mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hadley v Baxendale [1854] EWHC Exch J70 ; (1854) 9 Ex 341 
Outcome: cited
The measure of damages for a breach of an obligation created by s 71 of the TPA is the contractual measure, namely, the estimated loss directly and naturally resulting in the ordinary course of events from the breach. The prima facie measure of that loss is "the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty": compare Hadley v Baxendale [1854] EWHC Exch J70 ; (1854) 9 Ex 341 at 354; (1854) 156 ER 145 at 151; AFA Electronics Pty Ltd v Strathfield Group Wholesale Pty Ltd [2001] VCS 289 at [88], discussing s 59 of the Goods Act 1958 (Vic). Section 52 of the Sale of Goods Act 1895 (SA) is to similar effect. In other words, prima facie, had they succeeded on liability, the Lowes would have been entitled to the difference between the value of a truck fit for the purpose of long-haul goods transportation and the value of the truck they actually received and used in their business. The applicants did not, however, seek damages on this basis. There was no evidence of this amount. 269 Effectively, the applicants sought damages under the second limb of Hadley v Baxendale for the loss as may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it. It is on this basis, for example, that they claim damages in respect of loss of earnings: compare Burns v MAN Automotive (Aust) Pty Ltd [1986] HCA 81 ; (1986) 161 CLR 653 at 667-668; Hodgson &amp; Hodgson v Morella Pastoral Co Pty Lt d (1975) 13 SASR 51 at 66-67; NEA Pty Ltd v Magenta Mining Pty Ltd [2005] WASC 106 at [305] per EM Heenan J, affirmed in NEA Pty Ltd v Magenta Mining Pty Ltd [2007] WASCA 70. A claimant is of course under a duty to take all reasonable steps to mitigate the loss caused by the breach.
Case: AFA Electronics Pty Ltd v Strathfield Group Wholesale Pty Ltd [2001] VCS 289
Outcome: cited
The measure of damages for a breach of an obligation created by s 71 of the TPA is the contractual measure, namely, the estimated loss directly and naturally resulting in the ordinary course of events from the breach. The prima facie measure of that loss is "the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty": compare Hadley v Baxendale [1854] EWHC Exch J70 ; (1854) 9 Ex 341 at 354; (1854) 156 ER 145 at 151; AFA Electronics Pty Ltd v Strathfield Group Wholesale Pty Ltd [2001] VCS 289 at [88], discussing s 59 of the Goods Act 1958 (Vic). Section 52 of the Sale of Goods Act 1895 (SA) is to similar effect. In other words, prima facie, had they succeeded on liability, the Lowes would have been entitled to the difference between the value of a truck fit for the purpose of long-haul goods transportation and the value of the truck they actually received and used in their business. The applicants did not, however, seek damages on this basis. There was no evidence of this amount.
Case: Burns v MAN Automotive (Aust) Pty Ltd [1986] HCA 81 ; (1986) 161 CLR 653
Outcome: cited
Effectively, the applicants sought damages under the second limb of Hadley v Baxendale for the loss as may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it. It is on this basis, for example, that they claim damages in respect of loss of earnings: compare Burns v MAN Automotive (Aust) Pty Ltd [1986] HCA 81 ; (1986) 161 CLR 653 at 667-668; Hodgson &amp; Hodgson v Morella Pastoral Co Pty Lt d (1975) 13 SASR 51 at 66-67; NEA Pty Ltd v Magenta Mining Pty Ltd [2005] WASC 106 at [305] per EM Heenan J, affirmed in NEA Pty Ltd v Magenta Mining Pty Ltd [2007] WASCA 70. A claimant is of course under a duty to take all reasonable steps to mitigate the loss caused by the breach.
