mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: A &amp; L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047 ; (2007) 165 IR 94
Outcome: related
On 16 April last, declarations and orders were made in this proceeding following delivery of reasons for judgment on 11 April 2008 ( A &amp; L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466). Those reasons dealt with relief in relation to liability found earlier ( A &amp; L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047 ; (2007) 165 IR 94). The question of costs was reserved. The orders were varied by consent on 29 May 2008. Written submissions have been received as to costs. These reasons deal with that issue and assume familiarity with the previous judgments and orders.
Case: A &amp; L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2005] FCA 1658 ; (2005) 226 ALR 247
Outcome: related
There is another complication. Each applicant had discrete claims for relief. The claims by the first applicant were claims for damages. The second applicant brought claims for penalties for breach of the Workplace Relations Act . Neither applicant had any concrete interest in the claims of the other. The respondents objected to joinder. Joinder was permitted ( A &amp; L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2005] FCA 1658 ; (2005) 226 ALR 247 at [6] [12]). It was noted that the joinder of the causes of action complicated the long standing costs regime reflected in s 347 of the Workplace Relations Act . In the course of dealing with the question of security for costs which followed the permitting of joinder, the following was said ( A &amp; L Silvestri Pty Ltd [2005] FCA 1658 ; 226 ALR 247 at [13] ): "In my opinion, the joinder of applicants with the one set of solicitors and counsel has the consequence that Hadgkiss will be responsible for any order for costs which is made arising out of the proceedings, even if made in the Silvestri proceeding. The joinder is convenient for the applicants and liability for costs is one of the prices to be paid for that." That passage, of course, relates to the liability for costs rather than the entitlement to costs.
Case: Bahonko v Sterjov [2008] FCAFC 30
Outcome: followed
The first applicant seeks an order for costs of the claims for damages upon which it succeeded pursuant to s 82 of the Trade Practices Act 1974 (Cth) against the third to fifth respondents for acting in contravention of s 45D of the Trade Practices Act and the first and second respondents for being knowingly concerned in the contravention of s 45D. The respondents submit that such an order would be inconsistent with the decision of the Full Court in Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 ; (2007) 163 FCR 62 because of the effect of s 347 of the Workplace Relations Act 1996 (Cth) as it was applicable to this case (now s 824) or at least that there is a necessity to "enter the murky waters" of an inconsistency between that decision and Bahonko v Sterjov [2008] FCAFC 30. I do not agree. Bahonko [2008] FCAFC 30 establishes that a discrete federal claim is not affected by the restrictions on the award of costs in the Workplace Relations Act . This was a discrete federal claim (cf Thompson v Big Bert Pty Ltd [2008] FCA 792). However, full operation must be given to the effect of s 347 by ensuring that costs in relation to the discrete federal claim would only be awarded where those costs do not overlap with costs incurred in relation to the Workplace Relations Act claim.
Case: Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 ; (2007) 163 FCR 62
Outcome: distinguished
The first applicant seeks an order for costs of the claims for damages upon which it succeeded pursuant to s 82 of the Trade Practices Act 1974 (Cth) against the third to fifth respondents for acting in contravention of s 45D of the Trade Practices Act and the first and second respondents for being knowingly concerned in the contravention of s 45D. The respondents submit that such an order would be inconsistent with the decision of the Full Court in Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 ; (2007) 163 FCR 62 because of the effect of s 347 of the Workplace Relations Act 1996 (Cth) as it was applicable to this case (now s 824) or at least that there is a necessity to "enter the murky waters" of an inconsistency between that decision and Bahonko v Sterjov [2008] FCAFC 30. I do not agree. Bahonko [2008] FCAFC 30 establishes that a discrete federal claim is not affected by the restrictions on the award of costs in the Workplace Relations Act . This was a discrete federal claim (cf Thompson v Big Bert Pty Ltd [2008] FCA 792). However, full operation must be given to the effect of s 347 by ensuring that costs in relation to the discrete federal claim would only be awarded where those costs do not overlap with costs incurred in relation to the Workplace Relations Act claim. 3 There is another complication. The s 45D claim also overlapped with a claim in tort for inducing breach of contract. However, that claim is properly seen as associated with, or accrued in relation to, the Trade Practices Act claim rather than the Workplace Relations Act claim. Thus, Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 ; 163 FCR 62 is not applicable to it.
