mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Taylor v Telstra Corporation Ltd [2007] FCA 2008
Outcome: cited
noted by Jacobson J in Taylor v Telstra Corporation Ltd [2007] FCA 2008 at [63] , Jessup J also said at [50] that he did not consider that it was the Court's function under s 33V to second guess the applicants' advisors in the answer to the question whether the applicants ought to have accepted the respondent's offer. The question is whether the agreed settlement falls within the range of a fair and reasonable outcome, taking everything into account. As Jessup J also pointed out in Darwalla , there is rarely, if ever, a case in which there is a unique outcome which should be regarded as the only fair and reasonable one.
Case: Williams v FAI Homes Security Pty Ltd (No 4) [2000] FCA 1925 ; (2000) 180 ALR 459
Outcome: considered
the present case, each Deacons client has had the benefit of advice from solicitors and counsel as to how his or her interests are best served in the litigation and by the proposed settlement. My task is to determine whether the proposed settlement is fair and reasonable having regard to the claims made on behalf of the group members who will be bound by the settlement ( Williams v FAI Homes Security Pty Ltd (No 4) [2000] FCA 1925 ; (2000) 180 ALR 459 at [19] per Goldberg J). While the nine factor test adopted by Goldberg J in Williams is not a rigid test to be applied, it is useful as a guide ( Haslam v Money For Living (Aust) Pty Limited (Administrators Appointed) [2007] FCA 897 at [20] per Gordon J.)
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: considered
adopting this course, it seems to me that the Tribunal was alive to the procedure, counselled by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at especially 602, para 43. There, in respect of a Tribunal proceeding, the court noted that the Tribunal had not identified particular aspects of the visa Applicant's account as important issues in the course of the hearing; that it had not challenged what the visa applicant had said; and that it did not say anything to him that would have revealed to him particular issues that were live issues in the context of the consideration of that particular visa application. Rather, based on what the delegate had decided, the Tribunal had left the visa Applicant in that case in a position where he would, and should, have understood that there was a quite different central and critical issue for determination, in the context of that case, as to whether the Tribunal was satisfied that a claim for a protection visa had been made out. No such criticism can be voiced of the way in which the Tribunal dealt with the case in this instance, nor in any failure on the part of the Federal Magistrates Court to quash the decision of the Tribunal on such a basis. Instead, what is revealed is a considered value judgment by the Tribunal, having well and truly put the male Appellant on notice in respect of critical, factual issues for determination. It is worthy of note, also, that the Tribunal asked the male Appellant, in the course of the hearing, whether he had any other information to provide in relation to the visa application, and that he responded that he did not. It was then that the Tribunal gave the male Appellant notice that the Tribunal might, on the information before it, be in a position to give an oral decision. The response, apparently made by the male Appellant, was that he wanted to change his life, and that he came "here"; ie, to Australia.
Case: Beaton v Moore Acceptance Corporation Pty Ltd [1959] HCA 59 ; (1959) 104 CLR 107 
Outcome: referred to
In Beaton v Moore Acceptance Corporation Pty Ltd [1959] HCA 59 ; (1959) 104 CLR 107 , Dixon CJ, Taylor and Windeyer JJ considered a case involving a purchaser who had entered into a contract with a vendor for the sale of goods, being a bulldozer. Before that contract was completed, the purchaser entered into a hire purchase contract with a financier, and the financier in turn entered into a contract with the original vendor to acquire the bulldozer from it so as to make it available to the purchaser. The bulldozer was defective when delivered to the purchaser. Dixon CJ, Taylor and Windeyer JJ said that the purchaser's claim against the original vendor was for breach of a contract '... which, by common consent, was superseded by the hire purchase agreement in question and which, therefore, was never carried into effect': Beaton 104 CLR at 118; see too Hellyer Drilling Co v MacDonald Hamilton &amp; Co Pty Ltd (1983) 51 ALR 177 at 181 per Fitzgerald J. 365 The assignment was made as a contract. Each of North East Equity and Proud Machinery agreed with the bank in December 2002 that all North East Equity's rights in relation to the new line would be either assigned by it to, or taken as being enforceable directly by, the bank. Under that agreement, North East Equity's contractual rights against Proud Machinery passed to the bank in accordance with, or were superseded by, the terms of the notice executed by Proud Machinery on 3 December 2002: Beaton 104 CLR at 118. Accordingly, I am of opinion that North East Equity had no title to sue Proud Machinery for breach of contract. 366 North East Equity pleaded that Proud Machinery and Mr Proud owed it a duty '... in designing, procuring and installing the [n]ew [l]ine to exercise reasonable care and skill so as to avoid [North East Equity] suffering loss and damage by any act or omission on the part of [Mr] Proud or Proud Machinery'. I have found that Proud Machinery and Mr Proud did not design the new line.
