mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZKRR v Minister for Immigration &amp; Anor [2007] FMCA 1709
Outcome: considered
Federal Magistrate Scarlett concluded that there was no evidence of bias on the part of the Tribunal ( SZKRR v Minister for Immigration &amp; Anor [2007] FMCA 1709 at [41] ). The allegation of bias was based upon the fact that the Tribunal said that the appellant's documents were false when she said they were true. His Honour rightly rejected that claim. His Honour also found that the appellant had not shown any jurisdictional error (at [42]). His Honour read through the decision himself and was unable to discern any jurisdictional error. He dismissed the application. 4 In her notice of appeal, the appellant asserts that his Honour erred in law and that he was wrong in finding that the Tribunal acted properly in its findings. The particulars to those grounds assert that the Tribunal failed to consider documentary evidence, failed to make a genuine attempt to assess the appellant's claims and made its finding based, ' on nothing but its assumption '. Further, the appellant asserts that the Tribunal ignored claims and evidence, misstated or misunderstood the claim, or made a mistake in relation to an important finding of fact. 5 In a written submission filed in support of the appeal, the appellant submits that the Tribunal did not make ' a genuine attempt to look at my important documentary evidences nor considered my important evidences '. The appellant then refers to a number of factual matters in relation to her husband's accident and what occurred after that, the medical certificates she provided in support of that event and various other factual matters. These address the same subject matter considered by the Tribunal. 6 The only matter raised in the appeal that goes to the question of procedural fairness or bias was raised by the appellant in her oral submissions on the appeal, where the appellant appeared in person assisted by an interpreter. She submits that the Tribunal acted unfairly in not believing what she had put to it and that it was not fair that the Tribunal did not take into account the subsequent documentary evidence that she had submitted to it. However, each document that had been submitted by the appellant to the Department or subsequently to the Tribunal was specifically referred to in the Tribunal's decision. Further, the Tribunal's finding with respect to the medical certificate originally submitted by the appellant was just one part of the overall adverse credibility finding. That finding featured prominently in the Tribunal's reasons for its decision to place no weight on the subsequent documents submitted by the appellant which sought to support the original medical certificate.
Case: Braham v Walker [1961] HCA 7 ; (1961) 104 CLR 366
Outcome: referred to
The starting point is the option itself. There is no doubt that an option to purchase gives the optionee an equitable interest in the property. In fact the respondents concede that it is a prior equitable interest and that the answer to the first question is yes. There are many authorities on the point. It is sufficient for me to refer to the following: London and South Western Railway Co v Gomm (1882) 20 Ch D 562 at 580-581 per Jessel MR; Carter v Hyde [1923] HCA 36 ; (1923) 33 CLR 115; Commissioner of Taxes (Qld) v Camphin [1937] HCA 30 ; (1937) 57 CLR 127 at 132-134 per Latham CJ. Although Gibbs J (as he then was) in Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 59 (" Laybutt ") at 75-76 identified the fact that an option to purchase gave rise to an equitable interest as a strong reason for characterising such an option as a conditional contract, rather than as an irrevocable offer, that 'standing controversy' as Sir Owen Dixon referred to it in Braham v Walker [1961] HCA 7 ; (1961) 104 CLR 366 at 376 has not been resolved and it is not necessary for me to take one view or the other for the purposes of answering the separate questions. It is to be noted that Gibbs J in Laybutt favoured the view that an option to purchase was a conditional contract to sell land which created a contingent equitable interest in the land.
Case: Carter v Hyde [1923] HCA 36 ; (1923) 33 CLR 115
Outcome: referred to
The starting point is the option itself. There is no doubt that an option to purchase gives the optionee an equitable interest in the property. In fact the respondents concede that it is a prior equitable interest and that the answer to the first question is yes. There are many authorities on the point. It is sufficient for me to refer to the following: London and South Western Railway Co v Gomm (1882) 20 Ch D 562 at 580-581 per Jessel MR; Carter v Hyde [1923] HCA 36 ; (1923) 33 CLR 115; Commissioner of Taxes (Qld) v Camphin [1937] HCA 30 ; (1937) 57 CLR 127 at 132-134 per Latham CJ. Although Gibbs J (as he then was) in Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 59 (" Laybutt ") at 75-76 identified the fact that an option to purchase gave rise to an equitable interest as a strong reason for characterising such an option as a conditional contract, rather than as an irrevocable offer, that 'standing controversy' as Sir Owen Dixon referred to it in Braham v Walker [1961] HCA 7 ; (1961) 104 CLR 366 at 376 has not been resolved and it is not necessary for me to take one view or the other for the purposes of answering the separate questions. It is to be noted that Gibbs J in Laybutt favoured the view that an option to purchase was a conditional contract to sell land which created a contingent equitable interest in the land.
