mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 ; (2002) 209 CLR 95
Outcome: applied
I have no doubt that, viewed objectively, the conduct of Mr Lewarne and Mr Scotts suggests that they intended their arrangements to have legal consequences and that a contract was made at the latest when Mr Lewarne paid his $300,000 to Mr Scotts; Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 ; (2002) 209 CLR 95 at 105-6. It is clear from Mr Dempsey's evidence that they intended to enter into an agreement that had been formally drawn by a solicitor. It may be that they envisaged that this could be done before they needed to commit to a binding arrangement and were prepared to consider the solicitor's advice as to how their relationship should be structured. It is equally clear in my view that this intention was overtaken by events. Mr Scotts' need for funds to meet the imminent settlement of the business purchase from Wellfox intervened. Although not legally sophisticated, both Mr Lewarne and Mr Scotts are experienced businessmen. The commercial nature of their activities, their conduct in advancing and receiving money and their active co-operation in the running of a business (discussed in more detail below) all point to them intending to enter into a binding contract; Edwards v Skyways Ltd [1964] 1 WLR 349 at 355; Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 177.
Case: Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171
Outcome: considered
As mentioned the fact that the parties here made a commercial arrangement (to use a neutral term) and acted on it, strongly suggests that they made a binding contract. The commercial arrangement is not, however, sufficient per se, to establish the point; for a dramatic example see Tesco Stores Ltd v Costain Constructions Ltd [2003] EWHC 1487. In Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 at [492] , Allsop J, having referred to the comments of Steyn LJ in First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd's Rep 194 at 196 to the effect that the law should strive to protect the 'reasonable expectations of honest men', cautioned against too heavy reliance on the commercial nature of the arrangements: However, none of these expressions of principle and guidance suggests or sanctions an approach whereby the ethical or moral merits of a commercial set of circumstances is assessed and a body of obligations thereafter is imposed, implied, or sculpted to protect the reasonable expectations of the innocent party merely because it is the victim of the unworthy behaviour of the other.
Case: First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd's Rep 194
Outcome: referred to
As mentioned the fact that the parties here made a commercial arrangement (to use a neutral term) and acted on it, strongly suggests that they made a binding contract. The commercial arrangement is not, however, sufficient per se, to establish the point; for a dramatic example see Tesco Stores Ltd v Costain Constructions Ltd [2003] EWHC 1487. In Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 at [492] , Allsop J, having referred to the comments of Steyn LJ in First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd's Rep 194 at 196 to the effect that the law should strive to protect the 'reasonable expectations of honest men', cautioned against too heavy reliance on the commercial nature of the arrangements: However, none of these expressions of principle and guidance suggests or sanctions an approach whereby the ethical or moral merits of a commercial set of circumstances is assessed and a body of obligations thereafter is imposed, implied, or sculpted to protect the reasonable expectations of the innocent party merely because it is the victim of the unworthy behaviour of the other.
Case: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Limited [2003] FCA 50 ; (2003) 128 FCR 1
Outcome: cited
McHugh JA's approach has been approved in many cases; Pobjie Agencies Pty Ltd v Vinidex Tubemakers Pty Ltd [2000] NSWCA 105, (2000) Aust Contract R 90-112; John R Keith Ltd v Multiplex Constructions (NSW) Pty Ltd [2002] NSWSC 43 , [2002] ACL Rep 110 NSW 14; GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Limited [2003] FCA 50 ; (2003) 128 FCR 1 at 63 and Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153. As his Honour remarked, however, it is not a licence to dispense with the well-established hallmarks of a contract. Ultimately, it is always necessary for the essential elements of a contract to be established, even if not with textbook precision.
Case: GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Outcome: applied
The discussions between Mr Lewarne and Mr Dempsey two days after the money had been paid over indicate that Mr Lewarne, at least, had not abandoned the idea of entering into a more formal contract. Given Mr Scotts earlier participation in discussions with Mr Dempsey I think it more likely than not that this was also his position. In my view Mr Scotts and Mr Lewarne intended to be bound immediately but also intended to make a further contract which would substitute for the original contract; GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631. That substitute contract was never made and therefore the proposed terms of it are not relevant to the resolution of the present issues. 48 In the negotiations leading up to the agreement, Mr Scotts spoke both for himself and Momentum. Indeed, as I have earlier commented, Mr Scotts referred to himself and Momentum interchangeably and without apparent distinction. On balance I find the evidence supports the conclusion that Momentum, as well as Mr Scotts, was a party to this preliminary contract. It is likely that Mr Anthony Scotts was also a member of the partnership from the same date however I have only limited evidence on this point which I have not been asked to decide. In general, I do not find it necessary to distinguish between Mr Scotts' conduct when he was acting for Momentum and when he was acting for himself and shall not do so unless there is a particular need.
