mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: McCathie v Federal Commissioner of Taxation [1944] HCA 9 ; (1944) 69 CLR 1
Outcome: applied
The Commissioner contended that it appeared to be Mr Nicodimou's view that the relevant valuation principles positively forbade him from considering any information that post-dated 1 July 2000 in order to ascertain the market value of the strata units as at 1 July 2000. I agree that, if Mr Nicodimou held this view, it would be a fundamentally incorrect view: see, eg, McCathie v Federal Commissioner of Taxation [1944] HCA 9 ; (1944) 69 CLR 1 , 16-17; Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 , 436; and Closer Settlement 17 LGR (NSW) 62.
Case: Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426
Outcome: applied
The Commissioner contended that it appeared to be Mr Nicodimou's view that the relevant valuation principles positively forbade him from considering any information that post-dated 1 July 2000 in order to ascertain the market value of the strata units as at 1 July 2000. I agree that, if Mr Nicodimou held this view, it would be a fundamentally incorrect view: see, eg, McCathie v Federal Commissioner of Taxation [1944] HCA 9 ; (1944) 69 CLR 1 , 16-17; Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 , 436; and Closer Settlement 17 LGR (NSW) 62.
Case: Port Stephens Shire Council v Tellamist Pty Ltd (2004) NSWCA 353
Outcome: applied
The methodology was also explained by Roper J (as he then was) in Closer Settlement Ltd v The Minister (1942) 17 LGR (NSW) 62 (at 65): In arriving at the value of land which is suitable for subdivision a familiar and appropriate method ... is to estimate from whatever comparable sales of land in subdivision are available the price which would be realized by the land when sold; then to estimate the costs involved in the subdivision and the length of time that the realization would take, making provision for the payment of rates and for interest on money outstanding; and an estimated net return on the subdivision is obtained. It is of course clear that a person purchasing land in globo for the purpose of subdividing it would not pay the sum of money which is the present equivalent of that estimated return. Many factors in the calculation are speculative: the land in subdivision may not realize the prices which are at present expected, and the subdivision may take longer to realize than is at present anticipated. To compensate for the risk involved in the venture the purchaser would certainly discount the estimated returns. See also Port Stephens Shire Council v Tellamist Pty Ltd (2004) NSWCA 353 at [225] - [229] .
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355
Outcome: applied
This approach involves an analysis of the construction of the GST Act, and the result of any non-compliance being determined by reference to that construction: see, eg, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 , 390-91; and Tasker v Fullwood [1978] 1 NSWLR 20, 23-4.
Case: R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32 ; (1979) 180 CLR 322
Outcome: applied
The parties referred to a number of cases on various aspects of the operation of the GST Act and the Determination. The Commissioner submitted that the leading case on the meaning of statutory provisions that require the relevant person to 'have regard to' certain matters is R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32 ; (1979) 180 CLR 322. That case dealt with sub-s 40AA(7) of the National Health Act 1953 (Cth) which provided: The Permanent Head shall, in determining the scale of fees ... have regard to costs necessarily incurred in providing nursing home care in the nursing home. 29 Equally the valuer 'must' have regard to three matters: the market value of the completed premises; the cost to complete the partly completed premises; and the profit margin and holding costs that are attributable to the period on or after the valuation date. Further, these matters would need to be given appropriate weight as important or essential elements in the making of the valuation: see R v Hunt [1979] HCA 32 ; 180 CLR 322 , 329. If the valuer did not have regard to these three matters, nor give them appropriate weight, then the language of s 75-10(3) and purpose for the valuation coming into existence, indicate that the valuation would be invalid and of no operation for the purposes of the Determination. 30 However, just because another valuer may come to a different valuation figure does not mean that the valuation relied on may not be in compliance with the requirements of s 75-10(3) and the Determination. Within any valuation there will be matters of subjective judgement undertaken by the professional valuer based upon his or her expertise and experience. 31 The fact that there may be matters of subjective analysis undertaken is encompassed and envisaged by the Determination which relies upon a professional valuer undertaking the task and coming to a valuation. However, in reaching the final valuation, the professional valuer must not deviate from the method of valuation dictated by the terms of the Determination. In this proceeding, the hypothetical development method of valuation was in fact adopted, and was the appropriate method as required by the Determination. To the extent that there are judgement calls to be made within the application of that method, then this would be a matter for the valuer's professional expertise upon which minds may differ in arriving at a particular value.
