mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 ; (1985) 157 CLR 17
Outcome: cited
The relief to which Coles is entitled as a consequence of these breaches is a matter to be addressed in subsequent proceedings. With respect to the third breach (the anticipatory breach), for example, there is a question as to whether a plaintiff's election to hold the party to the agreement rather than rescind means that it cannot claim damages. It is sufficient for present purposes to note that some authorities suggest that anticipatory breach entitles Coles to damages only if it terminates the Offer Letter: see Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 ; (1985) 157 CLR 17 , 48 and Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 , 416-417, 441-442). Of course any issue in that regard may be moot in light of the actual breaches: see Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21 ; (1976) 136 CLR 444 , 450; Huppert v Stock Options of Australia Pty Ltd [1965] HCA 30 ; (1965) 112 CLR 414 , 422-423, 426 and 431.
Case: Pryde v Bjorn 141 WashApp 1027 (2007)
Outcome: cited
While it is not to be doubted that an exchange of correspondence or other collection of informal (and even unsigned) writings may together form a contract, that will only be so if those writings objectively manifest a present intent of the parties to be bound: see Schoenhoff v The Commonwealth Bank of Australia [2003] NSWSC 918 at [71] ; Tasman Capital at [25]; see also Pryde v Bjorn 141 WashApp 1027 (2007) (considering when and at what point an exchange of drafts by email will be found to give rise to a binding contract prior to the signing and exchange of a formal contract).
Case: Schoenhoff v The Commonwealth Bank of Australia [2003] NSWSC 918
Outcome: cited
While it is not to be doubted that an exchange of correspondence or other collection of informal (and even unsigned) writings may together form a contract, that will only be so if those writings objectively manifest a present intent of the parties to be bound: see Schoenhoff v The Commonwealth Bank of Australia [2003] NSWSC 918 at [71] ; Tasman Capital at [25]; see also Pryde v Bjorn 141 WashApp 1027 (2007) (considering when and at what point an exchange of drafts by email will be found to give rise to a binding contract prior to the signing and exchange of a formal contract).
Case: Secured Income Real Estate (Australia) Ltd v St Martins Investment Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596
Outcome: referred to
The respondents admit they breached an implied term of the Offer Letter, namely that the respondents would not seek to prevent performance of the Offer Letter or withhold its benefits: Butt v M'Donald (1896) 7 QLJ 68, 70-71 cited and referred to in Secured Income Real Estate (Australia) Ltd v St Martins Investment Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 , 607; Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 and CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680. The event which the respondents said gave rise to the breach was the execution of the Woolworths' Letter of Offer on 18 March 2008. However, despite the generous admission of the respondents, I cannot accept that execution of the 18 March 2008 letter constituted a breach of the Butt v M'Donald term.
Case: Tasman Capital Pty Ltd v Sinclair [2008] NSWCA 248
Outcome: cited
I reject those contentions. As the history of the negotiations records, it was just that, negotiations. No concluded AFL or Lease was ever prepared or executed. Moreover, there was also no informal agreement (whether by 8 January 2008 or otherwise) evidenced by the chain of drafts in respect of major points objectively demonstrating a present intent of the parties to be bound so as to fall within the so-called fourth category of Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353: see Carminco Gold (2007) 243 ALR 472 and Tasman Capital Pty Ltd v Sinclair [2008] NSWCA 248 at [25] - [29] . 45 While it is not to be doubted that an exchange of correspondence or other collection of informal (and even unsigned) writings may together form a contract, that will only be so if those writings objectively manifest a present intent of the parties to be bound: see Schoenhoff v The Commonwealth Bank of Australia [2003] NSWSC 918 at [71] ; Tasman Capital at [25]; see also Pryde v Bjorn 141 WashApp 1027 (2007) (considering when and at what point an exchange of drafts by email will be found to give rise to a binding contract prior to the signing and exchange of a formal contract).
