mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Daemar v Industrial Commission of NSW (No 2) (1990) 22 NSWLR 178
Outcome: cited
of a bankrupt does not spell the end of the trustee's duties to distribute to creditors such property as remains vested in the trustee. Property, including choses in action, which has vested in a trustee by reason of bankruptcy continues to be so vested after the discharge of the bankrupt. The release provision, s 153(1) , does not revest in the bankrupt property previously vested in the trustee Daemar v Industrial Commission of NSW (No 2) (1990) 22 NSWLR 178. In that case the Court of Appeal of New South Wales held that a right of action which the former bankrupt had to challenge certain orders of the Industrial Commission, remains vested in his trustee. It would seem to be implicit in the continuing responsibility of the trustee for the distribution of the former bankrupt's estate to creditors, in respect of provable debts, that the leave requirement under s 58(3) remains in place to the extent that there is a dispute about the existence of such a debt. Such leave could authorise a resolution of that dispute in separate proceedings. The leave requirement is not expressly limited in time. Section 58(3) refers to the period '... after a debtor has become bankrupt'. It may be noted that the definition of 'bankrupt' in s 5 of the Act means a person: who has become a bankrupt by virtue of the presentation of a debtors petition;' Provisions of the Act relating to 'a bankrupt' are not therefore temporally limited by that term Official Receiver v Todd (1986) 14 FCR 177 in which it was held that liability to examination under s 81(1) of the Bankruptcy Act does not expire upon discharge. It would seem that in all but the most unusual cases, of which this is one, questions of the kind raised here would not arise in any practical sense.
Case: Official Receiver v Todd (1986) 14 FCR 177
Outcome: cited
of a bankrupt does not spell the end of the trustee's duties to distribute to creditors such property as remains vested in the trustee. Property, including choses in action, which has vested in a trustee by reason of bankruptcy continues to be so vested after the discharge of the bankrupt. The release provision, s 153(1) , does not revest in the bankrupt property previously vested in the trustee Daemar v Industrial Commission of NSW (No 2) (1990) 22 NSWLR 178. In that case the Court of Appeal of New South Wales held that a right of action which the former bankrupt had to challenge certain orders of the Industrial Commission, remains vested in his trustee. It would seem to be implicit in the continuing responsibility of the trustee for the distribution of the former bankrupt's estate to creditors, in respect of provable debts, that the leave requirement under s 58(3) remains in place to the extent that there is a dispute about the existence of such a debt. Such leave could authorise a resolution of that dispute in separate proceedings. The leave requirement is not expressly limited in time. Section 58(3) refers to the period '... after a debtor has become bankrupt'. It may be noted that the definition of 'bankrupt' in s 5 of the Act means a person: who has become a bankrupt by virtue of the presentation of a debtors petition;' Provisions of the Act relating to 'a bankrupt' are not therefore temporally limited by that term Official Receiver v Todd (1986) 14 FCR 177 in which it was held that liability to examination under s 81(1) of the Bankruptcy Act does not expire upon discharge. It would seem that in all but the most unusual cases, of which this is one, questions of the kind raised here would not arise in any practical sense.
Case: Spain v Union Steamship Co of New Zealand Limited [1923] HCA 21 ; (1923) 32 CLR 138
Outcome: cited
is concerned that the discharge of Mr Ireland from bankruptcy does not excuse it from the requirement to seek leave to prosecute its claim for fraud in the civil action. It is concerned, moreover, that the claim for fraud may arguably be a claim for liquidated damages comprising the purchase price paid by it to Mr Ireland at the direction of Acarus to acquire a 30% interest in the tenements. So the damages claim, albeit based in fraud, may give rise to a 'provable debt' within the meaning of s 82. To the extent that the claim seeks recovery of moneys paid by way of the purchase price for the tenements, it is arguably a claim for liquidated damages. As was said in Spain v Union Steamship Co of New Zealand Limited [1923] HCA 21 ; (1923) 32 CLR 138 (at 142 per Knox CJ and Starke J): is well said by Mr Odgers (Pleading and Practice, 5 th ed, p 41), "whenever the amount to which the plaintiff is entitled ... can be ascertained by calculation or fixed by any scale of charges, or other positive data, it is ... liquidated".' On the other hand, in Cornelius v Barewa Oil and Mining NL (In liq) (1982) 42 ALR 83 Burt CJ observed that (at 84): claim for damages for fraudulent misrepresentation remains a claim or demand for unliquidated damages even if the relief as claimed is for a liquidated amount.'