Case: Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110
Outcome: cited
The fact that Mr Lewarne and Mr Scotts did not set out their agreement in writing and that it is not susceptible to a textbook analysis of offer and acceptance does not preclude there being a contract. In this regard the comments and cautions of McHugh JA (while a member of the New South Wales Court of Appeal) in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,117 are directly applicable to the present circumstances: It is often difficult to fit a commercial arrangement into the common lawyers' analysis of a contractual arrangement. Commercial discussions are often too unrefined to fit easily into the slots of "offer", "acceptance", "consideration" and "intention to create a legal relationship" which are the benchmarks of the contract of classical theory. In classical theory, the typical contract is a bilateral one and consists of an exchange of promises by means of an offer and its acceptance together with an intention to create a binding a legal relationship.... A bilateral contract of this type exists independently of and indeed precedes what the parties do. Consequently, it is an error "to suppose that merely because something has been done then there is therefore some contract in existence which has thereby been executed" ... Nevertheless, a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words ... The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the element of an express contract. ... Care must also be taken not to infer anterior promises from conduct which represents no more than an adjustment of their relationship in the light of changing circumstances.
Case: John R Keith Ltd v Multiplex Constructions (NSW) Pty Ltd [2002] NSWSC 43
Outcome: cited
McHugh JA's approach has been approved in many cases; Pobjie Agencies Pty Ltd v Vinidex Tubemakers Pty Ltd [2000] NSWCA 105, (2000) Aust Contract R 90-112; John R Keith Ltd v Multiplex Constructions (NSW) Pty Ltd [2002] NSWSC 43 , [2002] ACL Rep 110 NSW 14; GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Limited [2003] FCA 50 ; (2003) 128 FCR 1 at 63 and Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153. As his Honour remarked, however, it is not a licence to dispense with the well-established hallmarks of a contract. Ultimately, it is always necessary for the essential elements of a contract to be established, even if not with textbook precision.
Case: Kimberly NZI Finance Ltd v Torero Pty Limited (1989) ATPR (Digest) 46-054
Outcome: applied
The potential for silence to be misleading is now well established. It is to be assessed "as a circumstance like any other"; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 32 per Black CJ. The issue is whether the relevant circumstances give rise to a reasonable expectation that some fact or other would be disclosed; Kimberley NZI Finance Ltd v Torero Pty Limited (1989) ATPR (Digest) 46-054 at 53,195.
Case: Pilmer v Duke Group Ltd [2001] HCA 31 ; (2001) 207 CLR 165
Outcome: discussed
The importance of agency and, particularly, of a mutuality of rights and obligations in the partnership relationship was emphasised in Duke Group Ltd (in liq.) v Pilmer (1999) 73 SASR 64. Although the decision of the South Australian Supreme Court was reversed by the High Court in Pilmer v Duke Group Ltd [2001] HCA 31 ; (2001) 207 CLR 165 this aspect of the decision was unaffected. The relationship between Mr Lewarne and Mr Scotts was accepted by them as involving a mutuality of rights and obligations that was consistent with them being in partnership as that relationship is defined in the Partnership Act .
Case: Pobijie Agencies Pty Ltd v Vinidex Tubemakers Pty Ltd [2000] NSWCA 105
Outcome: cited
McHugh JA's approach has been approved in many cases; Pobjie Agencies Pty Ltd v Vinidex Tubemakers Pty Ltd [2000] NSWCA 105, (2000) Aust Contract R 90-112; John R Keith Ltd v Multiplex Constructions (NSW) Pty Ltd [2002] NSWSC 43 , [2002] ACL Rep 110 NSW 14; GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Limited [2003] FCA 50 ; (2003) 128 FCR 1 at 63 and Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153. As his Honour remarked, however, it is not a licence to dispense with the well-established hallmarks of a contract. Ultimately, it is always necessary for the essential elements of a contract to be established, even if not with textbook precision.
Case: Tesco Stores Ltd v Costain Constructions Ltd [2003] EWHC 1487
Outcome: cited
As mentioned the fact that the parties here made a commercial arrangement (to use a neutral term) and acted on it, strongly suggests that they made a binding contract. The commercial arrangement is not, however, sufficient per se, to establish the point; for a dramatic example see Tesco Stores Ltd v Costain Constructions Ltd [2003] EWHC 1487. In Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 at [492] , Allsop J, having referred to the comments of Steyn LJ in First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd's Rep 194 at 196 to the effect that the law should strive to protect the 'reasonable expectations of honest men', cautioned against too heavy reliance on the commercial nature of the arrangements: However, none of these expressions of principle and guidance suggests or sanctions an approach whereby the ethical or moral merits of a commercial set of circumstances is assessed and a body of obligations thereafter is imposed, implied, or sculpted to protect the reasonable expectations of the innocent party merely because it is the victim of the unworthy behaviour of the other.
