mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Trustees of the Property of Cummins v Cummins [2006] HCA 6 ; (2006) 227 CLR 278
Outcome: cited
Trustees of the Property of Cummins v Cummins [2006] HCA 6 ; (2006) 227 CLR 278 , Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ observed: [71] ...the following view expressed in the present edition of Professor Scott's work respecting beneficial ownership of the matrimonial home [ The Law of Trusts , 4th ed (1989), vol 5, &#167;454 at 239] should be accepted: It is often a purely accidental circumstance whether money of the husband or of the wife is actually used to pay the purchase price to the vendor, where both are contributing by money or labour to the various expenses of the household. It is often a matter of chance whether the family expenses are incurred and discharged or services are rendered in the maintenance of the home before or after the purchase. ... [72] That reasoning applies with added force in the present case where the title was taken in the joint names of the spouses. There is no occasion for equity to fasten upon the registered interest held by the joint tenants a trust obligation representing differently proportionate interests as tenants in common. The subsistence of the matrimonial relationship, as Mason and Brennan JJ emphasised in Calverley v Green [(1984) [1984] HCA 81 ; 155 CLR 242 at 259], supports the choice of joint tenancy with the prospect of survivorship. ...The range of financial considerations and accidental circumstances in the matrimonial relationship referred to by Professor Scott answers the second concern of equity, namely the disproportion between quantum of beneficial ownership and contribution to the acquisition of the matrimonial home. In Cummins [2006] HCA 6 ; (2006) 227 CLR 278 the High Court upheld the decision of the primary judge that the subject of the relevant disposition of land was that which appeared on the transfer, namely the interest of the husband as joint tenant of the matrimonial home, without any displacement to allow for a beneficial tenancy in common in shares of which the larger was that of the wife. In these proceedings there is no dispute that the Carrara property, described in the financial agreement as the matrimonial home, was registered in the names of the respondent and Mr Jensen as joint tenants. The decision of the High Court in Cummins [2006] HCA 6 ; (2006) 227 CLR 278 supports an inference of joint tenancy with the prospect of survivorship as to the equitable interest held by the parties to the marriage. The pleadings of the respondent do not displace this inference, nor did the submissions at the hearing. In my view paras 7e, 10e, 10(ea), 24e and 24f of the Amended Defence and Cross-Claim are untenable. Conclusion It follows that paras 7e, 10 and 24 of the Amended Defence and Cross-Claim should be struck out.
Case: Victorian Producers Co-Operative Co Ltd v Kenneth [1999] FCA 1488
Outcome: cited
to sue for an antecedent debt pursuant to an agreement, either express or implied, may constitute valuable consideration, including in a bankruptcy context: Wigan v English and Scottish Law Life Assurance Association (1909) 1 Ch 291 at 303, re Zampatti ex parte RJ Levack Ltd [1993] FCA 170 , Cannane &amp; Anor v Official Trustee in Bankruptcy (1996) 65 FCR 453 at 466, Official Trustee in Bankruptcy v Racovitis [1995] FCA 959 , Victorian Producers Co-Operative Co Ltd v Kenneth [1999] FCA 1488 , Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85 at [22] . However in bankruptcy-related proceedings the forbearance must be for value. This point was emphasised in para 84.14 of the Explanatory Memorandum to the Bankruptcy Legislation Amendment Bill 1996 (Cth), which enacted s 120 in its current form, states: Forbearance to sue has always been regarded at law as good consideration. Such forbearance will, under the Act as proposed to be amended by the Bill, have to be looked at in the light of the likely value of the chose in action. (emphasis added)
Case: Wigan v English and Scottish Law Life Assurance Association (1909) 1 Ch 291
Outcome: cited