Case: Cook v Taylor [1942] Ch 349
Outcome: referred to
In Re Crosby's Contract; Crosby v Houghton [1949] 1 All ER 830, an owner of premises granted a lease of the ground floor of the premises to a tenant and included in the lease was an option to purchase the whole premises. Before the option was exercised the owner, who occupied the upper part of the premises with her husband as a residence, leased the upper part of the premises to her husband. The tenant exercised the option to purchase the whole premises. The question was whether the lease between the owner and her husband was binding on the tenant and whether the owner made good title to the premises so long as the lease remained on foot. Romer J decided this question adversely to the owner. He said that where property is sold with an express or implied obligation to give vacant possession on settlement it is a prima facie term of the contract that the purchaser shall on settlement be put in actual (and not constructive) possession of the property. He said that whether property is sold with vacant possession to be given on settlement or subject to the terms of some tenancy or occupation is a question of the intention of the parties. Romer J referred with approval (at 833) to a statement by Simonds J in Cook v Taylor [1942] Ch 349. After referring to a statement in Williams on Vendor and Purchaser (4 th ed) p 201, Simonds J said (at 352): ... in reference to that statement he cites a number of cases which appear to support the view that where a contract is silent as to vacant possession, and silent as to any tenancy to which the property is subject, there is impliedly a contract that vacant possession will be given on completion. I may add that that appears to me to be common sense, for it would be strange if, the vendor saying nothing about the matter which lay within his knowledge and not within the knowledge of the purchaser, the purchaser were to find himself purchasing a property subject to a tenancy of which he could know nothing. Therefore I hold that as a matter of law, on a contract of this character, there is the implied term that vacant possession shall be given on completion.
Case: Commissioner of Taxes (Qld) v Camphin [1937] HCA 30 ; (1937) 57 CLR 127
Outcome: referred to
The starting point is the option itself. There is no doubt that an option to purchase gives the optionee an equitable interest in the property. In fact the respondents concede that it is a prior equitable interest and that the answer to the first question is yes. There are many authorities on the point. It is sufficient for me to refer to the following: London and South Western Railway Co v Gomm (1882) 20 Ch D 562 at 580-581 per Jessel MR; Carter v Hyde [1923] HCA 36 ; (1923) 33 CLR 115; Commissioner of Taxes (Qld) v Camphin [1937] HCA 30 ; (1937) 57 CLR 127 at 132-134 per Latham CJ. Although Gibbs J (as he then was) in Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 59 (" Laybutt ") at 75-76 identified the fact that an option to purchase gave rise to an equitable interest as a strong reason for characterising such an option as a conditional contract, rather than as an irrevocable offer, that 'standing controversy' as Sir Owen Dixon referred to it in Braham v Walker [1961] HCA 7 ; (1961) 104 CLR 366 at 376 has not been resolved and it is not necessary for me to take one view or the other for the purposes of answering the separate questions. It is to be noted that Gibbs J in Laybutt favoured the view that an option to purchase was a conditional contract to sell land which created a contingent equitable interest in the land. 26 The answer to the question posed by that submission depends on the terms of the option itself. In Commissioner of Taxes (QLD) v Camphin [1937] HCA 30 ; (1937) 57 CLR 127, Latham CJ said (at 134): The equitable interest is measured by what a court of equity would decree in an action for specific performance. The right of the person who may be called the owner of the option is a right to prevent the owner of the property in question from disposing of it inconsistently with the option, together with a right, if he exercises the option, to compel the owner of the property to carry out the contract which has been made by the exercise of the option.
Case: Crosby's Contract, Re; Crosby v Houghton [1949] 1 All ER 830
Outcome: applied
In Re Crosby's Contract; Crosby v Houghton [1949] 1 All ER 830, an owner of premises granted a lease of the ground floor of the premises to a tenant and included in the lease was an option to purchase the whole premises. Before the option was exercised the owner, who occupied the upper part of the premises with her husband as a residence, leased the upper part of the premises to her husband. The tenant exercised the option to purchase the whole premises. The question was whether the lease between the owner and her husband was binding on the tenant and whether the owner made good title to the premises so long as the lease remained on foot. Romer J decided this question adversely to the owner. He said that where property is sold with an express or implied obligation to give vacant possession on settlement it is a prima facie term of the contract that the purchaser shall on settlement be put in actual (and not constructive) possession of the property. He said that whether property is sold with vacant possession to be given on settlement or subject to the terms of some tenancy or occupation is a question of the intention of the parties. Romer J referred with approval (at 833) to a statement by Simonds J in Cook v Taylor [1942] Ch 349. After referring to a statement in Williams on Vendor and Purchaser (4 th ed) p 201, Simonds J said (at 352): ... in reference to that statement he cites a number of cases which appear to support the view that where a contract is silent as to vacant possession, and silent as to any tenancy to which the property is subject, there is impliedly a contract that vacant possession will be given on completion. I may add that that appears to me to be common sense, for it would be strange if, the vendor saying nothing about the matter which lay within his knowledge and not within the knowledge of the purchaser, the purchaser were to find himself purchasing a property subject to a tenancy of which he could know nothing. Therefore I hold that as a matter of law, on a contract of this character, there is the implied term that vacant possession shall be given on completion.
