mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: ICM Agricultural Pty Ltd v Young [2009] FCA 109
Outcome: cited
a hearing at which ICM and Mr Young were represented by counsel, I ordered on 19 February 2009 that the appeal be allowed, the orders of the Federal Magistrates Court be set aside, and in lieu thereof it be ordered that the application to that Court be dismissed. I also ordered that Mr Young pay ICM's costs of the FMC Bankruptcy Notice proceeding and that he pay ICM's costs of the FC Bankruptcy Notice Appeal: ICM Agriculture Pty Ltd v Young [2009] FCA 109 (Earlier Reasons for Judgment). I will take my Earlier Reasons for Judgment as read.
Case: International Alpaca Management Pty Ltd v Ensor [1999] FCA 72
Outcome: discussed
5(2) of the Bankruptcy Act provides that a person is solvent if, and only if, the person is able to pay all the person's debts, as and when they become due and payable. Section 124(3)(a) speaks of a person's being unable to pay that person's debts as they become due from that person's own money. In International Alpaca Management Pty Ltd v Ensor [1999] FCA 72 ( Alpaca ), Katz J referred to these provisions and to the well known discussions of the concept of solvency in Bank of Australasia v Hall [1907] HCA 78 ; (1907) 4 CLR 1514 at 1527-8 and 1542-3 ( Hall ); and Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 at 670-671 ( Sandell ). From the former, his Honour seemed to draw a conclusion that one should consider whether the debtor would be able to pay debts as they fell due in the reasonably near future, not simply those that were immediately payable; from the latter, that where the provision refers to debts being able to be paid from the person's own money, that money may extend to cash realised from sale, mortgage or pledge of the person's assets within a relatively short time, subject to considerations relating to household necessities (see [72] below). Ultimately, however, the approach taken by Katz J to the interpretation of s 52(2)(a) depended on the construction of the provision which the debtor accepted before his Honour. In Rigg v Baker [2006] FCAFC 179 ; (2006) 155 FCR 531 , in a passage with which Sundberg and French JJ did not disagree, Cowdroy J noted at [104] a number of cases, including Alpaca, in which the passages from Sandell and Hall referred to above had been treated as applicable to s 52(2)(a). The decision of a Full Court of this Court in Stankiewicz v Plata [2000] FCA 1185 (see [29]-[30] of that decision) is one such case. In determining whether Mr Young is able to pay his debts I am not entitled to assume that he will realise assets that are necessary for him to maintain a reasonable level of existence, such as household goods: see Alpaca at [16]; Helfenbaum v St George Bank Ltd [2001] FCA 1392 at [24] .
Case: Lewis v Doran [2004] NSWSC 608 ; (2004) 208 ALR 385
Outcome: referred to
is some authority relating to the construction of the generally similar provision in s 95A of the Corporations Act 2001 (Cth). That section defines solvency as requiring that "the person is able to pay all the person's debts, as and when they become due and payable." Like s 52(2)(a) of the Act, the provision does not include the words "from his or her own money". In Lewis v Doran [2004] NSWSC 608 ; (2004) 208 ALR 385 , Palmer J in the Supreme Court of New South Wales concluded that the omission of those words from s 95A "leaves the Court free to determine insolvency, whether retrospective or prospective, as a question of commercial reality having regard to the particular facts of the case" (at [111]). The New South Wales Court of Appeal affirmed his Honour's decision ( Lewis (as liq of Doran Constructions Pty Ltd (in liq)) v Doran [2005] NSWCA 243 ; (2005) 219 ALR 555) and did not express disagreement with his exposition of the relevant legal principles. Giles JA, with whom Hodgson and McColl JJA agreed, suggested at [109] that "there is no compelling reason to exclude from consideration funds which can be gained from borrowings secured on assets of third parties, or even unsecured borrowings" provided that the company is capable of repaying this loan as and when it falls due. Giles JA noted (at [110]) that even before the introduction of this wording of s 95A, in a number of decisions courts had been prepared to pay regard to the ability to obtain unsecured borrowings.