to sue for an antecedent debt pursuant to an agreement, either express or implied, may constitute valuable consideration, including in a bankruptcy context: Wigan v English and Scottish Law Life Assurance Association (1909) 1 Ch 291 at 303, re Zampatti ex parte RJ Levack Ltd [1993] FCA 170 , Cannane &amp; Anor v Official Trustee in Bankruptcy (1996) 65 FCR 453 at 466, Official Trustee in Bankruptcy v Racovitis [1995] FCA 959 , Victorian Producers Co-Operative Co Ltd v Kenneth [1999] FCA 1488 , Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85 at [22] . However in bankruptcy-related proceedings the forbearance must be for value. This point was emphasised in para 84.14 of the Explanatory Memorandum to the Bankruptcy Legislation Amendment Bill 1996 (Cth), which enacted s 120 in its current form, states: Forbearance to sue has always been regarded at law as good consideration. Such forbearance will, under the Act as proposed to be amended by the Bill, have to be looked at in the light of the likely value of the chose in action. (emphasis added)
Case: Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885
Outcome: cited
On 21 December 2005 I gave judgment in this matter: see Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885. I dismissed the application. This judgment concerns the costs of that proceeding. 2 The third, fourth, fifth and sixth respondents (the Commonwealth respondents) seek costs of the proceeding, and that their costs be fixed under O 62 r 4(2)(c) of the Federal Court Rules in a gross sum. The second respondent, Mr Price, seeks similar orders. 3 The interests of the Commonwealth respondents, and of Mr Price, were not identical. They were separately represented by solicitors and counsel. Mr Dunstan has not suggested that was inappropriate. In my view, it was appropriate for them to be separately represented. To the extent to which they are entitled to costs of the proceeding, I consider that separate orders for costs should be made. 21 Mr Dunstan also argued that the Commonwealth respondents had failed to give proper discovery in the course of the conduct of the proceedings. He said that somehow disentitled them from recovering costs. The material shows that Mr Dunstan sought supplementary discovery by notices given on 12 and 20 June 2003. Directions were given on 1 August 2003 for the hearing on 14 November 2003 of the disputed issues about discovery. That application was not pressed on 14 November 2003, as Mr Dunstan was confronted with an application by the Commonwealth respondents to strike out the statement of claim. He was given further time to formulate the terms of his proposed pleading. Ultimately, on 19 March 2004, he was directed to provide further particulars of the pleading and was refused leave to amend it in certain respects: Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 284. Further directions were given for the preparation of the matter for trial; the issue of further discovery was not revived by Mr Dunstan. Those matters do not indicate any sinister conduct on the part of the Commonwealth respondents. Nor do they reveal any factors which, in my view, weigh in the scales either at all, or certainly not sufficiently, to decline to make the orders for costs which I propose to make. 22 Order 62 r 4(2)(c) entitles the Court to order that any costs which are ordered shall be in a gross sum specified in the costs order.
Case: Hughes v Western Australian Cricket Association Inc (1986) 8 ATPR 40
Outcome: referred to
I have no hesitation in concluding that both the Commonwealth respondents and Mr Price should be entitled to their costs of the proceeding on a party/party basis. They have successfully resisted Mr Dunstan's claims. There is no reason, in my view, not to apply the normal rule that costs should follow the event: Hughes v Western Australian Cricket Association Inc (1986) 8 ATPR 40-748. There were no significant issues upon which they did not succeed: cf Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166. Their conduct did not unreasonably prolong the hearing; the reverse is the case: cf Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 544. There is no other conduct on their part which, in my view, would disentitle them from any of their party/party costs.
Case: Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166
Outcome: distinguished
I have no hesitation in concluding that both the Commonwealth respondents and Mr Price should be entitled to their costs of the proceeding on a party/party basis. They have successfully resisted Mr Dunstan's claims. There is no reason, in my view, not to apply the normal rule that costs should follow the event: Hughes v Western Australian Cricket Association Inc (1986) 8 ATPR 40-748. There were no significant issues upon which they did not succeed: cf Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166. Their conduct did not unreasonably prolong the hearing; the reverse is the case: cf Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 544. There is no other conduct on their part which, in my view, would disentitle them from any of their party/party costs.