Case: Fowler v Willis [1922] Ch D 514
Outcome: referred to
I am not concerned here with an interest qualifying the owner's estate or interest at the time the option to purchase is granted (see, for example, Fowler v Willis [1922] Ch D 514). The only relevant interest in existence at the time the option was granted was the lease held by the applicant itself and it merges with the fee simple acquired by the applicant pursuant to the option and is extinguished.
Case: Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) [1965] HCA 17 ; (1965) 113 CLR 265
Outcome: referred to
The effect of Mercantile Credits is that, in addition to being a prior equitable interest, the option or right to purchase, being in a registered instrument, has the benefits of indefeasibility or priority as against the Gunabee Lease. In view of the concession and indeed the effect of s 117 of the RPA, it is not necessary for me to consider the principles relating to priority between two equitable interests (as to which see, for example, Rice v Rice (1853) 2 Drew 73; 61 ER 646; Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) [1965] HCA 17 ; (1965) 113 CLR 265; RP Meagher, JD Heydon and MJ Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4 th ed, 2002) at [4.150]-[4.175]).
Case: Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 59
Outcome: referred to
The starting point is the option itself. There is no doubt that an option to purchase gives the optionee an equitable interest in the property. In fact the respondents concede that it is a prior equitable interest and that the answer to the first question is yes. There are many authorities on the point. It is sufficient for me to refer to the following: London and South Western Railway Co v Gomm (1882) 20 Ch D 562 at 580-581 per Jessel MR; Carter v Hyde [1923] HCA 36 ; (1923) 33 CLR 115; Commissioner of Taxes (Qld) v Camphin [1937] HCA 30 ; (1937) 57 CLR 127 at 132-134 per Latham CJ. Although Gibbs J (as he then was) in Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 59 (" Laybutt ") at 75-76 identified the fact that an option to purchase gave rise to an equitable interest as a strong reason for characterising such an option as a conditional contract, rather than as an irrevocable offer, that 'standing controversy' as Sir Owen Dixon referred to it in Braham v Walker [1961] HCA 7 ; (1961) 104 CLR 366 at 376 has not been resolved and it is not necessary for me to take one view or the other for the purposes of answering the separate questions. It is to be noted that Gibbs J in Laybutt favoured the view that an option to purchase was a conditional contract to sell land which created a contingent equitable interest in the land.
Case: London and South Western Railway Co v Gomm (1882) 20 Ch D 562
Outcome: referred to
The starting point is the option itself. There is no doubt that an option to purchase gives the optionee an equitable interest in the property. In fact the respondents concede that it is a prior equitable interest and that the answer to the first question is yes. There are many authorities on the point. It is sufficient for me to refer to the following: London and South Western Railway Co v Gomm (1882) 20 Ch D 562 at 580-581 per Jessel MR; Carter v Hyde [1923] HCA 36 ; (1923) 33 CLR 115; Commissioner of Taxes (Qld) v Camphin [1937] HCA 30 ; (1937) 57 CLR 127 at 132-134 per Latham CJ. Although Gibbs J (as he then was) in Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 59 (" Laybutt ") at 75-76 identified the fact that an option to purchase gave rise to an equitable interest as a strong reason for characterising such an option as a conditional contract, rather than as an irrevocable offer, that 'standing controversy' as Sir Owen Dixon referred to it in Braham v Walker [1961] HCA 7 ; (1961) 104 CLR 366 at 376 has not been resolved and it is not necessary for me to take one view or the other for the purposes of answering the separate questions. It is to be noted that Gibbs J in Laybutt favoured the view that an option to purchase was a conditional contract to sell land which created a contingent equitable interest in the land.
