mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: FP Leonard Advertising v KD Travel Service Pty Ltd (1993) 11 ACLC 1,203
Outcome: referred to
The formalities of serving a statutory notice of demand are set out in s 109X of the Corporations Act . Service by post to the registered office shown on the records maintained by the Australian Securities and Investments Commission is effective service under s 109X(1)(a) (see for example FP Leonard Advertising v KD Travel Service Pty Ltd (1993) 11 ACLC 1,203.) 21 Section 29(1) of the Acts Interpretation Act 1901 (Cth) is applicable to the service of statutory demands due to s 5C of the Corporations Act . Section 29(1) deems postal service under s 109X(1)(a) to have been "effected at the time at which the letter would be delivered in the ordinary course of post", after it has been sent in a properly addressed, prepaid and posted letter. As a result, a statutory demand is validly served if posted to the registered office of the company as at the date of posting, even though service is deemed not to be effected until a time after posting, namely when the letter would be delivered in the ordinary course of post. 22 By virtue of s 160 of the Evidence Act 1995 (Cth) the statutory demand in the present case is presumed to have been served on Monday 17 July 2006, being the fourth working day after posting on Tuesday 11 July 2006. The defendant could have applied to set aside the demand in the period ending on Monday 7 August 2006. This was not done. 23 Further, no evidence has been submitted to warrant the presumption provided for in s 160 of the Evidence Act 1995 (Cth) being called into doubt. 24 In my opinion there was proper and effective service of the statutory demand.
Case: NT Resorts Pty Ltd v Deputy Commissioner of Taxation (1998) 153 ALR 359
Outcome: applied
The defendant was unable to suggest any authority to the effect that, where the Commissioner founds a statutory demand on an assessment and there is a later assessment, the statutory demand is thereby invalidated. The defendant sought to rely on comments of Finkelstein J in NT Resorts Pty Ltd v Deputy Commissioner of Taxation (1998) 153 ALR 359. These do not suggest any support for the propositions argued. His Honour said, at 367: It may be open to argument that where the only debt that is specified in a statutory demand is a debt that is not due and payable then the demand is not a statutory demand at all. It is true that a statutory demand is defined by s 9 to include a demand that purports to be a demand. That is, a demand that professes or claims to be a statutory demand will be a statutory demand for the purposes of the Corporations Law: see Kalamunda [ Meat Wholesalers Pty Ltd v Reg Russell &amp; Sons Pty Ltd (1994) 51 FCR 446 at] 452. Nevertheless, there may be a case where a document that professes to be a statutory demand contains such a serious deficiency that it is impossible to treat the document as a statutory demand no matter what it professes to be: Topfelt [ Pty Ltd v State Bank of New South Wales Ltd (1993) 47 FCR 226 at] 238; Kalamunda at FCR 452. In this case it is not necessary to decide whether the demand is a statutory demand because it has not been established that the debts were not due and payable when the demand was served. 28 Setting aside the misplaced conception of "justiciability", the fact is that, at the time of service of the statutory demand, there were debts lawfully payable by the defendant to the plaintiff, as alleged in that demand. By independent operation of different statutory provisions there are now lawfully payable debts which the defendant cannot duly pay so as to compel a conclusion of insolvency. At no relevant time has the defendant ever been free of debt to the plaintiff at a level sufficient to enable resort by the plaintiff to the insolvency provisions of the Corporations Act . The statutory demand did not contain "such a serious deficiency that it is impossible to treat the document as a statutory demand" for the same reason as that given by Finkelstein J: it has not been shown that the debts in question "were not due and payable when the demand was served " (emphasis added). 29 With respect to grounds 4, 5 and 6 above, the defendant requires leave to raise these issues by virtue of s 459S of the Corporations Act . Leave is not to be granted unless the Court is satisfied that the grounds are material to the solvency of the company. The leave which may be granted under s 459S(1) is not leave to apply to set aside the statutory demand, but rather leave to oppose the application on a particular ground. If the ground of opposition is one which the company could have relied upon, but did not, in an application to set aside the demand, leave is required.
