mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZ v Minister for Immigration and Multicultural Affairs [2000] FCA 458 ; (2000) 172 ALR 172
Outcome: followed
granted, the amendment that Stacey Brothers seeks by its motion would expand the group of represented persons in the sense that the group would henceforth include persons who were not Waterco franchisees. In SZ v Minister for Immigration and Multicultural Affairs [2000] FCA 458 ; (2000) 172 ALR 172 , at 179, Lehane J held that O 6 r 13 did not allow an amendment that would expand the group of person on whose behalf an applicant had commenced a proceeding. The case might be distinguished on the basis that it concerned an applicant representative proceeding, as opposed to a respondent representative proceeding. I do not, however, consider that this approach would withstand scrutiny, because his Honour's reasoning is applicable in both kinds of representative proceedings. Further, there is no reason to doubt his Honour's reasoning. In this proceeding, if there were to be an amendment to expand the persons sought to be bound, the amendment would need to take place under O 6 r 2, governing the joinder of parties. This is not an amendment of a kind that might be made under O 13 r 2. Having regard to the terms of O 6 r 2, Stacey Brothers would be obliged to seek leave to amend pursuant to O 6 r 2(b). There is power under O 6 r 2(b) to join additional parties after the commencement of the proceeding. It is, however, a discretionary power. Stacey Brothers did not apply for leave under O 6 r 2 in respect of any particular respondent. Nor did it advance submissions in support of any discretionary exercise of the power in its favour in respect of any respondent. It is therefore inappropriate to say anything more about the possible application of O 6 r 2. It should be borne in mind that any amendment under O 6 r 2 would require amendment of the terms in which the substantive relief claimed in the proceeding is framed. This and other matters would fall for consideration in an application under O 6 r 2(b) to join additional parties.
Case: Bright v Femcare Ltd [2002] FCAFC 243 ; (2002) 195 ALR 574
Outcome: referred to
Brothers relied on passages in Bright v Femcare Ltd [2002] FCAFC 243 ; (2002) 195 ALR 574 at 580 [18] and 589 [79] per Lindgren J, in support of its argument that the respondents' challenge to the representative character of the proceeding was premature. I observe that this was a case under Pt IVA of the Federal Court of Australia Act , and that his Honours' comments were clearly directed to this legislation. Different considerations apply in a case such as this, where it is apparent even at this early stage that the putative group is not held together by the same interest, so as to satisfy O 6 r 13(1) of the Rules. For the reasons stated, I would dismiss Stacey Brothers' motion, with costs. I would order that the application and the statement of claim be struck out in so far as each refers to "the Represented persons", and in particular the following paragraphs be struck out: (a) in the application paragraph 9 (in its entirety) and paragraphs 1 to 5 and 7 (in so far as these paragraphs refer to "the Represented persons"); and (b) in the statement of claim paragraphs 4, 5, 30 and Schedule 1 (in their entirety) and paragraphs 10, 12, 13, 14, 16, 17, 18, 19, 20, 21, 23, 24, 27, 28 and 29 (in so far as these paragraphs refer to "the Represented persons"). Stacey Brothers will have seven days to file and serve an amended statement of claim in conformity with this order. Since the respondents have succeeded on their motion, they should also have their costs. At the commencement of these reasons, I noted that, after the hearing, the respondents sought leave to file a third affidavit by Mr Sloan. This affidavit concerned various matters, chiefly the printing and distribution of the Posters, and the information obtained as a result of inquiries made of Swimart franchisees. In a letter dated 13 March 2009, the respondents' solicitor wrote: The Respondents' position is that the content of the affidavit does not ... impact on the majority of the arguments raised by the Respondents and, subject to the stance taken by the Applicant, the Respondents propose that the Court decide on the Notices of Motion and arguments already advanced. If the Applicant wishes to be heard on matters arising from the affidavit then we propose that they be given the opportunity to file supplementary written submissions limited to those issues.