Case: Mercantile Credits Ltd v Shell Co of Australia Ltd [1976] HCA 9 ; (1976) 136 CLR 326
Outcome: referred to
The significance of the fact that an option to purchase is in a registered instrument was considered by the High Court in Mercantile Credits Ltd v Shell Co of Australia Ltd [1976] HCA 9 ; (1976) 136 CLR 326 (" Mercantile Credits "). That case concerned an option to renew a lease but in the course of their reasons each Justice of the High Court referred to options to purchase in registered leases and the effect of s 117 of the RPA. Reference was also made to s 119 of the RPA and it is convenient to set out the terms of that section as well: Every registered dealing with land shall be subject to any prior unregistered lease or any agreement for lease or for letting for a term not exceeding one year to a tenant in actual possession thereunder: Provided that no right or covenant to purchase the freehold contained in any such unregistered lease or agreement, nor any right or covenant for renewal of such lease or agreement shall be valid as against any subsequent purchaser of the reversion, lessee, mortgagee, or encumbrancee, unless such lease or agreement be registered or protected by caveat. 16 Barwick CJ defined the question before the Court in the following terms (at 336): The question is whether by dint of the registration of the memorandum of lease containing the rights of renewal, the mortgagee under the subsequently registered memorandum of mortgage is bound by the unregistered extension of the lease effected in pursuance of the exercise of the rights in a registered memorandum of lease. 17 Barwick CJ first said that it was appropriate for a covenant conferring a right of renewal to appear in a registrable instrument being a lease of land, and that a covenant giving a right of renewal "forms part of the delineation of the lessor's total interest in the land" (at 338). The covenant created an interest in land and obtained the priority conferred by s 56 and the indefeasibility conferred by s 69. Section 56 of the RPA accords priority to registered instruments according to the time at which they are registered, and s 69 is the standard indefeasibility section. 24 The effect of Mercantile Credits is that, in addition to being a prior equitable interest, the option or right to purchase, being in a registered instrument, has the benefits of indefeasibility or priority as against the Gunabee Lease. In view of the concession and indeed the effect of s 117 of the RPA, it is not necessary for me to consider the principles relating to priority between two equitable interests (as to which see, for example, Rice v Rice (1853) 2 Drew 73; 61 ER 646; Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) [1965] HCA 17 ; (1965) 113 CLR 265; RP Meagher, JD Heydon and MJ Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4 th ed, 2002) at [4.150]-[4.175]). 27 To similar effect are the words of Barwick CJ in Mercantile Credits as follows (at 338): The interest in the land derived from the covenant will be coextensive with the extent to which the covenant could be ordered to be specifically performed.
Case: Rice v Rice (1853) 2 Drew 73; 61 ER 646
Outcome: referred to
The effect of Mercantile Credits is that, in addition to being a prior equitable interest, the option or right to purchase, being in a registered instrument, has the benefits of indefeasibility or priority as against the Gunabee Lease. In view of the concession and indeed the effect of s 117 of the RPA, it is not necessary for me to consider the principles relating to priority between two equitable interests (as to which see, for example, Rice v Rice (1853) 2 Drew 73; 61 ER 646; Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) [1965] HCA 17 ; (1965) 113 CLR 265; RP Meagher, JD Heydon and MJ Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4 th ed, 2002) at [4.150]-[4.175]).
Case: Allen v Tobias (1958) 98 CLR 36
Outcome: applied
suggested that the benefit received by Mr Hoy may have been greater than he claimed. It pointed to the fact that Mr Hoy had destroyed the handwritten receipt books containing the records from which his profit could be calculated. Where a person deliberately destroys a document that, depending upon which its contents may have been, would have told strongly either for or against the person, the strongest possible assumption arises that if it had been produced, the document would have told against the person. This is so even if there was no intention to destroy evidence. The principle is that the person is in the position that they would have been in without the corroboration which might otherwise have been expected: Allen v Tobias [1958] HCA 13 ; (1958) 98 CLR 367 at 375 per Dixon CJ, McTiernan and Williams JJ, applying The Ophelia [1916] 2 AC 206 at 229-230.
Case: Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd [2007] FCAFC 40 ; (2007) 157 FCR 564
Outcome: cited
am satisfied that Allphones was responsible for the diversion of calls from Hoy Mobile's territory of Eastgardens because of, first, the inappropriate programming by Zintel from March 2006 and, secondly, from October 2006 its own failure to correct what it knew was a problem. I am satisfied that Hoy Mobile lost the opportunity to make some sales from calls to the 138000 number during the period of the diversion. I am also satisfied that this loss had some value. Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat an award of damages: see Sellars v Adelaide Petroleum NL [1994] HCA 4 ; (1992) 179 CLR 332 at 349-350 per Mason CJ, Dawson, Toohey and Gaudron JJ. However, it is not possible to make any precise calculation of the value of this loss, which included payments under cll 7.3 and 7.4 and the ongoing right to receive MTAC. Doing the best I can, I find the value of this to be the loss of about 1% of the sales of the Randwick store made during the period of the diversion. That results in a past loss of about $900, but this amount excludes any MTAC which Hoy Mobile would have earned after March 2007 on those sales. Although there is some guesswork involved, I find the total loss of Hoy Mobile as a result of the diversion to be $1,500: see generally Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 ; (2003) 196 ALR 257 at [37] - [38] per Hayne J with whom Gleeson CJ, McHugh and Kirby JJ agreed: Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd [2007] FCAFC 40 ; (2007) 157 FCR 564 at 569-570 [35] - [36] per Black CJ and Jacobson J, at 581 [99]-[101] per myself.