mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Elsinora Global Ltd v Healthscope Ltd (No. 2) [2006] FCA 18 ; (2006) 61 ATR 482 
Outcome: discussed
As Edmonds J explained in Elsinora Global Ltd v Healthscope Ltd (No. 2) [2006] FCA 18 ; (2006) 61 ATR 482 at [63] : Subsection 260-5(3) of Sch 1 to the Administration Act is a deeming provision. It provides when a person (the third party) is taken to owe money to another (the debtor). In its form and context it is exhaustive and extends to situations where, but for the deeming, the third party may not, or would not, be regarded as owing money to the debtor. Paragraph (a) is concerned with the standard situation where the third party is indebted to the debtor whether the debt is due or accruing due to the debtor. To attract the deeming operation, para (b) requires the third party to hold money for or on account of the debtor. Unless there is a holding of money by the third party, the deeming cannot operate . Paragraph (c) also requires the third party to hold money, not for or on account of the debtor, but on account of some other entity for payment by the third party, not the other entity, to the debtor. Finally, para (d) operates to deem the third party to owe money to the debtor if the third party has authority from some other entity to pay the money to the debtor. (Emphasis added.) 22 In this case, it cannot be disputed that BJT Legal is a third party holding money, which money represents proceeds from the sale of A Chaid's business, in trust for and on account of the company pending distribution; indeed BJT Legal itself so stated in its 17 May 2007 facsimile to the Commissioner: see [13] above.
Case: Foley v Hill [1848] EngR 837 ; (1848) 9 ER 1002
Outcome: cited
The liquidator submits, however, that the Notice is ineffective because the funds held by BJT Legal are not owed to A Chaid as a result of the FMC's orders of 13 September 2006, which direct that the proceeds of the hotel sale be paid not to A Chaid but to its unsecured creditors. Therefore, the liquidator submits, it cannot be said that BJT Legal is under any obligation to pay money to A Chaid. Further, the liquidator contends that the moneys held in account number 633/000 128949658 in the name of BJT Legal Pty Ltd at Bendigo Bank Ltd, are not the property of A Chaid or BJT Legal but that of the bank subject to the rights of BJT Legal as a creditor of the bank: see Foley v Hill [1848] EngR 837 ; (1848) 9 ER 1002. 19 The Commissioner submits that the 13 September orders do not affect A Chaid's ownership of the funds; rather, the orders simply impose directions as to how the funds owned are to be applied or distributed. 20 These contentions may be put to one side. It is unnecessary to resolve the debate because the plain language of s 260- 5 (3)(b) states that money is deemed to be owed to a debtor, whether or not it is actually due or payable to the debtor, if it is held for or on account of the debtor.
Case: Goodger v Ayre (1988) 88 FLR 188 
Outcome: cited
The parties agree that if the Notice is effective it creates a statutory charge in favour of the Commissioner and thus makes the Commissioner a secured creditor of A Chaid for purposes of the Corporations Act , entitled to priority of payment over unsecured creditors: Clyne v Deputy Commissioner of Taxation [1981] HCA 40 ; (1981) 150 CLR 1 at 17-18 (per Mason J) and 26-27 (per Brennan J); Goodin v Commissioner of Taxation (2002) 169 FLR 282 at 289; Commissioner of Taxation v Donnelly [1989] FCA 399 ; (1989) 25 FCR 432 at 436 (per Lockhart J); Macquarie Health Corp Ltd v Commissioner of Taxation [1999] FCA 1819 ; (1999) 96 FCR 238 , 255-271; Goodger v Ayre (1988) 88 FLR 188 at 191-192.
Case: Goodin v Commissioner of Taxation (2002) 169 FLR 282 
Outcome: cited
The parties agree that if the Notice is effective it creates a statutory charge in favour of the Commissioner and thus makes the Commissioner a secured creditor of A Chaid for purposes of the Corporations Act , entitled to priority of payment over unsecured creditors: Clyne v Deputy Commissioner of Taxation [1981] HCA 40 ; (1981) 150 CLR 1 at 17-18 (per Mason J) and 26-27 (per Brennan J); Goodin v Commissioner of Taxation (2002) 169 FLR 282 at 289; Commissioner of Taxation v Donnelly [1989] FCA 399 ; (1989) 25 FCR 432 at 436 (per Lockhart J); Macquarie Health Corp Ltd v Commissioner of Taxation [1999] FCA 1819 ; (1999) 96 FCR 238 , 255-271; Goodger v Ayre (1988) 88 FLR 188 at 191-192.
