mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Skinner v Jeogla Pty Ltd (2001) 37 ACSR 106
Outcome: discussed
in Skinner v Jeogla Pty Ltd (2001) 37 ACSR 106, which arose out of an application to the court for leave to proceed against a company in liquidation brought under s 471B of the Corporations Law , the New South Wales Court of Appeal doubted the correctness of Humber . It noted that the language of s 471B differed significantly from that of the provision under consideration in Humber . Spigelman CJ observed (at [16]) that Lord Davey's reasoning was "redolent of the language of waiver". He concluded that there were two points of distinction between Humber and the case before the Court of Appeal. The more important of these was that in 1901, when Humber was decided, the position was that leave to proceed against a company in liquidation had to be obtained from the court that had made the winding up order, and not the appellate court. The practice under the 1862 Act was said to have been set out by Jessell MR in Re International Pulp and Paper Co (1876) 3 Ch D 594. Given the jurisdictional limits upon the statutory power that then existed, Spigelman CJ considered it hardly surprising that the word "proceedings" would be read down so as not to encompass an appeal. Ipp AJA agreed with Spigelman CJ that BPM was readily distinguishable. In his Honour's view an appeal was a "proceeding" within s 471B whereas an application for security for costs was not. In addition, the application for security for costs in BPM was regarded as a "defensive proceeding" and it was "open to argument" that the appeal in Skinner could not be so categorised. Ultimately, in Skinner , the Court of Appeal did not find it necessary to determine whether, in the context of an appeal, leave to proceed was required. That was because the appellant in that case was prepared to proceed upon the assumption that such leave was necessary. In the event, leave was refused. In the present case, Mr Cawthorn, who appeared on behalf of the appellants, submitted that if leave to proceed were required, it should be granted.
Case: Gregory v Federal Commissioner of Taxation [1971] HCA 2 ; (1971) 123 CLR 547
Outcome: cited
The defendants submit that "if a measure of value is the amount that a person is willing to pay for something, then the offer documents themselves are key components in assessing the value of the Cambridge debentures". I do not accept that the amount one offeror is willing to pay for a debenture is, by itself, a proper measure of the value of that debenture. Rather, the value of a debenture would be its exchange value or the price that it would bring when exposed to competition. (I put to one side the situation, that sometimes arises, where it is necessary to value an item that is not marketable). The cases say that value is to be determined by reference to the amount that an hypothetical ordinary purchaser who is willing but not anxious to buy would be prepared to pay for the debenture, and an hypothetical ordinary seller who is also willing but not anxious to sell would be prepared to accept for it, assuming both parties were fully informed and had regard to all the circumstances which might affect value: see Spencer v Commonwealth [1907] HCA 70 ; (1907) 5 CLR 418, 432 and 440-441; Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494, 514; Holt v Cox (1994) 15 ACSR 313, 333-334; Gregory v Federal Commissioner of Taxation [1971] HCA 2 ; (1971) 123 CLR 547. Where there is a regular market for a product, the market price should reflect the exchange value of a product. Where, as here, there is no regular market for a product, it is necessary to estimate the (exchange) value.
Case: Holt v Cox (1994) 15 ACSR 313
Outcome: cited
The defendants submit that "if a measure of value is the amount that a person is willing to pay for something, then the offer documents themselves are key components in assessing the value of the Cambridge debentures". I do not accept that the amount one offeror is willing to pay for a debenture is, by itself, a proper measure of the value of that debenture. Rather, the value of a debenture would be its exchange value or the price that it would bring when exposed to competition. (I put to one side the situation, that sometimes arises, where it is necessary to value an item that is not marketable). The cases say that value is to be determined by reference to the amount that an hypothetical ordinary purchaser who is willing but not anxious to buy would be prepared to pay for the debenture, and an hypothetical ordinary seller who is also willing but not anxious to sell would be prepared to accept for it, assuming both parties were fully informed and had regard to all the circumstances which might affect value: see Spencer v Commonwealth [1907] HCA 70 ; (1907) 5 CLR 418, 432 and 440-441; Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494, 514; Holt v Cox (1994) 15 ACSR 313, 333-334; Gregory v Federal Commissioner of Taxation [1971] HCA 2 ; (1971) 123 CLR 547. Where there is a regular market for a product, the market price should reflect the exchange value of a product. Where, as here, there is no regular market for a product, it is necessary to estimate the (exchange) value.
