mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Qantas Airways Ltd v Cameron [1996] FCA 1483 ; (1996) 66 FCR 246
Outcome: cited
Finn and Conti JJ held that the analogue of s 51AC required the Court to focus primarily on the unconscionable conduct of the corporation and to determine whether that conduct was contrary to the norm of conscientious behaviour. They held that the conduct in that case insisted of a carefully formulated and systematic approach which clearly offended against basic notions of good conscience and fair play: National Exchange at 148 FCR at 143 [44]. Although their Honours were speaking of s 12CC of the ASIC Act , their remarks apply equally to the notion of 'unconscionable conduct' in its analogue, s 51AC: Cannon Australia Pty Ltd v Patton [2007] NSWCA 246 at [43] per Campbell JA, with whom Harrison J agreed. Campbell JA had referred ([2007] NSWCA 246 at [40]) to the earlier decision of a Full Court of this Court in Hurley v McDonald's Australia Ltd [1999] FCA 1728 ; (2000) ATPR 41-741 at [21] - [22] . There Heerey, Drummond and Emmett JJ said that for conduct to be regarded at an unconscionable, serious misconduct or something clearly unfair or unreasonable had to be demonstrated. They found that the term carried with it the meaning given by the Shorter Oxford English Dictionary, namely '... actions showing no regard for conscience, or that are irreconcilable with what is right or reasonable', relying on Qantas Airways Ltd v Cameron [1996] FCA 1483 ; (1996) 66 FCR 246 at 262.
Case: R v Burdett (1820) 4 B &amp; Ald 95
Outcome: cited
is a balance of deductions from Hoy Mobile's commissions that comes to $3,581.49, which the experts agreed related to the credit charge fees, EFTPOS fees, IT fees, or late banking fees. However, they were unable to allocate that sum among the individual categories. In my opinion, it was for Allphones to justify its deductions. Hoy Mobile has established that Allphones made substantial deductions from commission amounts it was paid without a contractual basis. Mr Nicoll could have given evidence as to any basis for reducing the unallocated balance but did not. And, in their reports neither Mr Nicoll nor the two expert accountants could allocate the sums involved. Hoy Mobile has discharged any onus on it: Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63 at 64; [1774] EngR 2 ; 98 ER 969 at 970; Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ and see too at 233 per Brennan and Toohey JJ; R v Burdett (1820) 4 B &amp; Ald 95 at 161-162 per Abbott LCJ at 140 per Holroyd J; 106 ER 873 at 898 and 890. Since Allphones did not justify any portion of this balance as a fee payable by Hoy Mobile, the whole amount claimed by it should be paid by Allphones.. 25.5 Retention canvassing
Case: R v Paulson [1921] 1 AC 271
Outcome: cited
also argued that cll 15 and 16 operated to prevent Hoy Mobile relying on any election, by Allphones to keep the franchise agreement on foot, which was not in writing. Because of my findings above it is not necessary to consider the application of R v Paulson [1921] 1 AC 271 at 282-283 to cll 15 and 16 on which Hoy Mobile relied. However, their Lordships indicated that the issue depends on the facts for they said, as Owen J pointed out in Owendale Pty Ltd v Anthony [1967] HCA 52 ; (1967) 117 CLR 539 at 610, that '[i]t may well be that many cases may occur to which the clause as to waiver would be applicable' before saying that, in that case, it was not: see too Owendale 117 CLR at 590 per Taylor J with whom Barwick CJ agreed on this issue at 569; per McTiernan J at 581; per Kitto J at 581-582. And, in any event, contractual provisions like cll 15 and 16 are strictly construed: Craine 28 CLR at 325-326; affirmed in Yorkshire Insurance Co Ltd v Craine [1922] 2 AC 541 at 546; (1922) 31 CLR 27 ; see too Melbourne Harbour Trust Commissioners v Hancock [1927] HCA 26 ; (1927) 39 CLR 570 at 584 per Knox CJ and Gavan Duffy J; 589 per Isaacs J; 590 per Rich J; and 594 per Starke J.