Case: Coventry v Charter Pacific Corporation Limited [2005] HCA 67 ; (2005) 222 ALR 202
Outcome: cited
contends that by reason of the High Court's decision in Coventry v Charter Pacific Corporation Limited [2005] HCA 67 ; (2005) 222 ALR 202, an action for unliquidated damages for misleading and deceptive conduct does not give rise to a provable debt. This is of course subject to the qualification that the claim arises 'other than by reason of a contract, promise or breach of trust'. In Coventry the High Court was concerned with an action for misleading or deceptive conduct under s 995(2) and s 1005 of the Corporations Law (Qld). The Court held by majority that a statutory claim for unliquidated damages for misleading or deceptive conduct which induced the claimant to make a contract with some party other than the bankrupt but not with the bankrupt is not a provable debt for the purposes of s 82. In the joint judgment of Gleeson, Gummow, Hayne and Callinan JJ (at [6]) their Honours said: reasons demonstrate that a statutory claim for unliquidated damages for misleading or deceptive conduct which induced the claimant to make a contract not with the bankrupt but with a third party is not a debt provable in bankruptcy. It is a demand in the nature of unliquidated damages arising otherwise than by reason of a contract or promise. The bankrupt is not discharged from liability. The claim may be pursued by the claimant during the bankruptcy and after discharge from bankruptcy. By contrast, a claim for unliquidated damages for misleading or deceptive conduct by the bankrupt, which induced the claimant to make a contact with the bankrupt, would be a debt provable in bankruptcy.' See also Australian Competition and Consumer Commission v Kritharas [2000] FCA 1442 ; (2000) 105 FCR 444 at [29] [34] (Katz J) and Australian Competition and Consumer Commission v Black on White Pty Ltd [2004] FCA 363 ; (2004) 138 FCR 314 at [25] [34] (Spender J). In this case it is not alleged that Norilya entered into any contract with the prospectors by reason of the misrepresentations alleged. Its contract was with Acarus, albeit its payments were made to the prospectors. It does not rely upon the Deed of Assumption in that respect.
Case: Australian Competition and Consumer Commission v Kritharas [2000] FCA 1442 ; (2000) 105 FCR 444 cited Australian Competition and Consumer Commission v Black on White Pty Ltd [2004] FCA 363 ; (2004) 138 FCR 314
Outcome: cited
contends that by reason of the High Court's decision in Coventry v Charter Pacific Corporation Limited [2005] HCA 67 ; (2005) 222 ALR 202, an action for unliquidated damages for misleading and deceptive conduct does not give rise to a provable debt. This is of course subject to the qualification that the claim arises 'other than by reason of a contract, promise or breach of trust'. In Coventry the High Court was concerned with an action for misleading or deceptive conduct under s 995(2) and s 1005 of the Corporations Law (Qld). The Court held by majority that a statutory claim for unliquidated damages for misleading or deceptive conduct which induced the claimant to make a contract with some party other than the bankrupt but not with the bankrupt is not a provable debt for the purposes of s 82. In the joint judgment of Gleeson, Gummow, Hayne and Callinan JJ (at [6]) their Honours said: reasons demonstrate that a statutory claim for unliquidated damages for misleading or deceptive conduct which induced the claimant to make a contract not with the bankrupt but with a third party is not a debt provable in bankruptcy. It is a demand in the nature of unliquidated damages arising otherwise than by reason of a contract or promise. The bankrupt is not discharged from liability. The claim may be pursued by the claimant during the bankruptcy and after discharge from bankruptcy. By contrast, a claim for unliquidated damages for misleading or deceptive conduct by the bankrupt, which induced the claimant to make a contact with the bankrupt, would be a debt provable in bankruptcy.' See also Australian Competition and Consumer Commission v Kritharas [2000] FCA 1442 ; (2000) 105 FCR 444 at [29] [34] (Katz J) and Australian Competition and Consumer Commission v Black on White Pty Ltd [2004] FCA 363 ; (2004) 138 FCR 314 at [25] [34] (Spender J). In this case it is not alleged that Norilya entered into any contract with the prospectors by reason of the misrepresentations alleged. Its contract was with Acarus, albeit its payments were made to the prospectors. It does not rely upon the Deed of Assumption in that respect.