Case: Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494
Outcome: cited
The defendants submit that "if a measure of value is the amount that a person is willing to pay for something, then the offer documents themselves are key components in assessing the value of the Cambridge debentures". I do not accept that the amount one offeror is willing to pay for a debenture is, by itself, a proper measure of the value of that debenture. Rather, the value of a debenture would be its exchange value or the price that it would bring when exposed to competition. (I put to one side the situation, that sometimes arises, where it is necessary to value an item that is not marketable). The cases say that value is to be determined by reference to the amount that an hypothetical ordinary purchaser who is willing but not anxious to buy would be prepared to pay for the debenture, and an hypothetical ordinary seller who is also willing but not anxious to sell would be prepared to accept for it, assuming both parties were fully informed and had regard to all the circumstances which might affect value: see Spencer v Commonwealth [1907] HCA 70 ; (1907) 5 CLR 418, 432 and 440-441; Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494, 514; Holt v Cox (1994) 15 ACSR 313, 333-334; Gregory v Federal Commissioner of Taxation [1971] HCA 2 ; (1971) 123 CLR 547. Where there is a regular market for a product, the market price should reflect the exchange value of a product. Where, as here, there is no regular market for a product, it is necessary to estimate the (exchange) value.
Case: Spencer v Commonwealth [1907] HCA 70 ; (1907) 5 CLR 418
Outcome: cited
The defendants submit that "if a measure of value is the amount that a person is willing to pay for something, then the offer documents themselves are key components in assessing the value of the Cambridge debentures". I do not accept that the amount one offeror is willing to pay for a debenture is, by itself, a proper measure of the value of that debenture. Rather, the value of a debenture would be its exchange value or the price that it would bring when exposed to competition. (I put to one side the situation, that sometimes arises, where it is necessary to value an item that is not marketable). The cases say that value is to be determined by reference to the amount that an hypothetical ordinary purchaser who is willing but not anxious to buy would be prepared to pay for the debenture, and an hypothetical ordinary seller who is also willing but not anxious to sell would be prepared to accept for it, assuming both parties were fully informed and had regard to all the circumstances which might affect value: see Spencer v Commonwealth [1907] HCA 70 ; (1907) 5 CLR 418, 432 and 440-441; Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494, 514; Holt v Cox (1994) 15 ACSR 313, 333-334; Gregory v Federal Commissioner of Taxation [1971] HCA 2 ; (1971) 123 CLR 547. Where there is a regular market for a product, the market price should reflect the exchange value of a product. Where, as here, there is no regular market for a product, it is necessary to estimate the (exchange) value.
Case: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98
Outcome: applied
I am satisfied that his conduct has been wilful and contumacious in the sense described in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98. In those circumstances, I am satisfied that the contempt to which he has pleaded guilty was deliberately wilful and contumacious rather than casual, accidental or unintentional. 60 In those circumstances, the only matter left is to determine the appropriate penalty for such a contempt. The District Registrar's counsel took me to the authorities which set out the penalties which may be imposed. 61 This Court has the same power to punish contempts as is possessed by the High Court of Australia in respect of contempts of that Court: s 31 of the Federal Court of Australia Act 1976 (Cth). The High Court of Australia, in turn, has the same power to punish contempts as was possessed in 1903 by the Supreme Court of Judicature in England: s 24 of the Judiciary Act 1903 (Cth).
Case: Bray v F Hoffman-La Roche Ltd [2003] FCAFC 132 ; (2003) 130 FCR 37
Outcome: cited
The Full Court noted that, because of the construction given in Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317 by of the majority of the Court to what is now O 8 r 3(2)(c), a finding that there was a prima facie case on one aspect of the claim against Mr Bangad has the consequence that he may be proceeded against on other bases as well. That is because it is only necessary that a prima facie case be established for any one of the causes of action relied on for the relief sought: Bray 130 FCR at [47]-[55] per Carr J, [176]-[191] per Branson J: Ho [2006] FCAFC 159 ; (2006) 24 ACLC 1526 at [45] - [46] .
