mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) [2000] HCA 25 ; (2000) 202 CLR 588
Outcome: cited
process of construction is intended elucidate and give effect to what the parties by their words or actions objectively conveyed to one another was their agreement. Courts seek to avoid being the destroyers of bargains and should be reluctant to find agreements void for uncertainty. The process of construction will result in a meaning which the court decides is the proper construction of the contract. As Barwick CJ emphasised in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 436-437, in the search for the parties' intention, no narrow or pedantic approach is warranted, particularly in the case of commercial agreements. Unless parties have expressed themselves in such a way that their terms are so obscure or incapable of any definite or precise meaning so that the Court cannot attribute to them any particular contractual intention, the Court will find a meaning which an objective person in the position of the parties at the time they entered into the contract would have understood them to have intended: see also Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) [2000] HCA 25 ; (2000) 202 CLR 588 at 599 [15] per Gaudron, McHugh, Gummow and Hayne JJ; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ( CEPU ) v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at 510 [164] - [166] , 511 [171], 512 [174] per Weinberg and Bennett JJ and myself.
Case: Attorney General (NSW) v World Best Holdings Ltd [2005] NSWCA 261 ; (2005) 63 NSWLR 557
Outcome: cited
said that the question was whether the conduct of the corporation complained of was 'unconscionable' according to the natural and ordinary meaning of that term having regard to the list of statutory considerations in ss 51AC(3) and (4): National Exchange 148 FCR at 142 [39]. And their Honours said that the section was not, of course, intended to protect the reckless or the unreasonable. They approved what Spigelman CJ had said in Attorney General (NSW) v World Best Holdings Ltd [2005] NSWCA 261 ; (2005) 63 NSWLR 557 at 583 [121] that '[u]nconscionability is a concept which requires a high level of moral obloquy'.
Case: Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [1987] HCA 45 ; (1987) 75 ALR 461
Outcome: cited
all that, Hoy Mobile was overcharged and underpaid by Allphones. While Hoy Mobile could talk or send letters, it received an insouciant reception from Allphones. Whatever they 'batted back' was not scoring runs. And Allphones persisted throughout the litigation to force Hoy Mobile to prove its monetary claims. As I have found, Allphones not only evinced an intention to not to be bound, it acted in that way. Hoy Mobile could complain as much as it liked, but Allphones had the substantive power in the relationship and used it. This was evident not just in its financial breaches, but, as Mr Harkin said in his May 2006 meeting with Mr Hoy, (before his fraud had come to light) he was going to make an example of Hoy Mobile to show other franchisees what would happen to them if they opposed Allphones as the Hoys had. No justification existed, at that time, to treat Hoy Mobile in accordance with 'the Admiral Byng principle', viz: 'pour encourager les autres' (in order to encourage others): see Attorney-General v Guardian Newspapers Ltd [1987] UKHL 13 ; [1987] 1 WLR 1248 per Lord Oliver Aylmerton at 1317; Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [1987] HCA 45 ; (1987) 75 ALR 461 at 464 per Deane J. Nor was Allphones able to advance any legitimate reason for refusing to credit Hoy Mobile with the $1,100 which Optus had allocated to defray the cost of the store refresh. I am satisfied that Allphones was acting vindictively in refusing to give Hoy Mobile that credit. I have found that Allphones had not proved that it was entitled to make the $10,000 charge (as opposed to a reasonable charge) but its conduct in relation to the Optus payment indicated that Allphones considered that it could make a profit at Hoy Mobile's expense without justification. 33.1 Principles
Case: Attorney-General v Guardian Newspapers Ltd [1987] UKHL 13 ; [1987] 1 WLR 1248
Outcome: cited
all that, Hoy Mobile was overcharged and underpaid by Allphones. While Hoy Mobile could talk or send letters, it received an insouciant reception from Allphones. Whatever they 'batted back' was not scoring runs. And Allphones persisted throughout the litigation to force Hoy Mobile to prove its monetary claims. As I have found, Allphones not only evinced an intention to not to be bound, it acted in that way. Hoy Mobile could complain as much as it liked, but Allphones had the substantive power in the relationship and used it. This was evident not just in its financial breaches, but, as Mr Harkin said in his May 2006 meeting with Mr Hoy, (before his fraud had come to light) he was going to make an example of Hoy Mobile to show other franchisees what would happen to them if they opposed Allphones as the Hoys had. No justification existed, at that time, to treat Hoy Mobile in accordance with 'the Admiral Byng principle', viz: 'pour encourager les autres' (in order to encourage others): see Attorney-General v Guardian Newspapers Ltd [1987] UKHL 13 ; [1987] 1 WLR 1248 per Lord Oliver Aylmerton at 1317; Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [1987] HCA 45 ; (1987) 75 ALR 461 at 464 per Deane J. Nor was Allphones able to advance any legitimate reason for refusing to credit Hoy Mobile with the $1,100 which Optus had allocated to defray the cost of the store refresh. I am satisfied that Allphones was acting vindictively in refusing to give Hoy Mobile that credit. I have found that Allphones had not proved that it was entitled to make the $10,000 charge (as opposed to a reasonable charge) but its conduct in relation to the Optus payment indicated that Allphones considered that it could make a profit at Hoy Mobile's expense without justification. 33.1 Principles
Case: Australasian Performing Rights Association Ltd v Monster Communications Pty Ltd (2006) 71 IPR 212
Outcome: cited
is necessary to construe an agreement so as to avoid making it commercial nonsense or working commercial inconvenience: Zhu v Treasurer of NSW [2004] HCA 56 ; (2004) 218 CLR 530 at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ. In Australasian Performing Rights Association Ltd v Monster Communications Pty Ltd (2006) 71 IPR 212 at 235-237 [103]-[108] I referred to the principles applicable to the construction of contracts. I am of opinion that the genesis of the franchise agreement, the background context and market in which the parties were operating were all relevant, as known to both of them, for the purpose of construing what was intended to be referred to by the use of 'N/A' in describing the territory. There is no evidence that the terms of the franchise agreement as settled between the parties was the subject of drafting, before execution, by lawyers.
