mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Coles Myer Limited v Commissioner of State Revenue [1998] 4 VR 728
Outcome: considered
conclusion that in the context in which it appears in cl 5.1 of the Shareholders Agreement the expression "transfer" means a transfer of the legal interest or estate in shares from one person to another person and not a transfer of the equitable or beneficial interest in the shares is supported in a number of cases. Such a connotation or definition of the expression "transfer" is implicit in the reasoning in Safeguard Industrial Investments Ltd v National Westminster Bank [1981] 1 WLR 286; Scotto v Petch [2000] 2 BCLC 211, on appeal [2001] BCC 889; Lyle &amp; Scott Ltd v Scott's Trustees (supra); Coles Myer Limited v Commissioner of State Revenue [1998] 4 VR 728.
Case: Chief Commissioner of Stamp Duties for New South Wales v Buckle [1998] HCA 4 ; (1998) 192 CLR 226
Outcome: cited
to 30 May 2007 ARC Strang was the trustee of The A.R.C. Strang Family Trust which was established by a deed of settlement on 5 January 1994. ARC Strang Australia Pty Ltd became the trustee of The A.R.C. Strang Family Trust on 30 May 2007. Since June 2001 Mr Robert Strang Senior ("Mr Robert Strang") has been the sole director and company secretary of ARC Strang, and he has always been the appointor of The A.R.C. Strang Family Trust with the power to remove and appoint any trustee. The A.R.C. Strang Family Trust is a "discretionary trust": Chief Commissioner of Stamp Duties for New South Wales v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 at 234; Commissioner of Taxation (Cth) v Vegners (1989) 90 ALR 547 at 552. That is to say, the entitlement of the beneficiaries of the trust to the income and capital of the trust is not specified in, or immediately ascertainable from, the terms of the trust. The distribution of the income and capital of the trust is dependent on the exercise of a discretion by the trustee who is able to select from a nominated class of beneficiaries the beneficiary or beneficiaries to whom, or for whose benefit, any income or capital of the trust is to be distributed from time to time. In the deed of settlement establishing The A.R.C. Strang Family Trust, two classes of beneficiaries were provided for. One class described as "Primary Beneficiaries" included Mr Robert Strang and any spouse, widow or child of Mr Robert Strang. The other class described as "General Beneficiaries" included the Primary Beneficiaries, their children and remoter issue, other relatives of them and charities.
Case: Commissioner of Taxation (Cth) v Vegners (1988) 90 ALR 547
Outcome: cited
to 30 May 2007 ARC Strang was the trustee of The A.R.C. Strang Family Trust which was established by a deed of settlement on 5 January 1994. ARC Strang Australia Pty Ltd became the trustee of The A.R.C. Strang Family Trust on 30 May 2007. Since June 2001 Mr Robert Strang Senior ("Mr Robert Strang") has been the sole director and company secretary of ARC Strang, and he has always been the appointor of The A.R.C. Strang Family Trust with the power to remove and appoint any trustee. The A.R.C. Strang Family Trust is a "discretionary trust": Chief Commissioner of Stamp Duties for New South Wales v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 at 234; Commissioner of Taxation (Cth) v Vegners (1989) 90 ALR 547 at 552. That is to say, the entitlement of the beneficiaries of the trust to the income and capital of the trust is not specified in, or immediately ascertainable from, the terms of the trust. The distribution of the income and capital of the trust is dependent on the exercise of a discretion by the trustee who is able to select from a nominated class of beneficiaries the beneficiary or beneficiaries to whom, or for whose benefit, any income or capital of the trust is to be distributed from time to time. In the deed of settlement establishing The A.R.C. Strang Family Trust, two classes of beneficiaries were provided for. One class described as "Primary Beneficiaries" included Mr Robert Strang and any spouse, widow or child of Mr Robert Strang. The other class described as "General Beneficiaries" included the Primary Beneficiaries, their children and remoter issue, other relatives of them and charities.
Case: Commissioner of Stamp Duties (Queensland) v Livingston [1964] UKPCHCA 2 ; [1965] AC 694
Outcome: cited
noted earlier in par [ 6 ] above, The A.R.C. Strang Family Trust is a discretionary trust. There is no beneficiary under it with a vested interest and the trustee has a discretion as to the distribution of the income and capital of the trust fund among a wide range of potential beneficiaries. Accordingly, by the Deed of Assignment there was no disposition of the beneficial interest in the shares by the trustee to a third party. There was no separation of the legal and equitable interests in the PrixCar shares: Commissioner of Stamp Duties (Queensland) v Livingston [1964] UKPCHCA 2 ; [1965] AC 694 at 712; Barns v Barns [2003] HCA 9 ; (2003) 214 CLR 169 at 189. Such interest as those who fell within the definition of "beneficiaries" in the trust deed had in the trust property was a right to have the trust administered in accordance with the terms of the trust deed: Official Receiver in Bankruptcy v Schultz [1990] HCA 45 ; (1990) 170 CLR 306 at 313-314.