Case: Karmot Auto Spares Pty Limited v Dominelli Ford (Hurstville) Pty Ltd (1992) 35 FCR 560 at 565
Outcome: followed
The Loan Account Statements on their face purport to be documents recording financial transactions, namely loans, involving Rural Finance. They are "records" in the sense that they are part of a repository of information in organised form which is accessible in the ordinary course of a business and for the purposes of that business: Karmot Auto Spares Pty Limited v Dominelli Ford (Hurstville) Pty Ltd (1992) 35 FCR 560 at 565. The Receivers found the documents amongst the business records of Rural Finance when they took control of those records. I find that they were part of Rural Finance's records within the meaning of s 69(1)(a)(i). 25 The terms of s 69(2)(a) do not suggest that it is an essential precondition of admissibility that the "person" in question be identified. The ordinary meaning of the language is that it is sufficient that the person who made the representation, whoever he or she is, had or might reasonably be supposed to have had, personal knowledge of the asserted fact. The policy behind the provision is clear enough. Routine business records, made before any legal proceeding arises or is contemplated (cf the exception in s 69(3)), have an inherent likelihood of reliability which outweighs the common law's aversion to hearsay evidence where the maker of a statement cannot be tested by cross-examination. The utility of s 69 would be greatly diminished if it were necessary to locate among large organisations, perhaps over a long period of time, persons who made representations, often in circumstances where the practical needs of the organisation did not require any identification at the time the representations were made. 26 Prior to the Evidence Act , all Australian jurisdictions had legislation based on provisions of the Evidence Act 1938 (Imp) which rendered admissible statements made in documents outside court where, inter alia, the document formed part of a continuous record. Examples were the Evidence Act 1898 (NSW) ss 14B-14C and the Evidence Act 1958 (Vic) s 5. Such legislation required the maker of the statement to be called as a witness, although that requirement could be dispensed with in certain circumstances, such as death or absence "beyond the seas". The present s 69 , however, says nothing about calling the maker of the statement as a witness. It is therefore hard to see why one should read into the section an obligation to identify the "person" where there is no need for that person to be called.
Case: Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303
Outcome: followed
In Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303 there was an issue as to whether a notice of a decision was sent by the Minister to the applicant by a certain date. One piece of evidence relied on by the Minister was a copy, produced from the departmental files, of a letter addressed to the applicant advising of refusal of the application and enclosing the reasons for that refusal. The copy letter bore a handwritten notation " 20/3/01 Scanned in delivery centre 20/3/01 Aust Post says" Hely J observed at [22] that the notation was made by a person unknown, apparently as a result of a communication with an unknown person at Australia Post. He inferred that somebody at Australia Post informed somebody at the Department on 20 March 2001 that the letter was in the delivery centre of Australia Post on that date. His Honour admitted the notation under s 69(2)(b) as being made in the course of the Department's business on the basis of information directly supplied by a person from Australia Post who might reasonably be supposed to have had knowledge of the asserted fact, namely that on 20 March an envelope containing the letter was in the delivery centre of Australia Post. On appeal it was not necessary for the Full Court to consider this particular ruling: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305.
Case: Lee v Minister for Immigration and Multicultural Affairs [2002] FCAFC 305
Outcome: cited
In Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303 there was an issue as to whether a notice of a decision was sent by the Minister to the applicant by a certain date. One piece of evidence relied on by the Minister was a copy, produced from the departmental files, of a letter addressed to the applicant advising of refusal of the application and enclosing the reasons for that refusal. The copy letter bore a handwritten notation " 20/3/01 Scanned in delivery centre 20/3/01 Aust Post says" Hely J observed at [22] that the notation was made by a person unknown, apparently as a result of a communication with an unknown person at Australia Post. He inferred that somebody at Australia Post informed somebody at the Department on 20 March 2001 that the letter was in the delivery centre of Australia Post on that date. His Honour admitted the notation under s 69(2)(b) as being made in the course of the Department's business on the basis of information directly supplied by a person from Australia Post who might reasonably be supposed to have had knowledge of the asserted fact, namely that on 20 March an envelope containing the letter was in the delivery centre of Australia Post. On appeal it was not necessary for the Full Court to consider this particular ruling: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305.
