mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
Outcome: referred to
Want of good faith on a liquidator's part in the present context and elsewhere in the Act (e.g., in s 181) is not precisely the same as the concept of want of good faith in other areas of the law, as for example, in public law. The Act does not, however, define the concept of "good faith"; and the concepts of good and bad faith in the common law and elsewhere in statute are plainly related to the present matter. Thus, "there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 (" SBBS ") at 756 per Tamberlin, Mansfield and Jacobson JJ. The focus of an inquiry concerning an allegation of bad faith is the state of mind of the decision-maker. The Court is not simply evaluating the wisdom of an impugned decision. In Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 , Heerey and Kiefel JJ said at [8]: "As with other areas of the law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision ... which must be shown to have been taken in bad faith." Compare also Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127 at 130 per Finn J. This means that "mere error or irrationality does not of itself demonstrate lack of good faith ... [b]ad faith is not to be found simply because of poor decision-making": SBBS at 756 [45]. Rather, the circumstances must show dishonesty (or capriciousness) on the part of the decision-maker: compare Pledger v Secretary, Department of Family and Community Services [2002] FCA 1576 at [70] - [78] per Weinberg J. Something is done in "good faith" when done honestly. Something is done in "bad faith" when done dishonestly. These general principles must be applied to each of the purported bases of bad faith as alleged by Mr Spalla.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
Outcome: referred to
Want of good faith on a liquidator's part in the present context and elsewhere in the Act (e.g., in s 181) is not precisely the same as the concept of want of good faith in other areas of the law, as for example, in public law. The Act does not, however, define the concept of "good faith"; and the concepts of good and bad faith in the common law and elsewhere in statute are plainly related to the present matter. Thus, "there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 (" SBBS ") at 756 per Tamberlin, Mansfield and Jacobson JJ. The focus of an inquiry concerning an allegation of bad faith is the state of mind of the decision-maker. The Court is not simply evaluating the wisdom of an impugned decision. In Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 , Heerey and Kiefel JJ said at [8]: "As with other areas of the law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision ... which must be shown to have been taken in bad faith." Compare also Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127 at 130 per Finn J. This means that "mere error or irrationality does not of itself demonstrate lack of good faith ... [b]ad faith is not to be found simply because of poor decision-making": SBBS at 756 [45]. Rather, the circumstances must show dishonesty (or capriciousness) on the part of the decision-maker: compare Pledger v Secretary, Department of Family and Community Services [2002] FCA 1576 at [70] - [78] per Weinberg J. Something is done in "good faith" when done honestly. Something is done in "bad faith" when done dishonestly. These general principles must be applied to each of the purported bases of bad faith as alleged by Mr Spalla.
Case: Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127
Outcome: referred to
Want of good faith on a liquidator's part in the present context and elsewhere in the Act (e.g., in s 181) is not precisely the same as the concept of want of good faith in other areas of the law, as for example, in public law. The Act does not, however, define the concept of "good faith"; and the concepts of good and bad faith in the common law and elsewhere in statute are plainly related to the present matter. Thus, "there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 (" SBBS ") at 756 per Tamberlin, Mansfield and Jacobson JJ. The focus of an inquiry concerning an allegation of bad faith is the state of mind of the decision-maker. The Court is not simply evaluating the wisdom of an impugned decision. In Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 , Heerey and Kiefel JJ said at [8]: "As with other areas of the law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision ... which must be shown to have been taken in bad faith." Compare also Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127 at 130 per Finn J. This means that "mere error or irrationality does not of itself demonstrate lack of good faith ... [b]ad faith is not to be found simply because of poor decision-making": SBBS at 756 [45]. Rather, the circumstances must show dishonesty (or capriciousness) on the part of the decision-maker: compare Pledger v Secretary, Department of Family and Community Services [2002] FCA 1576 at [70] - [78] per Weinberg J. Something is done in "good faith" when done honestly. Something is done in "bad faith" when done dishonestly. These general principles must be applied to each of the purported bases of bad faith as alleged by Mr Spalla.
