mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: McLellan v Australian Stock Exchange Limited [2005] FCA 585 ; (2005) 144 FCR 327
Outcome: referred to
The criticism, by way of obiter, of the decision of Goldberg J in Pasminco , by Finkelstein J in McLellan v Australian Stock Exchange Limited ('McLellan') [2005] FCA 585 ; (2005) 144 FCR 327 at 331-3 [12] - [17] may require further consideration in the light of the matters recorded in these reasons with respect to the relevant statutory framework now prevailing as noted under the heading '"Creditors" for the purpose of Part 5.3A decision meetings '. So also the criticism by Chesterman J of the proposition for which Emma Silver Mining Co v Grant (1880) 17 ChD 122 was cited as authority in British Goldfields , in Southern Cross Mine Management Pty Limited v Ensham Resources Pty Limited [2006] QSC 7 at [27] - [35] . 95 In my opinion it is questionable whether for the purposes of establishing admissibility to proof, at least for voting purposes, it is necessary to be able to identify a prior 'obligation' out of which a debt or liability, or, for that matter, a claim, arises. However, such considerations would, no doubt, bear upon the determination of just estimates of the value of claims that may be made. It is also questionable whether the traditional concepts of 'future' and 'contingent' as applied to 'debts payable by' a company, necessarily have the same connotations when applied to 'claims against' a company within the meaning of s 553(1) of the Act (cf. the observations of Finkelstein J in McLellan at 330 [9] and 333 [16]). 96 In the present case, Mr Aldridge SC, counsel for the plaintiff, submits that his client had, as at the date of the appointment of the administrator to Charben, a 'present' 'claim' for costs in respect of the trial and of the appeal to the Full Court, 'the circumstances giving rise to which occurred before the relevant date', namely the success of the plaintiff on its appeal with the consequential orders made in the plaintiff's favour on 22 December 2005 in respect of the disposition of the appeal and of the proceedings. Therefore, he submits, that such claim was admissible to proof against the company and the plaintiff was entitled to have its value determined in accordance with s 554A of the Act. 97 In the alternative, counsel for the plaintiff submits that the plaintiff had, as at the date of the appointment of the administrator to Charben, a 'contingent' 'claim' for such costs 'the circumstances giving rise to which occurred before the relevant date' with the same consequences.
Case: Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571
Outcome: followed
In Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571, the Court considered a contract which referred to "a satisfactory agreement ... for the supply of a satisfactory quantity of crude oil." In that case, it was submitted that the contract was illusory and that it merely gave a discretion or option to one party as to whether the promise would be carried out. The Court rejected this submission, and although it agreed that it was for the purchaser to determine whether he had entered into a satisfactory agreement for the supply of a satisfactory quantity of crude oil, it also held that the purchaser had an obligation to act honestly in deciding whether the terms of an offer of finance were satisfactory. In addition, Gibbs CJ observed at 578-579 that the expression "satisfactory" could be given content. This observation is relevant in the present circumstances. Although each case must turn on its factual context, in my opinion, the Court can and will give content to the expression "satisfactory deed of release" as expressed in the Offer of Compromise in the present case. 14 Having regard to the evidence, it is my view that the insertion of this requirement played no significant part in the rejection of the Offer of Compromise because there was no reference to it in the challenges to the terms of the Offer made by the plaintiffs'solicitors. The subsequent offer made in January 2006 by the plaintiffs seeking twice the amount offered by the defendants indicates that it was the amount of the award offered by the defendants which was the real cause of the dissatisfaction of the plaintiffs. The requirement relating to a "satisfactory deed of release" was not an operative cause of the rejection. 15 For these reasons, I do not accept that the Offer of Compromise was uncertain, illusory or oppressive in any sense, or incapable of being accepted by a reasonable addressee.
Case: Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd [2009] FCAFC 147
Outcome: cited
respondent and its lawyers have made application to the Court to be released from the implied undertaking to the Court which prevents them from making use of one particular document produced to the respondent and to its lawyers in these proceedings under the processes of the Court otherwise than for the purposes of these proceedings (as to which, see Hearne v Street [2008] HCA 36 ; (2008) 235 CLR 125). The respondent has informed me that it proposes to commence fresh proceedings for declaratory, injunctive and other relief against the applicants and others upon the basis that the structures which underpin the applicants' case in these proceedings constitute an unregistered management investment scheme, based upon the Full Court authority of Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd [2009] FCAFC 147. There is no opposition to the respondent being released from that implied undertaking.