Case: Barns v Barns [2003] HCA 9 ; (2003) 214 CLR 169
Outcome: cited
noted earlier in par [ 6 ] above, The A.R.C. Strang Family Trust is a discretionary trust. There is no beneficiary under it with a vested interest and the trustee has a discretion as to the distribution of the income and capital of the trust fund among a wide range of potential beneficiaries. Accordingly, by the Deed of Assignment there was no disposition of the beneficial interest in the shares by the trustee to a third party. There was no separation of the legal and equitable interests in the PrixCar shares: Commissioner of Stamp Duties (Queensland) v Livingston [1964] UKPCHCA 2 ; [1965] AC 694 at 712; Barns v Barns [2003] HCA 9 ; (2003) 214 CLR 169 at 189. Such interest as those who fell within the definition of "beneficiaries" in the trust deed had in the trust property was a right to have the trust administered in accordance with the terms of the trust deed: Official Receiver in Bankruptcy v Schultz [1990] HCA 45 ; (1990) 170 CLR 306 at 313-314.
Case: Official Receiver in Bankruptcy v Schultz [1990] HCA 45 ; (1990) 170 CLR 306
Outcome: cited
noted earlier in par [ 6 ] above, The A.R.C. Strang Family Trust is a discretionary trust. There is no beneficiary under it with a vested interest and the trustee has a discretion as to the distribution of the income and capital of the trust fund among a wide range of potential beneficiaries. Accordingly, by the Deed of Assignment there was no disposition of the beneficial interest in the shares by the trustee to a third party. There was no separation of the legal and equitable interests in the PrixCar shares: Commissioner of Stamp Duties (Queensland) v Livingston [1964] UKPCHCA 2 ; [1965] AC 694 at 712; Barns v Barns [2003] HCA 9 ; (2003) 214 CLR 169 at 189. Such interest as those who fell within the definition of "beneficiaries" in the trust deed had in the trust property was a right to have the trust administered in accordance with the terms of the trust deed: Official Receiver in Bankruptcy v Schultz [1990] HCA 45 ; (1990) 170 CLR 306 at 313-314.
Case: Lygon Nominees Pty Ltd v Commissioner of State Revenue (2005) 60 ATR 135
Outcome: cited
relevant principle was recently re-stated by Hollingworth J in Lygon Nominees Pty Ltd v Commissioner of State Revenue (2005) 60 ATR 135 at [58]: "Neither the right to due administration of the trust nor the fiduciary obligations owed by the trustee is capable of making the object of a power of appointment into a 'beneficial owner' of the subject matter of the trust. The right of an object to take legal proceedings to prevent a disposal of income or capital by the trustee to persons outside the designated object does not involve the assertion of a proprietary right by the object and does not require the conclusion that the object has a proprietary interest in particular assets within the fund or is a 'beneficial owner' of such assets". (See also R&amp;I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 at 79-80 per Owen J.)
Case: R&amp;I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59
Outcome: cited
relevant principle was recently re-stated by Hollingworth J in Lygon Nominees Pty Ltd v Commissioner of State Revenue (2005) 60 ATR 135 at [58]: "Neither the right to due administration of the trust nor the fiduciary obligations owed by the trustee is capable of making the object of a power of appointment into a 'beneficial owner' of the subject matter of the trust. The right of an object to take legal proceedings to prevent a disposal of income or capital by the trustee to persons outside the designated object does not involve the assertion of a proprietary right by the object and does not require the conclusion that the object has a proprietary interest in particular assets within the fund or is a 'beneficial owner' of such assets". (See also R&amp;I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 at 79-80 per Owen J.)
