mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: X v The Commonwealth [1999] HCA 63 ; (1999) 200 CLR 177
Outcome: applied
Whether something is an "inherent requirement" of a particular employment depends on whether it is an essential element. The inherent requirements include at least the ability to carry out the physical tasks encompassed by the particular employment but also matters such as having regard for the safety of other employees, the general public and the employee himself: X v The Commonwealth [1999] HCA 63 ; (1999) 200 CLR 177 at [31] - [35] per McHugh J. 67 The requirements of the particular employment in question in the present case were described by Mr Godden. In 2003 GST Field Staff were organised into six teams, three each in Hobart and Launceston. The Launceston teams were based at an ATO office in that city. The office was purely a GST Field Site. No other ATO functions were performed at that site and there were no facilities for public contact. When a taxpayer had to be seen, the officers would go out to the taxpayer's place of business. 68 Launceston teams were expected to deal with clients in the North of the State down to Ross, on the North West Coast and in the North East down to Bicheno. 69 All Launceston staff were involved in field work in 2003. The work was a mixture of audit and advisory visits. The latter would be in response to a taxpayer's request for a visit. The Commissioner had given a public undertaking that the Office would contact the taxpayer within 72 hours of the initial request and complete the visit within 14 days. 70 Management was trying to maximise field time with an aim of officers spending 80 per cent of their time in the field. As it turned out, in 2003 officers in Launceston spent about 40 to 50 per cent of their time in the field, the remainder being taken up with training, team meetings, leave etc. New APS 4 staff such as Mr Gordon would have to spend more time in the field than the average because their work would have required them to spend more time doing advisory visits than audits.
Case: Australian Securities and Investments Commission v Tasman Investment Management Ltd [2006] NSWSC 943 ; (2006) 202 FLR 343
Outcome: referred to
In Australian Securities and Investments Commission v Tasman Investment Management Ltd [2006] NSWSC 943 ; (2006) 202 FLR 343 ( ASIC v Tasman Investment ), Austin J approached an application under s 601EE of the Act for directions concerning the distribution of assets of an unregistered management investment scheme along similar lines. His Honour considered (at [29]) that, on balance, on the authorities, it seemed that binding orders affecting third party rights were not authorised by s 479(3) of the Act. His Honour said that even if they were, the decided cases showed that directions under the section were usually made in the limited form described by McLelland J in Nathan (that the office holder is "justified" in acting in the manner specified in the order). Austin J added that one reason for making directions in that limited form is that even if authorised by the section, binding orders would not in fact be made unless all affected parties or their representatives were properly before the Court.
Case: Re Sutherland; French Caledonia Travel Service Pty Ltd (in liq) [2003] NSWSC 1008 ; (2003) 59 NSWLR 361
Outcome: cited
It is clear that under the Constitution of the Scheme the beneficial interests in the Assets within the respective FMIP and HYIP Classes were owned by the members of those Classes as tenants in common. The proceeds of sale attributed to one Class were to be shared equally on a pro rata basis by the members of that Class: see Re Sutherland; French Caledonia Travel Service Pty Ltd (in liq) [2003] NSWSC 1008 ; (2003) 59 NSWLR 361 at [186] - [190] . 132 It is clear that Mercator was required to keep the loans and the associated mortgages in each Portfolio separate. Pooling of assets was not permissible. 133 The Security Deed purported to increase the debt secured by the second mortgage over the Boondall Property to include the shortfall owed to the FMIP in relation to the Bonney Avenue Facility and the debt owed to the HYIP in relation to the Pashen Street Facility.
Case: Tom Thompson Pty Ltd v Pilley (1997) 77 FCR 141
Outcome: cited
In Editions Tom Thompson Pty Ltd v Pilley (1997) 77 FCR 141, I held that these observations applied to an application by an administrator of a company subject to a deed of company arrangement for directions under s 447D of the Corporations Law (Cth) (now s 447D of the Act).
