mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Rivkin Financial Services Ltd v Sofcom Ltd (2004) 51 ACSR 486
Outcome: cited
accept however that evidence of the actual effect of the information actually disclosed on FMG's share price may be relevant to assist the Court in its determination of whether s 674(2) has been contravened: Rivkin Financial Services Ltd v Sofcom Ltd (2004) 51 ACSR 486 by analogy at [113]-[116]; Jubilee Mines NL v Riley (2009) 253 ALR 673 at [33], [130] and [134]. This involves an ex post inquiry . Such evidence may constitute a relevant cross-check as to the reasonableness of an ex ante judgment about a different hypothetical disclosure. Gzell J in ASIC v Macdonald (No 11) 256 ALR at [1067] said: Where likelihood of the occurrence of an event is in issue and relevant facts are available, they are to be preferred to prophecies.
Case: S &amp; I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd [1999] FCA 316 ; (1998) 88 FCR 354
Outcome: cited
where there is a finding of intention to deceive, the court may more readily infer that the intention has been or in all probability will be effective: Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 at 861; S &amp; I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd [1999] FCA 316 ; (1998) 88 FCR 354 at 362; Campomar Sociedad [2000] HCA 12 ; 202 CLR 45 at [33] and National Exchange [2004] FCAFC 90 ; 22 ACLC 609 at [63] per Jacobson and Bennett JJ.
Case: Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596
Outcome: cited
use of such expressions supports a finding of an intention to contract. In Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd 40 NSWLR 622 , McLelland J, in finding that by an exchange of letters the parties to an alleged agreement mutually communicated their respective assents to be legally bound by terms capable of having contractual effect, afforded the expression "legally binding" primacy despite the expression "agreement in principle" also found in the relevant agreement (628). His Honour thought that the case fell into the fourth category as recognised in Sinclair, Scott &amp; Co [1929] HCA 34 ; 43 CLR 310 (629F) . The appeal from McLelland J's judgment G R Securities v Baulkham Hills Private Hospital 40 NSWLR 631 was dismissed. McHugh JA accepted in line with Sinclair, Scott &amp; Co [1929] HCA 34 ; 43 CLR 310 , that it was possible for the parties to be bound immediately and agree to substitute for the first contract a further contract containing additional terms (634G). Further, McHugh JA applied the general rule applicable to every contract explained by Mason J in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 at 607 that each party was obliged to do all that was necessary on his part to enable the other party to have the benefit of the contract.
Case: Sinclair, Scott &amp; Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310
Outcome: considered
courts have also recognised a fourth class of case additional to the three mentioned in Masters v Cameron [1954] HCA 72 ; 91 CLR 353 , a class identified by Knox CJ, Rich J and Dixon J in Sinclair, Scott &amp; Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 317 as: ... one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms. The use of such expressions supports a finding of an intention to contract. In Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd 40 NSWLR 622 , McLelland J, in finding that by an exchange of letters the parties to an alleged agreement mutually communicated their respective assents to be legally bound by terms capable of having contractual effect, afforded the expression "legally binding" primacy despite the expression "agreement in principle" also found in the relevant agreement (628). His Honour thought that the case fell into the fourth category as recognised in Sinclair, Scott &amp; Co [1929] HCA 34 ; 43 CLR 310 (629F) . The appeal from McLelland J's judgment G R Securities v Baulkham Hills Private Hospital 40 NSWLR 631 was dismissed. McHugh JA accepted in line with Sinclair, Scott &amp; Co [1929] HCA 34 ; 43 CLR 310 , that it was possible for the parties to be bound immediately and agree to substitute for the first contract a further contract containing additional terms (634G). Further, McHugh JA applied the general rule applicable to every contract explained by Mason J in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 at 607 that each party was obliged to do all that was necessary on his part to enable the other party to have the benefit of the contract.
Case: Southern Cross Financial Group (Newcastle) Pty Ltd v Rodrigues (2005) 66 IPR 166
Outcome: distinguished
will now turn to the cases cited by ASIC in support of its submission that the framework agreements were unenforceable because they were uncertain due to a lack of essential terms such as price: Hall v Busst 104 CLR 207; Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd (1994) 2 VR 106 at 168-177 per Tadgell J; Faulkner v Thomas [2000] TASSC 159 at [34] ; and Southern Cross Financial Group (Newcastle) Pty Ltd v Rodrigues (2005) 66 IPR 166 at [36], [44]. In Southern Cross Financial Group 66 IPR 166 , Young CJ in Eq stated at [36] that in a contract for the sale of any article there are at least three basic requirements: precise identification of the parties to the contract; the property to be sold; and the price at which it is to be sold. In connection with the price requirement, his Honour referred to the analysis of Fullagar J in Hall v Busst 104 CLR at 222, and stated at [44] that this analysis made it quite clear that with "very, very, very few" exceptions, a contract to sell property at fair value is not binding and is incomplete. The exceptions included 'an industry which has a measure of what a fair value is or there is some other criteria'. I would add that Fullagar J stated at 222 that it would be sufficient if the sale was expressed to be for a price or value to be fixed by a named or described person. The CREC Framework Agreement did not simply state that the infrastructure items would be transferred at fair value or in like terms. Rather, the agreement expressly provided a pricing mechanism. Further, Southern Cross Financial Group 66 IPR 166 is distinguishable from the present matter because Young CJ found that the case was one where the parties intended there not to be a concluded contract unless and until a formal document had been executed .