Case: Re Presha Engineering (Aust) Pty Ltd (1983) 1 ACLC 675
Outcome: cited
The Court has a discretion under s 467 not to wind up a company "even if a ground has been proved on which the Court may order the company to be wound up". For example, it may, in appropriate circumstances, be better for creditors as a whole to allow the company to trade on rather than have the company wound up. The Court has a duty when considering whether to make a winding up order to have regard not only to the interests of the applicant creditor, but to the interests of all creditors: Re Presha Engineering (Aust) Pty Ltd (1983) 1 ACLC 675 at 677. 38 No evidence was put forward regarding the position of unsecured creditors other than the plaintiff. The National Australia Bank is a secured creditor. In the absence of such evidence, it cannot be said that it is against the interest of any creditors that the defendant be wound up in insolvency. 39 There was a plea of hardship as to Ms Freeman's personal position. That the company might be wound up is a sad affair for her and she has had some unfortunate and affecting distractions, not of her making. Nevertheless, over a period of years she has been the controller of the company and has permitted it to slip into its insolvency. There is no proven prospect that that state can tolerably quickly be cured.
Case: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225
Outcome: applied
The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them. Accordingly, orders refusing to set aside a default judgment or refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success (per McHugh, Kirby and Callinan JJ in Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 230 [25] ; see also per McHugh ACJ, Gummow and Heydon JJ in Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 2 [4] ).
Case: Re Luck [2003] HCA 70 ; (2003) 203 ALR 1
Outcome: referred to
The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them. Accordingly, orders refusing to set aside a default judgment or refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success (per McHugh, Kirby and Callinan JJ in Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 230 [25] ; see also per McHugh ACJ, Gummow and Heydon JJ in Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 2 [4] ).
Case: Calverley v Green [1984] HCA 81 ; (1985) 155 CLR 242
Outcome: referred to
It seems to me that, if at a hearing of the trustee's application, the facts deposed to by the appellant were accepted, then it may well be inappropriate for there to be a sale of the property with an equal division of the proceeds of sale as contemplated by the orders made by the Federal Magistrate (see generally Calverley v Green [1984] HCA 81 ; (1985) 155 CLR 242, Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583, Baumgartner v Baumgartner [1987] HCA 59 ; (1987) 164 CLR 137 and Parsons v McBain [2001] FCA 376 ; (2001) 109 FCR 120).
Case: Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583
Outcome: referred to
It seems to me that, if at a hearing of the trustee's application, the facts deposed to by the appellant were accepted, then it may well be inappropriate for there to be a sale of the property with an equal division of the proceeds of sale as contemplated by the orders made by the Federal Magistrate (see generally Calverley v Green [1984] HCA 81 ; (1985) 155 CLR 242, Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583, Baumgartner v Baumgartner [1987] HCA 59 ; (1987) 164 CLR 137 and Parsons v McBain [2001] FCA 376 ; (2001) 109 FCR 120).
Case: Baumgartner v Baumgartner [1987] HCA 59 ; (1987) 164 CLR 137
Outcome: referred to
It seems to me that, if at a hearing of the trustee's application, the facts deposed to by the appellant were accepted, then it may well be inappropriate for there to be a sale of the property with an equal division of the proceeds of sale as contemplated by the orders made by the Federal Magistrate (see generally Calverley v Green [1984] HCA 81 ; (1985) 155 CLR 242, Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583, Baumgartner v Baumgartner [1987] HCA 59 ; (1987) 164 CLR 137 and Parsons v McBain [2001] FCA 376 ; (2001) 109 FCR 120).