Case: Pledger v Secretary, Department of Family and Community Services [2002] FCA 1576
Outcome: referred to
Want of good faith on a liquidator's part in the present context and elsewhere in the Act (e.g., in s 181) is not precisely the same as the concept of want of good faith in other areas of the law, as for example, in public law. The Act does not, however, define the concept of "good faith"; and the concepts of good and bad faith in the common law and elsewhere in statute are plainly related to the present matter. Thus, "there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 (" SBBS ") at 756 per Tamberlin, Mansfield and Jacobson JJ. The focus of an inquiry concerning an allegation of bad faith is the state of mind of the decision-maker. The Court is not simply evaluating the wisdom of an impugned decision. In Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 , Heerey and Kiefel JJ said at [8]: "As with other areas of the law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision ... which must be shown to have been taken in bad faith." Compare also Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127 at 130 per Finn J. This means that "mere error or irrationality does not of itself demonstrate lack of good faith ... [b]ad faith is not to be found simply because of poor decision-making": SBBS at 756 [45]. Rather, the circumstances must show dishonesty (or capriciousness) on the part of the decision-maker: compare Pledger v Secretary, Department of Family and Community Services [2002] FCA 1576 at [70] - [78] per Weinberg J. Something is done in "good faith" when done honestly. Something is done in "bad faith" when done dishonestly. These general principles must be applied to each of the purported bases of bad faith as alleged by Mr Spalla.
Case: Star v Silvia (No 1) (1994) 12 ACLC 600
Outcome: referred to
In the context of this case, two considerations must be borne steadily in mind. First, s 545(1) of the Act provides that a liquidator is not liable to incur any expense in relation to the winding up of a company unless there is sufficient available property. Secondly (by way of reiteration) the courts are generally "loath to enter into the area where the professional liquidator has made a commercial decision which he considers benefits the stakeholders whom he represents, at least unless something is pointed to which suggests that there are some vitiating factors which entered into the making of the decision": see Star v Silvia (No 1) (1994) 12 ACLC 600 at 604 per Young J; Sanderson v Classic Car Insurances Pty Ltd (1986) 4 ACLC 114 at 116 per Young J; Northbourne at 440; Westpac v Totterdell at 453-454 per Ipp J (with whom Pidgeon and White JJ agreed); and Cook v Northoak Holdings Pty Ltd (1997) 25 ACSR 517.
Case: Sanderson v Classic Car Insurances Pty Ltd (1986) 4 ACLC 114
Outcome: referred to
In the context of this case, two considerations must be borne steadily in mind. First, s 545(1) of the Act provides that a liquidator is not liable to incur any expense in relation to the winding up of a company unless there is sufficient available property. Secondly (by way of reiteration) the courts are generally "loath to enter into the area where the professional liquidator has made a commercial decision which he considers benefits the stakeholders whom he represents, at least unless something is pointed to which suggests that there are some vitiating factors which entered into the making of the decision": see Star v Silvia (No 1) (1994) 12 ACLC 600 at 604 per Young J; Sanderson v Classic Car Insurances Pty Ltd (1986) 4 ACLC 114 at 116 per Young J; Northbourne at 440; Westpac v Totterdell at 453-454 per Ipp J (with whom Pidgeon and White JJ agreed); and Cook v Northoak Holdings Pty Ltd (1997) 25 ACSR 517.
Case: Cook v Northoak Holdings Pty Ltd (1997) 25 ACSR 517
Outcome: referred to
In the context of this case, two considerations must be borne steadily in mind. First, s 545(1) of the Act provides that a liquidator is not liable to incur any expense in relation to the winding up of a company unless there is sufficient available property. Secondly (by way of reiteration) the courts are generally "loath to enter into the area where the professional liquidator has made a commercial decision which he considers benefits the stakeholders whom he represents, at least unless something is pointed to which suggests that there are some vitiating factors which entered into the making of the decision": see Star v Silvia (No 1) (1994) 12 ACLC 600 at 604 per Young J; Sanderson v Classic Car Insurances Pty Ltd (1986) 4 ACLC 114 at 116 per Young J; Northbourne at 440; Westpac v Totterdell at 453-454 per Ipp J (with whom Pidgeon and White JJ agreed); and Cook v Northoak Holdings Pty Ltd (1997) 25 ACSR 517.