Case: Thompson v Big Bert Pty Ltd [2008] FCA 792
Outcome: cited
The first applicant seeks an order for costs of the claims for damages upon which it succeeded pursuant to s 82 of the Trade Practices Act 1974 (Cth) against the third to fifth respondents for acting in contravention of s 45D of the Trade Practices Act and the first and second respondents for being knowingly concerned in the contravention of s 45D. The respondents submit that such an order would be inconsistent with the decision of the Full Court in Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 ; (2007) 163 FCR 62 because of the effect of s 347 of the Workplace Relations Act 1996 (Cth) as it was applicable to this case (now s 824) or at least that there is a necessity to "enter the murky waters" of an inconsistency between that decision and Bahonko v Sterjov [2008] FCAFC 30. I do not agree. Bahonko [2008] FCAFC 30 establishes that a discrete federal claim is not affected by the restrictions on the award of costs in the Workplace Relations Act . This was a discrete federal claim (cf Thompson v Big Bert Pty Ltd [2008] FCA 792). However, full operation must be given to the effect of s 347 by ensuring that costs in relation to the discrete federal claim would only be awarded where those costs do not overlap with costs incurred in relation to the Workplace Relations Act claim.
Case: 3M Australia Pty Ltd v Kemish (1986) 10 ACLR 371
Outcome: followed
matters need to be established affirmatively by the plaintiffs in order to make out their cause of action. In determining whether the plaintiffs have proven each element of their cause of action I have applied the civil standard of proof, namely the balance of probabilities but I have done so consistently with, and bearing in mind, the "Briginshaw" approach. This was the standard of proof applied by Mandie J in Australian Securities and Investments Commission v Plymin [2003] VSC 123 ; (2003) 46 ACSR 126 at 208, after his Honour exhaustively considered and analysed relevant and applicable statutes and authorities. I do not consider that this approach is inconsistent with the observation of Foster J in 3M Australia Pty Ltd v Kemish (1986) 10 ACLR 371 at 376 where his Honour said, in relation to previous insolvent trading provisions in the Corporations Act : "Where the section is used to establish a head of civil liability, that liability must be established to the extent that its proof be 'Clear and cogent such as to induce, on a balance of probabilities, an actual persuasion of the mind as to the existence of (the liability)'". The distinction was explained succinctly in Tourprint International Pty Ltd v Bott (1999) 32 ACSR 201 at 215: "[67] "Expectation", as required by s 588H(2), means a higher degree of certainty than "mere hope or possibility" or "suspecting": 3M Australia Pty Ltd v Kemish (1986) 10 ACLR 371 at 378; Dunn v Shapowloff [1978] 2 NSWLR 235 at 249; (1978) 3 ACLR 775. The defence requires an actual expectation that the company was and would continue to be solvent, and that the grounds for so expecting are reasonable. A director cannot rely on a complete ignorance of or neglect of duty ( Metal Manufacturers Ltd v Lewis (1986) 11 ACLR 122 at 129) and cannot hide behind ignorance of the company's affairs which is of their own making or, if not entirely of their own making, has been contributed to by their own failure to make further necessary inquiries: Statewide Tobacco Services Ltd v Morley (1990) 2 ACSR 405 ; Morley v Statewide Tobacco Services Ltd [1993] 1 VR 423 ; (1992) 8 ACSR 305. " This passage was approved by Palmer J in Hall v Poolman (supra) at 180.
