mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Northside Developments Pty Ltd v Registrar-General [1990] HCA 32 ; (1990) 170 CLR 146
Outcome: cited
my view, there are two steps required to address the primary proposition: (1) determining what is authorised by the Constitutions or Rule Books of the Housing Associations; and (2) determining whether the proposed conduct of perfecting the grant of the proposed subleases is, in the circumstances, within the scope of that which is authorised or required. Another way of describing those steps might be to ask whether the grant of the proposed subleases is beyond the express or implied power of the Housing Associations under their Constitutions and Rule Books, whatever organ of the Housing Associations might have made the decision to do so, and secondly whether their grant, although within the express or implied power of the Housing Association under their Constitutions and Rule Books, was not within the powers of the Management Committees or the directors to undertake. In Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] 1 Ch 246 , Browne-Wilkinson CJ at 302-5 described the distinction as between ultra vires in the "narrow sense" and ultra vires in the "wider sense". His Lordship at 303 noted that Cotman v Brougham [1918] AC 514 recognised that "the objects of a company and the powers conferred on a company to carry out those objects are two different things" (at 303) and remarked at 304: The critical distinction is, therefore, between acts done in excess of the capacity of the company on the one hand and acts done in excess or abuse of the powers of the company on the other. Mason CJ in Northside Developments Pty Ltd v Registrar-General [1990] HCA 32 ; (1990) 170 CLR 146 at 162-3 referred with apparent approval to that distinction.
Case: HA Stephenson &amp; Son Ltd (In Liquidation) v Gillanders Arbuthnot &amp; Co [1931] HCA 47 ; (1931) 45 CLR 476
Outcome: applied
HA Stephenson &amp; Son Ltd (In Liquidation) v Gillanders Arbuthnot &amp; Co [1931] HCA 47 ; (1931) 45 CLR 476 Dixon J at 487 said that the question of corporate capacity must be ascertained according to the true meaning of the memorandum interpreted by a fair reading of the whole instrument. In my judgment, a fair reading of the current Constitutions of those Housing Associations does not reveal such a focused and restricted objective or principal objective as the Residents contend for. Although the name is "town camp specific", the objectives now contemplate each of those Housing Associations serving their objectives beyond that town camp. The definition of "Town Camp" extends to any land owned or leased by an association, and includes the particular town camp. Item 1.3(b) includes serving the objectives in Item 1.3(a) and generally by "obtaining land" for its members. There is no provision now which specifies the only, or primary, objective to operate the particular town camp. Item 1.2, under the heading "Town Camp governed by the Association (clause 1.1)" has the name of the Housing Association itself I take it to be designating the town camp itself but clause 1.1 is a reference to the definitions in the Constitution , and the only relevant definition is that of "Town Camp". Separately, clause 2.2 has the heading "Objects and Purposes" and refers to Item 1.3. The heading to Item 1.2 in that light cannot be the defining purpose or object of those Housing Associations. There is now no expression of the object or the principal object of the Housing Associations being to control the provision and maintenance of housing and other facilities on the land held under their head leases. The objects are more expansive.
