mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: John R Turk &amp; Sons (Artarmon) Pty Ltd v Newmont Television Pty Ltd [1999] NSWSC 622
Outcome: cited
The present application does not call for a detailed discussion of the principles that govern the exercise of the Court's discretion under s 436B(2) of the Act. The reason is that, in my view, on any approach, the discretion should be exercised in favour of the granting of leave for the Liquidators to appoint themselves as administrators. The main question under s436B(2) of the Act is whether the Court is satisfied that the liquidator is an appropriate person to be appointed as administrator. After all, a liquidator is at liberty under s 436B(1) of the Act to appoint another person as administrator without the necessity of leave: see Deputy Commissioner of Taxation v Foodcorp Pty Ltd (1994) 13 ACSR 796 ( Foodcorp) ; Re Cobar Mines Pty Ltd (rec and mgr apptd) (in liq) (1998) 30 ACSR 125; John R Turk &amp; Sons (Artarmon) Pty Ltd v Newmont Television Pty Ltd [1999] NSWSC 622 ; Nardell Coal Corporation Pty Ltd (recs and mgrs apptd) (in liq) (2003) 47 ACSR 122. It has been suggested, however, that the Court should also have in mind considerations of commercial morality: see Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22; Re Depsun Pty Ltd (1994) 13 ACSR 644; Foodcorp at 798-9. 26 It would be wasteful to put the Liquidators to that effort and expense, having regard to the fact that the members of the committee of inspection in the liquidation have unanimously supported the Proposal, in general, and, in particular, the re-appointment of the Liquidators as administrators for the purpose of advancing it. For this reason I made the order sought under s 447A of the Act. I note that such an order has been made in somewhat similar circumstances in Re Cobar Mines Pty Ltd (rec and mgr apptd) (in liq) (1998) 30 ACSR 125; John R Turk &amp; Sons (Artarmon) Pty Ltd v Newmont Television Pty Ltd [1999] NSWSC 622 and Re Nardell Coal Corporation Pty Ltd (rec and mgr apptd) (in liq) (2003) 47 ACSR 122.
Case: Re Nardell Coal Corporation Pty Ltd (recs and mgrs apptd) (in liq) (2003) 47 ACSR 122
Outcome: cited
The present application does not call for a detailed discussion of the principles that govern the exercise of the Court's discretion under s 436B(2) of the Act. The reason is that, in my view, on any approach, the discretion should be exercised in favour of the granting of leave for the Liquidators to appoint themselves as administrators. The main question under s436B(2) of the Act is whether the Court is satisfied that the liquidator is an appropriate person to be appointed as administrator. After all, a liquidator is at liberty under s 436B(1) of the Act to appoint another person as administrator without the necessity of leave: see Deputy Commissioner of Taxation v Foodcorp Pty Ltd (1994) 13 ACSR 796 ( Foodcorp) ; Re Cobar Mines Pty Ltd (rec and mgr apptd) (in liq) (1998) 30 ACSR 125; John R Turk &amp; Sons (Artarmon) Pty Ltd v Newmont Television Pty Ltd [1999] NSWSC 622 ; Nardell Coal Corporation Pty Ltd (recs and mgrs apptd) (in liq) (2003) 47 ACSR 122. It has been suggested, however, that the Court should also have in mind considerations of commercial morality: see Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22; Re Depsun Pty Ltd (1994) 13 ACSR 644; Foodcorp at 798-9. 26 It would be wasteful to put the Liquidators to that effort and expense, having regard to the fact that the members of the committee of inspection in the liquidation have unanimously supported the Proposal, in general, and, in particular, the re-appointment of the Liquidators as administrators for the purpose of advancing it. For this reason I made the order sought under s 447A of the Act. I note that such an order has been made in somewhat similar circumstances in Re Cobar Mines Pty Ltd (rec and mgr apptd) (in liq) (1998) 30 ACSR 125; John R Turk &amp; Sons (Artarmon) Pty Ltd v Newmont Television Pty Ltd [1999] NSWSC 622 and Re Nardell Coal Corporation Pty Ltd (rec and mgr apptd) (in liq) (2003) 47 ACSR 122.
