mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Outcome: cited
Each of the questions is fraught with ambiguity. Each asks, in substance, whether, on the facts found by the Tribunal, it was open to it to make the finding of fact that Mr Roper did not render operational service during World War II. The ambiguity arises, particularly in relation to question 2.4, because the questions may be understood as asking either whether there was any evidence accepted by the Tribunal which supported its finding or whether the evidence or the weight of the evidence before the Tribunal supported its finding: cf Lambroglou at 523. A question of the latter kind is not a question of law. As Ryan J held in Lambroglou (at 527): "If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law." Had the questions been framed along the lines of whether there was any evidence before the Tribunal to support its findings that Mr Roper had not rendered continuous full-time service outside Australia and that, accordingly, he had not rendered operational service, appropriate questions of law would have been raised: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355. There would not, however, have been grounds which linked these questions to the circumstances of the case and the orders sought by Mrs Roper. Grounds 4.1 and 4.3 appear to allege that the Tribunal misconstrued Item 1(a) in s 6A of the VE Act rather than suggest that there was no evidence to support the findings.
Case: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389
Outcome: cited
Mrs Roper submits that the Tribunal incorrectly applied s 6A Item 1(a) to the facts. She contends that the questions of whether facts fully found fall within the provisions of an enactment properly construed is a question of law: see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389. In Agfa , the High Court set out the five general propositions identified by the Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 at 287, the fifth of which was: "The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law". As noted by the High Court, the Full Court had qualified this proposition: "when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or not is one of fact": see Agfa at 395.
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280
Outcome: cited
Mrs Roper submits that the Tribunal incorrectly applied s 6A Item 1(a) to the facts. She contends that the questions of whether facts fully found fall within the provisions of an enactment properly construed is a question of law: see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389. In Agfa , the High Court set out the five general propositions identified by the Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 at 287, the fifth of which was: "The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law". As noted by the High Court, the Full Court had qualified this proposition: "when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or not is one of fact": see Agfa at 395.
Case: Director-General of Social Services v Chaney (1980) 31 ALR 571
Outcome: cited
In Director-General of Social Services v Chaney (1980) 31 ALR 571 Deane J, with whom Fisher J agreed, held (at 593) that, subject to some immaterial exceptions, "an appeal under s 44(1) of the [AAT] Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review". His Honour held that, in the normal case, "such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act." In WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245 ; (2004) 40 AAR 223 at 232 French J held that "[o]rdinarily it would not seem that any s 44 appeal would lie against a ruling on a preliminary question unless it finally disposed of the application."
Case: WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245 ; (2004) 40 AAR 223
Outcome: cited
In Director-General of Social Services v Chaney (1980) 31 ALR 571 Deane J, with whom Fisher J agreed, held (at 593) that, subject to some immaterial exceptions, "an appeal under s 44(1) of the [AAT] Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review". His Honour held that, in the normal case, "such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act." In WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245 ; (2004) 40 AAR 223 at 232 French J held that "[o]rdinarily it would not seem that any s 44 appeal would lie against a ruling on a preliminary question unless it finally disposed of the application."
Case: Official Trustee in Bankruptcy v CS &amp; GJ Handby Pty Ltd (1989) 21 FCR 19
Outcome: considered
Under s 556 of the Code, and under the former s 592 of the Corporations Law (which is relevantly in the same terms as s 556 of the Code), it is clear that the liability of a director for insolvent trading could be proved by a creditor as a debt in the bankruptcy of the director: see e.g. Official Trustee in Bankruptcy v CS &amp; GJ Handby Pty Ltd (1989) 21 FCR 19; Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702; CCA Systems Pty Ltd v Communications &amp; Peripherals (Australia) Pty Ltd (1989) 15 ACLR 720 at 728 729. In Handby 21 FCR 19, the Full Court (Morling Beaumont and Burchett JJ) concluded that s 556(1) of the Code rendered the company and the director (in the circumstances prescribed) jointly and severally liable for the debt. Their Honours observed at 24 25 that s 82(1) of the Bankruptcy Act and its precursors have been generously construed, and that there was no reason why it should not encompass debts or liabilities arising under statute. They then concluded at 26 27 that the statutory liability created by s 556(1) of the Code is for "the payment of the debt incurred by the company" (the Full Court's emphasis), and is a liability for a nominated debt which was not a demand in the nature of a demand for unliquidated damages but a claim for money under a statute.
