mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Casella v Casella [1969] VR 49
Outcome: referred to
The fourteenth respondent is the Victorian Registrar of Titles. It will be convenient to refer to him hereafter as "the Registrar". In his written submissions, counsel for the Registrar contended that Victorian case law which had developed under s 51 of the Trustee Act 1958 (Vic) and s 103 the Transfer of Land Act 1958 (Vic) rendered a vesting order as a step of last resort for parties who had "no other ordinary conveyancing procedure available to them." Section 51 provided for vesting orders to be made, inter alia, when a trustee, who was under a duty to do so, neglected or refused to convey any property. Section 103 provided for the Supreme Court to direct the Registrar to correct the record in the Register. Reliance was placed on Dotter v Evans [1969] VR 41; Casella v Casella [1969] VR 49 and Re Purkiss [1999] VSC 386 ; [1999] 3 VR 223. In argument counsel agreed that these cases were concerned with the exercise, by the Supreme Court of Victoria, of statutory discretions to direct the Registrar to amend the Register. The Registrar placed particular reliance on the observations of Gillard J in Dotter v Evans at 45 where his Honour said: "I would, therefore, be inclined to the view that having regard to this policy [of providing for the certificate of title or Crown Grant to be in duplicate], set out or to be discovered in the Transfer of Land Act , a vesting order should not be where it is merely intended to facilitate or be a substitute for ordinary conveyancing practice. In these proceedings supplementary orders are being sought to enforce a judgment for specific performance and it should be assumed that the defendant should and will obey the Court's orders on any directions given. At the initial stages these orders should involve simple conveyancing matters only. Although from the evidence before the Court one may believe that the defendants will prove recalcitrant and will not willingly co-operate to carry out the judgment of the Court, nevertheless at this stage of the proceedings, in asking for supplementary directions, it seems to me that the plaintiff should follow the ordinary practice, both in Court proceedings and in conveyancing. All remedies based on such practices should be exhausted before other extraordinary remedies are granted by the Court." 9 His Honour's observations were made in the course of dealing with a case in which a vendor had failed to comply with an order for specific performance of a contract for the sale of land. Casella v Casella involved the failure by a husband to comply with a Court order to transfer certain land to his wife as part of property arrangements following a divorce. McInerney J refused to make an order under s 103 of the Transfer of Land Act because of a concern that it could lead to the continuance in existence of a duplicate certificate of title which did not reflect the terms of the Register and which might be misused (see at 59-60).
Case: Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168
Outcome: referred to
The breadth of the discretion was recognised by Sackville J in Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168 at 182 where his Honour said: "There are good reasons to give s 33ZF a generous interpretation. The section is couched in broad terms. Moreover, the Court is given power to act on its own motion. The language, which is described in the Explanatory Memorandum, as "wide", doubtless reflects the drafter's perception that the new statutory procedure for representative proceedings was likely to throw up novel problems that would require close supervision by the Court." See also McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 at 4 (per Wilcox J).
Case: Marshall v Williams [1974] VR 592
Outcome: referred to
Gillard J gave further consideration to the exercise of the Court's discretion to make an order under s 103 of the Transfer of Land Act in Marshall v Williams [1974] VR 592. In that case he made an order under s 103 because the vendor could not be found and the duplicate certificate of title obtained from him. Having referred to his judgment in Dotter v Evans he continued (at 594); "The basis for my view was that there should be no opportunity for two duplicate certificates of title being in existence at the same time in respect of the same land. It seemed to me that such a situation was contrary to the intent and policy of the Transfer of Land Act . I think, however, that if one follows the order made by Lush J in Ritzos v Ritzos [1970] VR 150 to ensure the old certificate is cancelled and a new duplicate certificate issued, then some of the difficulties that I had foreseen in Dotter v Evans will be overcome." 11 In Re Purkiss , Warren J made an order under s 51 of the Trustee Act 1958 in a case in which no legal entity could be found who could execute a transfer of land. Her Honour referred to Marshall v Williams and held that, in the circumstances, the order which she made was a "step of last resort'. Her Honour did not hold that an order under s 51 could not be made unless all conveyancing processes had been exhausted.
Case: McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1
Outcome: referred to
The breadth of the discretion was recognised by Sackville J in Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168 at 182 where his Honour said: "There are good reasons to give s 33ZF a generous interpretation. The section is couched in broad terms. Moreover, the Court is given power to act on its own motion. The language, which is described in the Explanatory Memorandum, as "wide", doubtless reflects the drafter's perception that the new statutory procedure for representative proceedings was likely to throw up novel problems that would require close supervision by the Court." See also McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 at 4 (per Wilcox J).