Case: Bellgrove v Eldridge [1954] HCA 36 ; (1954) 90 CLR 613
Outcome: cited
The situation has some similarity to assessing damages where building work is defective. Recently, Finkelstein and Gordon JJ said that, speaking generally in cases of work done or not done, or damage caused to property in breach of contract, there are two bases for assessing damages: first, the cost of reinstatement, or secondly, the diminution of the value of the property due to the breach. They held that the correct measure is '... whatever is reasonable for the wronged party to recover': Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (2008) 166 FCR 494 at 503 [29]. I examined the authorities and concluded that the principle applicable based on Bellgrove v Eldridge [1954] HCA 36 ; (1954) 90 CLR 613 was ( Bowen Investments 166 FCR at 524 [98]): '... that the building owner was entitled to recover the cost of rectification provided that the rectification proposed was both necessary, to bring about conformity with the contract, and a reasonable course to adopt. "Reasonableness", in that context, can be seen to be what the owner could require having regard to the terms of the contract and the nature of the departure from them in the performance proffered by the other party. That is, of course, a factual enquiry.'
Case: BHP Coal Pty Ltd v O &amp; K Orenstein &amp; Koppel AG [2008] QSC 141
Outcome: cited
Rights to sue for the tort of negligent misrepresentation ( Poulton v The Commonwealth (1953) 89 CLR 540 at 602 per Williams, Webb and Kitto JJ) and for loss or damage under s 82 of the Trade Practices Act in respect of a contravention of s 52 are not assignable: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 at 732-734 [51] - [57] per myself; BHP Coal Pty Ltd v O &amp; K Orenstein &amp; Koppel AG [2008] QSC 141 at [76] per McMurdo J. Those rights remained with North East Equity.
Case: Bonython v The Commonwealth [1950] UKPCHCA 3 ; (1950) 81 CLR 486
Outcome: applied
North East Equity alleged that the contract was a contract for the sale of goods within the meaning of one of the Sale of Goods Act 1895 of Western Australia or South Australia, but it did not identify which Act applied. Both Acts were written on the template devised by Sir Mackenzie Chalmers in 1893. The proper law of the contract for the supply of the new plant is the system of law by reference to which the contract was made, or that with which the transaction has its closest and most real connection: Bonython v The Commonwealth [1950] UKPCHCA 3 ; (1950) 81 CLR 486 at 498 per Lord Simonds. Their Lordships stated there that ( Bonython 81 CLR at 498): '[W]hat is the proper law of the contract, and therefore what is the substance of the obligation created by it, it is a factor and sometimes a decisive one that a particular place is chosen for performance.' 61 Here, the contract for the supply and installation of the new plant and equipment had to be substantially performed in Western Australia. The only connection with the law of South Australia was the location of Proud Machinery's head office there. A condition of the letters of credit was payment of 40% of the purchase price for the particular goods upon delivery to Perth. Effectively, performance of the contract had to occur either in Western Australia, or overseas in the various parts of the world from which Proud Machinery was sourcing supplies of items of plant and equipment to be installed. 62 The substantial obligation created by the contract was for Proud Machinery to supply and install, at Wattleup in Western Australia, the plant and equipment for which it was charging $3 million. That obligation, together with a consideration of the whole of the circumstances, leads to the conclusion that the proper law of the contract was the law of Western Australia. The transaction had its closest and most real connection with that State. Accordingly, I find that the Sale of Goods Act 1895 (WA) applied to contract.
Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720
Outcome: cited
Rights to sue for the tort of negligent misrepresentation ( Poulton v The Commonwealth (1953) 89 CLR 540 at 602 per Williams, Webb and Kitto JJ) and for loss or damage under s 82 of the Trade Practices Act in respect of a contravention of s 52 are not assignable: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 at 732-734 [51] - [57] per myself; BHP Coal Pty Ltd v O &amp; K Orenstein &amp; Koppel AG [2008] QSC 141 at [76] per McMurdo J. Those rights remained with North East Equity.