Case: Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR 209
Outcome: referred to
the franchise agreement with Hoy Mobile distinguished between the franchised premises for Hoy Mobile, the shop, and the territory. It would be commercially absurd for Allphones to contract, as in cl 2, that it would not operate a franchised business in 'the Territory' where that territory was a leased shop of which its franchisee had exclusive possession: Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR 209. So much was recognised by Mr Donnellan when he said in evidence: 'You can't go and open, I mean fundamental tenancy law, you can't go and open within the lease line of a lessee's premises. We didn't hold the lease.' 3.3 Findings regarding territory For the reasons I have given, I do not accept either Mr Hoy or Mr Donnellan's account of his conversation with the other concerning what the territory was to be. The remaining possibilities are that 'N/A' was literally the territory agreed between the parties, so that there was no territory at all; or that there was some other meaning of territory. Allphones argued that the agreement could work perfectly well without the specification of a territory. I reject that argument. A reasonable person in the position of the parties would have considered that the exclusive territory, to which cl 2 of the franchise agreement referred, was an essential term. In doing so, they would be mindful, both, that the China Lakes agreement had used a simple means of defining the territory by making it the suburb in which the franchised premises were, and that the Code required specification of, first, a territory, and secondly, whether the territory was exclusive, non-exclusive or limited to a particular site (Annexure 1 of the Code, cl 8.1). In that specification, the Code recognised that a 'particular site' was different to an exclusive territory.
Case: Rawson v Hobbs [1961] HCA 72 ; (1961) 107 CLR 466
Outcome: referred to
CJ applied what Dixon CJ had said in Rawson v Hobbs [1961] HCA 72 ; (1961) 107 CLR 466 at 481 (see Foran 168 CLR at 405-406). Dixon CJ had said in Rawson 107 CLR at 481 (Windeyer J agreed at 107 CLR at 492): 'One must be very careful to see that nothing but a substantial incapacity or definitive resolve or decision against doing in the future what the contract requires is counted as an absence of readiness and willingness. On the other hand it is absurd to treat one party as tied to the performance of an executory contract although the other has neither the means nor intention of performing his part when his turn comes, simply because his incapacity to do so is not necessarily final or logically complete.' Brennan J ( Foran 168 CLR at 424) said: 'Where a party claims to be entitled to rescind an executory contract on account of the other party's repudiation (whether by way of anticipatory breach or incapacity), the first party must show not only the other's repudiation but his own readiness and willingness up to the time of rescission to perform his essential obligations under the contract: [ Rawson 107 CLR at 480-481] ... Since a party's right to rescind an executory contract for the other party's repudiation is limited to cases where the first party is ready and willing to perform, neither party is treated as without fault where both would be at fault were the contract to continue until the time for performance arrives .' (emphasis added) He too applied what Dixon CJ had said in Rawson 107 CLR at 481, see Foran 168 CLR at 425. When Brennan J referred to an entitlement to rescind, he used 'rescind' in the sense of one party electing to terminate for breach or repudiation by the other, as explained in Commissioner of Taxation v Reliance Carpet Co Pty Ltd [2008] HCA 22 at [2] per Gleeson CJ, Gummow, Heydon, Crennan and Kiefel JJ.
