mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cann's Pty Ltd v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210
Outcome: cited
At p 480 Gibbs J stated (relevant page numbers included): In a series of cases under the National Security (Prices) Regulations, this Court discussed the manner in which the power given by those regulations to fix prices might validly be exercised. It is enough to refer to King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 and Cann's Pty Ltd v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 . In King Gee Clothing Co Pty Ltd v The Commonwealth , Dixon J. said at p 197: "But it is another matter when the basis of the price, however clearly described, involves some matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgment. When that is done no certain objective standard is prescribed; it is not a calculation and the result is not a price fixed or a fixed price. In the same case, Williams J at p 208, repeated an earlier statement that "a bare power to 'fix' a price cannot be validly exercised without naming a money sum, or prescribing a certain standard by the application of which it can be calculated or ascertained definitely." In Cann's Pty. Ltd v The Commonwealth , Latham C.J. said at p 217 that where the prices are fixed by reference to a standard, "the standard must not be such that any element therein can be ascertained only by the exercise of discretion in apportionment, allotment, allocation or otherwise." 48 Gibbs J continued (p 481): A power given to one person to determine a value or fix a price will not be validly exercised by allowing another to exercise a wide and unreviewable discretion in determining that price, although the person upon whom the power is conferred may, instead of actually fixing a money sum himself, "lay down a method of finding it which will produce the same result whoever applies it, so long as he uses it correctly.": Cann's Pty Ltd v The Commonwealth at p 228. 50 Hanwha points to the same authorities in support of its submissions that "cash sum" means a specified or fixed amount of money, which is not subject to any condition or indeterminate adjustment. It conceded, as I said, that a formula or mechanism for arriving at the "cash sum" may be used but submitted that it must be one that can be calculated or ascertained definitely; King Gee Clothing Co Ltd v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 at p 208 per Williams J. It must be a "method which will produce the same result whoever applies it so long as he uses it correctly": Cann's Pty Ltd v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 at p 228.
Case: Fraser Henliens Pty Ltd v Cody [1945] HCA 49 ; (1945) 70 CLR 100
Outcome: followed
A creditors meeting had purported to fix the administration remuneration by approving specific sums of money for each of the first two weeks of the administration and prospectively approving further remuneration by reference to hourly rates set out in the creditors report subject to the committee of creditors reviewing and confirming the details of the remuneration claim. The hourly rates contained in the creditors' reports included a range of rates the administrators were entitled to charge for the same types of work. At [24] Finkelstein J said: The second reason is that even if it be permissible to "fix" remuneration prospectively by reference to a rate or scale of charges, such as an hourly rate, which is open ended and has no upper limit (which is what the administrators argue) here the resolutions go far beyond that. The natural meaning of the word "fix" in the context of an entitlement to "such remuneration as is fixed by a resolution of [creditors]" is, so it seems to me, to quantify that remuneration, that is to calculate or ascertain the amount of remuneration: Mayne v Jaques [1960] HCA 23 ; (1960) 101 CLR 169, 173, 174, 180. See also In re Gallard; Ex parte Harris [1892] 1 QB 532, 544. Thus, remuneration will be "fixed" if it is stated as a money sum, or is based on a formula which is capable of being applied according to some objective standard so the sum "can be calculated or ascertained definitely": Fraser Henleins v Cody [1945] HCA 49 ; (1945) 70 CLR 100, 128. In the case of a formula all the objective elements must be identified. 49 Fraser Henliens Pty Ltd v Cody [1945] HCA 49 ; (1945) 70 CLR 100 concerned whether particular formulative phrases embodied in a Prices Regulation Order made under the Black Marketing Act 1942 were so vague and uncertain as to make the order invalid as not fixing a price. Dixon J said (p 128) that a "bare power to "fix" a price cannot be validly exercised without naming a money sum, or prescribing a certain standard by the application of which it can be calculated or ascertained definitely. Otherwise the price is not "fixed"."
