mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: McGee v Yeomans [1977] 1 NSWLR 273
Outcome: distinguished
I am of opinion that the commencing words of r 2(1) which I have just quoted demonstrate that the power of the Court in r 2(1), in the ordinary and natural meaning of the rule, must be read as being constrained by matters referred to in the rest of O 13 r 2. These words make O 13 r 2 operate differently to rules such as those considered in cases like McGee v Yeomans [1977] 1 NSWLR 273 at 279G where Glass JA observed that the general power of amendment under the New South Wales rules ( Supreme Court Rules 1970 (NSW) Pt 20 r 1(1)) was not made subject to the other parts of the same rule, and that another part of that rule (SCR Pt 20 r 4(7)) expressly provided that those parts did not limit the general power to allow amendments under SCR Pt 20 r 1(1) (cf: Charles Church Developments Ltd v Stent Foundations Ltd [2007] 1 WLR 1203). 67 That might not be the end of the argument because ASS also pointed to O 13 r 2(2). There is certainly also a plenary character to the grant of power in that rule. But it falls to be considered here, having regard to the question whether the interests of justice operate to allow the filling of a gap which would have the consequence of overcoming an expired limitation period. In that respect, the qualification in the commencing words of O 13 r 2(1) and other parts of the rule in O 13 r 2 are relevant. Order 13 r 2 subrr (3) to (7) deal expressly with applications to the Court for leave to make amendments: &#8226; to correct mistakes in the name or identity of the party; &#8226; to substitute one party for another where such a mistake needs correction; &#8226; to alter the capacity in which a party is said to be suing; or &#8226; to add a new claim for relief or foundation in law for a claim for relief provided that it arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party applying for the amendment. 68 Each of those subrules and the framing of subr (3) in itself evince an intention to allow the correction of mistakes or the addition of a legal formulation of a claim for relief, but not to add previously omitted material facts necessary to complete the pleading of an existing cause of action. And subr (9) expressly provides that an amendment would not be permitted which would have an effect inconsistent with a statute of limitation in matters arising under subrr (7)(b) and (8).
Case: Truebit Pty Ltd v Westpac Banking Corporation [1997] FCA 1290 (unreported 27 November 1997)
Outcome: cited
The Queensland Court of Appeal also quoted with approval what Branson J had said in Truebit Pty Ltd v Westpac Banking Corporation [1997] FCA 1290 at p 28. Her Honour set out the following passage from Meagher RP, Gummow WMC and Lehane JRF, Equity: Doctrines and Remedies (3 rd ed, Butterworths, 1992) at pp 130-131, which read: 'The distinguishing characteristic of a fiduciary relationship is that its essence, or purpose, is to serve exclusively the interests of a person or group of persons; or, to put it negatively, it is a relationship in which the parties are not each free to pursue their separate interests.' Her Honour then continued: 'There is thus an inconsistency between the notion of Westpac assuming a fiduciary duty to the applicants in respect of its treatment of their application for finance and the maintenance of Westpac's "own commercial self interest as lender". Moreover, there is a commercial, and possibly conceptual, unreality surrounding the contention that Westpac was entitled to consider the applicants' application for finance both in the applicants' interest and in Westpac's own interest as the proposed lender to the applicants, but not in Westpac's interest as the mortgagee/lender exercising through a receiver the power of sale in respect of [the property].'
Case: Northern Territory v Alyawarr (2005) 145 FCR 442
Outcome: cited
determination of native title in Aboriginal people by orders of the Federal Court in the exercise of power conferred by the Native Title Act , is the expression, consistent with the scheme of the Act, of what the Chief Justice of Australia, Chief Justice French, has described as the "beneficial purpose" of the legislation to provide for the recognition and protection of native title, as set out in s 3 of the Act. That beneficial purpose rests on a declared "moral foundation" ( Northern Territory v Alyawarr (2005) 145 FCR 442 at [63]) contained in the preamble to the Act as acknowledged by the High Court of Australia in Mabo v Queensland (No. 2) (1992) 175 CLR 1, that the common law of Australia recognises, a form of native title, that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands. When the Federal Court makes a determination of native title in Aboriginal people, it does so in recognition of traditional laws, customs, rights and interests subsisting in those people as part of the common law of Australia.
Case: Mabo v Queensland (No. 2) (1992) 175 CLR 1
Outcome: cited
determination of native title in Aboriginal people by orders of the Federal Court in the exercise of power conferred by the Native Title Act , is the expression, consistent with the scheme of the Act, of what the Chief Justice of Australia, Chief Justice French, has described as the "beneficial purpose" of the legislation to provide for the recognition and protection of native title, as set out in s 3 of the Act. That beneficial purpose rests on a declared "moral foundation" ( Northern Territory v Alyawarr (2005) 145 FCR 442 at [63]) contained in the preamble to the Act as acknowledged by the High Court of Australia in Mabo v Queensland (No. 2) (1992) 175 CLR 1, that the common law of Australia recognises, a form of native title, that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands. When the Federal Court makes a determination of native title in Aboriginal people, it does so in recognition of traditional laws, customs, rights and interests subsisting in those people as part of the common law of Australia.
