mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Securities and Investments Commission v Mauer-Swisse Securities Ltd (2002) 42 ACSR 605
Outcome: referred to
the present context the word "interlocutory" must be used with caution. Palmer J pointed out in Australian Securities and Investments Commission v Mauer-Swisse Securities Ltd (2002) 42 ACSR 605 that when granting an injunction under s 1324(1) or (4) of the Act the Court is not exercising the traditional equitable jurisdiction to grant final or interlocutory injunctions. While considerations that are customarily relevant to the exercise of that jurisdiction may be also relevant to the exercise of the discretion under s 1324(1) or (4), the dominant consideration in cases under the section is the purpose of the provision of the Act that is said to have been contravened. Unfortunately, to a large extent the parties have not joined issue in their submissions. HPM emphasises that the purpose of Pt 5C of the Act is to establish a r&eacute;gime to protect those who contemplate acquiring or have acquired interests in MISs. Counsel for HPM submits that the arrangement established and implemented by the defendants was the very kind of arrangement that the legislature intended should be registered and regulated by Pt 5C. This submission, however, assumes what is to be decided that there was an MIS in the first place. Counsel for the defendants, on the other hand, places heavy reliance on s 564 of the Act. That section expressly contemplates the possibility that a creditor or creditors will indemnify a liquidator and so enable the liquidator to recover property which would not otherwise have been recovered. The section empowers the Court to make such orders as it deems just with respect to the distribution of the property recovered with a view to giving the funding creditor or creditors an advantage over others in consideration of the risk assumed. Counsel correctly points out that the notion of "creditors" for this purpose includes contingent creditors. It seems not to be disputed by HPM that the various investor-borrowers are contingent creditors of TROM or Merilbah or of both of them.
Case: Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (2009) 260 ALR 643
Outcome: referred to
parties made submissions for and against the proposition that the arrangement established by the defendants constituted an unlawful MIS. HPM's submissions were founded upon the decision of the Full Court of this Court in Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (2009) 260 ALR 643. More precisely, HPM's submissions were founded on the majority judgment of Sundberg and Dowsett JJ in that case Jacobson J dissented. Over all, two Judges of this Court, the majority in the Full Court, considered that the litigation funding arrangement in that case constituted an MIS as defined in s 9 of the Act, while the primary Judge Finkelstein J, and Jacobson J in dissent in the Full Court, considered that it did not.
Case: National Australia Bank Ltd v Norman [2009] FCAFC 152
Outcome: referred to
referred the parties to the more recent decision of the Full Court in National Australia Bank Ltd v Norman [2009] FCAFC 152 delivered on 30 October 2009, on which the parties also made submissions. I do not propose to embark upon a detailed consideration of the various elements of an MIS as defined in s 9 of the Act. It suffices to say that I do not think that either of the authorities named above or others to which I was referred demonstrate conclusively that the arrangement in the present case was or was not an MIS. Both possibilities are arguable. It seems to me that for the purpose of this application for urgent interim relief, I should proceed on the assumptions that arguably funds have been and are to be raised under an unlawful MIS and that arguably the assignments are invalid and HPM lacks title to them. In his submissions, counsel for HPM has stated in a different connection that neither TROM nor Merilbah has any assets from which to pay damages and that TROM's Liquidator and Merilbah's Liquidators are not a source of recovery. I infer that unless the funds already raised from investor-debtors are made available, the question of the validity of the assignments will not be able to tested. TROM's Liquidator and Merilbah's Liquidators are officers of the Court. So far as the evidence reveals, no investor-debtor who has provided funding or been asked to provide it is complaining. I appreciate that it can be said that the investor-debtors would not be aware of circumstances giving them a right to complain. For example, apparently they would not know that HOL has misrepresented to them that if the assignments are held to be invalid, they will definitely obtain a discharge of their debts. The Australian Securities and Investments Commission is aware of the present dispute but has not sought an injunction restraining the defendants from approaching the investor-debtors. Several questions of concern are raised by the present application for interim relief. Who are the creditors (including, but not limited to, contingent creditors) of TROM and Merilbah who will benefit from a determination that the assignments are invalid? What is the ground of their status as creditors or contingent creditors? What is the fund that it is hoped will provide the basis of a distribution to creditors? Have TROM's Liquidator and Merilbah's Liquidators been encouraging investor-debtors to make claims and thereby to become contingent creditors? How can TROM's Liquidator and Merilbah's Liquidators support a result that all investor-debtors be released from their debts? Has there been an abuse by TROM's Liquidator and Merilbah's Liquidators of their powers in seeking to create challenges to the validity of the assignments in circumstances in which, if it be the case, the only persons who will benefit in terms of payment of money will be themselves?