Case: Macquarie Health Corp Ltd v Commissioner of Taxation [1999] FCA 1819 ; (1999) 96 FCR 238 
Outcome: cited
The parties agree that if the Notice is effective it creates a statutory charge in favour of the Commissioner and thus makes the Commissioner a secured creditor of A Chaid for purposes of the Corporations Act , entitled to priority of payment over unsecured creditors: Clyne v Deputy Commissioner of Taxation [1981] HCA 40 ; (1981) 150 CLR 1 at 17-18 (per Mason J) and 26-27 (per Brennan J); Goodin v Commissioner of Taxation (2002) 169 FLR 282 at 289; Commissioner of Taxation v Donnelly [1989] FCA 399 ; (1989) 25 FCR 432 at 436 (per Lockhart J); Macquarie Health Corp Ltd v Commissioner of Taxation [1999] FCA 1819 ; (1999) 96 FCR 238 , 255-271; Goodger v Ayre (1988) 88 FLR 188 at 191-192.
Case: Moor v Anglo-Italian Bank (1879) 10 Ch D 681 
Outcome: discussed
As the liquidator notes, the relevant law on this point is helpfully summarized in the reasons of Dutney JA (with whom Williams and Jerrard JJA agreed) in Surfers Paradise Investments Pty Ltd (in liquidation) v Davoren Nominees Pty Ltd [2004] 1 Qd R 567 (" Surfers Paradise" ). First, his Honour noted that the regime now codified in s 554E of the Corporations Act dates back to the judgment of Jessel MR in Moor v Anglo-Italian Bank (1879) 10 Ch D 681: Surfers Paradise at [27]. 37 Essentially, a secured creditor wishing to prove a debt may do one of three things: (1) surrender the security and prove for the full amount; (2) realize the security and prove for the difference; or (3) value the security and prove for the difference: Surfers Paradise at [27]. Furthermore (at [27] quoting Moor ): [i]f without doing either of the latter two things, he proves for the full amount, as he cannot prove for the full amount and receive a dividend except on the theory of giving up the security, he shews by that an intention to give up his security; and, if he so proves and receives a dividend or votes, he shews pretty conclusively that he has finally elected to give up his security and take his dividend; in other words, having two funds to resort to, the bankrupt's general estate, so as to get a dividend on the whole amount of his debt, or his security, he elects to take the bankrupt's estate, and in that way gives up his security. It is not forfeiture, it is election; but, the petitioning creditor gets nothing unless he proves. 38 The question, then, is whether a creditor has elected to surrender the security interest. Whether an election has been made is an objective question of fact; that is, regardless of whether a creditor subjectively intended to give up the interest, the court is required to look at objective evidence including whether the creditor has sought to avail himself of rights and remedies of an unsecured creditor such as the dividend and voting rights mentioned in Moor : Surfers Paradise at [28]-[29]. 42 Submission of a proof of debt for the full amount, if it is silent on the question of surrender, is some evidence of an election to surrender but not conclusive evidence: Surfers Paradise at [34] but cf Re International Tyre Co Pty Ltd (in liquidation) (1979) 4 ACLR 553 at 554. On the other hand, the receipt and acceptance of a dividend pursuant to a scheme of arrangement (or the exercise of creditor voting rights) based on the full amount of the debt is conclusive evidence of surrender: Surfers Paradise at [34]; Moor at 689-690. In short, "[t]he two questions here are whether the [Commissioner] was required to elect to surrender the security or not and if so, whether [his] conduct was unequivocal": Surfers Paradise at [36].
Case: Re International Tyre Co Pty Ltd (in liquidation) (1979) 4 ACLR 553
Outcome: distinguished
Submission of a proof of debt for the full amount, if it is silent on the question of surrender, is some evidence of an election to surrender but not conclusive evidence: Surfers Paradise at [34] but cf Re International Tyre Co Pty Ltd (in liquidation) (1979) 4 ACLR 553 at 554. On the other hand, the receipt and acceptance of a dividend pursuant to a scheme of arrangement (or the exercise of creditor voting rights) based on the full amount of the debt is conclusive evidence of surrender: Surfers Paradise at [34]; Moor at 689-690. In short, "[t]he two questions here are whether the [Commissioner] was required to elect to surrender the security or not and if so, whether [his] conduct was unequivocal": Surfers Paradise at [36].