Case: Parsons v McBain [2001] FCA 376 ; (2001) 109 FCR 120
Outcome: referred to
It seems to me that, if at a hearing of the trustee's application, the facts deposed to by the appellant were accepted, then it may well be inappropriate for there to be a sale of the property with an equal division of the proceeds of sale as contemplated by the orders made by the Federal Magistrate (see generally Calverley v Green [1984] HCA 81 ; (1985) 155 CLR 242, Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583, Baumgartner v Baumgartner [1987] HCA 59 ; (1987) 164 CLR 137 and Parsons v McBain [2001] FCA 376 ; (2001) 109 FCR 120).
Case: Spencer v The Commonwealth (1907) 5 CLR 418
Outcome: referred to
arrive at the value of property on a particular date, it is necessary to make a judgment as to the price at which the property would be sold on that date by voluntary bargaining between a seller and a buyer willing to trade, but neither of whom is so anxious to do so that the buyer or seller would overlook any ordinary business consideration. The judgment must be made on the assumption that both buyer and seller are perfectly acquainted with the property and cognisant of all circumstances that might affect its value, either advantageously or prejudicially. Having placed itself in the position of such parties at the relevant date, the question for the decision maker to determine is the point at which the buyer and seller would meet: that is to say, the aim is to determine the sum that the buyer would be willing to pay and the price that the seller would be prepared to take (see Spencer v The Commonwealth [1907] HCA 70 ; (1907) 5 CLR 418 at 441). So much is undoubted.
Case: Teh v Ramsay Centauri Pty Ltd [2002] NSWSC 456
Outcome: referred to
the first question that arises in the present context is to determine just what is to be valued. Section 667C refers to ' the company as a whole '. That phrase signifies the overall enterprise or undertaking of the relevant company, in the sense of the whole of its assets and its liabilities as a going concern or as a cohesive collection of resources organised so as to produce a return through outlay. Attention is directed at the sum of the component parts, viewed as a productive organisational whole and not at any particular asset or advantage (see Teh v Ramsay Centauri Pty Ltd [2002] NSWSC 456 at [13] ). In particular, the phrase does not direct attention to the value of particular share capital of the relevant company. On the other hand, dealings in the share capital of a company may give considerable assistance in the task of determining the value of that company as a whole. The date as at which the value is to be determined is the date at which the 90% holder gives the relevant compulsory acquisition notice. It is at that point that the 90% holder initiates the process for compulsory acquisition. The holders of the shares that are to be subject to acquisition are drawn into a relationship with the 90% holder, whether they like it or not, by the operation of the Act (see Teh v Ramsay Centauri at [28]). The E&amp;Y Report did not directly address the question of the value of the Company as a whole, in the terms just outlined. The E&amp;Y Report referred expressly to the provisions of s 667C(1) and referred to Practice Note 43, issued by the Commission, which provides guidance on possible valuation methodologies for an expert to consider. However, notwithstanding the express reference to s 667C(1), the E&amp;Y Report adopted the approach of valuing the ordinary shares and the preference shares in the Company and then aggregating those values to arrive at the value of the Company as a whole. While, ultimately, the result of such an exercise may be helpful, that does not appear to me to be the approach called for by the terms of s 667C. The Company operates in the newspaper printing and publishing industry in Australia. The E&amp;Y Report began with an overview of that industry followed by a profile of the Company. The core operating activity of the Company is publishing ' The Advocate ', a regional daily newspaper based in Burnie, Tasmania. The Company also operates a printing business which prints The Advocate as well as undertaking general printing for third parties. The Company also has a 40 per cent interest in The Examiner Newspaper Pty Ltd, which publishes ' The Examiner ', a newspaper based in Launceston, Tasmania.