Case: Duke Group Ltd (in liq) v Arthur Young (1990) 55 SASR 11
Outcome: followed
Other authorities supporting the proposition that the "person" need not be identified are Duke Group Ltd (in liq) v Arthur Young (1990) 55 SASR 11 and Australian Securities and Investments Commission v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320 at [197] . To the extent that Nicholson J in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 685 at [52] held that identification of the person referred to in s 69(2) is an essential prerequisite for admissibility I would respectfully disagree.
Case: Australian Securities and Investments Commission v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320 at [197]
Outcome: followed
Other authorities supporting the proposition that the "person" need not be identified are Duke Group Ltd (in liq) v Arthur Young (1990) 55 SASR 11 and Australian Securities and Investments Commission v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320 at [197] . To the extent that Nicholson J in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 685 at [52] held that identification of the person referred to in s 69(2) is an essential prerequisite for admissibility I would respectfully disagree. 30 Senior counsel for the Commissioner referred to the detailed discussion of recent authorities by Austin J in Rich at [95]-[118]. However, that analysis rather focussed on the question of authentification, in the sense of provenance, and whether, as Bryson J held in National Australia Bank Ltd v Rusu [1999] NSWSC 539 ; (1999) 47 NSWLR 309, authentification cannot be achieved solely by drawing inferences from the face of the document itself where there is no other evidence to indicate provenance. Whether that be correct (as Austin J points out, there has been subsequent criticism of such a view) there is adequate authentification here in the evidence of the Receiver who physically located the document among the business records of Rural Finance; see Evidence Act s 58. 37 Rural Finance Loans Spreadsheet . This document and the following one were compiled in November 1992 by employees of KPMG after the appointment of the Receivers. They are nevertheless records kept by Rural Finance for the purposes of ss 69 and 1035: Rich at [266]-[272]. The document records the payments in question as being due on 30 September and 30 December 1987 and paid on 2 October 1987 and 4 January 1988. 38 It was argued that the document was prepared for the purpose of conducting, or in contemplation of or in connection with, a "proceeding" and thus excluded from the operation of s 69 by virtue of subs (3). "Proceeding" is not defined in the Act . Presumably it means litigation. The identity of the person who compiled the document is not known. There is no evidence as to what he or she in fact contemplated; cf Lee in the Full Court at [27]. There is no reason to conclude that such persons contemplated litigation at the stage the entries were made. The more natural inference is that the document was prepared as a matter of routine to assist the Receivers in an understanding of the financial position of Rural Finance and to seek payment of amounts due. Whether or not litigation might ensue in respect of any particular debtor was a matter for the future. 39 In any case, the s 69(3) exclusion does not apply to documents admissible under s 1305.
Case: National Australia Bank Ltd v Rusu [1999] NSWSC 539 ; (1999) 47 NSWLR 309
Outcome: cited
Senior counsel for the Commissioner referred to the detailed discussion of recent authorities by Austin J in Rich at [95]-[118]. However, that analysis rather focussed on the question of authentification, in the sense of provenance, and whether, as Bryson J held in National Australia Bank Ltd v Rusu [1999] NSWSC 539 ; (1999) 47 NSWLR 309, authentification cannot be achieved solely by drawing inferences from the face of the document itself where there is no other evidence to indicate provenance. Whether that be correct (as Austin J points out, there has been subsequent criticism of such a view) there is adequate authentification here in the evidence of the Receiver who physically located the document among the business records of Rural Finance; see Evidence Act s 58.
Case: Nilsen Development Laboratories Pty Ltd v Federal Commissioner of Taxation [1981] HCA 6 ; (1981) 144 CLR 616 at 627
Outcome: applied
By reason of the failure to pay the two $5000 instalments on time Mr Guest became legally liable for repayment of the full amount of the loan and interest thereon. The interest which accrued under the loan agreement during the relevant years was therefore "incurred" by him. In those years they were presently existing liabilities: Nilsen Development Laboratories Pty Ltd v Federal Commissioner of Taxation [1981] HCA 6 ; (1981) 144 CLR 616 at 627.
