mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Broadcasting Commission v Australasian Performing Right Association Limited [1973] HCA 36 ; (1973) 129 CLR 99
Outcome: applied
The primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, 'even though the construction adopted is not the most obvious, or the most grammatically accurate', to use the words from earlier authority cited in Locke v. Dunlop ((1888) 39 Ch D 387 at 393), which, although spoken in relation to a will, are applicable to the construction of written instruments generally; see also Bottomley's Case ((1880) 16 Ch D 681 at 686). Further, it will be permissible to depart from the ordinary meaning of the words of one provision so far as is necessary to avoid an inconsistency between that provision and the rest of the instrument. Finally, the statement of Lord Wright in Hillas and Co. Limited. v Arcos Limited. ((1932) 147 LT 503 at 514) that the court should construe commercial contracts 'fairly and broadly, without being too astute or subtle in finding defects', should not be understood as limited to documents drawn by businessmen for themselves and without legal assistance (cf. Upper Hunter County District Council v Australian Chilling and Freezing Co. Ltd . [1968] HCA 8 ; (1968) 118 CLR 429 at 437) (per Gibbs J, as his Honour then was, in Australian Broadcasting Commission v Australasian Performing Right Association Limited [1973] HCA 36 ; (1973) 129 CLR 99 at 109-110) .
Case: Whitworth Street Estates Limited v Miller (1970) AC 583
Outcome: cited
Subsequent conduct is not admissible as an aid to construction of a contract. As Lord Reid said in Whitworth Street Estates Limited v Miller (1970) AC 583 at 603E (see also 615A): 'Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later.' (See also Port Sudan Cotton Co v Govinda Swami Chettiar &amp; Sons (1977) 2 Lloyd's LR 5 at 11).
Case: Port Sudan Cotton Co v Govinda Swami Chettiar &amp; Sons (1977) 2 Lloyd's LR 5
Outcome: referred to
Subsequent conduct is not admissible as an aid to construction of a contract. As Lord Reid said in Whitworth Street Estates Limited v Miller (1970) AC 583 at 603E (see also 615A): 'Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later.' (See also Port Sudan Cotton Co v Govinda Swami Chettiar &amp; Sons (1977) 2 Lloyd's LR 5 at 11).
Case: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153
Outcome: referred to
Terms may be implied in one of four ways (per Heydon JA, as his Honour then was, in Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 164 [28] ). These were summarised by Hodgson J in Carlton &amp; United Breweries Ltd v Tooth &amp; Co Ltd (unreported, Supreme Court of New South Wales, 11 June 1985) as follows: '(i) Implications contained in the express words of the contract: see Marcus Clarke (Vic) Ltd v Brown [1928] HCA 12 ; (1928) 40 CLR 540 at 553-4. (ii) Implications from the "nature of the contract itself" as expressed in the words of the contract: see Liverpool City Council v Irwin [1976] UKHL 1 ; [1977] AC 239. (iii) Implications from usage (for example, mercantile contracts). (iv) Implications from considerations of business efficacy: see BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20 at 26; Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337.'
Case: B.P. Refinery (Westernport) Pty. Limited v President, Councillors and Ratepayers of the Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266
Outcome: cited
In relation to the fourth mentioned type of implied term the classic test is identified in the advice of Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel in B.P. Refinery (Westernport) Pty. Limited v President, Councillors and Ratepayers of the Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 283 as follows: '... for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract .' The test promulgated by the Privy Council was approved by Mason J in Codelfa .
Case: Hoyt's Proprietary Limited v Spencer [1919] HCA 64 ; (1919) 27 CLR 133
Outcome: referred to
A distinct collateral agreement, whether oral or in writing, and whether prior to or contemporaneous with the main agreement, will be valid and enforceable even though the main agreement be in writing, provided that the two may consistently stand together so that the provisions of the main agreement remain in full force and effect notwithstanding the collateral agreement. The collateral agreement cannot impinge on the main agreement. The consideration for a collateral agreement may be the making of the main agreement (per Knox CJ in Hoyt's Proprietary Limited v Spencer [1919] HCA 64 ; (1919) 27 CLR 133 at 139 and per Isaacs J at 147-8; see also Chapman v Chapman [1983] 2 NSWLR 420 at 432-5 and Gates v The City Mutual Life Assurance Society Limited [1986] HCA 3 ; (1986) 160 CLR 1 at 11).