Case: Thorby v Goldberg [1964] HCA 41 ; (1964) 112 CLR 597
Outcome: cited
submits in written closing submission that the authorities such as Anaconda, Pagnan SpA, Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 and Uranium Equities v Fewster [2008] WASCA 33 ; (2008) 36 WAR 97 relied on by FMG state that whether or not the parties intended to contract, they must agree on such terms, normally described as essential terms, such that the contract could be enforced or made complete by implying terms or applying considerations of reasonableness. I will consider these authorities further. In Anaconda [2000] WASCA 27 ; 22 WAR 101 , the Court of Appeal found that a binding contract had been made when a heads of agreement containing five clauses was signed, the last paragraph of which said that the heads of agreement "constituted an agreement in itself intended to be replaced by a fuller agreement not different in substance or form". At [28], Ipp J referred to the following statement by Sugerman J, approved by Menzies J in Thorby v Goldberg [1964] HCA 41 ; (1964) 112 CLR 597 at 607: It is a first principle of the law of contracts that there can be no binding and enforceable obligation unless the terms of the bargain, or at least its essential and critical terms, have been agreed upon. So, there is no concluded contract where an essential or critical term is expressly left to be settled by future agreement of the parties. Again, there is no binding contract where the language used is so obscure and incapable of any precise or definite meaning that the court is unable to attribute to the parties any particular contractual intentions. In Uranium Equities [2008] WASCA 33 ; 36 WAR 97 , a recent judgment of the Supreme Court of Western Australia (Court of Appeal), the Court stated at [127]: There is some overlap between the requirements of intention to create legal relations and certainty. If a contract is legally uncertain, this might indicate that the parties did not intend to create legal relations. A contract can be uncertain in various ways, one of these being incompleteness, in the sense that essential terms are lacking: Thorby v Goldberg [1964] HCA 41 ; (1964) 112 CLR 597 , 603 (Kitto J); Godecke v Kirwan [1973] HCA 38 ; (1973) 129 CLR 629 , 646 - 647 (Gibbs J). The overlap between intention and uncertainty is at its greatest in cases in which agreement on some matters is deliberately postponed. If what is postponed is essential to the agreement (itself a question that largely depends upon the intention of the parties) , the agreement, to the extent that it has been reached, will be void. Also, the fact that essential terms have been left over for later agreement will militate against a finding that the parties intended to create contractual relations. (Emphasis added)
Case: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: cited
makes the following submission which I accept as a correct statement of the law. The proper construction of an agreement should be determined by what reasonable people in the position of the parties would have understood by the relevant clauses by considering not only their text, but also the surrounding circumstances and the purpose and object of the transaction: e.g. Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at [40] ; International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 234 CLR 151 at [8] and [53]. The whole of the document should be considered and its provisions given harmonious effect: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99 at 109 (Gibbs J, in dissent, but not on the applicable principle).