Case: Cook v Fowler (1874) LR 7 HL 27
Outcome: cited
Senior counsel for the Commissioner argued that following the maturity of the loan the amounts due were not interest but damages for the loss of use of money: Cook v Fowler (1874) LR 7 HL 27.
Case: Gair v Federal Commissioner of Taxation [1944] HCA 29 ; (1944) 71 CLR 388
Outcome: distinguished
As a matter of construction of the loan agreement, this argument fails at the outset. By cl 3A(i) the parties agreed: "that the Loan is for a period commencing on the date of this Agreement and subject to the provisions hereinafter contained as to periodic repayment, the balance of the Principal Sum (if any and any other monies outstanding) shall be paid by the Joint Venturer to the Lender on the 31 st March, 1992." The Principal Sum is the sum of $55,000 and the provisions as to periodic repayment are the provisions for the payment of the two amounts of $5000 (cl 3B(i)) and the deductions from the sale of fruit proceeds (cl 3B(ii)). As to interest, cl 3A(ii) provides: "subject to clause 3A(iii) [which provides for a rate of 15% when payments are made within seven days of the due date] interest shall accrue at the rate of nineteen (19%) per centum on the balance of the Principal Sum from time to time outstanding such interest to be calculated annually in arrears on the 31 st March in each year of this Agreement." (19%) Accordingly, the liability to pay interest does not cease if all or any part of the Principal Sum has not been repaid by 31 March 1992. The case is to be distinguished from Gair v Federal Commissioner of Taxation [1944] HCA 29 ; (1944) 71 CLR 388 where the mortgage provided for the payment of interest for a period of one year, but there was no covenant to pay interest thereafter. 69 What was alleged to be owing by Mr Guest in the writ and the invoice of 14 March 2002 and admitted to be owing in the deed of settlement, was interest. There is no mention of damages. Nor in any of the authorities hereafter mentioned was it suggested that liabilities incurred after the term of the loan in question were for damages rather than interest.
Case: The Herald and Weekly Times Ltd v Federal Commissioner of Taxation [1932] HCA 56 ; (1932) 48 CLR 113
Outcome: cited
In any event, if the amount owed was damages rather than interest, it would be for the same amount. Damages incurred in the course of conducting a business, such as, for example, libel damages paid by a newspaper company, are deductible: The Herald and Weekly Times Ltd v Federal Commissioner of Taxation [1932] HCA 56 ; (1932) 48 CLR 113. 71 This issue, which also arises under the carrying on business limb, raises the question whether Mr Guest has shown there was a sufficient nexus between his incurring of interest liabilities in 1998 to 2001 and the blueberry growing business in which, following the appointment of Receivers, he ceased to have any involvement after 1991.
Case: Placer Pacific Management Pty Ltd v Federal Commissioner of Taxation (1995) 31 ATR 253
Outcome: cited
A line of cases supports the proposition that a loss or outgoing may be deductible even if it is incurred some years after the associated business, or the taxpayer's involvement in it, has ceased: Placer Pacific Management Pty Ltd v Federal Commissioner of Taxation (1995) 31 ATR 253, Federal Commissioner of Taxation v Brown (1999) 99 ATC 4600, Federal Commissioner of Taxation v Jones (2002) ATC 4135, and R &amp; D Holdings Pty Ltd v Deputy Federal Commissioner of Taxation (2006) ATC 4472. In Placer the claimed deduction was for a payment in settlement of litigation in respect of defective goods supplied. In the other cases it was for interest on a business related loan. 73 That the gap in time may be considerable is demonstrated by the following table: Case Business ceased Deduction allowed Placer 1981 1989 Brown 1990 1994 Jones 1993 1998 R &amp; D 1990 1999 In R &amp; D there is the qualification that the business in question, the leasing of an office building, was still carried on, although not by the taxpayer but by a mortgagee in possession.
