mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: The York [1929] P 178
Outcome: followed
Because, the cost of repair is adopted as being equivalent to the diminution in the ship's value, it is immaterial that the repairs themselves are never executed: The York [1929] P 178 at 184-185 per Scrutton LJ with whom Greer LJ agreed at 187. 69 For the purchaser of the Gazelle Coast , that loss was the difference between the price paid and the actual value of the ship. Mr Dowell, an expert shipbroker, has assessed that difference at around USD 1.75m (i.e. that the vessel was really worth, at the time of its purchase, half of the purchase price). He arrived at that valuation on the basis that the cost of repairs, restoration work and substitute vessel hire actually incurred by Consort were necessary to bring the vessel to the standard at which it would have been worth the purchase price of USD 3.5m accounted for the difference in value. He considered that the purchase price was a proper reflection of market value for the vessel had it been in the sound condition which J-Mac's reports erroneously said it was. 70 There is, however, in this scenario the complication to which I referred earlier, namely that although Consort entered into the contract of purchase, and was liable for the price, it exercised its right to nominate Rho Beta 7 as the purchaser. Thus, when title to the vessel passed to Rho Beta 7, as I will discuss below, it, rather than Consort, suffered the loss of USD 1.75m. 86 The principle applicable to the right of a shipowner to recover from a wrongdoer the cost of hiring a substitute vessel while its own vessel is being repaired as a result of the tort, was stated by Viscount Sumner in SS Strathfillan v SS Ikala [1929] AC 196 at 205 (Lord Buckmaster agreeing at 205 and Lord Warrington of Clyffe gave a concurring speech at 211-212: see too per Scrutton LJ in The York [1929] P 178 at 184; The Yorkshireman (1827) 2 Hagg Adm 30n; 166 ER 155; cp: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 240-241 [1062] -1067] per Finn J; Carslogie Steamship Co Ltd v Royal Norwegian Government [1951] UKHL 4 ; [1952] AC 292 at 300-302, 306, 313) thus: 'If... the [plaintiff's] case is to be that the delay upset the general current of their trade, which had to be maintained in spite of it, I think that the extent and cost of this upset must be proved and must be causally connected with the collision in accordance with the ordinary rules of law as to damage. A ship's day is not like a unit of currency, always good for so many shillings. It has to be proved that, in doing the shipowner the wrong of laying his ship idle at the time in question, work, which she would otherwise have done during the time, went undone to his measurable loss or was only done by resorting to other expedients at a measurable outlay.'
Case: The Yorkshireman (1827) 2 Hagg Adm 30n
Outcome: referred to
The principle applicable to the right of a shipowner to recover from a wrongdoer the cost of hiring a substitute vessel while its own vessel is being repaired as a result of the tort, was stated by Viscount Sumner in SS Strathfillan v SS Ikala [1929] AC 196 at 205 (Lord Buckmaster agreeing at 205 and Lord Warrington of Clyffe gave a concurring speech at 211-212: see too per Scrutton LJ in The York [1929] P 178 at 184; The Yorkshireman (1827) 2 Hagg Adm 30n; 166 ER 155; cp: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 240-241 [1062] -1067] per Finn J; Carslogie Steamship Co Ltd v Royal Norwegian Government [1951] UKHL 4 ; [1952] AC 292 at 300-302, 306, 313) thus: 'If... the [plaintiff's] case is to be that the delay upset the general current of their trade, which had to be maintained in spite of it, I think that the extent and cost of this upset must be proved and must be causally connected with the collision in accordance with the ordinary rules of law as to damage. A ship's day is not like a unit of currency, always good for so many shillings. It has to be proved that, in doing the shipowner the wrong of laying his ship idle at the time in question, work, which she would otherwise have done during the time, went undone to his measurable loss or was only done by resorting to other expedients at a measurable outlay.'
Case: Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38 ; (1998) 192 CLR 603
Outcome: applied
In Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38 ; (1998) 192 CLR 603 at 617-618 [36] - [41] per McHugh J, 638 [97(2)] per Kirby J and 654 [134] per Hayne J, this principle was applied to a case of negligent advice in contract or tort. 111 Here, Consort would not have undertaken the borrowing from ANZ or engaged in the whole exercise of procuring the acquisition of the Gazelle Coast if J-Mac had given accurate prepurchase survey reports to it. By the time the inaccuracy of J-Mac's reports became known, Consort was in the invidious position of being obligated to ANZ to maintain the value of the ship and Rho Beta 7. Not only that, Consort needed the ship for the purposes of its own business; after all that was the very purpose of the acquisition in the first place. Rho Beta 7 had no money or resources other than as may have been able to be provided by Consort. 112 As a matter of commonsense, without Consort's financial support, Rho Beta 7 could not have raised any money on the security of the ship with which to effect the repairs and restoration work which were needed. That is because the ship was worth about half of what Rho Beta 7 owed to Consort on the loan of the purchase price. The ship was mortgaged to ANZ and Rho Beta 7 had given a fixed and floating charge to ANZ. Its borrowing capacity against its only substantive asset was non existent. That is because Rho Beta 7's net asset position was one in which its liabilities exceeded its assets by about 100%, once the value of the ship was written down to half the purchase price. As a consequence, if repairs and restoration work were to be effected, they could only be by Consort using its financial resources to borrow the money and thereafter seeking to recoup itself from the wrongdoer who had place it into that position, namely J-Mac.