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: referred to
Further, I reject Mr Spalla's suggestion that I should draw inferences (under the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298) against Mr Rambaldi because Mr Rambaldi failed to call those with whom he negotiated the terms of Deed. Mr Spalla claimed that there was no explanation for the failure to call these witnesses and that they could have provided evidence as to whether the parties understood the Deed to operate as an offer of settlement. While the surrounding circumstances may be relevant to construction, the terms of the condition precedent are clear. No reasonable observer could have interpreted the Deed as anything other than an offer. The language of the document admits of only one meaning: compare Australian Broadcasting Commission v Australian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99 (" ABC v APRA ") at 105-107 per Barwick CJ and 114-115 per Stephen J. The subjective views of the parties to the Deed are not relevant: see Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 (" Pacific Carriers ") at 461-462 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 (" Toll ") at 179 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ. Accordingly, the fact that Mr Rambaldi did not call the other parties to the Deed does not bear on the issue.
Case: Australian Broadcasting Commission v Australian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99
Outcome: referred to
Further, I reject Mr Spalla's suggestion that I should draw inferences (under the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298) against Mr Rambaldi because Mr Rambaldi failed to call those with whom he negotiated the terms of Deed. Mr Spalla claimed that there was no explanation for the failure to call these witnesses and that they could have provided evidence as to whether the parties understood the Deed to operate as an offer of settlement. While the surrounding circumstances may be relevant to construction, the terms of the condition precedent are clear. No reasonable observer could have interpreted the Deed as anything other than an offer. The language of the document admits of only one meaning: compare Australian Broadcasting Commission v Australian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99 (" ABC v APRA ") at 105-107 per Barwick CJ and 114-115 per Stephen J. The subjective views of the parties to the Deed are not relevant: see Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 (" Pacific Carriers ") at 461-462 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 (" Toll ") at 179 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ. Accordingly, the fact that Mr Rambaldi did not call the other parties to the Deed does not bear on the issue.
Case: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451
Outcome: referred to
Further, I reject Mr Spalla's suggestion that I should draw inferences (under the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298) against Mr Rambaldi because Mr Rambaldi failed to call those with whom he negotiated the terms of Deed. Mr Spalla claimed that there was no explanation for the failure to call these witnesses and that they could have provided evidence as to whether the parties understood the Deed to operate as an offer of settlement. While the surrounding circumstances may be relevant to construction, the terms of the condition precedent are clear. No reasonable observer could have interpreted the Deed as anything other than an offer. The language of the document admits of only one meaning: compare Australian Broadcasting Commission v Australian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99 (" ABC v APRA ") at 105-107 per Barwick CJ and 114-115 per Stephen J. The subjective views of the parties to the Deed are not relevant: see Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 (" Pacific Carriers ") at 461-462 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 (" Toll ") at 179 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ. Accordingly, the fact that Mr Rambaldi did not call the other parties to the Deed does not bear on the issue. 176 The LFA was a commercial contract. The High Court outlined the principles for construing such contracts in Pacific Carriers and Toll . In Pacific Carriers at 462 the High Court said that the process of construction "requires consideration not only of the text of the documents, but also the surrounding circumstances known to [the parties to the contract], and the purpose and object of the transaction": Pacific Carriers at 462. This approach was reaffirmed in Toll , where the High Court said at 179: "It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction ." (Citations omitted; emphasis added)
Case: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: referred to
