mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Vroon BV v Fosters Brewing Group Ltd (1994) 2 VR 32
Outcome: cited
Quite apart from the problem that the alleged variation lacked consideration there was uncertainty about its terms. A reduction in fees for an unspecified but temporary period apparently to be determined at the will of one party, does not import certainty of obligation. In answering that question it is necessary not to demand unrealistic precision. As McHugh JA said in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 (at 11,118): '... in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.' See Brambles Nationwide Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 177 (Heydon JA) and Nationwide Produce Holdings Pty Ltd v Linknarf Limited (2005) Aust Contract Reports 90-424 at 88,509 (Tamberlin J). In Vroon BV v Fosters Brewing Group Ltd (1994) 2 VR 32, Ormiston J accepted that: '... in commercial transactions the court should strive to give effect to the expressed arrangements and expectations of those engaged in business notwithstanding that there are areas of uncertainty and notwithstanding that particular terms have been omitted or not fully worked out.'
Case: British and Beningtons, Limited v North Western Cachar Tea Co Ltd [19232] AC 48
Outcome: cited
A longstanding distinction exists in English law between rescission and variation of contracts by subsequent agreements. It has been applied particularly in cases of contracts required by law to be evidenced in writing. A parol variation of a written agreement would, in such a case, be unenforceable. On the other hand where the subsequent parol agreement discharges the earlier agreement it is not affected by the requirement that the original agreement be in writing. In British and Beningtons, Limited v North Western Cachar Tea Co Ltd [1923] AC 48, which concerned a contract required by the Statute of Frauds to be in writing, Lord Atkinson said (at 62): 'A written contract may be rescinded by parol either expressly or by the parties entering into a parol contract entirely inconsistent with the written one, or, if not entirely inconsistent with it, inconsistent with it to an extent that goes to the very root of it.' The earlier decision of the House of Lords in Morris v Baron &amp; Co [1918] AC 1, also a Statute of Frauds case, was relied upon.
Case: Williams v Moss Empires [1915] 3 KB 242
Outcome: cited
It has been said, as a general proposition, that the result of varying the terms of an existing contract is to produce not the original contract with a variation but a new and different contract Williams v Moss Empires [1915] 3 KB 242 at 247 (Sankey J). That approach was adopted by the Court of Appeal in Morris v Baron . Lord Sumner referred to it in British and Beningtons, Ltd (at 68) as possibly correct 'as a matter of formal logic'. However in United Dominions Corporation (Jamaica) Ltd v Shoucair [1969] 1 AC 340, which was a case involving money lenders' legislation in Jamaica, Lord Devlin, delivering the judgment of the House of Lords, said (at 348): 'The disadvantage of this view is that a minor variation may destroy the effect of the whole of the transaction between the parties. The alternative view, adopted by the House of Lords in Morris v Baron and again in British and Benningtons (sic) Ltd v NW Cachar Tea Company Ltd ... is based on the intention of the parties. They cannot have that which presumably they wanted, that is, the old agreement as amended; so the court has to make up its mind which comes nearer to their intention to leave them with an unamended agreement or without any agreement at all. The House answered this question by rejecting the strict view propounded by Sankey J and distinguishing between rescission and variation. If the new agreement reveals an intention to rescind the old, the old goes; and if it does not, the old remains in force and unamended. It seems that this distinction was developed in order to address the difficulties generated by requirements for contracts to be in writing, imposed by the Statute of Frauds, and in the United Dominions Corporation case by the Money Lending law of Jamaica.
Case: United Dominions Corporation (Jamaica) Ltd v Shoucair [1969] 1 AC 340
Outcome: cited
It has been said, as a general proposition, that the result of varying the terms of an existing contract is to produce not the original contract with a variation but a new and different contract Williams v Moss Empires [1915] 3 KB 242 at 247 (Sankey J). That approach was adopted by the Court of Appeal in Morris v Baron . Lord Sumner referred to it in British and Beningtons, Ltd (at 68) as possibly correct 'as a matter of formal logic'. However in United Dominions Corporation (Jamaica) Ltd v Shoucair [1969] 1 AC 340, which was a case involving money lenders' legislation in Jamaica, Lord Devlin, delivering the judgment of the House of Lords, said (at 348): 'The disadvantage of this view is that a minor variation may destroy the effect of the whole of the transaction between the parties. The alternative view, adopted by the House of Lords in Morris v Baron and again in British and Benningtons (sic) Ltd v NW Cachar Tea Company Ltd ... is based on the intention of the parties. They cannot have that which presumably they wanted, that is, the old agreement as amended; so the court has to make up its mind which comes nearer to their intention to leave them with an unamended agreement or without any agreement at all. The House answered this question by rejecting the strict view propounded by Sankey J and distinguishing between rescission and variation. If the new agreement reveals an intention to rescind the old, the old goes; and if it does not, the old remains in force and unamended. It seems that this distinction was developed in order to address the difficulties generated by requirements for contracts to be in writing, imposed by the Statute of Frauds, and in the United Dominions Corporation case by the Money Lending law of Jamaica.
