mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Carlton &amp; United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1978) 76 ALR 633
Outcome: cited
Despite this, CSA, no doubt advisedly, decided to challenge what counsel for CSA described as the ARU business model. The challenge, as I have indicated, goes well beyond the immediate s 45 case in respect of the Perth Test. These proceedings are the manifestation of that decision. It was unnecessary in my opinion, in order to pursue such challenge, for CSA to enter into contracts with its corporate clients for the supply of hospitality packages, including tickets, for the Perth Test. The proceedings might simply have sought declarations without deliberately involving third parties. The proceedings could also have been instituted as early as November last year when CSA and the ARU terminated their contractual relationship, if it had wanted to obtain relevant discretionary relief in time for the Perth Test. There has been an unreasonable delay on the part of CSA in bringing this application. I would, for that reason alone, have refused to grant the relief sought: Carlton &amp; United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1978) 76 ALR 633 at 638-9. 64 Further it is clear that when CSA entered into its contract with SFC for the acquisition of packages in order to access tickets, at a significant premium, for its own packages, it was aware that this was a contravention of the Ticket Condition. 65 The position of the purchasers of corporate hospitality packages from CSA is of course regrettable. However, there is a consideration which outweighs their personal position. In my opinion, a Court should be alert not to give weight to circumstances, deliberately and unnecessarily created by the moving party, which were then sought to be relied upon as a relevant ingredient in the consideration of the balance of convenience. I consider this to be so, even where it involves third parties. There may be occasions when, despite the wilful nature of the moving party's conduct that the position of third parties will nonetheless be a determining factor. This is not such a case.
Case: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Outcome: cited
It is appropriate, in a case such as this, for the Court to evaluate the strength of CSA's case for final relief in relation to this aspect of its claim in order to see where the balance of convenience lies: Australian Broadcasting Commission v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [71] , [72] and Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535-536.
Case: News Ltd v South Sydney Football Club [2003] HCA 45 ; (2003) 215 CLR 563
Outcome: cited
Furthermore, s 45(2)(a)(ii) and (b)(ii) require a consideration of "purpose". It is the subjective purpose of the ARU in seeking to enforce both the Condition in the SFC Contract as well as the Ticket Condition, which is relevant: News Ltd v South Sydney Football Club [2003] HCA 45 ; (2003) 215 CLR 563 at [18] . 60 I think it more likely than not that the ARU's subjective purposes are as deposed to by Mr Moore, which broadly, is to promote Rugby Union in Australia and to ensure that all members of the public are given equal access to rugby tickets so far as possible. I do not think it likely that the purpose was, as CSA contends, to "lock-out" CSA from supplying corporate hospitality at the Perth Test match. 61 CSA submits that it cannot be adequately compensated by an award of damages because it has entered into contracts to supply the tickets to third parties and without the aid of the Court it will be unable to supply these tickets. It says this will cause damage to its reputation which is incapable of accurate assessment and will also cause a windfall to the ARU by securing to itself, the SFC or to Matchpoint a transfer of the customers who would otherwise seek corporate hospitality packages from it. It also submits that there is no evidence that these third parties will be adequately accommodated or dealt with in a manner suitable to them.
Case: Visy Paper Pty Limited v ACCC [2003] HCA 59 ; (2003) 216 CLR 1
Outcome: cited
Second, the ARU submits that even if the ARU does supply SFC with tickets in SFC's capacity as principal, the ARU does so on condition that SFC will not re-supply those tickets except to a limited extent, being to members and specified clients: s 47(2)(f) of the Act . However, by operation of s 47(10) the prohibition on exclusive dealing will not apply to such an arrangement. It submits that by operation of s 45(6) , the prohibition against exclusionary provisions in s 45(2)(a)(i) does not apply to the alleged provision in ARU's arrangement with SFC: Visy Paper Pty Limited v ACCC [2003] HCA 59 ; (2003) 216 CLR 1 at [29] - [35] . 56 There was less than full argument on this submission. It is arguably correct. CSA did not persuade me that it was wrong or likely to be wrong. This is principally because it again would involve my being satisfied, to the necessary degree, that there was a substantial lessening of competition. For the following reasons I cannot be satisfied as to that. 57 Third, I have not been persuaded to the necessary degree of the likelihood that there has been the substantial lessening of competition in an identified market arising out of the arrangements between the ARU and the SFC or through the enforcement by the ARU of the Ticket Condition in contravention of s 45(2)(a)(ii) or (b)(ii) of the Act .