Further, I reject Mr Spalla's suggestion that I should draw inferences (under the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298) against Mr Rambaldi because Mr Rambaldi failed to call those with whom he negotiated the terms of Deed. Mr Spalla claimed that there was no explanation for the failure to call these witnesses and that they could have provided evidence as to whether the parties understood the Deed to operate as an offer of settlement. While the surrounding circumstances may be relevant to construction, the terms of the condition precedent are clear. No reasonable observer could have interpreted the Deed as anything other than an offer. The language of the document admits of only one meaning: compare Australian Broadcasting Commission v Australian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99 (" ABC v APRA ") at 105-107 per Barwick CJ and 114-115 per Stephen J. The subjective views of the parties to the Deed are not relevant: see Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 (" Pacific Carriers ") at 461-462 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 (" Toll ") at 179 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ. Accordingly, the fact that Mr Rambaldi did not call the other parties to the Deed does not bear on the issue. 176 The LFA was a commercial contract. The High Court outlined the principles for construing such contracts in Pacific Carriers and Toll . In Pacific Carriers at 462 the High Court said that the process of construction "requires consideration not only of the text of the documents, but also the surrounding circumstances known to [the parties to the contract], and the purpose and object of the transaction": Pacific Carriers at 462. This approach was reaffirmed in Toll , where the High Court said at 179: "It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction ." (Citations omitted; emphasis added)
Case: Re Club Superstores Australia Pty Ltd (In Liquidation) (1993) 10 ACSR 730
Outcome: referred to
In the afternoon of 29 April 2005, Mr Spalla had asked Mr Rambaldi not to come to an agreement with the respondents without first consulting him. At no time that day, did Mr Rambaldi conclude an agreement with the respondents. Mr Spalla was notified of the respondents' offer at the close of business that day. At that point, he had seven days in which to satisfy Mr Rambaldi that Irlmond, with Mr Rambaldi as liquidator, should continue to pursue the primary proceeding and the appeals, alternatively, to make some other arrangement that would permit Irlmond to litigate its claims, though without Mr Rambaldi. It is true that it was not for Mr Spalla to decide whether to continue with or terminate Irlmond's participation in the primary proceeding. This decision was left with Mr Rambaldi, who might or might not act to secure his partners' consent. This was, however, in keeping with the LFA and the duty of a liquidator to act independently, in the best interests of the company and its creditors: compare Re Club Superstores Australia Pty Ltd (In Liquidation) (1993) 10 ACSR 730 at 734-735 per Thomas J (and the cases there cited); Re Allebart Pty Ltd (In Liquidation) and the Companies Act [1971] 1 NSWLR 25 at 28 per Street J; and AR Keay, McPherson The Law of Company Liquidation (4 th ed, LBC information Services, 1999) at 291. In any event the effect of the offer was made clear at the meeting at the coffee shop on the Monday morning. Mr Rambaldi acted consistently with this in the days prior to 6 May 2005.
Case: Re Allebart Pty Ltd (In Liquidation) and the Companies Act [1971] 1 NSWLR 25
Outcome: referred to
In the afternoon of 29 April 2005, Mr Spalla had asked Mr Rambaldi not to come to an agreement with the respondents without first consulting him. At no time that day, did Mr Rambaldi conclude an agreement with the respondents. Mr Spalla was notified of the respondents' offer at the close of business that day. At that point, he had seven days in which to satisfy Mr Rambaldi that Irlmond, with Mr Rambaldi as liquidator, should continue to pursue the primary proceeding and the appeals, alternatively, to make some other arrangement that would permit Irlmond to litigate its claims, though without Mr Rambaldi. It is true that it was not for Mr Spalla to decide whether to continue with or terminate Irlmond's participation in the primary proceeding. This decision was left with Mr Rambaldi, who might or might not act to secure his partners' consent. This was, however, in keeping with the LFA and the duty of a liquidator to act independently, in the best interests of the company and its creditors: compare Re Club Superstores Australia Pty Ltd (In Liquidation) (1993) 10 ACSR 730 at 734-735 per Thomas J (and the cases there cited); Re Allebart Pty Ltd (In Liquidation) and the Companies Act [1971] 1 NSWLR 25 at 28 per Street J; and AR Keay, McPherson The Law of Company Liquidation (4 th ed, LBC information Services, 1999) at 291. In any event the effect of the offer was made clear at the meeting at the coffee shop on the Monday morning. Mr Rambaldi acted consistently with this in the days prior to 6 May 2005.