Case: Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702
Outcome: cited
Under s 556 of the Code, and under the former s 592 of the Corporations Law (which is relevantly in the same terms as s 556 of the Code), it is clear that the liability of a director for insolvent trading could be proved by a creditor as a debt in the bankruptcy of the director: see e.g. Official Trustee in Bankruptcy v CS &amp; GJ Handby Pty Ltd (1989) 21 FCR 19; Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702; CCA Systems Pty Ltd v Communications &amp; Peripherals (Australia) Pty Ltd (1989) 15 ACLR 720 at 728 729. In Handby 21 FCR 19, the Full Court (Morling Beaumont and Burchett JJ) concluded that s 556(1) of the Code rendered the company and the director (in the circumstances prescribed) jointly and severally liable for the debt. Their Honours observed at 24 25 that s 82(1) of the Bankruptcy Act and its precursors have been generously construed, and that there was no reason why it should not encompass debts or liabilities arising under statute. They then concluded at 26 27 that the statutory liability created by s 556(1) of the Code is for "the payment of the debt incurred by the company" (the Full Court's emphasis), and is a liability for a nominated debt which was not a demand in the nature of a demand for unliquidated damages but a claim for money under a statute.
Case: CCA Systems Pty Ltd v Communications &amp; Peripherals (Australia) Pty Ltd (1989) 15 ACLR
Outcome: cited
Under s 556 of the Code, and under the former s 592 of the Corporations Law (which is relevantly in the same terms as s 556 of the Code), it is clear that the liability of a director for insolvent trading could be proved by a creditor as a debt in the bankruptcy of the director: see e.g. Official Trustee in Bankruptcy v CS &amp; GJ Handby Pty Ltd (1989) 21 FCR 19; Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702; CCA Systems Pty Ltd v Communications &amp; Peripherals (Australia) Pty Ltd (1989) 15 ACLR 720 at 728 729. In Handby 21 FCR 19, the Full Court (Morling Beaumont and Burchett JJ) concluded that s 556(1) of the Code rendered the company and the director (in the circumstances prescribed) jointly and severally liable for the debt. Their Honours observed at 24 25 that s 82(1) of the Bankruptcy Act and its precursors have been generously construed, and that there was no reason why it should not encompass debts or liabilities arising under statute. They then concluded at 26 27 that the statutory liability created by s 556(1) of the Code is for "the payment of the debt incurred by the company" (the Full Court's emphasis), and is a liability for a nominated debt which was not a demand in the nature of a demand for unliquidated damages but a claim for money under a statute.
Case: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511
Outcome: cited
As is well known, the Corporations Act followed the decisions of the High Court in Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511; and Bond v R [2000] HCA 13 ; (2000) 169 ALR 607 and R v Hughes [2000] HCA 22 ; (2000) 171 ALR 155. The States referred power to the Commonwealth so as to enable it to enact the Corporations Act under s 51(xxxvii) of the Constitution . The Corporations Act then largely re-enacted the previous Corporations Law as a single Commonwealth law. Obviously, there are some differences, but none relevant to the present issue. As the terms of ss 588G and 588M were not materially altered when carried forward into the Corporations Act , it is not surprising that there are no observations in the parliamentary materials surrounding the enactment of the Corporations Act which enlighten the legislative intention in relation to those sections, or indeed of Div 4 of Pt 5.7B of the Corporations Act in which they stand.
