mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Leane v Repatriation Commission [2004] FCAFC 83
Outcome: cited
party to a proceeding before the Tribunal may appeal to the Court on a question of law from any decision of the Tribunal in that proceeding (s 44(1) AAT Act). This Court does not have jurisdiction to intervene if all that is shown is that the Tribunal has reached an erroneous factual conclusion: see Repatriation Commission v Hendy [2002] FCAFC 424 at [33] , Leane v Repatriation Commission [2004] FCAFC 83 at [19] .
Case: Repatriation Commission v Hendy [2002] FCAFC 424
Outcome: cited
party to a proceeding before the Tribunal may appeal to the Court on a question of law from any decision of the Tribunal in that proceeding (s 44(1) AAT Act). This Court does not have jurisdiction to intervene if all that is shown is that the Tribunal has reached an erroneous factual conclusion: see Repatriation Commission v Hendy [2002] FCAFC 424 at [33] , Leane v Repatriation Commission [2004] FCAFC 83 at [19] .
Case: Repatriation Commission v Keeley [2000] FCA 532 ; (2000) 98 FCR 108
Outcome: cited
interaction of s 120 and s 120A were considered in detail by the Full Court of the Federal Court in Repatriation Commission v Keeley [2000] FCA 532 ; (2000) 98 FCR 108 at 114-115. In that case, which concerned the death of a veteran, Lee and Cooper JJ observed that: &#8226; Section 120(3) defines the scope of operation of s 120(1). &#8226; A reasonable hypothesis which 'connects' the death of a veteran with 'the circumstances of the particular service' of the veteran may be taken to be a theory, proposition, suggestion or postulation which suggests reasonably, although without proof, that some event in, or aspect of, the service rendered by the veteran may be linked to the death of the veteran. &#8226; If a claimant's case relies upon the raising of a reasonable hypothesis to avoid the Commission being satisfied beyond reasonable doubt that death is not 'war-caused' then s 120A(3) and s 196B will apply, if the hypothesis is one addressed by a determination made under s 196B. &#8226; Notwithstanding s 120A(3), a reasonable hypothesis may be shown to be untenable and, therefore disregarded, if the Commission is satisfied under s 120(1) that the material before it proves beyond reasonable doubt that the assumed factual foundation for the hypothesis did not exist. &#8226; Sections 120(3) and 120A(3) will apply if the material does not establish to the reasonable satisfaction of the Commission that the death was 'war-caused' and the Commission must consider whether it is satisfied beyond reasonable doubt that the death was not 'war-caused'.
Case: White v Repatriation Commission [2004] FCA 633
Outcome: cited
my view the submissions of the applicant on this point are not supported by analysis of the decision of the Tribunal. The Tribunal in its reasoning did recognise that an objective and subjective component of experiencing a severe stressor must be evident. In relation to post traumatic stress disorder, the Tribunal referred to Stoddart ; in relation to dysthymic disorder the Tribunal referred to White v Repatriation Commission [2004] FCA 633 , a decision of Spender J which in turn referred to the test in Stoddart . Applying the test in relation to both disorders, the Tribunal was of the view, within the context of the third Deledio step, that the material concerning the applicant's observation of and reactions to the minefield incident did point to the existence of both objective and subjective components.