Case: Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd (1994) 2 VR 106
Outcome: distinguished
will now turn to the cases cited by ASIC in support of its submission that the framework agreements were unenforceable because they were uncertain due to a lack of essential terms such as price: Hall v Busst 104 CLR 207; Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd (1994) 2 VR 106 at 168-177 per Tadgell J; Faulkner v Thomas [2000] TASSC 159 at [34] ; and Southern Cross Financial Group (Newcastle) Pty Ltd v Rodrigues (2005) 66 IPR 166 at [36], [44]. Toyota Motor Corporation 2 VR 106, a judgment of the Appeal Division of the Supreme Court of Victoria concerned the enforceability of a purported agreement set out in a letter for two Toyota companies to rescue a motor vehicle dealer group of companies that was in financial trouble. The purported agreement contained 12 conditions relating to the rescue offer. Brooking J referred to many examples in the purported agreement of ambiguity, uncertainty and incompleteness. Tadgell J held that the Toyota companies did not send the letter to the dealer group as an offer, and accordingly, they could not have assented to it as embodying the terms of a contract. Furthermore, as Brooking J stated at 132: Each case is different. A relatively short letter may be held to record a binding agreement in a matter of great consequence and considerable complexity, in which numerous formal documents will have to be prepared and executed to give effect to the transaction, as in Custom Credit Corporation Ltd v Cenepro Pty Ltd (unreported, Court of Appeal of New South Wales, 7 August 1991). I respectfully agree with Brooking J. The brevity of the framework agreements does not of itself point to those agreements as lacking legal effect in circumstances where the agreements expressly referred to the preparation of fuller and more detailed agreements not different in intent. Toyota Motor Corporation 2 VR 106, does not assist ASIC. Each member of the court in Toyota Motor Corporation 2 VR 106, concluded that there was no contractual intention evident: Brooking J at 136; Tadgell J at 177; JD Phillips J at 201. This, of itself, distinguishes this decision from the present case. It is correct that no price was specified in the CREC Framework Agreement, but it is explicit as to the pricing mechanism that was agreed to apply: FMG had to make a down payment of only 10% of the value of the Works in exchange for a bank guarantee from CREC, which bank guarantee was to be returned when 10% of the Works had been completed; and thereafter FMG's obligations of payment were to arise progressively after practical completion. This was an agreement on the pricing mechanism, which meant that FMG was not required to raise capital before the Works were effected, save for the first 10% of the value. It was not an agreement to agree but arguably rather an agreement as to what would be in the general conditions.
Case: Trade Practices Commission v Abbco Ice Works Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96
Outcome: cited
seeks to draw Jones v Dunkel inferences against FMG by reason of the failure of Forrest and the other executives to give evidence. ASIC does not seek to draw the inferences against Forrest himself. Forrest has relied on the privilege against self-incrimination and the privilege against exposure to penalty, privileges which are are not available to corporations: Trade Practices Commission v Abbco Ice Works Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96. However, even if ASIC had sought to draw inferences against Forrest as well as the corporate entity, on my review of the authorities it would not have been precluded from doing so. There is no reason therefore, in these circumstances, why the inferences cannot, as a matter of law, be drawn against FMG in the present proceedings. The question which then arises is whether I should draw such an inference in the manner urged by ASIC
Case: Vines v Australian Securities and Investments Commission [2007] NSWCA 75 ; (2007) 62 ACSR 1
Outcome: considered
J noted that in Vines v ASIC [2007] NSWCA 75 ; (2007) 62 ACSR 1 at [62] Spigelman CJ stated that the rule in Browne v Dunn is a rule of practice designed to achieve procedural fairness, and therefore, when it is claimed that the rule has been departed from and that consequences should follow, the first consideration to be considered by the court is whether there has been some procedural fairness that needs to be addressed. That requires the assessment of "matters of fact and degree". Forrest then submits that the mere fact that a director participates in conduct that carries with it a foreseeable risk of harm to a company's interest does not necessarily mean that the director failed to exercise a reasonable degree of care and diligence in the discharge of his duty: Vrisakis v Australian Securities Commission (1993) 9 WAR 395 per Ipp J at 449-450; Vines v Australian Securities and Investments Commission [2007] NSWCA 75 ; (2007) 62 ACSR 1 per Santow J at [598] and [599]. Conclusion
Case: Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Outcome: cited
then submits that the mere fact that a director participates in conduct that carries with it a foreseeable risk of harm to a company's interest does not necessarily mean that the director failed to exercise a reasonable degree of care and diligence in the discharge of his duty: Vrisakis v Australian Securities Commission (1993) 9 WAR 395 per Ipp J at 449-450; Vines v Australian Securities and Investments Commission [2007] NSWCA 75 ; (2007) 62 ACSR 1 per Santow J at [598] and [599]. Conclusion
Case: Walford v Miles [1992] 2 AC 128
Outcome: considered
relies upon the following authorities in support of its submission that the framework agreements are bare agreements to negotiate the scope and terms, in each case, of a further agreement to build transfer and finance the relevant Project infrastructure and that such agreements are not enforceable: Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 ; Jobern Pty Ltd v Breakfree Resorts (Victoria) Pty Ltd [2007] FCA 1066 ; Walford v Miles [1992] 2 AC 128. Walford v Miles [1992] 2 AC 128 was an appeal to the House of Lords. The parties had been negotiating over the sale of a business. Their Lordships considered the validity of a 'lock-out' agreement, an agreement committing the seller not to negotiate with anyone other than the buyer over the sale of the business. The plaintiffs, the disappointed buyers, claimed that not only were the sellers "locked-out" for some unspecified time from dealing with any third party, but were "locked-in" to dealing with the plaintiffs for an unspecified period. The court considered the "lock-in" agreement in terms of an obligation on the parties to negotiate in good faith. Lord Ackner (with whom all the other Law Lords agreed) stated that an agreement to negotiate, like an agreement to agree, is unenforceable, because it lacks the necessary certainty. Lord Ackner said at [138G]: A duty to negotiate in good faith is as unworkable in practice as it is inherently inconsistent with the position of a negotiating party. It is here that the uncertainty lies. In my judgment, while negotiations are in existence either party is entitled to withdraw from these negotiations, at any time and for any reason. There can be thus no obligation to continue to negotiate until there is a 'proper reason' to withdraw. Accordingly a bare agreement to negotiate has no legal content. In my view Coal Cliff Collieries 24 NSWLR 1, Jobern [2007] FCA 1066 and Walford [1992] 2 AC 128 do not assist ASIC. I do not take Coal Cliff Collieries as authority for the proposition that a bare agreement to negotiate in good faith is not enforceable, as submitted by ASIC. In my view, that case is authority for the proposition that a promise to negotiate in good faith may, in particular circumstances, be enforceable, depending on the precise terms as construed from the contract. In Jobern [2007] FCA 1066 , it was not in dispute that the heads of agreement document was binding only the negotiation clause was held to be uncertain. In Walford [1992] 2 AC 128 , the agreement that was found to be uncertain was a 'lock-in' agreement committing the parties to negotiate with each other, which is to be distinguished from the types of obligations found in the framework agreements under consideration in the present case.
