mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Downie v Lockwood [1965] VR 257
Outcome: applied
base this conclusion on s 42(2)(e) of the Transfer of Land Act 1958 (Vic) and the equivalent provision in the Torrens legislation in other States. The effect of s 42(2)(e) is that the estate of a registered proprietor of land (including the proprietor of a mortgage) is subject to the rights of a tenant in possession. In this area the relevant principles are clearly established. The first is that the possession of a tenant is notice of any right of the tenant affecting the land: McMahon v Swan [1924] VLR 397, 406. The second is that, as Dixon J confirmed in Burke v Dawes [1938] HCA 6 ; (1938) 59 CLR 1, 17-18, s 72 of the Transfer of Land Act 1928 (Vic) (which is the forerunner of s 42) was not intended to apply merely to a tenancy as commonly understood. See also Downie v Lockwood [1965] VR 257, 259 where Smith J said "As appears from the cases the exception in s. 42 (2) (e) is to be widely construed; and it is to be treated as producing the result that "any person in actual occupation of the land obtains as against any inconsistent registered dealing protection and priority for any equitable interest to which his occupation is incident, provided that at law his occupation is referable to a tenancy of sort, whether at will or for years". Thus, for the purposes of the section a purchaser under a contract, who is given possession by the vendor and is only a tenant at will, is protected in respect of his equitable ownership: Robertson v Keith (1870) 1 VLR(E) 11. So, too, is a vendor who remains in possession until the purchase price is paid: he is a tenant "whatever might be the legal denomination of the tenancy": The Commercial Bank of Australia Limited v McCaskill (1897) 23 VLR 10, 12. It has also been held that an equitable life estate will prevail over a subsequent registered interest: Black v Poole (1895) 16 ALT 155.
Case: Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217
Outcome: followed
the way in which the scheme was marketed, the provisions in the agreements by which money was promised to be paid to the clients also involved misleading or deceptive conduct. By promising to make the payments, the purchaser company was implicitly stating that it had the capacity to meet that obligation: Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217. In truth the company had no such capacity. These conclusions do not, however, establish contraventions of the relevant sections. Those sections proscribe misleading and deceptive conduct "in relation to financial services" (s 12DA), or in connection with the supply or possible supply of "financial services" (s 12DB), or in connection with the sale or grant or the possible sale or grant of a "financial product" that involves an interest in land (s 12DC), or in relation to a "financial product" or a "financial service" (s 1041H). It is therefore necessary to consider whether the conduct which I have found to be misleading concerned a "financial service" or a "financial product". As we shall see the two concepts, both of which are defined in the statutes, are interrelated. The relevant provisions in the Corporations Act and the ASIC Act are almost the same. For convenience I will refer to the ASIC Act. Section 12BAB(1) of the ASIC Act provides that a person provides a "financial service" if they, among other things, provide "financial product advice" or deal in a "financial product". Section 12BAB(5) defines "financial product advice" to mean a recommendation or statement of opinion or report that is intended to influence a person in making a decision in relation to a particular "financial product" or class of "financial products".
Case: McMahon v Swan [1924] VLR 397
Outcome: cited
base this conclusion on s 42(2)(e) of the Transfer of Land Act 1958 (Vic) and the equivalent provision in the Torrens legislation in other States. The effect of s 42(2)(e) is that the estate of a registered proprietor of land (including the proprietor of a mortgage) is subject to the rights of a tenant in possession. In this area the relevant principles are clearly established. The first is that the possession of a tenant is notice of any right of the tenant affecting the land: McMahon v Swan [1924] VLR 397, 406. The second is that, as Dixon J confirmed in Burke v Dawes [1938] HCA 6 ; (1938) 59 CLR 1, 17-18, s 72 of the Transfer of Land Act 1928 (Vic) (which is the forerunner of s 42) was not intended to apply merely to a tenancy as commonly understood. See also Downie v Lockwood [1965] VR 257, 259 where Smith J said "As appears from the cases the exception in s. 42 (2) (e) is to be widely construed; and it is to be treated as producing the result that "any person in actual occupation of the land obtains as against any inconsistent registered dealing protection and priority for any equitable interest to which his occupation is incident, provided that at law his occupation is referable to a tenancy of sort, whether at will or for years". Thus, for the purposes of the section a purchaser under a contract, who is given possession by the vendor and is only a tenant at will, is protected in respect of his equitable ownership: Robertson v Keith (1870) 1 VLR(E) 11. So, too, is a vendor who remains in possession until the purchase price is paid: he is a tenant "whatever might be the legal denomination of the tenancy": The Commercial Bank of Australia Limited v McCaskill (1897) 23 VLR 10, 12. It has also been held that an equitable life estate will prevail over a subsequent registered interest: Black v Poole (1895) 16 ALT 155.