Case: Hodgson &amp; Hodgson v Morella Pastoral Co Pty Lt d (1975) 13 SASR 51 
Outcome: cited
Effectively, the applicants sought damages under the second limb of Hadley v Baxendale for the loss as may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it. It is on this basis, for example, that they claim damages in respect of loss of earnings: compare Burns v MAN Automotive (Aust) Pty Ltd [1986] HCA 81 ; (1986) 161 CLR 653 at 667-668; Hodgson &amp; Hodgson v Morella Pastoral Co Pty Lt d (1975) 13 SASR 51 at 66-67; NEA Pty Ltd v Magenta Mining Pty Ltd [2005] WASC 106 at [305] per EM Heenan J, affirmed in NEA Pty Ltd v Magenta Mining Pty Ltd [2007] WASCA 70. A claimant is of course under a duty to take all reasonable steps to mitigate the loss caused by the breach.
Case: NEA Pty Ltd v Magenta Mining Pty Ltd [2005] WASC 106 
Outcome: cited
Effectively, the applicants sought damages under the second limb of Hadley v Baxendale for the loss as may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it. It is on this basis, for example, that they claim damages in respect of loss of earnings: compare Burns v MAN Automotive (Aust) Pty Ltd [1986] HCA 81 ; (1986) 161 CLR 653 at 667-668; Hodgson &amp; Hodgson v Morella Pastoral Co Pty Lt d (1975) 13 SASR 51 at 66-67; NEA Pty Ltd v Magenta Mining Pty Ltd [2005] WASC 106 at [305] per EM Heenan J, affirmed in NEA Pty Ltd v Magenta Mining Pty Ltd [2007] WASCA 70. A claimant is of course under a duty to take all reasonable steps to mitigate the loss caused by the breach.
Case: NEA Pty Ltd v Magenta Mining Pty Ltd [2007] WASCA 70 
Outcome: cited
Effectively, the applicants sought damages under the second limb of Hadley v Baxendale for the loss as may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it. It is on this basis, for example, that they claim damages in respect of loss of earnings: compare Burns v MAN Automotive (Aust) Pty Ltd [1986] HCA 81 ; (1986) 161 CLR 653 at 667-668; Hodgson &amp; Hodgson v Morella Pastoral Co Pty Lt d (1975) 13 SASR 51 at 66-67; NEA Pty Ltd v Magenta Mining Pty Ltd [2005] WASC 106 at [305] per EM Heenan J, affirmed in NEA Pty Ltd v Magenta Mining Pty Ltd [2007] WASCA 70. A claimant is of course under a duty to take all reasonable steps to mitigate the loss caused by the breach.
Case: Kenny &amp; Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307
Outcome: applied
For present purposes, it is sufficient to refer to the Full Court's discussion in Kenny &amp; Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307 at 330 (per Wilcox, Branson and Sackville JJ) regarding the general principles governing damages under the TPA. Their Honours said: Care must be taken to examine the facts of the particular case and not to determine cases by placing them into preconceived categories. However, bearing that caution in mind, the authorities to which we have referred support several general propositions relevant to the present case: &#8226; in assessing damages under s 82 of the TPA Act, the principles applicable to actions for deceit, being closely analogous, provide a useful guide in most cases &#8226; in a case where something is purchased in consequence of a misrepresentation, the prima facie measure of damages is the difference between the price paid and the true value of the thing. But this is not an inflexible rule and is merely illustrative of a more general proposition, namely, that the purchaser is entitled to recover as damages, a sum representing the prejudice or disadvantage he has suffered in consequence of altering his position under the inducement of the respondent's misrepresentation. That general principle applies to other claims, such as those brought by lenders or mortgage insurers who have entered into transactions in reliance on false or misleading representations &#8226; a person induced to enter a transaction by misrepresentations, generally speaking, must show that the losses claimed are related to the misrepresentation. It is not enough simply to show that the transactions was induced by the representation and the losses would not have occurred but for the transaction. The loss must flow directly from the inducement &#8226; where property acquired in a transaction induced by a misrepresentation subsequently declines in values, damages are not awarded in respect of the decline if it is attributable to an independent, extrinsic or supervening cause &#8226; if the applicant would have entered into the relevant transaction, even if the misrepresentation had not been made, any losses flowing from the transaction as such cannot be said to flow directly from the inducement. In such a case the applicant would have been exposed, in any event, to the precise risk that ultimately eventuated. See more recently Zuvela v Geiger [2007] WASCA 138 at [41] - [43] per EM Hennan AJA.
