mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Patmore v Upton [2004] TASSC 77
Outcome: cited
of the Patmore contract was delayed by litigation over applications initiated by the respondent (on 6 June 2003) and Mr Patmore (on 19 December 2003) for the removal of Mr Upton's caveat. A contested hearing took place in the Supreme Court in March 2004 and on 27 July 2004 Underwood J delivered a judgment ordering that the caveat be removed: Patmore v Upton [2004] TASSC 77. On 6 August 2004 the contract between the respondent and Mr Patmore for the sale of the whole of the land was completed.
Case: Forsyth v Blundell [1973] HCA 20 ; (1973) 129 CLR 477
Outcome: applied
exercising its power of sale the respondent was under a duty to act in good faith, and not to fraudulently, or wilfully or recklessly sacrifice the mortgage property. The taking of reasonable precautions to obtain a proper price is part of the duty to act in good faith: Forsyth v Blundell [1973] HCA 20 ; (1973) 129 CLR 477. I am satisfied that the respondent took all reasonable steps. The land was put up at a properly advertised auction, and then remained on the market for some 15 months, during which time it only attracted one offer, for which it was sold. I am satisfied that the price was a reasonable price, and in fact was at or about market value at the time. I reject valuation evidence given on behalf of Mr Upton by Mr Daryll Timms. He valued the land at 27 November 2000 at $175,000 "for security purposes" but on the basis that "a six lot Council approved development would be completed by Mr Upton himself". It is not quite clear what is meant by this last-mentioned basis. If it means that a hypothetical purchaser was to buy on the basis that Mr Upton himself, and nobody else, would carry out works at some unspecified price, it is quite unreal.
Case: Fountain Meat Sales Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401
Outcome: cited
Sealy on behalf of the respondent sought an order for costs on an indemnity basis. He referred to a number of authorities, including Fountain Meat Sales Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401 where Woodward J said that such an order was appropriate where an action has been commenced or continued in circumstances where the party, properly advised, should have known that he had no chance of success. It is not necessary to show that the claim was brought for some collateral purpose or is an abuse of process. In my opinion this was a hopeless case, and should have been recognised as such from the outset. Given the initial auction and the time the property was on the market, there was no arguable basis for contending that the sale to Mr Patmore was improper. On that premise, the respondent could not have been expected to act other than in the way it did. At the heart of Mr Upton's case is, I suspect, a belief that notwithstanding he was a mortgagor in default he had some kind of right of first refusal before the mortgagee could sell. This is a misconception. There should be an award of indemnity costs. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 17 August 2006 Counsel for the Applicant: RA Skiller and JA Munnings Solicitors for the Applicant: CA Johnstone Munnings &amp; Co Counsel for the Respondent: L Sealy and M Chambers Solicitors for the Respondent: Shields Heritage Dates of Hearing: 9, 10, 11 August 2006 Date of Judgment: 11 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1088.html
Case: Woodtree Pty Ltd v Zheng (No 2) [2007] FMCA 989
Outcome: cited
In the Federal Magistrates Court Riley FM dismissed all the appellant's claims: Woodtree Pty Ltd v Zheng [2007] FMCA 457. In a subsequent ruling her Honour awarded the respondents costs on an indemnity basis from 2 June 2006, the date of a Calderbank offer: Woodtree Pty Ltd v Zheng (No2) [2007] FMCA 989.
