mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: New South Wales Dairy Corporation v Murray-Goulburn Co-Operative Company Limited (1989) 14 IPR 75
Outcome: cited
I found the second respondent not liable to the applicants in respect of their claims, all aspects of the defence of the second respondent appeared to be jointly conducted with common defences of both respondents. The first respondent was clearly an active protagonist. No evidence was given by nor sought from the second respondent in the proceedings. The second respondent appeared to take no active part in the proceedings. In my view there should be no order in respect of costs for or against the second respondent: New South Wales Dairy Corporation v Murray-Goulburn Co-Operative Company Limited (1989) 14 IPR 75 at [80]. Substantive proceedings and notice of motion filed 12 September 2007 as between the applicants and the first respondent In relation to the position of the applicants and the first respondent, although I identified a number of issues for decision, in the final analysis the key issues for decision were whether the respondents were liable in respect of the 1998 and 1999 profit shortfalls. The applicants were successful in their claim against the first respondent with respect to the 1998 profit shortfall, the respondents in defending the applicants' claim for the 1999 profit shortfall. Second, the respondents were unsuccessful in respect of a majority of the defences raised in the substantive proceedings. A significant amount of time and evidence were taken up during the trial in relation to those unsuccessful defences.
Case: Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd v Carey (No 3) (2006) 57 ACSR 307
Outcome: cited
20 April 2006 orders were made under s 1323 of the Corporations Act 2001 (Cth) (the Act) and s 23 of the Federal Court of Australia Act 1976 (Cth) restraining Bowesco Pty Ltd (Bowesco) from disposing of or dealing with its assets pending investigations being carried out by the Australian Securities and Investments Commission into matters relating to Bowesco and other companies associated with the Westpoint Property and Finance Group Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd v Carey (No 3) (2006) 57 ACSR 307. On 30 June 2006 the orders were varied. The substantive freezing order in respect of Bowesco's property is in the following terms: by itself, its servants, agents and employees, is restrained until 20 October 2006 or further order, from removing, or causing or permitting to be removed from any State of Australia and from Australia, or selling, charging, mortgaging or otherwise dealing with or disposing of or causing or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of, all or any of its assets (the "Bowesco Property"), whether held legally or beneficially by it.' At the time of the orders of 20 April and 30 June 2006 John Patrick Cronin and Shaun Robert Fraser had been appointed as receivers under a Deed of Charge granted by Bowesco in favour of Suncorp-Metway Ltd dated 8 October 2004. While receivers were appointed to the property of other Westpoint companies and officers on 20 April 2006 pursuant to s 1323, no such appointment was sought or made in respect of Bowesco because of the prior appointment of the Suncorp-Metway receivers. Variations to the Bowesco orders are now sought. They relate to an Option held by Bowesco and purportedly assigned to it by Westpoint Corporation Pty Ltd (Westpoint Corporation) in respect of land occupied by the Warnbro Fair Shopping Centre and land adjacent to it.
Case: Barba v Gas &amp; Fuel Corporation of Victoria [1976] HCA 60 ; (1976) 136 CLR 120
Outcome: cited
option to purchase land gives to its grantee an equitable interest in the land Barba v Gas &amp; Fuel Corporation of Victoria [1976] HCA 60 ; (1976) 136 CLR 120 at 137 (Gibbs J, Stephen and Jacob JJ agreeing). Gibbs J quoted Jessel MR in London and South Western Railway Co v Gomm (1882) 20 Ch D 562 at 581: right to call for a conveyance of the land is an equitable interest or equitable estate. In the ordinary case of a contract for purchase there is no doubt about this, and an option for repurchase is not different in its nature. A person exercising the option has to do two things, he has to give notice of his intention to purchase, and to pay the purchase-money; but as far as the man who is liable to convey is concerned, his estate or interest is taken away from him without his consent, and the right to take it away being vested in another, the covenant giving the option must give that other an interest in the land.' On its face therefore the ING Charge applies, as a fixed charge, to the Option as an interest in land.
