mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: National Bank Ltd v Leroy; In the matter of Woo [2003] FCA 862
Outcome: cited
unusual application is for vesting of disclaimed real property in fee simple pursuant to s 568F of the Corporations Act 2001 (Cth) (the Act). The starting point for discussion of the disclaimer provisions in modern times was the analysis by Sir Nigel Bowen in Re Middle Harbour Investments Ltd (in liq) [1977] 2 NSWLR 652, dealing with the provisions of the Companies Act 1961 as they stood in 1976. The dicta of Young CJ in Eq in Sullivan v Energy Services International Pty Ltd (in liq) [2002] NSWSC 937 ; (2002) 171 FLR 106, (2002) 43 ACSR 179, particularly at [33] [50], is also of some relevance. His Honour said that there had not been any judicial consideration of s 568F of the current Act (although cf Global Television Pty Ltd v Sportsvision Australia Pty Ltd (in liq) (2000) 35 ACSR 484 [70]). There is a cognate power in bankruptcy (cf Bankruptcy Act 1966 (Cth), s 133(9) ; see National Bank Ltd v Leroy; In the matter of Woo [2003] FCA 862). The usual position upon disclaimer would be that the company's interest in the property would estreat to the Crown in right of New South Wales subject to any charges ( Re Middle Harbour Investments Ltd at 662 663; Re Tulloch Ltd (in liq) (1977) 3 ACLR 808; National Bank Ltd v Leroy; In the matter of Woo at [5]). The State of New South Wales has been joined and submits to any order that the Court might make. It does not seek to press any claim it may have.
Case: Re Middle Harbour Investments Ltd (in liq) [1977] 2 NSWLR 652
Outcome: referred to
unusual application is for vesting of disclaimed real property in fee simple pursuant to s 568F of the Corporations Act 2001 (Cth) (the Act). The starting point for discussion of the disclaimer provisions in modern times was the analysis by Sir Nigel Bowen in Re Middle Harbour Investments Ltd (in liq) [1977] 2 NSWLR 652, dealing with the provisions of the Companies Act 1961 as they stood in 1976. The dicta of Young CJ in Eq in Sullivan v Energy Services International Pty Ltd (in liq) [2002] NSWSC 937 ; (2002) 171 FLR 106, (2002) 43 ACSR 179, particularly at [33] [50], is also of some relevance. His Honour said that there had not been any judicial consideration of s 568F of the current Act (although cf Global Television Pty Ltd v Sportsvision Australia Pty Ltd (in liq) (2000) 35 ACSR 484 [70]). There is a cognate power in bankruptcy (cf Bankruptcy Act 1966 (Cth), s 133(9) ; see National Bank Ltd v Leroy; In the matter of Woo [2003] FCA 862). The usual position upon disclaimer would be that the company's interest in the property would estreat to the Crown in right of New South Wales subject to any charges ( Re Middle Harbour Investments Ltd at 662 663; Re Tulloch Ltd (in liq) (1977) 3 ACLR 808; National Bank Ltd v Leroy; In the matter of Woo at [5]). The State of New South Wales has been joined and submits to any order that the Court might make. It does not seek to press any claim it may have.
Case: Re Tulloch Ltd (in liq) (1977) 3 ACLR 808
Outcome: cited
usual position upon disclaimer would be that the company's interest in the property would estreat to the Crown in right of New South Wales subject to any charges ( Re Middle Harbour Investments Ltd at 662 663; Re Tulloch Ltd (in liq) (1977) 3 ACLR 808; National Bank Ltd v Leroy; In the matter of Woo at [5]). The State of New South Wales has been joined and submits to any order that the Court might make. It does not seek to press any claim it may have.