Case: Winpar Holdings Ltd v Austrim Nylex Ltd [2005] VSCA 211
Outcome: referred to
do not consider that an addition for the special value identified in the E&amp;Y Report is appropriate, having regard to the language of s 667C. As I have said, the first step requires the determination of the value, as at the date of the compulsory acquisition notice, of the Company as a whole, in the sense indicated above. It is impermissible, in determining fair value, to make any allowance for synergies to be achieved by the acquisition. It is equally impermissible in determining fair value to take into account special benefits deriving from full ownership (see Winpar Holdings Ltd v Austrim Nylex Ltd [2005] VSCA 211 at [35] ). I have taken some trouble to deal with Ernst &amp; Young's opinion in some detail since, for the reasons I have indicated, I consider that it adopts an inappropriate approach. However, neither defendant suggested that such an inappropriate approach invalidated the process. That is to say, they accepted that it is a matter for the Court, on the basis of the evidence before it, which was limited to the Expert's Report, to determine whether Regional has established that $2.50 per preference share gives shareholders a fair value for the preference shares. The defendants advanced arguments concerning the basis upon which the so-called special value should be allocated between ordinary shares and preference shares. The contention appears to be that Regional is a buyer of preference shares, and the present holders, apart from Regional, are sellers of preference shares. They suggested that it is necessary to allocate the special value of $1.4 million identified by Ernst &amp; Young between Regional, on the one hand, and preference share holders, who include Regional, on the other hand. Something in the order of half and half was suggested as appropriate. The contention appears to be that that exercise should be undertaken as part of the allocation of the value of the Company as a whole between the two classes of shares.
Case: National Mutual Holdings Pty Ltd v Sentury Corporation &amp; Ors [1990] FCA 245
Outcome: cited
The application of the implied undertaking to proceedings in this Court was asserted by Northrop J in National Mutual Holdings Pty Ltd v Sentury Corporation &amp; Ors [1990] FCA 245 when his Honour said (at [17]): It is clear that according to Australian law a person who acquires a document pursuant to the processes of the Court is under a duty not to disclose or make use of that document for purposes other than the Court proceedings without the leave of the Court or the person from whom the document has been obtained.
Case: Crest Homes Plc v Marks [1987] AC 829
Outcome: cited
In Crest Homes Plc v Marks [1987] AC 829, which followed the decision of the House of Lords in Harman [1983] 1 AC at 280, Lord Oliver allowed that the undertaking could be modified to authorise use of discovered documents in other proceedings where there were "special circumstances". In Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576, Burchett J commented on that test (at 578): As far as the expression "special circumstances" is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? "Special" is one of those words which derive almost all their meaning from the context ... If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. Lockhart J took a like approach in Sweetman v Australian Thoroughbred Pty Ltd [1992] FCA 1059 and both were followed by Wilcox J in Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 at 223-225. In the latter case Wilcox J said (at 225): For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
Case: Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576
Outcome: cited
In Crest Homes Plc v Marks [1987] AC 829, which followed the decision of the House of Lords in Harman [1983] 1 AC at 280, Lord Oliver allowed that the undertaking could be modified to authorise use of discovered documents in other proceedings where there were "special circumstances". In Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576, Burchett J commented on that test (at 578): As far as the expression "special circumstances" is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? "Special" is one of those words which derive almost all their meaning from the context ... If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. Lockhart J took a like approach in Sweetman v Australian Thoroughbred Pty Ltd [1992] FCA 1059 and both were followed by Wilcox J in Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 at 223-225. In the latter case Wilcox J said (at 225): For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
Case: Sweetman v Australian Thoroughbred Pty Ltd [1992] FCA 1059
Outcome: cited
In Crest Homes Plc v Marks [1987] AC 829, which followed the decision of the House of Lords in Harman [1983] 1 AC at 280, Lord Oliver allowed that the undertaking could be modified to authorise use of discovered documents in other proceedings where there were "special circumstances". In Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576, Burchett J commented on that test (at 578): As far as the expression "special circumstances" is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? "Special" is one of those words which derive almost all their meaning from the context ... If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. Lockhart J took a like approach in Sweetman v Australian Thoroughbred Pty Ltd [1992] FCA 1059 and both were followed by Wilcox J in Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 at 223-225. In the latter case Wilcox J said (at 225): For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.