Case: Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006
Outcome: referred to
There is no particular characteristic of a case which must exist before a gross sum costs order can be made: Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006. It is a power which may be exercised whenever the particular circumstances of the case warrant it: Beach Petroleum NL v Johnson (1995) 57 FCR 119 ( Beach ); Harrison v Schipp [2002] NSWCA 213 ; (2002) 54 NSWLR 738.
Case: Foyster v Foyster Holdings (2003) 44 ACSR 705
Outcome: referred to
Factors which have been considered when exercising the discretion to make such an order include . where the delay, expense and inconvenience of taxing costs in the normal manner would be unduly protracted or unduly expensive: Beach at 120; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 ( Charlick ); Foyster v Foyster Holdings (2003) 44 ACSR 705; and . where the financial capacity of the party liable to pay costs is such that the additional cost of taxation will impose a significant burden on the party in whose favour costs are ordered without real prospects of recovering those costs: Hadid v Lenfest Communications Inc [2000] FCA 628 ; Sparnon v Apand Pty Ltd (unreported, von Doussa J, 4 March 1998); Sony Entertainment (Australia) Ltd v Smith (2005) ALR 788. There are other considerations to which the Court has had regard, but they are not said by any party to arise in the present matter.
Case: Hadid v Lenfest Communications Inc [2000] FCA 628
Outcome: referred to
Factors which have been considered when exercising the discretion to make such an order include . where the delay, expense and inconvenience of taxing costs in the normal manner would be unduly protracted or unduly expensive: Beach at 120; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 ( Charlick ); Foyster v Foyster Holdings (2003) 44 ACSR 705; and . where the financial capacity of the party liable to pay costs is such that the additional cost of taxation will impose a significant burden on the party in whose favour costs are ordered without real prospects of recovering those costs: Hadid v Lenfest Communications Inc [2000] FCA 628 ; Sparnon v Apand Pty Ltd (unreported, von Doussa J, 4 March 1998); Sony Entertainment (Australia) Ltd v Smith (2005) ALR 788. There are other considerations to which the Court has had regard, but they are not said by any party to arise in the present matter. 29 I also consider that the expense of taxation in the normal way, which would be incurred by the respondents, is unlikely to be recoverable from Mr Dunstan: see e.g. Hadid v Lenfest Communications Inc [2000] FCA 628. He has now no interest in any real estate. There is nothing to suggest he has any other significant assets which might be available, even to meet any costs order. Mr Dunstan is presently imprisoned. He has no immediate prospects of employment, even if he secures release on parole shortly. The consequence of taxation is that the respondents would incur further significant expense to quantify their entitlement to those costs when that further expense is likely to be irrecoverable from Mr Dunstan. 30 Mr Dunstan's contentions focused on the need for the Court to be satisfied that a particular gross sum for costs represented only those costs which were necessary or proper for the attainment of justice or for maintaining or defending rights of the respondents (O 62 r 19). He then submitted that the evidence of Kim Chapman, a costs consultant, should be rejected, and that the Court should not fix a gross sum for costs because it should be satisfied that the bills of costs of the defendants in matters ACD 31 of 1997 and 32 of 1997 were both over-generous and unreliable, and that there was no reason to think the quantification of the costs applications in this matter were of a different character.
Case: Sparnon v Apand Pty Ltd (unreported, von Doussa J, 4 March 1998)
Outcome: referred to
Factors which have been considered when exercising the discretion to make such an order include . where the delay, expense and inconvenience of taxing costs in the normal manner would be unduly protracted or unduly expensive: Beach at 120; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 ( Charlick ); Foyster v Foyster Holdings (2003) 44 ACSR 705; and . where the financial capacity of the party liable to pay costs is such that the additional cost of taxation will impose a significant burden on the party in whose favour costs are ordered without real prospects of recovering those costs: Hadid v Lenfest Communications Inc [2000] FCA 628 ; Sparnon v Apand Pty Ltd (unreported, von Doussa J, 4 March 1998); Sony Entertainment (Australia) Ltd v Smith (2005) ALR 788. There are other considerations to which the Court has had regard, but they are not said by any party to arise in the present matter.
