mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Queensland Aggregates Pty. Ltd. and Another v Trade Practices Commission (1981) 57 FLR 314
Outcome: followed
As discussed above, for the applicants to succeed in a claim under s 51AC of the Act the services provided by AIA to the applicants must be in connection with the supply or possible supply of services to the applicants. The Court accepts AIA's submission that the principal 'right' acquired by the applicants under the various agreements is the right to be paid remuneration in the form of commissions and other benefits. In Queensland Aggregates Pty. Ltd. and Another v Trade Practices Commission (1981) 57 FLR 314 at 319 the Full Court held that a payment of money does not comprise a supply of services under the Act. Such 'right' to remuneration is not a connecting factor for the purposes of s 51AC(1)(a) of the Act. Accordingly the requirements of s 51AC have not been met. 139 As such the applicants have not made out their claim under either ss 51A, 51AA or 51AC of the Act and the Court dismisses the application with costs. I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 12 March 2008 Counsel for the Applicant: I. G. Archibald Solicitor for the Applicant: Accentro Legal Counsel for the Respondent: M.A. Jones Solicitor for the Respondent: Ebsworth &amp; Ebsworth Dates of Hearing: 27 31 August, 3 6 September, 10 14 September, 19 21 September, 4 6 December 2007 Date of Judgment: 12 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/39.html
Case: Watson v Foxman and Others (1995) 49 NSWLR 315
Outcome: followed
The Court is required to distil from the facts a version of the events which it considers is established by the evidence. In doing so the Court refers to the observations of McLelland CJ in Watson v Foxman and Others (1995) 49 NSWLR 315 at 318-9, cited with approval in Lahoud &amp; Ors. v Lahoud &amp; Anor. [2006] NSWCA 169 at [91] . With regards to allegations of misleading and deceptive conduct claimed to be within s 52 of the Act, his Honour said at 318: ... it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. See also Ingot Capital Investments Pty Ltd and Others v Macquarie Equity Capital Markets Ltd and Others (No 6) (2007) 63 ACSR 1 at 107. 90 McLelland CJ in Foxman 49 NSWLR 315 also observed at 319 that 'in the absence of some reliable contemporaneous record or other satisfactory corroboration' an applicant who relies upon spoken words as a basis for an allegation of misrepresentation or unconscionable conduct may encounter 'serious difficulties of proof' .
Case: Brash Holdings Limited (Administrator appointed) v Katile Pty Ltd [1996] 1 VR 24
Outcome: followed
The submission that the expression "creditors" should be limited to persons to whom the Company was indebted as at the date the notices were sent out or published under s 439A(3) is also inconsistent with the reasoning of the Appeal Division of the Supreme Court of Victoria in Brash Holdings Limited (Administrator appointed) v Katile Pty Ltd [1996] 1 VR 24. In that case the Court had before it for consideration the provisions of Pt 5.3A of the Corporations Law, the predecessor of the present Pt 5.3A of the Act which, for all relevant purposes, was in the same form as the current Pt 5.3A. The administrators of a group of companies had sought declarations as to which creditors of a company were bound by the deed of company arrangement. The relevant enquiry focused on s 444D of the Corporations Law. The Court said at 31-32: "In our opinion, the reference to 'all creditors' in s.444D(1) must be read and understood in the context of all other references to "creditors" in Pt.5.3A. What has so far been described is sufficient to show that the general scheme of the Part is to involve the company's creditors, without further limitation or description. The word "creditors" should, in the absence of any good reason otherwise, be read as used in the same sense throughout Pt.5.3A, and it is difficult to suppose that sections, drawn so widely as, for instance, s.435A (describing the object of the Part) had in mind anything less than all of the creditors for the time being of the company." The Court said further at 33: "Once it is decided, for the reasons we have given, that the expression 'all creditors' in s.444D(1) should not be confined to those having claims for money sums due and payable on or before the day specified in the deed, we see no alternative but to treat the creditors of the company for the purposes of Pt.5.3A as those who would have been creditors had the company gone into liquidation and the relevant date for the purposes of s.553 been the day specified in the deed." 38 The reasoning in Brash Holdings Limited (Administrator appointed) v Katile Pty Ltd (supra) was adopted and followed in Selim v McGrath (2003) 177 FLR 85. Barrett J considered that for the purposes of s 439A creditors in a voluntary administration under Pt 5.3A of the Act were all persons who had debts or claims against a company provable in its winding up and said, at 105: "The boundaries are therefore those set by s 553(1) which refers to 'all debts payable by, and all claims against, the company (present or future, certain or contingent, ascertained or sounding only in damages) ...".