Case: Chapman v Chapman [1983] 2 NSWLR 420
Outcome: referred to
A distinct collateral agreement, whether oral or in writing, and whether prior to or contemporaneous with the main agreement, will be valid and enforceable even though the main agreement be in writing, provided that the two may consistently stand together so that the provisions of the main agreement remain in full force and effect notwithstanding the collateral agreement. The collateral agreement cannot impinge on the main agreement. The consideration for a collateral agreement may be the making of the main agreement (per Knox CJ in Hoyt's Proprietary Limited v Spencer [1919] HCA 64 ; (1919) 27 CLR 133 at 139 and per Isaacs J at 147-8; see also Chapman v Chapman [1983] 2 NSWLR 420 at 432-5 and Gates v The City Mutual Life Assurance Society Limited [1986] HCA 3 ; (1986) 160 CLR 1 at 11).
Case: Gates v The City Mutual Life Assurance Society Limited [1986] HCA 3 ; (1986) 160 CLR 1
Outcome: referred to
A distinct collateral agreement, whether oral or in writing, and whether prior to or contemporaneous with the main agreement, will be valid and enforceable even though the main agreement be in writing, provided that the two may consistently stand together so that the provisions of the main agreement remain in full force and effect notwithstanding the collateral agreement. The collateral agreement cannot impinge on the main agreement. The consideration for a collateral agreement may be the making of the main agreement (per Knox CJ in Hoyt's Proprietary Limited v Spencer [1919] HCA 64 ; (1919) 27 CLR 133 at 139 and per Isaacs J at 147-8; see also Chapman v Chapman [1983] 2 NSWLR 420 at 432-5 and Gates v The City Mutual Life Assurance Society Limited [1986] HCA 3 ; (1986) 160 CLR 1 at 11).
Case: Wirth v Wirth [1956] HCA 71 ; (1956) 98 CLR 228
Outcome: referred to
There is no jurisdiction in an Australian court of equity to declare an owner of property to be a trustee of that property for another merely on the ground that, having regard to all the circumstances, it would be fair so to declare: Wirth v Wirth [1956] HCA 71 ; (1956) 98 CLR 228 at 232 ; Hepworth v Hepworth [1963] HCA 49 ; (1963) 110 CLR 309 at 318 ; Bloch v Bloch [1981] HCA 56 ; (1981) 180 CLR 390 at 400; Muschinski v Dodds ('Muschinski') [1985] HCA 78 ; (1985) 160 CLR 583 at 594-5, 608 and 615-6.
Case: Hepworth v Hepworth [1963] HCA 49 ; (1963) 110 CLR 309
Outcome: referred to
There is no jurisdiction in an Australian court of equity to declare an owner of property to be a trustee of that property for another merely on the ground that, having regard to all the circumstances, it would be fair so to declare: Wirth v Wirth [1956] HCA 71 ; (1956) 98 CLR 228 at 232 ; Hepworth v Hepworth [1963] HCA 49 ; (1963) 110 CLR 309 at 318 ; Bloch v Bloch [1981] HCA 56 ; (1981) 180 CLR 390 at 400; Muschinski v Dodds ('Muschinski') [1985] HCA 78 ; (1985) 160 CLR 583 at 594-5, 608 and 615-6.
Case: Bloch v Bloch [1981] HCA 56 ; (1981) 180 CLR 390
Outcome: referred to
There is no jurisdiction in an Australian court of equity to declare an owner of property to be a trustee of that property for another merely on the ground that, having regard to all the circumstances, it would be fair so to declare: Wirth v Wirth [1956] HCA 71 ; (1956) 98 CLR 228 at 232 ; Hepworth v Hepworth [1963] HCA 49 ; (1963) 110 CLR 309 at 318 ; Bloch v Bloch [1981] HCA 56 ; (1981) 180 CLR 390 at 400; Muschinski v Dodds ('Muschinski') [1985] HCA 78 ; (1985) 160 CLR 583 at 594-5, 608 and 615-6.