Case: Burns v MAN Automotive (Aust) Pty Ltd [1986] HCA 81 ; (1986) 161 CLR 653
Outcome: applied
Moreover, while Mr Tana no doubt was annoyed by being asked to pay for the replacement flumes, had he done so by early 2004, when it was clear that Proud Machinery and Bruynooghe would not, this problem would have been resolved. I am not persuaded that it was reasonable for North East Equity not to have replaced them by June 2004 if there were production difficulties of any substance caused by the flume elevators: Burns v MAN Automotive (Aust) Pty Ltd [1986] HCA 81 ; (1986) 161 CLR 653 at 658 per Gibbs CJ, at 668 per Wilson, Deane and Dawson JJ, at 673-674 per Brennan J. Accordingly, I am of opinion that the general damages for this problem should be awarded only for the period to June 2004 when the new flumes should have been installed, had a decision to replace them been made within a reasonable time. 376 It was not reasonably foreseeable, at the time the contract was entered into, that North East Equity would continue to operate a defective flume system which disrupted its business by affecting the orderly and efficient operation of the new line. Any damage it suffered beyond the time when what needed to be done became clear and that Proud Machinery would not replace the flume elevators, was not within the reasonable contemplation of the parties as flowing from the breach: Burns 161 CLR at 668 per Wilson, Deane and Dawson JJ. 377 I am of opinion that the cost of replacing the flume elevators was &#8364;51,000. There is no evidence of the freight or installation costs but, doing the best I can from reviewing the general costs of installing the new line I consider that an allowance of &#8364;9,000 should be made, making a total of &#8364;60,000. 378 It is difficult to dissect particular losses of time or costs as having been occasioned by one or more of the deficiencies in the new line which I have found. These were the defective flume elevators and the original location of the touch screen in the office, rather than above the tanks where it was moved later in 2003 at no cost to North East Equity. The task of making an assessment of any loss is more difficult because of the deficiencies I have found in North East Equity's management, or lack of it, of the new line.
Case: Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592
Outcome: cited
Often when a person passes on what another has said, he or she gives his or her own imprimatur to the original statement. Thus, at common law, a person who passes on a rumour or statement made by another is treated as having the same responsibility as the source. And, in cases involving s 52 of the Trade Practices Act , the representor's conduct must be considered as a whole: Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at 605 [38] - [40] per Gleeson CJ, Hayne and Heydon JJ. Once the contract was made, what Mr North had said, which Proud passed on to North East Equity, assumed a different character because Proud Machinery then accepted responsibility for achieving that level of performance. 123 North East Equity also alleged that, between about late 2001 and September 2002, Proud made the following representations to Mr Tana orally, either on the telephone or in person: (viii) Mr Proud repeated the various written representations alleged. (ix) Proud Machinery and Mr Proud were possessed with sufficient knowledge, skill and experience to design, procure and install the new plant. (x) The new plant would utilise electric power more efficiently than the existing Sumich line. (xi) The new plant would comfortably handle a capacity of 150 tonnes per day packed out in cartons and in doing so it would be operating at 'idle'. 124 While it is likely that Mr Proud repeated the written representations that I have found were made in the course of either discussions or republishing his own letters, I do not consider that such repetition adds anything. I do not propose to deal with the instances of those repetitions because it is not necessary to do so.
Case: Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: cited
In a commercial setting between experienced business people, the express words of the contract, even if contained in exchanges of correspondence, will often be an authoritative guide as to the matters on which each party relied in entering the contract. They will know that often events will have moved on from earlier communications. Courts will be mindful that representations made early in a negotiation process, can be potent and can continue to influence a party's understanding of what is being discussed, or what becomes the subject-matter of a contract. Nonetheless, courts must also be realistic about how negotiations progress; they are not static and when the context evolves, so does the understanding of each party as to what, at the later point of time, is being discussed. Gibbs CJ noted in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199 (in a passage approved by Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ in Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at 85 [102] ) that s 52 of the Trade Practices Act did not impose burdens which operated for the benefit of persons who failed to take reasonable care of their own interests. Gibbs CJ was discussing representations made to the public, as opposed to particular individuals. However, the judgment in Campomar 202 CLR at 83-84 [98]-[100] also discussed the need to consider all of the circumstances of the particular case. And, as McLelland CJ in Eq in Watson 49 NSWLR at 318-319 noted, recollections of pre-contractual conversations relied on as the source of an allegedly misleading or deceive representation can be affected by later events and the lapse of time.