Case: Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22
Outcome: cited
The present application does not call for a detailed discussion of the principles that govern the exercise of the Court's discretion under s 436B(2) of the Act. The reason is that, in my view, on any approach, the discretion should be exercised in favour of the granting of leave for the Liquidators to appoint themselves as administrators. The main question under s436B(2) of the Act is whether the Court is satisfied that the liquidator is an appropriate person to be appointed as administrator. After all, a liquidator is at liberty under s 436B(1) of the Act to appoint another person as administrator without the necessity of leave: see Deputy Commissioner of Taxation v Foodcorp Pty Ltd (1994) 13 ACSR 796 ( Foodcorp) ; Re Cobar Mines Pty Ltd (rec and mgr apptd) (in liq) (1998) 30 ACSR 125; John R Turk &amp; Sons (Artarmon) Pty Ltd v Newmont Television Pty Ltd [1999] NSWSC 622 ; Nardell Coal Corporation Pty Ltd (recs and mgrs apptd) (in liq) (2003) 47 ACSR 122. It has been suggested, however, that the Court should also have in mind considerations of commercial morality: see Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22; Re Depsun Pty Ltd (1994) 13 ACSR 644; Foodcorp at 798-9.
Case: Re Depsun Pty Ltd (1994) 13 ACSR 644
Outcome: cited
The present application does not call for a detailed discussion of the principles that govern the exercise of the Court's discretion under s 436B(2) of the Act. The reason is that, in my view, on any approach, the discretion should be exercised in favour of the granting of leave for the Liquidators to appoint themselves as administrators. The main question under s436B(2) of the Act is whether the Court is satisfied that the liquidator is an appropriate person to be appointed as administrator. After all, a liquidator is at liberty under s 436B(1) of the Act to appoint another person as administrator without the necessity of leave: see Deputy Commissioner of Taxation v Foodcorp Pty Ltd (1994) 13 ACSR 796 ( Foodcorp) ; Re Cobar Mines Pty Ltd (rec and mgr apptd) (in liq) (1998) 30 ACSR 125; John R Turk &amp; Sons (Artarmon) Pty Ltd v Newmont Television Pty Ltd [1999] NSWSC 622 ; Nardell Coal Corporation Pty Ltd (recs and mgrs apptd) (in liq) (2003) 47 ACSR 122. It has been suggested, however, that the Court should also have in mind considerations of commercial morality: see Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22; Re Depsun Pty Ltd (1994) 13 ACSR 644; Foodcorp at 798-9.
Case: Bowen v Stratigraphic Explorations Pty Ltd [1971] WAR 119
Outcome: referred to
No party to the Deed of Settlement is a party to the proceeding. More particularly it is not asserted that Sons of Gwalia Ltd acquired its interest in the mining lease and associated property other than as a 'bona fide' purchaser for value without notice. Apart from the insurmountable difficulties that would usually face a party attempting to have a Deed of Settlement set aside it is obvious that this proceeding against the defendants has no prospect of success seeking as it does an order against the defendants in respect of their rejection of the proof of debt lodged by the plaintiff. (See: Bowen v Stratigraphic Explorations Pty Ltd [1971] WAR 119, 121).
Case: Lonrho Plc v Al-Fayed (No 2) [1992] 1WLR 5
Outcome: referred to
It may be accepted that an application for summary dismissal of a proceeding will rarely succeed if the application is based on no more than the apparent lack of probability that the claimant will succeed or if the application to dismiss does not address whether there are latent substantive questions that may arise in the course of the proceeding. (See: Lonrho Plc v Al-Fayed (No 2) [1992] 1WLR 5; Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686). However, this proceeding is one of those cases where it is obvious that there is no utility in allowing the matter to continue. On its face there is no question that can be competently raised by the plaintiff for resolution by the Court in respect of the conduct of the defendants as Administrators. (See: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 per Dixon J at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 per Barwick CJ at 129).
Case: Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686
Outcome: referred to
It may be accepted that an application for summary dismissal of a proceeding will rarely succeed if the application is based on no more than the apparent lack of probability that the claimant will succeed or if the application to dismiss does not address whether there are latent substantive questions that may arise in the course of the proceeding. (See: Lonrho Plc v Al-Fayed (No 2) [1992] 1WLR 5; Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686). However, this proceeding is one of those cases where it is obvious that there is no utility in allowing the matter to continue. On its face there is no question that can be competently raised by the plaintiff for resolution by the Court in respect of the conduct of the defendants as Administrators. (See: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 per Dixon J at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 per Barwick CJ at 129).
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: referred to
It may be accepted that an application for summary dismissal of a proceeding will rarely succeed if the application is based on no more than the apparent lack of probability that the claimant will succeed or if the application to dismiss does not address whether there are latent substantive questions that may arise in the course of the proceeding. (See: Lonrho Plc v Al-Fayed (No 2) [1992] 1WLR 5; Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686). However, this proceeding is one of those cases where it is obvious that there is no utility in allowing the matter to continue. On its face there is no question that can be competently raised by the plaintiff for resolution by the Court in respect of the conduct of the defendants as Administrators. (See: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 per Dixon J at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 per Barwick CJ at 129).