Case: Selim v McGrath (2003) 177 FLR 85
Outcome: cited
The reasoning in Brash Holdings Limited (Administrator appointed) v Katile Pty Ltd (supra) was adopted and followed in Selim v McGrath (2003) 177 FLR 85. Barrett J considered that for the purposes of s 439A creditors in a voluntary administration under Pt 5.3A of the Act were all persons who had debts or claims against a company provable in its winding up and said, at 105: "The boundaries are therefore those set by s 553(1) which refers to 'all debts payable by, and all claims against, the company (present or future, certain or contingent, ascertained or sounding only in damages) ...".
Case: Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (subject to Deed of Company Arrangement) (2001) 37 ACSR 394
Outcome: cited
The expression "injustice" in s 445D(1)(e) is of wide import. As Austin J pointed out in Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (subject to Deed of Company Arrangement) (2001) 37 ACSR 394 at 430: "The case law does not provide any significant assistance as to the meaning of this provision [subpar (e) of s 445D(1)]." What is important to recognise is that it is the "effect" of the deed rather than the purpose of the deed which is to be considered and taken into account: Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (supra) at 430; Mondello Farms Pty Ltd v Annatom Pty Ltd (subject to Deed of Company Arrangement) [2007] SASC 296 at [112] . In the context of s 445D(1)(e) I consider that I should ask whether the effect of the Deed is unfair or inequitable in the impact it has upon one or more of the creditors bound by it.
Case: Re AFG Insurances Ltd [2002] NSWCA 803
Outcome: followed
Re AFG Insurances Ltd [2002] NSWCA 803 at [5] and [9]-[11], Barrett J considered a number of authorities which have dealt with the question of the time to be extended for convening the meeting, particularly bearing in mind administrations of some complexity. The authorities to which his Honour referred indicate that in certain cases, an extension of up to five months has been granted. I am mindful of what Barrett J said in AFG Insurances at [11]. His Honour emphasised that that was a special case with complications and difficulties which one would not expect to be encountered in the normal course and that every case must be approached on its merits without any particular reliance on what has happened in other cases. Nevertheless, this case does have some similarities to the considerations which arose in AFG Insurances . In particular, as I said earlier, BBL has no employees, no leases and no secured creditors. In substance the only substantial creditor of BBL is the 8000 noteholders for whom the trustee has been appointed. Accordingly, the question which often arises in these applications is not present here. That is to say, there appear to be no persons affected by the statutory moratorium who might wish to complain about the extension of time which is sought. I also, of course, take into account the fact that no objection was voiced at the first meeting of creditors, albeit that only approximately 100 noteholders were present and that not all of the 8000 noteholders attended that meeting. I also take into account that the trustee has not objected. There are, it appears, some other very minor creditors of BBL, but on the evidence before me these creditors appear to amount in value to approximately $200,000.
Case: Re Brash Holdings Ltd (1994) 13 ACSR 793
Outcome: referred to
are a substantial number of authorities dealing with the principles to be applied, many of which are referred to in the written submissions of the administrators. They include the decision of Lindgren J in Re Pan Pharmaceuticals Ltd [2003] FCA 598 ; (2003) 46 ACSR 77 at [41] and [42], and the decision of Hayne J in Re Brash Holdings Ltd (1994) 13 ACSR 793 at 794.
Case: Re Daisytek Australia Pty Ltd [2003] FCA 575 ; (2003) 45 ACSR 446
Outcome: followed
orders which are proposed take into account the form of the order made by Lindgren J in Re Daisytek Australia Pty Ltd [2003] FCA 575 ; (2003) 45 ACSR 446. His Honour there observed that it is desirable that there be an order permitting the meeting to be held before the end of the extended convening period, so that in this case, the administrators will have the ability to convene the meeting earlier than 17 August 2009 if they see the need to do so. Moreover, liberty to apply is granted to any person who can demonstrate sufficient interest to modify or discharge the orders that I will make today, upon appropriate notice being given to the administrators. For those reasons I propose to grant the extension which is sought. However, I would add this. Bearing in mind the careful consideration which has been given to the period of the extension, without of course wishing to fetter the discretion of a judge who may be called upon to do so, I would have some doubts as to whether it may be appropriate for any further extension to be granted. It seems to me that careful consideration has thus far been given to the required period of the extension, but there is always the need to balance the considerations which have been referred to in the authorities of the need to strike the appropriate balance between the speed of the administration and the ability of creditors and shareholders to maximise their return. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 15 April 2009 Solicitor for the Plaintiffs: Blake Dawson Date of Hearing: 8 April 2009 Date of Judgment: 8 April 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/349.html
Case: Re Diamond Press Australia Pty Limited [2001] NSWSC 313
Outcome: followed
principles applicable to the extension of the convening period prescribed by section 439A of the Act have been considered in a number of authorities. The authorities commence with a decision of Young J in Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 at 612. The principle referred to by Young J was also stated in Re Diamond Press Australia Pty Limited [2001] NSWSC 313 by Barrett J at [10]. His Honour observed that: The function of the Court on an application such as this is, as I see it, to strike an appropriate balance between, on the one hand, the expectation that the administration will be a relatively speedy and summary matter and, on the other, the requirement that undue speed should not be allowed to prejudice sensible and constructive actions directed toward maximising the return for creditors and any return for shareholders.
