mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sony Entertainment (Aust) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788
Outcome: cited
One of the relevant factors determining whether to make an order for costs as a gross sum is whether the party required to meet the costs order would be likely to meet those costs: Sony Entertainment (Aust) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788. As stated above, the exercise of the rule contemplates: ...a much broader brush than would be applied in taxation. The gross sum can only be fixed broadly having regard to the information before the Court. ( Sony Entertainment at [197]). 16 Counsel for Niugini Mining has submitted, and I accept, that the following factors lead to the conclusion that gross costs orders are appropriate in this case: 1. Niugini Mining is unlikely to recover any of its costs from Mr Salfinger. He has consistently sought to demonstrate that he lacks the financial means by which he might fulfil any costs order. 2. Mr Salfinger appears to have no real property assets in Australia. 3. A significant number of companies with which he is associated have been deregistered. 4. He apparently resides in Canada. He does not appear to be usually resident in Australia and his address for service in Australia that he has previously given in these proceedings is not his own residence. 5. He has resisted attempts to locate and serve him with material in respect of taxation in proceedings before the Victorian Supreme Court. 6. He has consistently shown little intention to comply with court orders and directions. He has made repeated attempts to delay the progress of the matter at first instance and on appeal and in respect of the present application. 7. To date Niugini Mining has not been able to recover any of its costs from him. 17 In all the circumstances, I am satisfied that it is appropriate to make gross sum costs orders. Such an order may be made notwithstanding that previous orders have been made for taxed costs. 18 As to the appropriate amount, Niugini Mining have had costs assessed by Hickey &amp; Garrett, legal costs consultants. It is apparent from the affidavit of Mr Lobban that the gross sum costs orders sought are significantly less than the amount of the costs actually paid by Niugini Mining. There are a number of costs that have not been included in the assessments as they were not able to be determined at the time the files were submitted for assessments. The figures do not include counsels' fees for the three days of the actual hearing. In addition, there were significant costs thrown away during the course of defending the proceedings as a result of Mr Salfinger's non-observance of court orders and directions which are not reflected in the assessments. 19 The Hickey &amp; Garrett figures were: (a) in respect of the Injunction Order, professional costs of $7,475 plus disbursements of $9,299.72, a total of $16,774.72; (b) in respect of the Adjournment Order, professional costs of $1,094 plus disbursements of $75, a total of $1,169; (c) in respect of the Separate Question Order, professional costs of $48,661.00 plus disbursements of $32,965.77, a total of $81,626.77.
Case: Ualesi t/a Australian Empire Imports v Expeditors International Pty Ltd [2006] FCA 26
Outcome: cited
The purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of the taxation process: Beach Petroleum v LV Johnson (1995) 57 FCR 119 at 120. An order that costs be assessed as a gross sum does not require that any process similar to that involved in taxation should take place. However, the power must be exercised judicially and after giving the parties adequate opportunity to make submissions on the matter: Ualesi t/a Australian Empire Imports v Expeditors International Pty Ltd [2006] FCA 26.
Case: Laurie v Carroll [1958] HCA 4 ; (1958) 98 CLR 310
Outcome: cited
There is authority for the proposition that no order for substituted service should be made in relation to a person out of the jurisdiction who has not been the subject of an order for leave to serve out of the jurisdiction: Laurie v Carroll [1958] HCA 4 ; (1958) 98 CLR 310 at 329. 20 The ACCC submitted that an order for substituted service can be made against a defendant who was out of the jurisdiction when the proceedings were issued but in relation to whom an order for service out of the jurisdiction has, or could have, been made. At this point the document to be served on Mr Yeo is a motion for his joinder. It is not the originating process itself. 21 In Australian Securities and Investments Commission v Sweeney (No 2) (2001) 38 ACSR 743, Austin J referred to what the High Court said in Laurie [1958] HCA 4 ; 98 CLR 310 and in particular a passage in which the Court stated at 333-334: In all these circumstances the substance of the matter was that, unless the case could be brought within O XI or the Service and Execution of Process Act , a contingency that must have appeared very dubious, the Supreme Court by ordering substituted service was really asserting a jurisdiction over the defendant Laurie which otherwise it could not possess ...