Case: London and South Western Railway Co v Gomm (1882) 20 Ch D 562
Outcome: cited
option to purchase land gives to its grantee an equitable interest in the land Barba v Gas &amp; Fuel Corporation of Victoria [1976] HCA 60 ; (1976) 136 CLR 120 at 137 (Gibbs J, Stephen and Jacob JJ agreeing). Gibbs J quoted Jessel MR in London and South Western Railway Co v Gomm (1882) 20 Ch D 562 at 581: right to call for a conveyance of the land is an equitable interest or equitable estate. In the ordinary case of a contract for purchase there is no doubt about this, and an option for repurchase is not different in its nature. A person exercising the option has to do two things, he has to give notice of his intention to purchase, and to pay the purchase-money; but as far as the man who is liable to convey is concerned, his estate or interest is taken away from him without his consent, and the right to take it away being vested in another, the covenant giving the option must give that other an interest in the land.' On its face therefore the ING Charge applies, as a fixed charge, to the Option as an interest in land.
Case: In re Yorkshire Woolcombers Association [1903] 3 Ch 284
Outcome: cited
United Builders Pty Ltd v Mutual Acceptance Ltd [1980] HCA 43 ; (1980) 144 CLR 673, Mason J (with whom Barwick CJ, Gibbs and Wilson JJ agreed) referred to In re Yorkshire Woolcombers Association and noted its affirmation on appeal by the House of Lords in Illingworth v Houldsworth [1904] AC 355. His Honour cited Lord Macnaghten in the latter case who said (at 358): specific charge, I think, is one that without more fastens on ascertained and definite property or property capable of being ascertained and defined; a floating charge, on the other hand, is ambulatory and shifting in its nature, hovering over and so to speak floating with the property which it is intended to affect until some event occurs or some act is done which causes it to settle and fasten on the subject of the charge within its reach and grasp.' Counsel also referred to Waters v Widdows [1984] VR 503, another case concerning a charge over book debts. Nicholson J, after citing re Yorkshire Woolcombers found an inescapable inference that it was intended that the chargor company in that case should continue to carry on its business in the ordinary way so far as its book debts and stock in trade were concerned.
Case: United Builders Pty Ltd v Mutual Acceptance Ltd (1980) 44 CLR 673
Outcome: cited
United Builders Pty Ltd v Mutual Acceptance Ltd [1980] HCA 43 ; (1980) 144 CLR 673, Mason J (with whom Barwick CJ, Gibbs and Wilson JJ agreed) referred to In re Yorkshire Woolcombers Association and noted its affirmation on appeal by the House of Lords in Illingworth v Houldsworth [1904] AC 355. His Honour cited Lord Macnaghten in the latter case who said (at 358): specific charge, I think, is one that without more fastens on ascertained and definite property or property capable of being ascertained and defined; a floating charge, on the other hand, is ambulatory and shifting in its nature, hovering over and so to speak floating with the property which it is intended to affect until some event occurs or some act is done which causes it to settle and fasten on the subject of the charge within its reach and grasp.' In the United Builders' case, two companies carried on a business in partnership. One of the companies charged all of its right, title and interest in the partnership in favour of the other in order to secure a loan made for extraneous purposes. The company later borrowed other moneys from another lender and gave as security a debenture mortgage which created a floating charge. In the winding up of the debtor company a question arose concerning the priority of the two securities. The majority held, with Stephen J dissenting, that the charge over the debtor's interest in the partnership was a fixed not a floating charge. In the course of his judgment Mason J said (at 686): the subject of the present charge was the property and undertaking of [the debtor company] there would be no doubt that the charge was of the floating variety. Otherwise [the debtor company] would be unable to dispose of its assets in the ordinary course of its business and [the creditor company] would not have the benefit of a charge on future assets. the problem here is that the property over which the charge has been given is not the undertaking, or any part of the general assets, of [the debtor company] but its interest in the partnership.' His Honour went on to hold that what the charge did was to confer an entitlement in the holder on dissolution of the partnership in relation to the partner's share of the partnership assets. As may be seen, the point upon which the decision turned in that case was to do with the nature of an interest in a partnership rather than the point with which the Court is concerned in the present case. It is perhaps a matter of some significance that the ING Charge is not expressed to be, in its fixed component, a charge over the whole of the undertaking of Westpoint Corporation. The fact that the application of the fixed charge is expressed distributively over specifically identified categories of property, supports the construction that the intention was to create a charge of the kind that it is expressed to be.