Case: Robertson v Keith (1870) 1 VLR(E) 11
Outcome: cited
base this conclusion on s 42(2)(e) of the Transfer of Land Act 1958 (Vic) and the equivalent provision in the Torrens legislation in other States. The effect of s 42(2)(e) is that the estate of a registered proprietor of land (including the proprietor of a mortgage) is subject to the rights of a tenant in possession. In this area the relevant principles are clearly established. The first is that the possession of a tenant is notice of any right of the tenant affecting the land: McMahon v Swan [1924] VLR 397, 406. The second is that, as Dixon J confirmed in Burke v Dawes [1938] HCA 6 ; (1938) 59 CLR 1, 17-18, s 72 of the Transfer of Land Act 1928 (Vic) (which is the forerunner of s 42) was not intended to apply merely to a tenancy as commonly understood. See also Downie v Lockwood [1965] VR 257, 259 where Smith J said "As appears from the cases the exception in s. 42 (2) (e) is to be widely construed; and it is to be treated as producing the result that "any person in actual occupation of the land obtains as against any inconsistent registered dealing protection and priority for any equitable interest to which his occupation is incident, provided that at law his occupation is referable to a tenancy of sort, whether at will or for years". Thus, for the purposes of the section a purchaser under a contract, who is given possession by the vendor and is only a tenant at will, is protected in respect of his equitable ownership: Robertson v Keith (1870) 1 VLR(E) 11. So, too, is a vendor who remains in possession until the purchase price is paid: he is a tenant "whatever might be the legal denomination of the tenancy": The Commercial Bank of Australia Limited v McCaskill (1897) 23 VLR 10, 12. It has also been held that an equitable life estate will prevail over a subsequent registered interest: Black v Poole (1895) 16 ALT 155.
Case: The Commercial Bank of Australia Limited v McCaskill (1897) 23 VLR 10
Outcome: cited
base this conclusion on s 42(2)(e) of the Transfer of Land Act 1958 (Vic) and the equivalent provision in the Torrens legislation in other States. The effect of s 42(2)(e) is that the estate of a registered proprietor of land (including the proprietor of a mortgage) is subject to the rights of a tenant in possession. In this area the relevant principles are clearly established. The first is that the possession of a tenant is notice of any right of the tenant affecting the land: McMahon v Swan [1924] VLR 397, 406. The second is that, as Dixon J confirmed in Burke v Dawes [1938] HCA 6 ; (1938) 59 CLR 1, 17-18, s 72 of the Transfer of Land Act 1928 (Vic) (which is the forerunner of s 42) was not intended to apply merely to a tenancy as commonly understood. See also Downie v Lockwood [1965] VR 257, 259 where Smith J said "As appears from the cases the exception in s. 42 (2) (e) is to be widely construed; and it is to be treated as producing the result that "any person in actual occupation of the land obtains as against any inconsistent registered dealing protection and priority for any equitable interest to which his occupation is incident, provided that at law his occupation is referable to a tenancy of sort, whether at will or for years". Thus, for the purposes of the section a purchaser under a contract, who is given possession by the vendor and is only a tenant at will, is protected in respect of his equitable ownership: Robertson v Keith (1870) 1 VLR(E) 11. So, too, is a vendor who remains in possession until the purchase price is paid: he is a tenant "whatever might be the legal denomination of the tenancy": The Commercial Bank of Australia Limited v McCaskill (1897) 23 VLR 10, 12. It has also been held that an equitable life estate will prevail over a subsequent registered interest: Black v Poole (1895) 16 ALT 155.