Case: Ting v Blanche (1993) 118 ALR 543
Outcome: applied
Assuming that it can be established that the representations as to future matters were made, it would appear the respondents bear the burden of establishing that there were reasonable grounds for the statements to have been made; Ting v Blanche (1993) 118 ALR 543 at 552. In Australian Competition and Consumer Commission v Universal Sports Challenge Ltd [2002] FCA 1276 at [47] Emmett J suggested that the effect of the section might be more limited: That is to say, it does not ultimately reverse the onus but simply provides that the deeming takes effect unless [emphasis added] the corporation adduces some evidence to the contrary. ... If an applicant elects to adduce no evidence as to that question then the only evidence before the Court would be that adduced by the corporation. Whether that is adequate to establish that the corporation had reasonable grounds for making the representation is a matter for the Court. However once the corporation has adduced some evidence, there is no deeming arising from s 51A(2).
Case: United Dominions Corporations Limited v Brian Proprietary Limited [1985] HCA 49 ; (1985) 157 CLR 1
Outcome: applied
As partners, Mr Lewarne and Mr Scotts had fiduciary obligations to each other. Even if I am wrong and there was no concluded partnership agreement, the obligations would still arise as is made clear by the comments of Mason, Brennan and Deane JJ in United Dominions Corporations Limited v Brian Proprietary Limited [1985] HCA 49 ; (1985) 157 CLR 1 at 12: A fiduciary relationship can arise and fiduciary duties can exist between parties who have not reached, and who may never reach, agreement upon the consensual terms which are to govern the arrangement between them. In particular, a fiduciary relationship with attendant fiduciary obligations may, and ordinarily will, exist between prospective partners who have embarked upon the conduct of the partnership business or venture before the precise terms of any partnership agreement have been settled. Indeed, in such circumstances, the mutual confidence and trust which underlie most consensual fiduciary relationships are likely to be more readily apparent than in the case where mutual rights and obligations have been expressly defined in some formal agreement.
Case: Wardle Australia Limited v The State of Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: applied
In Wardley Australia Limited v The State of Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525 the High Court held that the word 'by' in this section requires a causal link between the loss or damage suffered and the contravention of the Act: ...the word clearly expresses the notion of causation without defining or elucidating it. In this situation, s. 82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this Court in March v Stramare (E &amp; MH) Pty Ltd except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act.
Case: Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679
Outcome: discussed
The question of whether conduct is misleading or deceptive is slightly more nuanced where the representations complained about relate to future matters. McHugh JA noted in Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679 at 690: 'A promise to do something in the future is to be regarded as a representation that it will be performed. It will be deemed misleading, therefore, unless the corporation proves that it had reasonable grounds for making the promise.' 80 Section 51A of the Trade Practices Act 1974 (Cth) relevantly provides: '(1) For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading. (2) For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.'
Case: Butchulla People v Queensland [2006] FCA 1063 ; (2006) 154 FCR 233
Outcome: cited
Before moving to the requirements of s 66B, there are two technical matters that are necessary to address. First, the section refers to replacing "the applicant", which is defined in s 253 by reference to s 61(2) to include jointly all of the persons authorised under s 253 to make the application. Thus, the motion under s 66B should be to replace all of the named applicants, despite the fact it proposes that some of them are to retain their status (see Daniel 194 ALR 278 at [5]; Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703 at [46] ). That is a practical, but not a substantive, issue where not all of the persons who are named applicants are sought to be replaced, but it is not inconsistent with recent authorities which hold that authorisation under s 251B is held by persons individually, rather than by those persons jointly as "the applicant" (see Butchulla People v Queensland [2006] FCA 1063 ; (2006) 154 FCR 233 at [45] ; Doolan v Native Title Registrar (2007) 158 FCR 56 at [60]). In this matter, the terms of the motion intended, and would practically operate, to remove only Ms Foster as a named applicant and to replace her with her daughter, Margaret Foster, another member of the Kamu people. The other named applicants would retain their status. But, the motion may be regarded alternatively as achieving that purpose by seeking to replace "the applicant" including all of the named applicants, and replacing them with a new "applicant" including the existing named applicants except for Marjorie Foster and adding Margaret Foster. 40 As the submissions of senior counsel for Ms Foster indicate, other decisions of this Court have held that the words 'the application' in ss 66B(1)(b) refer to both the native title determination application and the application under s 66B ( Daniel 194 ALR 278 at [53]) or to only the s 66B application ( Chapman 159 FCR [5]; Mandingalbay [2004] FCA 1703 at [40] ; Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [36] ). Any authority to make the native title determination application and authority to make the application under s 66B are clearly interdependent. The members of the claim group authorised to apply under s 66B to replace an applicant must be the proposed new applicant and they must be authorised to make the native title determination application and deal with matters arising under it. Consequently, in my view, authorisation to bring the application under s 66B must follow from the authorisation required by s 66B(1)(b). That authorisation includes separate authorisation for each member of the native title claim group who will make up "the applicant". For those persons who will not be newly appointed, but who will maintain their existing status, it would be sufficient to merely refer to their prior authorisation and the fact that it has not been revoked: Butchulla [2006] FCA 1063 ; 154 FCR 233 at [45] .