Case: Commissioner of Taxation v Sara Lee Household &amp; Body Care (Australia) Pty Ltd [2000] HCA 35 ; (2000) 201 CLR 520
Outcome: cited
In Commissioner of Taxation v Sara Lee Household &amp; Body Care (Australia) Pty Ltd [2000] HCA 35 ; (2000) 201 CLR 520 at 534 reference was made in the joint judgment of Gleeson CJ, Gaudron, McHugh and Hayne JJ to the passage from the judgment of Taylor J in Tallerman and its approval by Wilson and Dawson JJ in Dan . The joint judgment in Sara Lee said, in relation to the passage from the judgment of Taylor J, (at 534 [24]): 'It accords with principle and with authority.' Callinan J also acknowledged that there may be cases in which what is expressed to be a variation of an earlier agreement as a matter of construction cannot be so regarded.
Case: Quinn v Jack Chia (Australia) Ltd [2000] VSCA 75 ; [1992] 1 VR 567
Outcome: cited
In Quinn v Jack Chia (Australia) Ltd [2000] VSCA 75 ; [1992] 1 VR 567, Ashley J reviewed a number of authorities relating to changes to the terms of employment and when such changes would amount to discharge of a subsisting employment agreement. He accepted, at 576, the proposition in Federated Mutual Insurance Co of Australia Ltd v Sabine [1920] SALR 284 that: '... where employer and employee agree to an alteration in the employee's duties and responsibilities which is profound, a court should be more ready to hold (unless the original contract of employment provided for the contingency) that a new contract has replaced the old; or at least that the old contract as varied, contained terms objectively appropriate to the new relationship created.'
Case: Federated Mutual Insurance Co of Australia Ltd v Sabine [1920] SALR 284
Outcome: cited
In Quinn v Jack Chia (Australia) Ltd [2000] VSCA 75 ; [1992] 1 VR 567, Ashley J reviewed a number of authorities relating to changes to the terms of employment and when such changes would amount to discharge of a subsisting employment agreement. He accepted, at 576, the proposition in Federated Mutual Insurance Co of Australia Ltd v Sabine [1920] SALR 284 that: '... where employer and employee agree to an alteration in the employee's duties and responsibilities which is profound, a court should be more ready to hold (unless the original contract of employment provided for the contingency) that a new contract has replaced the old; or at least that the old contract as varied, contained terms objectively appropriate to the new relationship created.'
Case: Perri v Coolangatta Investments Pty Ltd [1982] HCA 29 ; (1982) 149 CLR 537
Outcome: cited
Martech submitted that it was entitled to the Termination Payment if the Agreement were terminated for any reason other than one of those set out in sub cls 8.1.1, 8.1.3, 8.1.4 and 8.1.5 or cl 8.5. Termination having occurred on 29 September 2000 for none of those reasons it says it was entitled. Energy submitted that, on its proper construction, cl 8.6 did not apply where Martech wished to terminate its services and agreed to termination. The benefit of the notice provision in cl 8.5 could be waived Perri v Coolangatta Investments Pty Ltd [1982] HCA 29 ; (1982) 149 CLR 537 at 543, 552, 560 and 565. 166 The critical question in considering the Martech submission is whether, on the proper construction of cl 8.6, the entitlement which it creates in a case in which the 'Agreement is terminated for any other reason ...' arises where there is a consensual discharge of the Agreement. That constructional question depends upon a consideration of the words of cl 8.6 and the context in which they appear both within that clause and within other parts of cl 8 and the Agreement as a whole. 167 The Shorter Oxford English Dictionary definition of 'termination' is equivocal. It defines termination relevantly as a transitive verb meaning: 'bring to an end, put an end to, cause to cease; finish, end (an action, condition etc).' It is also defined as an intransitive verb meaning, inter alia: 'come to an end (in time); end, cease, conclude ...'
Case: Bridge v Campbell Discount Co Ltd [1962] AC 600
Outcome: cited
Lord Radcliffe said in Bridge v Campbell Discount Co Ltd [1962] AC 600 (at 620): '"Terminate" is an ambiguous word, since it may refer to a termination by a right under the agreement or by a condition incorporated in it or by a deliberate breach by one party amounting to a repudiation of the whole contract.' Lord Denning also adverted to the uncertain scope of 'termination' in the terms and conditions of National Health Service staff contracts: 'terminate or termination is by itself ambiguous. It can refer to either of two things either to termination by notice or termination by effluxion of time. It is often used in that dual sense in landlord and tenant and master and servant cases.' In context, he found it to refer only to termination by notice R v Social Services Secretary, Ex parte Khan [1973] 1 WLR 187 at 189. Karminski and Buckley LJJ agreed. Buckley LJ added (at 191): 'As Mr Slynn has pointed out, the verb "terminate" can be used either transitively or intransitively. A contract may be said to terminate when it comes to an end by effluxion of time, or it may be terminated when it is determined by notice or otherwise by some act of one of the parties.'