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: referred to
It may be accepted that an application for summary dismissal of a proceeding will rarely succeed if the application is based on no more than the apparent lack of probability that the claimant will succeed or if the application to dismiss does not address whether there are latent substantive questions that may arise in the course of the proceeding. (See: Lonrho Plc v Al-Fayed (No 2) [1992] 1WLR 5; Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686). However, this proceeding is one of those cases where it is obvious that there is no utility in allowing the matter to continue. On its face there is no question that can be competently raised by the plaintiff for resolution by the Court in respect of the conduct of the defendants as Administrators. (See: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 per Dixon J at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 per Barwick CJ at 129).
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57
Outcome: cited
am satisfied that there is a serious question to be tried against AIF and that the allegations made in the statement of claim have a foundation (Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57).
Case: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801
Outcome: referred to
Commission also submits that it is important in the public interest and the administration of the Trade Practices Act that it be given leave to proceed against AIF in order for the public to be informed, if the Commission is successful, of the public's rights in relation to the provision of bundled services. I accept that, if the Commission is successful, there is utility in promoting general deterrence. As was pointed out by Carr J in Australian Competition and Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801 at [34], '[t] here is some degree of public interest in the determination and declaration that the respondent by its conduct has contravened [a provision of the Trade Practices Act ]'. However, I do not consider this to be a factor in support of the exercise of discretion to proceed against AIF. There are other finance companies already joined as respondents to the proceedings. If the Commission is successful in establishing contraventions of the Trade Practices Act , this aspect of the public interest will be served. The Commission points out that it may be successful against AIF and not against the other companies but I cannot properly weigh that likelihood at this stage of the proceedings. The Commission submits that it is in the public interest to grant leave to proceed against AIF ' because it is important that the Trade Practices Act ... be seen to be enforced '. I do not accept that it is appropriate to grant leave to proceed against a company in liquidation simply because the Commission considers it important that the Trade Practices Act be seen to be enforced. The Commission also relies upon the public interest in obtaining declarations that a party has contravened the Trade Practices Act ' to vindicate the rights and interests of small businesses which have entered into arrangements with [AIF] which are contrary to section 47(6) of the [Trade Practices Act]'.
Case: Speiser v Locums Financial Management Pty Ltd (1996) 22 ACSR 478
Outcome: referred to
proceedings were commenced on 17 September 2008, prior to AIF being placed into liquidation. The Commission submits that the fact that resources have already been committed to litigation is an important consideration in granting leave to continue. However, unlike Speiser v Locums Financial Management Pty Ltd (1996) 22 ACSR 478 at 482 3, the liquidation in the present case did not occur in the midst of litigation after days had been set aside for further hearing. In this case there are a number of respondents in the proceedings and there is no indication that the formulation of the claims against AIF represents a predominant allocation of resources. Only a small amount of time has elapsed since the commencement of the proceedings. I do not consider this to be a relevant factor in support of the exercise of discretion.
Case: Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550
Outcome: referred to
Commission's case is that this discloses that AIF knew of the relevant transaction between the Telco and the customer. The Commission submits that this is sufficient to establish a serious question to be tried as to the accessorial liability of AIF in the contravention by the Telcos of the exclusive dealing provisions of the Trade Practices Act ( Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550). As the Commission points out, these proceedings do not represent a choice as is often available in a liquidation, between an action and a proof of debt. The remedies sought by the Commission are not available in the liquidation. Although the unavailability of relief pursuant to liquidation does not automatically entitle an applicant to leave under s 471B of the Corporations Act ( Vagrand at 553), the fact that relief is not otherwise available is a significant factor in favour of the exercise of discretion to grant leave to proceed against the company in liquidation. Further, the Commission submits that it is necessary to obtain the relief sought in order to inform and protect customers who may be unaware of their potential rights under the Trade Practices Act . The public interest in the declarations and other orders sought against AIF is relevant. As the Commission points out, consumers may be subject to claims by AIF for moneys owed as part of the bundling agreement. In view of the large number of individual customers said to have been made subject to the bundling arrangements as pleaded, I accept that findings of fact in these proceedings as against AIF may be useful to persons who have dealt with the company in a similar manner to that pleaded in the statement of claim and who may wish to pursue their own remedies against it. If the contracts with AIF are found in these proceedings to have been "forced" in contravention of s 47(6) of the Trade Practices Act , customers against whom enforcement proceedings are brought may be able to seek relief from the contracts by virtue of any findings made in these proceedings. If AIF is not a party to these proceedings, then it will be free to argue in any such enforcement proceedings that it is not bound by any judgment, so that the question of contravention of s 47(6) of the Trade Practices Act would need to be relitigated by the individual customer, even if that customer were aware of the provisions of the Trade Practices Act . There is no indication from the liquidator whether there are any funds available in AIF. However, the assets of the liquidator include claims against customers who have an equipment lease with AIF. Those assets come to the liquidator with their history and inherent characteristics. As the Full Court pointed out in Vagrand (at 553), '[a] lthough the liquidator takes the assets on behalf of the creditors, third parties retain any rights which enure to them as a result of that history or those characteristics '.