Case: BRK (Bris) Pty Ltd v FCT [2001] FCA 164 ; (2001) ATC 4111
Outcome: applied
relation to recklessness in the context of s 226H, Cooper J observed in BRK (Bris) Pty Ltd v FCT [2001] FCA 164 ; (2001) ATC 4111 at 4129: Recklessness means to include a tax statement material upon which the Act or regulations are to operate, knowing that there is a real, as opposed to a fanciful, risk that the material may be incorrect, or be grossly indifferent as to whether or not the material is true and correct, and that a reasonable person in the position of the statement-maker would see there was a real risk that the Act and the regulations may not operate correctly to lead to the assessment of the proper tax payable because of the content of the tax statement. So understood, the proscribed conduct is more than mere negligence and must amount to gross carelessness. For the Commissioner, it was contended that recklessness was established by the following considerations: 34.1 the Applicant's signing of commercial documents without understanding the general effect that signing those documents would have; 34.2 the Applicant's acceptance of her husband's advice to take certain actions, without independent enquiry of the effect of those actions; 34.3 the applicant's accepting appointment as a director of a company which was trustee for a trust of which she was a beneficiary, the operations of which she professed little knowledge; 34.4 her swearing of affidavit material without personal knowledge of the factual matters contained therein; 34.5 vesting of trust assets of the Jancy Trust into a separate trust, without informing audit officers of that transaction. I am not prepared to infer that the appellant was reckless for the purposes of the imposition of additional tax under s 226H having regard to these considerations.
Case: Carr v Finance Corporation of Australia (No 1) [1981] HCA 20 ; (1981) 147 CLR 246
Outcome: cited
further material then came to be filed subsequent to the hearing of the appeal (as to which see Carr v Finance Corporation of Australia (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 per Mason J, as he then was, at 257-8 and Jackson v Conway [2000] FCA 1530 per Branson J at [29]. The transcript of closing submissions of the trial of the matter, make it plain that it was contended for the appellant that there had been neither recklessness on her part, nor hindrance of the Commissioner on her part.
Case: Federal Commissioner of Taxation v Turner (1984) 15 ATR 379
Outcome: applied
word "false" in the former s 223 means "wrong": Reliance Finance Corporation Pty Ltd v FCT (1987) 87 FLR 305. It is not necessary for the respondent to show that the statement was deliberate or fraudulent: Federal Commissioner of Taxation v Turner (1984) 15 ATR 379.
Case: Jackson v Conway [2000] FCA 1530
Outcome: cited
further material then came to be filed subsequent to the hearing of the appeal (as to which see Carr v Finance Corporation of Australia (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 per Mason J, as he then was, at 257-8 and Jackson v Conway [2000] FCA 1530 per Branson J at [29]. The transcript of closing submissions of the trial of the matter, make it plain that it was contended for the appellant that there had been neither recklessness on her part, nor hindrance of the Commissioner on her part.
Case: Kajewski v FCT (2003) ATC 4375
Outcome: cited
provisions of s 223 apply even if the appellant was ignorant of the accounting matters giving rise to the additional income of the Jancy Trust: Kajewski v FCT (2003) ATC 4375. In my opinion, it is not competent for the Federal Court to conduct a merits review of the exercise of the discretion by the Commissioner to remit. As my reasons at first instance indicate, the appellant was actively involved with Jancy Pty Ltd, the trustee of the Jancy Trust, of which she was the primary beneficiary. She had extensive involvement in the refinancing of property owned by Jancy Pty Ltd with the ANZ Bank.