Case: R v Social Services Secretary, Ex parte Khan [1973] 1 WLR 189
Outcome: cited
Lord Radcliffe said in Bridge v Campbell Discount Co Ltd [1962] AC 600 (at 620): '"Terminate" is an ambiguous word, since it may refer to a termination by a right under the agreement or by a condition incorporated in it or by a deliberate breach by one party amounting to a repudiation of the whole contract.' Lord Denning also adverted to the uncertain scope of 'termination' in the terms and conditions of National Health Service staff contracts: 'terminate or termination is by itself ambiguous. It can refer to either of two things either to termination by notice or termination by effluxion of time. It is often used in that dual sense in landlord and tenant and master and servant cases.' In context, he found it to refer only to termination by notice R v Social Services Secretary, Ex parte Khan [1973] 1 WLR 187 at 189. Karminski and Buckley LJJ agreed. Buckley LJ added (at 191): 'As Mr Slynn has pointed out, the verb "terminate" can be used either transitively or intransitively. A contract may be said to terminate when it comes to an end by effluxion of time, or it may be terminated when it is determined by notice or otherwise by some act of one of the parties.'
Case: Re HIH Insurance Limited (In Prov Liq); Australian Securities Commission v Adler and Others [2002] NSWSC 171 ; (2002) 41 ACSR 72
Outcome: cited
It may be accepted for present purposes that Martech and Mr Brand owed Energy and AEE the various duties alleged in the cross-claim. Although the formulations of those contractual, common law, fiduciary and statutory duties vary from one to the other, they are for practical purposes, subsumed in the one standard of reasonable care. As was submitted on behalf of Martech and Mr Brand, the duties which were imposed on directors by s 232(4) of the Corporations Law, which was in force at the relevant time, are essentially the same as the duties of directors under the common law and, a fortiori, in equity. The submission referred to authorities cited by Santow J in Re HIH Insurance Limited (In Prov Liq); Australian Securities and Investments Commission v Adler and Others [2002] NSWSC 171 ; (2002) 41 ACSR 72 at [372] . Plainly enough a director and, a fortiori , a managing director, may rely on the advice and information of officers of a company whose task it is to provide such advice and information. Reliance may also be placed upon judgments made by officers of the company which fall within their sphere of responsibility. That reliance would, of course, not be reasonable if a director or managing director knew, or by the exercise of ordinary care should have known, any facts which would raise a question about the judgment, information or advice offered. 342 The question whether reliance by a director upon an officer of the company or delegation of a function to such an officer is reasonable falls to be determined in the circumstances of each case. In Re HIH Insurance, Santow J listed, non-exhaustively, factors which may be important in determining reasonableness: '1. [whether] the function that has been delegated is such that "it may properly be left to such officers"; 2. the extent to which the director is put on inquiry, or given the facts of a case, should have been put on inquiry; 3. [whether] the relationship between the director and the delegate, must be such that the director honestly holds the belief that the delegate is trustworthy, competent and someone on whom reliance can be placed...; 4. the risk involved in the transaction and the nature of the transaction. 5. the extent of steps taken by the director, for example, inquiries made or other circumstances engendering "trust"; 6. whether the position of the director is executive or non-executive.' (Citation of authorities omitted)
Case: Darvall v North Sydney Brick and Tile Co Ltd (1989) 16 NSWLR 260
Outcome: cited
It was further submitted on behalf of Martech and Mr Brand that Mr Brand's decision to make the reduced milestone payment was an aspect of a wider agreement to vary the terms of the milestone schedule to the Vypeen agreement. This, it was said, was a 'business decision' which involved the balancing of a range of circumstances and factors. It was Energy and AEE which wished, for their own reasons, to revise the milestone schedule and which had to reach a compromise acceptable to Prenergy. It was submitted that courts properly refrain from assuming the management of corporations and substituting their own decisions and assessments for those of directors. Directors can be expected to have much greater knowledge and more time and expertise at their disposal to evaluate the best interests of the corporation, rather than the court Darvall v North Sydney Brick and Tile Co Ltd (1989) 16 NSWLR 260 at 281. 344 In their submissions, Energy and AEE relied upon the formulation of the condition for the making of the milestone payment, namely the satisfaction of 'All applicable State and Central Government of India approvals for alternative fuel for the Vypeen Project'. They submitted that Mr Brand accepted that the law of India effectively prohibited the import of condensate for use in the Vypeen Project and that the way to address that situation was to seek to persuade the Indian Government to change the law. What was necessary was a change in the law generally not just a facilitation for the purpose of the Vypeen Project. The law in relation to importation of condensate did not change between 1998 and 1999 and for that reason applicable approvals had not been obtained. It was also emphasised that no application for approval was ever made. On that ground, it was submitted, that objectively speaking there was no basis upon which the milestone payment should be made. 345 Energy and AEE relied upon Mr Brand's understanding of certain important facts. He knew that the supply of condensate fuel was the most critical component and the key to financing the project. This appeared from the memorandum dated 27 February 1998 which he had received. He also knew from a fax dated 26 March 1998 from Mr Bridgwood that condensate was not then permitted to be imported into India. Of course that fax added that the Ministry of Petroleum and Natural Gas would recommend to the Ministry of Power that condensate be approved for importation under the Open General Licence (In fact the position seems to have been the other way round). He was aware of the proposed lobbying of the Ministry of Power and the Ministry for Petroleum and Natural Gas. The text of the brief to the relevant Ministers has been set out earlier in these reasons.