Case: Munn (for and on behalf of the Gungari People) v Queensland (2001) 115 FCR 109
Outcome: cited
the Court will be concerned to understand and place emphasis upon whether the agreement is genuine and freely made on an informed basis by all parties, represented by experienced independent lawyers and in the case of a State party, whether appropriate consideration has been given to the content of the applicant's claim (see, Munn (for and on behalf of the Gungari People) v Queensland (2001) 115 FCR 109, per Emmett J; Smith &amp; Ors v State of Western Australia (2000) 104 FCR 494 per Madgwick J at [28] to [33]).
Case: Smith &amp; Ors v State of Western Australia (2000) 104 FCR 494
Outcome: cited
the Court will be concerned to understand and place emphasis upon whether the agreement is genuine and freely made on an informed basis by all parties, represented by experienced independent lawyers and in the case of a State party, whether appropriate consideration has been given to the content of the applicant's claim (see, Munn (for and on behalf of the Gungari People) v Queensland (2001) 115 FCR 109, per Emmett J; Smith &amp; Ors v State of Western Australia (2000) 104 FCR 494 per Madgwick J at [28] to [33]).
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
is well established that the power to strike out a pleading and to enter summary judgment must be exercised with great caution and only in very clear cases where the Court is satisfied that the cause of action cannot possibly succeed ( Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129).
Case: Gates v The City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1
Outcome: applied
Rossetto submits that the principles in Shepperd v The Council of the Municipality of Ryde [1952] HCA 9 ; (1952) 85 CLR 1 apply. He relies upon a clear common intention of the parties that, first, Mr Rossetto would rely upon the representations and, on that basis, proceed to contract to buy the premises. Secondly, the representations were ' presupposed as something antecedent upon which the purchaser might implicitly rely ' ( Shepperd at 13). Mr Rossetto submits that, as enunciated in Gates v The City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1, a collateral contract arises where the intention of the parties is clear and the terms of the collateral contract are not inconsistent with the main written agreement (at 5). A collateral agreement inconsistent with the principal contract will not be enforced ( Maybury v Atlantic Union Oil Co Ltd [1953] HCA 89 ; (1953) 89 CLR 507 at 517; Gates at 5 per Gibbs CJ and at 11 per Mason, Wilson and Dawson JJ). The collateral contract as pleaded is inconsistent with at least clauses 56.2 (especially 56.2.2), 56.3 and 56.4. Mr Rossetto is not entitled to damages for the loss of an expectation of rental or profits unless reliance on the representations deprived him of the opportunity to enter into a different contract resulting in greater rental or profits ( Havyn Pty Ltd v Webster (2005) 12 BPR 22,837 at [117(g)]; Gates at 13 to 15; Marks at [48]). There is no pleading or evidence that, had Mr Rossetto not relied on the representations, he would have entered into a different contract and thereby made a profit. However, Mr Rossetto asserts in his written submissions that the evidence will be adduced to establish an opportunity foregone by reason of reliance on the representation, for which he is entitled to damages. Value of the premises
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
is well established that the power to strike out a pleading and to enter summary judgment must be exercised with great caution and only in very clear cases where the Court is satisfied that the cause of action cannot possibly succeed ( Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129).
Case: Havyn Pty Ltd v Webster (2005) 12 BPR 22,837
Outcome: cited
Rossetto is not entitled to damages for the loss of an expectation of rental or profits unless reliance on the representations deprived him of the opportunity to enter into a different contract resulting in greater rental or profits ( Havyn Pty Ltd v Webster (2005) 12 BPR 22,837 at [117(g)]; Gates at 13 to 15; Marks at [48]). There is no pleading or evidence that, had Mr Rossetto not relied on the representations, he would have entered into a different contract and thereby made a profit. However, Mr Rossetto asserts in his written submissions that the evidence will be adduced to establish an opportunity foregone by reason of reliance on the representation, for which he is entitled to damages. Value of the premises
Case: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459
Outcome: cited
52 is directed at the making of the representation, not the failure to honour it. Where there is no obligation to honour the false representation, the measure of the loss is not determined by reference to what Mr Rossetto would have received if Meriton's representations had been true ( Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at [132] per McHugh J with whom Gummow J agreed). The representations were not warranties entitling Mr Rossetto to estimated rental or profits for the years in which the premises contained the only child care centre in the World Tower ( Warwick Entertainment at [148]).