Case: Re Purkiss [1999] VSC 386 ; [1999] 3 VR 223
Outcome: referred to
The fourteenth respondent is the Victorian Registrar of Titles. It will be convenient to refer to him hereafter as "the Registrar". In his written submissions, counsel for the Registrar contended that Victorian case law which had developed under s 51 of the Trustee Act 1958 (Vic) and s 103 the Transfer of Land Act 1958 (Vic) rendered a vesting order as a step of last resort for parties who had "no other ordinary conveyancing procedure available to them." Section 51 provided for vesting orders to be made, inter alia, when a trustee, who was under a duty to do so, neglected or refused to convey any property. Section 103 provided for the Supreme Court to direct the Registrar to correct the record in the Register. Reliance was placed on Dotter v Evans [1969] VR 41; Casella v Casella [1969] VR 49 and Re Purkiss [1999] VSC 386 ; [1999] 3 VR 223. In argument counsel agreed that these cases were concerned with the exercise, by the Supreme Court of Victoria, of statutory discretions to direct the Registrar to amend the Register. The Registrar placed particular reliance on the observations of Gillard J in Dotter v Evans at 45 where his Honour said: "I would, therefore, be inclined to the view that having regard to this policy [of providing for the certificate of title or Crown Grant to be in duplicate], set out or to be discovered in the Transfer of Land Act , a vesting order should not be where it is merely intended to facilitate or be a substitute for ordinary conveyancing practice. In these proceedings supplementary orders are being sought to enforce a judgment for specific performance and it should be assumed that the defendant should and will obey the Court's orders on any directions given. At the initial stages these orders should involve simple conveyancing matters only. Although from the evidence before the Court one may believe that the defendants will prove recalcitrant and will not willingly co-operate to carry out the judgment of the Court, nevertheless at this stage of the proceedings, in asking for supplementary directions, it seems to me that the plaintiff should follow the ordinary practice, both in Court proceedings and in conveyancing. All remedies based on such practices should be exhausted before other extraordinary remedies are granted by the Court." 11 In Re Purkiss , Warren J made an order under s 51 of the Trustee Act 1958 in a case in which no legal entity could be found who could execute a transfer of land. Her Honour referred to Marshall v Williams and held that, in the circumstances, the order which she made was a "step of last resort'. Her Honour did not hold that an order under s 51 could not be made unless all conveyancing processes had been exhausted.
Case: Ritzos v Ritzos [1970] VR 150
Outcome: referred to
Gillard J gave further consideration to the exercise of the Court's discretion to make an order under s 103 of the Transfer of Land Act in Marshall v Williams [1974] VR 592. In that case he made an order under s 103 because the vendor could not be found and the duplicate certificate of title obtained from him. Having referred to his judgment in Dotter v Evans he continued (at 594); "The basis for my view was that there should be no opportunity for two duplicate certificates of title being in existence at the same time in respect of the same land. It seemed to me that such a situation was contrary to the intent and policy of the Transfer of Land Act . I think, however, that if one follows the order made by Lush J in Ritzos v Ritzos [1970] VR 150 to ensure the old certificate is cancelled and a new duplicate certificate issued, then some of the difficulties that I had foreseen in Dotter v Evans will be overcome."
Case: Attorney-General v Wentworth (1988) 14 NSWLR 481
Outcome: cited
operation of O 21 of the Federal Court Rules , as then in force, was considered by Sackville J in Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378. The following principles emerge from that decision at [51]-[59] and are relevant to the present form of O 21: (a) The power to make an order under O 21 is to be exercised having regard to the fundamental principle that every person has a right of access to the Court to seek remedies in consequence of an alleged infringement of his or her rights and that it is a serious thing to limit or restrict that right. (b) The power to restrict that right of access exists to protect the Court's own processes against unwarranted usurpation of judicial time and resources and to avoid the loss and disruption caused to those who face actions which lack substance. (c) The terms of O 21 r 1 identify the jurisdictional criteria which must be established before the power to make any order will arise. An application for such an order needs to show that the person against whom such an order is sought: - habitually and persistently; - and without any reasonable cause; - institutes; - a vexatious proceeding; - in the Court [or any other Australian court]. (d) The expression "habitually and persistently" implies more than "frequently". "Habitually" suggests that the institution of proceedings is undertaken automatically and without due consideration to the merits of the proceedings. "Persistently" suggests determination and continuation in the face of difficulty or opposition, with a degree of stubbornness. (e) The test of whether a vexatious proceeding has been commenced "without any reasonable cause" is an objective one. The relevant inquiry is whether the legal proceedings in fact can be shown to have had no reasonable basis regardless of the subjective motive or point of view of Mr Tsekouras. Similar principles were stated by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 which considered the equivalent provision of the Supreme Court Act 1970 (NSW) ('the Supreme Court Act ').
