mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Perpetual Nominees Ltd v Masri Apartments Pty Ltd (No 2513/04) [2004] NSWSC 551 ; (2004) 49 ACSR 719
Outcome: cited
459S has been the subject of considerable attention by the courts. As I understand the authorities, their effect is that the ground of opposition proposed must be such that it was actually not available to be asserted according to the facts and circumstances which existed at the time of the winding up: see, in this regard, Perpetual Nominees Ltd v Masri Apartments Pty Ltd (No 2513/04) [2004] NSWSC 551 ; (2004) 49 ACSR 719 at pages 722 to 723, para 9. In other words, the effect of s 459S is to prevent a party opposing a winding up application on a ground that the company could have relied on, for the purposes of setting aside a statutory demand, but did not so rely. If that ground was actually available, the prohibition in s 459S would be engaged.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 , (2000) 74 ALJR 405
Outcome: followed
Both Grounds 1 and 2 really seem to involve a contention that the learned Federal Magistrate should have conducted a merits review of the Tribunal's decision. This is the very thing which the Magistrate could not do (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 , (2000) 74 ALJR 405 at [67] ). 36 The third point concerns Mr Rogers. This is a new point. It was not argued before the Federal Magistrate. Her Honour could not have committed jurisdictional error in failing to consider it. 37 However, it seems fairly clear that the appellant attended the hearing before the Tribunal and was given every opportunity to deal with the concerns which the Tribunal had and, indeed, with the proceedings generally. It also seems likely that the handwritten fax dated 28 November 2007 was probably sent after the Tribunal's decision had been signed, although before it was delivered. In any event, the appellant became aware of the decision at about the time that the decision was delivered or very soon after. He also completed the necessary formalities to change his contact details with the Tribunal on 11 December 2007. He appears to have suffered no prejudice as a result of the facts and matters he put to me concerning Mr Rogers. 38 I am unable to see what relief could be granted to the appellant based upon the submissions which he has made and the evidence upon which he has relied in respect of Mr Rogers. 39 In summary, it seems to me, therefore, that there is no error in the reasoning of the Federal Magistrate which can be reviewed by this Court. Accordingly, I propose to dismiss the appeal with costs.
Case: Elliott v Minister for Immigration and Multicultural Affairs [2007] FCAFC 22 ; (2007) 156 FCR 559
Outcome: cited
The Minister submits that the Tribunal may refer to the Procedures Advice Manual 3, noting the observations of the Full Court in Elliott v Minister for Immigration and Multicultural Affairs [2007] FCAFC 22 ; (2007) 156 FCR 559 at 567, [23] [24]. Although not directly referred to by the Tribunal in this instance, Procedures Advice Manual 3 provides with regard to the effect of reg 1.15(1)(c)(ii): 'CONTACT WITH ONRS IN A DIFFERENT COUNTRY (INC. AUSTRALIA) 18.1 Ineligibility In regards to regulations 1.15(1)(c)(ii), an applicant is ineligible if they or their spouse (if applicable) has had contact with their ONR within a reasonable period before making the visa application. The regulation is worded so that it is up to the applicant to show that they and their spouse have not had any contact with their ONR/s.' (Emphasis in original) 22 This, the Minister submits, in particular the last line of the excerpt, would seem to support this construction. 23 The proposition that the requirement in reg 1.15(1)(c)(ii) is satisfied, in the case of an applicant who has two or three overseas near relatives, if the applicant has not had any contact with one of them within the relevant period, even if he has had regular contact with the other or others during that period, would, in my view, undermine the whole basis of the 'remaining relative' concept for a Subclass 115 visa. Read in context, that is, read in the context of reg 1.15 as a whole, the basis of the concept is that the visa applicant must not have more than three overseas near relatives even if he had not had contact with any of them during the relevant period: reg 1.15(1)(d); or if he has three or a lesser number of overseas near relatives, he only satisfies the requirement of reg 1.15(1)(c)(ii) if he has not had contact with any of them within the relevant period.