Case: Macquarie Bank Ltd v Bardetta (2005) 216 ALR 670
Outcome: cited
this case leave is appropriate. The matter is plainly one of some complexity and the justice of the case requires that Norilya has the opportunity to pursue what may be in effect, a set-off against the obligation which it has to repay the restitution moneys under the orders of the Court of Criminal Appeal Macquarie Bank Ltd v Bardetta (2005) 216 ALR 670 at [20] [21] (Conti J). I am not disposed to attach any such condition to the grant of leave, which in this case will only be necessary in relation to the fraud claim. The question whether any stay of proceedings should be sought in the light of the unsatisfied orders of the Court of Criminal Appeal is a matter for the Supreme Court. The justice of such a condition is not immediately apparent. For the preceding reasons I propose to grant leave to Norilya to continue with the proceeding issued against the respondent and others in the Supreme Court of Western Australia. In my opinion the costs of this proceeding should be costs in the Supreme Court proceeding, but I will hear from the parties as to that. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 13 September 2006 Counsel for the Applicant: Mr J Gilmour QC and Ms EL Blewett Solicitor for the Applicant: Deacons Counsel for the Respondent: Mr M Ryan Solicitor for the Respondent: Bostock &amp; Ryan Date of Hearing: 29 August 2006 Date of Judgment: 13 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1235.html
Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: cited
In so doing, it may well be that the Tribunal went strictly beyond the bounds of what 424A of the Migration Act required it to do. That is so because inconsistencies have subsequently been held not to constitute "information" for the purposes of that section: see SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609. The Tribunal, though, is, with respect, hardly to be criticised for going beyond, in terms of procedural fairness, what s 424A of the Migration Act 1958 might otherwise have required of it. 8 As it happened, inconsistencies of the kind which the Tribunal had highlighted in its letter of 10 January 2007, informed credibility findings which the Tribunal came to make. It is worthy of note that the Appellant made no response to the opportunity which the Tribunal had offered to him by its letter of 10 January 2007. The result of the credibility findings which the Tribunal made was that it found that the Appellant had not suffered what it described as, "Convention-based persecution in the past". 9 The result of that was that it found that it was not satisfied that there was a real chance that the Appellant would be seriously harmed for reasons of his real or imputed political opinion or membership of Falun Gong were he to be returned to China.
Case: Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1
Outcome: cited
the Federal Magistrate noted at [16], the Tribunal did not consider that "businessmen in Nepal" constituted a particular social group for the purposes of the Convention but accepted that there might be some targeting of wealthy landowners or businessmen with anti-Maoist political affiliations by the YCL. The Tribunal concluded that, as the appellant did not claim to be a royalist or to have anti-Maoist affiliations, he was not at risk. This represents a fair summary of the Tribunal's reasons. This finding was open to the Tribunal based upon the evidence before it, including the country information to which the Tribunal referred in its decision. It was open to the Tribunal on material before it to determine whether or not there was a social group of "businessmen in Nepal" per se ( Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 at [81] ). The Tribunal did not fail to properly identify the social group to which the appellant belonged. At the hearing of the appeal the appellant appeared in person assisted by an interpreter. He stated that he had claimed to be a Monarchist. However, there was no reference to such a claim in the Tribunal decision and the appellant could not show that any such claim had been advanced to the Tribunal. The appellant did claim in his protection visa application that he was accused of being a Monarchist; the Tribunal dealt with the appellant's claim that he was perceived as being a royalist. Ground 2 alleged breaches of ss 424 , 424A and 424B of the Act
Case: Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434
Outcome: followed
procedural restrictions on the specific power to issue an invitation to give additional information under s 424(2) do not qualify the Tribunal's general power in s 424(1) to "get any information that it considers relevant" ( Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 at [48]). Therefore, there was no jurisdictional error on the part of the Tribunal in the way in which it obtained the information. In any event, the request for information from DFAT was not a request for "additional information" from a "natural person" ( SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407). The first request or invitation to DFAT resulted in the provision of the information that the newspaper article was not genuine. The second request or invitation was made through DFAT to Mr Sharma. Insofar as it was a second request to DFAT, it was not from a natural person; to the extent that it was from Mr Sharma, it was not additional information. Consequently there was no breach of s 424(2) of the Act or, it follows, of s 424B. In response to the s 424A letters and the provision of the DFAT documents which contradicted the appellant's documents, the appellant did not, by himself or through his migration agent, seek a further opportunity to give oral evidence. He was, however, given the opportunity to respond in writing ( SZKTI (2009) 258 ALR 434 at [51]). Whether the relevant issue is the credibility of the appellant or the incident which the appellant originally said occurred on 28 January 2007, the subsequent documentation submitted to the Tribunal after the hearing did not raise a fresh issue. Where a document is submitted after the Tribunal hearing in relation to a pre-existing issue, either on request from the Tribunal or volunteered by an applicant, that does not, of itself, constitute a new issue. It is additional information about an extant issue ( SZKTI (2009) 258 ALR 434 at [51]). The contrary outcome would mean that, by proffering fresh documentation to the Tribunal, there would, of necessity, be a never-ending series of additional hearings required pursuant to s 425(1). That cannot be what that section envisaged. The issues on the review conducted by the Tribunal in light of the documents submitted after the hearing remained the same as those that had been identified by the delegate and dealt with at that hearing and which, in turn, formed the focus of the hearing before the Tribunal. That was the credibility of the appellant's claims to persecution and the certainty of the dates upon which the incident on which those claims were based had allegedly occurred. The documents provided by the appellant, which the Tribunal found to be fraudulent, merely provided another particular of the appellant's lack of credibility on that issue. At the hearing of the appeal, the appellant also alleged bias on the part of the Tribunal. When asked to give a basis for such an allegation, he said it was because the Tribunal rejected his claims. That does not establish bias.