Case: BMG Poseidon Corp Pty Ltd v Adelaide Bank Limited; In the Matter of BMG Poseidon Corp Pty Ltd [2009] FCA 389
Outcome: related
grounds under this section were advanced. These were: (a) The Statutory Demand was not made in compliance with s 459E of the Act because it was not in the prescribed form (see s 459E(2)(e) of the Act) and was not accompanied by an affidavit that: (i) Verified that the claimed debt was due and payable by BMG as at 21 August 2007; and (ii) Complied with the Rules of Court. (see s 459E(3) of the Act). The alleged non-compliance with each of the provisions referred to above was said to be constituted by the failure on the part of Adelaide Bank to verify the Statutory Demand or otherwise include in the affidavits read in support of its case on the present Application a statement by an appropriately qualified witness to the following effect: I believe there is no genuine dispute about the existence or amount of the debt. In support of these contentions, Mr Watts relied upon the decision of Tamberlin J in IFA Homeware Imports Pty Ltd v Shanghai Jerrys Candle Company Ltd [2003] FCA 533. (b) The Statutory Demand was issued for an improper purpose. That purpose was said to be the purpose of preventing or delaying BMG, Mr Watts and Mrs Watts from taking action against Adelaide Bank for damages or compensation by reason of the bank's conduct in allegedly dishonouring various alleged agreements and arrangements and in taking possession of the property and in taking steps to sell it as mortgagee in possession; and (c) The amount of the debt claimed in the Statutory Demand was misstated. At the hearing on 10 December 2008, Mr Watts conceded that there was in existence as at 21 August 2007 a debt due from BMG to Adelaide Bank but submitted that the correct amount of the debt due from BMG to Adelaide Bank at that time was $16,281.29. Subsequently, in a submission which I allowed Mr Watts to advance as a result of my decision made on 21 April 2009 (see BMG Poseidon Corp Pty Ltd v Adelaide Bank Limited; In the Matter of BMG Poseidon Corp Pty Ltd [2009] FCA 389), Mr Watts submitted that no moneys were due from BMG to Adelaide Bank and that Adelaide Bank had an obligation to account to BMG for surplus funds of approximately $86,286.32.
Case: Chase Manhattan Bank Australia Ltd v Oscty Pty Ltd [1995] FCA 1208 ; (1995) 17 ACSR 128
Outcome: applied
the expression may well include an unliquidated claim, that claim must be capable of being quantified as an amount of money ( Chase Manhattan Bank Australia Ltd v Oscty Pty Ltd [1995] FCA 1208 ; (1995) 17 ACSR 128 at 135). The claim must exist at the time at which the statutory demand is made ie in this case as at 21 August or perhaps 27 August 2007. By reason of the terms of the definition of offsetting claim , the claim must be genuine . The concept of genuineness gives rise to the same considerations as those with which I have dealt in respect of the s 459H(1)(a) ground. The first contention relied upon by BMG in support of this ground is that Adelaide Bank sold the property at an undervalue. This allegation amounts to an allegation that the bank breached the duty owed by it to BMG as mortgagee in possession when exercising its power of sale.
Case: Economic Life Assurance Society v Usborne [1902] AC 147
Outcome: applied
it seems to me that the provisions of cl 11.7 would entitle Adelaide Bank to charge interest at the contractual rate after judgment, the terms of that clause do not authorise the continued charging after judgment of late payment fees and penalty charges in accordance with other provisions of the loan agreements. Whatever rights Adelaide Bank had to levy such fees and charges under the covenants in the loan agreements were merged in the judgment which it obtained on 3 April 2006. After 3 April 2006 its rights were confined to recovering the amount of the judgment plus interest, albeit levied at the contractual rate if it so desired and its rights under its securities (see Economic Life Assurance Society v Usborne [1902] AC 147 ; and Elders Trustee &amp; Executor Co Ltd v Eagle Star Nominees Ltd (1986) 4 BPR 9205 , [1987] ANZ ConvR 14, (1987) NSW ConvR 55 333). A complete copy of the relevant mortgage was not tendered in evidence before me. I will therefore assume that, prior to 3 April 2006, Adelaide Bank's rights in respect of interest and other charges were confined to the personal covenants in the loan agreements. In that event, those rights were merged in the judgment and ceased to exist after 3 April 2006.