Case: Australian Securities and Investments Commission v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320
Outcome: followed
The first issue is whether each of the general ledgers and journal entries identified earlier (see [36] above) is a book kept by a body corporate under a requirement of the Corporations Act . They clearly are: see Australian Securities and Investments Commission v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320 at [223] [321]. The documents, on their face, purport to be documents kept by a body corporate. They are printouts of electronic records which identify the relevant body corporate by name, the nature of the document by name and, in many cases, the time and date on which the printout was printed. It was not submitted by WRVM, and there are no bases for contending, that the presumption arising under s 1305(2) has been rebutted. On the contrary. The evidence of the contents of the documents together with the unchallenged evidence of Mr Wunsch that the documents were sourced from the relevant body corporate reinforces the conclusion that each document is a book kept by a body corporate under a requirement of the Corporations Act . 70 The second issue is what facts those documents record. As noted earlier (see [33]-[37]), so far as is presently relevant, the documents record: 1. a loan by NAB to Salvern of $4 million; 2. a loan by Salvern to AVS of $2,953,067.22 with the notation "AVS Loan to [WRVM]"; 3. that $33,528.64 of the Deacons bill of $36,881.50 was on-charged to AVS; 4. a loan by AVS to WRVM of three amounts - $2,953,067.22 (with the notation "Re Salvern Loan"), $33,528.64 (being payment of legal fees) and $16,959.35; 5. a credit by AVS to WRVM of $3,328.57 with the notation "Tranche-2-La". 71 WRVM did not challenge the admissibility of these records or the facts recorded in them. Moreover, WRVM did not seek to cross-examine Mr Wunsch who identified the documents and the source of them. In the circumstances, the only conclusion to be drawn from those financial records is that AVS did advance the Tranche 2 Loan to WRVM under the AVS Facility Agreement. In this context, AVS also referred to cl 24 of the AVS Facility Agreement. It provided that AVS (described as the Financier) was entitled to maintain records specifying the payments made by AVS for the account of WRVM, any payments made by WRVM for the account of AVS under, inter alia , the AVS Facility Agreement and the interest, fees, charges, costs and expenses payable and that those records would, as against AVS, constitute conclusive evidence (in the absence of manifest error) of the matters set out in them. The documentation described earlier records the advance of the Tranche 2 Loan by AVS to WRVM. Whether other amounts were paid or incurred in relation to the Tranche 2 Loan was not disclosed. Those issues, if relevant, would be considered at the time of the taking of any account.
Case: Bahr v Nicolay (No 2) [1988] HCA 16 ; (1988) 164 CLR 604
Outcome: discussed
Indefeasibility is the foundation of the Torrens system: Bahr v Nicolay (No 2) [1988] HCA 16 ; (1988) 164 CLR 604 , 613. In Western Australia, the principle of indefeasibility of title is "give[n] expression to, and at the same time, qualif[ied] by" ss 68 and 134 of the TLA ( Bahr at 613). Each section refers to the concept in the context of the registered "proprietor". "Proprietor" is defined in s 4 of the TLA to include "in relation to freehold land, the owner, whether in possession, remainder, reversion or otherwise, of land or of a lease, mortgage or charge over land". As a result ss 68 and 134 of the TLA confer indefeasibility of title not only on the holder of the fee simple but also on the registered holder of an interest in the land including a mortgagee. The qualifications to or limits of indefeasibility for present purposes may be put to one side. It was not submitted that any exception arose for consideration. 64 In the circumstances that then existed: 1. WRVM was and remained the registered proprietor of the Land; 2. NAB was a registered mortgagee with priority over the other mortgagees, AVS and RFA; 3. NAB's mortgage and liability has been discharged; 4. The AVS/RFA mortgage had also been discharged but with the issue of WRVM's liability to AVS remaining unresolved together with the issue of whether any such liability was secured by the AVS mortgage. 65 In ascertaining whether WRVM is indebted to AVS and, if so, whether the whole or part of that debt is secured by the AVS mortgage necessarily involves questions of fact, and no less significantly, the proper construction of the terms of the AVS mortgage itself. It is therefore necessary to turn to consider the five components of the "debt".
