mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 242 ALR 47 
Outcome: cited
The process of construction normally requires a consideration of not only the text and context of the written agreement, but also the surrounding circumstances known to the parties, as well as the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179, [40] ; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 461-2. The "history" of a contract is part of the context in which a contract takes its meaning: International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 242 ALR 47 at [8] . Even where there is no linguistic ambiguity extrinsic evidence may be considered in aid of construction: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 , particularly at 49-53. Ambiguity is not confined to a competition between two meanings. It extends to meanings which, for example, are doubtful, uncertain, or indistinct and which therefore require a consideration not only of text but also context: Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133 at [42]-[43]. It may also be admitted to identify the subject matter of a contract, its nature and scope: Codelfa Constructions Proprietary Limited v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 349. The meaning arrived at in this way may not be the most obvious or most grammatically correct: Australian Broadcasting Commission v Australian Performing Right Association Limited [1973] HCA 36 ; (1973) 129 CLR 99 at 109. Words may generally be supplied, omitted, or corrected in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420 at 426-427 and 437.
Case: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 
Outcome: cited
The process of construction normally requires a consideration of not only the text and context of the written agreement, but also the surrounding circumstances known to the parties, as well as the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179, [40] ; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 461-2. The "history" of a contract is part of the context in which a contract takes its meaning: International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 242 ALR 47 at [8] . Even where there is no linguistic ambiguity extrinsic evidence may be considered in aid of construction: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 , particularly at 49-53. Ambiguity is not confined to a competition between two meanings. It extends to meanings which, for example, are doubtful, uncertain, or indistinct and which therefore require a consideration not only of text but also context: Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133 at [42]-[43]. It may also be admitted to identify the subject matter of a contract, its nature and scope: Codelfa Constructions Proprietary Limited v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 349. The meaning arrived at in this way may not be the most obvious or most grammatically correct: Australian Broadcasting Commission v Australian Performing Right Association Limited [1973] HCA 36 ; (1973) 129 CLR 99 at 109. Words may generally be supplied, omitted, or corrected in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420 at 426-427 and 437.
Case: Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571
Outcome: cited
The applicants submit however that the "context otherwise requires" that the term "Leased Premises", when used in the option provision in special cl 11(2) of the Schedule, should not be given its defined meaning if that meaning is construed to refer to part only of the Land. Such a construction, it submits, would impute to the parties the absurd and commercially unreasonable intention of recording the grant of a void option. They point to the traditional doctrine that courts should be astute to adopt a construction that will preserve the validity of the contract: Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571 at 589, and to prefer a construction which will encourage performance rather than avoidance of contractual relations: Ankar Pty Ltd &amp; Arnick Holdings Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549 at 556-557; Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 at 202. The Contract to Lease and the Lease each created a valid demise in that a demise of part of the Land for less than 20 years did not contravene the subdivision provisions of the Planning Act : s 136(1)(a). However the option to purchase would contravene s 136(1)(d) of the Planning Act and hence would be void, if it is construed as referrable to a purchase of part only of the Land. The proper construction, in that context, the applicants submit, is that the option is in respect of the whole of the Land.
Case: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451
Outcome: cited
The process of construction normally requires a consideration of not only the text and context of the written agreement, but also the surrounding circumstances known to the parties, as well as the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179, [40] ; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 461-2. The "history" of a contract is part of the context in which a contract takes its meaning: International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 242 ALR 47 at [8] . Even where there is no linguistic ambiguity extrinsic evidence may be considered in aid of construction: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 , particularly at 49-53. Ambiguity is not confined to a competition between two meanings. It extends to meanings which, for example, are doubtful, uncertain, or indistinct and which therefore require a consideration not only of text but also context: Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133 at [42]-[43]. It may also be admitted to identify the subject matter of a contract, its nature and scope: Codelfa Constructions Proprietary Limited v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 349. The meaning arrived at in this way may not be the most obvious or most grammatically correct: Australian Broadcasting Commission v Australian Performing Right Association Limited [1973] HCA 36 ; (1973) 129 CLR 99 at 109. Words may generally be supplied, omitted, or corrected in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420 at 426-427 and 437.