Case: Zuvela v Geiger [2007] WASCA 138
Outcome: cited
For present purposes, it is sufficient to refer to the Full Court's discussion in Kenny &amp; Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307 at 330 (per Wilcox, Branson and Sackville JJ) regarding the general principles governing damages under the TPA. Their Honours said: Care must be taken to examine the facts of the particular case and not to determine cases by placing them into preconceived categories. However, bearing that caution in mind, the authorities to which we have referred support several general propositions relevant to the present case: &#8226; in assessing damages under s 82 of the TPA Act, the principles applicable to actions for deceit, being closely analogous, provide a useful guide in most cases &#8226; in a case where something is purchased in consequence of a misrepresentation, the prima facie measure of damages is the difference between the price paid and the true value of the thing. But this is not an inflexible rule and is merely illustrative of a more general proposition, namely, that the purchaser is entitled to recover as damages, a sum representing the prejudice or disadvantage he has suffered in consequence of altering his position under the inducement of the respondent's misrepresentation. That general principle applies to other claims, such as those brought by lenders or mortgage insurers who have entered into transactions in reliance on false or misleading representations &#8226; a person induced to enter a transaction by misrepresentations, generally speaking, must show that the losses claimed are related to the misrepresentation. It is not enough simply to show that the transactions was induced by the representation and the losses would not have occurred but for the transaction. The loss must flow directly from the inducement &#8226; where property acquired in a transaction induced by a misrepresentation subsequently declines in values, damages are not awarded in respect of the decline if it is attributable to an independent, extrinsic or supervening cause &#8226; if the applicant would have entered into the relevant transaction, even if the misrepresentation had not been made, any losses flowing from the transaction as such cannot be said to flow directly from the inducement. In such a case the applicant would have been exposed, in any event, to the precise risk that ultimately eventuated. See more recently Zuvela v Geiger [2007] WASCA 138 at [41] - [43] per EM Hennan AJA.
Case: Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 1500
Outcome: cited
in relation to compliance with O 15A r 6(b) I am not satisfied that all reasonable inquiries have been made for the information sought in the application, as required by the rule. The only evidence before the Court is that inquiries were made by the applicant of the fifth respondent, Mr Walsh. There is no evidence that any inquiries were made of the first, second, third and fourth respondents, or indeed anyone else. "All reasonable inquiries" in O 15A r 6(b) prescribes an objective standard ( Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391 , [1996] FCA 1500 at [41] ). While inquiries of one party only may actually constitute "all reasonable inquiries" if, for example, it is clear in the circumstances that that party is the only or the primary repository of information, or if it would be futile to ask other parties for information, it has not been demonstrated that either situation is the case here. In relation to information held by the fifth respondent, Mr Walsh informed the solicitors for the applicant by letter that the fifth respondent had only electronic copies of relevant financial statements, and that if the applicant wanted further information would have to be obtained from "the clients directly" (annexure CER-13 being a copy of a facsimile from Joe Walsh &amp; Associates to Gadens Lawyers dated 7 November 2008). There is no evidence that inquiries by the applicant of the other respondents, or indeed other persons, were made, or would have been futile if made.
Case: Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39
Outcome: followed
my view these difficulties undermine the applicant's claim such that the jurisdiction of the Court with respect to O 15A r 6 is not invoked. I am conscious of the beneficial construction the courts place on O 15A r 6, the fact that the applicant is not required to establish a prima facie case, and the fact that in this case the applicant claims that it has suffered significant losses in respect of the business it acquired from the respondents and for which it has paid "good money" (TS p 17 l 28). Further, I note that, notwithstanding the provision by Mr Walsh in his affidavit of the 2005 and 2006 financial statements of the first respondent, Mr Walsh did so notwithstanding apparent instructions from Mr Cartan that no material beyond the 2007 financial statements be provided to the applicant (affidavit of Joe Walsh para 16). However as found in St George Bank [2004] FCA 1360 ; (2004) 211 ALR 147 , confirmed by the Full Court more recently in Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 at [43] and Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39 at [2] and [26], each of the elements prescribed in subparas (a), (b) and (c) of the rule must be established. In light of: inadequacies and inconsistencies I have noted in the evidence advanced by the applicant supporting the existence of a cause of action; and the applicant's incorrect analysis of the 2007 trading, profit and loss figures. I am not satisfied that the applicant has demonstrated, on an objective basis, reasonable cause to believe that it has or may have the right to obtain relief in the Court from the respondents or any of them for the purposes of O 15A r 6(a).