Case: Monk v Australia and New Zealand Banking Group Ltd (1994) 34 NSWLR 148
Outcome: followed
the Seed, which is part of the Assigned Property under the Supplementary Deed of Assignment, would have no longer existed as at 12 June 2009 (it existed in 2003). Second, if it still existed somewhere as at 12 June 2009, there is no evidence that it was then the property of AAC. Third, the two "Limited Causes of Action" were not in aid of or incidental or ancillary to the assignment of the Seed: the alleged causes of action arose some six years before the purported assignment of the Seed on 12 June 2009; cf Monk v Australia and New Zealand Banking Group Ltd (1994) 34 NSWLR 148 at 151-152 ( Monk ); Trendtex Trading Corporation v Credit Suisse [1982] AC 679 at 703 ( Trendtex ). Contrast First City Corporation Ltd v Downsview Nominees Ltd [1989] 3 NZLR 710 , in which the causes of action in question were assigned in order to ensure that the assignee enjoyed the property, which was assigned at the same time. This decision was reversed in part by the Court of Appeal, but on grounds not presently relevant see First City Corporation Limited v Downsview Nominees Ltd [1990] 3 NZLR 265 (and see also the decision of the Privy Council in Downsview Nominees Ltd v First City Corporation Ltd [1993] AC 295 ; [1993] 1 NZLR 513). The question to be asked is: what genuine commercial interest did Mr Young have at the time of any assignment being considered that would be served by that assignment? It is not as if the assignment was necessary in order that the claimed cause of action against ICM be enforced and Mr Young's interest as shareholder be safeguarded. As sole shareholder, director and controlling mind of AAC, Mr Young was in a position to ensure that AAC itself pursued ICM. Apparently Mr Young thought that it would serve his interests as shareholder for AAC to do so. The answer to the question posed is: "none his interest was to become a creditor of ICM and so avoid bankruptcy". This is a personal benefit, not a genuine commercial interest of the assignee of the kind to which Trendtex refers; cf Monk at 152-153.
Case: Poulton v The Commonwealth (1953) 89 CLR 540
Outcome: cited
in so far as a cause of action in conversion is pleaded, a right of action in tort is incapable of assignment: see Poulton v The Commonwealth (1953) 89 CLR 540 at 602 per Williams, Webb &amp; Kitto JJ; Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532 per Heerey J at [115]-[120] ( Salfinger ).
Case: Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666
Outcome: cited
5(2) of the Bankruptcy Act provides that a person is solvent if, and only if, the person is able to pay all the person's debts, as and when they become due and payable. Section 124(3)(a) speaks of a person's being unable to pay that person's debts as they become due from that person's own money. In International Alpaca Management Pty Ltd v Ensor [1999] FCA 72 ( Alpaca ), Katz J referred to these provisions and to the well known discussions of the concept of solvency in Bank of Australasia v Hall [1907] HCA 78 ; (1907) 4 CLR 1514 at 1527-8 and 1542-3 ( Hall ); and Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 at 670-671 ( Sandell ). From the former, his Honour seemed to draw a conclusion that one should consider whether the debtor would be able to pay debts as they fell due in the reasonably near future, not simply those that were immediately payable; from the latter, that where the provision refers to debts being able to be paid from the person's own money, that money may extend to cash realised from sale, mortgage or pledge of the person's assets within a relatively short time, subject to considerations relating to household necessities (see [72] below). Ultimately, however, the approach taken by Katz J to the interpretation of s 52(2)(a) depended on the construction of the provision which the debtor accepted before his Honour. In Rigg v Baker [2006] FCAFC 179 ; (2006) 155 FCR 531 , in a passage with which Sundberg and French JJ did not disagree, Cowdroy J noted at [104] a number of cases, including Alpaca, in which the passages from Sandell and Hall referred to above had been treated as applicable to s 52(2)(a). The decision of a Full Court of this Court in Stankiewicz v Plata [2000] FCA 1185 (see [29]-[30] of that decision) is one such case.