Case: Sullivan v Energy Services International Pty Ltd (in liq) [2002] NSWSC 937 ; (2002) 171 FLR 106, (2002) 43 ACSR 179 
Outcome: cited
unusual application is for vesting of disclaimed real property in fee simple pursuant to s 568F of the Corporations Act 2001 (Cth) (the Act). The starting point for discussion of the disclaimer provisions in modern times was the analysis by Sir Nigel Bowen in Re Middle Harbour Investments Ltd (in liq) [1977] 2 NSWLR 652, dealing with the provisions of the Companies Act 1961 as they stood in 1976. The dicta of Young CJ in Eq in Sullivan v Energy Services International Pty Ltd (in liq) [2002] NSWSC 937 ; (2002) 171 FLR 106, (2002) 43 ACSR 179, particularly at [33] [50], is also of some relevance. His Honour said that there had not been any judicial consideration of s 568F of the current Act (although cf Global Television Pty Ltd v Sportsvision Australia Pty Ltd (in liq) (2000) 35 ACSR 484 [70]). There is a cognate power in bankruptcy (cf Bankruptcy Act 1966 (Cth), s 133(9) ; see National Bank Ltd v Leroy; In the matter of Woo [2003] FCA 862).
Case: Meggot v Mills , 1 Ld Raym 286; 91 ER 
Outcome: considered
Those "older cases" are of some assistance in understanding the decision in Dagnall . In Meggot v Mills , 1 Ld Raym 286; 91 ER 1088, it was said that: '... though a man quits his trade, yet he may be a bankrupt for the debts that he owed before.'
Case: Ex parte Bamford (1809) 15 Ves Jun 449; 33 ER 824 
Outcome: considered
The reference by Vaughan Williams J to the "older cases" is explained in the summary of argument by counsel for the petitioning creditor. At 408-9, counsels' submissions are summarized as follows: 'The meaning of s.1, sub-s 5, of the Married Women's Property Act 1882 is that a woman who once carries on a trade and contracts debts as a trader becomes subject to the bankruptcy laws, and continues to be so until she has discharged her trade debts, even though she may have ceased to carry on her trade. Under the old law of bankruptcy, in force at a time when only traders could be made bankrupt, a man who had retired from business might be made a bankrupt in respect of debts contracted before he did retire: Meggot v Mills ... . Similarly, in Ex parte Bamford ... , a case decided on an Act of Parliament which provided that persons "using the trade of merchandise" might be made bankrupt, it was held that an act of bankruptcy committed after retiring from trade was sufficient.' 27 In Ex parte Bamford (1809) 15 Ves Jun 449; 33 ER 824, Lord Eldon said (at 827): 'Upon the point, which has been taken at the trial, whether a Commission can be sustained by an act of bankruptcy, committed after retiring from trade, the debts, contracted in the course of that trade, remaining unpaid, I shall say no more, than that my clear opinion, unqualified by any doubt, is, that the Commission may be sustained; and I should not have heard so much upon it, if I had not understood, that two of the Judges held different opinions upon that question at the Assizes.' 28 Neither of these authorities supports the proposition that a trader, who ceases trading in the usual sense, continues to trade for so long as trade debts remain owing. They rather establish the proposition advanced by Wright J that a person who has traded may be bankrupted upon debts incurred during trading, notwithstanding the fact that he has ceased to trade.
Case: Theophile v The Solicitor-General [1950] AC 186 
Outcome: cited
In bankruptcy matters, Dagnall has been followed in Theophile v The Solicitor-General [1950] AC 186 at 201-203; In re Bird v Inland Revenue Commissioner [1962] 1 WLR 686 at 695-697 and In re a Debtor [1992] Ch 554. However, in Avondale Motors (Parts) Pty Ltd v Commissioner of Taxation [1971] HCA 17 ; (1971) 124 CLR 97 at 102-103, Gibbs J (as his Honour then was) doubted the applicability of the decision in Dagnall 'beyond the field of bankruptcy and into that of taxation law' , referring to the decision of Tryka Ltd v Newall (1963) 41 TC 146 where Wilberforce J (as his Lordship then was) said: 'I do not think I can accept the application of the bankruptcy cases here. It seems to me that the two fields are quite different. When one is considering the question whether for purposes of bankruptcy laws a person is carrying on business, it may be necessary to hold that he does not cease to carry on business when trading activity has ceased, and for that reason, the Courts have been ready to extend the Section so as to cover a case where he has left debts unpaid. But to apply the same line of thought to Income Tax cases would lead to very great difficulties and, indeed, would mean that almost every case which one finds in the books on such questions as cessation of business would have been complicated by the introduction of this question and might, indeed, have been otherwise decided.' 30 Similarly, in Northern Engineering Pty Ltd v Federal Commissioner of Taxation (1979) 42 FLR 301, Deane J considered that the decision in Theophile could not be applied in considering whether a taxpayer was carrying on business for so long as any debt owing to him remained uncollected. In that case Brennan J (as his Honour then was) said (at 304): 'When a company's business is closing down there comes a time when the activity of a trading or profit-making nature comes to an end. The business of the company is not carried on merely by managing or disposing of the company's assets otherwise than in a business. There was, as it seems to me, no element of business in the circumstances of the case here appearing in the movement of funds between the appellant and the other companies in the group. It was not shown that the movement of those funds was for the purpose of deriving any commercial benefit for the appellant and the mere existence of a debt owing by the holding company during the income year had no element of a business about it, nor was it in an relevant sense an incident of the trading business in which the appellant had been engaged.' I infer that Brennan J also saw no reason to apply Theophile .