Case: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 226
Outcome: cited
Another way of putting it is that there was an implied obligation on both parties to nominate the relevant related entities or representatives and an implied obligation on the part of AVS to generate a development proposal in return for its management and retainer fees. I consider such terms to be reasonable, equitable, obvious, and necessary within the meaning of the test for the implication of contractual terms set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 226 , 283 and the subsequent cases that have adopted that test. In the absence of any development efforts by AVS, WRVM could have asserted breach of contract based on complete failure to perform; similarly, AVS could have asserted breach of contract if WRVM had failed to allocate the $10,000 per month. Accordingly, I consider that the lack of a specified development proposal did not render the agreements unenforceable. 97 WRVM's further contention was that even if the agreements were enforceable contracts, then properly construed they were subject to a condition precedent that the Scheme would be wound up and, in particular, WRVM would be discharged from its obligations under the Mews Sale Contract (see [50]-[56] above), but that condition precedent had not been satisfied. That contention proceeded on an assumption that it was not possible for WRVM to enter into the Mews Sale Contract and yet at the same time contract with Mario Salvo under the Heads of Agreement. That assumption is incorrect. It may be reasonable to conclude that WRVM was not going to be in a position to complete both agreements but that does not mean that one or both of the agreements is subject to a condition precedent.
Case: Breskvar v Wall [1971] HCA 70 ; (1971) 126 CLR 376
Outcome: cited
Before turning to consider the five components identified earlier (see [8]), it is necessary to restate some important principles about Torrens land and the securities registered against it. The Torrens system implemented in Western Australia by the Transfer of Land Act 1893 (WA) ("the TLA") is a system of "title by registration" ( Breskvar v Wall [1971] HCA 70 ; (1971) 126 CLR 376 , 385) and not a system of "registration of title". Registration has two consequences: it not only confers title but it also determines priority. Priority is governed by order of registration and not by date of execution.
Case: Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748
Outcome: cited
It is well established that what was said and done by parties to an agreement is part of the relevant context in which an agreement is construed: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 , 348-53 (per Mason J) and Royal Botanic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; see also Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 at [32] (per Tamberlin J) and [68]-[77]; Chitty on Contracts, 27th ed, Sweet &amp; Maxwell, London, 1994 at [12057]; and McVeigh, In the Matter of Piccolo v National Bank of Australia [2000] FCA 187 at [30] (per Finkelstein J) and at [68] (per Kenny J) and Manks v Whiteley [1912] 1 Ch 735, 754 (per Fletcher-Moulton LJ). 92 Furthermore, even if the preamble's identification of the parties was uncertain or ambiguous, cl 1 of the Heads of Agreement clearly states that "WRVM and MS" will form the joint venture, and cl 2 identifies AVS as the Salvo entity that will discharge the Westpac debt, loan money to WRVM, etc. To the extent that there is any inconsistency between the recitals and the operative portion of the contract, the operative portion controls: Harpur v Levy (2007) 16 VR 587 at [63] and Chacmol Holdings Pty Ltd v Handberg (as administrator of Australian Risk Analysis Pty Ltd) [2005] FCAFC 40 ; (2005) 215 ALR 748 at [39] - [50] , [105] and [106]. The same analysis applies equally to the Development Agreements. Clause 2 of the Development Agreement states that "WRVM and MS have formed a joint venture" and the same is true of cl 2 of the Second Development Agreement.
Case: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337
Outcome: cited
It is well established that what was said and done by parties to an agreement is part of the relevant context in which an agreement is construed: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 , 348-53 (per Mason J) and Royal Botanic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; see also Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 at [32] (per Tamberlin J) and [68]-[77]; Chitty on Contracts, 27th ed, Sweet &amp; Maxwell, London, 1994 at [12057]; and McVeigh, In the Matter of Piccolo v National Bank of Australia [2000] FCA 187 at [30] (per Finkelstein J) and at [68] (per Kenny J) and Manks v Whiteley [1912] 1 Ch 735, 754 (per Fletcher-Moulton LJ).