Case: Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: referred to
Magistrate Raphael accepted that the Tribunal had miscalculated the date between the appellants' arrival in Australia and the making of the application for protection visas but did not accept that this constituted jurisdictional error, as it did not go to an integer of the appellants' claims ( Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [84] ). Federal Magistrate Raphael concluded that the Tribunal's findings on credibility were opened to it. His Honour was satisfied that the relevant claims had been considered by the Tribunal. The grounds of the notice of appeal are as follows: The Federal Magistrate erred by not finding that the second respondent had made jurisdictional error by finding that businessmen in Nepal did not constitute a particular social group by reference to persecution on the grounds of political opinion and without reference to the tests for the determination of whether a group falls within the definition of a "particular social group" as determined by High Court authority. The Federal Magistrate erred by not finding that the second respondent made jurisdictional error by failing to comply with ss 424 , 424A and 424B of the Act in relation to information obtained from Pokhara Daily Hotline in Nepal. The Federal Magistrate erred by not finding a breach by the second respondent of s 425 of the Act upon the basis of the statements of the Full Court of the Federal Court in SZKTI at [56]. Ground 1 particular social group
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: cited
any event, the question is whether the subject of the s 424A letters was part of an issue that had previously arisen and whether the appellant had an opportunity to deal with it during the hearing. The Minister submits that the issues arising on review before the Tribunal should be characterised as those which the original decision-maker identified as determinative against the appellant ( SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [35] ). The relevant issue, the Minister says, is whether the appellant had suffered the incident, which was also an issue before the original decision-maker, the delegate. The Minister submits that it is not appropriate to describe the issue as the authenticity of the documents submitted by the appellant. If that were the case, the Minister concedes that that issue, having been raised after the hearing, would have entitled the appellant to a fresh hearing pursuant to s 425 and the Tribunal decision would be affected by jurisdictional error.
Case: SZBYR v Minister of Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609
Outcome: cited
the end of the judgment, his Honour raised and addressed the application of ss 424 , 424A and 424B of the Act in relation to the information obtained by DFAT. His Honour referred to the decisions of the Full Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 ; (2008) 168 FCR 256 and SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 ; (2008) 170 FCR 236. His Honour concluded that the case before him could be distinguished from SZKCQ because ' here the information provided by the DFAT was crystal clear, and the basis upon which it had been obtained, namely the letter from the editor of the newspaper, was provided to the applicant. There is nothing more that the applicant could have gained from knowing what questions were asked of the editor by DFAT '. His Honour held that the s 424A letters complied with that section. His Honour's reasons indicate that he did not consider that s 424 of the Act applied to the information obtained by DFAT. Even if there had been a breach of s 424 , it is apparent from his Honour's reasons that he understood that the provision of the letters from the Tribunal to the appellant complied with obligations to afford procedural fairness. It followed that relief should be refused ( SZBYR v Minister of Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [29] ). To the extent that this ground of appeal may be referring to evidence given by the appellant's wife to the Tribunal, that has not been raised by the appellant. In any event, none of the evidence given by the appellant's wife could be said to constitute "information" that the Tribunal considered would be the reason or part of the reason for affirming the decision that was under review, the delegate's decision to reject the appellant's claims. The Tribunal merely found that it did not accept her claims and that she ' was prepared to fabricate her evidence in order to support the [appellant]'. The Tribunal's thought processes and appraisals of the evidence of the appellant's wife do not constitute information for the purposes of s 424A ( SZBYR at [18]). Ground 3 s 425 of the Act This ground of appeal relates to the provision of the DFAT documents to the appellant after the oral hearing. The appellant contends that he should then have been invited to a further oral hearing to give evidence on the issue of whether the documents he submitted to the Tribunal were fraudulent.