Case: In re Bird v Inland Revenue Commissioner [1962] 1 WLR 686 
Outcome: cited
In bankruptcy matters, Dagnall has been followed in Theophile v The Solicitor-General [1950] AC 186 at 201-203; In re Bird v Inland Revenue Commissioner [1962] 1 WLR 686 at 695-697 and In re a Debtor [1992] Ch 554. However, in Avondale Motors (Parts) Pty Ltd v Commissioner of Taxation [1971] HCA 17 ; (1971) 124 CLR 97 at 102-103, Gibbs J (as his Honour then was) doubted the applicability of the decision in Dagnall 'beyond the field of bankruptcy and into that of taxation law' , referring to the decision of Tryka Ltd v Newall (1963) 41 TC 146 where Wilberforce J (as his Lordship then was) said: 'I do not think I can accept the application of the bankruptcy cases here. It seems to me that the two fields are quite different. When one is considering the question whether for purposes of bankruptcy laws a person is carrying on business, it may be necessary to hold that he does not cease to carry on business when trading activity has ceased, and for that reason, the Courts have been ready to extend the Section so as to cover a case where he has left debts unpaid. But to apply the same line of thought to Income Tax cases would lead to very great difficulties and, indeed, would mean that almost every case which one finds in the books on such questions as cessation of business would have been complicated by the introduction of this question and might, indeed, have been otherwise decided.'
Case: In re a Debtor [1992] Ch 554 
Outcome: cited
In bankruptcy matters, Dagnall has been followed in Theophile v The Solicitor-General [1950] AC 186 at 201-203; In re Bird v Inland Revenue Commissioner [1962] 1 WLR 686 at 695-697 and In re a Debtor [1992] Ch 554. However, in Avondale Motors (Parts) Pty Ltd v Commissioner of Taxation [1971] HCA 17 ; (1971) 124 CLR 97 at 102-103, Gibbs J (as his Honour then was) doubted the applicability of the decision in Dagnall 'beyond the field of bankruptcy and into that of taxation law' , referring to the decision of Tryka Ltd v Newall (1963) 41 TC 146 where Wilberforce J (as his Lordship then was) said: 'I do not think I can accept the application of the bankruptcy cases here. It seems to me that the two fields are quite different. When one is considering the question whether for purposes of bankruptcy laws a person is carrying on business, it may be necessary to hold that he does not cease to carry on business when trading activity has ceased, and for that reason, the Courts have been ready to extend the Section so as to cover a case where he has left debts unpaid. But to apply the same line of thought to Income Tax cases would lead to very great difficulties and, indeed, would mean that almost every case which one finds in the books on such questions as cessation of business would have been complicated by the introduction of this question and might, indeed, have been otherwise decided.'