Case: Re United Medical Protection Ltd (prov liq appt) [2003] NSWSC 1031 ; (2003) 47 ACSR 705
Outcome: followed
authorities in relation to determining whether a person or a company is insolvent were exhaustively analysed by Mandie J in Australian Securities and Investments Commission v Plymin (supra) particularly at pars [370]-[380]. I do not propose to rehearse those authorities but would adopt, with respect, the analysis by Austin J in Re United Medical Protection Ltd (prov liq appt) [2003] NSWSC 1031 ; (2003) 47 ACSR 705 at 718 where his Honour said the following points emerge from Mandie J's review of the authorities: "whether or not a company is insolvent ... is a question of fact to be ascertained from a consideration of the company's financial position taken as a whole", and is a question to which '[c]ommercial realities will be relevant": Southern Cross Interiors Pty Ltd (in liq) v DCT [2001] NSWSC 621 ; (2001) 53 NSWLR 213 at 224; [2001] NSWSC 621 ; 188 ALR 114 at 124-5; [2001] NSWSC 621 ; 39 ACSR 305 at 316-17 per Palmer J; "it is useless to say that if its assets are realised there will be ample to pay 20 shillings in the pound: this is not the test. A company may be at the same time insolvent and wealthy": Re Tweed Garages Ltd [1962] Ch 406 at 410 per Plowman J; "it is thus of no consequence, of itself, that assets exceed liabilities, the important point being whether the company can pay its way in carrying on its business": see A R Keay, "The insolvency factor in the avoidance of antecedent transactions in corporate liquidations" (1995) 21 Monash Univ LR 305 at 307); "the question is not whether the debtor would be able, if time were given to him, to pay his debts out of his assets, but whether he is presently able to do so with moneys actually available": Bank of Australasia v Hall [1907] HCA 78 ; (1907) 4 CLR 1514 at 1528 per Griffith CJ; "It is the debtor's inability, utilising such cash resources as he has or can command through the use of his assets, to meet his debts as they fall due which indicates insolvency": Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 at 670 per Barwick CJ; "If, as a matter of substance, the company is not able to pay its debts as they become due, the circumstance that the relevant creditors may give the company some time before they actually seek to enforce their remedies, and the company may well be able to pay them out given that time, will not negative the application of the section": Standard Chartered Bank of Australia Ltd v Antico (Nos 1 &amp; 2) [1995] NSWSC 31 ; (1995) 38 NSWLR 290 at 331 per Hodgson J; "for the purpose of assessing insolvency, a contractual debt is taken to be payable at the time stipulated for payment in the contract, unless there is evidence of an express or implied agreement between the company and creditor for extension of time, or a course of conduct sufficient to give rise to an estoppel against the creditor, or an established practice in the industry or between the company and its creditors whereby debts are taken to be payable at some other time than provided for in the contract: Southern Cross Interiors at NSWLR 225; ALR 125 ; ACSR 317."
Case: Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation (2001) 188 ALR 114
Outcome: followed
Carroll relied upon a number of matters in support of his submission that the Company was not insolvent as at 31 December 2005 or thereafter during the relevant period. However, when considering these matters it is important to bear in mind, as referred to earlier in par [106], that the issue of solvency is a question of fact to be determined from an analysis of the Company's financial position taken as a whole, having regard to "commercial realities". A particular "commercial reality" is the extent to which a company's assets can be realised or made available as a security to raise money and the time it would take to do so. In this respect the observation of Palmer J in Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation [2001] NSWSC 621 ; (2001) 188 ALR 114 at par [54] is relevant: "In considering the company's financial position as a whole, the Court must have regard to commercial realities. Commercial realities will be relevant in considering what resources are available to the company to meet its liabilities as they fall due, whether resources other than cash are realisable by sale or borrowing upon security, and when such realisations are achievable."
Case: Lewis v Doran [2004] NSWSC 608 ; (2004) 50 ACSR 175
Outcome: followed
adopt, with respect, the observation of Palmer J in Lewis v Doran [2004] NSWSC 608 ; (2004) 50 ACSR 175 at 198-199: "[108] Where the question is retrospective insolvency, the court has the inestimable benefit of the wisdom of hindsight. One can see the whole picture, both before, as at and after the alleged date of insolvency. The court will be able to see whether as at the alleged date of insolvency the company was, or was not actually paying all of its debts as they fell due and whether it did, or did not, actually pay all those debts which, although not due as at the alleged date of insolvency, nevertheless became due at a time which, as a matter of commercial reality and common sense, had to be considered as at the date of insolvency. By reference to what actually happened, rather than to conflicting experts' opinions as to the implications of balance sheets, the court's task in assessing insolvency as at the alleged date should not be very difficult."