Case: Commonwealth Bank of Australia v Peto (No 2) [2006] FCA 516 ; (2006) 152 FCR 362
Outcome: cited
I am satisfied that the allegations of fraud against Mr Bangad in the Suzlon companies' cross-claim, as well as the centrality of his role in the events on which the Suzlon companies rely to seek relief from the Headway companies' claims, make Mr Bangad a proper and necessary party to the proceedings: see News Ltd v Australian Rugby Football League Ltd [1996] FCA 1256 ; (1996) 64 FCR 410 at 523G-524F per Lockhart, von Doussa and Sackville JJ; see too Victoria v Sutton [1998] HCA 56 ; (1998) 195 CLR 291 at 316-317, [77] - [78] per McHugh J; Commonwealth Bank of Australia v Peto (No 2) [2006] FCA 516 ; (2006) 152 FCR 362 at 370-372 [27] , [30]-[33] per myself.
Case: Gatoil International Ltd v Arkwright-Boston Manufacturers Mutual Insurance Company [1985] AC 255
Outcome: cited
As Allsop J pointed out in Heilbrunn v Lightwood plc (2007) 164 FCR 1 at 6-9 ([30]-[40]) s 4(3)(f) is to be given a wide and liberal construction in accordance with a similar view expressed by the House of Lords in The Antonis P Lemos [1985] AC 711 and Gatoil International Ltd v Arkwright-Boston Manufacturers Mutual Insurance Company [1985] AC 255. The Australian Law Reform Commission had referred to their Lordships' decisions in its Civil Admiralty Jurisdiction, Report No 33 (1986) (the ALRC report). Earlier, Foster J observed in Port of Geelong Authority v The "Bass Reefer" [1992] FCA 378 ; (1992) 37 FCR 374 at 380-382 showed the words of s 4(3)(f) are also similar to Article 1(1)(d) of the International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships 1952 . In The St Elefterio [1957] P 179 at 183, Willmer J held that the English analogue to s 4(3)(f) encompassed a claim whether in contract or tort "arising out of any agreement relating to the carriage of goods in a ship" (emphasis added). In that case, he held that it gave the Court jurisdiction where a person allegedly made a fraudulent ante-dating of bills of lading.
Case: Heilbrunn v Lightwood plc (2007)164 FCR 1
Outcome: cited
As Allsop J pointed out in Heilbrunn v Lightwood plc (2007) 164 FCR 1 at 6-9 ([30]-[40]) s 4(3)(f) is to be given a wide and liberal construction in accordance with a similar view expressed by the House of Lords in The Antonis P Lemos [1985] AC 711 and Gatoil International Ltd v Arkwright-Boston Manufacturers Mutual Insurance Company [1985] AC 255. The Australian Law Reform Commission had referred to their Lordships' decisions in its Civil Admiralty Jurisdiction, Report No 33 (1986) (the ALRC report). Earlier, Foster J observed in Port of Geelong Authority v The "Bass Reefer" [1992] FCA 378 ; (1992) 37 FCR 374 at 380-382 showed the words of s 4(3)(f) are also similar to Article 1(1)(d) of the International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships 1952 . In The St Elefterio [1957] P 179 at 183, Willmer J held that the English analogue to s 4(3)(f) encompassed a claim whether in contract or tort "arising out of any agreement relating to the carriage of goods in a ship" (emphasis added). In that case, he held that it gave the Court jurisdiction where a person allegedly made a fraudulent ante-dating of bills of lading.
Case: News Ltd v Australian Rugby Football League [1996] FCA 1256 ; (1996) 64 FCR 410
Outcome: followed
I am satisfied that the allegations of fraud against Mr Bangad in the Suzlon companies' cross-claim, as well as the centrality of his role in the events on which the Suzlon companies rely to seek relief from the Headway companies' claims, make Mr Bangad a proper and necessary party to the proceedings: see News Ltd v Australian Rugby Football League Ltd [1996] FCA 1256 ; (1996) 64 FCR 410 at 523G-524F per Lockhart, von Doussa and Sackville JJ; see too Victoria v Sutton [1998] HCA 56 ; (1998) 195 CLR 291 at 316-317, [77] - [78] per McHugh J; Commonwealth Bank of Australia v Peto (No 2) [2006] FCA 516 ; (2006) 152 FCR 362 at 370-372 [27] , [30]-[33] per myself.
