mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: McKinnon v Pattison [2009] FMCA 696
Outcome: referred to
the second judgment, his Honour dismissed the application for review and ordered the appellants to pay the costs of that application and the costs before the Registrar ("the Second Judgment"); see McKinnon v Pattison [2009] FMCA 696. GROUNDS OF APPEAL (i) Disqualification issue The appellants claim that Phipps FM should have disqualified himself from hearing the application because he had heard a similar matter previously. They also allege that the proceeding was part-heard before another Federal Magistrate. (ii) Substantive issue The appellants further allege that his Honour's judgment was made on "grounds that are not a factor for consideration" in the proper exercise of his discretion. (ii) Other grounds The appellants contend that Phipps FM failed to give them time "to read two submitted precedents" which were referred to in the reasons for judgment. In addition the appellants submit that his Honour "failed to seek the requested info from the respondent to be returnable 19 June 2009". Section 33(1)(c) of the Act provides that the Court may: extend before its expiration or, if this Act does not expressly provide to the contrary, after its expiration, any time limited by this Act, or any time fixed by the Court or the Registrar under this Act (other than the time fixed for compliance with the requirements of a bankruptcy notice), for doing an act or thing or abridge any such time. Regulation 8.09(1) of the Regulations provides that: Where the trustee of the estate of a bankrupt claims remuneration under section 162 of the Act, the bankrupt or a creditor who is dissatisfied with the amount of the claim may, by notice in writing lodged within 28 days of being notified in writing or becoming aware of the amount of the claim, request a taxing officer to tax the claim. There is no provision of the Act which expressly provides that the time under reg 8.09(1) may not be extended or abridged pursuant to s 33(1)(c). DISQUALIFICATION ISSUE
Case: McKinnon v Commonwealth Bank of Australia [2005] FCA 1898
Outcome: referred to
a similar vein, the appellants made an application at the commencement of the appeal hearing seeking that I disqualify myself on the basis that I had previously heard an application by the appellants on 3 November 2005. That earlier application sought a stay of sequestration orders against the appellants' estates and is referred to by Dowsett J in McKinnon v Commonwealth Bank of Australia [2005] FCA 1898. No contested issues of fact or credibility fell for determination in that application. Simply because I dealt with an earlier matter involving the appellants, I did not consider that I was required to disqualify myself from hearing this appeal and ruled accordingly.
Case: Abeyratne v Trkulja (1998) 90 FCR 253
Outcome: referred to
Magistrate Phipps did not otherwise refer to Vince . His reliance on Abeyratne v Trkulja (1998) 90 FCR 253 was unexceptional. Doubtless the appellants were seeking to invoke a broad power in their favour to have justice to them done as they saw it. However there is nothing in the cases relied on by Phipps FM which was adverse to their position. The appellants' grounds of appeal based on this issue are also without merit. SUBSTANTIVE ISSUE Background The power to extend time under s 33(1)(c) of the Act is a broad discretionary power. It is unfettered and must be exercised with a view to doing justice between the parties; see Abeyratne at 262 and see also Vince v Sellers [2004] FMCA 564 at [6] . In order to evaluate whether it is just to grant an extension of time it is necessary to consider all the factors which militate for and against an extension in the circumstances of the particular case. Examples of relevant factors which may need to be taken into account include: the reason why the applicant did not perform the required act within the statutory time limit, the prejudice to other parties of allowing an extension of time and the public policy interest in allowing or refusing an application to extend time.
Case: Vince v Sellers [2004] FMCA 564
Outcome: discussed
Magistrate Phipps did not otherwise refer to Vince . His reliance on Abeyratne v Trkulja (1998) 90 FCR 253 was unexceptional. Doubtless the appellants were seeking to invoke a broad power in their favour to have justice to them done as they saw it. However there is nothing in the cases relied on by Phipps FM which was adverse to their position. The appellants' grounds of appeal based on this issue are also without merit. SUBSTANTIVE ISSUE Background The power to extend time under s 33(1)(c) of the Act is a broad discretionary power. It is unfettered and must be exercised with a view to doing justice between the parties; see Abeyratne at 262 and see also Vince v Sellers [2004] FMCA 564 at [6] . In order to evaluate whether it is just to grant an extension of time it is necessary to consider all the factors which militate for and against an extension in the circumstances of the particular case. Examples of relevant factors which may need to be taken into account include: the reason why the applicant did not perform the required act within the statutory time limit, the prejudice to other parties of allowing an extension of time and the public policy interest in allowing or refusing an application to extend time.