Case: I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109
Outcome: applied
52 of the Act proscribes a corporation from engaging in trade or commerce in conduct that is misleading or deceptive or is likely to mislead or deceive. Mr Rossetto and Bimbee claim that they have suffered, or are likely to suffer, loss or damage ' by conduct of ' Meriton in contravention of s 52 and may recover that loss or damage pursuant to s 82 or s 87 of the Act. The words ' by conduct of ' in ss 82 and 87 impose a causal requirement that the loss or damage claimed must be sustained "by" the contravention of s 52 ( Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494 at [95] ; I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at [50] and [54]). Bimbee alleges that it relied on the representations. On the basis of this chronology and the pleadings, and in the absence of particularisation or explanation, Bimbee cannot establish that it entered the lease in reliance on the representations. To the contrary, Bimbee entered the lease with full knowledge there would be a second child care centre in the World Tower. The representations are not a cause of the loss or damage it is alleged to have suffered or is likely to suffer ( I &amp; L Securities at [57]). Bimbee does not have a reasonable cause of action against Meriton for past or future damages suffered by reason of a contravention of s 52 of the Act. Mr Rossetto alleges that the representations were made to induce him to enter into the contract. He alleges that the representations were a promise made in consideration of him entering into the main contract, which he did. He pleads a collateral contract, formed on or before exchange. The allegation in the further amended statement of claim at [29] is: 'On or before 11 March 2002 [Mr Rossetto] and [Meriton] entered into an agreement (the collateral contract) pursuant to which in consideration of [Mr Rossetto] entering [the contract] , [Meriton] agreed to sell to [Mr Rossetto] the only child care centre in the World Tower.' Mr Rossetto submits that, at the time the representations were made, Meriton intended to sell Mr Rossetto the only child care centre in the World Tower and Mr Rossetto was prepared to purchase the premises on the basis that it was the only child care centre. He says that the representations were warranties of the collateral contract, which were breached when the premises on level 11 of the World Tower were sold to a third party and approved as a child care centre. By reason of the breach of the collateral contract, Mr Rossetto alleges that he suffered damages, particularised as for the alleged contravention of s 52 of the Act and discussed at [24] to [36] below.
Case: Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526
Outcome: cited
is not pleaded that the representations were made to Bimbee. Bimbee relies on the fact that Meriton's conduct caused Mr Rossetto to act in a way that led to loss or damage to Bimbee. If so, the contravening conduct must still be a cause of the loss which must directly result from the conduct ( Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 at 529 31 per Lockhart J). Bimbee was incorporated in March 2004. By that time, Mr Rossetto had been informed that the representations were untrue and had been offered rescission of the contract. Mr Rossetto was the sole director of Bimbee. Despite knowledge that there was to be another child care centre in the World Tower, Bimbee elected to take a lease of the premises. Bimbee was not misled at the time it took an interest in the premises.
Case: Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494
Outcome: applied
52 of the Act proscribes a corporation from engaging in trade or commerce in conduct that is misleading or deceptive or is likely to mislead or deceive. Mr Rossetto and Bimbee claim that they have suffered, or are likely to suffer, loss or damage ' by conduct of ' Meriton in contravention of s 52 and may recover that loss or damage pursuant to s 82 or s 87 of the Act. The words ' by conduct of ' in ss 82 and 87 impose a causal requirement that the loss or damage claimed must be sustained "by" the contravention of s 52 ( Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494 at [95] ; I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at [50] and [54]). Mr Rossetto is not entitled to damages for the loss of an expectation of rental or profits unless reliance on the representations deprived him of the opportunity to enter into a different contract resulting in greater rental or profits ( Havyn Pty Ltd v Webster (2005) 12 BPR 22,837 at [117(g)]; Gates at 13 to 15; Marks at [48]). There is no pleading or evidence that, had Mr Rossetto not relied on the representations, he would have entered into a different contract and thereby made a profit. However, Mr Rossetto asserts in his written submissions that the evidence will be adduced to establish an opportunity foregone by reason of reliance on the representation, for which he is entitled to damages. Value of the premises Mr Rossetto has suffered no loss with respect to the value of the premises because what he bought was worth what he paid for it ( Marks at 514-5 per McHugh, Hayne and Callinan JJ). There was no loss as a result of altering his position under the inducement of the misleading conduct ( Marks at 513-4). The damages alleged to have been suffered by Bimbee are particularised as: 'The loss of income being the reduction in the net income caused by [Bimbee] not operating the only child care centre in the World Tower building as represented to [Mr Rossetto] '. Bimbee's claim has been further particularised to include loss of income and goodwill. The former has been particularised as: &#8226; past loss of income, calculated as profit expected less actual profit received; and &#8226; future loss of income, as expected income assuming no competitor and a daily charge of $120 per child.