Case: Wenham v Ella [1972] HCA 43 ; (1972) 127 CLR 454
Outcome: referred to
In assessing damages for breach of contract the Court seeks to place the party who sustains a loss by reason of the breach in a position, so far as money can do it, which is the same as if the contract had been performed: Robinson v Harman (1848) 1 Ex 850 at 855 [154 ER 363 at 365]; Burns v M.A.N. Automotive (Aust) Pty Limited [1986] HCA 81 ; (1986) 161 CLR 653 at 658, 667, 672-673. Wilson, Deane and Dawson JJ explained that this general principle is limited by a rule laid down by the Court of Exchequor in Hadley v Baxendale (1854) 9 Ex 341 at 354 [156 ER 145 at 151] (161 CLR at 667). That rule held that the damages recoverable from a breach of contract were such as might fairly and reasonably be considered either arising naturally, that is, according to the usual course of things, from such a breach of contract itself, as may be reasonably supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Their Honours went on to say that these principles had been discussed by Gibbs J in Wenham v Ella [1972] HCA 43 ; (1972) 127 CLR 454 at 471-472 where he approved the following exposition of Lord Reid ( Czarnikow Ltd v Koufos [1967] UKHL 4 ; [1969] 1 AC 350 at 385): 'The crucial question is whether, on the information available to the defendant when the contract was made, he should, or the reasonable man in his position would, have realized that such loss was sufficiently likely to result from the breach of contract to make it proper to hold that the loss flowed naturally from the breach or that loss of that kind should have been within his contemplation.'
Case: SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83
Outcome: cited
regard to the decisions of the Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 and SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 , questions might arise as to whether the enquiries made by the Tribunal complied with s 424B of the Act. However, the particular difficulty with the ground of appeal which is reliant upon contended steps taken in excess of jurisdiction, is this. The letters written by the Tribunal to each of the addressees to which there were responses, were considered by the Tribunal in reaching its first decision. However, the first decision of the Tribunal made on 30 May 2005 was set aside by the Federal Magistrates Court on 31 January 2007. The Tribunal, differently constituted, then conducted a review of the decision of the Minister's delegate, according to law. In doing so, the Tribunal on 31 August 2007 reached the conclusions and findings on credibility previously indicated. In doing so, it had regard to the seven topics identified in these reasons ([19]). The Tribunal in reaching its decision on 31 August 2007 did not rely upon the enquiries made of the addressees of the letters by the Tribunal as initially constituted. The Tribunal as reconstituted considered all of the factual contentions put before it by the appellant and his advisers and was unable to be persuaded of the appellant's creditworthiness. The Tribunal as reconstituted identified matters of inconsistency and set those matters out in letters addressed to the appellant pursuant to s 424A of the Act on 18 June 2007 (in relation to the issue concerning the booklet written by the appellant) and 13 July 2007 (concerning the appellant's travel in the months of April and May 2001).
Case: SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119
Outcome: cited
regard to the decisions of the Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 and SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 , questions might arise as to whether the enquiries made by the Tribunal complied with s 424B of the Act. However, the particular difficulty with the ground of appeal which is reliant upon contended steps taken in excess of jurisdiction, is this. The letters written by the Tribunal to each of the addressees to which there were responses, were considered by the Tribunal in reaching its first decision. However, the first decision of the Tribunal made on 30 May 2005 was set aside by the Federal Magistrates Court on 31 January 2007. The Tribunal, differently constituted, then conducted a review of the decision of the Minister's delegate, according to law. In doing so, the Tribunal on 31 August 2007 reached the conclusions and findings on credibility previously indicated. In doing so, it had regard to the seven topics identified in these reasons ([19]). The Tribunal in reaching its decision on 31 August 2007 did not rely upon the enquiries made of the addressees of the letters by the Tribunal as initially constituted. The Tribunal as reconstituted considered all of the factual contentions put before it by the appellant and his advisers and was unable to be persuaded of the appellant's creditworthiness. The Tribunal as reconstituted identified matters of inconsistency and set those matters out in letters addressed to the appellant pursuant to s 424A of the Act on 18 June 2007 (in relation to the issue concerning the booklet written by the appellant) and 13 July 2007 (concerning the appellant's travel in the months of April and May 2001).