Case: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15 ; (1993) 177 CLR 485
Outcome: cited
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; (2007) 230 CLR 89 at 151-152 [135] , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said that intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is 'plainly wrong': see too Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15 ; (1993) 177 CLR 485 at 492 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ. And, where an intermediate appellate court holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong: Nguyen v Nguyen [1990] HCA 9 ; (1990) 169 CLR 245 at 250 per Brennan J, at 269 per Dawson, Toohey and McHugh JJ and at 251 per Deane J agreeing.
Case: Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63
Outcome: cited
is a balance of deductions from Hoy Mobile's commissions that comes to $3,581.49, which the experts agreed related to the credit charge fees, EFTPOS fees, IT fees, or late banking fees. However, they were unable to allocate that sum among the individual categories. In my opinion, it was for Allphones to justify its deductions. Hoy Mobile has established that Allphones made substantial deductions from commission amounts it was paid without a contractual basis. Mr Nicoll could have given evidence as to any basis for reducing the unallocated balance but did not. And, in their reports neither Mr Nicoll nor the two expert accountants could allocate the sums involved. Hoy Mobile has discharged any onus on it: Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63 at 64; [1774] EngR 2 ; 98 ER 969 at 970; Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ and see too at 233 per Brennan and Toohey JJ; R v Burdett (1820) 4 B &amp; Ald 95 at 161-162 per Abbott LCJ at 140 per Holroyd J; 106 ER 873 at 898 and 890. Since Allphones did not justify any portion of this balance as a fee payable by Hoy Mobile, the whole amount claimed by it should be paid by Allphones.. 25.5 Retention canvassing
Case: Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909
Outcome: cited
common law, a party who brings an action for breach of contract must show that he is ready and willing to perform his part of the concurrent acts: Cohen &amp; Co 24 CLR at 298 per Isaacs J. Where, at least in English law, both parties to a contract are in breach of a mutual obligation owed by each to the other, neither can rely upon the other's breach as giving him a right to terminate, following the decisions of the House of Lords in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 978-988A per Lord Diplock, with whom Lords Edmund-Davies and Russell of Killowen agreed; Paal Wilson &amp; Co v Partenreedere Hannah Blumenthal [1983] 1 AC 854 at 908H-909F per Lord Brandon of Oakbrook with whom the other members of the House agreed in separate speeches.
Case: Cannon Australia Pty Ltd v Patton [2007] NSWCA 24
Outcome: cited
Finn and Conti JJ held that the analogue of s 51AC required the Court to focus primarily on the unconscionable conduct of the corporation and to determine whether that conduct was contrary to the norm of conscientious behaviour. They held that the conduct in that case insisted of a carefully formulated and systematic approach which clearly offended against basic notions of good conscience and fair play: National Exchange at 148 FCR at 143 [44]. Although their Honours were speaking of s 12CC of the ASIC Act , their remarks apply equally to the notion of 'unconscionable conduct' in its analogue, s 51AC: Cannon Australia Pty Ltd v Patton [2007] NSWCA 246 at [43] per Campbell JA, with whom Harrison J agreed. Campbell JA had referred ([2007] NSWCA 246 at [40]) to the earlier decision of a Full Court of this Court in Hurley v McDonald's Australia Ltd [1999] FCA 1728 ; (2000) ATPR 41-741 at [21] - [22] . There Heerey, Drummond and Emmett JJ said that for conduct to be regarded at an unconscionable, serious misconduct or something clearly unfair or unreasonable had to be demonstrated. They found that the term carried with it the meaning given by the Shorter Oxford English Dictionary, namely '... actions showing no regard for conscience, or that are irreconcilable with what is right or reasonable', relying on Qantas Airways Ltd v Cameron [1996] FCA 1483 ; (1996) 66 FCR 246 at 262.