Case: House v The King (1936) 55 CLR 499
Outcome: referred to
the exercise of his discretion pursuant to s 33(1)(c) his Honour focused solely on the question of whether the grant of an extension of time would be futile as it would not improve the financial circumstances of the appellants. His Honour did not appear to consider any other relevant factors in the exercise of his discretion. In denying an extension of time, on the ground of "futility" alone, his Honour erred in the exercise of his discretion by allowing one matter to guide the exercise of that discretion to the exclusion of other material considerations; see, by way of analogy, House v The King (1936) 55 CLR 499 at 504 5 per Dixon, Evatt and McTiernan JJ. It can be seen by the ensuing discussion at [33] [42] below that "futility" was not the sole criterion for consideration.
Case: Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120
Outcome: applied
discretion in the Court below having miscarried, it is appropriate that this Court should exercise that discretion afresh; see Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120 at [5] per Goldberg, Jacobson and Tracey JJ. Consideration of the exercise of the discretion In determining whether to grant the extension of time requested by the appellants it is necessary to take into account a number of factors, in addition to the futility factor. First, the appellants' failure to lodge their notice for taxation within the required time period does not appear to be due to deliberate delay on their part. The appellants were dissatisfied with the claim for remuneration by the trustee and gave early notice to him that they would seek a taxation of the claim. The appellants attempted to lodge a notice within the requisite time and appear to have made a genuine mistake about whom the notice should have been sent. They did not realise that they needed to apply to ITSA. The fact the appellants have provided a reasonable explanation as to why they failed to comply with the requirements of reg 8.09(1) is a matter which weighs in favour of granting an extension of time.
Case: Wenkart v Pantzer (No 6) [2003] FCA 1210
Outcome: referred to
third factor which needs to be considered is that there is a public interest in ensuring that the time limits set out in the Regulations are adhered to. As has been noted the purpose of the time limit in reg 8.09(1) is to ensure that finality and certainty are brought to the quantification of a trustee's remuneration within a relatively short period of time; see Wenkart v Pantzer (No 6) [2003] FCA 1210 at [34] per Lindgren J. This would ordinarily militate against the granting of an extension of time. However, in the present case, the respondent was aware prior to the expiry of the statutory time limit in reg 8.09(1) that the appellants intended to request a taxation of his remuneration. The respondent cannot contend that he was surprised by the appellants' request to be allowed to lodge a notice for taxation after the 28 day period. The respondent has also not argued that he made any arrangements relying on the fact that the appellants failed to lodge a notice in conformity with reg 8.09 which will be disrupted if an extension of time is granted. Consequently, this argument is of little weight in the context of this case. Fourth, the respondent did not argue before Phipps FM that he would suffer any other prejudice if the extension of time is granted. However, in his written submissions the respondent asserted that: In circumstances where the appellants are bankrupt and have not paid the outstanding costs orders made by Moore R and Phipps FM it would not be doing justice to the respondent or the creditors of the appellants to allow the appellants to seek a taxation, which would incur further costs to the respondent and thereby reduce the amount available to creditors. This contention appears to assume that the remuneration claimed by the respondent will be upheld in any taxation. Whether the respondent is correct in his claim for remuneration and his entitlement to his costs of taxation may be a matter for the taxing officer. It is not for this Court to pre-empt any such decision. Any failure by the appellants to pay the respondent's costs to date is not relevant to issue for current determination. The respondent has not shown that he would suffer any prejudice if the extension of time is granted. Indeed that is why he only relied on the futility factor in the Court below. The fifth factor to be taken into account is that the respondent has argued that the grant of the extension of time is futile because, in essence, even if the remuneration claimed by the respondent is taxed it will not improve the financial circumstances of the appellants. The implication is that the sole purpose of reg 8.09(1) is to enable the bankrupt or a creditor to gain some tangible financial benefit. Giving primacy to this approach, to the exclusion of other factors, fails to recognise and respect the wider public interest inherent in reg 8.09(1).
Case: Adsett v Berlouis (1992) 37 FCR 201
Outcome: referred to
trustee in bankruptcy is under an obligation to exercise reasonable skill in the performance of his or her duties and "[a] trustee in bankruptcy who acts for remuneration is under a duty of care greater than that of a gratuitous trustee"; see Adsett v Berlouis (1992) 37 FCR 201 at 208 per Northrop, Wilcox and Cooper JJ. As a consequence, it has been held that under the Act: the trustee's right to remuneration is limited to work properly undertaken. In this context, "properly" means work reasonably and bona fide undertaken for the purpose of administering the estate or performing any public duty imposed by the Act, conformably with the trustee's duty to perform the work with reasonable care and skill and in an efficient and economical way. Adsett at 212 and see also Pantzer v Wenkart (2006) 153 FCR 466 at [43] per Black CJ, Ryan and Moore JJ.