Case: Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 186 ALR 289 ; 76 ALJR 436 ; [2002] HCA 5
Outcome: referred to
in Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 186 ALR 289 ; 76 ALJR 436 ; [2002] HCA 5 at [10] , Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said: ' [10] In Codelfa , Mason J (with whose judgment Stephen J and Wilson J agreed) referred to authorities (In particular, speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381 at 1383-5; [1971] 3 All ER 237 at 239-41; L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2 ; [1974] AC 235 at 261; [1973] UKHL 2 ; [1973] 2 All ER 39 at 53; and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-7; [1976] 3 All ER 570 at 574-6) which indicated that, even in respect of agreements under seal, it is appropriate to have regard to more than internal linguistic considerations and to consider the circumstances with reference to which the words in question were used and, from those circumstances, to discern the objective which the parties had in view. In particular, an appreciation of the commercial purpose of a contract: ( Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-6; [1976] 3 All ER 570 at 574) "... presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating." Such statements exemplify the point made by Brennan J in his judgment in Codelfa: ((1982) [1982] HCA 24 ; 149 CLR 337 at 401; [1982] HCA 24 ; 41 ALR 367 at 416) "The meaning of a written contract may be illuminated by evidence of facts to which the writing refers, for the symbols of language convey meaning according to the circumstances in which they are used."'
Case: Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596
Outcome: applied
general, each party to a contract agrees, by implication, to do all that is necessary on its part to enable the other party to have the benefit of the contract: Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 at 607 per Mason J applying what Griffith CJ had said in Butt v M'Donald (1896) 7 QLJ 68 at 70-71. A duty to co-operate is not always implied. Whether it will be is a question of construction based on an objective consideration of the whole of the terms of the contract: Secured Income 144 CLR at 607-608 per Mason J. Here, the work to refresh the Eastgardens store included the new Optus broadband display cabinet. Since Optus paid Allphones the money in order to achieve the installation of that work, it was necessary for Allphones, when exercising its contractual power to impose a reasonable charge for the work, to apply Optus' payment in reduction of the amount Hoy Mobile had to pay. I am of opinion that cll 4, 6.23 or 6.35 and the franchise agreement as a whole, entitled Allphones to charge Hoy Mobile for no more than the reasonable cost to it of the work required for the fit out. If Allphones received money from carriers to do some of the fit out or refresh work or to defray its cost, it could not use any contractual power to reimburse itself by charging its franchisee with a sum greater than the reasonable cost that Allphones had incurred. The powers in the franchise agreement, on which Allphones relied to impose and charge for the store refresh, did not authorise it to make a profit from Hoy Mobile by requiring it to effect the store refresh for the benefit of a carrier, like Optus, yet retaining co-op sums paid by the carrier to Allphones to defray the very cost of that fit out. These clauses entitled Allphones to act reasonably for the purpose of giving effect to them. They did not confer a power to act capriciously. Allphones led no evidence to justify the reasonableness of the round figure of $10,000 as the charge it sought to impose on the franchisees, including Hoy Mobile. Both parties had to co-operate to bring about the refresh. Hoy Mobile had to permit the shopfitters access to its store, and pay for the reasonable cost of the work. Allphones had to arrange for the work to be designed and carried out, as well as to fix a charge which was a reasonable reflection of the cost it incurred in respect of the refresh. It was not entitled to profit by use of its powers under the franchise agreement to impose a reasonable charge as cost of the work to be done.
Case: Sellars v Adelaide Petroleum NL [1994] HCA 4 ; (1992) 179 CLR 332
Outcome: applied
am satisfied that Allphones was responsible for the diversion of calls from Hoy Mobile's territory of Eastgardens because of, first, the inappropriate programming by Zintel from March 2006 and, secondly, from October 2006 its own failure to correct what it knew was a problem. I am satisfied that Hoy Mobile lost the opportunity to make some sales from calls to the 138000 number during the period of the diversion. I am also satisfied that this loss had some value. Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat an award of damages: see Sellars v Adelaide Petroleum NL [1994] HCA 4 ; (1992) 179 CLR 332 at 349-350 per Mason CJ, Dawson, Toohey and Gaudron JJ. However, it is not possible to make any precise calculation of the value of this loss, which included payments under cll 7.3 and 7.4 and the ongoing right to receive MTAC. Doing the best I can, I find the value of this to be the loss of about 1% of the sales of the Randwick store made during the period of the diversion. That results in a past loss of about $900, but this amount excludes any MTAC which Hoy Mobile would have earned after March 2007 on those sales. Although there is some guesswork involved, I find the total loss of Hoy Mobile as a result of the diversion to be $1,500: see generally Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 ; (2003) 196 ALR 257 at [37] - [38] per Hayne J with whom Gleeson CJ, McHugh and Kirby JJ agreed: Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd [2007] FCAFC 40 ; (2007) 157 FCR 564 at 569-570 [35] - [36] per Black CJ and Jacobson J, at 581 [99]-[101] per myself.