Case: Powell v Fryer [2001] SASC 59 ; (2001) 159 FLR 433
Outcome: followed
next issue to determine is whether at the time the Company was insolvent there were reasonable grounds for suspecting that the Company was insolvent or would so become insolvent as the case may be: s 588G(1)(c). The test prescribed by s 588G(1)(c) is an objective test: Powell v Fryer [2001] SASC 59 ; (2001) 159 FLR 433 , Hall v Poolman (supra) at 174. The concept of "suspecting" or "suspicion" involves having a state of mind which falls between having a firm belief or a significant degree of satisfaction that insolvency exists on the one hand and wondering whether it exists on the other. The concept of having a "suspicion" requires an affirmative feeling: Hall v Poolman (supra) at 174.
Case: Tourprint International Pty Ltd v Bott (1999) 32 ACSR 201
Outcome: followed
distinction was explained succinctly in Tourprint International Pty Ltd v Bott (1999) 32 ACSR 201 at 215: "[67] "Expectation", as required by s 588H(2), means a higher degree of certainty than "mere hope or possibility" or "suspecting": 3M Australia Pty Ltd v Kemish (1986) 10 ACLR 371 at 378; Dunn v Shapowloff [1978] 2 NSWLR 235 at 249; (1978) 3 ACLR 775. The defence requires an actual expectation that the company was and would continue to be solvent, and that the grounds for so expecting are reasonable. A director cannot rely on a complete ignorance of or neglect of duty ( Metal Manufacturers Ltd v Lewis (1986) 11 ACLR 122 at 129) and cannot hide behind ignorance of the company's affairs which is of their own making or, if not entirely of their own making, has been contributed to by their own failure to make further necessary inquiries: Statewide Tobacco Services Ltd v Morley (1990) 2 ACSR 405 ; Morley v Statewide Tobacco Services Ltd [1993] 1 VR 423 ; (1992) 8 ACSR 305. " This passage was approved by Palmer J in Hall v Poolman (supra) at 180.
Case: Attorney-General v Butterworth [1963] 1 QB 696
Outcome: followed
The jurisdiction to make such an order is undoubted. The Court will protect witnesses who have given evidence from subsequent victimisation or harassment: see Attorney-General v Butterworth [1963] 1 QB 696. This position has been followed in many jurisdictions including Victoria: see R v Wright (No1) [1968] VR 164.
Case: Australian Competition and Consumer Commission v Nuera Health Pty Ltd (In Liquidation) [2007] FCA 695
Outcome: cited
On 9 May 2007 Ryan J made orders granting injunctions based on findings of contraventions of the Trade Practices Act 1974 (Cth) against the respondents: Australian Competition and Consumer Commission v Nuera Health Pty Ltd (In Liquidation) [2007] FCA 695. The conduct of the respondents was of the most appalling nature. It involved exploiting the families of persons suffering from terminal cancer and defrauding them of substantial amounts of money. 2 Since Ryan J's order the respondents have persistently harassed the witnesses by sending them strange documents couched in pseudo-legal medieval language, including demands for some $294 million. Understandably, this has caused great distress to the witnesses and has revived their tragic memories. 3 The Australian Competition and Consumer Commission now seeks injunctions against those of the respondents who are individuals, that is, Paul John Rana, Christopher James Rana and Michael Lee Rana, to restrain them from communicating in any form whatsoever with the witnesses in relation to the subject matter of the proceeding or any other legal proceeding, from sending them documents of the kind mentioned and from demanding any payment of money from the witnesses.
Case: R v Wright (No1) [1968] VR 164
Outcome: cited
The jurisdiction to make such an order is undoubted. The Court will protect witnesses who have given evidence from subsequent victimisation or harassment: see Attorney-General v Butterworth [1963] 1 QB 696. This position has been followed in many jurisdictions including Victoria: see R v Wright (No1) [1968] VR 164.