Case: Illingworth v Houldsworth [1904] AC 355
Outcome: cited
United Builders Pty Ltd v Mutual Acceptance Ltd [1980] HCA 43 ; (1980) 144 CLR 673, Mason J (with whom Barwick CJ, Gibbs and Wilson JJ agreed) referred to In re Yorkshire Woolcombers Association and noted its affirmation on appeal by the House of Lords in Illingworth v Houldsworth [1904] AC 355. His Honour cited Lord Macnaghten in the latter case who said (at 358): specific charge, I think, is one that without more fastens on ascertained and definite property or property capable of being ascertained and defined; a floating charge, on the other hand, is ambulatory and shifting in its nature, hovering over and so to speak floating with the property which it is intended to affect until some event occurs or some act is done which causes it to settle and fasten on the subject of the charge within its reach and grasp.'
Case: Agnew v Commissioner of Inland Revenue [2001] UKPC 28 ; [2001] 2 AC 710
Outcome: cited
terms of the ING Charge are explicit. It constitutes a fixed charge over, inter alia, any interest of the Westpoint Corporation in: land; ... Encumbrances over any property; benefit of any contract to which the Chargor is a party, including any insurance policy;' Counsel for Bowesco also referred to recent decisions of the Privy Council and the House of Lords. In Agnew v Commissioner of Inland Revenue [2001] UKPC 28 ; [2001] 2 AC 710, the Privy Council, on appeal from the Court of Appeal of New Zealand, was concerned with the character of a charge over book debts. At 725 their Lordships said: question is not merely one of construction. In deciding whether a charge is a fixed charge or a floating charge, the court is engaged in a two-stage process. At the first stage it must construe the instrument of charge and seek to gather the intentions of the parties from the language they have used. But the object at this stage of the process is not to discover whether the parties intended to create a fixed or a floating charge. It is to ascertain the nature of the rights and obligations which the parties intended to grant each other in respect of the charged assets. Once these have been ascertained, the court can then embark on the second stage of the process, which is one of categorisation. This is a matter of law. It does not depend on the intention of the parties. If their intention, properly gathered from the language of the instrument, is to grant the company rights in respect of the charged assets which are inconsistent with the nature of a fixed charge, then the charge cannot be a fixed charge however they may have chosen to describe it.'
Case: Re Spectrum Plus Limited [2005] UKHL 41 ; [2005] 2 AC 680
Outcome: cited
Re Spectrum Plus Limited [2005] UKHL 41 ; [2005] 2 AC 680 the House of Lords considered the characterisation of a charge over book debts. Lord Hope acknowledged at [54] that there are a number of ways to ensure that a charge over book debts is fixed. He referred to Professor Sarah Worthington's article An 'Unsatisfactory Area of the Law' Fixed and Floating Charges Yet Again, (2004) 1 International Corporate Rescue, 175 at 182. Lord Hope set out ways to fix a charge over book debts. They were to: ... prevent all dealings with the book debts so they are preserved for the benefit of the chargee's security. ... Another is to prevent all dealings with the book debts other than their collection, and to require the proceeds when collected to be paid to the chargee in reduction of the chargor's outstanding debt.... A third is to prevent all dealings with the debts other than their collection, and to require the collected proceeds to be paid into an account with the chargee bank. ... A fourth is to prevent all dealings with the debts other than their collection and to require the collected proceeds to be paid into a separate account with a third party bank.' Lord Scott said (at [111]): my opinion, the essential characteristic of a floating charge, the characteristic that distinguishes it from a fixed charge, is that the asset subject to the charge is not finally appropriated as a security for the payment of the debt until the occurrence of some future event. In the meantime the chargor is left free to use the charged asset and to remove it from the security.' At [138] Lord Walker referred to what he called '... the essential difference between a fixed charge and a floating charge'. He said: a fixed charge the assets charged as security are permanently appropriated to the payment of the sum charged, in such a way as to give the chargee a proprietary interest in the assets. So long as the charge remains unredeemed, the assets can be released from the charge only with the active concurrence of the chargee. The chargee may have good commercial reasons for agreeing to a partial release. If for instance a bank has a fixed charge over a large area of land which is being developed in phases as a housing estate (another example of a fixed charge on what might be regarded as trading stock) it might be short-sighted of the bank not to agree to take only a fraction of the proceeds of sale of houses in the first phase, so enabling the remainder of the development to be funded. But under a fixed charge that will be a matter for the chargee to decide for itself.'