Case: Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58
Outcome: followed
my view these difficulties undermine the applicant's claim such that the jurisdiction of the Court with respect to O 15A r 6 is not invoked. I am conscious of the beneficial construction the courts place on O 15A r 6, the fact that the applicant is not required to establish a prima facie case, and the fact that in this case the applicant claims that it has suffered significant losses in respect of the business it acquired from the respondents and for which it has paid "good money" (TS p 17 l 28). Further, I note that, notwithstanding the provision by Mr Walsh in his affidavit of the 2005 and 2006 financial statements of the first respondent, Mr Walsh did so notwithstanding apparent instructions from Mr Cartan that no material beyond the 2007 financial statements be provided to the applicant (affidavit of Joe Walsh para 16). However as found in St George Bank [2004] FCA 1360 ; (2004) 211 ALR 147 , confirmed by the Full Court more recently in Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 at [43] and Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39 at [2] and [26], each of the elements prescribed in subparas (a), (b) and (c) of the rule must be established. In light of: inadequacies and inconsistencies I have noted in the evidence advanced by the applicant supporting the existence of a cause of action; and the applicant's incorrect analysis of the 2007 trading, profit and loss figures. I am not satisfied that the applicant has demonstrated, on an objective basis, reasonable cause to believe that it has or may have the right to obtain relief in the Court from the respondents or any of them for the purposes of O 15A r 6(a).
Case: Arnold v Queensland (1987) 73 ALR 607
Outcome: distinguished
That is enough to provide this Court with jurisdiction to make a sequestration order against the estate of Mr Abdul-Karim on a petition presented by the Bar Council: See subs 43(1) of the Act. The fact that the Bar Council is not a separate legal entity does not deny its standing as a creditor for the purposes of the Act; cf., subs 30(1) of the Administrative Appeals Tribunal Act 1975 (Cth): Arnold v Queensland (1987) 73 ALR 607 at 611 per Wilcox J. A partnership is not a legal entity separate from its partners and yet it may be a creditor for the purposes of the Act. So much is implicit in subs 82(1) of the Act which provides: 'Subject to the Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy.' 27 Moreover, under O 42 r 2 of the Federal Court Rules , an action by two or more persons claiming as partners who carry on business in partnership within Australia may be brought in the partnership name. Applying the same facilitation, there seems no reason why an action by the constituent members of the Bar Council, claiming as such, may not be brought in the name of the Bar Council, particularly where the debt arises out of the performance by the Bar Council of the statutory functions and duties vested in it by the LPA. 28 It follows that I decline to dismiss the application on the ground of the Bar Council's standing.