Case: Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 192 ; (2005) 145 FCR 564
Outcome: cited
As to the second contention, at [23] of his submissions, the applicant contends that the evidential burden on the applicant and the absence of language intending disqualification, mean that the matters at reg 1.15(a) (e) take on qualifying factors. To support this proposition the applicant cited French J (with whom Finn and Hely JJ agreed) in Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Hidalgo [2005] FCAFC 192 ; (2005) 145 FCR 564 at [12] . In Hidalgo , the Court was construing reg 1.15(1)(c)(i) which provides that remaining relative visas were only available to those applicants who 'usually resided in a country, not being Australia' that was different from a country in which their overseas near relative lived. French J said at [12]: 'In my opinion, reg 1.15(1)(c)(i) is intended to apply to the circumstance in which an applicant for the relevant visa has an overseas relative in another country. It is concerned with their geographical relationship when they both reside outside Australia. It is not a regulation which is intended to bring in, by a sidewind, a disqualifying criterion for the grant of such a visa based upon the circumstance that the applicant happens to have her only usual residence in Australia. In the event that the applicant usually resides in Australia only, then the criterion under reg 1.15(1)(c)(i) simply does not apply because the circumstances to which it is intended to apply do not arise.' (Emphasis added) 20 The Minister submits that the above passage makes clear that the applicant's contention that French J's remarks are of wholesale application to the regulation per se is untenable. First, French J was referring to reg 1.15(1)(c)(i) and secondly, the Minister submits that his Honour's observations are limited to the facts of the case to be decided.
Case: Kizbeau Pty Ltd v W G &amp; B Pty Limited [1995] HCA 4 ; (1995) 184 CLR 281
Outcome: cited
The second criticism is this. The respondents say the appellants have not established that any loss or damage was suffered and thus the cause of action fails. The criticism is put on this basis. In the action, each applicant claimed loss particular to that applicant ([12] herein). Oddly, the appellants by Order 3 of the notice of appeal all seek judgment against the first and second respondents for the aggregate damage of $3,208,705.20. That seems to be an inconsistent position. The respondents say that there was no dispute on the evidence that the first appellant completed the orchard purchase contract ( i.e. the Tiaro and Bundaberg Orchards), paid $3.1 million on settlement and borrowed $150,000.00 from the vendor (as part vendor finance) to complete settlement. The contract was signed by Mr Tracy on 16 January 2005 and completed by Citrus Queensland on 21 March 2005. The appellants as applicants at trial sought to establish, it is said, the "current value" of the orchards rather than the value at the date of contract or perhaps settlement. Thus, the appellants failed to strike the difference between the reliance price paid under the contract and the Kizbeau "real" or "true" or "intrinsic" value of the orchards at acquisition ( Kizbeau Pty Ltd v W G &amp; B Pty Limited [1995] HCA 4 ; (1995) 184 CLR 281 ; Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 ; HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640) taking account of all known matters relevant to that comparison at the date the assessment was carried out ( HTW Valuers [39]-[41], Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ).
Case: Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1
Outcome: cited
The second criticism is this. The respondents say the appellants have not established that any loss or damage was suffered and thus the cause of action fails. The criticism is put on this basis. In the action, each applicant claimed loss particular to that applicant ([12] herein). Oddly, the appellants by Order 3 of the notice of appeal all seek judgment against the first and second respondents for the aggregate damage of $3,208,705.20. That seems to be an inconsistent position. The respondents say that there was no dispute on the evidence that the first appellant completed the orchard purchase contract ( i.e. the Tiaro and Bundaberg Orchards), paid $3.1 million on settlement and borrowed $150,000.00 from the vendor (as part vendor finance) to complete settlement. The contract was signed by Mr Tracy on 16 January 2005 and completed by Citrus Queensland on 21 March 2005. The appellants as applicants at trial sought to establish, it is said, the "current value" of the orchards rather than the value at the date of contract or perhaps settlement. Thus, the appellants failed to strike the difference between the reliance price paid under the contract and the Kizbeau "real" or "true" or "intrinsic" value of the orchards at acquisition ( Kizbeau Pty Ltd v W G &amp; B Pty Limited [1995] HCA 4 ; (1995) 184 CLR 281 ; Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 ; HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640) taking account of all known matters relevant to that comparison at the date the assessment was carried out ( HTW Valuers [39]-[41], Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ).