Case: Fountain v Alexander (1982) 150 CLR 615 
Outcome: cited
As a matter of ordinary English, the assignment by North East Equity of 'all of its rights in relation to' the new line was plenary. The expression 'in relation to' is of wide and general import (cp its width when used in a statute: Fountain v Alexander (1982) 150 CLR 615 at 629 per Mason J). And, in Loxton v Moir (1914) 18 CLR 360 at 379 Rich J said: 'The phrase "chose in action" is used in different senses, but its primary sense is that of a right enforceable by an action. It may also be used to describe the right of action itself, when considered as part of the property of the person entitled to sue. A right to sue for a sum of money is a chose in action, and it is a proprietary right.'
Case: Gull v Saunders &amp; Stuart [1913] HCA 55 ; (1913) 17 CLR 82 
Outcome: applied
If such a small loss were incurred, it would not accord with commonsense for North East Equity not to have gone ahead with acquiring the new line. In assessing what Mr Tana (as the controlling mind of North East Equity) would have done, it is important to exclude from consideration the subsequent impacts of the fall in the market and the production problems with the farms. Mr Tana was optimistic in 2002 that demand for carrots would increase, so that the labour savings he expected would have been greater, the more carrots were processed. A reasonable business person in the position of Mr Tana and, I infer he too, would have replaced the inefficient old plant with the more efficient new line which gave the actual savings referred to above with the prospect of even greater ones in light of the expectation of greater demand and the significant reduction in future labour costs: Gull v Saunders &amp; Stuart [1913] HCA 55 ; (1913) 17 CLR 82 at 89 per Barton ACJ, Gavan Duffy and Rich JJ approving British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways of London Co Ltd [1912] AC 673: cf at 689-691 per Viscount Haldane LC esp at 691 where the Lord Chancellor referred to replacing obsolete machines with up to date ones.
Case: Hellyer Drilling Co v MacDonald Hamilton &amp; Co Pty Ltd (1983) 51 ALR 177 
Outcome: cited
In Beaton v Moore Acceptance Corporation Pty Ltd [1959] HCA 59 ; (1959) 104 CLR 107 , Dixon CJ, Taylor and Windeyer JJ considered a case involving a purchaser who had entered into a contract with a vendor for the sale of goods, being a bulldozer. Before that contract was completed, the purchaser entered into a hire purchase contract with a financier, and the financier in turn entered into a contract with the original vendor to acquire the bulldozer from it so as to make it available to the purchaser. The bulldozer was defective when delivered to the purchaser. Dixon CJ, Taylor and Windeyer JJ said that the purchaser's claim against the original vendor was for breach of a contract '... which, by common consent, was superseded by the hire purchase agreement in question and which, therefore, was never carried into effect': Beaton 104 CLR at 118; see too Hellyer Drilling Co v MacDonald Hamilton &amp; Co Pty Ltd (1983) 51 ALR 177 at 181 per Fitzgerald J.
Case: Hewett v Court [1983] HCA 7 ; (1983) 149 CLR 639
Outcome: cited
I am of opinion that nothing turns on whether the contract for the supply of the new line was, on its true characterisation, a contract for the sale of goods or a contract for work and materials. In the former case, s 14(i) of the Sale of Goods Act ordinarily would operate to imply a condition that the goods be reasonably fit for the purpose for which they were required, as made known by the purchaser. In the absence of special circumstances, a contract to do work and supply materials will carry with it two implied warranties: first, that the materials are of good quality and free from latent defects; and secondly, that the materials are reasonably fit for their intended purpose: Helicopter Sales (Australia) Pty Limited v Rotor-Work Pty Limited [1974] HCA 32 ; (1974) 132 CLR 1 at 6 per Menzies J, at 8 per Stephen J, Barwick CJ agreeing with their Honours at 4 and Mason J agreed with Stephen J at 15; Young &amp; Marten Ltd v McManus Childs Ltd [1969] 1 AC 454. I am of opinion that because, not only was Proud Machinery to supply the goods, it was also to erect and install them, the contract was not merely a contract for the sale of goods, but was in substance a contract for the provision of work and materials: cf Hewett v Court [1983] HCA 7 ; (1983) 149 CLR 639 at 646-647 per Gibbs CJ, 650 per Murphy J, 655 per Wilson and Dawson JJ, 662 per Deane J. As Gibbs CJ noted, the distinction between a contract for the sale of goods and one for the provision of work and materials is frequently a fine one and the tests for distinguishing them are unsatisfactory and imprecise: Hewett 149 CLR at 646; see too Sutton KCT, Sales and Consumer Law (4 th ed, Lawbook Co, 1995) at [2.42]-[2.43]; Benjamin's Sale of Goods (7 th ed, Sweet &amp; Maxwell, 2006) at [1-041]-[1-043].