Case: Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583
Outcome: cited
There is no jurisdiction in an Australian court of equity to declare an owner of property to be a trustee of that property for another merely on the ground that, having regard to all the circumstances, it would be fair so to declare: Wirth v Wirth [1956] HCA 71 ; (1956) 98 CLR 228 at 232 ; Hepworth v Hepworth [1963] HCA 49 ; (1963) 110 CLR 309 at 318 ; Bloch v Bloch [1981] HCA 56 ; (1981) 180 CLR 390 at 400; Muschinski v Dodds ('Muschinski') [1985] HCA 78 ; (1985) 160 CLR 583 at 594-5, 608 and 615-6. 64 In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair Deane J in Muschinski acknowledged that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust. His Honour pointed out that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle (see per Mason CJ, Wilson and Deane JJ in Baumgartner v Baumgartner ('Baumgartner') [1987] HCA 59 ; (1987) 164 CLR 137 at 148. 65 In relation to the general equitable principle, which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy the benefit of them, to which Mason CJ, Wilson and Deane JJ referred in Baumgartner at 148, it was noted that Deane J had said in Muschinski : '... the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do: cf. Atwood v. Maude , and per Jessel M.R., Lyon v. Tweddell .' (footnotes omitted)
Case: Baumgartner v Baumgartner [1987] HCA 59 ; (1987) 164 CLR 137
Outcome: referred to
In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair Deane J in Muschinski acknowledged that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust. His Honour pointed out that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle (see per Mason CJ, Wilson and Deane JJ in Baumgartner v Baumgartner ('Baumgartner') [1987] HCA 59 ; (1987) 164 CLR 137 at 148. 65 In relation to the general equitable principle, which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy the benefit of them, to which Mason CJ, Wilson and Deane JJ referred in Baumgartner at 148, it was noted that Deane J had said in Muschinski : '... the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do: cf. Atwood v. Maude , and per Jessel M.R., Lyon v. Tweddell .' (footnotes omitted)
Case: Carreras Rothmans Ltd. v. Freeman Mathews Treasure Ltd. [1985] 1 Ch 207
Outcome: cited
In Carreras Rothmans Ltd. v. Freeman Mathews Treasure Ltd. [1985] 1 Ch 207 it was found that moneys paid by a company to an advertising agency, which were placed in a special account after the agency experienced financial difficulties, to be paid out to media interests with whom advertising had been placed for the company was held in trust by the agency for the payment over of the monies to the third party media interests. In that case Peter Gibson J explained the principle applied in Quistclose at 222 as follows: 'In my judgment the principle in all these cases is that equity fastens on the conscience of the person who receives from another property transferred for a specific purpose only and not therefore for the recipient's own purposes, so that such person will not be permitted to treat the property as his own or to use it for other than the stated purpose. Most of the cases in this line are cases where there has been an agreement for consideration so that in one sense each party has contributed to providing the property. But if the common intention is that property is transferred for a specific purpose and not so as to become the property of the transferee, the transferee cannot keep the property if for any reason that purpose cannot be fulfilled.'
Case: Re Australian Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia (1991) 30 FCR 491
Outcome: cited
In Re Australian Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia ('Elizabethan Theatre Trust') (1991) 30 FCR 491 Gummow J held that moneys donated by third parties to the Australian Elizabethan Theatre Trust, with a view to securing tax deductibility for the donations so made, with a request that preference be given by the Australian Elizabethan Theatre Trust to the allocation of the moneys so donated to specific arts bodies associated with the Trust, did not result in the Australian Elizabethan Theatre Trust, which had entered into provisional liquidation, becoming the trustee of the monies so donated for the preferred arts bodies. At 502 Gummow J observed: 'The striking feature of the Quistclose litigation was that, whilst previously it might have been thought that debt and trust were distinct and disparate norms, it was thereafter clear that in a given case the transaction under analysis might bear a dual character.' 71 In Elizabethan Theatre Trust Gummow J observed that the debate in Quistclose had been confined to whether the material disclosed a trust in the terms which his Honour had described or merely a loan. His Honour then continued by saying at 503: '... But the facts in such cases are susceptible of infinite variation and the trust is a supple instrument. Hence the suggestion by Professor Finn that if the facts disclosed no contractual obligation by the borrower to the lender to pay the creditors, there could hardly be present a concurrent intention to create a trust in their favour; rather, the borrower would hold the moneys borrowed as trustee of an express trust for the lender, subject to a mandate for the lender (sic) to use the fund to pay the creditors. On that footing, there would be but one trust, created to give the lender security for its rescue operation of the financially unhealthy borrower, but not to render the creditors beneficiaries under any trust. ...'
Case: Damberg v Damberg [2001] NSWCA 87 ; (2001) 52 NSWLR 492
Outcome: referred to
Notwithstanding the suggestion by both sides that the conversation between Luke Song and Mr Ku on 19 October 2006 led to an 'agreement', I am not satisfied that the participants intended to enter into a legally binding contract on that day, even as between themselves (in this regard see Damberg v Damberg [2001] NSWCA 87 ; (2001) 52 NSWLR 492 at [148] - [157] per Heydon JA). Furthermore, I am not satisfied that there was any promise on the part of Mr Ku to transfer the shares to Ji Song or that any such promise formed part of an agreement reached between Mr Ku and Luke Song in accordance with the principles enunciated above, for which there was any consideration. Luke Song did not want to make a commitment that would bind his wife without her authority and Mr Ku was going away to prepare a settlement agreement in documentary form for the parties to consider. 109 In my opinion, Mr Ku's proposal that he transfer the shares to Ji Song was simply an exercise undertaken at his instigation, directed at rebuilding a relationship of trust with the Songs. It was not directed at constituting Ji Song a trustee of the shares for Mr Ku. Rather, it was an act of faith, uninfluenced by any representations made by Luke Song or Sue Song. He was prepared to put his interest in Kjun International Pty Limited at risk, relying on Ji Song's beneficence to allow him to enjoy or share in it again. 110 The next meeting between Luke Song and Mr Ku took place on Wednesday 25 October, that is to say the day after Mr Ku prepared the shorter form of agreement, the longer form of agreement and the form of share transfer back from Ji Song to Mr Ku of shares in Kjun International Pty Limited.