Case: Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611
Outcome: referred to
principles applicable to the extension of the convening period prescribed by section 439A of the Act have been considered in a number of authorities. The authorities commence with a decision of Young J in Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 at 612. The principle referred to by Young J was also stated in Re Diamond Press Australia Pty Limited [2001] NSWSC 313 by Barrett J at [10]. His Honour observed that: The function of the Court on an application such as this is, as I see it, to strike an appropriate balance between, on the one hand, the expectation that the administration will be a relatively speedy and summary matter and, on the other, the requirement that undue speed should not be allowed to prejudice sensible and constructive actions directed toward maximising the return for creditors and any return for shareholders.
Case: Mentha, in the matter of Hans Continental Small Goods Pty Ltd (Administrators Appointed) [2008] FCA 1933
Outcome: referred to
also referred to the difficulties which arise in determining the period to permit the appropriate period for an extension in Mentha, in the matter of Hans Continental Small Goods Pty Ltd (Administrators Appointed) [2008] FCA 1933 at [23] - [25] . It seems to me that I ought to take into account the careful consideration which has been given to this question by both of the administrators. It is plain that the administration is a complex one, bearing in mind in particular the size of the BBL Group and the substantial inquiries which the administrators need to pursue, including the need for legal advice.
Case: Pan Pharmaceuticals Ltd [2003] FCA 598 ; (2003) 46 ACSR 77
Outcome: referred to
are a substantial number of authorities dealing with the principles to be applied, many of which are referred to in the written submissions of the administrators. They include the decision of Lindgren J in Re Pan Pharmaceuticals Ltd [2003] FCA 598 ; (2003) 46 ACSR 77 at [41] and [42], and the decision of Hayne J in Re Brash Holdings Ltd (1994) 13 ACSR 793 at 794.
Case: Re Refugee Tribunal; Ex Parte H [2001] HCA 28 ; (2001) 75 ALJR 982
Outcome: cited
That was not a ground of challenge advanced before the learned Federal Magistrate. That in itself would not prevent a grant of leave to amend a notice of appeal in an appropriate case. In this instance, there is no evidence which would ground a claim either for actual or apprehended bias on the part of the member constituting the Tribunal in the material which comprised the record before the Federal Magistrates Court. There was no attempt to adduce further evidence, and thus no need to consider whether that exceptional course ought to be permitted. It suffices to note that the mere fact that a Tribunal chooses not to accept the claims made either in writing or orally for a protection visa does not in itself give rise to any basis for the setting aside of a Tribunal's decision on the basis of apprehended bias. More particularly, such a finding does not give rise to an objective possibility of bias, as that concept is described by the Full Court of the High Court in Re Refugee Tribunal; Ex Parte H [2001] HCA 28 ; (2001) 75 ALJR 982 at 983, para 5. 5 As a general comment, there is much force in the principal submission made on behalf of the Minister, which is that, as developed in oral argument, and as articulated in the notice of appeal, the Appellant has not engaged with the reasons for judgment of the Federal Magistrate so as to highlight where there is error in the reasoning of that Court. It is to be remembered that the function discharged by this Court is not that of the judicial review of a decision of the Tribunal, but rather the entertaining of an appeal on articulated grounds from the Federal Magistrates Court. 6 For all that, the Minister, by his counsel, very properly undertook the exercise of detailing, having regard to the notice of appeal, why it was that there was no error in the reasoning of the learned Federal Magistrate. In so doing, the assumption was made that the Appellant's case was that the learned Magistrate had erred in not accepting that the Tribunal's decision was flawed on one or more of the bases set out in the notice of appeal. That seems to me to be a fair way to approach the disposal of this appeal. What I therefore propose to do is, in short form, to deal with each of the bases of challenge set out in the notice of appeal.
