mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Bartlett Researched Securities Pty Ltd (Administrator Appointed) (1994) 12 ACSR 707
Outcome: referred to
question of the considerations that are relevant to a company administrator's exercise of a casting vote under reg 5.6.21 and of applications under s 600B to set aside a resolution passed on the casting vote has been considered in Re Bartlett Researched Securities Pty Ltd (Administrator Appointed) (1994) 12 ACSR 707 ( Bartlett ), Re Coaleen Pty Ltd (Administrator Appointed) (1999) 30 ACSR 200 ( Coaleen ), Re Martco Engineering Pty Ltd (Administrator Appointed); Deputy Commissioner of Taxation v Martco Engineering Pty Ltd (1999) 32 ACSR 487 , Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (2001) 37 ACSR 394 ( Cresvale ), Young v Sherman [2002] NSWCA 281 ; (2002) 170 FLR 86 , and Blue Ring Pty Ltd v Landshore Pty Ltd (Subject to a Deed of Company Arrangement) [2006] WASC 245 ( Blue Ring ). These authorities show that: (1) Good faith alone will not necessarily shield the resolution from a setting aside (or variation) under s 600B ( Cresvale 37 ACSR 394 at [111]); (2) A factor that may justify setting aside the resolution is a statement in or omission from the administrator's report under s 439A that is apt to have misled creditors when they cast their deliberative vote ( Blue Ring [2006] WASC 245) ; (3) Inadequacy and superficiality of an administrator's investigation of the company's business, property, affairs and financial circumstances, at least as disclosed by the evidence before the Court, may warrant a setting aside of the resolution ( Bartlett 12 ACSR 707 ; Cresvale 37 ACSR 394 at [113]); (4) There is no presumption in favour of the majority in value, although any large disproportion between the values of the debts of the numerical minority and the numerical majority will be a factor to be taken into account ( Coaleen 30 ACSR 200 ; Cresvale 37 ACSR 394 at [115]); and (5) Payment of a premium to the creditors who supported the DOCA but not to a dissident creditor will justify a setting aside by the court ( Young v Sherman [2002] NSWCA 281 ; 170 FLR 86).
Case: R v Bradford Metropolitan City Council; ex parte Corris [1989] 3 All ER 156
Outcome: cited
R v Bradford Metropolitan City Council; ex parte Corris [1989] 3 All ER 156 at 160 Neill LJ said: A person who has a second or casting vote is clearly under a duty to exercise it honestly and in accordance with what he believes to be the best interests of those who may be affected by the vote. Subject to this, however, it seems to me that the person presiding at a meeting is fully entitled to use his vote as he thinks fit. According to this passage, Mr Hamilton was required to exercise his casting vote honestly and in accordance with what he believed to be the best interests of the creditors. He did so. Unlike her colleague, Leisa Kelly, who seems to have thought that Mr Hamilton was committed to favouring the DOCA, Ms Brennan disavowed any such view. She seems to have accepted that Mr Hamilton acted in good faith and without bias when he voted in the way he did. In any event, I find that he did. Mr Hamilton had calculated that the DOCA would give creditors a marginally better return than a winding up would do. The dividend that the proposed DOCA promised was paltry, but it exceeded what creditors would receive on a winding up. Mr Hamilton considered the likelihood of recoveries by a liquidator and dealt with the matter in the Report and the Supplementary Report, concluding that the likelihood of a successful claim was so small as not to outweigh the tiny dividend offered by the proposed DOCA. On what basis should Mr Hamilton have exercised his casting vote to deny creditors the promised dividend, very small though it was?
