mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550
Outcome: referred to
I would add that even if I had come to the contrary view on the denial of procedural fairness ground, with the consequence that the Tribunal's decision was infected with error of law, I would nevertheless have dismissed the appeal because I consider that the Tribunal's decision in respect of 3D's application was clearly correct on the material before it: see Austin v Deputy Secretary, Attorney-General's Department (1986) 12 FCR 22 at 26 27; McAuliffe v Secretary, Department of Social Security [1991] FCA 268 ; (1991) 23 ALD 284 at 295 296, affirmed at [1992] FCA 483 ; (1992) 28 ALD 609 at 618 619; State Rail Authority of New South Wales v Collector of Customs [1991] FCA 610 ; (1991) 33 FCR 211 at 217. Courts do not remit matters for reconsideration where it is futile to do so: Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 562 per Sackville J; Tankey v Adams [2000] FCA 1089 ; (2000) 104 FCR 152 at 182.
Case: State Rail Authority of New South Wales v Collector of Customs [1991] FCA 610 ; (1991) 33 FCR 211
Outcome: referred to
I would add that even if I had come to the contrary view on the denial of procedural fairness ground, with the consequence that the Tribunal's decision was infected with error of law, I would nevertheless have dismissed the appeal because I consider that the Tribunal's decision in respect of 3D's application was clearly correct on the material before it: see Austin v Deputy Secretary, Attorney-General's Department (1986) 12 FCR 22 at 26 27; McAuliffe v Secretary, Department of Social Security [1991] FCA 268 ; (1991) 23 ALD 284 at 295 296, affirmed at [1992] FCA 483 ; (1992) 28 ALD 609 at 618 619; State Rail Authority of New South Wales v Collector of Customs [1991] FCA 610 ; (1991) 33 FCR 211 at 217. Courts do not remit matters for reconsideration where it is futile to do so: Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 562 per Sackville J; Tankey v Adams [2000] FCA 1089 ; (2000) 104 FCR 152 at 182.
Case: Stephens v T Pittas Ltd (1983) 56 TC 722
Outcome: distinguished
Implicit in Mr Docherty's argument is that the Tribunal was required to take into account the fact that Mr Docherty was not the sole director of 3D during the relevant years in deciding whether 3D had 'paid an amount' for the purposes of s 109C and Div 7A of the ITAA 36. Underlying this argument is the proposition that for there to be a payment there had to be a consensus between 3D and Mr Docherty and in the face of the reality that Mr Docherty was only one of two directors, there could be no such consensus. Reliance was placed on what was said by the Special Commissioners in Stephens v T Pittas Ltd (1983) 56 TC 722 in particular at 733, namely, that in the absence of consensus between the company and Mr Pittas in that case, it was not possible to regard the relevant sums as loans or advances by the company; and what was said by Goulding J on appeal at 736 and 737, namely, that an outright misappropriation of the company's money could not be treated as the act of the company, except possibly if all the corporators of a solvent company consent to it. 33 Section 109C of Div 7A is in the following terms: 'Payments treated as dividends When private company is taken to pay a dividend (1) A private company is taken to pay a dividend to an entity at the end of the private company's year of income if the private company pays an amount to the entity during the year and either: (a) the payment is made when the entity is a shareholder in the private company or an associate of such a shareholder; or (b) a reasonable person would conclude (having regard to all the circumstances) that the payment is made because the entity has been such a shareholder or associate at some time. Note 1: Some payments do not give rise to dividends. See Subdivision D. Note 2: A private company is treated as making a payment to a shareholder or shareholder's associate if an interposed entity makes a payment to the shareholder or associate. See Subdivision E. Amount of dividend (2) The dividend is taken to equal the amount paid, subject to section 109Y. Note: Section 109Y limits the total amount of dividends taken to have been paid by a private company under this Division to the company's distributable surplus.' 35 It is to be noted that subs 109C(1) contains no requirement that the payment be by way of loan or advance. In other words, a bare payment having no legal or commercial character will suffice provided the other requirements of the subsection are satisfied. This stands in contrast to the consensus requirement referred to by the Special Commissioners in T Pittas Ltd . There the Special Commissioners were referring to the need for consensus for it to be possible to regard the relevant amounts 'as loans or advances by the company to Mr Pittas'. Subsection 109C(1) contains no such requirement; any payment will suffice. Moreover, the appeal judge's observation that an outright misappropriation of the company's money cannot be treated as the act of the company is answered by the Tribunal's finding in [34(6)] above.
