mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Holiday Inns Inc v Broadhead [1974] 232 EG 951
Outcome: referred to
Failure to disabuse may, in some circumstances, create or encourage an expectation: Crabb at 188 189. But this head of equity usually depends upon proof that the owner of the property seeks to take unconscionable advantage of another by allowing the other to spend money on the property in the belief, known to the owner, that the person expending the money will enjoy a benefit over the property: Holiday Inns Inc v Broadhead [1974] 232 EG 951 (" Holiday Inns ") discussed by Priestley JA in Austotel at 607 608 and 610. 825 The position is effectively captured in the following passage from the judgment of Mance LJ in Baird Textiles Holdings Limited v Marks &amp; Spencer Plc [2001] All ER (D) 352 (Feb) at [94]:- "As I have already said, the fact that there was never any agreement to reach or even to set out the essential principles which might govern any legally binding long-term relationship indicates that neither party can here objectively be taken to have intended to make any legally binding commitment of a long-term nature, and the law should not be ready to seek to fetter business relationships with its own view of what might represent appropriate business conduct, when parties have not chosen, or have not been willing or able, to do so in any identifiable legal terms themselves. These considerations, in my judgment, also make it wrong to afford relief based on estoppel, including relief limited to reliance loss, in the present context." As Mance LJ observed at [95] [96], even if the recognised principles of estoppel are "fertilised" by a broader approach exemplified in cases such as Holiday Inns , those cases are explained on the basis that the parties envisaged that rights already existed or they intended them to be created by contract.
Case: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1
Outcome: referred to
The first assumption is that QR would grant a lease or access "for so long as NRC carried on the business of interstate rail freight operations in Queensland" on a commercial basis, or for at least 30 years. The extent of any such business and the degree of repetition or continuity of the requisite activity are not spelled out: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 8 and United Dominions Corporation Limited v Brian Pty Limited [1985] HCA 49 ; (1985) 157 CLR 1 at 15. Although the period of the lease or access was said to be for 30 years, the terms were to be on a commercial basis. That expression cannot have the requisite degree of certainty absent the agreement of the parties as to the content of the terms.
Case: Hoyts' Pty Limited v Spencer [1919] HCA 64 ; (1919) 27 CLR 133
Outcome: referred to
The short answer to the status of documents such as the Task Force Report and the Heads of Government Agreement is that they were superseded by the EA. In an estoppel case, it is possible to put forward an understanding based on communications which preceded the execution of a written agreement: cf Hoyts' Pty Limited v Spencer [1919] HCA 64 ; (1919) 27 CLR 133; see Waltons at 399 403. But it seems to me that here any understandings or assumptions based on pre-contractual reports or heads could not be reasonable.
Case: Hurley v McDonald's Australia Limited (2000) ATPR 41-741
Outcome: cited
The categories of unconscionable conduct may not be closed but the authorities give some guidance as to the type of conduct which must be demonstrated so as to fall within the "unconscionable" label. What is required is "serious misconduct or something clearly unfair or unreasonable". The term "unconscionable" imports "a pejorative moral judgment": Hurley v McDonald's Australia Limited (2000) ATPR 41-741 (" Hurley ") at [22] per Heerey, Drummond and Emmett JJ, and Australian Competition and Consumer Commission v Oceana Commercial Pty Limited [2003] FCA 1516 at [336] per Kiefel J. 930 There is nothing to suggest serious misconduct of the type described by the Full Court in Hurley . There is no suggestion of unreasonable or bullying behaviour or any attempt to apply illegitimate pressure of the kind referred to by Sundberg J in No-Knead . This is hardly surprising given the identity of the parties.
Case: Ishac v David Securities Pty Limited (No 6) (1992) 7 ACSR 199
Outcome: referred to
However, difficulties arise in ascertaining the state of mind of large corporations: Brambles at 275. Different board members may hold different beliefs and it is sometimes possible to look beyond the resolutions of the board to the deliberations of individual board members as well as those of senior management: Ishac v David Securities Pty Limited (No 6) (1992) 7 ACSR 199 at 200-201 per Young J and the authorities there cited.
