mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Shomat v Rubenstein (1995) 124 FLR 284
Outcome: cited
legal principles emerging from Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 have been largely confined to circumstances where a banker's certificate has been issued as to the amount of indebtedness of a debtor to the bank (for example Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , Je Maintiendrai Pty Ltd v Australia and New Zealand Banking Group Ltd (1985) 128 SASR 70, Campbell v National Australia Bank Ltd [1994] SASC 4526 , Equus Financial Services Limited v Sabri [1994] FCA 1331 , George Biritz v National Australia Bank Limited [1995] VSC 91 , Shomat v Rubenstein (1995) 124 FLR 284 , Thurwood v First for Finance Pty Ltd [1997] FCA 559 , Australia &amp; New Zealand Banking v Pan Foods Company Importers &amp; Distributors Pty Ltd [1998] VSC 346 , Jenkins v National Australia Bank Ltd [1999] VSCA 33 , State Bank v Lo [2000] NSWSC 1191 , State Bank of NSW v Kit Cheng Chia [2000] NSWSC 552 , Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305 , Julong Pty Ltd v Fenn [2002] QCA 529 , Apple Computer [2003] NSWSC 126 , Commonwealth Bank of Australia v Bouwman [2003] WASC 205 , Timms v Commonwealth Bank of Australia [2004] NSWSC 76 , Permanent Trustee Company Limited v Gulf Import and Export Company [2008] VSC 162). Since and possible because of Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , bankers' certificates have become well-known in practice. That is not to say that the principle articulated in Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 has not been extended beyond the banker/customer/surety relationship, however circumstances in which the Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 principle is applicable are primarily confined to those involving the issue of a certificate as to the existence of a fact pursuant to legislation, or certain types of agreement, for example:
Case: Spencer, Turner and Boldero v Lotz (1916) 32 TLR 373
Outcome: cited
in any event I consider the facts that the profit forecasts which formed the framework for negotiations and discussions in relation to the profit guarantee related only to the Brisbane-based business of Forbes Australia, and that there was no suggestion prior to 22 September 1997 that Forbes would undergo any radical expansion in its operations, are of no moment in relation to the liabilities of the respondents as guarantors. I take this view because I consider that the acquisition of Favco in the circumstances I have outlined was actually, to paraphrase comments of Phillips J in City of London v New Hampshire Insurance Company (unreported, Phillips J Queens Bench Division (Commercial Court) 18 January 1991), discussed in Butterworth's Journal of International Banking and Financial Law , March 1991, pp 144-5 and cited in Duffy Bros Fruit Market (Campbelltown) v Gumland Property Holdings Pty Ltd [2007] NSWCA 7 at [220] ) an event "arising out of a contemplated course of dealing" and as such it remained within the scope of the guarantee. No provision of the share sale agreement or the guarantees signed by the respondents limited the activities of Forbes Australia following execution of the share sale agreement. The expansion of the business of Forbes Australia under the control of Mr Forbes as chief executive officer by the acquisition of Favco was not an event which could be considered as outside the terms of either the share sale agreement or the relevant guarantees. There was no covenant in any relevant agreement that, for example, Forbes Australia would continue to operate a business based only in Brisbane (contrast for example Spencer, Turner and Boldero v Lotz (1916) 32 TLR 373 where the Court held that the intention of the parties was that the guarantee should only be in respect of goods supplied in a certain location and not otherwise).