Case: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: cited
my opinion, there is sufficient doubt as to whether such a conjunctive construction can be said even to be reasonably arguable to warrant reconsideration by a Full Court ( Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9). There was no claim for indemnity made by ARMA during the currency of the first policy. The primary judge noted that Permanent's case was primarily based on the second policy ( Permanent (No 1) at [20]). The primary judge seems to have accepted that the applicable insurance cover related to the second policy ( Permanent (No 1) at [39]).
Case: FAI General Insurance Co Limited v McSweeney (1999) 10 ANZ Insurances Cases 61-443
Outcome: cited
submissions to the primary judge were to the effect that the letters from Permanent to Mr Teves were couched in words that did not amount to ' a claim nor an assertion of the breach of duty ' but merely raised ' the possibility of overvaluation, foreshadowing future action in the event of a shortfall ' ( Permanent (No 1) at [23]). It was put to his Honour that, as there was ' no claim as such then pending ' there was no basis for any claim to indemnity unless further events transpired or ' crystallised ' ( Permanent (No 1) at [23]). His Honour referred to the decision of Lindgren J in FAI General Insurance Co Limited v McSweeney (1999) 10 ANZ Insurances Cases 61-443 at 75,033-4 that circumstances ' may give rise to a claim ' where the ' bringing of a claim against the insured in respect of them was a "definite risk" or a "real possibility" or "on the cards" '. The primary judge concluded that it was reasonably arguable that Exclusion 4.1 had no operation, at least because of the lack of clarity in the letters as to whether any loss or damage would crystallise by way of actual sale of the properties in question ( Permanent (No 1) at [39]). On that basis, his Honour concluded that it was open to argument that Exclusion 4.1 may have no operation. In coming to that conclusion, based upon the crystallisation of the loss of damage, his Honour was considering a "Claim", that is in the sense of a bringing of a claim in the nature of an originating process (as in McSweeney ). His Honour seems to have dealt compendiously with Claim and claim or, alternatively, dealt with the former but not with the latter. He relied on the absence of any sale of the properties the subject of ARMA's valuations prior to the commencement of the second policy ( Permanent (No 1) at [39]). His Honour recorded the insurers' contention that there was no liability under the second policy because of an absence of disclosure of the notifications by Permanent to Mr Teves ( Permanent (No 1) at [26]). His Honour did not consider the effect of those notifications on Exclusion 4.1. The insurers emphasise that this was not a question of disclosure but of awareness of circumstances. His Honour held that it was open to argument that the exclusion clause had no operation but that was in the context of whether loss or damage relevantly crystallised. That was relevant to whether a "Claim" might result but not a "claim" as defined in the policy. The next issue was whether, as submitted by Permanent, even if the notification did constitute knowledge of circumstances which might result in a ' claim ', s 33 of the Insurance Act operated to preclude the Insurers from relying on Exclusion 4.1. Section 33 of the Insurance Act provides: ' No other remedies The provisions of this Division are exclusive of any right that the insurer has otherwise than under this Act in respect of a failure by the insured to disclose a matter to the insurer before the contract was entered into and in respect of a misrepresentation or incorrect statement.'
Case: Fishwives Pty Ltd v FAI General Insurance Co Ltd (2002) 12 ANZ Insurance Cases 61-515
Outcome: cited
primary judge accepted that the threshold issue before him was whether the foreshadowed claim against the insurers was reasonably arguable, in the sense that it ' could be seriously put ' ( Permanent (No 1) at [5]). His Honour also recognised that, as stated by Mason P (with whom Meagher and Handley JJ agreed) in Fishwives Pty Ltd v FAI General Insurance Co Ltd (2002) 12 ANZ Insurance Cases 61-515, the applicable principle is that even though an arguable case against an insurer is established, the Court is ' seized of the discretion to grant leave ' (at [47] citing National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1996) 138 ALR 409 at 418). The insurer is at liberty to argue its right to disclaim liability in the proceedings which follow a grant of leave but ' it does not follow...that a court that is positively satisfied of the insurer's entitlement to disclaim, after issue has been joined on that matter as between the plaintiff and the insurer, must exercise the discretion in favour of the grant of leave ' ( Fishwives at [47]).