Case: SZLGH v Minister for Immigration &amp; Citizenship [2008] FMCA 187
Outcome: considered
On 3 September 2007 the appellant filed his application for judicial review in the Federal Magistrates Court. On 22 February 2008 Orchiston FM dismissed the application: SZLGH v Minister for Immigration &amp; Citizenship [2008] FMCA 187. On 10 March 2008 the appellant filed a notice of appeal to this Court. 5 The appellant set out his claims in his protection visa application. The RRT accurately summarised those claims, together with the claims made at the hearing, in its reasons for decision: " The applicant claims that he fears harm in his country because he was a member of the committee of the Chattra League, the student arm of the Awami League, when he was a student at the Omar Gani (MES) Degree College at Chittagaong in 1994. There was a split on the committee between the President, Mohi Uddin, who the applicant supported, and the Secretary, Bathen, who took bribes from the BNP. During orientation in January 1995 a student was killed in crossfire between the group led by the President and the applicant, and the Bathen group who were assisted by the BNP and its student wing, Chattra Daal. The BNP leaders and Chattra Daal lodged a murder case against Chattra League leaders especially against the Mohi Uddin group. The applicant went into hiding from 1995 and in 1999. He claims that there were charges laid against him, associated with the murder of the student, and he was wanted by the police and the [Rapid Action Battalion] . Although the [Awami League] came to power in 1996 an application for the withdrawal of the case against the applicant was refused. With the assistance of his father, the applicant went to Saudi Arabia in 1999 but he became illegal there and the authorities told him he had to leave by 30 December 2006. He came to Australia via Bangladesh in January 2007. " 6 The RRT found that the appellant's account of his student experiences was not credible. Whilst it accepted that he might have been involved in various activities such as publishing meeting dates of the Chattra League, it was not satisfied that he had a political profile of any kind or was of interest to the police or the Rapid Action Battalion ("RAB"), as he claimed.
Case: Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472
Outcome: cited
In Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472, Hill J was concerned to interpret s 6(2)(b)(ii) of the Trade Practices Act 1974 (Cth) which confined the operation of s 60 of that Act to conduct which took place in the course of or in relation to trade or commerce between Australia and places outside Australia. Hill J said at 487-488: "It may be accepted that there will always be a question of degree involved where the issue is the relationship between two subject matters. The words 'in relation to' are wide words which do no more, at least without reference to context, than signify the need for there to be some relationship or connection between two subject matters: see Smith v Commissioner of Taxation (Cth) [1987] HCA 48 ; (1987) 164 CLR 513 at 533 per Toohey J and PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 328 per Toohey and Gummow JJ. But the phrase is both 'vague and indefinite': see per Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35 ; (1961) 105 CLR 602 at 620. Like the phrase 'in respect of', the phrase 'in relation to' will not, at least normally, apply to any connection or relationship no matter how remote: see Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24 ; (1989) 167 CLR 45 at 51 per Dawson J. The extent of the relationship required will depend upon the context in which the words are used. As Beaumont and Lehane JJ said in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285 in discussing a number of the cases dealing with 'relates to': ' ... it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice.' (References omitted.)"