Case: Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170
Outcome: applied
It is common ground that in ruling upon this application, the Court is to apply the test established by the High Court in Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 which requires the respondent to persuade the Court that the discharge of the undertaking would be appropriate because of the existence of new facts that render the ongoing enforcement of the undertaking unjust. 4 The respondent carries the burden of establishing the new facts. Mr McDonald of Senior Counsel, who appeared on behalf of the respondent with Mr O'Grady, argued that there were two material changes in circumstances which rendered it unjust for the Court to maintain the undertaking of the respondent. 5 First, Mr McDonald contended that the cause of action under s 1317AA of the Act had been abandoned by the legal representative of the applicant in the course of the trial, which is presently part heard. Reference was made to the transcript at pp 22 and 50 which support the contention that this cause of action was abandoned in the course of the trial.
Case: E I Du Pont De Nemours v ICI Chemicals &amp; Polymers Ltd (2005) 66 IPR 462
Outcome: cited
As pointed out by Emmett J in E I Du Pont De Nemours v ICI Chemicals &amp; Polymers Ltd (2005) 66 IPR 462 at 493: 'Ultimately, it is a matter for the court as to whether a proposed line of enquiry was obvious to the relevant persons. Where the evidence of a relevant person constitutes no more than speculation as to what that person might have done in circumstances that had never arisen ... the evidence will have little weight'. 98 In my view, the evidence does not establish that the Davidson A hull would provide any basis to support the argument which would make the claimed inventive step obvious or non-existent. 99 Furthermore, simply because the earlier Austal hulls and Crowther hull included a bulbous bow in a catamaran hull design does not automatically mean they were relevant to a consideration of the problem addressed by the patent. It is left unclear as to the nature and extent of the modifications required to make such vessels suitable for use in exposed waters. I accept the evidence that these vessels did not disclose the use of a small water plane area for a substantial portion of the forward half of the vessel, which is a crucial feature of the patent specification. They were more akin to the water plane areas used in conventional catamarans at that time. The use of such vessels in calm or sheltered waters does not necessarily provide any useful guide to the design of a hull suitable for use at high speed in exposed waters, in which conditions the problem of good seakeeping is greatly increased.
Case: Electric and Musical Industries Ltd v Lissen (1938) 56 RPC 23
Outcome: cited
Where the language of the specification is unambiguous, a court should not readily depart from the wording of the claim by reading words into it or using stray phrases in the body of the specification in order to narrow or widen the boundaries of the monopoly fixed by the plain words of a claim. As Lord Russell of Killowen stated in Electric and Musical Industries Ltd v Lissen (1938) 56 RPC 23 at 39: 'The function of the claims is to define clearly and with precision the monopoly claimed, so that others may know the exact boundary of the area within which they will be trespassers. Their primary object is to limit and not to extend the monopoly. What is not claimed is disclaimed. The claims must undoubtedly be read as part of the entire document and not as a separate document; but the forbidden field must be found in the language of the claims and not elsewhere.' See also Kirin-Amgen Inc v Hoechst Marion Roussel Limited [2004] UKHL 46 at [20] (per Lord Hoffmann); Kimberly-Clark Pty Ltd v Arico Trading International Pty Limited [2001] HCA 8 ; (2001) 207 CLR 1 at 12; Interlego AG v Toltoys Pty Ltd [1973] HCA 1 ; (1973) 130 CLR 461 at 479.
Case: Firebelt Pty Ltd v Brambles Australia Ltd [2002] HCA 21 ; (2002) 188 ALR 280
Outcome: cited
The principles relating to 'inventive step' and 'obviousness' were recently considered by the High Court in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2007] HCA 21. In that case, their Honours referred to ss 7(2) and (3) the Act , which describe the statutory test as to what constitutes an 'inventive step'. Their Honours noted at [122] and [150] that the standard by which obviousness is to be determined is by reference to the understanding of a person skilled in the relevant art, who, at the priority relevant date, would possess common general knowledge in that art, and who would have had regard to any additional information referred to in s 7(3): see also Firebelt Pty Ltd v Brambles Australia Ltd [2002] HCA 21 ; (2002) 188 ALR 280 at 287-289; Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at 414 (per Burchett J). The Court clarified at [152] that s 7(3) has the effect of enlarging the prior art base to include relevant prior disclosures beyond that information which is shown to constitute common general knowledge in that art.