Case: Tankey v Adams [2000] FCA 1089 ; (2000) 104 FCR 152
Outcome: referred to
I would add that even if I had come to the contrary view on the denial of procedural fairness ground, with the consequence that the Tribunal's decision was infected with error of law, I would nevertheless have dismissed the appeal because I consider that the Tribunal's decision in respect of 3D's application was clearly correct on the material before it: see Austin v Deputy Secretary, Attorney-General's Department (1986) 12 FCR 22 at 26 27; McAuliffe v Secretary, Department of Social Security [1991] FCA 268 ; (1991) 23 ALD 284 at 295 296, affirmed at [1992] FCA 483 ; (1992) 28 ALD 609 at 618 619; State Rail Authority of New South Wales v Collector of Customs [1991] FCA 610 ; (1991) 33 FCR 211 at 217. Courts do not remit matters for reconsideration where it is futile to do so: Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 562 per Sackville J; Tankey v Adams [2000] FCA 1089 ; (2000) 104 FCR 152 at 182.
Case: Air India v Commonwealth [1977] 1 NSWLR 449
Outcome: discussed
The applicant referred to three cases in support of its claim. The first is Air India v Commonwealth [1977] 1 NSWLR 449, a decision of the New South Wales Court of Appeal. The facts of the case can be briefly summarised. The owner of the Sydney International Airport, the Commonwealth, demanded increased rent from the lessees, a number of airlines, purportedly pursuant to their leases. In general terms, the airlines paid the increased rent, but stated that they may need to challenge the validity of the rent increase. 62 The airlines brought claims for money had and received on the basis of compulsion. The trial judge found that the Commonwealth had no right to require the payment of increased rent. However, he refused to order the repayment of the increased rent because he found the payments had been made voluntarily. That latter finding was the focus of the appeal. 63 The Court of Appeal upheld the trial judge's finding that there had been no compulsion. It did so on the basis that there was no express threat to forfeit the leases should the increased rent be paid, and that such a threat could not reasonably be implied. The Court found (at 455): It hardly seems to be reasonable to fear that the Commonwealth would determine the leases of seven major international airlines servicing Sydney and Australia because of a rent dispute involving the construction of a lease document, when they could be held to their leases and sued to fruitful verdicts. Bringing about an almost empty and non-productive facility would hardly seem a likely course of action." 64 The applicant contends that its case stands in sharp distinction to that of Air India . It points to the two letters from the first respondent, extracted above, dated 6 and 12 March 2003, and the file note of the conversation of 17 March 2003. It submits that in its case a clear threat to evict was being made.
Case: Antaios Compania Naviera SA v Salen Rederierna AB (The Antaios) [1985] AC 191
Outcome: referred to
In the face of a plain inconsistency within a lease, regard must be had to the general canons of contractual construction. The objective intention of the parties must be ascertained, and a common sense and commercially sensible approach must be taken. See, for example, Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 cited by Gleeson CJ, Gummow and Hayne JJ in Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70 ; (2001) 210 CLR 181 at [43] , and Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; [1997] AC 749 at 770-71 per Lord Steyn.
Case: Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344
Outcome: cited
The recognition of a "unifying legal concept" does not, however, render the traditional categories of restitutionary claims, such as the action for money had and received, null and void. On the contrary, in recent years the High Court, and superior State courts, have chosen to frame claims in restitution within the bounds of these established categories. See Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516, Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344, David Securities , Pavey &amp; Matthews , Ovidio , McKay (referring to Mason v New South Wales ), and Vickery v JJP Custodians Pty Ltd (2002) 11 BPR 20,333.
Case: Cretazzo v Lombardi (1975) 13 SASR 4
Outcome: referred to
In general, costs follow the event and any departure from this principle should only occur in exceptional circumstances: Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201; Cretazzo v Lombardi (1975) 13 SASR 4; and Ritter v Godfrey [1920] 2 KB 47 at 52-3. 136 First, the applicant submits that although it only succeeded on one of its claims, it only needed to succeed on one. It relies upon the following comments of Jacobs J in Cretazzo (at 16), cited with approval by Toohey J in Hughes v Western Australian Cricket Association (Inc) (1986) ATPR |P40-748 (at 48,136): "trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issue of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues."
Case: Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
Outcome: cited
It also relies upon the statement of Goldberg J in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] : "a court should be reluctant to embrace the proposition that, as a general rule, it is appropriate to undertake an enquiry as to who was successful in relation to particular issues in a case to determine whether there should be an apportionment of costs against a successful party. A court should not be too ready to disallow costs simply because a party has failed upon an issue, unless it be quite a separate and distinct issue from the issues in respect of which it succeeded or unless there be some element of unreasonableness or inappropriate conduct in relation to that issue: cf Verna Trading Pty Ltd v New India Assurance Pty Ltd [1991] 1 VR 129 at 152-154."