Case: HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640
Outcome: cited
The second criticism is this. The respondents say the appellants have not established that any loss or damage was suffered and thus the cause of action fails. The criticism is put on this basis. In the action, each applicant claimed loss particular to that applicant ([12] herein). Oddly, the appellants by Order 3 of the notice of appeal all seek judgment against the first and second respondents for the aggregate damage of $3,208,705.20. That seems to be an inconsistent position. The respondents say that there was no dispute on the evidence that the first appellant completed the orchard purchase contract ( i.e. the Tiaro and Bundaberg Orchards), paid $3.1 million on settlement and borrowed $150,000.00 from the vendor (as part vendor finance) to complete settlement. The contract was signed by Mr Tracy on 16 January 2005 and completed by Citrus Queensland on 21 March 2005. The appellants as applicants at trial sought to establish, it is said, the "current value" of the orchards rather than the value at the date of contract or perhaps settlement. Thus, the appellants failed to strike the difference between the reliance price paid under the contract and the Kizbeau "real" or "true" or "intrinsic" value of the orchards at acquisition ( Kizbeau Pty Ltd v W G &amp; B Pty Limited [1995] HCA 4 ; (1995) 184 CLR 281 ; Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 ; HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640) taking account of all known matters relevant to that comparison at the date the assessment was carried out ( HTW Valuers [39]-[41], Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ).
Case: Netaf Pty Ltd &amp; Anor v Bikane Pty Ltd [1990] FCA 35 ; (1990) 92 ALR 490
Outcome: cited
The third appellant also claimed trading losses as damages. The respondents say that there are two fatal problems with that claim. First, the evidence did not establish that the claimed trading losses were suffered as a direct consequence of contravening conduct in the sense contemplated by Sheppard, Wilcox and Pincus JJ in Netaf Pty Ltd &amp; Anor v Bikane Pty Ltd [1990] FCA 35 ; (1990) 92 ALR 490 at 494 and secondly, the third appellant was in any event insolvent from incorporation and its guiding mind, Mr Tracy, had little experience in the industry on the evidence and findings at trial. 29 The appellants say that these observations about damages and evidence going to true value or otherwise at a relevant date were ultimately not the subject of thorough analysis by her Honour as her Honour elected not to deal with damages having made findings on other matters with the result that the application was to be dismissed.
Case: Yorke &amp; Anor v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
The third criticism is this. The respondents say that the appellants cannot succeed in the claim against Mr Strahley based upon s 75B of the Act because the relevant integers were not properly pleaded and thus the claim failed at the threshold. The respondents say the appellants failed to formulate a case which met the requirements of the section as understood and explained in Yorke &amp; Anor v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 per Mason ACJ, Wilson, Deane and Dawson JJ and Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1 per Heerey, Sundberg and Dowsett JJ. Nothing can now remedy that difficulty.
Case: Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1
Outcome: cited
The third criticism is this. The respondents say that the appellants cannot succeed in the claim against Mr Strahley based upon s 75B of the Act because the relevant integers were not properly pleaded and thus the claim failed at the threshold. The respondents say the appellants failed to formulate a case which met the requirements of the section as understood and explained in Yorke &amp; Anor v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 per Mason ACJ, Wilson, Deane and Dawson JJ and Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1 per Heerey, Sundberg and Dowsett JJ. Nothing can now remedy that difficulty.