Case: ANZ Executors &amp; Trustee Co Ltd v Qintex Australia Ltd (receiver and managers appointed) (1990) 8 ACLC 980
Outcome: cited
Minister did not rely upon s 96.1 of the CATSI Act as providing the foundation for the Housing Associations incorporated under it to be enabled to enter into the proposed subleases. That may be simply because there are only three of them, and the condition precedent to the activation of each proposed sublease in clause 2.1(a)(i) referred to above would not be satisfied. It may also be because, notwithstanding its apparent effect, there is some authority to suggest its role is confined to validating corporate dealings with outsiders despite deficiencies in corporate capacity, but not to abrogating restrictions on the exercise of shareholders' or directors' powers: see eg per McPherson J (with whom Lee and McKenzie JJ agreed) in ANZ Executors &amp; Trustee Co Ltd v Qintex Australia Ltd (receiver and managers appointed) (1990) 8 ACLC 980 at 988. There may be other reasons. It may be that such a provision does not inhibit a member of such an association from asserting that the common understanding of the members and their general intention was for the association to control the use and development of those town camps, and seeking to enforce that position. That sort of contention has been used to support the winding up of a corporation or the just and equitable ground: see Ford's Principles of Corporations Law (13 th ed, 2007, Butterworths) at [12.130] p 744 and the cases there cited. As the issue was not raised, it is not necessary to go beyond those comments. Consequently, it is necessary to consider the second of the questions I have identified above. That is, it is necessary to determine whether the particular terms of the proposed subleases mean that the agreement to enter into them is contrary to the interests of the members as a whole. The Residents as members put their contention quite brutally: for $1, the Housing Associations have given up all rights, functions and representative activities in relation to their town camps so they cannot discharge their responsibilities to their members under Item 1.3 of their Constitutions and under their Rule Books. There is "an equation of $1 for no rights for at least 40 years".
Case: Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656
Outcome: discussed
significance of the distinction, if legally there is one, was not made clear. It is argued that the Housing Associations could not alienate their interests in the town camps under the respective Special Purposes Leases or Crown Leases either absolutely or for 40 years. That was said to flow from the proper construction and understanding of the objects and purposes of the Housing Associations. I have already addressed that contention. No reason was put why those objects and purposes should impose restrictions on the powers of the Housing Associations which preclude their capacity to agree to the proposed subleases as Housing Associations, and different restrictions on their powers because of the interests of their members as a whole. The plurality judgment in Gambotto 182 CLR pointed out at 444 that the observations of Lindley MR in Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 at 671 that the power of the majority to alter the articles of association of a company must be exercised in a lawful manner and "bona fide for the benefit of the company as a whole" was inappropriate where the proposed resolution involved a conflict of interests and advantages. The plurality judgment said at 444: It seems to us that, in such a case not involving an actual or effective expropriation of shares or of valuable proprietary rights attaching to shares, an alteration of the articles by special resolution regularly passed will be valid unless it is ultra vires, beyond any purpose contemplated by the articles or oppressive as that expression is understood in the law relating to corporations.
Case: Peters' American Delicacy Co Ltd v Heath [1939] HCA 2 ; (1939) 61 CLR 457
Outcome: cited
with the expression in Gambotto , in Peters' American Delicacy Co Ltd v Heath [1939] HCA 2 ; (1939) 61 CLR 457 , Dixon J when upholding the validity of an alteration of the articles which discriminated against holders of partly-paid shares in favour of the majority shareholders said at 513 that the resolution involved no oppression, no appropriation of an unjust or reprehensible nature and did not imply any purpose outside the scope of the power. Senior counsel for the Residents also referred to Pettit v South Australian Harness Racing Club Inc (2006) 95 SASR 543 , a case concerning applications for membership of the association. Reliance was place on certain remarks of White J in [26] as follows: The constitution of an association binds the association and all of its members. This means that the Committee was bound to apply the relevant provisions of the Club's constitution in its consideration of the membership applications. The requirement that an exercise of an association's powers be for the benefit of the members as a whole is to exclude their exercise for "ulterior special and particular advantages", that is, it negatives "purposes foreign to the association's operations, affairs and organizations". ... Conduct by a committee of an association will be contrary to the interests of the members as a whole if no committee, acting reasonably, could have engaged in that conduct. [The supporting references were Wayde 180 CLR and Peters' 61 CLR]. Conduct may be contrary to the interests of the members as a whole even though a committee does not act in bad faith. In Wayde , Brennan J said: [I]f the directors exercise a power albeit in good faith and for a purpose within the power so as to impose a disadvantage, disability or burden on a member that, according to ordinary standards of reasonableness and fair dealing is unfair, the court may intervene ... ... However, proof of invalidity or non-compliance with an association's rules may indicate that a decision is contrary to the interests of the members as a whole. This is because of the importance which the law attaches to adherence to the provisions of an association's constitution. ... [citations omitted].