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
am satisfied that Mr Tsekouras has no reasonable prospects of successfully prosecuting any part of his proceeding. The subject matter of this proceeding has been considered by numerous other courts. Accordingly, Mr Olsen is entitled to summary judgment pursuant to s 31A of the Federal Court Act. Further, I am satisfied that Mr Tsekouras' case is hopeless and bound to fail and Mr Olsen would have been entitled to summary judgment under the test under General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. Order 21 of the Federal Court Rules : vexatious litigants Order 21 rule 1 of the Federal Court Rules relevantly provides: (1) If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order: (a) that any proceeding instituted by the person may not be continued without leave of the Court; and (b) that the person may not institute a proceeding without leave of the Court. (2) An order under this rule may be made: (a) on the application of a person against whom the person mentioned in subrule (1) has instituted or conducted vexatious proceedings; or (b) on the application of a person who has sufficient interest in the matter; ...
Case: Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378
Outcome: considered
operation of O 21 of the Federal Court Rules , as then in force, was considered by Sackville J in Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378. The following principles emerge from that decision at [51]-[59] and are relevant to the present form of O 21: (a) The power to make an order under O 21 is to be exercised having regard to the fundamental principle that every person has a right of access to the Court to seek remedies in consequence of an alleged infringement of his or her rights and that it is a serious thing to limit or restrict that right. (b) The power to restrict that right of access exists to protect the Court's own processes against unwarranted usurpation of judicial time and resources and to avoid the loss and disruption caused to those who face actions which lack substance. (c) The terms of O 21 r 1 identify the jurisdictional criteria which must be established before the power to make any order will arise. An application for such an order needs to show that the person against whom such an order is sought: - habitually and persistently; - and without any reasonable cause; - institutes; - a vexatious proceeding; - in the Court [or any other Australian court]. (d) The expression "habitually and persistently" implies more than "frequently". "Habitually" suggests that the institution of proceedings is undertaken automatically and without due consideration to the merits of the proceedings. "Persistently" suggests determination and continuation in the face of difficulty or opposition, with a degree of stubbornness. (e) The test of whether a vexatious proceeding has been commenced "without any reasonable cause" is an objective one. The relevant inquiry is whether the legal proceedings in fact can be shown to have had no reasonable basis regardless of the subjective motive or point of view of Mr Tsekouras. Similar principles were stated by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 which considered the equivalent provision of the Supreme Court Act 1970 (NSW) ('the Supreme Court Act ').
Case: Cannane &amp; Anor v Official Trustee in Bankruptcy (1996) 65 FCR 453
Outcome: cited
to sue for an antecedent debt pursuant to an agreement, either express or implied, may constitute valuable consideration, including in a bankruptcy context: Wigan v English and Scottish Law Life Assurance Association (1909) 1 Ch 291 at 303, re Zampatti ex parte RJ Levack Ltd [1993] FCA 170 , Cannane &amp; Anor v Official Trustee in Bankruptcy (1996) 65 FCR 453 at 466, Official Trustee in Bankruptcy v Racovitis [1995] FCA 959 , Victorian Producers Co-Operative Co Ltd v Kenneth [1999] FCA 1488 , Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85 at [22] . However in bankruptcy-related proceedings the forbearance must be for value. This point was emphasised in para 84.14 of the Explanatory Memorandum to the Bankruptcy Legislation Amendment Bill 1996 (Cth), which enacted s 120 in its current form, states: Forbearance to sue has always been regarded at law as good consideration. Such forbearance will, under the Act as proposed to be amended by the Bill, have to be looked at in the light of the likely value of the chose in action. (emphasis added)
Case: National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209
Outcome: cited
relation to the Cross-Claim before me, there is no suggestion by the trustee that the respondent has unduly delayed her application to file a Cross-Claim, that it would be unjust to the trustee if I were to grant leave to the respondent to file the Cross-Claim, or that the Cross-Claim is designed as a calculated harassment of the trustee in the principal proceedings (cf National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 at 238). The s 139ZQ notice the subject of the Cross-Claim was issued on the basis of a claim that the transfer of the Hope Island property was made for no consideration at a time at which Mr Jensen was insolvent, and that it was void as against the trustee pursuant to s 120 of the Bankruptcy Act . Similar issues, as between the same parties, are raised by both the s 139ZQ notice and the principal proceedings. While, as submitted by Mr McQuade for the trustee, the issue of the s 139ZQ notice does not require the trustee to commence proceedings in relation to the property the subject of that notice, I consider that the submissions of the respondent I listed earlier in this judgment concerning the broader question of whether the Court should grant leave to file the Cross-Claim have merit, and I propose to adopt them. Accordingly, I consider it appropriate that the respondent have leave to file Cross-Claim in the terms annexed to the affidavit of the respondent sworn 22 September 2009. 2. SHOULD PARAGRAPHS 7e, 10 AND 24 AMENDED DEFENCE AND CROSS-CLAIM BE STRUCK OUT? Under the heading " Section 120 " in para 8 of the Amended Statement of Claim the trustee pleads: The respondent gave no consideration to the transfer or alternatively gave consideration less than the market value of the property transferred to the respondent.