Case: State Bank v Lo [2000] NSWSC 1191
Outcome: cited
legal principles emerging from Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 have been largely confined to circumstances where a banker's certificate has been issued as to the amount of indebtedness of a debtor to the bank (for example Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , Je Maintiendrai Pty Ltd v Australia and New Zealand Banking Group Ltd (1985) 128 SASR 70, Campbell v National Australia Bank Ltd [1994] SASC 4526 , Equus Financial Services Limited v Sabri [1994] FCA 1331 , George Biritz v National Australia Bank Limited [1995] VSC 91 , Shomat v Rubenstein (1995) 124 FLR 284 , Thurwood v First for Finance Pty Ltd [1997] FCA 559 , Australia &amp; New Zealand Banking v Pan Foods Company Importers &amp; Distributors Pty Ltd [1998] VSC 346 , Jenkins v National Australia Bank Ltd [1999] VSCA 33 , State Bank v Lo [2000] NSWSC 1191 , State Bank of NSW v Kit Cheng Chia [2000] NSWSC 552 , Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305 , Julong Pty Ltd v Fenn [2002] QCA 529 , Apple Computer [2003] NSWSC 126 , Commonwealth Bank of Australia v Bouwman [2003] WASC 205 , Timms v Commonwealth Bank of Australia [2004] NSWSC 76 , Permanent Trustee Company Limited v Gulf Import and Export Company [2008] VSC 162). Since and possible because of Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , bankers' certificates have become well-known in practice. That is not to say that the principle articulated in Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 has not been extended beyond the banker/customer/surety relationship, however circumstances in which the Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 principle is applicable are primarily confined to those involving the issue of a certificate as to the existence of a fact pursuant to legislation, or certain types of agreement, for example:
Case: Thurwood v First for Finance Pty Ltd [1997] FCA 559
Outcome: cited
legal principles emerging from Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 have been largely confined to circumstances where a banker's certificate has been issued as to the amount of indebtedness of a debtor to the bank (for example Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , Je Maintiendrai Pty Ltd v Australia and New Zealand Banking Group Ltd (1985) 128 SASR 70, Campbell v National Australia Bank Ltd [1994] SASC 4526 , Equus Financial Services Limited v Sabri [1994] FCA 1331 , George Biritz v National Australia Bank Limited [1995] VSC 91 , Shomat v Rubenstein (1995) 124 FLR 284 , Thurwood v First for Finance Pty Ltd [1997] FCA 559 , Australia &amp; New Zealand Banking v Pan Foods Company Importers &amp; Distributors Pty Ltd [1998] VSC 346 , Jenkins v National Australia Bank Ltd [1999] VSCA 33 , State Bank v Lo [2000] NSWSC 1191 , State Bank of NSW v Kit Cheng Chia [2000] NSWSC 552 , Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305 , Julong Pty Ltd v Fenn [2002] QCA 529 , Apple Computer [2003] NSWSC 126 , Commonwealth Bank of Australia v Bouwman [2003] WASC 205 , Timms v Commonwealth Bank of Australia [2004] NSWSC 76 , Permanent Trustee Company Limited v Gulf Import and Export Company [2008] VSC 162). Since and possible because of Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , bankers' certificates have become well-known in practice. That is not to say that the principle articulated in Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 has not been extended beyond the banker/customer/surety relationship, however circumstances in which the Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 principle is applicable are primarily confined to those involving the issue of a certificate as to the existence of a fact pursuant to legislation, or certain types of agreement, for example:
Case: Timms v Commonwealth Bank of Australia [2004] NSWSC 76
Outcome: cited
legal principles emerging from Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 have been largely confined to circumstances where a banker's certificate has been issued as to the amount of indebtedness of a debtor to the bank (for example Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , Je Maintiendrai Pty Ltd v Australia and New Zealand Banking Group Ltd (1985) 128 SASR 70, Campbell v National Australia Bank Ltd [1994] SASC 4526 , Equus Financial Services Limited v Sabri [1994] FCA 1331 , George Biritz v National Australia Bank Limited [1995] VSC 91 , Shomat v Rubenstein (1995) 124 FLR 284 , Thurwood v First for Finance Pty Ltd [1997] FCA 559 , Australia &amp; New Zealand Banking v Pan Foods Company Importers &amp; Distributors Pty Ltd [1998] VSC 346 , Jenkins v National Australia Bank Ltd [1999] VSCA 33 , State Bank v Lo [2000] NSWSC 1191 , State Bank of NSW v Kit Cheng Chia [2000] NSWSC 552 , Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305 , Julong Pty Ltd v Fenn [2002] QCA 529 , Apple Computer [2003] NSWSC 126 , Commonwealth Bank of Australia v Bouwman [2003] WASC 205 , Timms v Commonwealth Bank of Australia [2004] NSWSC 76 , Permanent Trustee Company Limited v Gulf Import and Export Company [2008] VSC 162). Since and possible because of Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , bankers' certificates have become well-known in practice. That is not to say that the principle articulated in Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 has not been extended beyond the banker/customer/surety relationship, however circumstances in which the Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 principle is applicable are primarily confined to those involving the issue of a certificate as to the existence of a fact pursuant to legislation, or certain types of agreement, for example:
Case: Wallace-Smith v Thiess Infraco (Swanston) Pty Ltd [2005] FCAFC 49
Outcome: cited
is settled law that a surety will be discharged from his or her obligations where there is a fundamental alteration to the guaranteed obligations to which the surety has not consented: Ankar [1987] HCA 15 ; (1987) 162 CLR 549 , Wallace-Smith v Thiess Infraco (Swanston) Pty Ltd [2005] FCAFC 49 at [302] . As the majority said in Ankar (1987) 162 CLR 546 after discussing a number of English cases: These statements of principle ... indicate that the principle is the by-product, not so much of the general law of contract, as of the special relationship between creditor and surety arising out of the suretyship contract upon which equity fastened to protect the surety when the creditor's conduct affected the surety's liability: Holme v Brunskill . According to the English cases, the principle applies so as to discharge the surety when conduct on the part of the creditor has the effect of altering the surety's rights, unless the alteration is unsubstantial and not prejudicial to the surety. The rule does not permit the courts to inquire into the effect of the alteration. The consequence is that, to hold the surety to its bargain, the creditor must show that the nature of the alteration can be beneficial to the surety only or that by its nature it cannot in any circumstances increase the surety's risk, e.g. a reduction in the debtor's debt or in the interest payable by the surety. The mere possibility of detriment is enough to bring about the discharge of the surety. (at 559-560) As I have already observed, a surety is discharged where there is a fundamental alteration to the guaranteed obligations to which the surety has not consented unless the alteration is unsubstantial and not prejudicial to the surety: Ankar [1987] HCA 15 ; (1987) 162 CLR 549 ; Wallace-Smith [2005] FCAFC 49.
Case: Westminster City Council v Duke of Westminster [1991] 4 All ER 136
Outcome: cited
is trite law that past consideration is no consideration ( Eastwood v Kenyon [1840] EngR 80 ; (1840) 11 A &amp; E 438 , 113 ER 482 , Roscorla v Thomas [1842] EngR 70 ; (1842) 3 QB 234 , 114 ER 496, and see the discussion in such learned texts as Chitty on Contracts (30th ed, Vol 1, Sweet &amp; Maxwell, 2008) at 270 et seq and Carter JW, Carter on Contract (Vol 1 looseleaf, Butterworths, 2002) at [06-230] et seq). However where the giving of the consideration and the making of the promise are substantially one transaction, the exact order of events is not decisive and the consideration is treated as executed consideration rather than past consideration (Carter JW, Carter on Contract (Vol 1 looseleaf, Butterworths, 2002) at [06-250], Chitty on Contracts (30th ed, Vol 1, Sweet &amp; Maxwell, 2008) at 271). So, for example, a contract to erect buildings on land and a contract to grant of lease of land were in fact one transaction, notwithstanding that the lease was not entered until the relevant buildings were completed: Westminster City Council v Duke of Westminster [1991] 4 All ER 136 , discussed in Chitty at 271). Further, executed consideration is good consideration in circumstances where an act is done at the request of the promisor, it is understood that payment would be made, and the payment is legally recoverable ( re Casey's Patents [1892] 1 Ch 104 , Pao On v Lau Yiu Long [1979] UKPC 2 ; [1980] AC 614 at 629).
Case: SZFDZ v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 974
Outcome: followed
Lacking in substance is an attempt to draw a distinction founded upon a factual contention that in the circumstances of the present case a Departmental officer intervened to " prohibit the possible exercise of the power by the Minister ". In SZFDZ v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 974 Moore J concluded that a like application for leave should be refused and reached that conclusion " regardless of whether the request was forwarded to the Minister ". His Honour observed: [7] The Minister submitted that the application for leave to appeal should be dismissed with costs because there were no reasonable prospects of success. First, the Federal Magistrate was clearly correct in concluding that there was no jurisdiction to review the Minister's decision for the reasons accepted by the Federal Magistrate. This was so regardless of whether the request was referred to the Minister for her personal consideration, and regardless of whether the delegate's decision was affected by jurisdictional error, notwithstanding there was no evidence at all to support such an assertion. Secondly, as was clear from s 417(7) of the Act, the Minister had no duty to consider the power under s 417, and therefore relief could not have been granted in the Court below even if there had been jurisdiction to consider the application. An application for special leave to appeal from His Honour's decision has been dismissed: SZFDZ v Minister for Immigration &amp; Multicultural Affairs [2007] HCA Trans 759.