Case: Waters v Widdows [1984] VR 503
Outcome: cited
also referred to Waters v Widdows [1984] VR 503, another case concerning a charge over book debts. Nicholson J, after citing re Yorkshire Woolcombers found an inescapable inference that it was intended that the chargor company in that case should continue to carry on its business in the ordinary way so far as its book debts and stock in trade were concerned.
Case: Deputy Commissioner of Taxation v LAI Corporation Pty Ltd (Receivers and Managers Appointed) [1987] WAR 15
Outcome: cited
Deputy Commissioner of Taxation v LAI Corporation Pty Ltd (Receivers and Managers Appointed) [1987] WAR 15, the Full Court of the Supreme Court of Western Australia was concerned with the application of a statutory garnishee under the Sales Tax Assessment Act (No 1) 1930 (Cth) on a taxpayer's book debts and whether a pre-existing charge over those book debts was fixed or floating. Burt CJ said (at 23): nature of the security must depend upon the terms of the instrument creating it. ... But the nature of the charge is not finally determined by what the parties call it. It depends upon the terms of the agreement. In this case it was central to the agreement that [the debtor company] should continue to carry on its business and, with the consent of the Bank which in my opinion was given, that it could in the ordinary course of its business receive its book debts and deal with the proceeds in carrying on that business. In that context I think that, notwithstanding the statement that the charge given over future book debts was "specific", it should be held that for so long as the Bank consented to [the debtor company] receiving its book debts and using the proceeds to carry on its business, the Bank's security over the book debts was a floating security. The debenture contains no assignment of the book debts. Had it done so, the case for holding that the charge was a fixed charge would, I think, be considerably stronger.'
Case: Boambee Bay Pty Ltd (In liq) v Equus Financial Services Ltd (1991) 6 ACSR 532
Outcome: cited
Boambee Bay Pty Ltd (In liq) v Equus Financial Services Ltd (1991) 6 ACSR 532, the Court of Appeal of New South Wales considered a charge over a company's 'right, title and interest in any property either held by [the company] at the date hereof or acquired by [the company] during the term of this Agreement'. Mahoney JA said, at 537, that the fact that the charge attached not merely to property then held by the company but also to property acquired by it during the term of the agreement did not lead to the conclusion that the clause did not impose an immediate charge upon property then held. Despite that he held that the charge created was a floating charge. This was on the basis that the nature of the business of the company was such that if the charge was an immediate and fixed charge on all assets, the carrying on of its business would be difficult if not impossible.