Case: Re Martco Engineering Pty Ltd (Administrator Appointed); Deputy Commisioner of Taxation v Martco Engineering Pty Ltd (1999) 32 ACSR 487
Outcome: referred to
question of the considerations that are relevant to a company administrator's exercise of a casting vote under reg 5.6.21 and of applications under s 600B to set aside a resolution passed on the casting vote has been considered in Re Bartlett Researched Securities Pty Ltd (Administrator Appointed) (1994) 12 ACSR 707 ( Bartlett ), Re Coaleen Pty Ltd (Administrator Appointed) (1999) 30 ACSR 200 ( Coaleen ), Re Martco Engineering Pty Ltd (Administrator Appointed); Deputy Commissioner of Taxation v Martco Engineering Pty Ltd (1999) 32 ACSR 487 , Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (2001) 37 ACSR 394 ( Cresvale ), Young v Sherman [2002] NSWCA 281 ; (2002) 170 FLR 86 , and Blue Ring Pty Ltd v Landshore Pty Ltd (Subject to a Deed of Company Arrangement) [2006] WASC 245 ( Blue Ring ).
Case: Young v Sherman [2002] NSWCA 281 ; (2002) 170 FLR 86
Outcome: referred to
question of the considerations that are relevant to a company administrator's exercise of a casting vote under reg 5.6.21 and of applications under s 600B to set aside a resolution passed on the casting vote has been considered in Re Bartlett Researched Securities Pty Ltd (Administrator Appointed) (1994) 12 ACSR 707 ( Bartlett ), Re Coaleen Pty Ltd (Administrator Appointed) (1999) 30 ACSR 200 ( Coaleen ), Re Martco Engineering Pty Ltd (Administrator Appointed); Deputy Commissioner of Taxation v Martco Engineering Pty Ltd (1999) 32 ACSR 487 , Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (2001) 37 ACSR 394 ( Cresvale ), Young v Sherman [2002] NSWCA 281 ; (2002) 170 FLR 86 , and Blue Ring Pty Ltd v Landshore Pty Ltd (Subject to a Deed of Company Arrangement) [2006] WASC 245 ( Blue Ring ). These authorities show that: (1) Good faith alone will not necessarily shield the resolution from a setting aside (or variation) under s 600B ( Cresvale 37 ACSR 394 at [111]); (2) A factor that may justify setting aside the resolution is a statement in or omission from the administrator's report under s 439A that is apt to have misled creditors when they cast their deliberative vote ( Blue Ring [2006] WASC 245) ; (3) Inadequacy and superficiality of an administrator's investigation of the company's business, property, affairs and financial circumstances, at least as disclosed by the evidence before the Court, may warrant a setting aside of the resolution ( Bartlett 12 ACSR 707 ; Cresvale 37 ACSR 394 at [113]); (4) There is no presumption in favour of the majority in value, although any large disproportion between the values of the debts of the numerical minority and the numerical majority will be a factor to be taken into account ( Coaleen 30 ACSR 200 ; Cresvale 37 ACSR 394 at [115]); and (5) Payment of a premium to the creditors who supported the DOCA but not to a dissident creditor will justify a setting aside by the court ( Young v Sherman [2002] NSWCA 281 ; 170 FLR 86).
Case: Lindon v Stanton (Supreme Court of Western Australia (Adams M), 27 November 1992, BC9200887)
Outcome: referred to
The respondents further submitted that a consent order giving effect to a settlement could only be set aside on grounds that would justify setting aside the contractual agreement on which the settlement was based. In support of this proposition, they referred to Lindon v Stanton (Supreme Court of Western Australia (Adams M), 27 November 1992, BC9200887). 17 The respondents also argued that the applicants received no support from O 35 r 7(4) and nor could they avail themselves of the Court's inherent jurisdiction. They contended that O 35 r 7(4) conferred power to make orders that were truly supplemental and did not confer power to vary or alter the initial order. 18 Ultimately, so the respondent said, the applicants made a decision not to pay before the end of January. This decision was based on the applicants' view that it was not in their interest to pay the money at that time. The respondents submitted that they should not be penalized for the applicants' error. The respondents noted that they would be prejudiced by any variation of the kind sought in the orders of 10 October 2006 because the vehicles were likely to be worth more than $33,000.