Case: Lott v JBW &amp; Friends Pty Ltd (2000) 76 SASR 105
Outcome: discussed
In dealing with this issue the learned Magistrate discussed Lott v JBW &amp; Friends Pty Ltd (2000) 76 SASR 105. The work there in question was a graphic bar with the words "Opera in the Outback". The report does not contain a reproduction. Mullighan J held that it was a "drawing". His Honour said at [14] The graphic designer had to create a design and make choices about the layout, font, colour and dimensions of each part of the design. Having perused the graphic ... I do not regard it as so simple as to deny copyright. ... The selection of the font from a computer program is no less creative than manual drawing ... 23 In the present case her Honour, correctly in my view, pointed out at [29] that Lott is not authority for the proposition that anything a graphic designer prepares is a drawing. 24 The same point was made by Mr Minahan, counsel for the respondents, in his written submissions. The submissions, he said, involved the use of a computer and selection of typeface and decisions about layout and presentation including headings and indentation. The same could be said for a newspaper. However neither the submissions nor a newspaper would be regarded as a drawing. 25 Her Honour adopted the statement in Ricketson, S The Law of Intellectual Property, Copyright Designs and Confidential Information , at par 7.365: Essentially, a drawing is a two-dimensional work in which shapes and images are depicted by lines, often without colouring. 26 I would agree that this is the ordinary meaning of the term "drawing". The Macquarie Dictionary gives us several definitions of the noun "drawing": ... 2. representation by lines; delineation of form without reference to colour. 3. a sketch, plan, or design, esp one made with pen, pencil, or crayon. 27 In the context of the visual arts, the traditional distinction has been between paintings, which are coloured, and drawings, which are monotone, usually, but not always, black upon white. The statutory definition, particularly by its inclusion of maps, makes it clear that for the purposes of the Act something may be a drawing notwithstanding that it is coloured. However, the essence of a drawing remains the concept of a representation of some object by a pictorial line.
Case: Millar &amp; Lang Ltd v Polak [1908] 1 Ch 433
Outcome: cited
Certainly for something to be a "drawing" for copyright purposes no great complexity or (as the statute tells us) artistic quality is required. In Millar &amp; Lang Ltd v Polak [1908] 1 Ch 433 the works held to be drawings included words such as "Greetings", "Friends ever". "Good luck", "Lest we forget", and "For old times sake" in a distinctive form within an ornamental oval or circular scroll. In Roland Corporation v Lorenzo &amp; Sons Pty Ltd (1991) 33 FCR 111 the devices held by Pincus J to be drawings were based on the letters R and B but, as is apparent from the report at 112, were quite stylised. As his Honour said at 114, they were "by no means random and were plainly drawn with care, to obtain an effect". Clearly a letter or letters of the alphabet can provide the subject matter for a drawing. One thinks of the illuminated manuscripts of medieval works such as the Book of Kells. However, in the present case the text is fulfilling a semiotic function. It is communicating to the reader the message that within the cardboard box will be found a wooden photo box with 6 albums which hold 120 10 x 15 cm photos. The pictorial image of that box is conveyed by a photograph, which is not a drawing.
Case: Roland Corporation v Lorenzo &amp; Sons Pty Ltd (1991) 33 FCR 111
Outcome: cited
Certainly for something to be a "drawing" for copyright purposes no great complexity or (as the statute tells us) artistic quality is required. In Millar &amp; Lang Ltd v Polak [1908] 1 Ch 433 the works held to be drawings included words such as "Greetings", "Friends ever". "Good luck", "Lest we forget", and "For old times sake" in a distinctive form within an ornamental oval or circular scroll. In Roland Corporation v Lorenzo &amp; Sons Pty Ltd (1991) 33 FCR 111 the devices held by Pincus J to be drawings were based on the letters R and B but, as is apparent from the report at 112, were quite stylised. As his Honour said at 114, they were "by no means random and were plainly drawn with care, to obtain an effect". Clearly a letter or letters of the alphabet can provide the subject matter for a drawing. One thinks of the illuminated manuscripts of medieval works such as the Book of Kells. However, in the present case the text is fulfilling a semiotic function. It is communicating to the reader the message that within the cardboard box will be found a wooden photo box with 6 albums which hold 120 10 x 15 cm photos. The pictorial image of that box is conveyed by a photograph, which is not a drawing.