Case: Tryka Ltd v Newall (1963) 41 TC 146 
Outcome: followed
In bankruptcy matters, Dagnall has been followed in Theophile v The Solicitor-General [1950] AC 186 at 201-203; In re Bird v Inland Revenue Commissioner [1962] 1 WLR 686 at 695-697 and In re a Debtor [1992] Ch 554. However, in Avondale Motors (Parts) Pty Ltd v Commissioner of Taxation [1971] HCA 17 ; (1971) 124 CLR 97 at 102-103, Gibbs J (as his Honour then was) doubted the applicability of the decision in Dagnall 'beyond the field of bankruptcy and into that of taxation law' , referring to the decision of Tryka Ltd v Newall (1963) 41 TC 146 where Wilberforce J (as his Lordship then was) said: 'I do not think I can accept the application of the bankruptcy cases here. It seems to me that the two fields are quite different. When one is considering the question whether for purposes of bankruptcy laws a person is carrying on business, it may be necessary to hold that he does not cease to carry on business when trading activity has ceased, and for that reason, the Courts have been ready to extend the Section so as to cover a case where he has left debts unpaid. But to apply the same line of thought to Income Tax cases would lead to very great difficulties and, indeed, would mean that almost every case which one finds in the books on such questions as cessation of business would have been complicated by the introduction of this question and might, indeed, have been otherwise decided.'
Case: Fielder Downs (WA) Pty Ltd v The Commissioner of Taxation [1980] QdR 283
Outcome: discussed
In Fielder Downs (WA) Pty Ltd v The Commissioner of Taxation [1980] QdR 283 at 290, WB Campbell J (as his Honour then was) said, concerning legislation which was analogous to the present legislation: 'Although dictionary definitions may be of assistance in some cases, it seems to me that the determination of the issue whether the business carried on by the company in each of the three relevant years was the same business, or one of a similar kind, as was carried on by it before March 1969 depends upon an investigation of fact so as to characterize the kind of nature of the business which was undertaken during each respective period.'
Case: Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 313
Outcome: distinguished
Perhaps other categories to add to that list include where the issue raised involves the administration of justice, as was the case in Al Masri (immigration detention) and Kennedy (suppression orders), or where there is an issue involving a public authority as to a question of public law, as was the case in Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 313 (regulator seeking penalty for conduct in breach of the Trade Practices Act 1975 (Cth) notwithstanding that conduct had ceased).
Case: City of Norwood, Payneham and St Peters v Baker [2004] SASC 135
Outcome: cited
Historically, courts have been disinclined to hear and determine matters where the issues in controversy no longer have real practical significance. In Glasgow Navigation Company v Iron Ore Company [1910] AC 293 at 294, Lord Loreburn LC stated that it was not the function of a Court of law to advise parties as to what would be their rights under a hypothetical state of facts (cf Sutch v Burns [1944] KB 406, King v Lewis [1949] NZLR 779, Sumner v William Henderson &amp; Sons [1963] 2 All ER 712, Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335, and Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368, City of Norwood, Payneham and St Peters v Baker [2004] SASC 135). A useful illustration of the principle is the decision of the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VR 394 where the respondent had obtained a judgment for the sum of [sterling]300 and costs against the Insurance Commissioner. The Insurance Commissioner appealed to set aside the judgment. The appeal involved the construction of a section of an exclusion clause in a policy of insurance. The court was informed however that the Insurance Commissioner had paid the judgment debt and costs to the respondent, and that the parties had agreed that the Insurance Commissioner would neither seek the return of those moneys nor a new trial should the appeal succeed. In refusing to proceed further with the appeal, the Full Court observed: 'There is, therefore, now no real contest between the parties as to the right to that [sterling]300. We have, therefore, a position in which this Court is asked to deal with a matter where the legal rights of the parties to that [sterling]300 are not now in actual controversy...we think, as the matters now stand, what the Court is really asked to do is to give an advisory opinion on the construction of the policy of insurance.' (at 394)
Case: Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319
Outcome: cited