Case: Kellow-Falkiner Motors Pty Limited v Nimorakiotakis [2001] ANZ Conv R 230 referred to Krakowski v Eurolynx Properties Limited [1994] HCA 22 ; (1995) 183 CLR 563
Outcome: cited
In Krakowski v Eurolynx Properties Limited [1994] HCA 22 ; (1995) 183 CLR 563 at 582-3, the High Court approved the following statement of principle of Bright J in Brambles Holdings Limited v Carey (1976) 15 SASR 270 (" Brambles ") at 279:- "Always, when beliefs or opinions or states of mind are attributed to a company it is necessary to specify some person or persons so closely and relevantly connected with the company that the state of mind of that person or those persons can be treated as being identified with the company so that their state of mind can be treated as being the state of mind of the company." 823 This approach to the question of whether negotiations between parties gave rise to a tenancy by estoppel was adopted by the Victorian Court of Appeal in Kellow-Falkiner Motors Pty Limited v Nimorakiotakis [2001] ANZ Conv R 230 at 233 234. 824 NRC, as a well resourced, commercially sophisticated rail operator, advised by competent and experienced solicitors, must have know that it could not reasonably rely upon rights under a lease, or rights of access or management or control of the terminal in the absence of a written agreement. That is precisely what the last sentence of clause 5(6)(a) contemplated.
Case: Landsmiths Pty Limited v Hall (1999) 9 BPR 17,057
Outcome: cited
Negotiations commenced with the delivery by Mrs Fontaine of a draft lease to Mr Jenner on 20 May 1996. The correspondence between the parties shows that they were proceeding on the ordinary assumption that the parties were not bound until a formal contract had been drawn up and executed, the subject matter of the proposed agreement being a substantial lease of land: Australian Broadcasting Corporation v XIVth Commonwealth Games Limited (1988) 18 NSWLR 540 (" Commonwealth Games Case ") at 548, Long v Piper [2001] NSWCA 342 at [48] [55], Landsmiths Pty Limited v Hall (1999) 9 BPR 17,057 at [9]; see also Branir Pty Limited v Owston Nominees (No 2) Pty Limited [2001] FCA 1833 ; (2001) 117 FCR 424 at [365] and the authorities there cited.
Case: Long v Piper [2001] NSWCA 342
Outcome: cited
Negotiations commenced with the delivery by Mrs Fontaine of a draft lease to Mr Jenner on 20 May 1996. The correspondence between the parties shows that they were proceeding on the ordinary assumption that the parties were not bound until a formal contract had been drawn up and executed, the subject matter of the proposed agreement being a substantial lease of land: Australian Broadcasting Corporation v XIVth Commonwealth Games Limited (1988) 18 NSWLR 540 (" Commonwealth Games Case ") at 548, Long v Piper [2001] NSWCA 342 at [48] [55], Landsmiths Pty Limited v Hall (1999) 9 BPR 17,057 at [9]; see also Branir Pty Limited v Owston Nominees (No 2) Pty Limited [2001] FCA 1833 ; (2001) 117 FCR 424 at [365] and the authorities there cited.
Case: Low v Bouverie [1891] 3 Ch 82
Outcome: referred to
The principle may be traced to a decision of the English Court of Appeal in Low v Bouverie [1891] 3 Ch 82. Bowen LJ explained it as follows at 106:- "Now, an estoppel, that is to say, the language upon which the estoppel is founded, must be precise and unambiguous. That does not necessarily mean that the language must be such that it cannot possibly be open to different constructions, but that it must be such as will be reasonably understood in a particular sense by the person to whom it is addressed." 738 It seems to me to follow that, whatever species of estoppel falls for consideration, the assumption which is said to have been engendered must be clear and unambiguous. 739 I have drawn attention to the different assumptions held by Mr Graham and the other directors because, at very least, this must negate the requisite elements of clarity and certainty.
Case: Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Outcome: referred to
There are a number of reasons for this. First, any suggestion that a sitting government would act, or be likely to act, in a particular way based upon expressions of a particular point of view must usually be rejected. Although his Honour was dealing with principles of administrative law, it seems to me that what Gummow J said in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 207 211 applies equally in the present context. A discretion conferred by statute is to be exercised on a proper understanding of what the statute requires and, ordinarily, is not to be confined by a statement or decision which forecloses the discretion. 862 It seems to me to follow from this that any suggestion of a lost opportunity to obtain the benefit of Mr Hamill's support cannot be an opportunity which the law would recognise. 863 Second, there is nothing to suggest that a long lease would have been negotiated in the available time. It took nearly three years for the parties to agree the final terms of the three year lease that was the subject of the 4 April 1993 Heads. The good faith negotiations for a new lease which commenced in May 1996 had not culminated in an agreement after about 10 months of negotiations.