Case: Federal Commissioner of Taxation v Jones (2002) ATC 4135
Outcome: cited
A line of cases supports the proposition that a loss or outgoing may be deductible even if it is incurred some years after the associated business, or the taxpayer's involvement in it, has ceased: Placer Pacific Management Pty Ltd v Federal Commissioner of Taxation (1995) 31 ATR 253, Federal Commissioner of Taxation v Brown (1999) 99 ATC 4600, Federal Commissioner of Taxation v Jones (2002) ATC 4135, and R &amp; D Holdings Pty Ltd v Deputy Federal Commissioner of Taxation (2006) ATC 4472. In Placer the claimed deduction was for a payment in settlement of litigation in respect of defective goods supplied. In the other cases it was for interest on a business related loan. 73 That the gap in time may be considerable is demonstrated by the following table: Case Business ceased Deduction allowed Placer 1981 1989 Brown 1990 1994 Jones 1993 1998 R &amp; D 1990 1999 In R &amp; D there is the qualification that the business in question, the leasing of an office building, was still carried on, although not by the taxpayer but by a mortgagee in possession. 80 In Jones a husband and wife conducted a trucking business in partnership. They took out a loan with the ANZ Bank in 1990. In 1992 the husband died. In 1993 the business ceased. The wife recommenced full-time employment as a nurse using more than half her after tax income to repay the loan. In 1996 the wife refinanced the loan with another lender to obtain a lower interest rate. The Full Court (Beaumont, Finn and Sundberg JJ) upheld the wife's claim for deductions of interest for the years 1993-1998. 81 Their Honours (at [10]) rejected the Commissioner's argument that the taxpayer only became obliged to pay interest in the years in question because she chose not to repay the principal sum and that the "occasion" for the interest repayment was each periodic decision to keep the loan on foot. They did so for two reasons. First, the loan was for a fixed term and was not dependent on periodic decisions on the taxpayer's part to keep it alive. Secondly, she did not have the financial capacity to do so. Their Honours noted (at [11]) that "the borrowed funds and the interest on them were always referrable to the former business"
Case: R &amp; D Holdings Pty Ltd v Deputy Federal Commissioner of Taxation (2006) ATC 4472
Outcome: cited
A line of cases supports the proposition that a loss or outgoing may be deductible even if it is incurred some years after the associated business, or the taxpayer's involvement in it, has ceased: Placer Pacific Management Pty Ltd v Federal Commissioner of Taxation (1995) 31 ATR 253, Federal Commissioner of Taxation v Brown (1999) 99 ATC 4600, Federal Commissioner of Taxation v Jones (2002) ATC 4135, and R &amp; D Holdings Pty Ltd v Deputy Federal Commissioner of Taxation (2006) ATC 4472. In Placer the claimed deduction was for a payment in settlement of litigation in respect of defective goods supplied. In the other cases it was for interest on a business related loan. 73 That the gap in time may be considerable is demonstrated by the following table: Case Business ceased Deduction allowed Placer 1981 1989 Brown 1990 1994 Jones 1993 1998 R &amp; D 1990 1999 In R &amp; D there is the qualification that the business in question, the leasing of an office building, was still carried on, although not by the taxpayer but by a mortgagee in possession.
Case: Steele v Deputy Commissioner of Taxation (1999) 197 CLR 449
Outcome: cited
Their Honours reviewed the case law, and in particular the decision of the High Court in Steele v Deputy Commissioner of Taxation (1999) 197 CLR 449. They applied (at [20]) the statement of the High Court, adopting what was said by Lockhart J in Federal Commissioner of Taxation v Total Holdings (Aust) Pty Ltd (1979) 79 ATC 4279 at 4283, that a taxpayer may be entitled to a deduction after a business has ceased, provided the occasion of a business outgoing is to be found in the business operations directed towards the gaining or production of assessable income generally. However, cessation of business may be of factual importance. Their Honours (at [24]) concluded that the trial judge was correct in determining that the occasion for the loss or outgoing in question was the payment of interest which the taxpayers were obliged (their Honour's emphasis) to pay under the loan contract.