Case: Hearne v Street [2008] HCA 36 ; (2008) 235 CLR 125
Outcome: cited
respondent and its lawyers have made application to the Court to be released from the implied undertaking to the Court which prevents them from making use of one particular document produced to the respondent and to its lawyers in these proceedings under the processes of the Court otherwise than for the purposes of these proceedings (as to which, see Hearne v Street [2008] HCA 36 ; (2008) 235 CLR 125). The respondent has informed me that it proposes to commence fresh proceedings for declaratory, injunctive and other relief against the applicants and others upon the basis that the structures which underpin the applicants' case in these proceedings constitute an unregistered management investment scheme, based upon the Full Court authority of Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd [2009] FCAFC 147. There is no opposition to the respondent being released from that implied undertaking.
Case: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451
Outcome: applied
it has for some time now been indicated "with tolerable clarity" ( Masterton Homes , at [1]) that, in interpreting a contract, one is entitled to consider context, background and surrounding circumstances without the need first to find some textual ambiguity: see Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at [40] ; Synergy Protection Agency Pty Ltd v North Sydney Leagues Club [2009] NSWCA 140 at [22] ; Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2005] FCA 1812 ; (2005) 223 ALR 560 at 573-547; Douglas, "Modern Approaches to the Construction and Interpretation of Contracts" (2009) 32 Aust Bar Rev 158. Secondly, the rights and liabilities of the parties to a contract are determined by the "principle of objectivity": Pacific Carriers Ltd , at [22]. As was explained in Toll (FGCT) at [40]: It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
Case: Synergy Protection Agency Pty Ltd v North Sydney Leagues Club [2009] NSWCA 140
Outcome: cited
it has for some time now been indicated "with tolerable clarity" ( Masterton Homes , at [1]) that, in interpreting a contract, one is entitled to consider context, background and surrounding circumstances without the need first to find some textual ambiguity: see Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at [40] ; Synergy Protection Agency Pty Ltd v North Sydney Leagues Club [2009] NSWCA 140 at [22] ; Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2005] FCA 1812 ; (2005) 223 ALR 560 at 573-547; Douglas, "Modern Approaches to the Construction and Interpretation of Contracts" (2009) 32 Aust Bar Rev 158.
Case: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2005] FCA 1812 ; (2005) 223 ALR 560
Outcome: cited
it has for some time now been indicated "with tolerable clarity" ( Masterton Homes , at [1]) that, in interpreting a contract, one is entitled to consider context, background and surrounding circumstances without the need first to find some textual ambiguity: see Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at [40] ; Synergy Protection Agency Pty Ltd v North Sydney Leagues Club [2009] NSWCA 140 at [22] ; Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2005] FCA 1812 ; (2005) 223 ALR 560 at 573-547; Douglas, "Modern Approaches to the Construction and Interpretation of Contracts" (2009) 32 Aust Bar Rev 158.
Case: International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 234 CLR 151
Outcome: applied
if a written agreement has a history, "that history is part of the context in which the contract has its meaning": International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 234 CLR 151 at [8] . Nonetheless, evidence of prior negotiations is, as a rule, to be excised from the "context". The orthodoxy in this country and the orthodoxy recently reaffirmed in English law: see Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38 is that the negotiations of the parties prior to their contracting and their statements of their subjective intentions are, as a general rule, excluded by the parol evidence rule and cannot be used in the interpretation of the contract: see generally Lewison, The Interpretation of Contracts , 3.08 (4 th ed, 2007). Given the recent decision of the House of Lords, I would note without disrespect that this rule does not as of course commend itself in all parts of the common law world and, in particular, in parts of the United States: see Restatement of Contracts, Second, &#167;214(c); and generally, Farnsworth, Contracts, &#167;7.12 (4 th ed, 2004); Yoshimoto v Canterbury Golf International Ltd [2001] 1 NZLR 523 at [76]-[78]. Fifthly, a commercial contract is to be given "a businesslike interpretation": International Air Transport Association v Ansett Australia Holdings Ltd at [8]; or as Lord Steyn put it ( Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; [1997] AC 749 at 771); "a commercially sensible construction". The "standard of endeavour" prescribed by a best efforts clause is characteristically measured by what is reasonable in the circumstances having regard to the particular contract in its business setting and to what could reasonably be expected of the party subject to the obligation: see Transfield Pty Ltd v Arlo Internation Ltd [1980] HCA 15 ; (1980) 144 CLR 83 at 101; see also Farnsworth, Contracts , &#167;7.17. Or to put it shortly, the party's obligation is "to do what [it] reasonably could do in the circumstances": Terrel , at 237. It is nonetheless important in this setting to emphasise the importance of context in giving practical substance to the prescribed standard of endeavour. As Gibbs CJ said of a best efforts obligation in Hospital Products Ltd (at 64): ... it is trite to say that the meaning of particular words in a contract must be determined in the light of the context provided by the contract as a whole and the circumstances in which it was made, and that decisions on the effect of the same words in a different context must be viewed with caution. Today this probably does no more than emphasise the contemporary significance of context in contractual interpretation: see Toll (FGCT) Pty Ltd at [40]; and, relevantly for present purposes, that a commercial contract is to be given "a businesslike interpretation": International Air Transport Association at [8]; or as Lord Steyn put it ( Mannai Investment Co Ltd at 771): "a commercially sensible construction". Factual Setting