Case: Maybury v Atlantic Union Oil Co Ltd [1953] HCA 89 ; (1953) 89 CLR 507
Outcome: cited
collateral agreement inconsistent with the principal contract will not be enforced ( Maybury v Atlantic Union Oil Co Ltd [1953] HCA 89 ; (1953) 89 CLR 507 at 517; Gates at 5 per Gibbs CJ and at 11 per Mason, Wilson and Dawson JJ). The collateral contract as pleaded is inconsistent with at least clauses 56.2 (especially 56.2.2), 56.3 and 56.4.
Case: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388
Outcome: cited
or damage suffered by reason of a contravention of s 52 is not confined by reference to a form of claim under the general law and is not necessarily singular; it may be, for example, both loss of revenue and loss of capital and may be incurred at different times ( Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 at [44] , [49] [52]). However, the risk of loss is not itself a category of loss ( Murphy at [46] discussing Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 526-7).
Case: Shepperd v The Council of the Municipality of Ryde [1952] HCA 9 ; (1952) 85 CLR 1
Outcome: cited
Rossetto submits that the principles in Shepperd v The Council of the Municipality of Ryde [1952] HCA 9 ; (1952) 85 CLR 1 apply. He relies upon a clear common intention of the parties that, first, Mr Rossetto would rely upon the representations and, on that basis, proceed to contract to buy the premises. Secondly, the representations were ' presupposed as something antecedent upon which the purchaser might implicitly rely ' ( Shepperd at 13). Mr Rossetto submits that, as enunciated in Gates v The City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1, a collateral contract arises where the intention of the parties is clear and the terms of the collateral contract are not inconsistent with the main written agreement (at 5).
Case: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: cited
or damage suffered by reason of a contravention of s 52 is not confined by reference to a form of claim under the general law and is not necessarily singular; it may be, for example, both loss of revenue and loss of capital and may be incurred at different times ( Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 at [44] , [49] [52]). However, the risk of loss is not itself a category of loss ( Murphy at [46] discussing Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 526-7).
Case: Warwick Entertainment Centre Pty Ltd v Alpine Holdings Pty Ltd (2005) 224 ALR 134
Outcome: cited
for the purposes of this application that Mr Rossetto entered into the contract in reliance on the misrepresentations and affirmed the contract after being told the true position, Mr Rossetto is not automatically precluded from a claim for damages pursuant to ss 82 and 87. The success of his claim may depend upon whether his decision to affirm the contract was reasonable ( Warwick Entertainment Centre Pty Ltd v Alpine Holdings Pty Ltd (2005) 224 ALR 134 at [72]). The affirmation of the contract alone does not result in an absence of a reasonable cause of action for damages pursuant to ss 82 and 87. There may be loss or damage after entry into the contract and prior to the decision to affirm the contract or prior to the completion of the contract. The decision may have been reasonable in light of evidence Mr Rossetto proposes to adduce concerning the time, energy and money he had already invested in the premises although no such evidence has been forthcoming to date. These are factual matters that will need to be determined. Section 52 is directed at the making of the representation, not the failure to honour it. Where there is no obligation to honour the false representation, the measure of the loss is not determined by reference to what Mr Rossetto would have received if Meriton's representations had been true ( Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at [132] per McHugh J with whom Gummow J agreed). The representations were not warranties entitling Mr Rossetto to estimated rental or profits for the years in which the premises contained the only child care centre in the World Tower ( Warwick Entertainment at [148]).
Case: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 ; (1984) 3 FCR 344
Outcome: referred to
an application for an extension of time to commence a proceeding under the ADJR Act is made the Court has an unfettered discretion. There is a large number of potentially relevant considerations which, depending upon the circumstances, may need to be balanced in determining how the discretion should be exercised. Many of these were collected by Wilcox J in his judgment in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 ; (1984) 3 FCR 344 at 348-9. I am prepared to assume, in Ms Luck's favour that she did not make timely applications because of ignorance of her legal rights and because of health problems. She has also been occupied with a good deal of litigation in this Court and elsewhere. I am also prepared to assume that the respondents would suffer no prejudice were an extension of time to be granted. On the other hand, it is necessary to have regard to the considerable delay involved and the merits of the principal application. The factor which, however, weighs most heavily against the granting of an extension of time is that the two decisions which are the subject of the objections to competency were both expressed to be operative for only twelve months and three months respectively. Their effect is spent. Any attempt to deal with the alleged failure to make a decision to review the second decision would, for the same reason, serve no useful purpose. No useful purpose would be served at this stage by quashing these decisions or declaring them to be null and void. The June 2008 decision, in respect of which a timely application was made, was in substantially the same terms as the two spent decisions. Ms Luck relies on the same grounds to challenge all three decisions. She will not, therefore, be deprived of the opportunity of testing the legal validity of the restrictions placed on her in relation to her dealings with Centrelink.