mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cox v Goldcrest Developments (NSW) Pty Ltd [2000] NSWSC 763 ; (2000) 50 NSWLR 76
Outcome: cited
If, contrary to my findings above, it were to be concluded that there was ambiguity in the construction of the costs agreement, Keddies points to the subsequent conduct of the parties to resolve any such ambiguity. As a general rule, the subsequent conduct of parties to a contract is not relevant to the construction of its terms (Carter JW and Harland DJ, Contract Law in Australia (4 th ed, Butterworths, 2002) at [712]; Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103 at 114 116; Cox v Goldcrest Developments (NSW) Pty Ltd [2000] NSWSC 763 ; (2000) 50 NSWLR 76 at [12] ). Evidence of such conduct may, however, establish that the parties varied the terms of the contract by reaching further agreement ( Winstonu Pty Ltd v Pitson [2001] FCA 541 at [24] per Stone J, with whom Beaumont and Gyles JJ agreed). It may also assist in identifying the subject matter with which the contract deals ( Sportsvision at 114; Independent Timber Importers (Aust) Pty Ltd v Mercantile Mutual Insurance (Australia) Ltd (2002) 12 ANZ Ins Cases 61-543 at [17]).
Case: Hookway v Racing Victoria Limited [2005] VSCA 310
Outcome: cited
In my view, Mrs McGuiness was not labouring under a mistake when she authorised the payment to Keddies. She acknowledged that there may be an appeal and that she may be unsuccessful and may be required to repay the moneys (cf Hookway v Racing Victoria Limited [2005] VSCA 310 at [45] ). Her payment was a voluntary payment. The consequence of that payment was that the costs agreement was brought to an end. The condition precedent under the contract did exist at that time. 38 Mason K and Carter JW ( Restitution Law in Australia (Butterworths, 1995) at [415]) discuss the situation where a person pays to another moneys apparently due under a contract where the person: '(1) has a conscious but mistaken understanding of the payer's legal obligation to pay or the payee's legal right to receive the money; (2) intends to settle a claim honestly made by the payee; or (3) knows the money is not due or has no belief one way or the other on the matter, but is willing to pay because of the relationship with the payee or some anticipated benefit.'
Case: Independent Timber Importers (Aust) Pty Ltd v Mercantile Mutual Insurance (Australia) Ltd (2002) 12 ANZ Ins Cases 61-543
Outcome: cited
If, contrary to my findings above, it were to be concluded that there was ambiguity in the construction of the costs agreement, Keddies points to the subsequent conduct of the parties to resolve any such ambiguity. As a general rule, the subsequent conduct of parties to a contract is not relevant to the construction of its terms (Carter JW and Harland DJ, Contract Law in Australia (4 th ed, Butterworths, 2002) at [712]; Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103 at 114 116; Cox v Goldcrest Developments (NSW) Pty Ltd [2000] NSWSC 763 ; (2000) 50 NSWLR 76 at [12] ). Evidence of such conduct may, however, establish that the parties varied the terms of the contract by reaching further agreement ( Winstonu Pty Ltd v Pitson [2001] FCA 541 at [24] per Stone J, with whom Beaumont and Gyles JJ agreed). It may also assist in identifying the subject matter with which the contract deals ( Sportsvision at 114; Independent Timber Importers (Aust) Pty Ltd v Mercantile Mutual Insurance (Australia) Ltd (2002) 12 ANZ Ins Cases 61-543 at [17]).
Case: Lipkin Gorman v Karpnale Ltd [1988] UKHL 12 ; [1991] 2 AC 548
Outcome: cited
Reversal on appeal generally annuls a judgment ab initio . However, a person may act under the authority of a judgment until reversed and such action is not avoided or invalid or unlawful ( Antoniadis ; Commissioner for Railways (NSW) v Cavanough [1935] HCA 45 ; (1935) 53 CLR 220 at 227; Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13 ; (1981) 145 CLR 590 at 603). Whether ' what has been done can be undone will depend upon the availability of appropriate remedies, to bring about the appropriate relief' ( Wilde at 603). A change of position, made in good faith, is available as a defence against a claim for restitution ( Lipkin Gorman v Karpnale Ltd [1988] UKHL 12 ; [1991] 2 AC 548).
Case: Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516
Outcome: cited
Mr Woodgate submits that this is not a "mistake of fact or law" case. He says it is a simple case of moneys had and received because the condition precedent under the contract did not exist once the verdict was set aside. This ignores the fact that a person may, as noted, act under the authority of a judgment until reversed. By the time the appeal was lodged, let alone determined, the moneys held in trust had been disbursed by Keddies pursuant to the authority (cf Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516).
Case: Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103
Outcome: cited
If, contrary to my findings above, it were to be concluded that there was ambiguity in the construction of the costs agreement, Keddies points to the subsequent conduct of the parties to resolve any such ambiguity. As a general rule, the subsequent conduct of parties to a contract is not relevant to the construction of its terms (Carter JW and Harland DJ, Contract Law in Australia (4 th ed, Butterworths, 2002) at [712]; Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103 at 114 116; Cox v Goldcrest Developments (NSW) Pty Ltd [2000] NSWSC 763 ; (2000) 50 NSWLR 76 at [12] ). Evidence of such conduct may, however, establish that the parties varied the terms of the contract by reaching further agreement ( Winstonu Pty Ltd v Pitson [2001] FCA 541 at [24] per Stone J, with whom Beaumont and Gyles JJ agreed). It may also assist in identifying the subject matter with which the contract deals ( Sportsvision at 114; Independent Timber Importers (Aust) Pty Ltd v Mercantile Mutual Insurance (Australia) Ltd (2002) 12 ANZ Ins Cases 61-543 at [17]).