Case: SZFDZ v Minister for Immigration &amp; Multicultural Affairs [2007] HCA Trans 759
Outcome: cited
Lacking in substance is an attempt to draw a distinction founded upon a factual contention that in the circumstances of the present case a Departmental officer intervened to " prohibit the possible exercise of the power by the Minister ". In SZFDZ v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 974 Moore J concluded that a like application for leave should be refused and reached that conclusion " regardless of whether the request was forwarded to the Minister ". His Honour observed: [7] The Minister submitted that the application for leave to appeal should be dismissed with costs because there were no reasonable prospects of success. First, the Federal Magistrate was clearly correct in concluding that there was no jurisdiction to review the Minister's decision for the reasons accepted by the Federal Magistrate. This was so regardless of whether the request was referred to the Minister for her personal consideration, and regardless of whether the delegate's decision was affected by jurisdictional error, notwithstanding there was no evidence at all to support such an assertion. Secondly, as was clear from s 417(7) of the Act, the Minister had no duty to consider the power under s 417, and therefore relief could not have been granted in the Court below even if there had been jurisdiction to consider the application. An application for special leave to appeal from His Honour's decision has been dismissed: SZFDZ v Minister for Immigration &amp; Multicultural Affairs [2007] HCA Trans 759.
Case: Trinh v Minister for Immigration &amp; Citizenship [2008] FCA 299
Outcome: cited
The present Application , it may be noted, was heard concurrently with another Application for Leave to Appeal involving s 351 of the 1958 Act. Leave was also refused in the proceedings concerning that other Application : Trinh v Minister for Immigration &amp; Citizenship [2008] FCA 299. 12 Leave should be refused as the Application has no prospects of success. 13 An Affidavit has been filed by the Respondent Minister estimating its costs on a party-party basis to be $1,800. In the event that the Application was refused, Counsel for the Applicant neither opposed the making of an order for costs nor an order in the sum estimated.
Case: Australasian Meat Industry Employees' Union v Peerless Holdings [2000] FCA 1047 ; (2000) 103 FCR 577
Outcome: cited
Economic pressure that is applied illegitimately can amount to duress. Such is the position in relation to the common law torts: Universe Tankships Inc of Monrovia v International Transport Workers Federation [1981] UKHL 9 ; [1983] 1 AC 366 at 400 per Scarman LJ. However, as Finn J observed (in Australasian Meat Industry Employees' Union v Peerless Holdings Pty Ltd [2000] FCA 1047 ; (2000) 103 FCR 577 at [54] ): 'Economic duress should not be found lightly'.
Case: Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 
Outcome: cited
The question to be resolved is: did any conduct of the respondent constitute the application of duress in connection with an AWA? As a starting point, it is worth noting the notion of freedom of contract that underpins the legal framework of social intercourse and interaction. As Kirby P (as he then was) observed in Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 at 133: 'It is an attribute of a free society, as we know it, that it is generally left to parties themselves to make bargains. It is therefore left to them sometimes to fail to make bargains or to fail to agree on particular terms. Well meaning, paternalistic interference by courts in the market place, unless authorised by statute or clear authority, transfers to the courts the economic decisions which our law, properly in my view, normally reserves to parties themselves'.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: applied
Ryan J held in C anturi v Sita Coaches Pty Ltd [2002] FCA 349 ; (2002) 116 FCR 276 ('C anturi ') at [44] that the onus of proof rests with the party alleging duress, the contravention must be proved on the balance of probabilities, and the cautions in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 are to be applied: ' [T] he onus of proving duress remains on the applicants and it is one which, having regard to the seriousness of the alleged contravention, has to be proved to the reasonable satisfaction of the Court in accordance with Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336.'