Case: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 
Outcome: cited
The process of construction normally requires a consideration of not only the text and context of the written agreement, but also the surrounding circumstances known to the parties, as well as the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179, [40] ; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 461-2. The "history" of a contract is part of the context in which a contract takes its meaning: International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 242 ALR 47 at [8] . Even where there is no linguistic ambiguity extrinsic evidence may be considered in aid of construction: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 , particularly at 49-53. Ambiguity is not confined to a competition between two meanings. It extends to meanings which, for example, are doubtful, uncertain, or indistinct and which therefore require a consideration not only of text but also context: Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133 at [42]-[43]. It may also be admitted to identify the subject matter of a contract, its nature and scope: Codelfa Constructions Proprietary Limited v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 349. The meaning arrived at in this way may not be the most obvious or most grammatically correct: Australian Broadcasting Commission v Australian Performing Right Association Limited [1973] HCA 36 ; (1973) 129 CLR 99 at 109. Words may generally be supplied, omitted, or corrected in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420 at 426-427 and 437.
Case: Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 
Outcome: cited
The applicants submit however that the "context otherwise requires" that the term "Leased Premises", when used in the option provision in special cl 11(2) of the Schedule, should not be given its defined meaning if that meaning is construed to refer to part only of the Land. Such a construction, it submits, would impute to the parties the absurd and commercially unreasonable intention of recording the grant of a void option. They point to the traditional doctrine that courts should be astute to adopt a construction that will preserve the validity of the contract: Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571 at 589, and to prefer a construction which will encourage performance rather than avoidance of contractual relations: Ankar Pty Ltd &amp; Arnick Holdings Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549 at 556-557; Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 at 202. The Contract to Lease and the Lease each created a valid demise in that a demise of part of the Land for less than 20 years did not contravene the subdivision provisions of the Planning Act : s 136(1)(a). However the option to purchase would contravene s 136(1)(d) of the Planning Act and hence would be void, if it is construed as referrable to a purchase of part only of the Land. The proper construction, in that context, the applicants submit, is that the option is in respect of the whole of the Land.
Case: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: cited
Section 31A lowers the bar for obtaining summary judgment: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. The second reading speech of the Migration Litigation Reform Bill 2005 which introduced s 31A stated that its purpose was to strengthen "the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases": Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [45] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 at [124] .
Case: Lofthouse, Re Riverside Nursing Care Pty Limited (Subject to Deed of Company Arrangement) (2004) 22 ACLC 215
Outcome: referred to
Upon the matter being called for hearing on 22 May 2006 the administrator sought and was granted leave to file in Court an interlocutory process in which he now seeks directions pursuant to s 447D of the Act as to whether in the circumstances of the making of the costs orders by the Full Court on 19 May 2006 he would be justified in admitting the plaintiff to proof for the purpose of voting at the adjourned creditors meeting in the amount claimed in the 'costs Proof of Debt dated 6 April 2006 or in some other amount.' (see generally Lofthouse, Re Riverside Nursing Care Pty Limited (Subject to Deed of Company Arrangement) (2004) 22 ACLC 215 per Finkelstein J at [2] as to the effect of directions under s 447D) 27 In the light of the administrator's application the parties have agreed that both the plaintiff's application and the administrator's interlocutory application should be heard together with evidence in one matter being evidence in the other. 28 The parties have agreed that the issues now requiring determination are: (a) Whether the plaintiff's proof of debt should be admitted for the purposes of voting at the adjourned creditors' meeting on 23 June 2006 in respect of the costs of the earlier proceedings for which the Full Court's orders of 19 May 2006 provide, in addition to the amount of $1.4m (the First Question). (b) If the said proof of debt should not be so admitted, should an order now be made under section 447A of the Act which would cause the Act to operate so as to allow the plaintiff to vote in respect of its costs entitlement (the Second Question).