Case: Sony Entertainment (Australia) Ltd v Smith (2005) ALR 788
Outcome: referred to
Factors which have been considered when exercising the discretion to make such an order include . where the delay, expense and inconvenience of taxing costs in the normal manner would be unduly protracted or unduly expensive: Beach at 120; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 ( Charlick ); Foyster v Foyster Holdings (2003) 44 ACSR 705; and . where the financial capacity of the party liable to pay costs is such that the additional cost of taxation will impose a significant burden on the party in whose favour costs are ordered without real prospects of recovering those costs: Hadid v Lenfest Communications Inc [2000] FCA 628 ; Sparnon v Apand Pty Ltd (unreported, von Doussa J, 4 March 1998); Sony Entertainment (Australia) Ltd v Smith (2005) ALR 788. There are other considerations to which the Court has had regard, but they are not said by any party to arise in the present matter.
Case: Beach Petroleum NL v Johnson (1995) 57 FCR 119
Outcome: followed
There is no particular characteristic of a case which must exist before a gross sum costs order can be made: Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006. It is a power which may be exercised whenever the particular circumstances of the case warrant it: Beach Petroleum NL v Johnson (1995) 57 FCR 119 ( Beach ); Harrison v Schipp [2002] NSWCA 213 ; (2002) 54 NSWLR 738. 24 Factors which have been considered when exercising the discretion to make such an order include . where the delay, expense and inconvenience of taxing costs in the normal manner would be unduly protracted or unduly expensive: Beach at 120; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 ( Charlick ); Foyster v Foyster Holdings (2003) 44 ACSR 705; and . where the financial capacity of the party liable to pay costs is such that the additional cost of taxation will impose a significant burden on the party in whose favour costs are ordered without real prospects of recovering those costs: Hadid v Lenfest Communications Inc [2000] FCA 628 ; Sparnon v Apand Pty Ltd (unreported, von Doussa J, 4 March 1998); Sony Entertainment (Australia) Ltd v Smith (2005) ALR 788. There are other considerations to which the Court has had regard, but they are not said by any party to arise in the present matter.
Case: Harrison v Schipp (2002 [2002] NSWCA 213 ; 54 NSWLR 738
Outcome: referred to
There is no particular characteristic of a case which must exist before a gross sum costs order can be made: Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006. It is a power which may be exercised whenever the particular circumstances of the case warrant it: Beach Petroleum NL v Johnson (1995) 57 FCR 119 ( Beach ); Harrison v Schipp [2002] NSWCA 213 ; (2002) 54 NSWLR 738.
Case: Christodoulou v Disney Enterprises Inc [2005] FCA 1401
Outcome: cited
Mr Christodoulou sued the respondents (collectively, Disney) for infringement of his Australian Registered Trade Mark No. 631891 consisting of the words THE HUNCHBACK OF NOTRE DAME. Crennan J dismissed the claim, holding that Disney's use of the words was not use as a trade mark: Christodoulou v Disney Enterprises Inc [2005] FCA 1401.