Case: Australian Securities and Investments Commission v Sweeney (No 2) (2001) 38 ACSR 743
Outcome: cited
In Australian Securities and Investments Commission v Sweeney (No 2) (2001) 38 ACSR 743, Austin J referred to what the High Court said in Laurie [1958] HCA 4 ; 98 CLR 310 and in particular a passage in which the Court stated at 333-334: In all these circumstances the substance of the matter was that, unless the case could be brought within O XI or the Service and Execution of Process Act , a contingency that must have appeared very dubious, the Supreme Court by ordering substituted service was really asserting a jurisdiction over the defendant Laurie which otherwise it could not possess ... 22 Austin J in Sweeney (No 2) 38 ACSR 743 referred to the passage quoted in the High Court and said: In this passage their Honours acknowledged the proposition that substituted service cannot be ordered if direct personal service is not available in the circumstances and the corollary, that if under the rules direct personal service could have been effected, although the defendant was outside the jurisdiction, then substituted service is also permissible.
Case: Australian Competition &amp; Consumer Commission v Chaste Corporation Pty Ltd (in liq) [2002] FCA 1183
Outcome: cited
Sweeney (No 2) 38 ACSR 743 was applied by Drummond J in Australian Competition &amp; Consumer Commission v Chaste Corporation Pty Ltd (in liq) [2002] FCA 1183.
Case: Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd [1998] FCA 1150
Outcome: cited
I also have regard to the observations of Nicholson J in Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd [1998] FCA 1150 and The Swan Brewery Co Ltd v Atlee [1998] FCA 277. See also Commissioner of Taxation v Ma [1999] FCA 1093 ; (1999) 92 FCR 569 where Emmett J observed that where respondents are out of Australia it is not appropriate to consider an order under O 7, r 9 for substituted service unless some leave is at least obtained to serve the proceedings outside the jurisdiction pursuant to O 8.
Case: The Swan Brewery Co Ltd v Atlee [1998] FCA 277
Outcome: cited
I also have regard to the observations of Nicholson J in Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd [1998] FCA 1150 and The Swan Brewery Co Ltd v Atlee [1998] FCA 277. See also Commissioner of Taxation v Ma [1999] FCA 1093 ; (1999) 92 FCR 569 where Emmett J observed that where respondents are out of Australia it is not appropriate to consider an order under O 7, r 9 for substituted service unless some leave is at least obtained to serve the proceedings outside the jurisdiction pursuant to O 8.
Case: Commissioner of Taxation v Ma [1999] FCA 1093 ; (1992) 92 FCR 569
Outcome: cited
I also have regard to the observations of Nicholson J in Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd [1998] FCA 1150 and The Swan Brewery Co Ltd v Atlee [1998] FCA 277. See also Commissioner of Taxation v Ma [1999] FCA 1093 ; (1999) 92 FCR 569 where Emmett J observed that where respondents are out of Australia it is not appropriate to consider an order under O 7, r 9 for substituted service unless some leave is at least obtained to serve the proceedings outside the jurisdiction pursuant to O 8.
Case: Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 
Outcome: cited
Second, the applicant contends that a duty to act in good faith should also be implied into the Mentone BSA generally, or into the right to terminate specifically. The general duty is said to include an obligation of full and frank disclosure of all matters relevant to the implementation of the agreement. The applicant submits that the term is to be implied ad hoc, and as a matter of law. See Renard ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 190-98 per Finn J; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR |P41-703; Central Exchange Ltd v Anaconda Nickel Ltd (2001) 24 WAR 382; GEC Marconi Systems v BHP-IT [2003] FCA 50 ; (2003) 128 FCR 1 at [920] per Finn J; and Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [61] - [65] per Finkelstein J. I note that the latter case was the subject of a Full Court appeal in which judgment was given following the hearing of this proceeding. However, the majority of the Full Court did not deal with the findings of the primary judge in relation to the implied duty of good faith in the exercise of a termination right: see Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 at [119] per Finn and Sundberg JJ.
Case: BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] HCA 40 ; (1977) 180 CLR 266
Outcome: referred to
First, the applicant says that the Mentone BSA contained an implied term not to deprive a party of the benefit of that agreement. The applicant submits that this term should be implied by operation of law or, alternatively, on an ad hoc basis. I understand that latter category of implied term to refer to what is sometimes described as an "implication of fact", and to which the rules laid down in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] HCA 40 ; (1977) 180 CLR 266 (" BP Refinery ") and Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337 (" Codelfa ") apply. 212 The applicant also relies upon two implied terms it submits constitute part of the litigation agreement. The first term is the same term implied into the Mentone BSA, namely an obligation not to deprive a party of the benefit of an agreement. The second term is an implied term requiring each party to provide full and frank disclosure of any matter relevant to the Supreme Court proceedings. This term is said to be implied by operation of law as a concomitant of the duty to act faithfully or, alternatively, on an ad hoc basis. See BP Refinery and Codelfa .