Case: Metwally v University of Wollongong (No 2) [1985] HCA 28 ; (1985) 60 ALR 68 at 71
Outcome: cited
It appears that, although not pleaded, this issue was at least touched on in the court below. It is discussed at [34]-[37] of the judgment. Mr Minahan objected to this late amendment, citing the decision of the High Court in Metwally v University of Wollongong (No 2) [1985] HCA 28 ; (1985) 60 ALR 68 at 71: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances it would contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. 32 The application to amend should be refused, primarily for the reason that the proposed amendment lacks arguable merit. The notion of compilation involves a collecting and putting together or arranging or organising of disparate data. That is not the case with the appellant's label. It is simply a photograph and a description of an object. It conveys the one message. 33 The appellant's case was pleaded in the common law tort of passing off as well as alleged contraventions of ss 52 and 53 (c) and (d) of the Trade Practices Act 1974 (Cth). Section 52 prohibits conduct in trade or commerce which is misleading or deceptive or likely to mislead or deceive. More specifically, s 53(c) and (d) prohibits representations that goods or a corporation have sponsorship or approval which they do not have.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397
Outcome: applied
In the court below, concentration was very much on the passing off claim. However, as the Full Court has recently pointed out in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 at [96]-[99], the degree of overlap between the two causes of action should not obscure the important differences between them. The law of passing off protests goodwill as a species of property: Boehringer Ingelheim Ltd v Vetplus Ltd (2007) 73 IPR 593 at [37] per Jacob LJ, citing a passage from the judgment of Millett LJ in Harrods Ltd v Harrodian School Ltd (1996) 35 IPR 355 at 366. However claims under the Trade Practices Act it is not necessary for a plaintiff to establish an exclusive reputation, or indeed any reputation at all. The question is rather whether consumers are likely to be misled or deceived by the defendant's conduct.
Case: Boehringer Ingelheim Ltd v Vetplus Ltd (2007) 73 IPR 593
Outcome: cited
In the court below, concentration was very much on the passing off claim. However, as the Full Court has recently pointed out in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 at [96]-[99], the degree of overlap between the two causes of action should not obscure the important differences between them. The law of passing off protests goodwill as a species of property: Boehringer Ingelheim Ltd v Vetplus Ltd (2007) 73 IPR 593 at [37] per Jacob LJ, citing a passage from the judgment of Millett LJ in Harrods Ltd v Harrodian School Ltd (1996) 35 IPR 355 at 366. However claims under the Trade Practices Act it is not necessary for a plaintiff to establish an exclusive reputation, or indeed any reputation at all. The question is rather whether consumers are likely to be misled or deceived by the defendant's conduct.
Case: Harrods Ltd v Harrodian School Ltd (1996) 35 IPR 355
Outcome: cited
In the court below, concentration was very much on the passing off claim. However, as the Full Court has recently pointed out in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 at [96]-[99], the degree of overlap between the two causes of action should not obscure the important differences between them. The law of passing off protests goodwill as a species of property: Boehringer Ingelheim Ltd v Vetplus Ltd (2007) 73 IPR 593 at [37] per Jacob LJ, citing a passage from the judgment of Millett LJ in Harrods Ltd v Harrodian School Ltd (1996) 35 IPR 355 at 366. However claims under the Trade Practices Act it is not necessary for a plaintiff to establish an exclusive reputation, or indeed any reputation at all. The question is rather whether consumers are likely to be misled or deceived by the defendant's conduct.
Case: Australian Woollen Mills Ltd v F S Walton &amp; Co Ltd [1937] HCA 51 ; (1937) 58 CLR 641
Outcome: applied
Moreover, the learned Magistrate's findings support a conclusion that this was a case of deliberate copying. I would apply the principle in Australian Woollen Mills Ltd v F S Walton &amp; Co Ltd [1937] HCA 51 ; (1937) 58 CLR 641 at 657. 56 On the trade practices causes of action the appellant's damages claim is based on the number of sales of the respondents' offending boxes. The appellant claims the gross profit on an equivalent number of sales it says it has lost. 57 There were 676 such sales by the respondents. The lowest profit margin for the appellant, being that on its small photo boxes, was $5.45. The resultant figure is $3684.20.