Case: EMCL Pty Ltd v Esanda Finance Corporation Ltd (No 2) (1998) 160 ALR 382
Outcome: cited
In relation to the appropriate interest rate to be applied, the applicant submits that the penalty interest rate, as specified in Penalty Interest Rates Act 1983 (Vic), should be used to calculate interest in this case. It referred to my judgment in McCormick v Riverwood International (Australia) Pty Ltd [2000] FCA 32 in support of that submission. In that case I applied the penalty interest rate after citing the following observations of Heerey J in EMCL Pty Ltd v Esanda Finance Corporation Ltd (No 2) (1998) 160 ALR 382 (at 384): "I think there is obvious practical value in having the Federal Court applying the same interest rate as would be applied in litigation in the same State in which the case is being heard. It would be undesirable for there to be distinctions drawn from State to State, depending on whether it was thought the regime in any particular State did or did not impose a commercial rate of interest."
Case: Esso Australia Resources Ltd v Gas and Fuel Corporation of Victoria [1993] 2 VR 99
Outcome: discussed
Lastly, the applicant referred to the decision of Gobbo J in Esso Australia Resources Ltd v Gas and Fuel Corporation of Victoria [1993] 2 VR 99. His Honour found that Mason v New South Wales (at 105): "confirmed that a payment is made under duress or compulsion where there is a belief, on reasonable grounds, that non-payment will result in serious consequences such as interference with property rights or with the carrying on of a business . In the Air India Case , the test required the threat of a step, other than an invocation of legal process, which would cause harm to the payer." (emphasis added) 71 The applicant submits that it falls squarely within the test for duress and compulsion as formulated by Gobbo J. 72 The first respondent submits that the applicant has simply stated, in its pleading, that the retention of the overpaid rent would constitute "unjust enrichment". It contends that "unjust enrichment" is insufficient to give rise to a cause of action or an entitlement to refund the monies paid.
Case: White Industries (Qld) Pty Ltd v Flower &amp; Hart (1988) 156 ALR 169
Outcome: cited
The second respondent contends that it was improper to institute the deceit claim in the first place. It submits that the claim involved an allegation of criminality. As such, the claim should not have been made without proof to the Briginshaw standard: see White Industries (Qld) Pty Ltd v Flower &amp; Hart (1988) 156 ALR 169 at 241. 155 In addition, the second respondent invites me to infer that the deceit claim was included for the "ulterior motive" of "poisoning" the Court against the respondents, or to bring pressure upon the respondents to settle. It submits that the deceit claim was very small, $12,000, compared to the overpaid rent claim, which was in the realm of $700,000. It contends that therefore, the claim was raised so as to discredit the respondents. 156 The third basis upon which the second respondent submits it is entitled to indemnity costs is by reason of the applicant's rejection of a settlement offer. In the 16 February 2004 letter, the second respondents' solicitors offered to settle the case on the basis that each side bear its own costs. The second respondent contends that the applicant was imprudent to reject this offer.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: referred to
The insurmountable hurdle that the second respondent faces in relation to the hopeless case submission is that I rejected its application for summary dismissal of the case against it on 29 March 2004. In rejecting that application, I held that causation is a question of fact, and therefore I was unable at that stage to make a finding that the case was "clearly untenable", under the test laid down in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130. This was the requisite test for a summary dismissal at the time, although I note that this position has now changed as a result of an amendment made to the Federal Court Act by the Migration Litigation Reform Act 2005 (Cth). Section 31A of the Federal Court Act now provides that the Court may summarily dismiss a matter where that matter has no reasonable prospect of success . The section expressly provides that a proceeding need not be "hopeless" or "bound to fail" for it to have no reasonable prospect of success.
Case: GR Mailman &amp; Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) 24 NSWLR 80
Outcome: cited
In addition to United Scientific Holdings , the first respondent relies upon the decision of the New South Wales Court of Appeal in GR Mailman &amp; Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) 24 NSWLR 80 per Gleeson CJ as authority for the proposition that time is presumed not to be of the essence in relation to the right to invoke a rent review. These cases acknowledge that the presumption is rebuttable by sufficient "contra-indications" in the lease itself or the surrounding circumstances.