Case: State Training Corporation of India Ltd v Golodetz Ltd [1989] 2 Lloyd's Rep 277
Outcome: considered
party was evincing loyalty to its contractual promises. In Roadshow Entertainment Pty Ltd v ACN 053 006 269 Pty Ltd (Receiver &amp; Manager Appointed) (1997) 42 NSWLR 462 at 481B-C Gleeson CJ, Handley JA and Brownie AJA, in the Court of Appeal of the Supreme Court of New South Wales said: 'A party in breach of non-essential terms who has not repudiated may rescind for fundamental breach: see Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26; State Trading Corporation of India Ltd v Golodetz Ltd [[1989] 2 Lloyd's Rep 277] (at 286-287). A party in breach of an essential but independent term may also rescind for fundamental breach: see State Trading Corporation of India Ltd v Golodetz Ltd (at 285-287); compare Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1992) 11 WAR 40 at 50-51. Roadshow , we consider, was not, by reason of its conduct, unable to terminate on the ground of CEL/Vision's repudiation.' However, their Honours' comments were obiter, since they had already acknowledged that that was not a case where the party attempting to rescind was in breach of a condition or had otherwise repudiated. And they said that they did not need to undertake a comprehensive analysis of the effect of a breach on a party's right to rescind: see Roadshow 42 NSWLR at 479F. They recognised that, although a party in breach of a non-essential term was not prevented from rescinding for a fundamental breach or a repudiation by the other party, there may be an exception where a causal relationship existed between the breaches of non-essential terms by the party attempting to rescind and the fundamental breach relied on: Roadshow 42 NSWLR at 479G-480B referring to Nina's Bar Bistro Pty Ltd v MBE Corporation (Sydney) Pty Ltd [1984] 3 NSWLR 613. When Gleeson CJ, Handley JA and Brownie AJA said in the passage, which I have quoted, that a party in breach of an essential but independent term may also rescind for fundamental breach, they relied on the decision of the English Court of Appeal in State Training Corporation of India Ltd v Golodetz Ltd [1989] 2 Lloyd's Rep 277. There, Kerr LJ (with whom Lloyd and Butler-Sloss LJJ agreed: Golodetz [1989] 2 Lloyd's Rep at 286) said that where both parties had obligations which had to be performed concurrently but neither was dependent upon the other: 'Since both obligations are (assumedly) in the nature of conditions, both parties had an equal right, so long as the other party's obligation remained unperformed, to treat the other party as having wrongfully repudiated.' However, what his Lordship said there appears to have been obiter dicta, for he pointed out that it did not matter which party was first to treat the other as having repudiated, since neither lost its right to claim damages for the breaches by the other, irrespective of which of them brought the contract to an end ( Golodetz [1989] 2 Lloyd's Rep at 287). Other parts of Kerr LJ's judgment have been disproved by the House of Lords: Vitol SA v Norelf Ltd (The Santa Clara) [1996] AC 800 at 812A-B.
Case: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64
Outcome: cited
one of the parties to a contract has committed a fraud in its performance, the fraudster cannot complain that he or she has been prejudiced by acts of the other party done without sufficient knowledge of his or her fraud. That is why the courts have always held that fraud fundamentally affects the way in which relations between parties are viewed. As Denning LJ said in Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712 (see also SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64 at 68 [15] - [16] ): 'No court in this land will allow a person to keep an advantage which he has obtained by fraud. ... Fraud unravels everything.'