Case: Champtaloup v Thomas [1976] 2 NSWLR 264
Outcome: cited
Tropical Traders Ltd v Goonan [1964] HCA 20 ; (1964) 111 CLR 41 at 55 Kitto J said that the person with the choice might keep the question open '... so long as it did nothing to affirm the contract and so long as the [other party's] position was not prejudiced in consequence of the delay'. He said that when the vendor in that case told the purchaser that it would not rescind a contract for the sale of land before a particular date if the purchaser paid an additional sum for interest, costs and expenses, the vendor was doing no more than promising that it would not elect to rescind the contract before that date if the conditions were complied with. Kitto J said that in that case a grant of an extension of time was not an election to affirm but, rather, amounted to an announcement of an intention to refrain from electing either way until the money had been paid or the extended time for performance had elapsed: see too Champtaloup v Thomas [1976] 2 NSWLR 264 at 268C-269B per Glass JA; 273D-274D per Mahoney JA; Street CJ agreeing with both at 266: Hunter BNZ Finance v GC Maloney Pty Ltd (1988) 18 NSWLR 420 at 435C-436B per Giles J: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 89-92 [356] - [364] per Finn J. And, as the judgment of the Exchequer Chamber written by Blackburn J (see Scarf 7 App Cas at 360) established, this principle applies to a party to a contract who discovers his entry into it was induced by the fraud of the other: Clough v London &amp; North Western Railway Co (1871) LR 7 Ex 26 at 34-35. 22.2 Consideration
Case: Clough v London &amp; North Western Railway Co (1871) LR 7 Ex 26
Outcome: cited
Tropical Traders Ltd v Goonan [1964] HCA 20 ; (1964) 111 CLR 41 at 55 Kitto J said that the person with the choice might keep the question open '... so long as it did nothing to affirm the contract and so long as the [other party's] position was not prejudiced in consequence of the delay'. He said that when the vendor in that case told the purchaser that it would not rescind a contract for the sale of land before a particular date if the purchaser paid an additional sum for interest, costs and expenses, the vendor was doing no more than promising that it would not elect to rescind the contract before that date if the conditions were complied with. Kitto J said that in that case a grant of an extension of time was not an election to affirm but, rather, amounted to an announcement of an intention to refrain from electing either way until the money had been paid or the extended time for performance had elapsed: see too Champtaloup v Thomas [1976] 2 NSWLR 264 at 268C-269B per Glass JA; 273D-274D per Mahoney JA; Street CJ agreeing with both at 266: Hunter BNZ Finance v GC Maloney Pty Ltd (1988) 18 NSWLR 420 at 435C-436B per Giles J: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 89-92 [356] - [364] per Finn J. And, as the judgment of the Exchequer Chamber written by Blackburn J (see Scarf 7 App Cas at 360) established, this principle applies to a party to a contract who discovers his entry into it was induced by the fraud of the other: Clough v London &amp; North Western Railway Co (1871) LR 7 Ex 26 at 34-35. 22.2 Consideration
Case: Cohen &amp; Co v Ockerby &amp; Co Ltd [1917] HCA 58 ; (1917) 24 CLR 288
Outcome: applied
course, at common law the courts cannot make a contract for the parties which they did not make for themselves (cp: s 87(2) of the Trade Practices Act ). But commercial contracts '... ought to be construed fairly and liberally for the purpose of carrying out the object of the parties': Duncan v Koster; The Teutonia (1872) LR 4 PC 171 per Mellish LJ at 182, applied by Isaacs J in Cohen &amp; Co v Ockerby &amp; Co Ltd [1917] HCA 58 ; (1917) 24 CLR 288 at 300. Isaacs J went on to hold that expressions in a mercantile contract are not to be read narrowly, but as the Court would suppose two honest business people would understand the words they actually used with reference to their subject matter and the surrounding circumstances: Cohen &amp; Co 24 CLR at 300. And the Court construes a commercial contract to avoid it making commercial nonsense or working commercial inconvenience: Zhu 218 CLR at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ. At common law, a party who brings an action for breach of contract must show that he is ready and willing to perform his part of the concurrent acts: Cohen &amp; Co 24 CLR at 298 per Isaacs J. Where, at least in English law, both parties to a contract are in breach of a mutual obligation owed by each to the other, neither can rely upon the other's breach as giving him a right to terminate, following the decisions of the House of Lords in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 978-988A per Lord Diplock, with whom Lords Edmund-Davies and Russell of Killowen agreed; Paal Wilson &amp; Co v Partenreedere Hannah Blumenthal [1983] 1 AC 854 at 908H-909F per Lord Brandon of Oakbrook with whom the other members of the House agreed in separate speeches.