Case: Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814 ; (2006) 153 FCR 509
Outcome: cited
is nothing in the reasoning of French J in Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814 ; (2006) 153 FCR 509 which doubts these principles in relation to the nature of interests in or under a discretionary trust. French J was concerned with the content and extent of a contingent interest for the purposes of s 9 of the Corporations Act 2001 (Cth). My conclusion is that on 30 May 2007 the transactions which occurred on that day did not trigger the pre-emptive provisions in cl 5.1 of the Shareholders Agreement. Nor were these provisions triggered by any action of ARC Strang subsequent to 23 November 2006 and up to and including 30 May 2007. There has been no contravention by ARC Strang of cl 5.1 of the Shareholders Agreement or a failure by it to observe the pre-emptive provisions of that clause. It follows that the application by the applicants should be dismissed with costs. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg . Associate: Dated: 9 April 2008 Counsel for the Applicants: J W S Peters S.C. and D J Crennan Solicitor for the Applicants: Minter Ellison Counsel for the Respondents: N Mukhtar QC and P D Crutchfield Solicitor for the Respondents: Clayton Utz Date of Hearing: 7 and 8 February 2008 Date of Judgment: 9 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/461.html
Case: Reef &amp; Rainforest Travel Pty Ltd v Commissioner of Stamp Duties [2002] Qd R 683
Outcome: cited
Safeguard Industrial Investments Ltd v National Westminster Bank (supra) the Court was concerned to construe an article of association of a company which provided that: "A member shall not be entitled to transfer an ordinary share except ... in accordance with the following provisions: (a) ... (b) Except where the transfer made is pursuant to article 8 hereof, in order to ascertain whether any member is willing to purchase an ordinary share, the proposing transferor shall give notice in writing (hereinafter called 'the transfer notice') to the company that he desires to transfer the same. ..." The Court held that "transfer" in this article meant a transfer of the legal interest in the shares and did not refer to the transfer of the beneficial interest in the shares. Vinelott J said at 297-298: "A 'transfer of a share' in the ordinary sense of that expression is a transfer of the legal title to the share with the rights and liabilities attaching to it; on registration of the transfer the transferor ceases to be and the transferee becomes a member of the company in right of that share. A member who desires to transfer a share will carry his intention into effect by executing a transfer and lodging it for registration. At that stage the restrictions in the pre-emption provisions come into operation. To treat the references to the transfer of a share as comprehending a transfer or disposition of a beneficial interest in a share is to give the expression 'transfer of a share' a meaning wider than it would ordinarily bear. ..." Vinelott J's reasoning was upheld by the Court of Appeal: Safeguard Industrial Investments Ltd v National Westminster Bank [1982] 1 WLR 589 at 598-599. It was also accepted by the Queensland Court of Appeal in Reef &amp; Rainforest Travel Pty Ltd v Commissioner of Stamp Duties [2002] Qd R 683 at 688.
Case: General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
31A of the Federal Court of Australia Act 1976 (Cth) introduced what might be described as a slightly more exclusionary rule of access to contested trial proceedings than previously obtained under General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 and the earlier authority of Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 in respect of claims made or defences propounded in such a proceeding where the Court is satisfied that the relevant party has no reasonable prospect of successfully maintaining a particular claim or defence whether as to a part only or the entirety of the proceeding.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
31A of the Federal Court of Australia Act 1976 (Cth) introduced what might be described as a slightly more exclusionary rule of access to contested trial proceedings than previously obtained under General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 and the earlier authority of Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 in respect of claims made or defences propounded in such a proceeding where the Court is satisfied that the relevant party has no reasonable prospect of successfully maintaining a particular claim or defence whether as to a part only or the entirety of the proceeding.
Case: Swain v Hillman [2001] All ER 91
Outcome: cited
respondent says that Mrs Vranic's contention as to the question of construction is so lacking in merit or substance as to be not fairly arguable and the phrase "no reasonable prospect of successfully" prosecuting or defending the proceeding (or that part of the proceeding) should be accorded the same construction as that described by Lord Woolf in Swain v Hillman [2001] All ER 91 in respect of the phrase "no real prospect of successfully", as directing the Court to "the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success". For the purposes of s 31A, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success (s 31A(3)).
Case: Hocking v Bell (1947) 75 CLR 125
Outcome: cited
this application, there are no contested questions of fact which might be resolved one way or the other so as to enable one side or the other to succeed in the sense contemplated in Hocking v Bell (1947) 75 CLR 125 , which influenced the approach to s 31A by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352. Finkelstein J in Jefferson Ford v Ford Motor Co of Australia Ltd [2008] FCAFC 60 ; (2008) 246 ALR 465 took the view that the test of reasonable prospect of success was a less stringent test than that proposed by Rares J in Boston Commercial . Plainly, the Court must be cautious not to do Mrs Vranic an injustice by summarily dismissing or foreclosing the proceeding. However, the question is whether as a matter of substance rather than form ( White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 per Lindgren J) Mrs Vranic's construction has no reasonable prospect of success.
Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
Outcome: cited
this application, there are no contested questions of fact which might be resolved one way or the other so as to enable one side or the other to succeed in the sense contemplated in Hocking v Bell (1947) 75 CLR 125 , which influenced the approach to s 31A by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352. Finkelstein J in Jefferson Ford v Ford Motor Co of Australia Ltd [2008] FCAFC 60 ; (2008) 246 ALR 465 took the view that the test of reasonable prospect of success was a less stringent test than that proposed by Rares J in Boston Commercial . Plainly, the Court must be cautious not to do Mrs Vranic an injustice by summarily dismissing or foreclosing the proceeding. However, the question is whether as a matter of substance rather than form ( White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 per Lindgren J) Mrs Vranic's construction has no reasonable prospect of success.