Case: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273
Outcome: referred to
The terms of the EA could, if supported by necessary evidence from the relevant minds on behalf of NRC, give rise to a "legitimate expectation" that the State of Queensland and QR would act conformably with the terms of the EA: see, in a different context, Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273. 699 However, any evidence given by the directors of NRC as to their expectations based upon reading the EA would have to be tested against the proper and ordinary construction of the EA. This is because of the principle stated in [668-(16)] that the adoption of any assumption by the party asserting the estoppel must be reasonable.
Case: Minister for Immigration and Multicultural Affairs v McDade [2001] FCA 457 ; (2001) 109 FCR 137
Outcome: cited
Second, the detriment which is to be established must be of a real or serious nature. If the alleged detriment is a lost opportunity, it must be one which is real and not theoretical: Minister for Immigration and Multicultural Affairs v McDade [2001] FCA 457 ; (2001) 109 FCR 137 at [28] , per Carr, Lindgren and Katz JJ; Nigel Watts Fashion Agencies Pty Limited v GIO General Limited (1994) 8 ANZ Ins Cas 61-235 at 75,644 per Kirby P and at 75,654 per Handley JA.
Case: Nigel Watts Fashion Agencies Pty Limited v GIO General Limited (1994) 8 ANZ Ins Cas 61-235
Outcome: referred to
Second, the detriment which is to be established must be of a real or serious nature. If the alleged detriment is a lost opportunity, it must be one which is real and not theoretical: Minister for Immigration and Multicultural Affairs v McDade [2001] FCA 457 ; (2001) 109 FCR 137 at [28] , per Carr, Lindgren and Katz JJ; Nigel Watts Fashion Agencies Pty Limited v GIO General Limited (1994) 8 ANZ Ins Cas 61-235 at 75,644 per Kirby P and at 75,654 per Handley JA.
Case: Payne v Parker (1976) 1 NSWLR 191
Outcome: cited
However here, Mr Lawrence was the source of the relevant information in the letters and in any event, QR disavowed any suggestion that the statements were made dishonestly. In these circumstances, I do not consider that Mr Smith's evidence would have elucidated this particular matter: see Payne v Parker (1976) 1 NSWLR 191 at 201 per Glass JA. 1192 I am not satisfied that NRC's consideration of QR's access applications involved anything other than a fair consideration of them on their merits, notwithstanding that NRC's responses were based on an erroneous assumption as to the overall capacity of the terminal. I do not consider that NRC was guilty of undue delay or obfuscation, as was suggested by QR. 1193 Accordingly, I have come to the view that NRC's failure to grant the access applications did not amount to taking advantage of market power. The relevant connection between NRC's market power and the impugned conduct was not, in my opinion, established.
Case: Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR 209
Outcome: cited
The fundamental right given by a lease is a right of exclusive possession: Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR 209 at 222. The nature of access contemplated by cl 5(6)(a), in order to distinguish it from a lease, must be a right of non-exclusive possession. But what is plain from the clause is that the grant of access is to be on commercial terms and conditions agreed between the parties. The extent of the rights of access would be a matter of construction of those terms, as agreed: Winter Garden Theatre (London) Limited v Millennium Productions Limited [1948] AC 173.
Case: Sebben v Partridge (unreported Supreme of South Australia, Lander J, 20 December 1994)
Outcome: referred to
It follows that I am not satisfied that the statements made in the relevant letters were incorrect. Moreover, I am not satisfied that the statements were made otherwise than honestly in good faith. It is true that Mr Smith was not called to give evidence, although a belated attempt was made to re-open to rely on his affidavit. But it is unnecessary for me to make a finding that his evidence would not have assisted; cf Sebben v Partridge (unreported Supreme of South Australia, Lander J, 20 December 1994). In that case, Lander J was of the view that a Jones v Dunkel inference was available where a defendant was not called, an unsuccessful attempt having been made to reopen after close of the defendant's case.