Case: Pearson v Commissioner of Taxation [2006] FCAFC 111
Outcome: cited
5 July 2006, the Full Court of the Federal Court (Dowsett, Allsop and Edmonds JJ) allowed the appellant's appeals in part: Pearson v Commissioner of Taxation [2006] FCAFC 111. In my reasons of 16 March 2005, I said, at [22]: There is no dispute in these proceedings as to the Commissioner's power to issue amended assessments and his approach to the quantification of additional tax payable by the appellant, should his contentions concerning the income and the asserted disclaimers be accepted. And, at [92], I said: The parties are agreed that if I should find for the Commissioner in respect of the issues concerning the trust income of [Corplan Financial Network Unit Trust (CFNUT)] and [Corplan Financial Group Unit Trust (CFGUT)] in the relevant years and find against the appellant on the question of disclaimers, the monetary amounts should be as in the table annexed to these reasons. The judgment of Edmonds J (with whom Dowsett and Allsop JJ agreed) said concerning this issue: On the hearing of the appeal, Senior Counsel for the appellant accepted that [22] and [92] accurately reflect what his Honour was asked to do. He also accepted, although as it subsequently transpired he should not have, that no submission, written or oral, was put below as to the absence of a basis for recklessness and moreover, that he did not even draw his Honour's attention to the allegedly live question of additional tax. He said that the matter was raised as an issue in the initiating application to the Court, although it seems it was not raised as an issue in the statement of facts, issues and contentions filed by the parties as part of the interlocutory processes. If these were the only facts then, in my opinion, by the time the case came on for hearing before his Honour below, the issue of additional tax was no longer a live discrete issue; it may have remained an issue in name, but only on the basis that it stood or fell by reference to the outcome of the substantive issue. While, on the hearing of the appeal, Senior Counsel for the appellant did not accept this view of the matter, he did accept that it would be more appropriately framed as an application for leave to agitate the issue rather than as a challenge to his Honour's disposition of the matter. I tend to agree and on those facts and concessions, I would not be prepared to grant leave. However, following the hearing of the appeal, papers, including transcript below, were filed with the Court which indicate that the factual basis of the imposition of additional tax, namely recklessness, was still an issue so far as the appellant was concerned, even if the respondent and the Court thought otherwise....
Case: Reliance Finance Corporation Pty Ltd v FCT (1987) 87 FLR 305
Outcome: applied
word "false" in the former s 223 means "wrong": Reliance Finance Corporation Pty Ltd v FCT (1987) 87 FLR 305. It is not necessary for the respondent to show that the statement was deliberate or fraudulent: Federal Commissioner of Taxation v Turner (1984) 15 ATR 379.
Case: Heesh v Baker (2008) 67 ACSR 192
Outcome: discussed
Moodie did not accept the proofs of debt for the full amounts of them, but admitted each of Kandelka and Pilmood to vote for $65,907.00 a total of $131,814.00. Apparently Mr Moodie allowed that they were creditors in respect of certain interest owing under the Loan Agreements. The solicitor for Pisces objected at the meeting, referring to Heesh v Baker (2008) 67 ACSR 192 (see below), while the solicitor for Kandelka and Pilmood distinguished that case as not having involved a loan agreement. In fact four creditors voted against the DOCA totalling $143,826.00 by value. Twenty four creditors voted in favour of the DOCA, totalling $2,111,187.74 by value. Kandelka and Pilmood each sought to prove for a total of $1,315,907.51 representing $1,252,500 for principal and $63,407.51 for interest. If their proofs had been admitted in full they would have voted against the DOCA to the full combined extent of $2,631,815.02 and the resolution in favour of the DOCA would not have been passed. If their proofs had not been admitted at all, the amount voted in favour of the DOCA would have remained $2,111,187.74 but the amount voted against it would have been only $12,012.00. In Heesh v Baker , above, Barrett J had to consider whether, in the circumstances of that case, the holders of redeemable preference shares were "creditors" of the company concerned for the purposes of Pt 5.3A of the Act. The terms of the issue of the shares, as set out in the prospectus, provided that the company was to pay a fixed dividend and that distribution rates might vary from time to time depending on the sufficiency of profits. If there should be insufficient profits to pay fully the distribution entitlement, any shortfalls were to carry forward to a successive period until payment was made. It should be acknowledged at once that in that case there was no loan agreement and that the possibility of unavailability of profits was addressed in relation to a different issue.