Case: Elders Trustee &amp; Executor Co Ltd v Eagle Star Nominees Ltd (1986) 4 BPR 9205 , [1987] ANZ ConvR 14, (1987) NSW ConvR 55 333
Outcome: applied
it seems to me that the provisions of cl 11.7 would entitle Adelaide Bank to charge interest at the contractual rate after judgment, the terms of that clause do not authorise the continued charging after judgment of late payment fees and penalty charges in accordance with other provisions of the loan agreements. Whatever rights Adelaide Bank had to levy such fees and charges under the covenants in the loan agreements were merged in the judgment which it obtained on 3 April 2006. After 3 April 2006 its rights were confined to recovering the amount of the judgment plus interest, albeit levied at the contractual rate if it so desired and its rights under its securities (see Economic Life Assurance Society v Usborne [1902] AC 147 ; and Elders Trustee &amp; Executor Co Ltd v Eagle Star Nominees Ltd (1986) 4 BPR 9205 , [1987] ANZ ConvR 14, (1987) NSW ConvR 55 333). A complete copy of the relevant mortgage was not tendered in evidence before me. I will therefore assume that, prior to 3 April 2006, Adelaide Bank's rights in respect of interest and other charges were confined to the personal covenants in the loan agreements. In that event, those rights were merged in the judgment and ceased to exist after 3 April 2006.
Case: Olivieri v Stafford (1989) 24 FCR 413
Outcome: cited
my opinion, this Court has the power to go behind a judgment in appropriate circumstances, even if the judgment was obtained by default and even if the debtors have unsuccessfully made application to set the judgment aside. This much is made clear in the Reasons for Judgment of Gibbs J in Re Johnson &amp; Mann; Ex parte Greendale Engineering &amp; Cables Ltd [1968] ALR 408 , (1967) 11 FLR 335 at 341. It may be thought that certain observations made by Beaumont J in Olivieri v Stafford (1989) 24 FCR 413 are authority for the contrary proposition. In that case, his Honour said (at 424): As has been said, a court of bankruptcy is concerned to inquire into the "reality" of the matter in hand. Here the "reality" of the matter is that the merits of the respondents' claim have been demonstrated to the satisfaction of one judge of the District Court and another judge of that Court has declined to disturb the judgment. As a matter of substance, it is appropriate, in all the circumstances, for a court of bankruptcy to treat what happened in the two hearings in the District Court as a trial of the merits of the respondents' claim. That is to say, a court of bankruptcy should, I think, accept that a process of adjudication in the District Court has established that the underlying transactions created a true debt which could, in turn, provide a proper foundation for the entry of a judgment in respect of which a bankruptcy notice could properly issue. In my view, notwithstanding these remarks, his Honour nonetheless recognised that the Court retained a discretion to go behind a default judgment in an appropriate case even where attempts to set aside that judgment had failed. There is no principle which denies the existence of that discretion. In Olivieri 24 FCR 413 , a judgment had been obtained in the District Court by default and two attempts to have it set aside had failed. The approach of Beaumont J was to look at the reality of the matter. In his Honour's view, by the time that the case before him had reached this Court, there was no reason for this Court to examine yet again the underlying basis for the judgment. . In the same case, Gummow J reached the same result through a different process of reasoning with which, with respect, I agree. The natural justice arguments advanced by BMG in support of its application to set aside the judgment made in the Supreme Court cannot constitute a defence to the claim of Adelaide Bank for repayment of its loans and other moneys due under the loan agreements. The remaining two broad grounds relied upon by BMG in the Supreme Court (as to which see [42](b) and (c) above) are reminiscent of contentions advanced on behalf of BMG in the present proceedings.
Case: Pendlebury v Colonial Mutual Life Assurance Society Ltd [1912] HCA 9 ; (1912) 13 CLR 676
Outcome: applied
the position in Australia remains that there is no common law duty in negligence by which a mortgagee can be found liable for damages if it fails to obtain a good price or the best price upon the sale of a mortgaged property (as to which see Fisher and Lightwood's Law of Mortgage , (2 nd Australian edition, 2005) at 496 497 [20.21]). The duty of the mortgagee is one of good faith. That duty requires the mortgagee not to act fraudulently or wilfully or recklessly or to recklessly sacrifice the interests of the mortgagor ( Pendlebury v Colonial Mutual Life Assurance Society Ltd [1912] HCA 9 ; (1912) 13 CLR 676 at 680). BMG tendered no evidence to support its contention that the property was sold at an undervalue. Adelaide Bank, on the other hand, tendered the three valuations which it had obtained. The valuers were not cross-examined. Their opinions were not challenged at all. In addition, Mr Watts' anecdotal recounting of the casual offer made to BMG in mid 1996 of $850,000 tended to support the valuations which Adelaide Bank had obtained. Furthermore, the obvious difficulties which BMG had encountered in selling the property in 2006 and early 2007 and in procuring sufficient funds to refinance its debts to Adelaide Bank in the same period provide additional support for the conclusion that the property was not likely to have commanded a price much above $850,000 $900,000 viewed from the perspective of a seller looking forward in late 2006 and early 2007.