Case: Brash Holdings Limited (Administrator Appointed) v Katile Pty Limited (1994) 13 ACSR 504
Outcome: cited
The 'creditors' who may pass a resolution of one of the types mentioned above at the decision meeting are not defined in the Act. The traditional approach has been to treat as creditors for the purposes of s 439C those persons who would be entitled to prove in a winding up of the company in accordance with s 553 of the Act (see Brash Holdings Limited (Administrator Appointed) v Katile Pty Limited (1994) 13 ACSR 504 per Brooking, J D Phillips and Hansen JJ at 513; see also Selim v McGrath ('Selim') [2003] NSWSC 927 ; (2003) 47 ACSR 537 per Barrett J at 554-5 and in particular [67]-[68]). Section 553(1) provides as follows: '553(1) Subject to this Division, in every winding up, all debts payable by, and all claims against, the company (present or future, certain or contingent, ascertained or sounding only in damages), being debts or claims the circumstances giving rise to which occurred before the relevant date, are admissible to proof against the company.'
Case: Re Crawford House Press Pty Limited (1995) 17 ACSR 295
Outcome: cited
When an administrator has been appointed to a company, whether followed by a deed of company arrangement or not, provable debts are those where the circumstances giving rise to them occurred before the date of commencement of the administration (per Cohen J in Re Crawford House Press Pty Limited (1995) 17 ACSR 295 at 298). So also, with provable claims.
Case: Anmi Pty Limited v Williams [1981] 2 NSWLR 138
Outcome: referred to
In the case of insolvent companies, the question of whether debts were provable debts fell to be determined in accordance with the law of the Commonwealth relating to bankruptcy and, in particular s 82 of the Bankruptcy Act (see s 553(2) of the Corporations Law ; Anmi Pty Limited v Williams [1981] 2 NSWLR 138 at 163 and Re Autolook Pty Limited; O'Brien v Bills (1984) 2 ACLC 30 at 33).
Case: Re Autolook Pty Limited; O'Brien v Bills (1984) 2 ACLC 30
Outcome: referred to
In the case of insolvent companies, the question of whether debts were provable debts fell to be determined in accordance with the law of the Commonwealth relating to bankruptcy and, in particular s 82 of the Bankruptcy Act (see s 553(2) of the Corporations Law ; Anmi Pty Limited v Williams [1981] 2 NSWLR 138 at 163 and Re Autolook Pty Limited; O'Brien v Bills (1984) 2 ACLC 30 at 33).
Case: Community Development Pty Limited v Engwirda Construction Company [1969] HCA 47 ; (1966) 120 CLR 455
Outcome: referred to
In Community Development Pty Limited v Engwirda Construction Company ('Engwirda') [1969] HCA 47 ; (1966) 120 CLR 455 at 459, Kitto J made the following observations in respect of what is meant by the expression 'contingent creditor': 'Not much assistance is to be gained, I think, from observations that are to be found in reported cases as to the import of the word "contingent", and I shall refer to one only. In In re William Hockley Ltd ... Pennycuick J. suggested as a definition of "a contingent creditor" what is perhaps rather a definition of "a contingent or prospective creditor", saying that in his opinion it denoted "a person towards whom, under an existing obligation, the company may or will become subject to a present liability upon the happening of some future event or at some future date". The importance of these words for present purposes lies in their insistence that there must be an existing obligation and that out of that obligation a liability on the part of the company to pay a sum of money will arise in a future event, whether it be an event that must happen or only an event that may happen. A building contract creates, as soon as it is entered into, an obligation upon the building owner to pay the contract price, either as a whole upon a future event or, more usually, by progress and final payments each of which is to be made on a future event. The event or events may not happen, but if and when one of them does happen the building owner, by force of the contractual obligation, must pay the builder a sum of money. It is, I think, nothing to the point that the event may be complex, as where the payment is agreed to be made when the whole or some part of the work has been done to the satisfaction of an architect as expressed in a certificate or to the satisfaction of an arbitrator as expressed in an award: the building owner is bound from the time the contract is made to pay money to the builder upon a contingency; and that in my opinion makes the builder a contingent creditor of the owner.' 72 Barwick CJ agreed with the observations of Kitto J and, inferentially, so did Windeyer J. Owen J found that the petitioning creditor was within the meaning of the expression 'contingent creditor' and therefore entitled to petition for the winding up of Community Development Pty Limited, although his Honour addressed other possible meanings of the expressions 'contingent debt' and 'contingent liability' in reaching that conclusion. 73 In The National Bank of Australasia Limited v Mason [1975] HCA 56 ; (1975) 133 CLR 191 Barwick CJ adopted the same approach as had been adopted by Kitto J in Engwirda . At 200 he said: 'There must be some present obligation to pay out of which the money may become due' for monies to be regarded as 'owing contingently'.