Case: Central Exchange Ltd v Anaconda Nickel Ltd (2001) 24 WAR 382
Outcome: cited
Second, the applicant contends that a duty to act in good faith should also be implied into the Mentone BSA generally, or into the right to terminate specifically. The general duty is said to include an obligation of full and frank disclosure of all matters relevant to the implementation of the agreement. The applicant submits that the term is to be implied ad hoc, and as a matter of law. See Renard ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 190-98 per Finn J; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR |P41-703; Central Exchange Ltd v Anaconda Nickel Ltd (2001) 24 WAR 382; GEC Marconi Systems v BHP-IT [2003] FCA 50 ; (2003) 128 FCR 1 at [920] per Finn J; and Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [61] - [65] per Finkelstein J. I note that the latter case was the subject of a Full Court appeal in which judgment was given following the hearing of this proceeding. However, the majority of the Full Court did not deal with the findings of the primary judge in relation to the implied duty of good faith in the exercise of a termination right: see Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 at [119] per Finn and Sundberg JJ.
Case: Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337
Outcome: referred to
First, the applicant says that the Mentone BSA contained an implied term not to deprive a party of the benefit of that agreement. The applicant submits that this term should be implied by operation of law or, alternatively, on an ad hoc basis. I understand that latter category of implied term to refer to what is sometimes described as an "implication of fact", and to which the rules laid down in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] HCA 40 ; (1977) 180 CLR 266 (" BP Refinery ") and Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337 (" Codelfa ") apply. 212 The applicant also relies upon two implied terms it submits constitute part of the litigation agreement. The first term is the same term implied into the Mentone BSA, namely an obligation not to deprive a party of the benefit of an agreement. The second term is an implied term requiring each party to provide full and frank disclosure of any matter relevant to the Supreme Court proceedings. This term is said to be implied by operation of law as a concomitant of the duty to act faithfully or, alternatively, on an ad hoc basis. See BP Refinery and Codelfa .
Case: Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) formerly Franklins Management Services Pty Ltd [2005] FCA 1011
Outcome: referred to
In May 2005, the applicant settled its claims against Coles, and the Lessor. It did not, however, resolve its claims against Franklins. In June 2005, Franklins, somewhat belatedly, sought leave to bring cross-claims against Coles and the Lessor. Such leave was refused: Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) formerly Franklins Management Services Pty Ltd [2005] FCA 1011. 17 In its final incarnation, the application before me against the remaining respondents, the two Franklins parties, is an application for damages for breach of contract, breach of s 52 of the TPA, and breach of fiduciary duty. 18 The applicant's claims for breach of contract arise from two agreements. The first agreement is a business sale agreement dated 8 August 2001 between Franklins on the one hand, and the applicant and Mr Blake on the other. It will be convenient to describe this business sale agreement as "the Mentone BSA". The second agreement, which was said to be partially written, and partially oral, was entered into on or about 28 September 2001. That agreement, between Franklins and the applicant, involved them in jointly bringing proceedings, in the Supreme Court of Victoria, against the Lessor for unreasonably withholding consent to the assignment of the lease of the Mentone store to the applicant. For convenience sake, I will refer to this agreement as "the litigation agreement".
Case: Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537
Outcome: referred to
On 19 December 2003, I gave a judgment in relation to an application by the applicant for leave to amend its statement of claim: Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Further background to these proceedings is set out in those reasons for judgment. That decision was appealed to the Full Court: Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169. The effect of the Full Court's decision was that the applicant was able to plead claims of conspiracy as between Franklins Limited and Coles (in addition to its claim of tortious conspiracy as between Coles and the Lessor).
Case: Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169
Outcome: referred to
On 19 December 2003, I gave a judgment in relation to an application by the applicant for leave to amend its statement of claim: Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Further background to these proceedings is set out in those reasons for judgment. That decision was appealed to the Full Court: Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169. The effect of the Full Court's decision was that the applicant was able to plead claims of conspiracy as between Franklins Limited and Coles (in addition to its claim of tortious conspiracy as between Coles and the Lessor).
