federation (1982-83) 46 ALR 339
Outcome: followed
I am satisfied that I have such power: DG Whelan Rentals Pty Ltd v Australian Building Construction Employees' and Builders Labourers' Federation (1982-83) 46 ALR 339 at 346-347 and 349; Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 874 at [14] .
Case: Miller v University of New South Wales [2002] FCA 882
Outcome: cited
The respondent, without any additional submissions, later, by email, referred the Court to the following further decisions: Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union v Ardmona Foods Limited [2006] FCA 1039 ; Blagojevch v Australian Industrial Relations Commission [2000] FCA 483 at [13] et seq; Miller v University of New South Wales [2002] FCA 882 [68] et seq especially [74], [79].
Case: Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Outcome: cited
Alternatively, so the respondent submitted, as a matter of discretion, the applicant should not be permitted to dispute the validity of the notice initiating the bargaining period because that issue has already been decided twice, even if, on a strict application of the doctrine of issue estoppel, it does not apply. It cited in support Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 , at [66]-[67], per French J; Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393; Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 per French J.
Case: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699
Outcome: cited
Alternatively, so the respondent submitted, as a matter of discretion, the applicant should not be permitted to dispute the validity of the notice initiating the bargaining period because that issue has already been decided twice, even if, on a strict application of the doctrine of issue estoppel, it does not apply. It cited in support Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 , at [66]-[67], per French J; Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393; Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 per French J.
Case: Stiftung v. Rayner &amp; Keeler Ltd (No. 2) (1967) 1 AC 853
Outcome: cited
In further written submissions provided during the morning of 4 April 2007 the respondent contended that issue estoppel is not limited in its operation to issues decided by a court exercising judicial power but extends to other tribunals. It relied upon The Administration of the Territory of Papua and New Guinea v Daera Guba [1973] HCA 59 ; (1972-3) 130 CLR 353 at 452 per Gibbs J where his Honour considered the case of Stiftung v. Rayner &amp; Keeler Ltd (No. 2) (1967) 1 AC 853 and also Stephen J at 460; Barwick CJ at 402, McTiernan and Menziess JJ agreeing. It referred also to the discussion by Pincus J in Bogaards v McMahon (1988) 80 ALR 342 at 350 et seq.
Case: The Administration of the Territory of Papua and New Guinea v Daera Guba [1973] HCA 59 ; (1972-3) 130 CLR 353
Outcome: cited
In further written submissions provided during the morning of 4 April 2007 the respondent contended that issue estoppel is not limited in its operation to issues decided by a court exercising judicial power but extends to other tribunals. It relied upon The Administration of the Territory of Papua and New Guinea v Daera Guba [1973] HCA 59 ; (1972-3) 130 CLR 353 at 452 per Gibbs J where his Honour considered the case of Stiftung v. Rayner &amp; Keeler Ltd (No. 2) (1967) 1 AC 853 and also Stephen J at 460; Barwick CJ at 402, McTiernan and Menziess JJ agreeing. It referred also to the discussion by Pincus J in Bogaards v McMahon (1988) 80 ALR 342 at 350 et seq.