Case: New South Wales Rugby League v Wayde (1985) 1 NSWLR 86
Outcome: discussed
the contrary, in New South Wales Rugby League v Wayde (1985) 1 NSWLR 86 it was expressly decided at 96 by the Court (Street CJ, Kirby P and Hope JA) that the phrase "the interests of the members as a whole" in s 320 of the Companies (New South Wales) Code is synonymous with "the benefit of the company as a whole" because the only legitimate interests of the members would be their interests as corporators. An appeal to the High Court was dismissed: Wayde v New South Wales Rugby League Inc [1985] HCA 68 ; (1985) 180 CLR 459. No comment was made upon the view of the Court of Appeal on that topic, although Brennan J in agreeing with the result of the plurality judgment at 471 made some additional comments upon it. Besanko J in Millar v Houghton Table Tennis &amp; Sports Club Inc [2003] SASC 1 at [135] appears to have adopted the same view.
Case: Wayde v New South Wales Rugby League Inc [1985] HCA 68 ; (1985) 180 CLR 459
Outcome: discussed
the contrary, in New South Wales Rugby League v Wayde (1985) 1 NSWLR 86 it was expressly decided at 96 by the Court (Street CJ, Kirby P and Hope JA) that the phrase "the interests of the members as a whole" in s 320 of the Companies (New South Wales) Code is synonymous with "the benefit of the company as a whole" because the only legitimate interests of the members would be their interests as corporators. An appeal to the High Court was dismissed: Wayde v New South Wales Rugby League Inc [1985] HCA 68 ; (1985) 180 CLR 459. No comment was made upon the view of the Court of Appeal on that topic, although Brennan J in agreeing with the result of the plurality judgment at 471 made some additional comments upon it. Besanko J in Millar v Houghton Table Tennis &amp; Sports Club Inc [2003] SASC 1 at [135] appears to have adopted the same view. Senior counsel for the Residents also referred to Pettit v South Australian Harness Racing Club Inc (2006) 95 SASR 543 , a case concerning applications for membership of the association. Reliance was place on certain remarks of White J in [26] as follows: The constitution of an association binds the association and all of its members. This means that the Committee was bound to apply the relevant provisions of the Club's constitution in its consideration of the membership applications. The requirement that an exercise of an association's powers be for the benefit of the members as a whole is to exclude their exercise for "ulterior special and particular advantages", that is, it negatives "purposes foreign to the association's operations, affairs and organizations". ... Conduct by a committee of an association will be contrary to the interests of the members as a whole if no committee, acting reasonably, could have engaged in that conduct. [The supporting references were Wayde 180 CLR and Peters' 61 CLR]. Conduct may be contrary to the interests of the members as a whole even though a committee does not act in bad faith. In Wayde , Brennan J said: [I]f the directors exercise a power albeit in good faith and for a purpose within the power so as to impose a disadvantage, disability or burden on a member that, according to ordinary standards of reasonableness and fair dealing is unfair, the court may intervene ... ... However, proof of invalidity or non-compliance with an association's rules may indicate that a decision is contrary to the interests of the members as a whole. This is because of the importance which the law attaches to adherence to the provisions of an association's constitution. ... [citations omitted].
Case: Millar v Houghton Table Tennis &amp; Sports Club Inc [2003] SASC 1
Outcome: cited
the contrary, in New South Wales Rugby League v Wayde (1985) 1 NSWLR 86 it was expressly decided at 96 by the Court (Street CJ, Kirby P and Hope JA) that the phrase "the interests of the members as a whole" in s 320 of the Companies (New South Wales) Code is synonymous with "the benefit of the company as a whole" because the only legitimate interests of the members would be their interests as corporators. An appeal to the High Court was dismissed: Wayde v New South Wales Rugby League Inc [1985] HCA 68 ; (1985) 180 CLR 459. No comment was made upon the view of the Court of Appeal on that topic, although Brennan J in agreeing with the result of the plurality judgment at 471 made some additional comments upon it. Besanko J in Millar v Houghton Table Tennis &amp; Sports Club Inc [2003] SASC 1 at [135] appears to have adopted the same view.