Case: Minister for Immigration &amp; Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
Federal Magistrate Cameron found that there had been no jurisdictional error on the part of the reconstituted Tribunal (at [21]). His Honour observed that the appellant only identified, in support of an inference of apprehended bias, the second s 424A letter and the Tribunal's ultimate findings (at [14]). His Honour observed that absent a response by the appellant to that letter, there was nothing upon which to base a conclusion that the Tribunal's mind was closed. His Honour commented further that it was unsurprising that, in the absence of a response from the appellant, the matters raised in the second s 424A letter ultimately formed at least part of the reasons why the Tribunal affirmed the delegate's decision and the two coincided. His Honour also noted that the fact that the second s 424A letter disclosed a predisposition on the part of the Tribunal is not indicative of a closed mind (at [15] citing Minister for Immigration &amp; Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at [71] - [72] per Gleeson CJ and Gummow J).
Case: SZFQB v Minister for Immigration &amp; Citizenship [2007] FMCA 1518
Outcome: considered
The appellant appealed to the Federal Magistrates Court from the decision of the reconstituted Tribunal ( SZFQB v Minister for Immigration &amp; Citizenship [2007] FMCA 1518). The appellant claimed that: &#8226; the Tribunal had already made up its mind to affirm the delegate's decision by the time it sent the second s 424A letter, that is, a ground of apprehended bias; and &#8226; the Tribunal had not complied with s 424A of the Migration Act 1958 (Cth) ('the Act'), specifically there was a failure to advise the appellant of information received by the Tribunal, that many members of the Awami League are prepared to offer letters of support at the request of applicants such as those the appellant tendered to the Tribunal.
Case: Theodore v Mistford Pty Ltd [2005] HCA 45 ; (2005) 221 CLR 612
Outcome: considered
In Theodore v Mistford Pty Ltd [2005] HCA 45 ; (2005) 221 CLR 612, the High Court (Gleeson CJ, McHugh, Gummow, Callinan and Heydon JJ) recognised and reinforced that an equitable mortgage can be effected by the deposit of title deeds if they were deposited with intent that the land to which they relate be security for payment of a debt. As in that case (discussed at 621, [24]), this is not a case where I need to consider whether to presume an intention to create a security from the relationship of debtor and creditor and the delivery of title deeds: see Bank of New South Wales v O'Connor (1889) 14 App Cas 273 at 282 283; In re Wallis &amp; Simmonds (Builders) Ltd [1974] 1 WLR 391 at 395. I have found that an intention to create the security existed.
Case: Bank of New South Wales v O'Connor (1889) 14 App Cas 273
Outcome: cited
In Theodore v Mistford Pty Ltd [2005] HCA 45 ; (2005) 221 CLR 612, the High Court (Gleeson CJ, McHugh, Gummow, Callinan and Heydon JJ) recognised and reinforced that an equitable mortgage can be effected by the deposit of title deeds if they were deposited with intent that the land to which they relate be security for payment of a debt. As in that case (discussed at 621, [24]), this is not a case where I need to consider whether to presume an intention to create a security from the relationship of debtor and creditor and the delivery of title deeds: see Bank of New South Wales v O'Connor (1889) 14 App Cas 273 at 282 283; In re Wallis &amp; Simmonds (Builders) Ltd [1974] 1 WLR 391 at 395. I have found that an intention to create the security existed.
Case: In re Wallis &amp; Simmonds (Builders) Ltd [1974] 1 WLR 391
Outcome: cited
In Theodore v Mistford Pty Ltd [2005] HCA 45 ; (2005) 221 CLR 612, the High Court (Gleeson CJ, McHugh, Gummow, Callinan and Heydon JJ) recognised and reinforced that an equitable mortgage can be effected by the deposit of title deeds if they were deposited with intent that the land to which they relate be security for payment of a debt. As in that case (discussed at 621, [24]), this is not a case where I need to consider whether to presume an intention to create a security from the relationship of debtor and creditor and the delivery of title deeds: see Bank of New South Wales v O'Connor (1889) 14 App Cas 273 at 282 283; In re Wallis &amp; Simmonds (Builders) Ltd [1974] 1 WLR 391 at 395. I have found that an intention to create the security existed.