Case: Collins v Baltern (1767) 2 Wils 347
Outcome: referred to
LCJ's words are taken from his judgment in Collins v Baltern (1767) 2 Wils 347 at 351. They reflect a principle which still runs through the common law of identifying fault as an appropriate basis for the court exercising its power to grant or withhold relief. In Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 441, Latham CJ, Williams and Fullagar JJ discussed a contractual power to avoid a contract in circumstances where the consent of a third party, there the treasurer of the Commonwealth of Australia, had not been obtained within a particular time. They said that in that case, the event in question could be brought about by the failure on the part of either party to take certain necessary steps, or it could be brought about without default by either party. They concluded that the latter situation applied in that case, but determined that the clause made the contract not void, but voidable saying: ' The question of who may avoid it depends on what happens. If one party has by his default brought about the happening of the event, the other party alone has the option of avoiding the contract . If the event has happened without default on either side, then either party may avoid the contract. But neither need do so, and, if one party having a right to avoid it does not clearly exercise that right the other party may enforce the contract against him.' (emphasis added) Their Honours applied this reasoning as an extension of the principle that no party, directly or indirectly, may take advantage of his own wrong.
Case: Commissioner of Taxation v Reliance Carpet Co Pty Ltd [2008] HCA 22
Outcome: cited
too applied what Dixon CJ had said in Rawson 107 CLR at 481, see Foran 168 CLR at 425. When Brennan J referred to an entitlement to rescind, he used 'rescind' in the sense of one party electing to terminate for breach or repudiation by the other, as explained in Commissioner of Taxation v Reliance Carpet Co Pty Ltd [2008] HCA 22 at [2] per Gleeson CJ, Gummow, Heydon, Crennan and Kiefel JJ.
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ( CEPU ) v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466
Outcome: cited
process of construction is intended elucidate and give effect to what the parties by their words or actions objectively conveyed to one another was their agreement. Courts seek to avoid being the destroyers of bargains and should be reluctant to find agreements void for uncertainty. The process of construction will result in a meaning which the court decides is the proper construction of the contract. As Barwick CJ emphasised in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 436-437, in the search for the parties' intention, no narrow or pedantic approach is warranted, particularly in the case of commercial agreements. Unless parties have expressed themselves in such a way that their terms are so obscure or incapable of any definite or precise meaning so that the Court cannot attribute to them any particular contractual intention, the Court will find a meaning which an objective person in the position of the parties at the time they entered into the contract would have understood them to have intended: see also Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) [2000] HCA 25 ; (2000) 202 CLR 588 at 599 [15] per Gaudron, McHugh, Gummow and Hayne JJ; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ( CEPU ) v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at 510 [164] - [166] , 511 [171], 512 [174] per Weinberg and Bennett JJ and myself. In his examination in chief on this topic, Mr Donnellan said that Allphones had asked Optus to ensure that it was allowed to offer different incentives to different franchisees in order to promote performance, in the hope that the bonus payments would continue. He said that Optus had agreed to pay the $150 bonuses as per connection 'on a budget basis', meaning that Allphones had to modify its marketing, order stock and ensure that franchisees knew that they could make money over the three month period. He was not asked what the supposed conditions were for the payment of this commission to franchisees. His vague and general assertions do not fit with Mr Lim's insistence in his email of 3 May 2004 that if the payment of the $150 commission appeared on the stores' RCTIs, Allphones would expect the same money to be paid to it in full. The most natural inference to draw (as I do) from Mr Donnellan's failure to give any evidence on this aspect of the topic in chief, is that any such evidence as he might have given would have exposed facts unfavourable to Allphones' case: CEPU 162 FCR at 525 [230]; Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-G per Handley JA.
Case: Compomar Sociedad Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: cited
purpose of s 51AC(1) was to set a norm of conduct for corporations acting in trade or commerce in the context in which the section operates: cp Compomar Sociedad Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at 85 [103] . The second reading speech stated that this norm of conduct had the purpose of protecting the legal rights of small businesses and ensuring that they could confidently deal with large firms: see National Exchange 148 FCR at 143 [48], 144 [50]. Here the supply or possible supply of services to Hoy Mobile included the rights, benefits and privileges which Allphones had to provide to it under the franchise agreement. That congeries contained an entitlement to be paid all amounts of commission due in accordance with the franchise agreement, as well as other valuable rights, such as Hoy Mobile's right to assign its interest under the franchise agreement with Allphones' consent (cl 8.1).