Case: Milroy v Lord (1862) 4 DeGF &amp; J 264 [45 ER 1185]
Outcome: referred to
For a gift inter vivos to be effective, it must be established that the donor intended to make an immediate gift and that he has 'done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him', (referring to the principle applied in Milroy v Lord (1862) 4 DeGF &amp; J 264 [45 ER 1185]) (per Taylor J in Cope v Keene [1968] HCA 53 ; (1968) 118 CLR 1 at 12; see also per Kitto J at 6 7).
Case: Cope v Keene [1968] HCA 53 ; (1968) 118 CLR 1
Outcome: referred to
For a gift inter vivos to be effective, it must be established that the donor intended to make an immediate gift and that he has 'done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him', (referring to the principle applied in Milroy v Lord (1862) 4 DeGF &amp; J 264 [45 ER 1185]) (per Taylor J in Cope v Keene [1968] HCA 53 ; (1968) 118 CLR 1 at 12; see also per Kitto J at 6 7).
Case: Brunker v Perpetual Trustee Company (Limited) [1937] HCA 29 ; (1937) 57 CLR 555
Outcome: referred to
An intended donee cannot obtain equitable remedies against the donor compelling him to give legal effect to his intention to give (per Dixon J, as his Honour then was, in Brunker v Perpetual Trustee Company (Limited) ('Brunker') [1937] HCA 29 ; (1937) 57 CLR 555 at 599). 118 In relation to a transfer of real estate Dixon J said in Brunker at 602-3: 'Further, I think that the donee must obtain property in the piece of paper itself and property in the paper could pass only by delivery ( Cochrane v Moore ). If property in the transfer remained in the transferor, his power of recalling it must also remain. For he would be entitled to possession of the paper, he could refuse to present it for registration and he could destroy it.' (footnote omitted) 119 As has already been observed no instrument of transfer of the shares was brought into existence, executed by Mr Ku or delivered to Ji Song or any agent for him. 120 In his affidavit sworn 28 June 2007 (sic) at paragraph 15 Mr Ku said: '15 Prior to going to the meeting with Luke Song [on 25 October 2006] I had been with a solicitor ... Mr Y Kim. ... I gave to Mr Kim the original transfer in the express post envelope and asked him to send it. ... Later I became aware ... that the share transfer had not gone through and I said I would check what had happened. ... Later when I checked with Mr Kim and realised he had not sent the transfer I did phone Luke Song and say I would do the transfer on the internet. ...' The so-called 'original transfer' was plainly the original of the 'Change to company details' form , a copy of which is reproduced in Schedule 1.
Case: Anning v Anning [1907] HCA 13 ; (1907) 4 CLR 1049
Outcome: referred to
In respect of the requirement that for a gift to be effective the donor must have done all that was 'necessary to be done', 'necessary' means 'necessary for the purpose of passing the property'. The word is not used in an obligatory sense. The donor is under no necessity, no obligation. What the Courts look at is what the donor might have done to perfect the gift (per Higgins J in Anning v Anning ('Anning') [1907] HCA 13 ; (1907) 4 CLR 1049 at 1082). 116 There is nothing unconscientious in a donor refusing at any stage to perfect a mere bounty (per Isaacs J in Anning at 1063). In Anning Griffith CJ opined at 1057: '... in the case of shares in a company which are only transferable by an instrument of transfer lodged with the company, I think that the donor has done all that is necessary on his part as soon as he has executed the transfer' 117 It seems to me that not only would execution of a transfer be necessary, but also delivery of that transfer to the donee and whatever else may be necessary to enable the donee to secure registration of the transfer.
Case: Genetics Institute Inc v Kirin-Amgen Inc (1996) 34 IPR 513
Outcome: cited
After the Commissioner's decision the applicant successfully obtained an amendment. The amendment had the effect of narrowing the claims. Counsel for the respondent accepts that the appeal should proceed to deal with the patent in its amended form. See Genetics Institute Inc v Kirin-Amgen Inc (1996) 34 IPR 513 at 515, which was accepted as correct, although distinguished on the facts in Airsense Technology Ltd v Vision Systems Ltd (2007) 73 IPR 65 at [13].