Case: River Bank Pty Ltd v Commonwealth (1974) 48 ALJR 483
Outcome: cited
Undoubtedly, the 'conventional valuation technique' is the use of comparable sales evidence to determine market value (see River Bank Pty Ltd v Commonwealth (1974) 48 ALJR 483 , 484 per Stephen J). However, this may not be an appropriate method of valuation in any given case. Certainly it was not the valuation technique adopted, nor to be adopted, for the purpose of the valuation the subject of this proceeding.
Case: Rondo v R [2001] NSWCCA 540 ; (2001) 126 A Crim R 562 
Outcome: cited
In view of the above reasons, I have not needed to address whether the cumulative effect of each failure to comply with the Determination could lead to a conclusion of invalidity, rather than taking each failure to comply in isolation. In any given case, this issue may arise: see, eg, Rondo v R [2001] NSWCCA 540 ; (2001) 126 A Crim R 562 at 570-71 per Spigelman CJ. 76 Accordingly, the taxpayer's application should be dismissed. 77 No order as to costs is sought as the parties have entered into a funding agreement under the Commissioner's Test Case Funding Program. I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 18 December 2008 Counsel for the Applicant: Mr J De Wijn QC with Mr M Flynn Solicitor for the Applicant: Arnold Bloch Leibler Counsel for the Respondent: Mr S Sharpley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 October 2008 Date of Judgment: 18 December 2008 ANNEXURE AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1918.html
Case: Tasker v Fullwood [1978] 1 NSWLR 20
Outcome: applied
This approach involves an analysis of the construction of the GST Act, and the result of any non-compliance being determined by reference to that construction: see, eg, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 , 390-91; and Tasker v Fullwood [1978] 1 NSWLR 20, 23-4.
Case: The Queen v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69 ; (1982) 158 CLR 327
Outcome: cited
Mason J (as he then was, with Gibbs J (as he then was) agreeing) said (at 329): When sub-s (7) directs the Permanent Head to "have regard to" the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination. The Commissioner also referred to The Queen v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69 ; (1982) 158 CLR 327 , 333 per Gibbs CJ and Faheem Khalid Lodhi v R [2007] NSWCA 360 , at [30] per Spigelman CJ.
Case: Arrowcrest Group Pty Limited v DTM Racing Wheels Pty Limited [2003] FCA 564
Outcome: referred to
Her Honour referred to the fact that the Federal Court is a national court and that the court has power under Order 30 rule 6(2) to minimise inconvenience by ordering that part of the proceeding be heard in Brisbane. That was a consideration to which Mansfield J referred in Arrowcrest Group Pty Limited v DTM Racing Wheels Pty Limited [2003] FCA 564 at [4] . 31 His Honour there pointed out that it is not uncommon that the court in the exercise of its power, and having regard to the convenience of the parties or witnesses and the most efficient and economic means of conducting a trial to direct that part of the trial be heard in another place.