Case: Owners of "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 5 ; (1994) 181 CLR 404
Outcome: applied
I was satisfied that the Suzlon companies had asserted a maritime claim within the meaning of s 4(3)(f) of the Admiralty Act . That claim arose out of the existence of each of the contracts of affreightment, the time charter, the guarantee and the bills of lading for the MV Beluga Fantastic to carry the cargo to Port Kembla, and also out of the Suzlon companies' challenge to those transactions based on the allegations that they made against the Headway companies and Mr Bangad. The words "arising out of" and "relates to" in s 4(3)(f) are of wide import. They should not be read down: see Owners of "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 5 ; (1994) 181 CLR 404 at 420-421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. The claims made against Mr Bangad had the legal character of maritime claims within s 4(3)(f): Shin Kobe Maru 181 CLR at 426. 13 The Suzlon companies also relied on their claims against Mr Bangad being within the associated jurisdiction of the Court conferred by s 12 of the Admiralty Act as matters of Admiralty and maritime jurisdiction. That jurisdiction is "... concerned with the resolution of controversies relating to marine commerce and navigation": Shin Kobe Maru 181 CLR at 424. Contractual or business arrangements of a party to proceedings with third parties are capable of attracting the Court's Admiralty and maritime jurisdiction: Shin Kobe Maru 181 CLR at 425. I was of the opinion that, on the present materials, the claims which the Suzlon companies seek to bring against Mr Bangad were substantive rather than appearing to be remotely or tenuously related to matters of Admiralty or maritime jurisdiction pleaded by and against them: cf: The "Bass Reefer" 37 FCR at 381 per Foster J. I was satisfied that those claims raised a real controversy relating to marine commerce and navigation in which Mr Bangad occupied a central role.
Case: Pontifical Society for the Propogation of Faith v Scales [1962] HCA 19 ; (1962) 107 CLR 9
Outcome: cited
Of course, one story is good until another is told: Pontifical Society for the Propogation of Faith v Scales [1962] HCA 19 ; (1962) 107 CLR 9 at 20 per Dixon CJ. There may well be explanations for this state of affairs. But, I was satisfied, prima facie, that it was appropriate to permit service on Mr Bangad in India. This was because of the present absence of any explanation of the apparently uncommercial nature of the guarantee of the time charter and Mr Bangad's apparent involvement with the Headway companies when the impugned documents and the transactions, which they evidenced, were made. The prima facie case asserted by the Suzlon companies was further strengthened by the material indicating Mr Bangad's inability to explain to his employer his purposes for his entering into the impugned transactions and his inability, when confronted by Mr den Hartog, to explain why he had told Mr den Hartog that the Suzlon and Headway companies were associated, rather than at arms length, and why Mr den Hartog's letter accepting appointment as a director of Headway Shipping had been backdated. 48 Of course, much of the material currently in evidence had been presented in circumstances of urgency and would not necessarily be admissible in its current form at a final hearing. However, I was satisfied that there was sufficient in the material before me to warrant drawing an inference that they were sufficient to support the exercise of the Court's power to permit service out of the jurisdiction on Mr Bangad. 49 I was fortified in this view because the Headway had accepted that, whatever the strengths and weaknesses of the allegations made by the Suzlon companies, they raised a tribal issue which ought be determined at a five day hearing early next year. That is not to suggest that the Headway companies have not vigorously denied the allegations, as they have. Rather, it revealed the underlying litigious reality that the Suzlon companies had raised a case to be answered against the Headway companies, which have appeared, raising their involvement in the serious claims against Mr Bangad that would, if their case were accepted, translate into findings of fact that would support the grant of the relief they claim. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 26 November 2008 Counsel for the Second Cross-Claimants: Mr AW Street SC Solicitor for the Second Cross-Claimants: HWL Ebsworth Lawyers Dates of Hearing: 6, 12 November 2008 Date of Judgment: 26 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1770.html