Case: Bruce Pie &amp; Sons Pty Ltd v Mainwaring (1985) 1 Qd R 401
Outcome: cited
Having regard to the field of issues, the substantial body of material likely to comprise the appeal books, the retainer of senior and junior counsel on the appeal, the likely preparation time and number of likely sitting days (say three and one half days, i.e. four fee days), I propose to discount Mr McLelland's estimate of $198,240.00 and order the appellants to provide security for the first and second respondents costs of the appeal and the notice of motion for security for costs, in an amount of $105,000.00. I am satisfied that the application for security was made promptly and was reasonable in all the circumstances. I am satisfied that it is appropriate to provide security for the costs of the motion. Such an application is not uncommon and if promptly made an applicant for security is reasonably entitled to the costs incurred in making the application. A respondent to an appeal confronting at least two parties with no capacity to meet the costs a respondent will incur, will quite understandably seek to protect its position by making an application for security. The quantum of the security to be provided is ultimately a matter for the exercise of discretion ( Bruce Pie &amp; Sons Pty Ltd v Mainwaring (1985) 1 Qd R 401 per McPherson J; Procon (GB) Ltd v Provincial Building Co. Ltd (1984) 2 All ER 368; see generally Sagacious Procurement Pty Ltd v Symbion Health Ltd [2007] NSWCA 205). Having reviewed the schedule of items annexed to the affidavit of Mr McLelland and the commentary prepared by Mr Graham, I am satisfied that the discount applied to the costs Mr McLelland assesses as likely to be incurred is appropriate notwithstanding that it represents a discount of 45% of the claimed costs.
Case: Procon (GB) Ltd v Provincial Building Co. Ltd (1984) 2 All ER 368
Outcome: cited
Having regard to the field of issues, the substantial body of material likely to comprise the appeal books, the retainer of senior and junior counsel on the appeal, the likely preparation time and number of likely sitting days (say three and one half days, i.e. four fee days), I propose to discount Mr McLelland's estimate of $198,240.00 and order the appellants to provide security for the first and second respondents costs of the appeal and the notice of motion for security for costs, in an amount of $105,000.00. I am satisfied that the application for security was made promptly and was reasonable in all the circumstances. I am satisfied that it is appropriate to provide security for the costs of the motion. Such an application is not uncommon and if promptly made an applicant for security is reasonably entitled to the costs incurred in making the application. A respondent to an appeal confronting at least two parties with no capacity to meet the costs a respondent will incur, will quite understandably seek to protect its position by making an application for security. The quantum of the security to be provided is ultimately a matter for the exercise of discretion ( Bruce Pie &amp; Sons Pty Ltd v Mainwaring (1985) 1 Qd R 401 per McPherson J; Procon (GB) Ltd v Provincial Building Co. Ltd (1984) 2 All ER 368; see generally Sagacious Procurement Pty Ltd v Symbion Health Ltd [2007] NSWCA 205). Having reviewed the schedule of items annexed to the affidavit of Mr McLelland and the commentary prepared by Mr Graham, I am satisfied that the discount applied to the costs Mr McLelland assesses as likely to be incurred is appropriate notwithstanding that it represents a discount of 45% of the claimed costs.