Case: Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) [2006] FCA 540
Outcome: referred to
On 12 May 2006, I delivered judgment in this matter: Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) [2006] FCA 540. I ordered that the application be dismissed, with costs. The respondents foreshadowed at that time that they wished to apply for costs to be awarded on an indemnity basis. I gave directions to facilitate the making of such an application. 2 On 19 May 2006, the respondents filed a notice of motion seeking costs on an indemnity basis or, alternatively, on a solicitor/client basis. They also sought an order that the applicant pay their costs thrown away (by reason of certain amendments made to the applicant's statement of claim) on an indemnity basis, or alternatively, on a solicitor/client basis. I had previously directed that that application be dealt with after the conclusion of the trial. 3 There are three separate bases upon which the respondents contend that they are entitled to costs on a higher scale. They say that such costs are warranted because: &#8226; the applicant conducted the litigation in a manner that was wasteful, causing loss of time and inconvenience to the parties, and to the Court; &#8226; the proceeding had been commenced or continued in circumstances where the applicant, properly advised, should have known that it had no chance of success; and &#8226; there was an imprudent refusal of an offer of compromise, essentially contained in what was described as a "Calderbank" letter or letters.
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
Outcome: referred to
The principles applicable to an order for costs on an indemnity or solicitor/client basis are well-established. The starting point in considering an application for costs on these higher scales is that ordinarily costs are payable on a party/party basis. Section 43 of the Federal Court of Australia 1976 (Cth) confers upon the Court a wide discretion in relation to costs. Of course that discretion must be exercised judicially. Indemnity costs may properly be awarded where there is some special or unusual feature in the case justifying a departure from the ordinary rule: Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151.
Case: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: referred to
In Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233, Sheppard J provided some examples of the circumstances that might warrant an order for costs on an indemnity basis. The principles are well-known, and need not be elaborated here. 15 Dealing first with the contention that the applicant's conduct of this litigation provides a basis for indemnity costs, I am not persuaded by that submission. It is true that the applicant attempted on a number of occasions to reformulate its case against the respondents. The number was less than the 12 that Mr Fitzgerald suggested, but was still significant. Nonetheless, it would be disproportionate and unduly harsh, in my view, to visit indemnity costs upon the applicant in relation to virtually the entire trial because of errors made early on in the conduct of the proceeding. 16 Moreover, I do not think that the applicant's failure to give discovery of the letter of 8 January 2002, which was a mistake on its part, and not a deliberate act, warrants such consequences.
Case: Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618
Outcome: referred to
In the first place, there is some doubt as to whether these letters constitute Calderbank offers. There are cases that suggest that an offer by a defendant to settle a case on the basis that each party bears its own costs does not constitute a Calderbank offer: see Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618 per Hill J; McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 per Dunford J; Vasram v AMP Life Limited [2002] FCA 1286 per Stone J, Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 per Kenny J and Jacomb v The Australian Municipal, Administrative, Clerical and Services Union [2004] FCA 1600 per Crennan J.
Case: McKerlie v State of New South Wales (No.2) [2000] NSWSC 1159
Outcome: referred to
In the first place, there is some doubt as to whether these letters constitute Calderbank offers. There are cases that suggest that an offer by a defendant to settle a case on the basis that each party bears its own costs does not constitute a Calderbank offer: see Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618 per Hill J; McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 per Dunford J; Vasram v AMP Life Limited [2002] FCA 1286 per Stone J, Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 per Kenny J and Jacomb v The Australian Municipal, Administrative, Clerical and Services Union [2004] FCA 1600 per Crennan J.
Case: Vasram v AMP Life Limited [2002] FCA 1286
Outcome: referred to
In the first place, there is some doubt as to whether these letters constitute Calderbank offers. There are cases that suggest that an offer by a defendant to settle a case on the basis that each party bears its own costs does not constitute a Calderbank offer: see Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618 per Hill J; McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 per Dunford J; Vasram v AMP Life Limited [2002] FCA 1286 per Stone J, Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 per Kenny J and Jacomb v The Australian Municipal, Administrative, Clerical and Services Union [2004] FCA 1600 per Crennan J.