Case: Bond v R [2000] HCA 13 ; (2000) 169 ALR 607
Outcome: cited
As is well known, the Corporations Act followed the decisions of the High Court in Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511; and Bond v R [2000] HCA 13 ; (2000) 169 ALR 607 and R v Hughes [2000] HCA 22 ; (2000) 171 ALR 155. The States referred power to the Commonwealth so as to enable it to enact the Corporations Act under s 51(xxxvii) of the Constitution . The Corporations Act then largely re-enacted the previous Corporations Law as a single Commonwealth law. Obviously, there are some differences, but none relevant to the present issue. As the terms of ss 588G and 588M were not materially altered when carried forward into the Corporations Act , it is not surprising that there are no observations in the parliamentary materials surrounding the enactment of the Corporations Act which enlighten the legislative intention in relation to those sections, or indeed of Div 4 of Pt 5.7B of the Corporations Act in which they stand.
Case: R v Hughes [2000] HCA 22 ; (2000) 171 ALR 155
Outcome: cited
As is well known, the Corporations Act followed the decisions of the High Court in Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511; and Bond v R [2000] HCA 13 ; (2000) 169 ALR 607 and R v Hughes [2000] HCA 22 ; (2000) 171 ALR 155. The States referred power to the Commonwealth so as to enable it to enact the Corporations Act under s 51(xxxvii) of the Constitution . The Corporations Act then largely re-enacted the previous Corporations Law as a single Commonwealth law. Obviously, there are some differences, but none relevant to the present issue. As the terms of ss 588G and 588M were not materially altered when carried forward into the Corporations Act , it is not surprising that there are no observations in the parliamentary materials surrounding the enactment of the Corporations Act which enlighten the legislative intention in relation to those sections, or indeed of Div 4 of Pt 5.7B of the Corporations Act in which they stand.
Case: Cornelius v Barewa Oil &amp; Mining (NL) (In liq) (1982) 42 ALR 83
Outcome: cited
The question is whether the essential character of the demand contained in the proofs of debt is in respect of a debt provable in the bankruptcies: Cornelius v Barewa Oil &amp; Mining (NL) (In liq) (1982) 42 ALR 83 per Wickham J at 89-90. All debts and liabilities are provable in the bankruptcy unless they fall within one or more of the exceptions specified in s 82 , relevantly for present purposes, s 82(2) of the Bankruptcy Act .
Case: Coventry v Charter Pacific Corp Ltd (2005) 227 CLR 234
Outcome: cited
Section 82(1) of the Bankruptcy Act adopts the use of wide language in expressing what are to be considered admissible debts and liabilities in bankruptcy. See for example the discussion of its history and of its terms in the joint judgment of the majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Coventry v Charter Pacific Corp Ltd (2005) 227 CLR 234 at [20] [29]; Re Hide; Ex parte Llynvi Coal and Iron Co (1871) 7 Ch App 28 at 31 32 per James LJ. 36 The trustee, in my judgment, is not entitled to reject the proof of debt lodged by the Liquidator because it falls within s 82(2) of the Bankruptcy Act . For the reasons given, I consider that the trustee erred in doing so. It is not therefore necessary to address the qualification in s 82(2) excluding claims for unliquidated damages arising otherwise than by reason of a contract promise or breach of trust. That qualification in s 82(2) was considered by the High Court in Coventry 227 CLR 234. If it had been necessary to address that qualification, there may have been some difference between the Liquidator's claim based upon unpaid trade creditors of the Company and the statutory imposts also included in his proofs of debt.
Case: Re Hide; Ex parte Llynvi Coal and Iron Co (1871) 7 Ch App 28
Outcome: cited
Section 82(1) of the Bankruptcy Act adopts the use of wide language in expressing what are to be considered admissible debts and liabilities in bankruptcy. See for example the discussion of its history and of its terms in the joint judgment of the majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Coventry v Charter Pacific Corp Ltd (2005) 227 CLR 234 at [20] [29]; Re Hide; Ex parte Llynvi Coal and Iron Co (1871) 7 Ch App 28 at 31 32 per James LJ.