Case: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471
Outcome: applied
However, in the present case, that conduct does not assist either party. The longstanding rule is that parties are bound by the unambiguous terms of their written agreement unless it is affected by fraud, mistake or misrepresentation: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471 , 483-84 [33] and [35]. The terms of the AVS Facility Agreement are not ambiguous. In the absence of such ambiguity, the written document stands on its own as a record of the agreement between the parties to it. 75 The question which then arises is whether the Tranche 2 Loan is secured by the AVS mortgage. That requires consideration of the proper construction of the terms of the AVS mortgage itself. 76 As noted earlier (see [28]), the AVS mortgage secured the "Secured Money", which was defined to mean "all amounts now or at any time in the future" falling within identified categories: see cl 1.1(27). The categories included: (a) all money now or in future owing or payable to the Mortgagee [(AVS)] ... by [WRVM], either alone or on joint or partnership account and whether as principal debtor, guarantor or indemnifier on any account; ... (i) all costs and expenses that the Mortgagee incurs or becomes liable for in connection with this Mortgage or any Security Document. "Security Document" was defined to mean the mortgage and every other agreement between WRVM and the mortgagee: cl 1.1(1) and (28).
Case: Fountain v Bank of America Trust &amp; Savings Association (1992) 5 BPR 11,817
Outcome: followed
These provisions, read together, are commonly described as an "all-moneys" clause. Provisions such as these are not at large: Fountain v Bank of America Trust &amp; Savings Association (1992) 5 BPR 11,817 at 11,819. The clause is confined in its operation " by reference to the context in which [it] appear[s] and by reference to the commercial purpose for which [it was] intended to serve ": Fountain at 11,819-11,820. Those matters are ascertained by having regard to the language of the clause construed in the context of the security instrument as a whole, the apparent purpose and object of the transaction and any admissible evidence as to the surrounding circumstances: Olympic Holdings Pty Ltd v Windslow Corporation Pty Ltd (in liq) [2008] WASCA 80 at [43] . Consistent with that approach, an all-moneys clause will not secure a debt of a fundamentally different character from the debt specifically contemplated by the parties at the time they entered into the contract: McVeigh, in the matter of Piccolo v National Australia Bank Limited [2000] FCA 187 at [84] . As Gleeson CJ said in Fountain (at 11,820), "The critical question ... is whether, on the true construction of the document and in the events that have occurred, the transaction [the Tranche 2 Loan was] within the purview of [cll 1.1(27) and (28) of the AVS mortgage]."
Case: Hadley v Hazian Proprietary Limited (Full Court of the Supreme Court of Western Australia, unreported, 13 July 1995)
Outcome: distinguished
WRVM's primary complaint was as to the identity of the contracting parties. As noted earlier (see [21]), the preamble referred to the fact that " Mario Salvo or his nominee (defined as "MS") and WRVM and or its nominee "wish[ed] to establish a joint venture for the development of [the Land] ". The meaning of that provision is unambiguous and certain. Mr Salvo and WRVM were the parties to establish "a joint venture for the development of the Land." However, each was given a power to nominate an alternative. If no alternative party was nominated, Mr Salvo and WRVM alone were bound to establish a joint venture. The clause unambiguously records that the parties intended to create a binding agreement which created a joint venture and then governed the relationship between them. WRVM's contention that the parties were insufficiently defined or uncertain to constitute a binding agreement is without foundation. Moreover, contrary to the submissions of WRVM, the decision of the Full Court of the Supreme Court of Western Australia in Hadley v Hazian Proprietary Limited (Unreported, 13 July 1995) does not support its contention. As the unanimous Full Court in Hadley made clear, a clause in the form of that found in the preamble to the Heads of Agreement is unambiguous and certain. What was unambiguous but uncertain was a clause which required a sale to be implemented by any one of A, B or C or some or all of them or their respective nominees. The uncertainty arose because the clause did not identify who was bound to purchase. That criticism cannot apply to the preamble. The preamble provides with certainty that Mario Salvo and WRVM wish to establish a joint venture and that each of them is entitled to nominate an alternative. Moreover, cl 1 of Heads of Agreement provides that each of the WRVM and "MS" is to be entitled to 50% of the profits of the joint venture subject to certain variations. If in the future WRVM wished to nominate an alternative or sell down part of its 50% interest in the joint venture then it was entitled to do so. That might never occur. And until it did, the parties and their obligations were unambiguous and certain.