Case: Schanka v Employment National (Administration) Pty Ltd (1999) 166 ALR 663
Outcome: applied
For illegitimate pressure to arise, an offer of employment contingent upon the signing of an AWA is insufficient in the absence of additional factors. As Moore J observed in the first stage of the Schanka litigation in Schanka v Employment National (Administration) Pty Ltd (1999) 166 ALR 663 (' Schanka No 1 ') at [43]: 'I doubt that the mere fact that an employer offers employment on the basis that an AWA in certain terms must be made is illegitimate pressure. It would do no more than place the potential employee in the position of either declining or accepting the employment on those terms and regulated that way, that is by an AWA. Something more is probably necessary'. 20 This view was confirmed by the Full Court in the Schanka appeal. The Court said (at [22]): 'In our view, the Explanatory Memorandum indicated only that to stipulate that entry into an AWA is essential to obtain employment with the offeror will not, of itself, or necessarily, constitute duress'. 21 As Moore J said in Schanka No 1 at [43], for the application of pressure to become illegitimate: 'it must be pressure that is likely to have the effect of denying the exercise of free will if an AWA was made. It also must be intended to have that effect'. It follows that s 170WG(1) does not confine the prohibition on duress to situations which have actually resulted in the conclusion of an AWA. The authorities make it clear that s 170WG(1), with its prohibition of duress 'in connection with' an AWA, applies to both the formulation of an AWA and to the completed AWA, regardless of whether entry into an AWA by an employee or employer eventuates. As Moore J said in the Schanka No 1 at [42]: 'In my opinion s 170WG(1), properly construed, applies to the conduct of a person applying duress irrespective of whether that conduct actually results in the making of an AWA and irrespective of whether, as a matter of fact, the party subjected to that conduct did not freely make the AWA if one was made.'
Case: Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202 ; (2000) 97 FCR 186
Outcome: applied
The Full Court in Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202 ; (2000) 97 FCR 186 ('the Schanka appeal') at [24] said: 'what appears to be the policy underlying Pt VID [of the Act is] that AWAs should be negotiated and concluded openly and freely at arm's length without outside interference and without either party being deceived or misled'. This policy included an intention to prevent employers, in an attempt to induce entry into an AWA containing particular terms, from applying pressure which, in the circumstances, is illegitimate: ibid at [23]. A similar view of the legislative policy was adopted by Ryan J in Maritime Union of Australia v Burnie Port Corporation Pty Ltd (2000) 101 IR 435 (' Burnie Port '). His Honour observed (at [66]): 'There is discernible in many provisions of the WR Act, including s 170WG, a policy that wages and working conditions are to be determined by a process of bargaining at arm's length using weapons, including protected industrial action, which the legislation impliedly regards as fair, but without resort to proscribed tactics or techniques which are to be characterised as unfair.'
Case: Schanka v Employment National (Administration) Pty Ltd [2001] FCA 579 ; (2001) 112 FCR 101
Outcome: applied
In the second stage of the Schanka litigation, following the appeal to the Full Court, Moore J further considered how the test of illegitimate pressure was to be applied to s 170WG(1) in Schanka v Employment National (Administration) Pty Ltd [2001] FCA 579 ; (2001) 112 FCR 101 (' Schanka No 2 '). His Honour concluded at [100] that: '...the question raised by s 170WG is not answered, in my opinion, by first asking whether the prospective employer (as alleged in this case) applied pressure as a discrete question and then asking whether the pressure was illegitimate. The question raised by the section is whether duress was applied which can be answered by considering whether illegitimate pressure was applied to secure, at the very least, ostensible agreement to enter an AWA and thereby to secure, again at the very least, ostensible agreement to the terms and conditions of employment embodied in the AWA. That is, to repeat what I said in the judgment of 24 September 1999, whether illegitimate pressure was applied, and conduct was engaged in, by a person (in this case the prospective employer, ENA) that might result in illusory and not real negotiation or bargaining and general agreement'.
Case: Universe Tankships Inc of Monrovia v International Transport Workers Federation [1981] UKHL 9 ; [1983] 1 AC 366
Outcome: cited
Economic pressure that is applied illegitimately can amount to duress. Such is the position in relation to the common law torts: Universe Tankships Inc of Monrovia v International Transport Workers Federation [1981] UKHL 9 ; [1983] 1 AC 366 at 400 per Scarman LJ. However, as Finn J observed (in Australasian Meat Industry Employees' Union v Peerless Holdings Pty Ltd [2000] FCA 1047 ; (2000) 103 FCR 577 at [54] ): 'Economic duress should not be found lightly'.