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: cited
was submitted on behalf of Adelaide Bank in support of a contention that no genuine dispute existed that, by reason of the application of the principles articulated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 , BMG was estopped from arguing that there was any dispute in respect of the judgment and, further, was estopped from arguing in the present proceedings any matter which was in fact raised by it, or could have been raised by it, in support of the application made by it, Mr Watts and Mrs Watts in the Supreme Court to set aside the judgment. I do not think that these propositions are correct. There has been no adjudication on the merits and no occasion calling for such an adjudication. The exercise of considering and determining an application to set aside a default judgment involves the application of very different principles from those which would ordinarily be in play on a final hearing on the merits.
Case: Re Johnson &amp; Mann; Ex parte Greendale Engineering &amp; Cables Ltd [1968] ALR 408 , (1967) 11 FLR 335
Outcome: applied
my opinion, this Court has the power to go behind a judgment in appropriate circumstances, even if the judgment was obtained by default and even if the debtors have unsuccessfully made application to set the judgment aside. This much is made clear in the Reasons for Judgment of Gibbs J in Re Johnson &amp; Mann; Ex parte Greendale Engineering &amp; Cables Ltd [1968] ALR 408 , (1967) 11 FLR 335 at 341. It may be thought that certain observations made by Beaumont J in Olivieri v Stafford (1989) 24 FCR 413 are authority for the contrary proposition. In that case, his Honour said (at 424): As has been said, a court of bankruptcy is concerned to inquire into the "reality" of the matter in hand. Here the "reality" of the matter is that the merits of the respondents' claim have been demonstrated to the satisfaction of one judge of the District Court and another judge of that Court has declined to disturb the judgment. As a matter of substance, it is appropriate, in all the circumstances, for a court of bankruptcy to treat what happened in the two hearings in the District Court as a trial of the merits of the respondents' claim. That is to say, a court of bankruptcy should, I think, accept that a process of adjudication in the District Court has established that the underlying transactions created a true debt which could, in turn, provide a proper foundation for the entry of a judgment in respect of which a bankruptcy notice could properly issue.
Case: Rohalo Pharmaceutical Pty Ltd v RP Scherer SpA &amp; Pharmagel SpA (1994) 15 ACSR 347 , (1994) 13 ACLC 94
Outcome: applied
s 459H(1)(a) to be engaged, the Court must be satisfied that there is a genuine dispute about the existence or about the amount of the debt. In order for a dispute of that kind to be raised, there must be more than the mere assertion of a dispute or the mere making of a claim (per Lindgren J in Rohalo Pharmaceutical Pty Ltd v RP Scherer SpA &amp; Pharmagel SpA (1994) 15 ACSR 347 , (1994) 13 ACLC 94 at 352/30 354/15, esp at 353/20 25). The dispute must have an objective existence the genuineness of which is capable of being assessed ( Rohalo 15 ACSR 347 , 13 ACLC 94 at 353/17 25). The test has been equated with the test as to whether the creditor would be entitled to summary judgment on the claim ( Rohalo 15 ACSR 347 , 13 ACLC 94 at 353/42 354/8).