The principle has also been applied in the Federal Court in a number of cases (for example Beitseen v Johnson (1989) 29 IR 336, La Roche v Cormack (1991) 33 FCR 414, Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406 at 423, Mayne Nickless Ltd v Transport Workers Union of Australia [1998] 984 FCA, Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319 , Vanstone v Clark [2005] FCAFC 189). In Beitseen , to which I was also directed by Ms Brennan acting for the Board, the trial judge had made orders directing members of a union to perform and observe the rules of that organisation by treating the respondent as having been validly appointed to the position of secretary in the union, and by treating as null and void a purported resolution of the union that an election be held for that position. The respondent's appointment was for the unexpired term of the previous incumbent in that role, however it was common ground that the unexpired term would expire shortly afterwards, and that an election was in progress to determine who would fill the office for a full term from that time. The appellants sought to appeal the decision at first instance on the basis of issues including whether the respondent was eligible to be appointed to the position pro tem, whether the union could have filled the position by appointment a casual vacancy, and whether the appointment of the respondent had not been effectively revoked by a subsequent meeting. Woodward, Northrop and Ryan JJ held that: &#8226; in the circumstances there was no real contest between the parties as to the right of the respondent to occupy the position &#8226; resolving those questions would be to furnish an advisory opinion which courts traditionally, and for good reason, have been averse from doing &#8226; although the appellants genuinely desired to agitate the issues involved in the grounds of their notice of appeal, such a desire does not satisfy the requirement that the legal rights of the parties should be in actual controversy as articulated Hole v Insurance Commissioner . As explained by their Honours: 'On our understanding that requirement entails that any judgment which might be given on the appeal should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed.' (at 337-338)
Case: Douglas v Tickner (1994) 49 FCR 507
Outcome: cited
Notwithstanding this general rule, the courts have also recognised that, even where hypothetical issues are involved, the court preserves a discretion to determine an issue where the determination would be in the public interest: Eastman v Newcastle United Football Club Ltd [1964] 1 Ch 413 at 440, Veloudos v Young (1981) 56 FLR 182 at 190, Douglas v Tickner (1994) 49 FCR 507 at 521, Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38, the Full Court of the Federal Court in MIMIA v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 at 62, Vanstone v Clark per Black CJ at [8] and Weinberg J at [38], and more recently the Court of Appeal of Western Australia in Kennedy ex parte West Australian Newspapers [2006] WASCA 172 at [27] .
Case: Eastman v Newcastle United Football Club Ltd [1964] 1 Ch 413
Outcome: cited
Notwithstanding this general rule, the courts have also recognised that, even where hypothetical issues are involved, the court preserves a discretion to determine an issue where the determination would be in the public interest: Eastman v Newcastle United Football Club Ltd [1964] 1 Ch 413 at 440, Veloudos v Young (1981) 56 FLR 182 at 190, Douglas v Tickner (1994) 49 FCR 507 at 521, Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38, the Full Court of the Federal Court in MIMIA v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 at 62, Vanstone v Clark per Black CJ at [8] and Weinberg J at [38], and more recently the Court of Appeal of Western Australia in Kennedy ex parte West Australian Newspapers [2006] WASCA 172 at [27] .
Case: Kennedy ex parte West Australian Newspapers [2006] WASCA 172
Outcome: distinguished
Notwithstanding this general rule, the courts have also recognised that, even where hypothetical issues are involved, the court preserves a discretion to determine an issue where the determination would be in the public interest: Eastman v Newcastle United Football Club Ltd [1964] 1 Ch 413 at 440, Veloudos v Young (1981) 56 FLR 182 at 190, Douglas v Tickner (1994) 49 FCR 507 at 521, Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38, the Full Court of the Federal Court in MIMIA v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 at 62, Vanstone v Clark per Black CJ at [8] and Weinberg J at [38], and more recently the Court of Appeal of Western Australia in Kennedy ex parte West Australian Newspapers [2006] WASCA 172 at [27] . 16 Identifying 'the public interest' for the purposes of exercising this discretion is no easy task. In Kennedy , Steytler P observed: 'Examples of cases in which the public interest exception has been said to apply include cases in which the issues raised in the appeal have a significance wider than for the purposes of the particular case: Mosman Park at 39, Al Masri at 62; or in which the issue raised in the appeal is otherwise one of continuing importance: Al Masri at 62; or in which there is a conflict between inconsistent decisions which needs to be resolved: Mosman Park at 39.' 17 Perhaps other categories to add to that list include where the issue raised involves the administration of justice, as was the case in Al Masri (immigration detention) and Kennedy (suppression orders), or where there is an issue involving a public authority as to a question of public law, as was the case in Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 313 (regulator seeking penalty for conduct in breach of the Trade Practices Act 1975 (Cth) notwithstanding that conduct had ceased).