Case: Nicholson v Nicholson [1974] 2 NSWLR 59
Outcome: referred to
At the hearing, the respondents contended that O 35 r 7(2)(c) did not provide a basis for the orders sought. They submitted that paragraphs 1, 2 and 2A of the orders of 10 October 2005 were final rather than interlocutory. They noted that the orders finally disposed of the subject matter of the 24 March 2004 application. They cited Nicholson v Nicholson [1974] 2 NSWLR 59 in support of the proposition that reservation of liberty to apply, in the context of such orders, is simply a device by which further orders may be made when necessary for the purpose of implementing and giving effect to the principal relief already propounded. The respondents submitted that the reservation of liberty to apply in a final judgment or order did not permit the making of orders materially varying the substance of the order. 15 The respondents submitted that the orders made in paragraphs 1, 2 and 2A of the 10 October 2006 orders were final and unconditional, like the settlement agreement underlying them. Crucially, there was no condition that the settlement was dependent on the outcome of the defendants' application to set aside the warrant. In these circumstances, there was no reason to believe that the delay in payment that the applicants sought was consistent with the orders or the settlement. 22 Moreover, it is settled law that orders may be final even though the Court reserves liberty to apply: see, e.g., Abigroup Limited v Abignano (1992) 39 FCR 74 at 87-88 per Lockhart, Morling and Gummow JJ; Comcare v Grimes (1994) 50 FCR 60 at 61-62 per Wilcox J; Maritime Union of Australia v Geraldton Port Authority (No 3) (2001) 106 IR 119 at 122-125 per Nicholson J; and Nicholson v Nicholson [1974] 2 NSWLR 59 at 63 per Jenkyn J. These cases reveal that liberty to apply does not render a final order any less final: see further Neil J Williams, Civil Procedure at [I 59.01.20] and the cases cited therein.
Case: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423
Outcome: referred to
An order is final if it "it finally determine[s] the rights of the parties in a principal cause pending between them": Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 443 per Windeyer J; see also the discussion in SZGAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1785 at [32] - [34] per Lindgren J. There is no question that the orders of 10 October 2005 finally determined the rights of the parties with respect to the liquidator's application to dispose of the vehicles.
Case: SZGAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1785
Outcome: referred to
An order is final if it "it finally determine[s] the rights of the parties in a principal cause pending between them": Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 443 per Windeyer J; see also the discussion in SZGAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1785 at [32] - [34] per Lindgren J. There is no question that the orders of 10 October 2005 finally determined the rights of the parties with respect to the liquidator's application to dispose of the vehicles.
Case: Abigroup Limited v Abignano (1992) 39 FCR 74
Outcome: referred to
Moreover, it is settled law that orders may be final even though the Court reserves liberty to apply: see, e.g., Abigroup Limited v Abignano (1992) 39 FCR 74 at 87-88 per Lockhart, Morling and Gummow JJ; Comcare v Grimes (1994) 50 FCR 60 at 61-62 per Wilcox J; Maritime Union of Australia v Geraldton Port Authority (No 3) (2001) 106 IR 119 at 122-125 per Nicholson J; and Nicholson v Nicholson [1974] 2 NSWLR 59 at 63 per Jenkyn J. These cases reveal that liberty to apply does not render a final order any less final: see further Neil J Williams, Civil Procedure at [I 59.01.20] and the cases cited therein.
Case: Comcare v Grimes (1994) 50 FCR 60
Outcome: referred to
Moreover, it is settled law that orders may be final even though the Court reserves liberty to apply: see, e.g., Abigroup Limited v Abignano (1992) 39 FCR 74 at 87-88 per Lockhart, Morling and Gummow JJ; Comcare v Grimes (1994) 50 FCR 60 at 61-62 per Wilcox J; Maritime Union of Australia v Geraldton Port Authority (No 3) (2001) 106 IR 119 at 122-125 per Nicholson J; and Nicholson v Nicholson [1974] 2 NSWLR 59 at 63 per Jenkyn J. These cases reveal that liberty to apply does not render a final order any less final: see further Neil J Williams, Civil Procedure at [I 59.01.20] and the cases cited therein.