Case: Secured Income Real Estate (Australia) Limited v St Martins Investments Pty Limited [1979] HCA 51 ; (1979) 144 CLR 596
Outcome: referred to
Three clauses call for consideration. Clause 3 deals with the term of the amended Terminal Services Agreement. The initial term is for approximately two and a half years, to 5 October 2008. Renewal for a period of five years is conditional upon the existence of a Corridor Access Agreement for the full renewal period. Since QR owns the rail track from the border to the AR terminal, it would be under an implied duty to cooperate with PN in the grant of a Corridor Access Agreement: Secured Income Real Estate (Australia) Limited v St Martins Investments Pty Limited [1979] HCA 51 ; (1979) 144 CLR 596 at 607. 874 It is true that, under cl 3.2, extensions beyond the Renewal Term are in the discretion of QR. But there is nothing to suggest that QR would refuse to extend the agreement to PN which would, at least on the existing evidence, be its largest customer. Moreover, a refusal may trigger a claim of contravention of s 46 of the Act, although, of course, that would depend upon the factual circumstances at the time of any refusal.
Case: South Australia v Commonwealth [1962] HCA 10 ; (1962) 108 CLR 130
Outcome: referred to
QR submitted that the EA was a political agreement not intended to create legal relations: see eg South Australia v Commonwealth [1962] HCA 10 ; (1962) 108 CLR 130 ("Railways Standardisation Case") at 140, 148, 149, 150 and 153-154. There is considerable force in this submission. Mr Hanscomb acknowledged that the EA was a mixture of commercial arrangements and political imperatives. However, PN does not seek to enforce the EA. Rather, PN contends that the EA engendered assumptions founding an estoppel. 701 It is unnecessary for me to decide whether a political agreement is capable of providing the foundation for a claim in estoppel. I consider it unlikely to be so capable in the absence of a representation or other conduct which could have been relied upon. But even if the terms of the EA could give rise to an estoppel, the claim fails because PN's evidence of the assumptions said to arise from a reading of the EA rests upon two misconceptions. 702 First, "access" in cl 5(6)(a) is not to be given a meaning equivalent to "control" or "exclusive possession". To do so would be to construe "access" as conferring rights equivalent to a lease. That cannot be correct because cl 5(6)(a) specifically distinguishes between ownership, lease and access. It follows that "access" must import something different from the rights which would flow from a lease.
Case: Swain v Waverley Municipal Council (2005) 213 ALR 249
Outcome: referred to
Quite apart from the fact that Mr Lonergan's third report adopted a completely different approach and methodology to his previous report, there are a number of serious difficulties with his evidence which cause me to reject it. First, Mr Lonergan did not identify which costs were fixed and which were variable. Second, PN failed to discharge the onus of adducing evidence of all the costs of operations on the East Coast corridor. I could not be satisfied that Mr Lonergan's evidence matched the whole of PN's expenditure with the whole of its revenue. This criticism is directed at PN rather than Mr Lonergan. PN carried the evidentiary onus on this issue: Swain v Waverley Municipal Council (2005) 213 ALR 249 at [17], [151] [155]. 855 The evidence of QR's witness, Mr Bryant, is to be preferred, notwithstanding that both experts are well qualified. 856 The short answer to Mr Lonergan's attempt to offer a different approach to interest costs is that his first report was based on actual interest costs whereas his third report looked at interest in the nature of opportunity costs. A calculation of whether expenditure has been recouped is not concerned with lost opportunity costs. Accordingly, Mr Lonergan's approach to this issue in his third report was irrelevant to the issue at hand.
Case: Taco Company of Australia Inc v Taco Bell Pty Limited (1982) 42 ALR 177
Outcome: referred to
Whether conduct amounts to a representation is a question of fact to be determined against the background of all the surrounding circumstances: Taco Company of Australia Inc v Taco Bell Pty Limited (1982) 42 ALR 177 at 202; Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at [100] . The conduct must be considered as a whole: Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [39] .
Case: Tesco Supermarkets Limited v Nattrass [1971] UKHL 1 ; [1972] AC 153
Outcome: referred to
This of course is not a case in which a party seeks to impose liability upon PN for the civil wrongs of its servants or agents. In those cases the law is concerned with the search for the "directing mind and will" of the company: Tesco Supermarkets Limited v Nattrass [1971] UKHL 1 ; [1972] AC 153 (" Tesco ") at 170 171. In Tesco , Lord Reid said that normally the board of directors, the managing director and perhaps other senior officers speak and act as the company; see also per Viscount Dilhorne at 187 and see Federal Commissioner of Taxation v Whitfords Beach Pty Limited [1982] HCA 8 ; (1982) 150 CLR 355 at 370.