Case: Spencer Constructions Pty Ltd v G &amp; M Aldridge Pty Ltd [1997] FCA 681 ; (1997) 76 FCR 452
Outcome: applied
Spencer Constructions Pty Ltd v G &amp; M Aldridge Pty Ltd [1997] FCA 681 ; (1997) 76 FCR 452 at 461 464 a Full Court of this Court discussed the relevant principles by reference to a number of the relevant authorities. At 464F G the Court said: In our view a "genuine" dispute requires that: the dispute be bona fide and truly exist in fact; the grounds for alleging the existence of a dispute are real and not spurious, hypothetical, illusory or misconceived. In her Reasons for Judgment published on 12 February 2008, McCallum J recorded the following (at [12]): Mr Watts does not dispute that there were defaults in the two loan agreements, nor that the penalty charges incurred as a consequence were calculated in accordance with the two loan agreements. In this Court, Mr Watts did not take a different position. In particular, he made no submission to the effect that the various components making up the judgment debt of $1,028,725.29 had not been charged in accordance with the terms of the loan agreements. His attack on the judgment was more fundamental. It was Mr Watts' submission that the penalty charges and fees levied against BMG by Adelaide Bank ought to be disregarded entirely, that the costs incurred by Adelaide Bank in selling the property ought to be disregarded entirely and that BMG should get the benefit of the higher purchase price (viz $1,075,000) apparently negotiated by Mr Watts with Mr Campbell. These views or submissions are reflected in the calculation which I allowed Mr Watts to advance by way of submission earlier this week.
Case: Upton v Tasmanian Perpetual Trustees Ltd [2007] FCAFC 57 ; (2007) 158 FCR 118
Outcome: applied
Upton v Tasmanian Perpetual Trustees Ltd [2007] FCAFC 57 ; (2007) 158 FCR 118 at [86] [90] (pp 138 143) a Full Court of this Court summarised various propositions that may be drawn from the relevant decisions of the High Court as to the content of the duty of good faith owed by a mortgagee to a mortgagor in the context of the exercise of a mortgagee's power of sale. In the passages referred to, the Full Court held that a mortgagee is entitled to exercise the power of sale for its own benefit but must take reasonable steps to obtain a fair price which in turn will involve taking reasonable steps to ascertain the value before selling.
Case: Bropho v State of Western Australia and Another (1990) 171 CLR 1
Outcome: referred to
Triad also seeks to argue that clear and unambiguous words are required before a provision will be construed to take away property without compensation: Bropho v State of Western Australia and Another (1990) 171 CLR 1 at 17-18. It is claimed that s 233 of the Corporations Act 2001 (Cth) should not be construed as permitting the Court to remove the property rights of another person other than the company against which orders were sought (BGR). 53 Grounds 3 to 7, 9 and 10 of the draft notice of appeal raise the question whether, even if power were available to the primary Judge to make Order 6, his Honour erred in making such order. This question raises the issue of the statutory construction of s 233 of the Corporations Act 2001 (Cth). 54 Grounds 8, 11 and 12 of the draft notice of appeal also raise the issue of the appropriateness of Order 6 in respect of other relief which was granted by the Court pursuant to the orders of the primary Judge. 55 TFI and Mr Bax oppose the orders sought in Triad's application for extension of time. They submit that no proper or satisfactory explanation has been provided by Triad for the delay in bringing of the application for leave and that there would be substantial and material prejudice to TFI, Mr Bax and all BGR companies if leave were granted. They also assert that the proposed appeal is futile and a waste of costs and resources. TFI and Mr Bax submit that it is inconceivable that Mr Gulson could not have understood the reasons of the primary Judge. 56 TFI and Mr Bax submit that there were two scenarios which the primary Judge had to consider in remedying the oppression of TFI, namely Option A and Option B. His Honour made orders having the effect of Option B. TFI and Mr Bax challenge the factual assertion by Mr Gulson that Mr Gulson acted promptly after learning of Order 6. It is submitted that Mr Gulson was fully aware of the consequence of the primary Judge making orders in accordance with Option B, but that he consciously chose not to appeal whilst costs were being incurred by the other parties. 57 TFI and Mr Bax also submit that there is no evidence that Triad's former lawyers did not understand the effect of Order 6. In the absence of evidence from them it is submitted that the Court could not be satisfied that there exists a proper or satisfactory explanation for the delay in pursuing the appeal. 58 It is claimed that TFI has to date paid $75,000 to fund recovery action by the liquidator and both TFI and Mr Bax have incurred heavy legal costs. The liquidator has made interlocutory applications to the courts, served statutory demands and incurred costs which would have been avoided had Triad filed a notice of appeal in time. It is submitted that the continuation of these proceedings would be wasteful and cause severe inconvenience.