Case: Maritime Union of Australia v Geraldton Port Authority (No 3) (2001) 106 IR 119
Outcome: referred to
Moreover, it is settled law that orders may be final even though the Court reserves liberty to apply: see, e.g., Abigroup Limited v Abignano (1992) 39 FCR 74 at 87-88 per Lockhart, Morling and Gummow JJ; Comcare v Grimes (1994) 50 FCR 60 at 61-62 per Wilcox J; Maritime Union of Australia v Geraldton Port Authority (No 3) (2001) 106 IR 119 at 122-125 per Nicholson J; and Nicholson v Nicholson [1974] 2 NSWLR 59 at 63 per Jenkyn J. These cases reveal that liberty to apply does not render a final order any less final: see further Neil J Williams, Civil Procedure at [I 59.01.20] and the cases cited therein.
Case: Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253
Outcome: referred to
The orders in paragraphs 2 and 2A of the orders of 10 October 2005 were final orders with respect to the application of 24 March 2004. Thus, the Court has no power to vary these orders pursuant to O 35 r 7(2). Further, the Court has no power under O 35 r 7(4) to make the orders the applicant seeks. As a Full Court said in Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253 at 264 per Lee, Hill and Cooper JJ, regarding O 35 r 7(4), "[c]ritical to the jurisdiction of the court is first that the application not be one in any way to vary or alter the initial order". The applicants seek orders to vary the orders in paragraphs 2 and 2A of the 10 October 2006 orders; and O 35 r 7(4) does not give power to do this. In the face of Full Court authority, the earlier decision in Westsub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310 is either to be distinguished or is no longer good authority.
Case: Dudzinski v Centrelink [2003] FCA 308
Outcome: referred to
I would reach the same result even if the relevant orders were interlocutory. It is well established that the discretion conferred by O 35 r 7(2) should be used only in exceptional circumstances: Dudzinski v Centrelink [2003] FCA 308 at [11] per Spender J. The principle of finality of litigation requires courts to exercise great caution when considering whether exceptional circumstances exist warranting the variation of orders: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-552 per von Doussa, Moore and Sackville JJ. In this case, the circumstances do not support varying the orders.
Case: Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543
Outcome: referred to
I would reach the same result even if the relevant orders were interlocutory. It is well established that the discretion conferred by O 35 r 7(2) should be used only in exceptional circumstances: Dudzinski v Centrelink [2003] FCA 308 at [11] per Spender J. The principle of finality of litigation requires courts to exercise great caution when considering whether exceptional circumstances exist warranting the variation of orders: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-552 per von Doussa, Moore and Sackville JJ. In this case, the circumstances do not support varying the orders.
Case: Australian Competition and Consumer Commission (ACCC) v IPM Operation &amp; Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162
Outcome: cited
I am satisfied that the proposed orders are appropriate, bearing in mind the general principles laid down in Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 , (2004) ATPR 41-993, it referring with approval to NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285. I will not set out all of the authorities referred to by counsel. Particular reference is made to the decisions of Young J in Australian Competition and Consumer Commission (ACCC) v IPM Operation &amp; Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162, the decision of Tracey J on a separate penalty matter in Australian Competition and Consumer Commission (ACCC) v IPM Operation &amp; Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 , (2007) ATPR 42-151; and of the Full Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing &amp; Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC) [2007] FCAFC 132.