Case: Association of Land Financiers, In re (1878) 10 Ch D 269
Outcome: cited
The qualification to which I referred is this. In most applications for the removal of a liquidator it is necessary to find out the wishes of the persons really interested, in this case the creditors : In re Association of Land Financiers (1878) 10 Ch D 269. I propose here not to require that a meeting of creditors be convened for that purpose (a step that is sometimes taken before a liquidator is removed) but to request the plaintiffs to provide a copy of these reasons to the Australian Taxation Office (the Commissioner being by far the largest creditor) for the purpose of ascertaining whether it has any objection to Mr Cant remaining on as liquidator of Stafford Services. I will direct the plaintiffs to report to my associate within fourteen days the response (if any) received from the ATO. In the meantime, the orders that I will make should not be perfected. It may be necessary to recall them if the ATO takes any objection. 19 There will be orders as follows. Upon Mr Cant undertaking to resign as the liquidator of Burns International that Dennis Turner be appointed in his place; and upon Mr Cant undertaking to resign as the liquidator of Greight that Mathew Muldoon be appointed as liquidator in his place. Mr Cant's costs and expenses will be secured. I will also direct that the costs of all parties are to come out of the funds of Greight and Stafford Services. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 25 January 2006 Counsel for the Plaintiffs: R Brett QC M Galvin Solicitor for the Plaintiffs: Mills Oakley Lawyers Counsel for the Defendants: J Evans Solicitor for the Defendants: White Cleland Date of Hearing: 19 January 2006 Date of Judgment: 25 January 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/17.html
Case: Bank of Credit and Commerce International S.A. (No 8), In re [1998] AC 214
Outcome: cited
The corporate plaintiff's proprietary interest in that part of the trust fund that remains with Greight still subsists provided, of course, that Greight is not able to show that it is a bona fide purchaser for value without notice: Chief Commissioner of Stamp Duties for New South Wales v Buckle [1998] HCA 4 ; (1998) 192 CLR 226. The probability of this defence being made out is so unlikely that it may be put to one side. On this assumption, the corporate plaintiff could obtain an order for the sale of the trust property in the hands of Greight and payment out of the proceeds of an amount sufficient to discharge the indemnity ( Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584, 604) or if the trust property is constituted by a fund an order for the payment out of that fund ( Hewett v Court [1983] HCA 7 ; (1983) 149 CLR 639, 663). These rights, however, are rights in rem. They impose no personal obligations on the person who holds the trust assets: In re Diplock [1948] 1 Ch 465, 521; In re Bank of Credit and Commerce International S.A. (No 8) [1998] AC 214. This notwithstanding, the person with the right is often called a secured creditor. But there is no debtor.
Case: Blundell, In re (1888) 40 Ch D 370; (1889) 44 Ch D 1
Outcome: cited
In its dealings as trustee of the NP Trust, the corporate plaintiff incurred a debt of around $17 million to the Commissioner of Taxation. As a trustee it is entitled to be indemnified for that expense out of the trust fund of the NP Trust ( Octavo Investments Pty Ltd v Knight [1979] HCA 61 ; (1979) 144 CLR 360, 367) and has an equitable lien on the fund for such expense ( Jennings v Mather [1901] 1 QB 108). The equitable lien is a proprietary interest in the trust property: Octavo Investments Pty Ltd v Knight [1979] HCA 61 ; (1979) 144 CLR 360, 370. If the trust fund were in the hands of the corporate plaintiff, it could apply those funds in payment of the debt: Jennings v Mather [1901] 1 QB 108, 113-114. If necessary the trustee could sell trust property to pay out the debt: In re Blundell (1888) 40 Ch D 370, 377; (1889) 44 Ch D 1.
Case: Britton &amp; Millard Ltd, In re (1957) 107 L Jo 601
Outcome: cited
Before deciding what to do, let me make these preliminary observations. If there are, or are likely to be, disputes between companies in liquidation that are under the control of one liquidator then as a general rule different persons should be appointed as liquidator to each company: In re City and County Investment Co (Ltd) (1877) 25 WR 342; In re Britton &amp; Millard Ltd (1957) 107 L Jo 601. This is not to say that it is inappropriate to appoint one person as liquidator of a group of companies or of companies that are closely connected: In re Western Life Assurance Society; Ex parte Willett (1870) 5 Ch App 396. But once the likelihood of conflict becomes apparent it is necessary to take action.