Case: King Gee Clothing Co Ltd v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184
Outcome: cited
At p 480 Gibbs J stated (relevant page numbers included): In a series of cases under the National Security (Prices) Regulations, this Court discussed the manner in which the power given by those regulations to fix prices might validly be exercised. It is enough to refer to King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 and Cann's Pty Ltd v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 . In King Gee Clothing Co Pty Ltd v The Commonwealth , Dixon J. said at p 197: "But it is another matter when the basis of the price, however clearly described, involves some matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgment. When that is done no certain objective standard is prescribed; it is not a calculation and the result is not a price fixed or a fixed price. In the same case, Williams J at p 208, repeated an earlier statement that "a bare power to 'fix' a price cannot be validly exercised without naming a money sum, or prescribing a certain standard by the application of which it can be calculated or ascertained definitely." In Cann's Pty. Ltd v The Commonwealth , Latham C.J. said at p 217 that where the prices are fixed by reference to a standard, "the standard must not be such that any element therein can be ascertained only by the exercise of discretion in apportionment, allotment, allocation or otherwise." 50 Hanwha points to the same authorities in support of its submissions that "cash sum" means a specified or fixed amount of money, which is not subject to any condition or indeterminate adjustment. It conceded, as I said, that a formula or mechanism for arriving at the "cash sum" may be used but submitted that it must be one that can be calculated or ascertained definitely; King Gee Clothing Co Ltd v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 at p 208 per Williams J. It must be a "method which will produce the same result whoever applies it so long as he uses it correctly": Cann's Pty Ltd v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 at p 228.
Case: Racecourse Co-operative Sugar Association Limited v Attorney-General of the State of Queensland [1979] HCA 50 ; (1979) 142 CLR 460
Outcome: followed
Racecourse Co-operative Sugar Association Ltd v Attorney-General of the State of Queensland [1979] HCA 50 ; (1979) 142 CLR 460 at 481, concerned the meaning of "... prices ... fixed" in s 6(1) of the Sugar Acquisition Act 1915 Qld).
Case: Re Korda; in the matter of Stockford Ltd [2004] FCA 1682
Outcome: followed
Re Korda; in the matter of Stockford Ltd [2004] FCA 1682 , was concerned with what is meant by "such remuneration as is fixed by a resolution of the company's creditors ..." under s 449E(1)(a) of the Act .
Case: David Grant &amp; Co Pty Limited (rec apptd) v Westpac Banking Corporation (1995) 184 CLR 265
Outcome: cited
It is now well settled that, if a s 459G application and affidavit are not filed and served within the time so specified, the Court has no power to extend the period for the making of such an application: see Aussie Vic Plant Hire at [3]; David Grant &amp; Co Pty Limited (rec apptd) v Westpac Banking Corporation (1995) 184 CLR 265. In the present matter, the statutory demand was served on Dromana on 29 November 2007. The application to set it aside was filed in the Supreme Court of Victoria on 20 December 2007. It was not served on Mr Gryst until 21 December 2007. In consequence, that application was not one made "in accordance with section 459G" of the Act. The emphatic language of s 459G(3) admits of no other conclusion: see Pinn v Barroleg Pty Ltd (1997) 138 FLR 417; Deputy Commissioner of Taxation v Tixana Pty Ltd (2003) 202 ALR 401 ; Hardel Property Holdings Pty Ltd v Allmark Property Management Pty Ltd (2008) 26 ACLC 122 at [1]. While counsel for the plaintiff has sought to avoid this conclusion by recourse to "purposive legislation", the Parliament, in my view, has spoken on this matter with unmistakeable clarity.