Case: Port of Geelong Authority v The "Bass Reefer" [1992] FCA 378 ; (1992) 37 FCR 374
Outcome: cited
As Allsop J pointed out in Heilbrunn v Lightwood plc (2007) 164 FCR 1 at 6-9 ([30]-[40]) s 4(3)(f) is to be given a wide and liberal construction in accordance with a similar view expressed by the House of Lords in The Antonis P Lemos [1985] AC 711 and Gatoil International Ltd v Arkwright-Boston Manufacturers Mutual Insurance Company [1985] AC 255. The Australian Law Reform Commission had referred to their Lordships' decisions in its Civil Admiralty Jurisdiction, Report No 33 (1986) (the ALRC report). Earlier, Foster J observed in Port of Geelong Authority v The "Bass Reefer" [1992] FCA 378 ; (1992) 37 FCR 374 at 380-382 showed the words of s 4(3)(f) are also similar to Article 1(1)(d) of the International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships 1952 . In The St Elefterio [1957] P 179 at 183, Willmer J held that the English analogue to s 4(3)(f) encompassed a claim whether in contract or tort "arising out of any agreement relating to the carriage of goods in a ship" (emphasis added). In that case, he held that it gave the Court jurisdiction where a person allegedly made a fraudulent ante-dating of bills of lading. 13 The Suzlon companies also relied on their claims against Mr Bangad being within the associated jurisdiction of the Court conferred by s 12 of the Admiralty Act as matters of Admiralty and maritime jurisdiction. That jurisdiction is "... concerned with the resolution of controversies relating to marine commerce and navigation": Shin Kobe Maru 181 CLR at 424. Contractual or business arrangements of a party to proceedings with third parties are capable of attracting the Court's Admiralty and maritime jurisdiction: Shin Kobe Maru 181 CLR at 425. I was of the opinion that, on the present materials, the claims which the Suzlon companies seek to bring against Mr Bangad were substantive rather than appearing to be remotely or tenuously related to matters of Admiralty or maritime jurisdiction pleaded by and against them: cf: The "Bass Reefer" 37 FCR at 381 per Foster J. I was satisfied that those claims raised a real controversy relating to marine commerce and navigation in which Mr Bangad occupied a central role.
Case: The Antonis P Lemos [1985] AC 711
Outcome: cited
As Allsop J pointed out in Heilbrunn v Lightwood plc (2007) 164 FCR 1 at 6-9 ([30]-[40]) s 4(3)(f) is to be given a wide and liberal construction in accordance with a similar view expressed by the House of Lords in The Antonis P Lemos [1985] AC 711 and Gatoil International Ltd v Arkwright-Boston Manufacturers Mutual Insurance Company [1985] AC 255. The Australian Law Reform Commission had referred to their Lordships' decisions in its Civil Admiralty Jurisdiction, Report No 33 (1986) (the ALRC report). Earlier, Foster J observed in Port of Geelong Authority v The "Bass Reefer" [1992] FCA 378 ; (1992) 37 FCR 374 at 380-382 showed the words of s 4(3)(f) are also similar to Article 1(1)(d) of the International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships 1952 . In The St Elefterio [1957] P 179 at 183, Willmer J held that the English analogue to s 4(3)(f) encompassed a claim whether in contract or tort "arising out of any agreement relating to the carriage of goods in a ship" (emphasis added). In that case, he held that it gave the Court jurisdiction where a person allegedly made a fraudulent ante-dating of bills of lading.
Case: The St Elefterio [1957] P 179
Outcome: cited
As Allsop J pointed out in Heilbrunn v Lightwood plc (2007) 164 FCR 1 at 6-9 ([30]-[40]) s 4(3)(f) is to be given a wide and liberal construction in accordance with a similar view expressed by the House of Lords in The Antonis P Lemos [1985] AC 711 and Gatoil International Ltd v Arkwright-Boston Manufacturers Mutual Insurance Company [1985] AC 255. The Australian Law Reform Commission had referred to their Lordships' decisions in its Civil Admiralty Jurisdiction, Report No 33 (1986) (the ALRC report). Earlier, Foster J observed in Port of Geelong Authority v The "Bass Reefer" [1992] FCA 378 ; (1992) 37 FCR 374 at 380-382 showed the words of s 4(3)(f) are also similar to Article 1(1)(d) of the International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships 1952 . In The St Elefterio [1957] P 179 at 183, Willmer J held that the English analogue to s 4(3)(f) encompassed a claim whether in contract or tort "arising out of any agreement relating to the carriage of goods in a ship" (emphasis added). In that case, he held that it gave the Court jurisdiction where a person allegedly made a fraudulent ante-dating of bills of lading.