Case: City and County Investment Co (Ltd), In re (1877) 25 WR 342
Outcome: cited
Before deciding what to do, let me make these preliminary observations. If there are, or are likely to be, disputes between companies in liquidation that are under the control of one liquidator then as a general rule different persons should be appointed as liquidator to each company: In re City and County Investment Co (Ltd) (1877) 25 WR 342; In re Britton &amp; Millard Ltd (1957) 107 L Jo 601. This is not to say that it is inappropriate to appoint one person as liquidator of a group of companies or of companies that are closely connected: In re Western Life Assurance Society; Ex parte Willett (1870) 5 Ch App 396. But once the likelihood of conflict becomes apparent it is necessary to take action.
Case: Deloitte &amp; Touche A.G. v Johnson [1999] UKPC 25 ; [1999] 1 WLR 1605
Outcome: discussed
The first question to consider is whether the plaintiffs (really only the corporate plaintiff) have standing to apply for the removal of Mr Cant. The application is made under s 503 of the Corporations Act 2001 (Cth). That section reads: "The Court may, on cause shown, remove a liquidator and appoint another liquidator." The section does not say (and none of its predecessors have said) who may make the application to remove a liquidator. That is left for the court to determine. As a matter of principle I think that any person with a real interest in the winding up of a company ( In re Rubber and Produce Investment Trust [1915] 1 Ch 382) has standing under the section. By a person with a real interest in the winding up, I mean one whose rights or interests will directly be affected by action taken by a liquidator in the course of performing his (the liquidator's) duties. If the company is solvent the persons with a real interest are the contributories. If it is insolvent they are the creditors. The Privy Council recently considered this question in Deloitte &amp; Touche A.G. v Johnson [1999] UKPC 25 ; [1999] 1 WLR 1605 in relation to the Companies Law of the Cayman Islands which, having regard to its origins, is rather similar to the Australian statute. There joint liquidators caused the company in liquidation to bring proceedings in negligence against the company's former auditors. One of the defendants to the action applied for the removal of the joint liquidators on the ground that they had a conflict of interest. The Privy Council advised that the liquidators ought not be removed. It did so on the basis that the plaintiff did not have standing to make the application. Lord Millett, who delivered the judgment of the Privy Council, said (at 1611) that in the case before the Board "[t]he only persons who could have any legitimate interest of their own in having the liquidators removed from office as liquidators are the persons entitled to participate in the ultimate distribution of the company's assets, that is to say the creditors."
Case: Diplock, In re [1948] 1 Ch 465
Outcome: cited
The corporate plaintiff's proprietary interest in that part of the trust fund that remains with Greight still subsists provided, of course, that Greight is not able to show that it is a bona fide purchaser for value without notice: Chief Commissioner of Stamp Duties for New South Wales v Buckle [1998] HCA 4 ; (1998) 192 CLR 226. The probability of this defence being made out is so unlikely that it may be put to one side. On this assumption, the corporate plaintiff could obtain an order for the sale of the trust property in the hands of Greight and payment out of the proceeds of an amount sufficient to discharge the indemnity ( Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584, 604) or if the trust property is constituted by a fund an order for the payment out of that fund ( Hewett v Court [1983] HCA 7 ; (1983) 149 CLR 639, 663). These rights, however, are rights in rem. They impose no personal obligations on the person who holds the trust assets: In re Diplock [1948] 1 Ch 465, 521; In re Bank of Credit and Commerce International S.A. (No 8) [1998] AC 214. This notwithstanding, the person with the right is often called a secured creditor. But there is no debtor.
Case: Hale v Omaha National Bank , 49 NY 626 (1872)
Outcome: cited
It is nevertheless possible that the corporate plaintiff has a personal claim against Greight. The trust fund presently in its possession is not sufficient to satisfy the indemnity. Shortly before its winding up, presumably at the instigation of Cardamone, Greight paid significant sums out of the fund. One payment which possibly came out of the fund was a sum of $2.290 million paid to Stafford Services. Why the payment was made is not known. If the corporate plaintiff can establish that part of the trust fund went to Stafford Services and that Stafford Services was not a bona fide purchaser for value, then the corporate plaintiff will be entitled to recover that property from it because its proprietary interest would not have been destroyed. On the other hand, if the right has been destroyed by Greight the corporate plaintiff may have an action against Greight for damages for the destruction of its lien. See Hovey v Elliott , 118 NY 124 (1890); Hale v Omaha National Bank , 49 NY 626 (1872); 1 Jones on Lien s, SS95 (1914) in relation to an action of this kind. Such a cause of action might also be maintained against Stafford Services if it has destroyed the charge in respect of any trust property coming into its possession.