Case: Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40-748
Outcome: discussed
However, if I am minded to apportion costs, the applicant contends that I should take into account the approach of Toohey J in Hughes . In that case, although the applicant failed in the majority of causes of action it pleaded, it was awarded 75 per cent of its costs. His Honour did so on the basis that the applicant had "succeeded in his primary aim", and that the applicant "failed on some issues in circumstances where, not only should he not have the costs of those issues, but there should be some compensation for the respondents for the time taken in meeting those issues both prior to and at the hearing": see Hughes at 48,137. 141 The applicant in this case contends that in a majority of its claims it either succeeded or the issue was not determined. As the applicant acknowledged, however, I expressed serious misgivings about a number of its claims that were not, in a formal sense, finally determined. 142 The claim I did not express a view upon was the breach of good faith allegation. That claim was a true alternative to the challenge to the formal validity of the notice in the following sense. The applicant framed its claim for breach of good faith by contending that the more "generous" the requirements under the lease were for validity of notices, the more stringent the duty to act in good faith was. The converse of that submission is that the more stringently a notice is required to be construed, the less chance there is of finding a breach of good faith. Accordingly, because I found the notice to be invalid as a matter of form, at least one of the bases of the applicant's claim for the implication and breach of a duty of good faith fell away. 143 This fact assumes some importance because the applicant submits that a great deal of the evidence during the trial that went to the good faith claim, also went to its other claims. This includes the expert evidence. As such, the applicant submits that a significant amount of the evidence in the trial went to a claim that was not determined, and which I did not express any views upon. 144 In relation to the deceit claim issue, the applicant submits there should be no discount to its costs by virtue of it making, and maintaining until closing submissions, this claim. The deceit claim arose out of an internal email discovered by the second respondent relating to the "management fees" paid by the applicant in relation to the premises. That email stated: "Note on our file says "Tenant pays management fees of $462-50 (plus GST), half goes to owner half goes to Colliers Jardine' Rent goes direct to owner, CJ's [Colliers Jardine] are involved so that owner can claim full management fees as an outgoing. " (emphasis added)
Case: Inspector-General in Bankruptcy v Bradshaw (No 2) [2006] FCA 383
Outcome: referred to
This passage was cited with approval by Kenny J in Inspector-General in Bankruptcy v Bradshaw (No 2) [2006] FCA 383 at [12] . 139 The applicant submits that it was reasonable for it to plead the claims that it did, that there was substance to the claims and that there was a contest of facts in relation to them.
Case: Keddie v Foxall [1955] VLR 320
Outcome: referred to
The first respondent submits that if the case had been confined to the issue of the validity of the form of the notice, the trial would have taken less than a day. Accordingly, the first respondent contends that the claims which the applicant lost (and on which the first respondent says it had no reasonable prospects of success) unnecessarily and unduly prolonged the trial. It cites Keddie v Foxall [1955] VLR 320, Thorne v Doug Wade Consultants Pty Ltd [1985] VR 476 and Re Elgindata Ltd (No 2) [1993] 1 All ER 232 in support of the proposition that the costs the applicant would otherwise be entitled to should be reduced.
Case: Lakatoi Universal Pty Ltd v LA Walker [2000] NSWSC 561
Outcome: cited
The applicant relies upon the following passage from Lakatoi Universal Pty Ltd v LA Walker [2000] NSWSC 561 at [48] per Einstein J to support its objection to the grant of leave to file and serve an amended defence and cross-claim: "It is one thing for the court to case manage proceedings in terms of carrying out its best endeavours to ensure that unnecessary multiplicity of proceedings are avoided wherever possible. It is entirely another thing once a complex hearing extending over some 10 weeks is then followed by detailed findings on a multiplicity of issues binding all the parties, for one party then and only then, to seek to proceed against another party on a cross-claim, relying upon aspects of the judgment to sustain that claim." 25 The applicant contends allowing the first respondent to amend its pleading would result in the applicant being required to put on further evidence by way of defence. It says that it would raise an estoppel defence to the proposed cross-claim, and that would require evidence to be led as to the issue of reliance. 26 The applicant submits that I should take into consideration the fact that an application by it to amend its pleading was rejected in the primary proceeding on the basis that further evidence would need to be led by the respondents in answer the applicant's new claims, and I was not prepared to permit the case to be reopened. The applicant contends that the same approach should be taken to the first respondent's proposed cross-claim.
Case: Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70 ; (2001) 210 CLR 181
Outcome: referred to
In the face of a plain inconsistency within a lease, regard must be had to the general canons of contractual construction. The objective intention of the parties must be ascertained, and a common sense and commercially sensible approach must be taken. See, for example, Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 cited by Gleeson CJ, Gummow and Hayne JJ in Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70 ; (2001) 210 CLR 181 at [43] , and Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; [1997] AC 749 at 770-71 per Lord Steyn.
Case: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; [1997] AC 749
Outcome: cited
In the face of a plain inconsistency within a lease, regard must be had to the general canons of contractual construction. The objective intention of the parties must be ascertained, and a common sense and commercially sensible approach must be taken. See, for example, Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 cited by Gleeson CJ, Gummow and Hayne JJ in Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70 ; (2001) 210 CLR 181 at [43] , and Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; [1997] AC 749 at 770-71 per Lord Steyn.