Case: Australian Securities and Investments Commission v Plymin (No 1) [2003] VSC 123 ; (2003) 175 FLR 124
Outcome: considered
On the other hand, Mandie J in Australian Securities and Investments Commission v Plymin (No 1) recognised, correctly in my view, that Fryer v Powell 159 FLR 433 laid down only a general rule capable of variation according to particular circumstances: see at [2003] VSC 123 ; (2003) 175 FLR 124 at 255, at [535]. In that case, the loss and damage suffered by the creditors of a company in their claim against the directors needed to be adjusted beyond the amount of the unpaid debt because of an interim dividend distributed by the administrator under a scheme of arrangement of the company and for a further dividend which those creditors were likely to receive. His Honour added at 256 [535]: To the extent that any allowance for actual unexpected dividends is contrary to what was decided concerning the meaning of "loss and damage" in Powell v Fryer (2001) 37 ACSR 589, 602-3 (sic), I understand the plaintiff to have conceded that such allowance should be made and I tend, with respect, to think that the concession was correct in principle. 34 I do not consider it is useful to import into the words of s 588M(2) a requirement that the loss and damage referred to in s 588M(1)(b) and s 588M(2) be characterised as liquidated or unliquidated. Clearly, s 588M(2) entitles the liquidator to recover the loss and damage, whatever its character, from the directors as a debt due to the company. It is the debt due to the company which entitles the liquidator to prove in the bankruptcy of the directors. Although the wording of s 588M(1)(b) and (c) indicate that the loss and damage of the creditor or creditors need not equate to the amount of the debt or debts (eg as Mandie J identified in Plymin [2003] VSC 123 ; 175 FLR 124), if there has been a distribution in the liquidation of the company to reduce that debt as at the date of the claim made in the bankruptcy by realisation of other assets of the company), s 588M(2) states that the loss and damage for the purposes of the claim against the directors be recoverable as a debt. I note that Hammerschlag J in Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2007] NSWSC 930 at [24] [25] adopted that position, albeit that the question was not apparently in contention before his Honour.
Case: Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2007] NSWSC 930
Outcome: discussed
I do not consider it is useful to import into the words of s 588M(2) a requirement that the loss and damage referred to in s 588M(1)(b) and s 588M(2) be characterised as liquidated or unliquidated. Clearly, s 588M(2) entitles the liquidator to recover the loss and damage, whatever its character, from the directors as a debt due to the company. It is the debt due to the company which entitles the liquidator to prove in the bankruptcy of the directors. Although the wording of s 588M(1)(b) and (c) indicate that the loss and damage of the creditor or creditors need not equate to the amount of the debt or debts (eg as Mandie J identified in Plymin [2003] VSC 123 ; 175 FLR 124), if there has been a distribution in the liquidation of the company to reduce that debt as at the date of the claim made in the bankruptcy by realisation of other assets of the company), s 588M(2) states that the loss and damage for the purposes of the claim against the directors be recoverable as a debt. I note that Hammerschlag J in Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2007] NSWSC 930 at [24] [25] adopted that position, albeit that the question was not apparently in contention before his Honour.