Case: UOB Venture Investments Ltd v Tong Garden Holdings Pte Ltd [2001] 1 SLR 362
Outcome: cited
J referred to certain cases as authority for the proposition that a company was or could be subject to an absolute obligation to redeem notwithstanding a provision similar to s 254K of the Act ( UOB Venture Investments Ltd v Tong Garden Holdings Pte Ltd [2001] 1 SLR 362 at [20]; Mutual Life and Citizens Assurance Co Ltd v Mosgiel Ltd [1994] 1 NZLR 146 ; Re Dividend Fund Incorporated (In Liquidation) [1974] VR 451 at 454-6; TNT Australia Pty Ltd v Normandy Resources NL (1989) 53 SASR 156 at 206; and Re Marra Developments Ltd and the Companies Act (No 2) (1978) 3 ACLR 798. His Honour stated (at [58]-[59]): [58] What these cases really show, in my view, is that the question is ultimately one of construction. It cannot be doubted that, upon and by virtue of subscription for and allotment of redeemable preference shares, a contract comes into existence between the company and the shareholder. The contract may or may not impose what the Singapore court found to be an absolute obligation to redeem (or, for that matter, to pay specified dividends at specified times). If the obligation is absolute, a breach of contract occurs when the company fails to perform; and this is so even if the failure is because of unavailability of a fund from which payment may lawfully be made. There are then questions about remedies, a matter to which I shall return. [59] In the present case, the contract between York and each holder of CPRPS shares includes not only the provisions of the constitution given contractual force by s 140 of the Corporations Act but also the terms of issue set out in the prospectus. When regard is had to the content of each, the contract is seen to be of the kind described in Coppleson above [discussed below], both as to default in the payment of dividends and as to default in redemption. The contract requires only such performance as is consistent with the statutory constraints. There are no absolute obligations.
Case: Mutual Life and Citizens Assurance Co Ltd v Mosgiel Ltd [1994] 1 NZLR 146
Outcome: cited
J referred to certain cases as authority for the proposition that a company was or could be subject to an absolute obligation to redeem notwithstanding a provision similar to s 254K of the Act ( UOB Venture Investments Ltd v Tong Garden Holdings Pte Ltd [2001] 1 SLR 362 at [20]; Mutual Life and Citizens Assurance Co Ltd v Mosgiel Ltd [1994] 1 NZLR 146 ; Re Dividend Fund Incorporated (In Liquidation) [1974] VR 451 at 454-6; TNT Australia Pty Ltd v Normandy Resources NL (1989) 53 SASR 156 at 206; and Re Marra Developments Ltd and the Companies Act (No 2) (1978) 3 ACLR 798. His Honour stated (at [58]-[59]): [58] What these cases really show, in my view, is that the question is ultimately one of construction. It cannot be doubted that, upon and by virtue of subscription for and allotment of redeemable preference shares, a contract comes into existence between the company and the shareholder. The contract may or may not impose what the Singapore court found to be an absolute obligation to redeem (or, for that matter, to pay specified dividends at specified times). If the obligation is absolute, a breach of contract occurs when the company fails to perform; and this is so even if the failure is because of unavailability of a fund from which payment may lawfully be made. There are then questions about remedies, a matter to which I shall return. [59] In the present case, the contract between York and each holder of CPRPS shares includes not only the provisions of the constitution given contractual force by s 140 of the Corporations Act but also the terms of issue set out in the prospectus. When regard is had to the content of each, the contract is seen to be of the kind described in Coppleson above [discussed below], both as to default in the payment of dividends and as to default in redemption. The contract requires only such performance as is consistent with the statutory constraints. There are no absolute obligations.