Case: Black and Decker Inc v GMCA Pty Ltd (No 3) [2008] FCA 932
Outcome: cited
These observations were approved by Cooper J (with whom Sheppard and Neaves JJ agreed) in Cummings v Lewis (1993) 41 FCR 559 at 602-603. See also Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] and Black and Decker Inc v GMCA Pty Ltd (No 3) [2008] FCA 932.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 ; (2007) 159 FCR 397
Outcome: cited
I gave judgment for Darrell Lea: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446 ; (2006) 229 ALR 136. The Full Court upheld Cadbury's appeal, holding that I had wrongly excluded the evidence of the Cadbury experts but otherwise rejecting Cadbury's substantive grounds of appeal: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 ; (2007) 159 FCR 397. The orders I made, including costs orders, were set aside and the matter was remitted to me for further hearing so that the evidence of the Cadbury experts could be received. 14 Further, while the first trial had been conducted on the mutual assumption that there was no relevant difference between the passing off and Trade Practices Act claims, the Full Court pointed out that this was not necessarily so and that, in particular, in the Trade Practices claims Cadbury did not have to establish an exclusive reputation in relation to the colour purple: [2007] FCAFC 70 ; 159 FCR 397 at [96] - [99] . 15 The conclusion is that, broadly speaking, while there was a certain amount of overlapping, the submissions at the first trial were not wasted. The submissions at the second trial understandably concentrated on the evidence of the Cadbury experts. 16 Moreover, virtually all the final submissions by Darrell Lea at the first trial were directed to arguments in effect upheld by the Full Court and, indeed, to a large extent ultimately not challenged by Cadbury (since the evidence of the Cadbury experts had already been excluded, it was not the subject of any discussion in those submissions). It would seem unreasonable to deprive the ultimately successful party of the costs of arguments which have been found to be correct. 18 This matter is discussed by the Full Court: [2007] FCAFC 70 ; 159 FCR 397 at [115] - [127] . Because there had been substantial default by Cadbury in complying with consent directions for the filing of affidavits I directed that Cadbury pay, on an indemnity basis, Darrell Lea's costs of preparing to meet such evidence. 19 Their Honours held that because there had been no explanation of the failure to apply for an extension of time to vary the timetable, there was no error of principle in my ordering indemnity costs for Darrell Lea's preparation related to Cadbury affidavits rejected on the grounds of lateness: [2007] FCAFC 70 ; 159 FCR 397 at [125] - [126] . However, their Honours considered there was an error insofar as that order extended to Darrell Lea's costs in respect of its expert Mr John Hall. His evidence, which was in the same field as that of the Cadbury experts, would have been relied on by Darrell Lea had I not rejected the evidence of the Cadbury experts on grounds unrelated to lateness (although their affidavits were a few days late).
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2007] FCAFC 119
Outcome: cited
Also, the real contest between the parties had been substantially narrowed by the intervening decision of the Full Court. As already noted, the Full Court had rejected Cadbury's appeal grounds other than those connected with the Cadbury experts and a costs issue. Some of those grounds were abandoned and others "pressed only formally at the hearing of the appeal": Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2007] FCAFC 119 at [8] . The Full Court ordered that Cadbury pay Darrell Lea's costs of and associated with grounds 1 to 14 (inclusive), 17 and 18 of the amended notice of appeal.
Case: Clark, Tait &amp; Co v Federal Commissioner of Taxation [1931] HCA 26 ; (1931) 47 CLR 142
Outcome: cited
At the second trial, Darrell Lea decided not call Mr Hall. Nevertheless, costs in relation to the preparation of his evidence should be allowed to Darrell Lea: Clark, Tait &amp; Co v Federal Commissioner of Taxation [1931] HCA 26 ; (1931) 47 CLR 142 at 146. But, consistently with the Full Court's ruling, those costs should not be on an indemnity basis, as Darrell Lea now concedes. 21 As to the issue of other costs in relation to the late filed evidence, I remain of the view, having once again considered the matter, that Cadbury's conduct as discussed in the Full Court's reasons warrants an order for indemnity costs. 22 The net result that is that there should be the same order for indemnity costs as made at the first trial, except in relation to the evidence of Mr Hall.
Case: Cummings v Lewis (1993) 41 FCR 559
Outcome: cited
These observations were approved by Cooper J (with whom Sheppard and Neaves JJ agreed) in Cummings v Lewis (1993) 41 FCR 559 at 602-603. See also Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] and Black and Decker Inc v GMCA Pty Ltd (No 3) [2008] FCA 932.
Case: Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
Outcome: cited
These observations were approved by Cooper J (with whom Sheppard and Neaves JJ agreed) in Cummings v Lewis (1993) 41 FCR 559 at 602-603. See also Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] and Black and Decker Inc v GMCA Pty Ltd (No 3) [2008] FCA 932.