Case: Trendtex Trading Corporation v Credit Suisse [1982] AC 679
Outcome: cited
the Seed, which is part of the Assigned Property under the Supplementary Deed of Assignment, would have no longer existed as at 12 June 2009 (it existed in 2003). Second, if it still existed somewhere as at 12 June 2009, there is no evidence that it was then the property of AAC. Third, the two "Limited Causes of Action" were not in aid of or incidental or ancillary to the assignment of the Seed: the alleged causes of action arose some six years before the purported assignment of the Seed on 12 June 2009; cf Monk v Australia and New Zealand Banking Group Ltd (1994) 34 NSWLR 148 at 151-152 ( Monk ); Trendtex Trading Corporation v Credit Suisse [1982] AC 679 at 703 ( Trendtex ). Contrast First City Corporation Ltd v Downsview Nominees Ltd [1989] 3 NZLR 710 , in which the causes of action in question were assigned in order to ensure that the assignee enjoyed the property, which was assigned at the same time. This decision was reversed in part by the Court of Appeal, but on grounds not presently relevant see First City Corporation Limited v Downsview Nominees Ltd [1990] 3 NZLR 265 (and see also the decision of the Privy Council in Downsview Nominees Ltd v First City Corporation Ltd [1993] AC 295 ; [1993] 1 NZLR 513). Assuming in favour of Mr Young that the assignments could be saved by Mr Young's having had a genuine commercial interest in taking them (see Trendtex ), they would not be saved. Mr Young became the sole shareholder of AAC on 12 June 2009. He did not have a genuine commercial interest as at 11 December 2007 (see the Earlier Reasons for Judgment at [122]-[123]) and the mere fact without more that he was a one hundred percent shareholder in AAC at the time of the subsequent purported assignments on 12 June, 3 July and 15 July 2009 does not support those purported assignments. The question to be asked is: what genuine commercial interest did Mr Young have at the time of any assignment being considered that would be served by that assignment? It is not as if the assignment was necessary in order that the claimed cause of action against ICM be enforced and Mr Young's interest as shareholder be safeguarded. As sole shareholder, director and controlling mind of AAC, Mr Young was in a position to ensure that AAC itself pursued ICM. Apparently Mr Young thought that it would serve his interests as shareholder for AAC to do so. The answer to the question posed is: "none his interest was to become a creditor of ICM and so avoid bankruptcy". This is a personal benefit, not a genuine commercial interest of the assignee of the kind to which Trendtex refers; cf Monk at 152-153.
Case: Young v ICM Agriculture Pty Limited [2008] FMCA 1038 
Outcome: cited
25 July 2008, the Federal Magistrates Court ordered that the Bankruptcy Notice be set aside and that ICM pay Mr Young's costs: Young v ICM Agriculture Pty Ltd [2008] FMCA 1038.
Case: Mathai v Kwee [2005] FCA 932
Outcome: referred to
In my opinion, the fact that the debtor always, on the outgoing and incoming passenger cards in evidence, gave his intended address in Australia as Ethersey House, which is his mother's residence, suggests that there is an available argument that he is able regularly to resort to that place as a residence within the meaning of the authorities. Of course, I can make no decision about the likelihood of the success of such an argument. Simply, having regard to the way the matter has been particularised, it seems to me that there is at least an arguable basis, and I put it no higher than that, that depending on the evidence ultimately advanced at the trial in support of and in answer to the particulars, the trial judge could find that the debtor either was ordinarily resident in Australia or had a dwelling house in Australia within the meaning of the authorities discussed by Graham J in Mathai v Kwee [2005] FCA 932 at [111] to [126]. 12 For those reasons, I do not consider that there is any abuse of process or other basis upon which I should strike out the remaining allegations in paragraph 3 of the creditors petition. 13 The next issue is whether the subpoenas to the two clubs should be set aside. Each subpoena seeks in par 1 'application for membership with' the respective club. No name of any person is set out as to whose application it is, nor is there any relevant time period as to which such an application was to be made referrable. In my opinion, there is no legitimate basis for requiring that paragraph to be answered.