Case: Pantzer v Wenkart [2006] FCAFC 140 ; (2006) 153 FCR 466
Outcome: referred to
trustee in bankruptcy is under an obligation to exercise reasonable skill in the performance of his or her duties and "[a] trustee in bankruptcy who acts for remuneration is under a duty of care greater than that of a gratuitous trustee"; see Adsett v Berlouis (1992) 37 FCR 201 at 208 per Northrop, Wilcox and Cooper JJ. As a consequence, it has been held that under the Act: the trustee's right to remuneration is limited to work properly undertaken. In this context, "properly" means work reasonably and bona fide undertaken for the purpose of administering the estate or performing any public duty imposed by the Act, conformably with the trustee's duty to perform the work with reasonable care and skill and in an efficient and economical way. Adsett at 212 and see also Pantzer v Wenkart (2006) 153 FCR 466 at [43] per Black CJ, Ryan and Moore JJ.
Case: Foakes v Beer [1884] 9 App Case 605
Outcome: cited
It is well established that mere forbearance by one party to a contract in requiring performance of obligations by the other does not effect a variation of the contract unless supported by consideration or recorded in a deed under seal. In Foakes v Beer [1884] 9 App Cas 605 the House of Lords held an agreement between judgment debtor and creditor that the creditor would not take proceedings on the judgment in consideration of the debtor paying part of it and the residue by instalments, was nudum pactum as without consideration. It did not prevent the creditor after payment of the whole debt and costs from enforcing payment of interest on the judgment. Lord Selborne LC said (at 613): 'If the question be ... whether consideration is, or is not, given in a case of this kind, by the debtor who pays down part of the debt presently due from him, for a promise by the creditor to relinquish, after certain further payments on account, the residue of the debt, I cannot say that I think consideration is given, in the sense in which I have always understood that word as used in our law.' Vanbergen v St Edmunds Properties Ltd (1933) 2 KB 223 involved an indulgence solely for the benefit of one party to a creditor/debtor relationship. Lord Hanworth MR, after citing Foakes v Beer, quoted from Smith's Leading Cases, and said (at 232): '... a creditor cannot bind himself by a simple agreement to accept a smaller sum in lieu of an ascertained debt of larger amount, such an agreement being nudum pactum . But if there be any benefit, or even any legal possibility of benefit to the creditor thrown in, that additional weight will turn the scale and render the consideration sufficient to support the agreement.' In Australia &amp; New Zealand Banking Group Ltd (ACN 005 357 522) v Ringrong Pty Ltd (ACN 005 496 855) [1995] FCA 722 , Ryan J held (at p 37) that forgiveness of a debt not embodied in a deed and unsupported by consideration was 'ineffectual at law or in equity'.
Case: Vanbergen v St Edmunds Properties Ltd (1933) 2 KB 223
Outcome: cited
It is well established that mere forbearance by one party to a contract in requiring performance of obligations by the other does not effect a variation of the contract unless supported by consideration or recorded in a deed under seal. In Foakes v Beer [1884] 9 App Cas 605 the House of Lords held an agreement between judgment debtor and creditor that the creditor would not take proceedings on the judgment in consideration of the debtor paying part of it and the residue by instalments, was nudum pactum as without consideration. It did not prevent the creditor after payment of the whole debt and costs from enforcing payment of interest on the judgment. Lord Selborne LC said (at 613): 'If the question be ... whether consideration is, or is not, given in a case of this kind, by the debtor who pays down part of the debt presently due from him, for a promise by the creditor to relinquish, after certain further payments on account, the residue of the debt, I cannot say that I think consideration is given, in the sense in which I have always understood that word as used in our law.' Vanbergen v St Edmunds Properties Ltd (1933) 2 KB 223 involved an indulgence solely for the benefit of one party to a creditor/debtor relationship. Lord Hanworth MR, after citing Foakes v Beer, quoted from Smith's Leading Cases, and said (at 232): '... a creditor cannot bind himself by a simple agreement to accept a smaller sum in lieu of an ascertained debt of larger amount, such an agreement being nudum pactum . But if there be any benefit, or even any legal possibility of benefit to the creditor thrown in, that additional weight will turn the scale and render the consideration sufficient to support the agreement.' In Australia &amp; New Zealand Banking Group Ltd (ACN 005 357 522) v Ringrong Pty Ltd (ACN 005 496 855) [1995] FCA 722 , Ryan J held (at p 37) that forgiveness of a debt not embodied in a deed and unsupported by consideration was 'ineffectual at law or in equity'.