Case: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1996) 138 ALR 409
Outcome: cited
primary judge accepted that the threshold issue before him was whether the foreshadowed claim against the insurers was reasonably arguable, in the sense that it ' could be seriously put ' ( Permanent (No 1) at [5]). His Honour also recognised that, as stated by Mason P (with whom Meagher and Handley JJ agreed) in Fishwives Pty Ltd v FAI General Insurance Co Ltd (2002) 12 ANZ Insurance Cases 61-515, the applicable principle is that even though an arguable case against an insurer is established, the Court is ' seized of the discretion to grant leave ' (at [47] citing National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1996) 138 ALR 409 at 418). The insurer is at liberty to argue its right to disclaim liability in the proceedings which follow a grant of leave but ' it does not follow...that a court that is positively satisfied of the insurer's entitlement to disclaim, after issue has been joined on that matter as between the plaintiff and the insurer, must exercise the discretion in favour of the grant of leave ' ( Fishwives at [47]).
Case: Pech v Tilgals (1994) 94 ATC 4206
Outcome: cited
insurers relied upon Pech v Tilgals (1994) 94 ATC 4206 where Dunford J considered a comparable if not identical clause to Exclusion 4.1 and held that it was not concerned with non-disclosure because ' the claims specified are excluded from the cover whether the circumstances are disclosed or not ' (at 4218). The primary judge accepted that Pech was relevant to the second policy. However, his Honour concluded that Pech did not provide ' sufficient bearing ' on the circumstances in this case ( Permanent (No 1) at [30]). His Honour did not consider the impact of the reasoning in Pech on s 33. The primary judge seemed to accept that the applicable policy was the second policy. The insurers relied upon Exclusion 4.1 to ' destroy ' Permanent's case. The insurers asserted a complete defence to the cause of action because the letters from Permanent to Mr Teves constituted, by their content, circumstances of which, at the least, Mr Teves and ARMA ought reasonably to have realised to be circumstances which might result in or intimated ' an assertion, allegation or complaint of any act or omission causing or potentially causing loss or damage ' or ' an intention to seek compensation, damages or other legal relief '. The insurers assert that this was not a question of non-disclosure because Exclusion 4.1 applies whether the circumstances are disclosed to the insurer or not. The primary judge did not consider the application of Exclusion 4.1 for other than non-disclosure, whether a defence was thereby available and whether it was a total answer to the cause of action. The primary judge seemed to accept that the reasoning in Permanent v FAI applied with respect to s 33, the consequence being that the insurers could not rely on Exclusion 4.1. Permanent v FAI concerned a failure to disclose. The insurers' submission that Exclusion 4.1 is not relevantly concerned with a failure to disclose and that s 33 has no application was not dealt with. His Honour did not explain why the reasoning in Pech was not applicable.
Case: Permanent Custodians Limited v ARMA Pty Ltd [2006] FCA 640
Outcome: considered
essence it is submitted that there is no arguable case against the insurers, that they have been incorrectly joined in the proceedings and that the primary judge erred in joining the insurers and finding a reasonable cause of action against them in Permanent (No 2) on 4 July 2006 and Permanent Custodians Limited v ARMA Pty Ltd [2006] FCA 640 (' Permanent (No 1) ') on 29 May 2006.