Case: Pinn v Barroleg Pty Ltd (1997) 138 FLR 417
Outcome: applied
It is now well settled that, if a s 459G application and affidavit are not filed and served within the time so specified, the Court has no power to extend the period for the making of such an application: see Aussie Vic Plant Hire at [3]; David Grant &amp; Co Pty Limited (rec apptd) v Westpac Banking Corporation (1995) 184 CLR 265. In the present matter, the statutory demand was served on Dromana on 29 November 2007. The application to set it aside was filed in the Supreme Court of Victoria on 20 December 2007. It was not served on Mr Gryst until 21 December 2007. In consequence, that application was not one made "in accordance with section 459G" of the Act. The emphatic language of s 459G(3) admits of no other conclusion: see Pinn v Barroleg Pty Ltd (1997) 138 FLR 417; Deputy Commissioner of Taxation v Tixana Pty Ltd (2003) 202 ALR 401 ; Hardel Property Holdings Pty Ltd v Allmark Property Management Pty Ltd (2008) 26 ACLC 122 at [1]. While counsel for the plaintiff has sought to avoid this conclusion by recourse to "purposive legislation", the Parliament, in my view, has spoken on this matter with unmistakeable clarity. 13 The date the s 459P winding up application was made was 10 June 2008. For the purposes of s 459C(2)(a) the presumption of insolvency could only arise if in the period three months prior to that date, i.e. on or after 10 March 2008, Dromana failed to comply with a statutory demand. Dromana did not fail to comply with the statutory demand during that period. In consequence, Mr Gryst cannot rely on the presumption of insolvency in prosecuting his winding up application as s 459C(2)(a) has not been enlivened in the circumstances: see Pinn v Barroleg Pty Ltd and Deputy Commissioner of Taxation v Tixana Pty Ltd with which decisions I respectfully agree.
Case: Deputy Commissioner of Taxation v Tixana Pty Ltd (2003) 202 ALR 401
Outcome: applied
It is now well settled that, if a s 459G application and affidavit are not filed and served within the time so specified, the Court has no power to extend the period for the making of such an application: see Aussie Vic Plant Hire at [3]; David Grant &amp; Co Pty Limited (rec apptd) v Westpac Banking Corporation (1995) 184 CLR 265. In the present matter, the statutory demand was served on Dromana on 29 November 2007. The application to set it aside was filed in the Supreme Court of Victoria on 20 December 2007. It was not served on Mr Gryst until 21 December 2007. In consequence, that application was not one made "in accordance with section 459G" of the Act. The emphatic language of s 459G(3) admits of no other conclusion: see Pinn v Barroleg Pty Ltd (1997) 138 FLR 417; Deputy Commissioner of Taxation v Tixana Pty Ltd (2003) 202 ALR 401 ; Hardel Property Holdings Pty Ltd v Allmark Property Management Pty Ltd (2008) 26 ACLC 122 at [1]. While counsel for the plaintiff has sought to avoid this conclusion by recourse to "purposive legislation", the Parliament, in my view, has spoken on this matter with unmistakeable clarity. 13 The date the s 459P winding up application was made was 10 June 2008. For the purposes of s 459C(2)(a) the presumption of insolvency could only arise if in the period three months prior to that date, i.e. on or after 10 March 2008, Dromana failed to comply with a statutory demand. Dromana did not fail to comply with the statutory demand during that period. In consequence, Mr Gryst cannot rely on the presumption of insolvency in prosecuting his winding up application as s 459C(2)(a) has not been enlivened in the circumstances: see Pinn v Barroleg Pty Ltd and Deputy Commissioner of Taxation v Tixana Pty Ltd with which decisions I respectfully agree.
Case: Hardel Property Holdings Pty Ltd v Allmark Property Management Pty Ltd (2008) 26 ACLC 122
Outcome: cited
It is now well settled that, if a s 459G application and affidavit are not filed and served within the time so specified, the Court has no power to extend the period for the making of such an application: see Aussie Vic Plant Hire at [3]; David Grant &amp; Co Pty Limited (rec apptd) v Westpac Banking Corporation (1995) 184 CLR 265. In the present matter, the statutory demand was served on Dromana on 29 November 2007. The application to set it aside was filed in the Supreme Court of Victoria on 20 December 2007. It was not served on Mr Gryst until 21 December 2007. In consequence, that application was not one made "in accordance with section 459G" of the Act. The emphatic language of s 459G(3) admits of no other conclusion: see Pinn v Barroleg Pty Ltd (1997) 138 FLR 417; Deputy Commissioner of Taxation v Tixana Pty Ltd (2003) 202 ALR 401 ; Hardel Property Holdings Pty Ltd v Allmark Property Management Pty Ltd (2008) 26 ACLC 122 at [1]. While counsel for the plaintiff has sought to avoid this conclusion by recourse to "purposive legislation", the Parliament, in my view, has spoken on this matter with unmistakeable clarity.