Case: Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217
Outcome: considered
Azzopardi [2001] HCA 25 ; 205 CLR 50 , in their joint majority judgment Gaudron, Gummow, Kirby and Hayne JJ referred to Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 where the High Court held it was appropriate for the trial judge to direct the jury as to the manner in which they might take into account the failure of the accused to give evidence, and their Honours stated at [61] that what was important in Weissensteiner and what warranted the remarks to the jury in that case was that, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused, and thus could not be the subject of evidence from any other person or source. At [68], their Honours emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional and will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. Their Honours said a comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. In RPS [2000] HCA 3 ; 199 CLR 620 , at [26]-[27] Gaudron A-CJ, Gummow, Kirby and Hayne JJ contrasted the reasonable expectation that a party in a civil trial would give or call relevant evidence in the circumstances described in Jones v Dunkel with the conclusion that it would seldom, if ever, be reasonable to expect an accused in a criminal trial to give evidence. Weissensteiner provides an example of where the latter would be reasonable. Further authority for the availability of the rule in Jones v Dunkel in civil penalty proceedings is found in Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442 , where Hill J stated at [33]: Where the proceedings are criminal (and the present proceedings are not; they are proceedings, inter alia, for the recovery of a civil penalty) it might be thought that the failure of the accused to go into evidence should not lead to the drawing of Jones v Dunkel inferences. After all it is clear that a witness can not be compelled to give evidence which is likely to incriminate the witness or expose the witness to a penalty. However, even in criminal cases it has been held that the failure of the accused, who is in a position to deny, explain or answer the evidence adduced by the prosecution, to give evidence will permit the jury to draw inferences adverse to the accused more readily: see Azzopardi v R [2001] HCA 25 ; (2001) 179 ALR 349 , affirming Weissensteiner v R [1993] HCA 65 ; (1993) 178 CLR 217. A fortiori, therefore, the failure of a respondent to proceedings for recovery of a pecuniary penalty to give evidence on a matter relevant to an issue in the proceeding and deny, explain or answer the evidence adduced against the respondent will permit the Court more readily to draw the inferences to which the decision in Jones v Dunkel refers.
Case: Wheeler Grace &amp; PierucciPty Ltd v Wright (1989) 16 IPR 189
Outcome: cited
reasonable reader of the disclosures made by FMG and Forrest on FMG's behalf would have expected FMG to have a genuine and reasonable basis for making those statements: Global Sportsman v Mirror Newspapers [1984] FCA 180 ; 2 FCR 82 at 88; James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 372 per Toohey J; Wright v Wheeler Grace &amp; Pierucci Pty Ltd (1988) ATPR 40-865 at 49,375-49,376 per French J (affirmed in Wheeler Grace &amp; Pierucci Pty Ltd v Wright (1989) 16 IPR 189) ; Bateman v Slayter (1987) 71 ALR 553 at 559 per Burchett J.
Case: Wilkinson v Feldworth Financial Services Pty Ltd (1999) 17 ACLC 220
Outcome: referred to
authorities dealing with misleading and deceptive conduct under s 52 of the TPA are useful when characterising conduct for the purposes of s 1041H. As Rolfe J observed in Wilkinson v Feldworth Financial Services Pty Ltd (1999) 17 ACLC 220 at 228 in relation to s 995 of the Corporations Law: ... the engaging in conduct that is misleading or deceptive or is likely to mislead or deceive has the same meaning as, and should be treated in the same way as, those words in s 52 of the Trade Practices Act from which they have obviously been taken.