Case: Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634 
Outcome: cited
As noted by Dutney JA, the principles applicable to election were stated by Stephen J in Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634 at 646 (quoted in Surfers Paradise at [31]): The words or conduct ordinarily required to constitute an election must be unequivocal in the sense that it is consistent only with the exercise of one of the two sets of rights and inconsistent with the exercise of the other; thus for a lessor to continue to receive rent under a lease will be consistent only with his rights as lessor and inconsistent with the exercise of a right to determine the lease ... However, less unequivocal conduct, only providing some evidence of an election, may suffice if coupled with actual knowledge of the right of election ... There need be no expressed intention to elect, nor will an express disclaimer of such an intention be of any avail in preserving one right if in fact there be an exercise of another inconsistent right ... For an election there need be no actual, subjective intention to elect ... an election is the effect which the law attributes to conduct justifiable only if such an election had been made ...
Case: SCAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 964
Outcome: followed
The principal issue for consideration before the learned Federal Magistrate was whether the RRT erred in law by not taking into consideration the appellant's subjective state of mind when determining whether the appellant had a well-founded fear of persecution on his return to Kenya. The Federal Magistrate found that the RRT had considered the relevant information, including submissions made for and on behalf of the appellant and available country information. His Honour found that once the RRT was satisfied that there was no objective basis for a well-founded fear of persecution, it was not required to further consider the subjective fear of the appellant (following the approach in SCAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 964 (" SCAM ") and WAHK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 22 (" WAHK ")). Accordingly, he dismissed the application. 11 The first respondent submitted that the RRT was not required to consider subjective factors once it had found that the appellant did not have an objective basis to fear persecution. In the respondent's submission, von Doussa J rejected an argument similar to that of the appellant in SCAM . The respondent maintained that the view of Gaudron J in Chan , and therefore the appellant's argument, was further disapproved by a Full Court of this Court in WAHK . The first respondent submitted that an argument such as that now being put by the appellant had been rejected by the Full Court in SVTB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 104 (" SVTB ") at [16]-[21]. The first respondent maintained that there was no basis for formulating a different standard where it was found that the visa applicant had left his or her country of origin with a well-founded fear of persecution at that time.
Case: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379
Outcome: referred to
In his written submissions, the appellant relied on a passage from the judgment of Gaudron J in Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 (" Miah ") at [62], where her Honour said as follows: "For the purposes of this case, it is necessary to note three important matters with respect to the Convention definition of "refugee". The first is that the Convention looks both to the position of the individual and to the conditions which pertain in the country of his or her nationality. More precisely, the question whether a person has a well-founded fear of persecution is one that has both subjective and objective elements and necessitates consideration of the mental and emotional state of the individual and, also, the objective facts relating to conditions in the country of his or her nationality." The approach taken in Miah is consistent with her Honour's approach to the definition of "refugee" in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 (" Chan ") at 415. The appellant submitted that the majority of Mason CJ, Dawson, Toohey and McHugh JJ in Chan also established that the definition of refugee involves mixed subjective and objective elements. 11 The first respondent submitted that the RRT was not required to consider subjective factors once it had found that the appellant did not have an objective basis to fear persecution. In the respondent's submission, von Doussa J rejected an argument similar to that of the appellant in SCAM . The respondent maintained that the view of Gaudron J in Chan , and therefore the appellant's argument, was further disapproved by a Full Court of this Court in WAHK . The first respondent submitted that an argument such as that now being put by the appellant had been rejected by the Full Court in SVTB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 104 (" SVTB ") at [16]-[21]. The first respondent maintained that there was no basis for formulating a different standard where it was found that the visa applicant had left his or her country of origin with a well-founded fear of persecution at that time.
Case: WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065
Outcome: referred to
The RRT was not in error when if failed expressly to consider the appellant's subjective state. It is true that, if the applicant were to succeed, then the Tribunal had to be satisfied that he subjectively held a fear of persecution if returned to Kenya and that his fear was well-founded. As the Federal Magistrate found, the Full Court decision in WAHK is contrary to the appellant's claim that the RRT was required to consider subjective factors. In WAHK , Lee and Tamberlin JJ said (at [12]-[14]) as follows (emphasis mine): " Where the RRT has accepted that an applicant had a well-founded risk of persecution at the time of their departure, a question arises concerning the approach that the RRT should take, in view of that finding, at the time it makes its decision concerning whether that applicant would have a well-founded risk of persecution, if they were returned. In [Chan] , Gaudron J, (at 415), accepted that the correct approach to a submission as to changed circumstances is as follows: " If an applicant relied on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of the subsequent changes in the country of nationality. " The above view was not shared by Gummow J, who, in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 659, said that the view of Gaudron J in Chan (quoted above) did not represent the view of the Court in Chan . Gaudron J accepted that this observation was correct in the case of Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [69] . Her Honour considered that her approach was, nevertheless, correct. The relevant question is whether, as at 29 May 2002, the objective facts establish that the appellant had a well-founded fear of persecution. This is to be assessed on an objective basis , and not on the basis that the fear of a reasonable person in the position of the claimant would not be allayed by knowledge of subsequent changes in the country of nationality. The reference to a "well-founded fear" is a reference to the objective factual position at that time. " The majority's approach is directly contrary to the position of the appellant in this case. Consistently with WAHK , if the RRT is not satisfied, objectively speaking, that there was a real chance of persecution then it does not have to further consider an applicant's subjective fear. This is because, without a sufficient objective chance of persecution, the applicant cannot have a well-founded fear of persecution: see also WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065 at [46] - [49] and SVTB at [21].