Case: Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38
Outcome: cited
if a written agreement has a history, "that history is part of the context in which the contract has its meaning": International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 234 CLR 151 at [8] . Nonetheless, evidence of prior negotiations is, as a rule, to be excised from the "context". The orthodoxy in this country and the orthodoxy recently reaffirmed in English law: see Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38 is that the negotiations of the parties prior to their contracting and their statements of their subjective intentions are, as a general rule, excluded by the parol evidence rule and cannot be used in the interpretation of the contract: see generally Lewison, The Interpretation of Contracts , 3.08 (4 th ed, 2007). Given the recent decision of the House of Lords, I would note without disrespect that this rule does not as of course commend itself in all parts of the common law world and, in particular, in parts of the United States: see Restatement of Contracts, Second, &#167;214(c); and generally, Farnsworth, Contracts, &#167;7.12 (4 th ed, 2004); Yoshimoto v Canterbury Golf International Ltd [2001] 1 NZLR 523 at [76]-[78].
Case: Yoshimoto v Canterbury Golf International Ltd [2001] 1 NZLR 523
Outcome: cited
if a written agreement has a history, "that history is part of the context in which the contract has its meaning": International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 234 CLR 151 at [8] . Nonetheless, evidence of prior negotiations is, as a rule, to be excised from the "context". The orthodoxy in this country and the orthodoxy recently reaffirmed in English law: see Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38 is that the negotiations of the parties prior to their contracting and their statements of their subjective intentions are, as a general rule, excluded by the parol evidence rule and cannot be used in the interpretation of the contract: see generally Lewison, The Interpretation of Contracts , 3.08 (4 th ed, 2007). Given the recent decision of the House of Lords, I would note without disrespect that this rule does not as of course commend itself in all parts of the common law world and, in particular, in parts of the United States: see Restatement of Contracts, Second, &#167;214(c); and generally, Farnsworth, Contracts, &#167;7.12 (4 th ed, 2004); Yoshimoto v Canterbury Golf International Ltd [2001] 1 NZLR 523 at [76]-[78].
Case: FAI Traders Insurance Co Pty Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343
Outcome: cited
although the present state of the law in this country is not yet settled on whether it is possible to use post-contractual conduct as an aid to construction of a written contract, the more favoured view is that it is not: see Masterton Homes, at [114]; FAI Traders Insurance Co Pty Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343. The criticisms of this view are, in the main, directed at its inflexibility particularly in relational contract settings: see eg GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at [351] ; see also Unidroit Principles of International Commercial Contracts: 2004 , Art 4.3.
Case: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; [1997] AC 749
Outcome: cited
a commercial contract is to be given "a businesslike interpretation": International Air Transport Association v Ansett Australia Holdings Ltd at [8]; or as Lord Steyn put it ( Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; [1997] AC 749 at 771); "a commercially sensible construction". The "standard of endeavour" prescribed by a best efforts clause is characteristically measured by what is reasonable in the circumstances having regard to the particular contract in its business setting and to what could reasonably be expected of the party subject to the obligation: see Transfield Pty Ltd v Arlo Internation Ltd [1980] HCA 15 ; (1980) 144 CLR 83 at 101; see also Farnsworth, Contracts , &#167;7.17. Or to put it shortly, the party's obligation is "to do what [it] reasonably could do in the circumstances": Terrel , at 237. It is nonetheless important in this setting to emphasise the importance of context in giving practical substance to the prescribed standard of endeavour. As Gibbs CJ said of a best efforts obligation in Hospital Products Ltd (at 64): ... it is trite to say that the meaning of particular words in a contract must be determined in the light of the context provided by the contract as a whole and the circumstances in which it was made, and that decisions on the effect of the same words in a different context must be viewed with caution. Today this probably does no more than emphasise the contemporary significance of context in contractual interpretation: see Toll (FGCT) Pty Ltd at [40]; and, relevantly for present purposes, that a commercial contract is to be given "a businesslike interpretation": International Air Transport Association at [8]; or as Lord Steyn put it ( Mannai Investment Co Ltd at 771): "a commercially sensible construction". Factual Setting