Case: Commonwealth Bank of Australia v Paola [2005] FCA 855
Outcome: considered
In reaching that conclusion, I have not overlooked the observation of Hill J in Commonwealth Bank of Australia v Paola [2005] FCA 855 at [25] upon which senior counsel for the Trustee relied. That case concerned the opposition of a bankruptcy petition based upon an act of bankruptcy the failure to comply with a bankruptcy notice founded upon a judgment debt. The debtor disputed his insolvency, and claimed that he would receive funds to pay the judgment debt from the liquidator of another company in liquidation who had accepted a proof of debt from the debtor for a significant sum. Alternatively, the debtor sought the bankruptcy petition be adjourned until the liquidator paid a dividend to the creditors of the company in liquidation. The payment of the anticipated dividend was held up pending the hearing of certain proceedings involving that company. 38 His Honour rejected the debtor's claim of solvency. He observed that the outstanding proceedings included a contested claim against the debtor for insolvent trading in his capacity as a director of the company, but declined to adjourn the bankruptcy petition pending the outcome of that proceeding in the exercise of his discretion because its resolution was a considerable time off, and because its outcome was uncertain. In the course of considering the exercise of the discretion, his Honour said at [25] that, even if a sequestration order were made, the proceedings against the debtor for insolvent trading would be stayed under s 58(3)(a) of the Bankruptcy Act because that claim fell under s 82(2) of that Act. 39 Although his Honour's remarks suggest that he held the view that a claim under s 588M(2) of the Corporations Act is not a claim provable in the bankruptcy of a director, that view was not expressed after the benefit of argument on the matter. It does not form part of the ratio decidendi of the decision. It is not a view which his Honour reached after the opportunity of considering the decisions to which I have referred or the analysis of the precise wording of s 588M. I accordingly do not think that the decision obliges me to reach a conclusion different from that I have reached; nor that I should do so.
Case: Macks (trustee of the estate of Weber), Re Weber (bankrupt) [2006] FCA 636 ; (2006) 233 ALR 50
Outcome: discussed
Under s 556 of the Code, and under the former s 592 of the Corporations Law (which is relevantly in the same terms as s 556 of the Code), it is clear that the liability of a director for insolvent trading could be proved by a creditor as a debt in the bankruptcy of the director: see e.g. Official Trustee in Bankruptcy v CS &amp; GJ Handby Pty Ltd (1989) 21 FCR 19; Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702; CCA Systems Pty Ltd v Communications &amp; Peripherals (Australia) Pty Ltd (1989) 15 ACLR 720 at 728 729. In Handby 21 FCR 19, the Full Court (Morling Beaumont and Burchett JJ) concluded that s 556(1) of the Code rendered the company and the director (in the circumstances prescribed) jointly and severally liable for the debt. Their Honours observed at 24 25 that s 82(1) of the Bankruptcy Act and its precursors have been generously construed, and that there was no reason why it should not encompass debts or liabilities arising under statute. They then concluded at 26 27 that the statutory liability created by s 556(1) of the Code is for "the payment of the debt incurred by the company" (the Full Court's emphasis), and is a liability for a nominated debt which was not a demand in the nature of a demand for unliquidated damages but a claim for money under a statute. 42 The liquidator also relied upon Macks (trustee of the estate of Weber), Re Weber (bankrupt) [2006] FCA 636 ; (2006) 233 ALR 50. I do not think that decision is of particular significance. Relevantly, it concerned the entitlement of creditors under certain contracts to prove in the joint and several estates of the bankrupts by reason of s 95 of the Bankruptcy Act : see per Finn J at [13] [16]. 43 At present, I see no reason why the fact that s 588M does not use the words "joint and several" should preclude the Liquidator from proving his debt under s 588M(2) in both the joint and several estates of the directors. 44 In my judgment, there is nothing in s 588M which supports the conclusion that the recovery of a debt under s 588M must be confined to the several estates of the delictual directors, provided at least that the conduct giving rise to their liability is in substance the same.
Case: Re Master Painters Association of Victoria Ltd (subject to deed of company arrangement) (2004) 211 ALR 316
Outcome: discussed
On the limited material before me, the directors' respective liability to the Liquidator is the same debt arising out of the same conduct incurred by them in the same capacity. The rule against double proof discussed by Mandie J in Re Master Painters Association of Victoria Ltd (subject to deed of company arrangement) (2004) 211 ALR 316 at 319 324 at [29] is not shown to have been enlivened. The rule preventing double dividends to the detriment of other creditors can be addressed by the Trustee as discussed below.