Case: Commissioner of Taxation v Murry [1998] HCA 42 ; (1998) 193 CLR 605
Outcome: considered
This justification for para 108 is, with respect, misdirected. The OMB parties are on firmer ground in their further submission that whether or not there may be goodwill vested in an OMB party to an OMB Agreement is, or at least is arguably, relevant to a conclusion that that party is an "independent contractor" for the purposes of the Independent Contractors Act . One of the factors to which Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ adverted in Hollis v Vabu Pty Ltd (at 42, [48]) in determining that the bicycle couriers were not independent contractors at common law was that they were unable to generate "goodwill" as a bicycle courier. It is settled that goodwill cannot be assigned in gross but rather passes with the transfer of rights to conduct a business in substantially the same manner and by substantially the same means as before: Commissioner of Taxation v Murry [1998] HCA 42 ; (1998) 193 CLR 605 at 615, [23] and 617-618, [30] and [31]. It is not impossible in these circumstances to see how, for the purposes of the Independent Contractors Act and irrespective of a technical ability to assign the benefit of an OMB Agreement, it might be relevant in deciding whether a party to such an agreement was to be characterised as an "independent contractor" that either no "goodwill" vested in that party or in any event that none would pass on an assignment.
Case: Daly v Egan (1886) 12 VLR 81
Outcome: considered
Well over a century ago, in Daly v Egan (1886) 12 VLR 81 , at 84, a Full Court of the Supreme Court of Victoria observed of the jurisdiction to give summary judgment that: This summary jurisdiction is not intended to be exercised where the defendant has any plausible defence, or disputes any of the material facts. A Judge in chambers is not to try a case on affidavit where the facts are in dispute. See also to like effect in that same year observations made by Holroyd J in White v Johnston (1886) 8 ALT 53. Thus, when in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 105 , at 129-130 Barwick CJ cited with approval the following observation of Dixon J (as he then was) in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 , at 91 that: The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious, But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process, he was not promoting any novel approach to the disposal of an application like the present. The approach described had been evident since colonial times. Real questions of law and fact are raised by para 52(c) and paras 57 to 63 of the amended defence. It is not appropriate to deal with them summarily. Further, that there are presently hypothetical qualities to the questions of law sought to be agitated by the BoQ parties is an added reason, in the exercise of federal jurisdiction, for this Court not to answer them at this stage. The courts created by the Commonwealth Parliament under Chapter III of the Constitution do not give advisory opinions: In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: considered
Well over a century ago, in Daly v Egan (1886) 12 VLR 81 , at 84, a Full Court of the Supreme Court of Victoria observed of the jurisdiction to give summary judgment that: This summary jurisdiction is not intended to be exercised where the defendant has any plausible defence, or disputes any of the material facts. A Judge in chambers is not to try a case on affidavit where the facts are in dispute. See also to like effect in that same year observations made by Holroyd J in White v Johnston (1886) 8 ALT 53. Thus, when in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 105 , at 129-130 Barwick CJ cited with approval the following observation of Dixon J (as he then was) in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 , at 91 that: The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious, But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process, he was not promoting any novel approach to the disposal of an application like the present. The approach described had been evident since colonial times. Real questions of law and fact are raised by para 52(c) and paras 57 to 63 of the amended defence. It is not appropriate to deal with them summarily. Further, that there are presently hypothetical qualities to the questions of law sought to be agitated by the BoQ parties is an added reason, in the exercise of federal jurisdiction, for this Court not to answer them at this stage. The courts created by the Commonwealth Parliament under Chapter III of the Constitution do not give advisory opinions: In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257.