Case: Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
Outcome: cited
Having studied the Tribunal's reasons, the adoption of that particular passage by the learned Federal Magistrate seems to me, with respect, to be both appropriate and indeed unremarkable. In this Court, attention was rightly drawn on behalf of the Minister to an observation made by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at para 67. His Honour there observed that conclusions that an Applicant was not credible and that his claims were fabricated were findings of fact "par excellence".
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
It bears repeating that it is no part of the function of the Federal Magistrates Court on a judicial review application, much less that of this Court when entertaining an appeal from that Court, to review on the merits the Tribunal's decision. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. There is no merit in ground 1. 13 Section 424A of the Migration Act 1958 makes provision for the highlighting to an Applicant of potentially adverse "information" and for the extension of an invitation to reply in respect of that information to the Applicant. The Tribunal sought to comply with that obligation as it apprehended it in a letter dated 16 July 2007, directed to the Appellant via his authorised recipient of information for the purposes of his review application. In that letter, the Tribunal provided the following particulars of information: &#8226; The Tribunal has before it your business visa application of 22 January 2007 and accompanying documents, submitted in Shanghai. The documents include an approval letter from a named company dated 18 January 2007 listing you as a finance director of that company, and a flight booking for you for 5 February 2007. &#8226; You stated on your protection visa application that as soon as you learned, in early February 2007, that you were again wanted, you went to Shanghai. Your protection visa application (and your passport) show that you obtained an Australian business visa in Shanghai on 2 February 2007, and that you departed China on 12 February 2007. &#8226; You indicated, on your protection visa application that you had difficulties leaving China. The only detail you gave was that "a friend" helped your travel arrangements. You left China on a passport in your own name. 14 The Tribunal continued, in its letter of 16 July 2007: This information is relevant because it suggests you left China in an orderly fashion, and not to flee persecution. It suggests that during January 2007 you were not organising protests in a named city, but rather making arrangements for your travel to Australia. It casts doubt on your claim that you travelled to Shanghai as you got news from a 'reliable source' that you were again wanted. Instead, you appear to have lodged your business visa application in Shanghai because the opportunity arose for you to present yourself as the finance director of a company in a named place, and because you had to travel to Shanghai to collect your Australian visa once it was ready on 2 February 2007. The above information suggests that, even after your visa was ready, you did not leave China for a further 10 days" [sic].
Case: Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd (1992) 34 FCR 287
Outcome: distinguished
Counsel for Lion Nathan submitted that the application for the stay should be considered by reference to the principles stated in the case of Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 ('Sterling Pharmaceuticals') . 34 Counsel did not submit that the proceedings in this Court should be stayed on the basis that the proceedings were otherwise an abuse of process or because they were vexatious or frivolous. 35 Counsel for Plantagenet submitted that the case of Sterling Pharmaceuticals was distinguishable because that case was concerned with two sets of proceedings one of which was in Australia and the other in New Zealand, and therefore beyond the scope of the cross-vesting scheme. Counsel for Plantagenet submitted that, in cases where the parties were amenable to the jurisdiction of the legislation comprising the national cross-vesting scheme, the scheme had ousted the common law principles on whether a court would stay its own proceedings on the basis of forum non conveniens. Counsel relied upon observations made by Ormiston JA in Schmidt v Won [1998] 3 VR 435 ('Schmidt') . 45 In the event that I am wrong in the views that I have expressed, I would decline to stay the Federal Court proceedings. This is because the appropriate test to apply in the circumstances is the test in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 and not in Sterling Pharmaceuticals (see BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 211 ALR 523 ('BHP Billiton') , the observations of Ormiston JA in Schmidt referred to above and Transport Workers' Union of Australia v Bentley [2001] FCA 671 ; (2001) 112 FCR 580). On the application of that test, it could not be said that the Western Australia District Registry of the Federal Court is a clearly inappropriate forum for Plantagenet to commence the Federal Court proceedings. Plantagenet's principal place of business is in Western Australia, the alleged breaches of the TP Act occurred in Western Australia and the alleged losses were suffered in Western Australia.
Case: Bankinvest AG v Seabrook (1988) 14 NSWLR 711
Outcome: applied
In the case of Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 438 ('Bankinvest') Rogers AJA rejected a submission of counsel in that case that the common law principles of forum non conveniens continued to exist concurrently with the cross-vesting legislation, and observed that 'the former has clearly been subsumed by s 5(2)(b)(iii) [of the Cross-Vesting Act].' 52 Gleeson CJ, McHugh and Heydon JJ in BHP Billiton at 527, at [13] quoted with approval the following observations by Street CJ in Bankinvest : 'The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice...It calls for what I might describe as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.'