Case: Re Dividend Fund Incorporated (In Liquidation ) [1974] VR 451
Outcome: cited
J referred to certain cases as authority for the proposition that a company was or could be subject to an absolute obligation to redeem notwithstanding a provision similar to s 254K of the Act ( UOB Venture Investments Ltd v Tong Garden Holdings Pte Ltd [2001] 1 SLR 362 at [20]; Mutual Life and Citizens Assurance Co Ltd v Mosgiel Ltd [1994] 1 NZLR 146 ; Re Dividend Fund Incorporated (In Liquidation) [1974] VR 451 at 454-6; TNT Australia Pty Ltd v Normandy Resources NL (1989) 53 SASR 156 at 206; and Re Marra Developments Ltd and the Companies Act (No 2) (1978) 3 ACLR 798. His Honour stated (at [58]-[59]): [58] What these cases really show, in my view, is that the question is ultimately one of construction. It cannot be doubted that, upon and by virtue of subscription for and allotment of redeemable preference shares, a contract comes into existence between the company and the shareholder. The contract may or may not impose what the Singapore court found to be an absolute obligation to redeem (or, for that matter, to pay specified dividends at specified times). If the obligation is absolute, a breach of contract occurs when the company fails to perform; and this is so even if the failure is because of unavailability of a fund from which payment may lawfully be made. There are then questions about remedies, a matter to which I shall return. [59] In the present case, the contract between York and each holder of CPRPS shares includes not only the provisions of the constitution given contractual force by s 140 of the Corporations Act but also the terms of issue set out in the prospectus. When regard is had to the content of each, the contract is seen to be of the kind described in Coppleson above [discussed below], both as to default in the payment of dividends and as to default in redemption. The contract requires only such performance as is consistent with the statutory constraints. There are no absolute obligations.
Case: TNT Australia Pty Ltd v Normandy Resources NL (1989) 53 SASR 156
Outcome: cited
J referred to certain cases as authority for the proposition that a company was or could be subject to an absolute obligation to redeem notwithstanding a provision similar to s 254K of the Act ( UOB Venture Investments Ltd v Tong Garden Holdings Pte Ltd [2001] 1 SLR 362 at [20]; Mutual Life and Citizens Assurance Co Ltd v Mosgiel Ltd [1994] 1 NZLR 146 ; Re Dividend Fund Incorporated (In Liquidation) [1974] VR 451 at 454-6; TNT Australia Pty Ltd v Normandy Resources NL (1989) 53 SASR 156 at 206; and Re Marra Developments Ltd and the Companies Act (No 2) (1978) 3 ACLR 798. His Honour stated (at [58]-[59]): [58] What these cases really show, in my view, is that the question is ultimately one of construction. It cannot be doubted that, upon and by virtue of subscription for and allotment of redeemable preference shares, a contract comes into existence between the company and the shareholder. The contract may or may not impose what the Singapore court found to be an absolute obligation to redeem (or, for that matter, to pay specified dividends at specified times). If the obligation is absolute, a breach of contract occurs when the company fails to perform; and this is so even if the failure is because of unavailability of a fund from which payment may lawfully be made. There are then questions about remedies, a matter to which I shall return. [59] In the present case, the contract between York and each holder of CPRPS shares includes not only the provisions of the constitution given contractual force by s 140 of the Corporations Act but also the terms of issue set out in the prospectus. When regard is had to the content of each, the contract is seen to be of the kind described in Coppleson above [discussed below], both as to default in the payment of dividends and as to default in redemption. The contract requires only such performance as is consistent with the statutory constraints. There are no absolute obligations.