Case: Austal Ships Pty Ltd v Stena Rederi Aktiebolag [2004] FCA 302
Outcome: cited
In Austal Ships Pty Ltd v Stena Rederi Aktiebolag [2004] FCA 302 at [9] , Crennan J observed that there is need on the part of an applicant to demonstrate "a sound reason" for the proceedings to be conducted or continued elsewhere. 16 Mr Gillard for the applicant accepts that it is necessary for him to demonstrate that there is a sound or good reason. What Mr Gillard puts in this case as the good reason for transfer is, in his submission, the fact that the communications between the parties for the establishment of what is said to be the joint venture consists of documents which were communicated between the respondent's offices in Brisbane and the applicant's offices in the United States. Accordingly, all of the respondent's documents are now located in Brisbane. 17 It is possible that some of the documents were originally in Darwin, which is where the project was undertaken, but the evidence establishes, as I understand it, that any documents of the respondents that were located in Darwin are now to be found in Brisbane. 18 Mr Gillard points to the fact that in the application the applicant seeks an order for inspection of all relevant documents which are defined in very wide terms in a note to the application. These documents are documents which concern the profits made from what is said to be the joint venture between the parties. There is further reference to this in [20] of the statement of claim, which pleads that the applicant has suffered loss and damage and states in the particulars that particulars will be provided after access is given to the relevant documents as defined in the broad terms which I have mentioned in the application. 19 Mr Gillard says that the interlocutory steps in the proceeding would be more conveniently carried out if the proceedings are transferred to Brisbane. He says that this is demonstrated by the need for the inspection of the documents which I have mentioned.
Case: Inverness Medical Switzerland GMBH v Advanced Clinical Systems Pty Limited [2002] FCA 1261
Outcome: referred to
On the other hand, in Inverness Medical Switzerland GMBH v Advanced Clinical Systems Pty Limited [2002] FCA 1261 , Stone J, in circumstances which are quite similar to the present case declined to exercise the discretion under s 48. Her Honour observed at [5] that the relative inconvenience for the parties seemed to be finely balanced. That seems to me to be the position in the present case.
Case: National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155
Outcome: applied
The principles upon which the discretion is to be exercised in an application under s 48 were stated by a Full Court in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 (" Sentry "). The decision in that case has been followed on numerous occasions. 14 The Court referred at 162 to the unfettered nature of the discretion and pointed out that the discretion should be exercised flexibly having regard to the circumstances of the particular case. Their Honours observed that there is no onus of proof in the strict sense to be discharged; the court must be satisfied that there is sound reason to direct that the proceedings be conducted or continued elsewhere. Weight is to be given to the fact that the proceedings have been commenced in the proper place, which in this case is in Sydney. However, if the proper place has been chosen capriciously then no weight will be given to the choice of the proper place of the proceedings. The test was stated at page 162 as follows: "The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not be defined more closely or precisely." 28 However, in that case, all of the parties were residents of Victoria and his Honour went on to find at [13] that in the absence of any indication of a substantive connection with New South Wales, it was in the interests of justice and in the interests of the most effective administration of the court within the principles stated in Sentry that the proceedings be removed to the Victorian Registry pursuant to s 48 of the Act. 34 I have given the matter very careful consideration and I consider that notwithstanding the fact that the documents of the respondents are presently in Brisbane and will have to be transported to New South Wales, from the material so far put before me, the case can be most suitably conducted in New South Wales in the interests of all the parties and in the interests of the ends of justice and the most efficient administration of the court, consistently with the statement of principle referred to in Sentry at 162. 35 Accordingly, I have come to the view that the order I will make is that the motion be dismissed. 36 I will make an order that the costs of the motion be the applicant's costs in the proceedings. I certify that the preceding thirty six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 10 April 2006 Solicitor for the Applicant: Clayton Utz Solicitor for the Respondent: Hemming + Hart Date of Hearing: 6 April 2006 Date of Judgment: 6 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/399.html
Case: Wilson v Rambaldi [2001] FCA 1038
Outcome: referred to
In Wilson v Rambaldi [2001] FCA 1038 (" Wilson v Rambaldi "), Tamberlin J exercised the court's power under s 48 to change the venue from New South Wales to Victoria. He pointed at [11] to the fact that the evidence did not establish any relevant connection of the matter with New South Wales with the exception of an assertion that it was not possible to obtain legal representation in Victoria. 32 These proceedings are at a very early stage. The respondents have not yet filed their defence and no evidence is before me on the applicant's case. It seems to me that the considerations which led Tamberlin J to exercise the discretion under s 48 in favour of a change of venue in Wilson v Rambaldi are not present here. This is because, as I have said, in that case all of the parties were resident in Victoria. 33 Here, the applicant has a presence in New South Wales and the choice of venue is not capricious. Accordingly, the considerations which led Tamberlin J in Wilson v Rambaldi to find an absence of any substantive connection with New South Wales are not present here.