Case: Christodoulou v Disney Enterprises Inc [2006] FCA 38
Outcome: cited
Mr Christodoulou appealed. On Disney's application, Merkel J made an order for security for costs in the amount of $10,000: Christodoulou v Disney Enterprises Inc [2006] FCA 38. Mr Christodoulou duly paid that amount into court. 3 On 30 May 2006 Mr Christodoulou filed a notice of motion (the first motion) seeking orders that he "be permitted to discontinue" the appeal and that the $10,000 be returned to him. On the same day he filed a document headed "Notice of Discontinuance Order 22 rule 2" which stated that he "pursuant to the leave of the Court granted on 31 May 2006 [the return date of the first motion] (if leave is obtained) discontinues" the appeal. 4 If a notice of discontinuance is filed by an appellant before the hearing of the appeal, no leave is needed. The appeal is taken to be abandoned and the appellant becomes liable to pay the respondent's costs: Federal Court Rules O 52 r 19 (O 22 r 2 referred to in Mr Christodoulou's document applies to discontinuance of proceedings at first instance, not appeals). However, the Court would have a broad discretion, arising from s 43(2) of the Federal Court of Australia Act 1976 (Cth), to make some other order as to costs.
Case: R v Medway [1976] 1 All ER 527 at 543
Outcome: cited
Mr Bova also submitted that I should conclude that the Court had no power to set aside the notice of discontinuance because Mr Christodoulou had not satisfied either of the two possibly applicable criteria. The first requires it to be shown that the withdrawal is a nullity; the Court needs to be satisfied the discontinuance was not the result of a deliberate and informed decision such as where (to take some non-exhaustive examples) it is the result of fraud or mistake: R v Medway [1976] 1 All ER 527 at 543. The second, more liberal, view is that the Court has power to set aside the discontinuance as part of its inherent power to prevent injustice: Applicant NACT of 2001 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 316 at [4] , Applicant A26 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1050 at [5] .
Case: Applicant NACT of 2001 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [20045] FCA 316 at [4]
Outcome: cited
Mr Bova also submitted that I should conclude that the Court had no power to set aside the notice of discontinuance because Mr Christodoulou had not satisfied either of the two possibly applicable criteria. The first requires it to be shown that the withdrawal is a nullity; the Court needs to be satisfied the discontinuance was not the result of a deliberate and informed decision such as where (to take some non-exhaustive examples) it is the result of fraud or mistake: R v Medway [1976] 1 All ER 527 at 543. The second, more liberal, view is that the Court has power to set aside the discontinuance as part of its inherent power to prevent injustice: Applicant NACT of 2001 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 316 at [4] , Applicant A26 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1050 at [5] . 14 The question has been touched on in two decisions of judges of this Court. In NACT (supra) Jacobson J, as already mentioned, held that there was power in the Court to set aside the notice of discontinuance, but dismissed the application. However, the question whether the jurisdiction could be exercised by a single judge was not raised before his Honour and was not mentioned. 15 In NACU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1444 the appellant was the wife of the appellant in NACT . In the husband's case an application for special leave to appeal to the High Court had taken the point that the application should have been heard by a Full Court. In NACU Hill J at [8] expressed "some misgivings" about jurisdiction, but apparently on the basis that following a discontinuance the proceedings were at an end and there is nothing that could go before a Full Court. If there was power to set aside a discontinuance, to his Honour it was "not immediately apparent how the application (was) one that really resides in the Full Court". If it did, his Honour did not think that s 25 would permit the Full Court jurisdiction to be exercised by a single judge. In any event, his Honour decided to follow Jacobson J, partly because the husband was seeking special leave from the High Court and that the two cases "should be kept together" (at [10]).
Case: Applicant A26 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1050 at [5]
Outcome: cited
Mr Bova also submitted that I should conclude that the Court had no power to set aside the notice of discontinuance because Mr Christodoulou had not satisfied either of the two possibly applicable criteria. The first requires it to be shown that the withdrawal is a nullity; the Court needs to be satisfied the discontinuance was not the result of a deliberate and informed decision such as where (to take some non-exhaustive examples) it is the result of fraud or mistake: R v Medway [1976] 1 All ER 527 at 543. The second, more liberal, view is that the Court has power to set aside the discontinuance as part of its inherent power to prevent injustice: Applicant NACT of 2001 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 316 at [4] , Applicant A26 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1050 at [5] .