Case: Jefferson Ford v Ford Motor Co of Australia Ltd [2008] FCAFC 60 ; (2008) 246 ALR 465
Outcome: cited
this application, there are no contested questions of fact which might be resolved one way or the other so as to enable one side or the other to succeed in the sense contemplated in Hocking v Bell (1947) 75 CLR 125 , which influenced the approach to s 31A by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352. Finkelstein J in Jefferson Ford v Ford Motor Co of Australia Ltd [2008] FCAFC 60 ; (2008) 246 ALR 465 took the view that the test of reasonable prospect of success was a less stringent test than that proposed by Rares J in Boston Commercial . Plainly, the Court must be cautious not to do Mrs Vranic an injustice by summarily dismissing or foreclosing the proceeding. However, the question is whether as a matter of substance rather than form ( White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 per Lindgren J) Mrs Vranic's construction has no reasonable prospect of success.
Case: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: cited
this application, there are no contested questions of fact which might be resolved one way or the other so as to enable one side or the other to succeed in the sense contemplated in Hocking v Bell (1947) 75 CLR 125 , which influenced the approach to s 31A by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352. Finkelstein J in Jefferson Ford v Ford Motor Co of Australia Ltd [2008] FCAFC 60 ; (2008) 246 ALR 465 took the view that the test of reasonable prospect of success was a less stringent test than that proposed by Rares J in Boston Commercial . Plainly, the Court must be cautious not to do Mrs Vranic an injustice by summarily dismissing or foreclosing the proceeding. However, the question is whether as a matter of substance rather than form ( White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 per Lindgren J) Mrs Vranic's construction has no reasonable prospect of success.
Case: Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257
Outcome: cited
a case such as the present where the question to be decided is a question of law, the Court must determine whether the argument advanced by Mrs Vranic is "sufficiently strong to warrant the matter going to trial" ( Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 per Emmett J at [28]; Spencer v Commonwealth of Australia [2008] FCA 1256 per Emmett J; and McAleer v The University of Western Australia (No 3) [2008] FCA 1490 per Siopis J).
Case: Spencer v Commonwealth of Australia [2008] FCA 1256
Outcome: cited
a case such as the present where the question to be decided is a question of law, the Court must determine whether the argument advanced by Mrs Vranic is "sufficiently strong to warrant the matter going to trial" ( Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 per Emmett J at [28]; Spencer v Commonwealth of Australia [2008] FCA 1256 per Emmett J; and McAleer v The University of Western Australia (No 3) [2008] FCA 1490 per Siopis J).
Case: McAleer v The University of Western Australia (No 3) [2008] FCA 1490
Outcome: cited
a case such as the present where the question to be decided is a question of law, the Court must determine whether the argument advanced by Mrs Vranic is "sufficiently strong to warrant the matter going to trial" ( Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 per Emmett J at [28]; Spencer v Commonwealth of Australia [2008] FCA 1256 per Emmett J; and McAleer v The University of Western Australia (No 3) [2008] FCA 1490 per Siopis J).
Case: Vranic v Chief Executive Officer, Centrelink [2004] FCA 992
Outcome: cited
the interests of justice are not served by making such a reference as I am satisfied that Mrs Vranic's contention has no serious prospect of succeeding and thus her proceeding would be dismissed. The interests of justice are not served by requiring the matter to proceed to trial and requiring the respondent to prepare an appeal record, retain solicitors on the hearing and brief counsel on the trial, when the costs incurred in doing so represent, in a real sense, public money. The amount in issue is approximately $910.00 and Mrs Vranic has no reasonable prospect of success in the proceeding. There is no prospect of the respondent's costs of the hearing of an appeal being paid by the applicant having regard to unsatisfied orders for costs made against Mrs Vranic in other Federal Court proceedings. (See Vranic v Chief Executive Officer, Centrelink [2004] FCA 992 and Vranic v Chief Executive Officer, Centrelink [2004] FCA 1511).
Case: Vranic v Chief Executive Officer, Centrelink [2004] FCA 1511
Outcome: cited
the interests of justice are not served by making such a reference as I am satisfied that Mrs Vranic's contention has no serious prospect of succeeding and thus her proceeding would be dismissed. The interests of justice are not served by requiring the matter to proceed to trial and requiring the respondent to prepare an appeal record, retain solicitors on the hearing and brief counsel on the trial, when the costs incurred in doing so represent, in a real sense, public money. The amount in issue is approximately $910.00 and Mrs Vranic has no reasonable prospect of success in the proceeding. There is no prospect of the respondent's costs of the hearing of an appeal being paid by the applicant having regard to unsatisfied orders for costs made against Mrs Vranic in other Federal Court proceedings. (See Vranic v Chief Executive Officer, Centrelink [2004] FCA 992 and Vranic v Chief Executive Officer, Centrelink [2004] FCA 1511).