Case: Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57 ; (2003) 217 CLR 315
Outcome: referred to
Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57 ; (2003) 217 CLR 315 at 324-325 [20] - [22] , Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ said that the word 'unconscionable' involved the concept of unconscientious conduct. They said that the conscience which equity considers for these purposes is a 'properly formed and instructed conscience', citing Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 at 227 [45] . The onus is on the party alleging that the other has engaged in unconscionable conduct, so as to prevent the latter's exercise of its contractual rights to terminate. In this respect, the Code specifically permitted termination without notice where a franchisee was fraudulent in connection with the operation of the franchise business (cl 23(f)). However, for reasons unexplained, Allphones instead issued a notice of intention to terminate the franchise agreement on seven days' notice, rather that pursuant to cl 9.3(viii) which permitted termination in the circumstances without notice. A consequence of termination under cl 10 of the franchise agreement would be the transfer, at Allphones' request, of the lease of the shop premises at Eastgardens (cl 10.1(x)). The equitable jurisdiction to prevent an unconscientious assertion of legal rights by one party under a contract against the other is usually exercised only where the circumstances include one of the special heads of that jurisdiction, namely: fraud, accident, mistake or surprise: Tanwar 217 CLR at 335 [58]. Where accident or mistake is not involved, it is usually necessary to point to some conduct of the party asserting the rights which in some significant way has caused the other party to be in the position of being confronted by that assertion. It is not necessary that the circumstances be exceptional before equity will intervene, but the party challenging the assertion of the rights must show why it would against conscience (unconscientious) for the other to proceed: Tanwar 217 CLR at 335 [58]-[60]. The statutory jurisdiction under sub-ss 51AC(1) and (2) of the Act has a broader reach than its equitable counterpart (see also s 51AA(2)). The non-exclusive range of matters to which the Court may have regard in sub-ss 51AC(3) or (4) suggest that the Parliament was concerned not to restrict the operation of the norm of conduct in sub-ss 51AC(1) and (2), simply to the focus which equity has on whether the corporation (as the party asserting the right) has caused the business consumer or small business supplier to be in the position where the corporation's right is available to be asserted. Thus, here, equity would consider whether Allphones had caused Hoy Mobile to be fraudulent in connection with the operation of the franchise agreement (cl 9.3(viii)). On the facts, I have found Mr Hoy alone was responsible for that fraudulent conduct of Hoy Mobile. So, equity would not find a nexus between Allphones' entitlement to terminate and the fraud in which Hoy Mobile had engaged. 33.2 Consideration
Case: The Ophelia [1916] 2 AC 206
Outcome: cited
suggested that the benefit received by Mr Hoy may have been greater than he claimed. It pointed to the fact that Mr Hoy had destroyed the handwritten receipt books containing the records from which his profit could be calculated. Where a person deliberately destroys a document that, depending upon which its contents may have been, would have told strongly either for or against the person, the strongest possible assumption arises that if it had been produced, the document would have told against the person. This is so even if there was no intention to destroy evidence. The principle is that the person is in the position that they would have been in without the corroboration which might otherwise have been expected: Allen v Tobias [1958] HCA 13 ; (1958) 98 CLR 367 at 375 per Dixon CJ, McTiernan and Williams JJ, applying The Ophelia [1916] 2 AC 206 at 229-230.
Case: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: applied
reasonable person in the position of the parties here would reject as inappropriate a construction of their franchise agreement that it had no territory at all. The task of construing 'N/A' as the description of the territory must be approached in the manner described by Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [40] ; applied in International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 242 ALR 47 at 63 [53] per Gummow, Hayne, Heydon, Crennan and Kiefel JJ. That requires the Court to put to one side the subjective beliefs or understandings of the parties about the rights and liabilities that govern their contractual relations, and to concentrate on the principle of objectivity for the ascertainment and definition of those rights and liabilities. Their Honours said that what mattered was what each party, by words or conduct, would have led a reasonable person in the position of the other party to believe. They continued: '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 agreements. The meaning of the terms of the 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 ( Pacific Carriers Limited v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 461-462 [22] .)'