Case: Peplin Limited [2007] FCA 1387
Outcome: related
On 23 August 2007, I made orders convening a meeting of the holders of the ordinary shares in Peplin Limited for the purpose of considering and, if thought fit, agreeing to a scheme of arrangement proposed to be made between that company and its shareholders. I also made orders convening a meeting of the holders of options quoted on the Stock Exchange to subscribe for shares in the company for the purpose of considering and, if thought fit, agreeing to a scheme of arrangement proposed to be made between the company and those option-holders. I gave reasons for those orders ( Peplin Limited [2007] FCA 1387). 2 I took the view that the scheme was in a form and the material was such as to justify the matter being put before, respectively, the shareholders and option-holders for their consideration. Those meetings have now been held and the support for the scheme has been overwhelming in each case. The approval percentage at the shareholders' meeting was some 99.12 per cent of all votes cast, representing 94.41 per cent of shareholders in number, were in favour of the motion to approve the scheme. At the option-holders' meeting, 99.98 per cent of all votes cast, representing 96.55 per cent of option-holders in number, were in favour of the motion to approve the scheme.
Case: SGIC Insurance Ltd v Insurance Australia Limited (2004) 51 ACSR 593, [2004] FCA 1638
Outcome: cited
I am satisfied that the formalities associated with the calling of the meetings were complied with, save for one irregularity due to a fault on the part of a mailing house. That led to the result that some 274 shareholders had not been dispatched their documents on Friday, 31 August 2007, but the documents were sent on 3 September 2007. That meant that, so far as those shareholders are concerned, comprising approximately 1.4 per cent of the total number of shareholders, they received the information several days late, but in due time to consider the contents. It is submitted that this was a procedural irregularity which is not invalidated unless the court is of the opinion that it has or may cause substantial injustice and declares the proceeding to be invalid. It is submitted that a validation order is unnecessary in this case because s 1322(2) of the Corporations Act 2001 (Cth) (the Act) effects that purpose (see SGIC Insurance Ltd v Insurance Australia Limited (2004) 51 ACSR 593, [2004] FCA 1638 at [12] [15] per Jacobson J). I agree with that submission. 4 I am satisfied that advertising of the scheme took place in due time, the conduct of the meetings was in accordance with the relevant requirements. A letter was received from the Australian Securities and Investments Commission pursuant to s 411(17)(b). No notice of intention to appear at this hearing has been received, and there has been no appearance at this hearing to oppose the orders. 5 Evidence has been given as to the satisfaction of conditions precedent. The deeds poll have been executed and are still in force. In my opinion, the company has made out a case for approval of each of the schemes pursuant to s 411(4)(b) of the Act. I am also satisfied that it is appropriate to make an exemption order pursuant to s 411(12) , that is, there is no need for a court order approving the scheme to be annexed to every copy of the constitution of the company.
Case: Aberdeen Railway Co v Blaikie Bros (1854) Macq 461
Outcome: cited
The claim that Ms Manning breached her duty not to make use of any business opportunity obtained during the course of her employment must also be rejected. This kind of claim cannot be brought against an employee in Ms Manning's position. It is reserved for those in "top management" such as directors or senior officers: Canadian Aero Service Ltd v O'Malley (1973) 40 DLR (3d) 371, 381-382. See also Aberdeen Railway Co v Blaikie Bros (1854) Macq 461, 472.