Case: Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212
Outcome: referred to
In the first place, there is some doubt as to whether these letters constitute Calderbank offers. There are cases that suggest that an offer by a defendant to settle a case on the basis that each party bears its own costs does not constitute a Calderbank offer: see Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618 per Hill J; McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 per Dunford J; Vasram v AMP Life Limited [2002] FCA 1286 per Stone J, Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 per Kenny J and Jacomb v The Australian Municipal, Administrative, Clerical and Services Union [2004] FCA 1600 per Crennan J.
Case: Jacomb v The Australian Municipal, Administrative, Clerical and Services Union [2004] FCA 1600
Outcome: referred to
In the first place, there is some doubt as to whether these letters constitute Calderbank offers. There are cases that suggest that an offer by a defendant to settle a case on the basis that each party bears its own costs does not constitute a Calderbank offer: see Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618 per Hill J; McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 per Dunford J; Vasram v AMP Life Limited [2002] FCA 1286 per Stone J, Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 per Kenny J and Jacomb v The Australian Municipal, Administrative, Clerical and Services Union [2004] FCA 1600 per Crennan J.
Case: Leichardt Municipal Council v Green [2004] NSWCA 341
Outcome: referred to
I note, however, that the New South Wales Court of Appeal in Leichardt Municipal Council v Green [2004] NSWCA 341 took what is arguably a different view of this matter. 22 If anything, the case for treating the respondents' letters as Calderbank offers is weaker than the case for treating an offer to settle on the basis that each party bear its own costs in that way. The element of "compromise" involved in the present case was significantly less than the element of compromise that would be involved in a case where each party would bear its own costs. 23 In any event, and irrespective of whether the letters qualify as Calderbank offers, I am not persuaded that the applicant acted unreasonably in rejecting those offers. It is by no means clear whether they amounted to a serious compromise of the respondents' rights, as the respondents considered them to be. There is no evidence before me regarding the actual amount expended by the respondents in the defence of this proceeding by March, April or August 2005. I am in no position to gauge whether anything really tangible was being offered to the applicant in return for discontinuing this case. I will not speculate about that issue. 24 For these reasons none of the matters identified by Mr Fitzgerald, whether they are considered in isolation, or in conjunction with each other, warrant a departure from the ordinary rule that costs are paid on a party/party basis. 25 As for the alternative claim that the costs associated with the last amendment to the pleadings be paid on an indemnity basis, that submission must also fail. There is nothing to suggest that the trial of this matter was conducted upon a basis that cast doubt upon the utility of the amendments. The normal rule that costs thrown away by reason of an amendment to the pleadings are paid on a party/party basis should apply. 26 For these reasons the respondents' notice of motion filed on 19 May 2006 should be dismissed. The respondents must pay the costs of and incidental to that notice of motion. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice W. Associate: Dated: 15 June 2006 Counsel for the Applicant: Mr M.K. Moshinsky Solicitor for the Applicant: Foster Harris Counsel for the Respondents: Mr G.J. Fitzgerald Solicitors for the Respondents: Home Wilkinson Lowry Date of Hearing: 15 June 2006 Date of Judgment: 15 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/755.html
Case: Ngurli Ltd v McCann [1953] HCA 39 ; (1953) 90 CLR 425
Outcome: applied
The Court has power in equity and under the Act to set aside a resolution made in circumstances where there has been a fraud on a power by the members ( Ngurli Ltd v McCann [1953] HCA 39 ; (1953) 90 CLR 425 at 438-439 per Williams ACJ, Fullagar and Kitto JJ) or by directors (e.g. Whitehouse v Carlton Hotel Pty Ltd [1987] HCA 11 ; (1987) 162 CLR 285 at 289-290, 293-294 per Mason, Deane and Dawson JJ). The provisions of s 233 give the Court broad powers to make 'any order ... that it considers appropriate in relation to the company'. In their natural and ordinary meaning the introductory words of the section justify the making of an order setting aside a resolution and substituting another. Indeed, s 233(b) contains an express power to modify or repeal a company's constitution. Ordinarily, that could only be done by a special resolution passed by a general meeting. I am of opinion the general power given in the chapeau to s 233 authorises the Court to set aside and substitute resolutions of directors or members. The purpose of s 233 is to enable the Court to remedy a situation brought about by the conduct of members or directors of companies. The remedial power extends to ordering the company to do directly what could have been done by it through the proper exercise by its members or directors of their powers sourced in its constitution or in the Act.