Case: Nilant v Macchia [2000] FCA 1528 ; (2000) 104 FCR 238
Outcome: considered
It is common ground that the requirements of reg 10.04 were not complied with. Indeed, I would agree with the Bar Council's submission that they were blatantly breached. While I agree that the conduct complained of relates to a 'proceeding' (the calling of the creditors' meeting) under the Act: See Nilant v Macchia [2000] FCA 1528 ; (2000) 104 FCR 238 at [26] , [27] per Hill J; at [53] per Weinberg J, having regard to the intent of the regulation as described in [14] supra, I do not agree that such conduct can be characterised as a formal defect or irregularity so as to be saved from invalidity by subs 306(1) of the Act. In my view, the blatant breach of the requirements of the regulation would be, of itself, sufficient to grant declaratory relief in terms of the first prayer in the Bar Council's application. 16 There is a further consideration. Mr Fisher's status as a creditor of Mr Abdul-Karim is also put in issue by the Bar Council. The Bar Council submits that on the basis of the facts set out at [6] supra, I should find that Mr Fisher is not a creditor. There is, in my view, considerable force in this submission. Counsel for Mr Abdul-Karim submitted that the subsequent (2 March 2006) withdrawal by Mr Fisher of his statement of claim as a creditor was no more than a concession that he did not want to vote at a meeting of creditors. That may explain the withdrawal, on the same date, of the proxy in favour of Mr Illek, but not the withdrawal of the statement of claim. It was also submitted that Mr Abdul-Karim would not lightly sign a statement of affairs including, as a liability, an amount which, to his knowledge, was not a liability. To do so, it was submitted, would render Mr Abdul-Karim liable to the prospect of a penalty of imprisonment for 12 months: see subs 267(1)(f) and 267(2). But the fact that Mr Abdul-Karim genuinely believed Mr Fisher was a creditor and, apart from his statement of affairs, there is no evidence to suggest he did so believe, while it may absolve him from the penal consequences of s 267, does not make Mr Fisher a creditor, if he was not already one. More telling is the action of Mr Fisher in subsequently withdrawing his statement of claim. 17 The state of evidence on this issue is less than satisfactory, however, I think it is open for me to find, and I do so find, that Mr Fisher was not a creditor of Mr Abdul-Karim on 22 February 2006.
Case: Pretorius v Dalton Carpet Tiles Pty Ltd (1984) 1 FCR 346
Outcome: applied
I am not prepared to make an order in terms of the third prayer in the Bar Council's application an order restraining Mr Dennis from calling a further meeting of Mr Abdul-Karim's creditors because the 25 days prescribed by s 194 of the Act have passed and there is no application for an extension of time before me: See Pretorius v Dalton Carpet Tiles Pty Ltd (1984) 1 FCR 346 at 352 353. Mr Dennis has no power to call any such meeting. 31 Mr Eddy must pay the Bar Council's costs of the application. 32 I give the parties liberty to re-list the matter on two days' notice. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 21 March 2006 Counsel for the Applicant: Mr M Aldridge SC Solicitor for the Applicant: Eakin McCaffery Cox Counsel for the First Respondent: Ms I Ryan Counsel for the Second Respondent: Mr J Johnson Solicitor for the Second Respondent: McKell's Solicitors Solicitor for the Third Respondent: The third respondent appeared in person Date of Hearing: 9 March 2006 Date of Judgment: 21 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/254.html
Case: Re Ringuet (1984) 11 FCR 45
Outcome: referred to
Subsection 194(1) of the Act, relevantly par (a), mandates that the meeting of the debtor's creditors be held not more than 25 working days after the relevant consent or approval was given. The relevant consent was given on 17 January 2006 and, having regard to week-ends and the Australia Day public holiday on 26 January 2006, it seemed to be common ground that, in the absence of time being extended see Re Ringuet (1984) 11 FCR 45 the last day on which the meeting could be held was Wednesday, 22 February 2006, the day on which it was purportedly held. 13 Regulation 10.04 of the Bankruptcy Regulations mandates that the controlling trustee give to, inter alia , each creditor, at least 10 days before the first meeting of creditors is called under an authority under s 188, notice in writing of the date, time and place of the meeting, a copy of his (the controlling trustee's) report, a copy of his (the controlling trustee's) statement and a copy of information relating to his remuneration. 14 The intent is clear each creditor is to receive, in sufficient time before the meeting, the information needed to make a determination about voting see the various voting alternatives open to creditors under subs 204(1) of the Act. The importance of getting this information on a timely basis is manifest in the modification to subs 64Y(1) of the Act made by Part 2 of Schedule 6 of the Bankruptcy Regulations (s 196 and reg 10.05), namely '(lA) The controlling trustee may adjourn a meeting to undertake further investigation in relation to the controlling trusteeship, that the controlling trustee considers necessary. (IB) The creditors attending the meeting may, by special resolution, revoke the trustee's decision to adjourn the meeting.' In other words, the trustee's right to adjourn is conditional upon it not being vetoed by creditors. Of course, creditors can only exercise their veto if they are present at the meeting and here the creditors were not only not given timely notice of the meeting but the notice wrongly informed them not to attend the meeting because it would be adjourned.