Case: Harpur v Levy (2007) 16 VR 587
Outcome: cited
Furthermore, even if the preamble's identification of the parties was uncertain or ambiguous, cl 1 of the Heads of Agreement clearly states that "WRVM and MS" will form the joint venture, and cl 2 identifies AVS as the Salvo entity that will discharge the Westpac debt, loan money to WRVM, etc. To the extent that there is any inconsistency between the recitals and the operative portion of the contract, the operative portion controls: Harpur v Levy (2007) 16 VR 587 at [63] and Chacmol Holdings Pty Ltd v Handberg (as administrator of Australian Risk Analysis Pty Ltd) [2005] FCAFC 40 ; (2005) 215 ALR 748 at [39] - [50] , [105] and [106]. The same analysis applies equally to the Development Agreements. Clause 2 of the Development Agreement states that "WRVM and MS have formed a joint venture" and the same is true of cl 2 of the Second Development Agreement.
Case: Manks v Whiteley [1912] 1 Ch 735
Outcome: cited
It is well established that what was said and done by parties to an agreement is part of the relevant context in which an agreement is construed: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 , 348-53 (per Mason J) and Royal Botanic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; see also Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 at [32] (per Tamberlin J) and [68]-[77]; Chitty on Contracts, 27th ed, Sweet &amp; Maxwell, London, 1994 at [12057]; and McVeigh, In the Matter of Piccolo v National Bank of Australia [2000] FCA 187 at [30] (per Finkelstein J) and at [68] (per Kenny J) and Manks v Whiteley [1912] 1 Ch 735, 754 (per Fletcher-Moulton LJ).
Case: Olympic Holdings Pty Ltd v Windslow Corporation Pty Ltd (in liq) [2008] WASCA 80
Outcome: cited
These provisions, read together, are commonly described as an "all-moneys" clause. Provisions such as these are not at large: Fountain v Bank of America Trust &amp; Savings Association (1992) 5 BPR 11,817 at 11,819. The clause is confined in its operation " by reference to the context in which [it] appear[s] and by reference to the commercial purpose for which [it was] intended to serve ": Fountain at 11,819-11,820. Those matters are ascertained by having regard to the language of the clause construed in the context of the security instrument as a whole, the apparent purpose and object of the transaction and any admissible evidence as to the surrounding circumstances: Olympic Holdings Pty Ltd v Windslow Corporation Pty Ltd (in liq) [2008] WASCA 80 at [43] . Consistent with that approach, an all-moneys clause will not secure a debt of a fundamentally different character from the debt specifically contemplated by the parties at the time they entered into the contract: McVeigh, in the matter of Piccolo v National Australia Bank Limited [2000] FCA 187 at [84] . As Gleeson CJ said in Fountain (at 11,820), "The critical question ... is whether, on the true construction of the document and in the events that have occurred, the transaction [the Tranche 2 Loan was] within the purview of [cll 1.1(27) and (28) of the AVS mortgage]."
Case: Royal Botanic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436
Outcome: cited
It is well established that what was said and done by parties to an agreement is part of the relevant context in which an agreement is construed: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 , 348-53 (per Mason J) and Royal Botanic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; see also Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 at [32] (per Tamberlin J) and [68]-[77]; Chitty on Contracts, 27th ed, Sweet &amp; Maxwell, London, 1994 at [12057]; and McVeigh, In the Matter of Piccolo v National Bank of Australia [2000] FCA 187 at [30] (per Finkelstein J) and at [68] (per Kenny J) and Manks v Whiteley [1912] 1 Ch 735, 754 (per Fletcher-Moulton LJ).