Case: Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281
Outcome: applied
In Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 at 287 [34] Hely J reviewed the authorities and concluded that conduct of a defendant in failing to accept a Calderbank offer had to be shown by the offeror to be unreasonable in all of the circumstances so as to justify a departure from the normal rule as to costs. Hely J also recognised that while the policy of the law favours the sensible compromise of disputes, there was also a policy against deterring parties from pursuing claims to which they reasonably believed themselves entitled ( Braverus 212 ALR at 289-290 [46]). I am also of opinion that the policy of the law entitles the parties to pursue defences against claims in circumstances where they reasonably believe they cannot achieve a compromise on commercially acceptable grounds. 36 Here, the plaintiffs were seeking to keep their options open in the offers on which they rely. The defendants did not have to accept that stance. The absence of any clear offer capable of acceptance which would have resolved the whole dispute, other than those which the defendants were reasonably entitled not to accept, leads me to conclude that I should dismiss the application for indemnity costs. I certify that the preceding thirty six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 28 February 2007 Counsel for the Plaintiffs: Mr F Lever SC with Mr R Alkadamani Solicitor for the Plaintiffs: Haywards Solicitors Counsel for the Defendants: Mr S Reuben with Mr D Jarrett Solicitor for the Defendants: Cordato Partners Date of Hearing: Date of Judgment: 14, 19 February 2007 28 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/220.html
Case: Singleton v Macquarie Broadcasting Holdings Ltd (unreported, 22 November 1989; BC8902891)
Outcome: distinguished
During the course of oral argument the plaintiffs referred to the decision of Rogers CJ in Comm D in the Supreme Court of New South Wales in Singleton v Macquarie Broadcasting Holdings Ltd (unreported, 22 November 1989; BC8902891). There, no offer of settlement had been made under the provisions of the then Pt 22 of the Supreme Court Rules 1970 (NSW) or in the form of a Calderbank letter. However, the plaintiffs there had offered to settle for a sum which was less than ultimately they were found to be entitled to receive. Rogers CJ in Comm D said that during the course of the proceedings it became apparent that the defendant had sought to put in the forefront of its resistance to the plaintiffs' claims an argument or defence that should have been perceived as unsustainable on the evidentiary material (BC8902891 at 12). He pointed out that the provisions in the Court's rules gave substantial guidance on the question of whether an order for indemnity costs should be made. The Chief Judge said (BC8902891 at 16): 'Where, prior to the hearing, a party offers to settle on a basis of an amount less than that ultimately recovered, then, all other things being equal, costs incurred thereafter may be appropriate on an indemnity scale.' 34 While I agree with that expression of principle, the plaintiffs here are unable to point to any offer which they put forward which it was unreasonable for the defendants not to have accepted. Indeed, the only offers on which the plaintiffs rely are the terms of the draft deeds as negotiated and the course of negotiations up to 11 January 2006.
Case: Whitehouse v Carlton Hotel Pty Ltd [1987] HCA 11 ; (1987) 162 CLR 285
Outcome: applied
The Court has power in equity and under the Act to set aside a resolution made in circumstances where there has been a fraud on a power by the members ( Ngurli Ltd v McCann [1953] HCA 39 ; (1953) 90 CLR 425 at 438-439 per Williams ACJ, Fullagar and Kitto JJ) or by directors (e.g. Whitehouse v Carlton Hotel Pty Ltd [1987] HCA 11 ; (1987) 162 CLR 285 at 289-290, 293-294 per Mason, Deane and Dawson JJ). The provisions of s 233 give the Court broad powers to make 'any order ... that it considers appropriate in relation to the company'. In their natural and ordinary meaning the introductory words of the section justify the making of an order setting aside a resolution and substituting another. Indeed, s 233(b) contains an express power to modify or repeal a company's constitution. Ordinarily, that could only be done by a special resolution passed by a general meeting. I am of opinion the general power given in the chapeau to s 233 authorises the Court to set aside and substitute resolutions of directors or members. The purpose of s 233 is to enable the Court to remedy a situation brought about by the conduct of members or directors of companies. The remedial power extends to ordering the company to do directly what could have been done by it through the proper exercise by its members or directors of their powers sourced in its constitution or in the Act.