Case: Carringbush Corporation Pty Ltd v ASIC (2008) 26 ACLC 506
Outcome: cited
question arises under s 468(1) of the Corporations Act 2001 (Cth): Carringbush Corporation Pty Ltd v ASIC [2008] FCA 474; (2008) 26 ACLC 506. Put in simple terms, the following distributions occurred in the 2001 income year. CEPL as trustee of the CU Trust distributed the entire income of the trust to or for the benefit of a discretionary unit holder, DCE Holdings Pty Ltd ("Clark Holdings") as trustee of the David Clark Family Trust (the "Clark Family Trust"). Clark Holdings distributed the income so received to David Clark Enterprises Pty Ltd ("Clark Enterprises") as trustee of the David Clark Enterprises Trust (the "Enterprises Trust") and Clark Enterprises distributed the income of the trust to David Clark and Helen Clark in equal shares as beneficiaries of that trust. By s 97 of the 1936 Act, the assessable income of David Clark and Helen Clark includes a 50% share of the net income of the Enterprises Trust and in the event that the taxpayers are not able to establish that the CU Trust estate suffered previously unapplied net capital losses extinguishing the net capital gain arising out of the disposal of the Gladstone properties in the 2001 income year, the net income of the Enterprises Trust will also include a significant part of the net capital gain (discounted by 50%) made by the CU Trust in the 2001 income year. Accordingly, the first question to be determined in these proceedings is whether the applicants have discharged the onus of establishing that in the 1988 income year, the trustee of the CU Trust acquired the Rothwells shares.
Case: Kemtron Industries Pty Ltd v Commissioner of Stamp Duties (Qld) [1984] 1 QdR 576
Outcome: cited
second break in continuity is said to arise out of the discharge of the trustee's right of indemnity on the footing that the discharge altered the trustee's interest in the trust estate. The trustee's right of indemnity constitutes a beneficial interest in the trust assets: Octavo Investments Pty Ltd v Knight (supra at [107] of these reasons). The right of indemnity continues notwithstanding the trustee's retirement from office and creditors of the trustee are entitled to be subrogated to the trustee's right of indemnity. The new trustee takes the trust property subject to the right of indemnity of its predecessor in office. The right of indemnity is consistent with the right of reimbursement conferred by s 59(4) of the Trustees Act 1925 (NSW) which applied to the CU Trust. The Commissioner says that the right of indemnity conferred as a matter of law is not capable of being excluded from the trust instrument: Kemtron Industries Pty Ltd v Commissioner of Stamp Duties (Qld) [1984] 1 QdR 576 at p 585. The Commissioner contends that the waiver of the right of indemnity was not brought about by any authorised amendment of the Trust Deed. Two things are said to flow from this. Firstly, the waiver of the former trustee's right of indemnity brought about a material change in the rights and obligations attaching to the trust property which was inconsistent with the continuity of the trust estate for tax purposes. Secondly, the release of the former trustee's right of indemnity is properly understood as an agreement which gave rise to a new trust in the same terms as the CU Trust absent the term as to indemnity and thus a new trust was brought into existence for the purposes of the general law.
Case: Dean-Willcocks v ATTT Investments Pty Ltd (1999) 17 ACLC 1310
Outcome: cited
In Dean-Willcocks v ATTT Investments Pty Ltd (1999) 17 ACLC 1310, an application was made under s 477(2A) for the Court's approval of an arrangement by which a secured creditor of the company would inject funds in exchange for a particular asset. There was no dispute about the monies owing. Young J held that the Court had no jurisdiction to grant approval under s 477(2A) because what was proposed was not a compromise of a debt, and that the proper course, if the liquidator wanted to pursue the matter, would be for him to seek directions under s 479(3). In Tietyens 31 ACSR 1, Weinberg J held that he lacked jurisdiction under s 477(2A) but gave directions under s 479(3).
Case: Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 925
Outcome: cited
Cases in which a liquidator has applied under both s 477(2A) and s 479(3) include HIH [2004] NSWSC 5 , QBE 56 ACSR 687, Re Gate Gourmet Australia Pty Ltd (in liq) (2005) 23 ACLC 834; Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 925 , and Re United Medical Protection; Application of Lombe Ltd (as prov liq) (2003) 46 ACSR 98.