Case: Australia &amp; New Zealand Banking Group Ltd (ACN 005 357 522) v Ringrong Pty Ltd (ACN 005 496 855) [1995] FCA 722
Outcome: cited
It is well established that mere forbearance by one party to a contract in requiring performance of obligations by the other does not effect a variation of the contract unless supported by consideration or recorded in a deed under seal. In Foakes v Beer [1884] 9 App Cas 605 the House of Lords held an agreement between judgment debtor and creditor that the creditor would not take proceedings on the judgment in consideration of the debtor paying part of it and the residue by instalments, was nudum pactum as without consideration. It did not prevent the creditor after payment of the whole debt and costs from enforcing payment of interest on the judgment. Lord Selborne LC said (at 613): 'If the question be ... whether consideration is, or is not, given in a case of this kind, by the debtor who pays down part of the debt presently due from him, for a promise by the creditor to relinquish, after certain further payments on account, the residue of the debt, I cannot say that I think consideration is given, in the sense in which I have always understood that word as used in our law.' Vanbergen v St Edmunds Properties Ltd (1933) 2 KB 223 involved an indulgence solely for the benefit of one party to a creditor/debtor relationship. Lord Hanworth MR, after citing Foakes v Beer, quoted from Smith's Leading Cases, and said (at 232): '... a creditor cannot bind himself by a simple agreement to accept a smaller sum in lieu of an ascertained debt of larger amount, such an agreement being nudum pactum . But if there be any benefit, or even any legal possibility of benefit to the creditor thrown in, that additional weight will turn the scale and render the consideration sufficient to support the agreement.' In Australia &amp; New Zealand Banking Group Ltd (ACN 005 357 522) v Ringrong Pty Ltd (ACN 005 496 855) [1995] FCA 722 , Ryan J held (at p 37) that forgiveness of a debt not embodied in a deed and unsupported by consideration was 'ineffectual at law or in equity'.
Case: Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110
Outcome: cited
Quite apart from the problem that the alleged variation lacked consideration there was uncertainty about its terms. A reduction in fees for an unspecified but temporary period apparently to be determined at the will of one party, does not import certainty of obligation. In answering that question it is necessary not to demand unrealistic precision. As McHugh JA said in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 (at 11,118): '... in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.' See Brambles Nationwide Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 177 (Heydon JA) and Nationwide Produce Holdings Pty Ltd v Linknarf Limited (2005) Aust Contract Reports 90-424 at 88,509 (Tamberlin J). In Vroon BV v Fosters Brewing Group Ltd (1994) 2 VR 32, Ormiston J accepted that: '... in commercial transactions the court should strive to give effect to the expressed arrangements and expectations of those engaged in business notwithstanding that there are areas of uncertainty and notwithstanding that particular terms have been omitted or not fully worked out.'
Case: Brambles Nationwide Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153
Outcome: cited
Quite apart from the problem that the alleged variation lacked consideration there was uncertainty about its terms. A reduction in fees for an unspecified but temporary period apparently to be determined at the will of one party, does not import certainty of obligation. In answering that question it is necessary not to demand unrealistic precision. As McHugh JA said in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 (at 11,118): '... in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.' See Brambles Nationwide Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 177 (Heydon JA) and Nationwide Produce Holdings Pty Ltd v Linknarf Limited (2005) Aust Contract Reports 90-424 at 88,509 (Tamberlin J). In Vroon BV v Fosters Brewing Group Ltd (1994) 2 VR 32, Ormiston J accepted that: '... in commercial transactions the court should strive to give effect to the expressed arrangements and expectations of those engaged in business notwithstanding that there are areas of uncertainty and notwithstanding that particular terms have been omitted or not fully worked out.'
Case: Nationwide Produce Holdings Pty Ltd v Linknarf Limited (2005) Aust Contract Reports 90-424
Outcome: cited
Quite apart from the problem that the alleged variation lacked consideration there was uncertainty about its terms. A reduction in fees for an unspecified but temporary period apparently to be determined at the will of one party, does not import certainty of obligation. In answering that question it is necessary not to demand unrealistic precision. As McHugh JA said in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 (at 11,118): '... in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.' See Brambles Nationwide Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 177 (Heydon JA) and Nationwide Produce Holdings Pty Ltd v Linknarf Limited (2005) Aust Contract Reports 90-424 at 88,509 (Tamberlin J). In Vroon BV v Fosters Brewing Group Ltd (1994) 2 VR 32, Ormiston J accepted that: '... in commercial transactions the court should strive to give effect to the expressed arrangements and expectations of those engaged in business notwithstanding that there are areas of uncertainty and notwithstanding that particular terms have been omitted or not fully worked out.'