Case: Castlemaine Tooheys Limited v State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148
Outcome: followed
Castlemaine Tooheys Limited v State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 , Mason A-CJ said at 153 that in order to secure an interlocutory injunction in private law cases: "The plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted and (3) that the balance of convenience requires the granting of an injunction." See also Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at 24; Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96 at 121-122.
Case: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1
Outcome: cited
Castlemaine Tooheys Limited v State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 , Mason A-CJ said at 153 that in order to secure an interlocutory injunction in private law cases: "The plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted and (3) that the balance of convenience requires the granting of an injunction." See also Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at 24; Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96 at 121-122.
Case: Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96
Outcome: cited
Castlemaine Tooheys Limited v State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 , Mason A-CJ said at 153 that in order to secure an interlocutory injunction in private law cases: "The plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted and (3) that the balance of convenience requires the granting of an injunction." See also Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at 24; Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96 at 121-122.
Case: Queensland v JL Holdings [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: cited
It was said from the Bar table that Deltapine made a conscious decision not to raise this particular claim until late last year. I agree with counsel for Bayer that the decision of the High Court in Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 does not mean that parties have a right to withhold amendments or other procedural steps to suit their tactical assessments of the case. Even by the standards of patent litigation in this country, which sometimes are the subject of criticism, this case has been very drawn out. It has been on foot since 2003. Any insertion of a totally new claim or defence needs to have some sound basis, which in my opinion has not been shown in this case. 7 The motion on notice dated 9 March 2007 will be dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 21 March 2007 Counsel for the Applicant: A Ryan Solicitor for the Applicant: Davies Collison Cave Counsel for the Respondent: S Burley Solicitor for the Respondent: Mallesons Stephen Jaques Date of Hearing: 15 March 2007 Date of Judgment: 15 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/411.html
Case: Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241
Outcome: cited
Both parties were in agreement that cl 38 incorporated by reference the provisions of the LSL Act, and did not merely preserve their operation as part of the law of Victoria. The fact that the provisions to which cl 38 refers are only those applying at the time of certification of the Certified Agreement suggests strongly that the intention of cl 38 was to give those provisions operation as part of the Certified Agreement, rather than to recognise their continued operation as part of the law of Victoria, in the absence of a federal instrument covering the relevant field. Compare Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241 at 261-265 per Gray J.
Case: Queen in Right of the State of Victoria v Australian Teachers Union (1993) 47 IR 328
Outcome: cited
The arguments resting on the exhaustive nature of the definition in cl 28 of the Certified Agreement, and the presumption of consistency in the use of terms are weakened substantially in the present case. It is true that the definition in cl 28 is unqualified by words such as 'unless a contrary intention appears' or 'unless the context otherwise requires'. It is a 'means', and not an 'includes' definition, and is therefore taken to be exhaustive. See the Queen in Right of the State of Victoria v Australian Teachers Union (1993) 47 IR 328 at 332. The difficulty is that cl 38 does not itself use the defined term; rather, it imports provisions that use the same expression, but which also include a definition of that term as used. It is easy to construe cl 38 as involving the importation of provisions relating to long service leave as a code on that subject, the content of which does not have to fit within the framework of the rest of the Certified Agreement. It is as if the imported provisions contained a term other than 'ordinary pay', with a different meaning.
Case: Merchant Service Guild of Australia v Sydney Steam Collier Owners &amp; Coal Stevedores Association (1958) 1 FLR 248
Outcome: cited
Counsel for the applicant contended that the past conduct of the parties could be relied upon as an aid in the construction of the Certified Agreement. There is authority that, if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement. See Merchant Service Guild of Australia v Sydney Steam Collier Owners &amp; Coal Stevedores Association (1958) 1 FLR 248 at 251 per Spicer CJ, 254 per Dunphy J and 257 per Morgan J, and Printing &amp; Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 452-453. It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning. See Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11 at [44] .