Case: Hewett v Court [1983] HCA 7 ; (1983) 149 CLR 639
Outcome: cited
The corporate plaintiff's proprietary interest in that part of the trust fund that remains with Greight still subsists provided, of course, that Greight is not able to show that it is a bona fide purchaser for value without notice: Chief Commissioner of Stamp Duties for New South Wales v Buckle [1998] HCA 4 ; (1998) 192 CLR 226. The probability of this defence being made out is so unlikely that it may be put to one side. On this assumption, the corporate plaintiff could obtain an order for the sale of the trust property in the hands of Greight and payment out of the proceeds of an amount sufficient to discharge the indemnity ( Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584, 604) or if the trust property is constituted by a fund an order for the payment out of that fund ( Hewett v Court [1983] HCA 7 ; (1983) 149 CLR 639, 663). These rights, however, are rights in rem. They impose no personal obligations on the person who holds the trust assets: In re Diplock [1948] 1 Ch 465, 521; In re Bank of Credit and Commerce International S.A. (No 8) [1998] AC 214. This notwithstanding, the person with the right is often called a secured creditor. But there is no debtor.
Case: Hovey v Elliott , 118 NY 124 (1890)
Outcome: cited
It is nevertheless possible that the corporate plaintiff has a personal claim against Greight. The trust fund presently in its possession is not sufficient to satisfy the indemnity. Shortly before its winding up, presumably at the instigation of Cardamone, Greight paid significant sums out of the fund. One payment which possibly came out of the fund was a sum of $2.290 million paid to Stafford Services. Why the payment was made is not known. If the corporate plaintiff can establish that part of the trust fund went to Stafford Services and that Stafford Services was not a bona fide purchaser for value, then the corporate plaintiff will be entitled to recover that property from it because its proprietary interest would not have been destroyed. On the other hand, if the right has been destroyed by Greight the corporate plaintiff may have an action against Greight for damages for the destruction of its lien. See Hovey v Elliott , 118 NY 124 (1890); Hale v Omaha National Bank , 49 NY 626 (1872); 1 Jones on Lien s, SS95 (1914) in relation to an action of this kind. Such a cause of action might also be maintained against Stafford Services if it has destroyed the charge in respect of any trust property coming into its possession.
Case: Jennings v Mather [1901] 1 QB 108
Outcome: cited
In its dealings as trustee of the NP Trust, the corporate plaintiff incurred a debt of around $17 million to the Commissioner of Taxation. As a trustee it is entitled to be indemnified for that expense out of the trust fund of the NP Trust ( Octavo Investments Pty Ltd v Knight [1979] HCA 61 ; (1979) 144 CLR 360, 367) and has an equitable lien on the fund for such expense ( Jennings v Mather [1901] 1 QB 108). The equitable lien is a proprietary interest in the trust property: Octavo Investments Pty Ltd v Knight [1979] HCA 61 ; (1979) 144 CLR 360, 370. If the trust fund were in the hands of the corporate plaintiff, it could apply those funds in payment of the debt: Jennings v Mather [1901] 1 QB 108, 113-114. If necessary the trustee could sell trust property to pay out the debt: In re Blundell (1888) 40 Ch D 370, 377; (1889) 44 Ch D 1.