Case: Arnick Holdings Limited and Ankar Pty Ltd v Australian Bank Ltd (unreported, Supreme Court of New South Wales (Equity Division), Bryson J, 4 December 1987)
Outcome: distinguished
My attention was drawn to Arnick Holdings Limited and Ankar Pty Ltd v Australian Bank Ltd (unreported, Supreme Court of New South Wales (Equity Division), Bryson J, 4 December 1987) by counsel for Mr Callipari. That case turned on the findings of Bryson J on the evidence. Given my findings of fact, I do not think it assists me in the resolution of this case. 45 Finally, counsel for Mr Callipari submitted in the alternative that Web Wealth has acted in a manner by which it unequivocally surrendered its security. The question was asked rhetorically; if Web Wealth held security why did it not raise the issue earlier than it did? I have considered that question when making my findings of fact. I do not consider that there is anything which indicates that Web Wealth surrendered its security, or acted in a way which amounts to a waiver of its rights to enforce the security or to an election to surrender it or not to enforce it. 46 The parties were agreed upon the appropriate form of orders if I were to reach the conclusion I have reached. I think they are appropriate. I accordingly declare that Web Wealth Pty Ltd has an interest in the fund comprising the proceeds of sale of the land described in Certificates of Title Register Book Volume 9983 Folio 505 and Volume 9593 Folio 463 ("the properties") corresponding to the equitable mortgage in its favour created by the deposit of duplicate certificates of title by Helimount Pty Ltd in January 2005. I also order that the liquidator pay to Web Wealth Pty Ltd such sum as represents the proceeds of sale of the properties less the costs and disbursements of the liquidator in realising the properties.
Case: Adler v Australian Securities and Investments Commission [2003] NSWCA 131 ; (2003) 46 ACSR 504
Outcome: cited
for ASIC submits that the role of the SOFAC was to afford procedural fairness to Mr Gould and that what procedural fairness requires does not involve a fixed body of rules to be applied at a formulaic manner. Counsel refers to the statement by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [37] that: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. Counsel also referred to Adler v Australian Securities and Investments Commission [2003] NSWCA 131 ; (2003) 46 ACSR 504 at [139] where Giles JA quoted from Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 at [18] where Mason P had said that "pleadings serve the ends of justice [and] must not be permitted to assume an independent self-referential function".
Case: Adsett v Berlouis (1992) 37 FCR 201
Outcome: discussed
Tribunal, however, saw the question as being not one of requiring a different mode of delivery, but one of ensuring a sufficient margin of time to allow for any risk of mail delays. This was necessary, according to the Tribunal, in order for a liquidator "to perform the work with reasonable care and skill and in an efficient and economical way" (at [222]), citing Adsett v Berlouis (1992) 37 FCR 201 ( Adsett ) at 212. The Tribunal concluded that the late lodgement was the fault of Mr Gould or his staff. It described that fault as not a serious one, but said that the gravamen of Contention 6.5 was not the late posting but the charging of the late fee as an expense of the liquidation (at [223]). A separate submission made by Mr Gould was, according the Tribunal, based on Mr Gould's right of lien. There were inadequate funds in the liquidation to pay all of Mr Gould's remuneration and expenses, and he was owed many thousands of dollars in fees. His argument was that since the entire fund at the time was payable to him, the $120 was, in effect, paid to him because he would have been entitled at the time to transfer the entire fund to himself for work performed. It followed, according to Mr Gould's submission, that his choice to pay $120 of the funds to ASIC rather than to himself could not be properly the subject of criticism. The Tribunal also cited various passages from Adsett , and implied that the expenditure on the late fees was not "reasonable", was not "prudently and reasonably incurred", and was not incurred "conformably with the duty to perform the work with reasonable care and skill and in an efficient and economical way" (at [228]). The Tribunal concluded its discussion of Contention 6.5 as follows (at [229]): "While the evidence does not warrant a finding of fraud, neither does it depict a genuine misapprehension and a sincere belief that the action was justified, as the applicant submitted. His endeavours to obtain waiver of the fees suggest that he knew that he was personally responsible for them. And describing the payment as "Lodgement fees" in the May 1999 Form 524 was disingenuous at best. The applicant plainly knew he had something to hide and tried to hide it." As indicated at [167] above, I do not agree that Mr Gould's endeavour to obtain a waiver was an acknowledgment of personal responsibility for the fees.