Case: Pico Holdings Inc v Voss [2004] VSC 263
Outcome: considered
I turn to the Commission's submission that Mr Narain personally engaged in the conduct alleged and therefore personally contravened s 1041H(1). Mr Narain's response was that if company officers and employees act as the company in furtherance of company activities, it is only the company that engages in the relevant conduct. He relied upon Pico Holdings Inc v Voss [2004] VSC 263. 76 The conduct relied upon by the Commission is the sending of the two letters containing misleading and deceptive statements to the Stock Exchange. Mr Narain did not send those letters himself. Mr Hanlon, CIL's company secretary sent the 27 September letter. There is no evidence that Mr Narain participated in the drafting or the sending of the 29 September letter. The only evidence relied upon by the Commission in support of its allegation that Mr Narain personally engaged in the conduct of preparing and sending the 29 September letter is that the letter contained the name of Mr Narain as one of two persons to contact for further enquiries. That is an inadequate factual basis for finding that Mr Narain engaged in the conduct of either preparing or sending that letter to the Stock Exchange. 77 I am not satisfied that Mr Narain personally engaged in any conduct relating to the preparation or sending of the 29 September letter. 86 Mr Narain contended further that Pico Holdings Inc v Voss (supra) was authority for the proposition that if company officers and employees act as the company in furtherance of company activities, it is only the company that engages in the relevant conduct. I do not read Pico Holdings Inc v Voss (supra) as standing for that proposition. In that case Mandie J made a specific finding that Mr Voss had not acted personally in the signing of the relevant promissory note. His Honour said at [157]: "This is not a case where the precise conduct of an alter ego of the company constitutes conduct both of the company and of the individual. In this case, the representation is expressly made in writing in the Promissory Note by Dominion Capital and not by Mr Voss ('Maker hereby represents to Payee ...'). Mr Voss did not make and did not purport to make that representation. The conduct of Mr Voss was participatory and was constituted by signing (on behalf of Dominion Capital) and sending (on behalf of Dominion Capital) the Promissory Note. It was the representation and conduct of the company and not of Mr Voss that was false and misleading. Unlike the case of Hamilton v Whitehead, the representation was not made by an individual in dual capacities; it was made by the company. Furthermore, approaching the matter from the point of view of the inducement to Pico and Pico's reliance on the representation, it seems to me that Pico was not induced by and did not rely upon any relevant representation or conduct of Mr Voss in advancing the money. What Pico relied on, and what Mr Hart said that he relied on, was the written terms of the document." [Citations omitted]
Case: Arktos Pty Ltd v Idyllic Nominees Pty Ltd (2004) ATPR 42-005
Outcome: distinguished
A similar approach was taken by a Full Court of the Federal Court in Arktos Pty Ltd v Idyllic Nominees Pty Ltd (2004) ATPR 42-005 at 48,795: "The authorities show that a director of a corporation who acts on its behalf in the course of trade or commerce also acts himself or herself in trade or commerce and, if the corporation is liable under a State Fair Trading Act for their conduct, they also attract primary liability under the same statute: [citations omitted]". 87 Nevertheless it is still necessary to establish that Mr Narain personally engaged in the relevant conduct of which the Commission complained, that is, that he personally engaged in the conduct of publishing the announcement and making the misrepresentations said to be contained in it. As I have noted earlier, although Mr Narain participated in the preparation and drafting of the 27 September letter and although he instructed the company secretary of CIL to send it to the Stock Exchange, he did not personally publish the letter. CIL sent it to the Stock Exchange through the medium of its company secretary. Nor did he personally make the misrepresentations relied upon by the Commission in the same manner as Mr Mehra did to the Standard Chartered Bank (par [83] above). Houghton v Arms (supra) is an example of a different situation where the individual employees of the company, Messrs Houghton and Student, personally made the relevant misrepresentations. So also in Arktos Pty Ltd v Idyllic Nominees Pty Ltd (supra) where Mr Price, a director the respondent company had personally made the misrepresentation relied upon by the applicant against the company and Mr Price. So also in Standard Chartered Bank v Pakistan National Shipping Corporation [No 2] (supra) where Mr Mehra, the managing director of Oakprime Ltd, signed the letter containing the false statement.
Case: Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416 ; (1999) 168 ALR 211
Outcome: cited
The expression "in relation to" has been the subject of judicial consideration in a number of different contexts. A consistent theme running through the case is that the expression "in relation to" gathers its meaning from the context in which it appears and the purpose for which it appears: see, eg, Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416 ; (1999) 168 ALR 211 at 225, per Fitzgerald JA. The words "in relation to" have a very wide meaning, but like the expression "in respect of", they do not extend to "any relationship however tenuous": Technical Products Pty Ltd v State Government Insurance Office (Queensland) [1989] HCA 24 ; (1989) 167 CLR 45 at 51; The Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 at 653-654. See generally, D C Pearce and R S Geddes, Statutory Interpretation in Australia (6th ed, 2006), pp 359-367 and the cases there cited.
Case: The Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642
Outcome: cited
The expression "in relation to" has been the subject of judicial consideration in a number of different contexts. A consistent theme running through the case is that the expression "in relation to" gathers its meaning from the context in which it appears and the purpose for which it appears: see, eg, Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416 ; (1999) 168 ALR 211 at 225, per Fitzgerald JA. The words "in relation to" have a very wide meaning, but like the expression "in respect of", they do not extend to "any relationship however tenuous": Technical Products Pty Ltd v State Government Insurance Office (Queensland) [1989] HCA 24 ; (1989) 167 CLR 45 at 51; The Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 at 653-654. See generally, D C Pearce and R S Geddes, Statutory Interpretation in Australia (6th ed, 2006), pp 359-367 and the cases there cited.