Case: Australian Competition and Consumer Commission (ACCC) v IPM Operation &amp; Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 , (2007) ATPR 42-151
Outcome: cited
I am satisfied that the proposed orders are appropriate, bearing in mind the general principles laid down in Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 , (2004) ATPR 41-993, it referring with approval to NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285. I will not set out all of the authorities referred to by counsel. Particular reference is made to the decisions of Young J in Australian Competition and Consumer Commission (ACCC) v IPM Operation &amp; Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162, the decision of Tracey J on a separate penalty matter in Australian Competition and Consumer Commission (ACCC) v IPM Operation &amp; Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 , (2007) ATPR 42-151; and of the Full Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing &amp; Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC) [2007] FCAFC 132.
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing &amp; Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC) [2007] FCAFC 132
Outcome: cited
I am satisfied that the proposed orders are appropriate, bearing in mind the general principles laid down in Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 , (2004) ATPR 41-993, it referring with approval to NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285. I will not set out all of the authorities referred to by counsel. Particular reference is made to the decisions of Young J in Australian Competition and Consumer Commission (ACCC) v IPM Operation &amp; Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162, the decision of Tracey J on a separate penalty matter in Australian Competition and Consumer Commission (ACCC) v IPM Operation &amp; Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 , (2007) ATPR 42-151; and of the Full Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing &amp; Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC) [2007] FCAFC 132.
Case: Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 , (2004) ATPR 41-993
Outcome: followed
I am satisfied that the proposed orders are appropriate, bearing in mind the general principles laid down in Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 , (2004) ATPR 41-993, it referring with approval to NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285. I will not set out all of the authorities referred to by counsel. Particular reference is made to the decisions of Young J in Australian Competition and Consumer Commission (ACCC) v IPM Operation &amp; Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162, the decision of Tracey J on a separate penalty matter in Australian Competition and Consumer Commission (ACCC) v IPM Operation &amp; Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 , (2007) ATPR 42-151; and of the Full Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing &amp; Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC) [2007] FCAFC 132.
Case: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Outcome: followed
I am satisfied that the proposed orders are appropriate, bearing in mind the general principles laid down in Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 , (2004) ATPR 41-993, it referring with approval to NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285. I will not set out all of the authorities referred to by counsel. Particular reference is made to the decisions of Young J in Australian Competition and Consumer Commission (ACCC) v IPM Operation &amp; Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162, the decision of Tracey J on a separate penalty matter in Australian Competition and Consumer Commission (ACCC) v IPM Operation &amp; Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 , (2007) ATPR 42-151; and of the Full Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing &amp; Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC) [2007] FCAFC 132.
Case: Fernando v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 324 ; (2000) 97 FCR 407
Outcome: cited
The learned Federal Magistrate, at paras 17 through to and including 22 of the reasons for judgment, canvasses the relevant statutory provisions as they impact on the circumstances of this case. The Magistrate noted correctly, with respect, that the effect of this Court's decision in the Fernando v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 324 ; (2000) 97 FCR 407 is that the Tribunal has no jurisdiction to enlarge the time within which an application for review can be made. 7 So much would seem inevitably to follow from the absence of any conferral of such power by the Migration Act 1958 . The Tribunal is a statutory tribunal and possesses no greater jurisdiction than that which Parliament has chosen to confer upon it. Section 412 of the Migration Act 1958 lays down a period within which an application to the Tribunal can be brought. If an application is brought outside that period, then the Tribunal has no ability to extend time, whatever may be the merits either in law or in fact, of the challenge that is sought to be made to the decision of the Minister or his delegate. 8 As was, with respect, correctly highlighted in the submissions made before me on behalf of the Minister, that does not mean that the decision of the Minister or his delegate is completely immune from challenge. The High Court has jurisdiction under s 75(v) of the Constitution to grant a constitutional writ in respect of any legal error made by the Minister or his delegate. What is undoubtedly lost, though, by a failure to institute a proceeding within the time prescribed by s 412 of the Migration Act 1958 , is an ability to have the decision of the Minister or his delegate, in respect of the protection visa application, reviewed on the factual merits.