Case: Official Trustee in Bankruptcy v Racovitis [1995] FCA 959
Outcome: cited
to sue for an antecedent debt pursuant to an agreement, either express or implied, may constitute valuable consideration, including in a bankruptcy context: Wigan v English and Scottish Law Life Assurance Association (1909) 1 Ch 291 at 303, re Zampatti ex parte RJ Levack Ltd [1993] FCA 170 , Cannane &amp; Anor v Official Trustee in Bankruptcy (1996) 65 FCR 453 at 466, Official Trustee in Bankruptcy v Racovitis [1995] FCA 959 , Victorian Producers Co-Operative Co Ltd v Kenneth [1999] FCA 1488 , Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85 at [22] . However in bankruptcy-related proceedings the forbearance must be for value. This point was emphasised in para 84.14 of the Explanatory Memorandum to the Bankruptcy Legislation Amendment Bill 1996 (Cth), which enacted s 120 in its current form, states: Forbearance to sue has always been regarded at law as good consideration. Such forbearance will, under the Act as proposed to be amended by the Bill, have to be looked at in the light of the likely value of the chose in action. (emphasis added)
Case: Macks v Edge [2006] FCA 1077 ; (2006) 156 FCR 302
Outcome: considered
First, Mr Griffin QC for the respondent submitted that if the trustee is successful in the substantive proceedings the respondent will make an application in the Family Court under s 79(1) of the Family Law Act seeking an order altering the interests of the trustee in the relevant property of Mr Jensen. As Besanko J observed in Macks v Edge [2006] FCA 1077 ; (2006) 156 FCR 302 at [42] , the Federal Court can hear and determine the trustee's claim, but it cannot hear and determine a spouse's claim under the Family Law Act should it become necessary to do so. Since judgment was delivered in Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen [2009] FCA 778 it has become clear that:
Case: Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85
Outcome: cited
to sue for an antecedent debt pursuant to an agreement, either express or implied, may constitute valuable consideration, including in a bankruptcy context: Wigan v English and Scottish Law Life Assurance Association (1909) 1 Ch 291 at 303, re Zampatti ex parte RJ Levack Ltd [1993] FCA 170 , Cannane &amp; Anor v Official Trustee in Bankruptcy (1996) 65 FCR 453 at 466, Official Trustee in Bankruptcy v Racovitis [1995] FCA 959 , Victorian Producers Co-Operative Co Ltd v Kenneth [1999] FCA 1488 , Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85 at [22] . However in bankruptcy-related proceedings the forbearance must be for value. This point was emphasised in para 84.14 of the Explanatory Memorandum to the Bankruptcy Legislation Amendment Bill 1996 (Cth), which enacted s 120 in its current form, states: Forbearance to sue has always been regarded at law as good consideration. Such forbearance will, under the Act as proposed to be amended by the Bill, have to be looked at in the light of the likely value of the chose in action. (emphasis added)
Case: re Zampatti ex parte RJ Levack Ltd [1993] FCA 170
Outcome: cited
to sue for an antecedent debt pursuant to an agreement, either express or implied, may constitute valuable consideration, including in a bankruptcy context: Wigan v English and Scottish Law Life Assurance Association (1909) 1 Ch 291 at 303, re Zampatti ex parte RJ Levack Ltd [1993] FCA 170 , Cannane &amp; Anor v Official Trustee in Bankruptcy (1996) 65 FCR 453 at 466, Official Trustee in Bankruptcy v Racovitis [1995] FCA 959 , Victorian Producers Co-Operative Co Ltd v Kenneth [1999] FCA 1488 , Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85 at [22] . However in bankruptcy-related proceedings the forbearance must be for value. This point was emphasised in para 84.14 of the Explanatory Memorandum to the Bankruptcy Legislation Amendment Bill 1996 (Cth), which enacted s 120 in its current form, states: Forbearance to sue has always been regarded at law as good consideration. Such forbearance will, under the Act as proposed to be amended by the Bill, have to be looked at in the light of the likely value of the chose in action. (emphasis added)