Case: The National Bank of Australasia Limited v Mason [1975] HCA 56 ; (1975) 133 CLR 191
Outcome: referred to
In The National Bank of Australasia Limited v Mason [1975] HCA 56 ; (1975) 133 CLR 191 Barwick CJ adopted the same approach as had been adopted by Kitto J in Engwirda . At 200 he said: 'There must be some present obligation to pay out of which the money may become due' for monies to be regarded as 'owing contingently'.
Case: FAI Workers Compensation (NSW) Limited v Philkor Builders Pty Limited (1996) 20 ACSR 592
Outcome: distinguished
In FAI Workers Compensation (NSW) Limited v Philkor Builders Pty Limited ('Philkor') (1996) 20 ACSR 592, Young J, as his Honour then was, held that the prospect of a plaintiff securing an entitlement to costs in winding up proceedings under the Corporations Law did not enable such a plaintiff to contend that a contingent debt was payable by the company to the plaintiff in circumstances where, before a winding up order was made, the company was placed in administration and a deed of company arrangement was thereafter executed following a resolution of the majority of creditors of the company that it should do so. Such resolution had not been supported by the plaintiff. This decision is quite unexceptional and has no real bearing on the resolution of the issues in the present case. As his Honour said at 597: 'As under s 466 there is a personal obligation to bear one's own costs of a winding up petition until the winding up order is made and then a statutory right to get costs which commences as at that day, it does not appear to me that a claim for costs before the order is made can be classed as a contingent debt.' (see also Expile at 673-5 and McDonald at 474-5)
Case: Silbermann v One.Tel Limited (No 2) [2002] NSWSC 295 ; (2002) 20 ACLC 846
Outcome: distinguished
Following the process of reasoning indicated in Fisher , Gzell J held in Silbermann v One.Tel Limited (No 2) [2002] NSWSC 295 ; (2002) 20 ACLC 846 at 850-1 that an application to the New South Wales Industrial Relations Commission for the variation of a contract of service to include an indemnity against a director's liability in respect of corporate credit cards issued by American Express International Inc and Diners Club Pty Limited did not constitute future claims within the meaning of s 553 of the Act which were admissible to proof against the respondent, One.Tel Limited.
Case: Molit (No. 55) Pty Limited v Lam Soon Australia Pty Limited (Administrator Appointed) (1996) 19 ACSR 160
Outcome: referred to
In Molit (No. 55) Pty Limited v Lam Soon Australia Pty Limited (Administrator Appointed) ('Molit') (1996) 19 ACSR 160 at 170, Branson J cited with approval a passage from Crutchfield's Annotated Corporate Voluntary Administration Law in which he said: '... it is submitted that the correct position is that such future claims [i.e. claims for future rent and future breaches of covenant] are admissible to proof in a winding-up. This appears to be clear from the terms of s 553 itself and s 554B, which provides for the discounting in accordance with the Regulations of debts payable on a future date. See also McPherson, The Law of Company Liquidation (3 rd ed, p376). If the position were otherwise, the clear intention of Pt 5.3A to enable a company, the subject to a deed of company arrangement, to make a "fresh start", free of the claims of creditors arising out of pre-administration dealings, would be frustrated. ' 84 In Molit , Branson J held that a covenant by a lessee to pay rent by calendar monthly payments in advance on the first day of each month during the term of the lease, created future claims with respect to such payments, contingent upon the lease not being determined pursuant to the terms of the lease or otherwise by agreement. Her Honour found that in the deed of company arrangement there under consideration the lessor was a creditor of the company so far as its claims for future rent under the lease were concerned (see 169-70).