Case: Sagacious Procurement Pty Ltd v Symbion Health Ltd [2007] NSWCA 205
Outcome: cited
Having regard to the field of issues, the substantial body of material likely to comprise the appeal books, the retainer of senior and junior counsel on the appeal, the likely preparation time and number of likely sitting days (say three and one half days, i.e. four fee days), I propose to discount Mr McLelland's estimate of $198,240.00 and order the appellants to provide security for the first and second respondents costs of the appeal and the notice of motion for security for costs, in an amount of $105,000.00. I am satisfied that the application for security was made promptly and was reasonable in all the circumstances. I am satisfied that it is appropriate to provide security for the costs of the motion. Such an application is not uncommon and if promptly made an applicant for security is reasonably entitled to the costs incurred in making the application. A respondent to an appeal confronting at least two parties with no capacity to meet the costs a respondent will incur, will quite understandably seek to protect its position by making an application for security. The quantum of the security to be provided is ultimately a matter for the exercise of discretion ( Bruce Pie &amp; Sons Pty Ltd v Mainwaring (1985) 1 Qd R 401 per McPherson J; Procon (GB) Ltd v Provincial Building Co. Ltd (1984) 2 All ER 368; see generally Sagacious Procurement Pty Ltd v Symbion Health Ltd [2007] NSWCA 205). Having reviewed the schedule of items annexed to the affidavit of Mr McLelland and the commentary prepared by Mr Graham, I am satisfied that the discount applied to the costs Mr McLelland assesses as likely to be incurred is appropriate notwithstanding that it represents a discount of 45% of the claimed costs.
Case: Starborne Holdings Pty Ltd v Radferry Pty Ltd &amp; Ors [1998] FCA 548
Outcome: cited
"Fairness" will be, in part assessed, by an applicant demonstrating that the benefit of a successful appeal will be taken away in every practical sense or rendered nugatory, if no stay of the primary order(s) is granted. Such a consideration has been described as a "substantial factor" influencing the discretion to order a stay ( Alexander v Cambridge Credit at 695D). Weighed in the balance is a preliminary non-speculative assessment of whether the appellant by the grounds of appeal has raised an arguable case. Such an assessment however is designed to be "protective" of the judgment creditor in the sense of being undertaken to test whether the appeal has "been lodged without any real prospect of success and simply in the hope of granting a respite against immediate execution upon the judgment" ( Alexander v Cambridge Credit at 695F). These principles have been applied in Powerflex v Data Access Corporation ; Starborne Holdings Pty Ltd v Radferry Pty Ltd &amp; Ors [1998] FCA 548 ; Henderson v Amadio Pty Ltd (No. 3 ) (1996) 65 FCR 66 and other cases in this Court. The assessment of the prospects of success of the appeal by reference to such a test reflects a low threshold of arguability. In Sevenhill Holdings Pty Ltd v Musovic [1992] FCA 372 , French J put the notion of an appeal reflecting an arguable prospect of success in these terms: In saying so, I accept that the very findings which underpin [it] are under challenge in an appeal which is not frivolous, that is to say, an appeal which has an arguable prospect of success.
Case: Henderson v Amadio Pty Ltd (No. 3 ) (1996) 65 FCR 66
Outcome: cited
"Fairness" will be, in part assessed, by an applicant demonstrating that the benefit of a successful appeal will be taken away in every practical sense or rendered nugatory, if no stay of the primary order(s) is granted. Such a consideration has been described as a "substantial factor" influencing the discretion to order a stay ( Alexander v Cambridge Credit at 695D). Weighed in the balance is a preliminary non-speculative assessment of whether the appellant by the grounds of appeal has raised an arguable case. Such an assessment however is designed to be "protective" of the judgment creditor in the sense of being undertaken to test whether the appeal has "been lodged without any real prospect of success and simply in the hope of granting a respite against immediate execution upon the judgment" ( Alexander v Cambridge Credit at 695F). These principles have been applied in Powerflex v Data Access Corporation ; Starborne Holdings Pty Ltd v Radferry Pty Ltd &amp; Ors [1998] FCA 548 ; Henderson v Amadio Pty Ltd (No. 3 ) (1996) 65 FCR 66 and other cases in this Court. The assessment of the prospects of success of the appeal by reference to such a test reflects a low threshold of arguability. In Sevenhill Holdings Pty Ltd v Musovic [1992] FCA 372 , French J put the notion of an appeal reflecting an arguable prospect of success in these terms: In saying so, I accept that the very findings which underpin [it] are under challenge in an appeal which is not frivolous, that is to say, an appeal which has an arguable prospect of success.