Case: Szencorp Pty Ltd v Clean Energy Council Limited (2009) 69 ACSR 365
Outcome: discussed
Pty Ltd v Clean Energy Council Limited (2009) 69 ACSR 365 , was also an "oppression" case brought in reliance upon the current statutory equivalent, s 232 of the Corporations Act 2001 (Cth), in relation to the conduct of the affairs of an unlisted not-for-profit public company limited by guarantee. It was an entity formed to effect a merger of two existing sustainable energy industry associations. Goldberg J at [59] remarked in the course of his reasons: The "contrary to the interests" provision now contained in subpar (d) of s 232 has a separate and distinct area of operation from the "oppression" provisions in subpar (e) of s 232. The manner in which a company is being administered and in which its affairs are conducted may fall within the category of conduct contrary to the interests of the company's members as a whole although it may not be described as oppressive, unfairly prejudicial to, or unfairly discriminatory against members of the company: Turnbull v National Roads &amp; Motorists' Association Limited [2004] NSWSC 577 ; (2004) 50 ACSR 44 at 52, 57; Campbell v BackOffice Investments Pty Ltd [2008] NSWCA 95 ; (2008) 66 ACSR 359 at 400. (See also Re Spargos Mining NL (1990) 3 ACSR 1 at 42; Shelton v NRMA Limited (2005) 51 ACSR 278.) An example of such conduct may be found where a company is formed for the purpose of undertaking particular activities but the directors and management disregard those activities and direct the company into different commercial areas. The Residents correctly point out that, as his Honour said, the assessment of what is in the interests of the members as a whole of the Housing Associations must be assessed by reference to their objects and purposes. That is uncontentious, so long as their interests as a whole are in broad terms synonymous with the interests of the Housing Associations. Goldberg J did not suggest to the contrary. My analysis of their Constitutions and Rule Books is intended to reflect that approach.
Case: Pettit v South Australian Harness Racing Club Inc (2006) 95 SASR 543
Outcome: cited
counsel for the Residents also referred to Pettit v South Australian Harness Racing Club Inc (2006) 95 SASR 543 , a case concerning applications for membership of the association. Reliance was place on certain remarks of White J in [26] as follows: The constitution of an association binds the association and all of its members. This means that the Committee was bound to apply the relevant provisions of the Club's constitution in its consideration of the membership applications. The requirement that an exercise of an association's powers be for the benefit of the members as a whole is to exclude their exercise for "ulterior special and particular advantages", that is, it negatives "purposes foreign to the association's operations, affairs and organizations". ... Conduct by a committee of an association will be contrary to the interests of the members as a whole if no committee, acting reasonably, could have engaged in that conduct. [The supporting references were Wayde 180 CLR and Peters' 61 CLR]. Conduct may be contrary to the interests of the members as a whole even though a committee does not act in bad faith. In Wayde , Brennan J said: [I]f the directors exercise a power albeit in good faith and for a purpose within the power so as to impose a disadvantage, disability or burden on a member that, according to ordinary standards of reasonableness and fair dealing is unfair, the court may intervene ... ... However, proof of invalidity or non-compliance with an association's rules may indicate that a decision is contrary to the interests of the members as a whole. This is because of the importance which the law attaches to adherence to the provisions of an association's constitution. ... [citations omitted].