Case: Re Turf Enterprises Pty Ltd [1975] Qd R 266
Outcome: cited
I have already indicated that the plaintiff has not sought to rely upon any other basis for winding up Dromana than its failure to comply with the statutory demand. Shorn of the presumption of insolvency, that application has been so narrowly drawn as to be doomed to failure: see Ford's Principles of Corporations Law at [27.050]. While on a s 459P application the Court may order that an insolvent company be wound up in insolvency: see s 459A; there is no evidentiary basis before me that could suggest insolvency, other than the non-compliance itself. When viewed in the context of the affidavit evidence that has been filed in support of, and in opposition to, the present application, the position is no different. A serious dispute exists between the parties. But Dromana's insolvency is not suggested: cf Re Turf Enterprises Pty Ltd [1975] Qd R 266. Perhaps it was for this reason that counsel for Mr Gryst apparently accepted that the originating process as it stands could not succeed without the aid of the presumption. I am thus in the position of being satisfied in the circumstances that Mr Gryst has no reasonable prospect of successfully prosecuting his s 459P application. 15 I will in consequence order under s 31A(2) of the Federal Court of Australia Act that the originating process be dismissed. I have directed the parties to file and serve submissions relating to costs.
Case: Tokich Holdings Pty Ltd v Sheraton Constructions (NSW) Pty Ltd (in liq) (2004) 185 FLR 130
Outcome: cited
I would add that I have indicated that I would not at this late stage grant leave to amend the originating process to add other possible bases for winding up Dromana in insolvency: cf s 459B of the Corporations Act . Undoubtedly a serious dispute exists between the parties and on substantial grounds, as to Mr Gryst's claims and Dromana's offsetting claim against him. I seriously doubt whether proceedings for winding up in insolvency is an appropriate vehicle in which to resolve what appears to be no more than a commercial dispute: cf Tokich Holdings Pty Ltd v Sheraton Constructions (NSW) Pty Ltd (in liq) (2004) 185 FLR 130 at [72] ff. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 6 August 2008 Counsel for the Plaintiff: Mr M Hoile Counsel for the Defendant: Mr N Lucarelli QC with Mr C Salpic Solicitor for the Defendant: Wilmoth Field Warne Date of Hearing: 5 August 2008 Date of Judgment: 6 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1148.html
Case: Re Ansett Australia Ltd and Korda (No 3) [2002] FCA 90 ; (2002) 115 FCR 409
Outcome: applied
The jurisdiction of the court to give directions of the type sought by the Administrators is found in s 447D(1) of the Act: "The administrator of a company under administration, or of a deed of company arrangement, may apply to the Court for directions about a matter arising in connection with the performance or exercise of any of the administrator's functions and powers." That power is not unlimited. For example, it does not extend to giving an administrator a direction as to a decision which is wholly business or commercial in nature. In Re Ansett Australia Ltd and Korda (No 3) [2002] FCA 90 ; (2002) 115 FCR 409 I said at 428: "There must be something more than the making of a business or commercial decision before a court will give directions in relation to, or approving of, the decision. It may be a legal issue of substance or procedure, it may be an issue of power, propriety or reasonableness, but some issue of this nature is required to be raised. It is insufficient to attract an order giving directions that the liquidator or administrator has a feeling of apprehension or unease about the business decision made and wants reassurance. There must be some issue which arises in relation to the decision. A court should not give its imprimatur to a business decision simply to alleviate a liquidator's or administrator's unease. There must be an issue calling for the exercise of legal judgment." Shortly thereafter in Re Ansett Australia Ltd and Mentha (2002) 41 ACSR 605, I said at 616: "However, where issues as to the propriety or reasonableness of the conduct undertaken, or the decision made, by an administrator is called in question, it is open to the court to give a direction which, in substance, sanctions or approves the conduct undertaken, or decision made, by the administrator."