Case: Doolan v Native Title Registrar (2007) 158 FCR 56
Outcome: cited
Before moving to the requirements of s 66B, there are two technical matters that are necessary to address. First, the section refers to replacing "the applicant", which is defined in s 253 by reference to s 61(2) to include jointly all of the persons authorised under s 253 to make the application. Thus, the motion under s 66B should be to replace all of the named applicants, despite the fact it proposes that some of them are to retain their status (see Daniel 194 ALR 278 at [5]; Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703 at [46] ). That is a practical, but not a substantive, issue where not all of the persons who are named applicants are sought to be replaced, but it is not inconsistent with recent authorities which hold that authorisation under s 251B is held by persons individually, rather than by those persons jointly as "the applicant" (see Butchulla People v Queensland [2006] FCA 1063 ; (2006) 154 FCR 233 at [45] ; Doolan v Native Title Registrar (2007) 158 FCR 56 at [60]). In this matter, the terms of the motion intended, and would practically operate, to remove only Ms Foster as a named applicant and to replace her with her daughter, Margaret Foster, another member of the Kamu people. The other named applicants would retain their status. But, the motion may be regarded alternatively as achieving that purpose by seeking to replace "the applicant" including all of the named applicants, and replacing them with a new "applicant" including the existing named applicants except for Marjorie Foster and adding Margaret Foster.
Case: Chapman v State of Queensland (2007) 159 FCR 507
Outcome: cited
A careful reading of s 66B(1) indicates that the cumulative grounds upon which the motion under s 66B may be brought, that is, one of the two alternatives in ss (1)(a)(i) or (ii) and the ground in ss (1)(b), refer to the application for the determination of native title under s 61 of the Act. They focus upon the status of the current applicant to make the application or that applicant's conduct in relation to that application, and upon the putative applicant's authorisation to make and deal with matter arising in relation to that primary application. The status of the proposed new applicant to pursue the motion under s 66B require those cumulative conditions to be satisfied, but not necessarily an explicit separate authorisation by the claim group to seek an order under s 66B. That status already exists if there is an authorisation of the claim group under s 251B to make the claimant application itself and to deal with the matters arising in relation to it: see eg Ward v Northern Territory (2002) 196 ALR 32 at 38, [15]. In Daniel 194 ALR at 296, [53] that particular issue does not appear to have been contentious or therefore to have required particular remark. Nor, in my view, did it arise in Chapman v State of Queensland (2007) 159 FCR 507 to which my attention was drawn by senior counsel for Marjorie Foster. 40 As the submissions of senior counsel for Ms Foster indicate, other decisions of this Court have held that the words 'the application' in ss 66B(1)(b) refer to both the native title determination application and the application under s 66B ( Daniel 194 ALR 278 at [53]) or to only the s 66B application ( Chapman 159 FCR [5]; Mandingalbay [2004] FCA 1703 at [40] ; Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [36] ). Any authority to make the native title determination application and authority to make the application under s 66B are clearly interdependent. The members of the claim group authorised to apply under s 66B to replace an applicant must be the proposed new applicant and they must be authorised to make the native title determination application and deal with matters arising under it. Consequently, in my view, authorisation to bring the application under s 66B must follow from the authorisation required by s 66B(1)(b). That authorisation includes separate authorisation for each member of the native title claim group who will make up "the applicant". For those persons who will not be newly appointed, but who will maintain their existing status, it would be sufficient to merely refer to their prior authorisation and the fact that it has not been revoked: Butchulla [2006] FCA 1063 ; 154 FCR 233 at [45] .