Case: American Financial Corporation v Computer Sciences Corporation , 558 FSupp 1182 (D.Del, 1983)
Outcome: cited
It will be noticed that the promisee under each employment contract is AMP Services. Yet it is Arrive that sues for the breach of each contract to recover its alleged loss of $4.3 million. The difficulty with such a course is obvious and was recognised by the plaintiffs. In their amended points of claim they allege that the benefit of the post-employment restraint and the benefit of other provisions of each contract are held on trust for Arrive. In the alternative they contend that each agreement was made by AMP Services as agent for Arrive. Those are the bases upon which Arrive asserts standing to sue. The allegation that several provisions of each contract are held on trust for Arrive has been admitted, although the defendants say that each post-employment restraint is "void and unenforceable". The admission makes it unnecessary to determine several tricky questions that would otherwise arise, including: (1) Whether each promise is capable of being held on trust; (2) Whether the intention to create the trust must be gathered from the contract itself or whether extrinsic evidence is admissible for this purpose: American Financial Corporation v Computer Sciences Corporation , 558 FSupp 1182 (D.Del, 1983); and (3) Whether the requisite intention must be that of both the promisor and the promisee: see the discussion in Restatement (Second) of Contracts SS302. 7 The principal service provided by Arrive to its clients was investment and superannuation planning advice. Its income was derived from fees charged for advice and commissions earned from the management of funds. The business was conducted from offices in most capital cities. The largest office was located in the PwC building in Melbourne where Ms Manning was in charge. The advisers in the Melbourne office were Ms Manning's group from PwC plus two additional advisers, Sam Gray and Andrew Walsh, who had been engaged in 2003. 8 Ms Manning was Arrive's most successful adviser. Yet, she was dissatisfied with several aspects of Arrive's business. I will only mention a few of them. In 2002 she was involved in a dispute with Mr Farrington about the quantum of bonus commission to be paid to herself and her group. The dispute was resolved, but not to Ms Manning's complete satisfaction. Another matter was the structure of the business. From the outset Ms Manning pressed for the introduction of a "self-employment" business model. Under this model clients would "belong" to an adviser and the income that was derived from that client would be split between the adviser and Arrive. Ms Manning was of the view that unless this model was instituted it would not be possible to retain quality advisers. The model was often discussed, but nothing was done. Another sticking point was Ms Manning's concern about the addition of AMP "products" to the range of investments that clients were encouraged to make. She did not believe they were suitable for Arrive's clients. This issue was never resolved.
Case: Brilliant Lighting (Aust) Pty Ltd v Baillieu [2004] VSC 248
Outcome: cited
I can now deal with the claims. The claims in contract can be disposed of in short order. The plaintiffs contend that by engaging in certain conduct, especially the conversations with clients, Ms Manning acted in breach of the post-employment restraint. Even if I were to make the assumption, as is required by cl 11, that the purpose of each call was to entice away clients or disrupt their relationship with AMP Services, the claim is hopeless. I need do no more than briefly state my reasons. First, by its terms (which notwithstanding the trust remain unaltered) the restraint operates "after the cessation of [Ms Manning's] employment with AMP." I have already explained that her employment did not come to an end until 16 February. By then the damage had been done. Second, it is a condition of the operation of the clause that Ms Manning work for a competitor of "AMP". It is clear from the opening paragraph of the employment contract that "AMP" is a defined term: it is defined to mean "AMP Services Limited". So far as I know GSJBW is not a competitor of AMP Services. It is of course a competitor of Arrive, but that is a different company. Absent a rectification order it is not possible to read "Arrive" for "AMP". Third, the prohibition imposed by cl 11 is against an approach to any client "of AMP" for the purpose of enticing them away "from AMP". The clients that Ms Manning approached were clients of Arrive and not AMP Services. Finally, if it were possible to extend the restraint to Arrive it would be void for being in breach of the common law doctrine of restraint of trade, the modern formulation of which is stated by Lord McNaughton in Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535, 565 and accepted for Australia in Buckley v Tutty [1971] HCA 71 ; (1971) 125 CLR 353, 376. The unreasonableness of the restraint lies in the fact that it is wider than necessary, covering all Arrive clients, many of whom did not have any connection with Ms Manning: G W Ploughman &amp; Son Ltd v Ash [1964] 1 WLR 568. If the restraint had been limited to, say, clients of the Melbourne office it may have been lawful: see eg IF Asia Pacific Pty Ltd Galbally [2003] VSC 192 ; Brilliant Lighting (Aust) Pty Ltd v Baillieu [2004] VSC 248.