Case: Octavo Investments Pty Ltd v Knight [1979] HCA 61 ; (1979) 144 CLR 360
Outcome: cited
In its dealings as trustee of the NP Trust, the corporate plaintiff incurred a debt of around $17 million to the Commissioner of Taxation. As a trustee it is entitled to be indemnified for that expense out of the trust fund of the NP Trust ( Octavo Investments Pty Ltd v Knight [1979] HCA 61 ; (1979) 144 CLR 360, 367) and has an equitable lien on the fund for such expense ( Jennings v Mather [1901] 1 QB 108). The equitable lien is a proprietary interest in the trust property: Octavo Investments Pty Ltd v Knight [1979] HCA 61 ; (1979) 144 CLR 360, 370. If the trust fund were in the hands of the corporate plaintiff, it could apply those funds in payment of the debt: Jennings v Mather [1901] 1 QB 108, 113-114. If necessary the trustee could sell trust property to pay out the debt: In re Blundell (1888) 40 Ch D 370, 377; (1889) 44 Ch D 1.
Case: Rubber and Produce Investment Trust, In re [1915] 1 Ch 382
Outcome: cited
The first question to consider is whether the plaintiffs (really only the corporate plaintiff) have standing to apply for the removal of Mr Cant. The application is made under s 503 of the Corporations Act 2001 (Cth). That section reads: "The Court may, on cause shown, remove a liquidator and appoint another liquidator." The section does not say (and none of its predecessors have said) who may make the application to remove a liquidator. That is left for the court to determine. As a matter of principle I think that any person with a real interest in the winding up of a company ( In re Rubber and Produce Investment Trust [1915] 1 Ch 382) has standing under the section. By a person with a real interest in the winding up, I mean one whose rights or interests will directly be affected by action taken by a liquidator in the course of performing his (the liquidator's) duties. If the company is solvent the persons with a real interest are the contributories. If it is insolvent they are the creditors. The Privy Council recently considered this question in Deloitte &amp; Touche A.G. v Johnson [1999] UKPC 25 ; [1999] 1 WLR 1605 in relation to the Companies Law of the Cayman Islands which, having regard to its origins, is rather similar to the Australian statute. There joint liquidators caused the company in liquidation to bring proceedings in negligence against the company's former auditors. One of the defendants to the action applied for the removal of the joint liquidators on the ground that they had a conflict of interest. The Privy Council advised that the liquidators ought not be removed. It did so on the basis that the plaintiff did not have standing to make the application. Lord Millett, who delivered the judgment of the Privy Council, said (at 1611) that in the case before the Board "[t]he only persons who could have any legitimate interest of their own in having the liquidators removed from office as liquidators are the persons entitled to participate in the ultimate distribution of the company's assets, that is to say the creditors."
Case: Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584
Outcome: cited
The corporate plaintiff's proprietary interest in that part of the trust fund that remains with Greight still subsists provided, of course, that Greight is not able to show that it is a bona fide purchaser for value without notice: Chief Commissioner of Stamp Duties for New South Wales v Buckle [1998] HCA 4 ; (1998) 192 CLR 226. The probability of this defence being made out is so unlikely that it may be put to one side. On this assumption, the corporate plaintiff could obtain an order for the sale of the trust property in the hands of Greight and payment out of the proceeds of an amount sufficient to discharge the indemnity ( Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584, 604) or if the trust property is constituted by a fund an order for the payment out of that fund ( Hewett v Court [1983] HCA 7 ; (1983) 149 CLR 639, 663). These rights, however, are rights in rem. They impose no personal obligations on the person who holds the trust assets: In re Diplock [1948] 1 Ch 465, 521; In re Bank of Credit and Commerce International S.A. (No 8) [1998] AC 214. This notwithstanding, the person with the right is often called a secured creditor. But there is no debtor.
Case: Western Life Assurance Society; Ex parte Willett, In re (1870) 5 Ch App 396
Outcome: cited
Before deciding what to do, let me make these preliminary observations. If there are, or are likely to be, disputes between companies in liquidation that are under the control of one liquidator then as a general rule different persons should be appointed as liquidator to each company: In re City and County Investment Co (Ltd) (1877) 25 WR 342; In re Britton &amp; Millard Ltd (1957) 107 L Jo 601. This is not to say that it is inappropriate to appoint one person as liquidator of a group of companies or of companies that are closely connected: In re Western Life Assurance Society; Ex parte Willett (1870) 5 Ch App 396. But once the likelihood of conflict becomes apparent it is necessary to take action.