Case: Re Ansett Australia Ltd and Mentha (2002) 41 ACSR 605
Outcome: applied
The jurisdiction of the court to give directions of the type sought by the Administrators is found in s 447D(1) of the Act: "The administrator of a company under administration, or of a deed of company arrangement, may apply to the Court for directions about a matter arising in connection with the performance or exercise of any of the administrator's functions and powers." That power is not unlimited. For example, it does not extend to giving an administrator a direction as to a decision which is wholly business or commercial in nature. In Re Ansett Australia Ltd and Korda (No 3) [2002] FCA 90 ; (2002) 115 FCR 409 I said at 428: "There must be something more than the making of a business or commercial decision before a court will give directions in relation to, or approving of, the decision. It may be a legal issue of substance or procedure, it may be an issue of power, propriety or reasonableness, but some issue of this nature is required to be raised. It is insufficient to attract an order giving directions that the liquidator or administrator has a feeling of apprehension or unease about the business decision made and wants reassurance. There must be some issue which arises in relation to the decision. A court should not give its imprimatur to a business decision simply to alleviate a liquidator's or administrator's unease. There must be an issue calling for the exercise of legal judgment." Shortly thereafter in Re Ansett Australia Ltd and Mentha (2002) 41 ACSR 605, I said at 616: "However, where issues as to the propriety or reasonableness of the conduct undertaken, or the decision made, by an administrator is called in question, it is open to the court to give a direction which, in substance, sanctions or approves the conduct undertaken, or decision made, by the administrator." 75 The power of the Court to give directions to administrators is also enhanced by the operation of s 447A of the Act as it enables the Court to order that the directions power in s 447D operate in relation to a particular company in a particular way: see Re Ansett Australia Ltd and Mentha (supra) at 615-616. However that broad power and the objective underpinning it: "is limited by the overriding requirement that any orders made and directions given must be designed to achieve the objects of Pt 5.3A as expressed in s 435A of the Act." ( Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2004) 49 ACSR 1 at 15). Those objects include bringing about a better return for the particular company's creditors than would result from a liquidation.
Case: Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2004) 49 ACSR 1
Outcome: applied
The power of the Court to give directions to administrators is also enhanced by the operation of s 447A of the Act as it enables the Court to order that the directions power in s 447D operate in relation to a particular company in a particular way: see Re Ansett Australia Ltd and Mentha (supra) at 615-616. However that broad power and the objective underpinning it: "is limited by the overriding requirement that any orders made and directions given must be designed to achieve the objects of Pt 5.3A as expressed in s 435A of the Act." ( Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2004) 49 ACSR 1 at 15). Those objects include bringing about a better return for the particular company's creditors than would result from a liquidation.
Case: Riddle v Riddle [1952] HCA 12 ; (1952) 85 CLR 202
Outcome: considered
The genesis of this provision was s 57 of the Trustee Act 1925 (UK) which is in substantially the same terms. In Riddle v Riddle [1952] HCA 12 ; (1952) 85 CLR 202 the High Court considered the scope of the power of s 81 of the Trustee Act 1925 (NSW) which is in similar terms to the Victorian Act. The majority of the High Court construed s 81 in very wide terms. Dixon J said at 214: "Section 81 is a provision conferring very large and important powers upon the Court which depend upon the Court's opinion of what is expedient, a criterion of the widest and most flexible kind. ... I do not think that the powers given by s. 81 were intended to be restricted by any implications." Williams J said at 220: "The section is couched in the widest possible terms. The sole question is whether it is expedient in the interest of the trust property as a whole that such an order should be made." and at 222: "The one and only test is the expediency of the act or thing which the Court is asked to authorise a trustee to do or abstain from doing. The Court has only to be of the opinion that the trust property as a whole will in fact benefit from the making of the order." ( Riddle v Riddle (supra) was subsequently applied in Re Baker [1961] VR 641 and Arakella v Paton [2004] NSWSC 13 ; (2004) 60 NSWLR 334).