Case: Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR |P41-703
Outcome: cited
Second, the applicant contends that a duty to act in good faith should also be implied into the Mentone BSA generally, or into the right to terminate specifically. The general duty is said to include an obligation of full and frank disclosure of all matters relevant to the implementation of the agreement. The applicant submits that the term is to be implied ad hoc, and as a matter of law. See Renard ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 190-98 per Finn J; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR |P41-703; Central Exchange Ltd v Anaconda Nickel Ltd (2001) 24 WAR 382; GEC Marconi Systems v BHP-IT [2003] FCA 50 ; (2003) 128 FCR 1 at [920] per Finn J; and Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [61] - [65] per Finkelstein J. I note that the latter case was the subject of a Full Court appeal in which judgment was given following the hearing of this proceeding. However, the majority of the Full Court did not deal with the findings of the primary judge in relation to the implied duty of good faith in the exercise of a termination right: see Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 at [119] per Finn and Sundberg JJ.
Case: GEC Marconi Systems v BHP-IT [2003] FCA 50 ; (2003) 128 FCR 1
Outcome: cited
Second, the applicant contends that a duty to act in good faith should also be implied into the Mentone BSA generally, or into the right to terminate specifically. The general duty is said to include an obligation of full and frank disclosure of all matters relevant to the implementation of the agreement. The applicant submits that the term is to be implied ad hoc, and as a matter of law. See Renard ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 190-98 per Finn J; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR |P41-703; Central Exchange Ltd v Anaconda Nickel Ltd (2001) 24 WAR 382; GEC Marconi Systems v BHP-IT [2003] FCA 50 ; (2003) 128 FCR 1 at [920] per Finn J; and Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [61] - [65] per Finkelstein J. I note that the latter case was the subject of a Full Court appeal in which judgment was given following the hearing of this proceeding. However, the majority of the Full Court did not deal with the findings of the primary judge in relation to the implied duty of good faith in the exercise of a termination right: see Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 at [119] per Finn and Sundberg JJ.
Case: Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41
Outcome: referred to
It is true that the parties in this case agreed to join together to procure the Lessor's consent to the assignment of the lease, including jointly commencing proceedings against the Lessor in the Supreme Court. However, the basis for those arrangements was a conditional , commercial, arms length agreement for the sale of a business from one party to another. While Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41 per Mason J at 99-100 makes clear that commercial transactions do not "stand outside the fiduciary regime", it does not follow that such transactions necessarily give rise to fiduciary obligations.
Case: Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151
Outcome: cited
Second, the applicant contends that a duty to act in good faith should also be implied into the Mentone BSA generally, or into the right to terminate specifically. The general duty is said to include an obligation of full and frank disclosure of all matters relevant to the implementation of the agreement. The applicant submits that the term is to be implied ad hoc, and as a matter of law. See Renard ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 190-98 per Finn J; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR |P41-703; Central Exchange Ltd v Anaconda Nickel Ltd (2001) 24 WAR 382; GEC Marconi Systems v BHP-IT [2003] FCA 50 ; (2003) 128 FCR 1 at [920] per Finn J; and Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [61] - [65] per Finkelstein J. I note that the latter case was the subject of a Full Court appeal in which judgment was given following the hearing of this proceeding. However, the majority of the Full Court did not deal with the findings of the primary judge in relation to the implied duty of good faith in the exercise of a termination right: see Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 at [119] per Finn and Sundberg JJ.
Case: Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288
Outcome: cited
Second, the applicant contends that a duty to act in good faith should also be implied into the Mentone BSA generally, or into the right to terminate specifically. The general duty is said to include an obligation of full and frank disclosure of all matters relevant to the implementation of the agreement. The applicant submits that the term is to be implied ad hoc, and as a matter of law. See Renard ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 190-98 per Finn J; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR |P41-703; Central Exchange Ltd v Anaconda Nickel Ltd (2001) 24 WAR 382; GEC Marconi Systems v BHP-IT [2003] FCA 50 ; (2003) 128 FCR 1 at [920] per Finn J; and Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [61] - [65] per Finkelstein J. I note that the latter case was the subject of a Full Court appeal in which judgment was given following the hearing of this proceeding. However, the majority of the Full Court did not deal with the findings of the primary judge in relation to the implied duty of good faith in the exercise of a termination right: see Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 at [119] per Finn and Sundberg JJ.