Case: William Sindall Plc v Cambridgeshire County Council [1993] EWCA Civ 14 ; [1994] 3 All E R 932
Outcome: applied
am mindful in this regard of what Hoffman LJ said in William Sindall Plc v Cambridgeshire County Council [1993] EWCA Civ 14 ; [1994] 3 All E R 932 at 940: It is, of course, a principle of construction that words capable of bearing a very wide meaning may have to be given a narrower construction to reconcile them with other parts of the document. This rule is particularly apposite if the effect of general words would otherwise be to nullify what the parties appear to have contemplated as an important element in the transaction. It is evident that the parties clearly did contemplate that, in appropriate circumstances, the licence should be brought to an end, and that cl 41.1.6 provided an "important element" in that scheme. I need not repeat here what I earlier said of the significance of a power to terminate on notice in long term, relational contracts. The submission that cl 8.1 was intended to guarantee a four year notice period before the agreement could be terminated cannot withstand scrutiny. The Agreement provided that AMC had minimum purchase obligations: see cl 10.2; and that if the Term was extended under cl 8.1, the parties would agree "Minimum Purchases for the period of the extension and these [would] be appended to Schedule 4". Clause 10.4 of the Agreement provided that, if AMC did not purchase products as specified in that Schedule, Hamilton could end the Licence "entirely" by written notice to AMC. There was no guarantee of 4 years notice here. Clause 8.1 was not directed to how the Distribution Agreement could be terminated. Its concern was with its Term with whether the agreed 5 year term would be frozen or extended. Considered in light of cl 10.4, cl 10.5 and cl 41.1 but particularly cl 41.1.6, the language of notification of desire to terminate the agreement was intended to do no more than to indicate that the party was no longer prepared to extend the Term but rather, wanted the Agreement to terminate at the end of the then 5 year period specified in Schedule 4. This is how a reasonable commercial party would have understood it in its context.
Case: Maynard v Goode [1926] HCA 4 ; (1926) 37 CLR 529
Outcome: cited
do not consider that it was. Though it appeared in clause 8 and by so doing emphasised that the minimum purchases regime would run in tandem with extensions granted under the rolling 5 year term, cl 8.1's function lay in its relationship with cl 10. That dealt with making best efforts to meet the requirements of Sched 4, and the consequences of failure to make the purchases specified in that schedule. It was a contingent condition to the performance and enforcement of the rights and obligations created under cl 10.2, cl 10.4 and cl 10.5. The non-fulfilment of the condition excused AMC further performance of its contractual obligations under cl 10.2 and cl 10.4 for the year of the extension: cf Maynard v Goode [1926] HCA 4 ; (1926) 37 CLR 529 at 540; University of Western Australia v Gray [2009] FCAFC 116 at [117] ; Cheshire and Fifoot's Law of Contract , [20.1]-[20.2] (9 th Aust ed). The failure to agree as required by cl 8.2 would not of itself constitute a breach of contract by either party, although one can envisage circumstances in which one party so conducts itself in relation to the entry into a cl 8.2 agreement as to be in breach of the Agreement or of an implied term necessary to give cl 8.2 business efficacy (eg to enter into "genuine and good faith negotiations for such an agreement": cf United Group Rail Services Ltd v Rail Corporation New South Wales [2009] NSWCA 177. There is no evidence before me to suggest such was the case as at 1 July 2002.
Case: University of Western Australia v Gray [2009] FCAFC 116
Outcome: cited
do not consider that it was. Though it appeared in clause 8 and by so doing emphasised that the minimum purchases regime would run in tandem with extensions granted under the rolling 5 year term, cl 8.1's function lay in its relationship with cl 10. That dealt with making best efforts to meet the requirements of Sched 4, and the consequences of failure to make the purchases specified in that schedule. It was a contingent condition to the performance and enforcement of the rights and obligations created under cl 10.2, cl 10.4 and cl 10.5. The non-fulfilment of the condition excused AMC further performance of its contractual obligations under cl 10.2 and cl 10.4 for the year of the extension: cf Maynard v Goode [1926] HCA 4 ; (1926) 37 CLR 529 at 540; University of Western Australia v Gray [2009] FCAFC 116 at [117] ; Cheshire and Fifoot's Law of Contract , [20.1]-[20.2] (9 th Aust ed). The failure to agree as required by cl 8.2 would not of itself constitute a breach of contract by either party, although one can envisage circumstances in which one party so conducts itself in relation to the entry into a cl 8.2 agreement as to be in breach of the Agreement or of an implied term necessary to give cl 8.2 business efficacy (eg to enter into "genuine and good faith negotiations for such an agreement": cf United Group Rail Services Ltd v Rail Corporation New South Wales [2009] NSWCA 177. There is no evidence before me to suggest such was the case as at 1 July 2002.