Case: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088
Outcome: referred to
Secondly, an examination of the material before the RRT makes manifest that the appellant clearly limited his claims to his past involvement in MwM. He did not refer to the position of other activists or liken his position to theirs, and he said nothing about his own activities or their curtailment if returned to Kenya. There is no factual basis in this case that would support an approach analogous to that in S395. Further, this is not a case in which it can be said that the RRT has failed to make a finding on "a substantial, clearly articulated argument relying upon established facts" such that there has been a failure to accord procedural fairness or constructive failure to exercise jurisdiction: see and contrast Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ. This is because there was no such argument. To adapt the language of the Full Court of this Court in NABE , this was not a case that obliged the RRT to consider the claim as it is now formulated by the appellant because the claim did not clearly arise from the material before the RRT: see NABE at [58] and [60]-[62].
Case: Australian Competition &amp; Consumer Commission v Black on White Pty Ltd [2002] FCA 1605
Outcome: cited
The discretion to award costs pursuant to s 43(2) of the Federal Court of Australia Act 1976 (Cth) is a wide and comprehensive one attempts to narrow the discretion have not been successful: Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496; Australian Competition &amp; Consumer Commission v Black on White Pty Ltd [2002] FCA 1605 at [5] .
Case: Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496
Outcome: cited
The discretion to award costs pursuant to s 43(2) of the Federal Court of Australia Act 1976 (Cth) is a wide and comprehensive one attempts to narrow the discretion have not been successful: Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496; Australian Competition &amp; Consumer Commission v Black on White Pty Ltd [2002] FCA 1605 at [5] .
Case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48, 136
Outcome: cited
The discretion is not unfettered it must be exercised judicially, not arbitrarily or capriciously, and it cannot be exercised on grounds unconnected with the litigation: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48, 136; Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480 at 485.
Case: Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480
Outcome: cited
The discretion is not unfettered it must be exercised judicially, not arbitrarily or capriciously, and it cannot be exercised on grounds unconnected with the litigation: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48, 136; Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480 at 485.
Case: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201
Outcome: cited
The discretion is not unfettered it must be exercised judicially, not arbitrarily or capriciously, and it cannot be exercised on grounds unconnected with the litigation: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48, 136; Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480 at 485.
Case: D&eacute;cor Corporation Pty Ltd &amp; Anor v Dart Industries Inc. (1991) 33 FCR 397
Outcome: cited
The questions to be determined on this Application are whether, in all the circumstances, the decision of his Honour is attended with sufficient doubt so as to warrant the decision being reconsidered by the Full Court and whether substantial injustice would result if leave is refused, supposing the decision to be wrong ( D&eacute;cor Corporation Pty Ltd &amp; Anor v Dart Industries Inc. (1991) 33 FCR 397 at 398 and 399 per Sheppard, Burchett and Heerey JJ). At pp 399 and 400, their Honours said this: 'In our opinion, the principles discussed in Niemann and in other cases to which we have referred provide general guidance which a court should normally accept. However, there will continue to be cases raising special considerations, and the court should not regard its hands as tied in any case beyond this; that by s 24(1A) the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave. When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice ... and an interlocutory decision determining a substantive right where leave will more readily be granted. ... In the present case, the interlocutory decisions in respect of which leave is sought are certainly attended with difficulty, and their correctness is open to dispute. If they are wrong, significant consequences will be suffered by the applicants. We regard this as a clear case for the grant of leave.' In Yap Cheng See v Granich &amp; Associates [2001] FCA 1735 per North, Merkel and Gyles JJ, the Court noted the distinction to be drawn between an interlocutory decision on a point of practice or procedure and an interlocutory injunction 'on a point of substance' [6].