Case: Trade Practices Commission v Pioneer Concrete (Qld) Pty Limited (1994) 52 FCR 164 Eastern Express Pty Limited v General Newspapers Pty Limited (1992) 35 FCR 43 Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Limited (1991) 22 NSWLR 389
Outcome: referred to
The circumstances which may give rise to the absence of competitive constraint on a corporation are diverse. They are not confined to the matters identified in s 46(3): see Trade Practices Commission v Pioneer Concrete (Qld) Pty Limited (1994) 52 FCR 164 (" Pioneer Concrete ") at 172-173 and 176; see also Boral at [168] per Gaudron, Gummow and Hayne JJ. 970 The primary consideration in determining market power is whether there are barriers to entry into the relevant market: Pioneer Concrete at 173, citing Eastern Express Pty Limited v General Newspapers Pty Limited (1992) 35 FCR 43 (" Eastern Express ") at 62-63 per Lockhart and Gummow JJ. 971 A corporation will have a substantial degree of power in the market if it has a considerable or large degree of power: Eastern Express at 63. 972 In JD Heydon, Trade Practices Law : Restrictive Trade Practices, Deceptive Conduct and Consumer Protection, LBC, Vol 1, Sydney at [5.40], the learned author observes that s 46(1) is not concerned with a firm moving toward possession of a substantial degree of power in a market but only with a firm which has already gained possession of a substantial degree of power. This is because abuse of monopoly power consists of a corporation with the requisite degree of power taking advantage of it for a proscribed purpose. Unless the power presently exists there is nothing of which it can be said the corporation has taken advantage. 979 Alternatively, any power arising from QR's ownership of the AR terminal was constrained by the grant of exclusive possession to NRC: Melway at [43], Boral at [121], and Pioneer Concrete at 172-173 and 176. 1020 Mr Ergas' opinion is that QR has market power by reason of its ownership of the track but that the declaration and the undertaking go to the question of whether it has taken advantage of the power. However, that view seems to me to be contrary to the authorities referred to above, in particular Melway at [43], Boral at [121], and Pioneer Concrete at 172 -173 and 176.
Case: Transfield Pty Limited v Arlo International Limited [1980] HCA 15 ; (1980) 144 CLR 83
Outcome: referred to
PN will lose some flexibility in its ability to handle late trains. The wording of cl 6.7(a)(i) of the amended Draft Terminal Services Agreement is awkward, but in my opinion it imposes a positive obligation upon the Terminal Manager to do what is reasonable in the circumstances to provide services: Transfield Pty Limited v Arlo International Limited [1980] HCA 15 ; (1980) 144 CLR 83 (" Transfield ") at 101. In my view, the alteration to the clause in the draft of 6 July 2005 to replace "reasonable endeavours" with "best endeavours" does not affect the scope or content of the obligation prescribed by the clause. 876 Clause 7.5 and Schedule 2 of the amended Draft Terminal Services Agreement make provision for the allocation of capacity to PN for increases in the allocated monthly TEU. Schedule 4 lists the allocated monthly TEU which varies according to seasonal use. The total annual allocation is approximately 235,000 TEU, which is equal to PN's throughput for the year ended 30 June 2004, as stated in Mr Lawrence's evidence. However, Mr Lawrence said that he expected throughput of 270,000 to 280,000 TEU for the year ending 30 June 2005. 877 Schedule 2 provides for an automatic and permanent increase of 10% in the allocated monthly TEU upon notice to the Rail Operator. This would enable PN to come close to the anticipated 2005 throughput. 1105 The proper construction of cl 6.7 seems to me to impose an obligation on QR to use reasonable endeavours to provide services for late trains: see Transfield at 101. The proper construction of the clause is not controlled by the heading. The clause is not clearly expressed but the agreement to use "best endeavours" must be seen as a proviso to the opening words of cl 6.7(a)(i) which appear on their face to deny such an obligation. 1106 The business rationale for the clause is the efficient operation of the AR terminal, whilst at the same time making provision for QR to use reasonable endeavours to service PN's late trains. 1107 In summary, it is my opinion that even if QR had a substantial degree of power in the market at the time of the impugned conduct, it did not take advantage of the power.