Case: Permanent Trustee Australia Limited v FAI General Insurance Company Limited (1988) 153 ALR 529
Outcome: cited
submitted to his Honour that Exclusion 4.1 provides the insurers with a right to disclaim liability for the failure to disclose a matter ' otherwise than under [the Insurance Act]' and could not be relied upon. Permanent relied upon Permanent Trustee Australia Limited v FAI General Insurance Company Limited (1988) 153 ALR 529 in support of its submission that Exclusion 4.1 is, in effect, a non-disclosure clause for the purposes of s 33. The primary judge recognised that, in Permanent v FAI , Hodgson CJ in Eq was concerned with a claimed exclusion from liability for non-disclosure and with whether the insured was aware of the circumstances which might give rise to a claim. In these circumstances, Hodgson CJ in Eq thought s 33 applied ( Permanent (No 1) at [28]; Permanent v FAI at 589). The primary judge seemed to accept that the reasoning in Permanent v FAI applied with respect to s 33, the consequence being that the insurers could not rely on Exclusion 4.1. Permanent v FAI concerned a failure to disclose. The insurers' submission that Exclusion 4.1 is not relevantly concerned with a failure to disclose and that s 33 has no application was not dealt with. His Honour did not explain why the reasoning in Pech was not applicable.
Case: Rural Export &amp; Trading (WA) Pty Ltd v Hahnheuser [2007] FCA 1535 (2007) 243 ALR 356
Outcome: cited
nature and history of the proceeding In a judgment delivered on 4 October 2007, Rural Export &amp; Trading (WA) Pty Ltd v Hahnheuser [2007] FCA 1535 (2007) 243 ALR 356 , I dismissed the application of both applicants in this proceeding. Each of the applicants claimed relief of a declaratory and injunctive nature, as well as damages, in respect of an alleged contravention by the respondent, Mr Hahnheuser, of s 45DB of the Trade Practices Act 1974 (Cth) ("the Trade Practices Act "). When the proceeding was instituted, there was a second respondent, Animal Liberation SA Inc. I also dismissed by consent claims by both applicants against the second respondent, leaving Mr Hahnheuser as the only respondent. Both applicants' claims were in respect of a delay in the export of a shipment of live sheep from the Port of Portland aboard the MV Al Shuwaikh , destined for the Middle East. The delay occurred because Mr Hahnheuser, in concert with other people, entered a feedlot in which the sheep were held prior to being loaded on the vessel, and placed shredded ham in food and water containers, from which the sheep were intended to feed and drink. This caused a delay in the grant of a permit for the export of the sheep.
Case: Marks v GIO Australia Holdings Ltd [1998] HCA 69 (1998) 196 CLR 494
Outcome: cited
Marks v GIO Australia Holdings Ltd [1998] HCA 69 (1998) 196 CLR 494 at [95] Gummow J said: Section 82 has at least five discrete elements. First, it identifies the legal norms for contravention of which the action under the section is given. Secondly, it identifies those by and against whom that action lies. Thirdly, the section specifies the injury for which the action lies as the suffering of loss or damage. Fourthly, it stipulates a causal requirement that the plaintiff's injury must be sustained "by" the contravention. Finally, the measure of compensation is "the amount of" the loss or damage sustained. For present purposes, the crucial one of those five elements is the second, particularly the identification of the person by whom the claim for damages can be brought. That is a question on which there is remarkably little authority, except in the case of one application of the misleading and deceptive conduct provisions of the Trade Practices Act , found in s 52 and the following sections. In relation to the various provisions of Pt IV of the Trade Practices Act , which include s 45DB , I have been unable to find any case in which a person not directly affected by the proscribed conduct, but only affected by reason of conducting dealings with a person directly affected, has made a claim for damages, much less succeeded in one. Further, the principal authorities in which the High Court of Australia has pronounced upon the meaning and effect of s 82 of the Trade Practices Act have been concerned with questions of causation and the measure of damages, the fourth and fifth elements identified by Gummow J. That description applies to Marks itself, as well as to Wardley Australia Limited v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 , Henville v Walker [2001] HCA 52 (2001) 206 CLR 459 , I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 (2002) 210 CLR 109 and HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 (2004) 217 CLR 640. Care must be taken in applying statements made in the judgments in those cases, concerning the fourth or fifth elements identified by Gummow J, to a case concerning the second element, the identification of the person who is entitled to claim.