Case: Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389
Outcome: cited
The course of authority outlined above requires me to hold that the alleged representations by Novapharm to the APO and to the USPTO were not made in trade or commerce. They were not made in the course of a trading or commercial relationship between Novapharm on the one hand, and either the APO or USPTO on the other hand. Novapharm had no trading or commercial dealings with the APO or the USPTO. Nor were they made in the course of the negotiation of contracts; cf Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389. The alleged representations were made to a government instrumentality pursuant to legislation for the purpose of obtaining an exclusive right or bundle of rights made available by that legislation.
Case: The British South Africa Company v The Companhia de Mo&ccedil;ambique [1893] AC 602
Outcome: cited
In The British South Africa Company v The Companhia de Mo&ccedil;ambique [1893] AC 602 ( Mo&ccedil;ambique ), the House of Lords held that the Supreme Court of Judicature had no jurisdiction to entertain an action to recover damages for a trespass to land situate abroad. Mo&ccedil;ambique recognised a distinction between "transitory" and "local" actions. The English courts would exercise jurisdiction in respect of the former but not the latter. Actions in which title to land or infringement of rights and interest in real property were in issue were prime examples of local actions. 38 The " Mo&ccedil;ambique rule" has been held to apply to intellectual property rights. In Potter v The Broken Hill Pty Co Ltd [1906] HCA 88 ; (1906) 3 CLR 479 ( Potter ), the High Court held that a cause of action for infringement in New South Wales by a Victorian company carrying on mining operations in New South Wales, of the plaintiff's patent issued under the Patents Act 1899 (NSW), was not justiciable in Victoria. 40 In Tritech Technology Pty Ltd v Gordon (2000) 48 IPR 52, Finkelstein J recognised that the Mo&ccedil;ambique rule was subject to exceptions. 41 In Potter the High Court described one exception to the Mo&ccedil;ambique rule (at 498-499 per Griffith CJ): The Courts will no doubt entertain such a question of title if it arises merely incidentally in a case in which the foundation of the jurisdiction is a personal obligation arising from contract or quasi-contractual relationship between the parties.
Case: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212
Outcome: cited
It may be that Mr Glueck would be entitled to pursue the remaining general law causes of action in this Court, notwithstanding the non-pursuit of those based on alleged contravention of s 52 of the TP Act . Whether he would be entitled to do so would depend upon a consideration of principles of the kind discussed in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212, Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 and Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 83 ; (2003) 128 FCR 507. Whether Mr Glueck's general law claims can survive in this Court is better determined after he has filed any amended application and amended statement of claim. Mr Glueck would, in any event, be entitled to pursue relief in a State Supreme Court based on general law causes of action, such as fraudulent misrepresentation, against Novapharm and the individual respondents.
Case: Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 83 ; (2003) 128 FCR 507
Outcome: cited
It may be that Mr Glueck would be entitled to pursue the remaining general law causes of action in this Court, notwithstanding the non-pursuit of those based on alleged contravention of s 52 of the TP Act . Whether he would be entitled to do so would depend upon a consideration of principles of the kind discussed in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212, Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 and Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 83 ; (2003) 128 FCR 507. Whether Mr Glueck's general law claims can survive in this Court is better determined after he has filed any amended application and amended statement of claim. Mr Glueck would, in any event, be entitled to pursue relief in a State Supreme Court based on general law causes of action, such as fraudulent misrepresentation, against Novapharm and the individual respondents.
Case: Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563
Outcome: cited
It may be that Mr Glueck would be entitled to pursue the remaining general law causes of action in this Court, notwithstanding the non-pursuit of those based on alleged contravention of s 52 of the TP Act . Whether he would be entitled to do so would depend upon a consideration of principles of the kind discussed in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212, Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 and Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 83 ; (2003) 128 FCR 507. Whether Mr Glueck's general law claims can survive in this Court is better determined after he has filed any amended application and amended statement of claim. Mr Glueck would, in any event, be entitled to pursue relief in a State Supreme Court based on general law causes of action, such as fraudulent misrepresentation, against Novapharm and the individual respondents.