Case: TCN Channel Nine Pty Ltd v Antoniadis (No 2) [1999] NSWCA 104 ; (1999) 48 NSWLR 381
Outcome: cited
The parties agree that a recipient of moneys under a judgment is entitled to receive moneys and retain them while the judgment is in force and not stayed. The successful appellant, here the RTA, is entitled in principle to recover from Mrs McGuiness all moneys paid under a judgment that has been set aside ( TCN Channel Nine Pty Ltd v Antoniadis (No 2) [1999] NSWCA 104 ; (1999) 48 NSWLR 381 at [4] ). 16 Payment was authorised by Mrs McGuiness in accordance with the costs agreement. Mr Woodgate accepts that, at the time of payment to Keddies, Mrs McGuiness was contractually bound to pay the costs and disbursements. Keddies were obliged to make the payments to the third parties. The RTA could not have obtained a refund from Keddies after it succeeded on appeal whether the costs agreement was conditional or unconditional. 17 Mr Woodgate contends, however, that Mrs McGuiness' obligations were avoided after the successful appeal by the RTA. He emphasises that, had there been a verdict for the RTA in the District Court, Mrs McGuiness would not have been liable to pay either the costs or disbursements and that Mrs McGuiness had no contractual relationship with third parties and no obligation to pay them. That obligation, it is said, was held by Keddies. 31 Reversal on appeal generally annuls a judgment ab initio . However, a person may act under the authority of a judgment until reversed and such action is not avoided or invalid or unlawful ( Antoniadis ; Commissioner for Railways (NSW) v Cavanough [1935] HCA 45 ; (1935) 53 CLR 220 at 227; Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13 ; (1981) 145 CLR 590 at 603). Whether ' what has been done can be undone will depend upon the availability of appropriate remedies, to bring about the appropriate relief' ( Wilde at 603). A change of position, made in good faith, is available as a defence against a claim for restitution ( Lipkin Gorman v Karpnale Ltd [1988] UKHL 12 ; [1991] 2 AC 548).
Case: Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13 ; (1981) 145 CLR 590
Outcome: cited
Reversal on appeal generally annuls a judgment ab initio . However, a person may act under the authority of a judgment until reversed and such action is not avoided or invalid or unlawful ( Antoniadis ; Commissioner for Railways (NSW) v Cavanough [1935] HCA 45 ; (1935) 53 CLR 220 at 227; Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13 ; (1981) 145 CLR 590 at 603). Whether ' what has been done can be undone will depend upon the availability of appropriate remedies, to bring about the appropriate relief' ( Wilde at 603). A change of position, made in good faith, is available as a defence against a claim for restitution ( Lipkin Gorman v Karpnale Ltd [1988] UKHL 12 ; [1991] 2 AC 548).
Case: Winstonu Pty Ltd v Pitson [2001] FCA 541
Outcome: cited
If, contrary to my findings above, it were to be concluded that there was ambiguity in the construction of the costs agreement, Keddies points to the subsequent conduct of the parties to resolve any such ambiguity. As a general rule, the subsequent conduct of parties to a contract is not relevant to the construction of its terms (Carter JW and Harland DJ, Contract Law in Australia (4 th ed, Butterworths, 2002) at [712]; Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103 at 114 116; Cox v Goldcrest Developments (NSW) Pty Ltd [2000] NSWSC 763 ; (2000) 50 NSWLR 76 at [12] ). Evidence of such conduct may, however, establish that the parties varied the terms of the contract by reaching further agreement ( Winstonu Pty Ltd v Pitson [2001] FCA 541 at [24] per Stone J, with whom Beaumont and Gyles JJ agreed). It may also assist in identifying the subject matter with which the contract deals ( Sportsvision at 114; Independent Timber Importers (Aust) Pty Ltd v Mercantile Mutual Insurance (Australia) Ltd (2002) 12 ANZ Ins Cases 61-543 at [17]).
Case: WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330
Outcome: applied
second ground of appeal is that the appellant was denied natural justice in that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 in relation to country information, especially DFAT information. However that provision is not available to the appellant because of sub-s (3), which excludes from the ambit of sub-s (1) information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member." The country information in question fits that description. See WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] - [46] ; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [128] ; Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [64] - [71] and [126]-[128].
Case: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
Outcome: applied
second ground of appeal is that the appellant was denied natural justice in that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 in relation to country information, especially DFAT information. However that provision is not available to the appellant because of sub-s (3), which excludes from the ambit of sub-s (1) information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member." The country information in question fits that description. See WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] - [46] ; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [128] ; Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [64] - [71] and [126]-[128].
Case: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
Outcome: applied
second ground of appeal is that the appellant was denied natural justice in that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 in relation to country information, especially DFAT information. However that provision is not available to the appellant because of sub-s (3), which excludes from the ambit of sub-s (1) information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member." The country information in question fits that description. See WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] - [46] ; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [128] ; Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [64] - [71] and [126]-[128].
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: referred to
The case of the applicant was to the effect that before the power to cancel a visa may be exercised by the Minister, notice of intention to cancel the visa must be given to the visa holder, such service being rendered a jurisdictional fact by virtue of s 134(9) of the Act ( ante ). An initial issue immediately arising is that the subsection does not explicitly so provide, and that accordingly the applicant needs the support of implications arising from the operation of the Act according to its true construction. In any event, it was said by the applicant to follow from the said proposition that a finding of fact necessary to found jurisdiction by reason of the service of notice of intention to cancel may be reviewed by appropriate curial process. I was referred by the applicant in that context generally to the following dicta of the joint judgment of all members of the High Court presiding in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 177: 'If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain.' I was also referred to Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (1999) 199 CLR 135 at 148, where the following restatement of principle in the circumstantial setting there arising appears in the joint reasons for judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ: 'The term "jurisdictional fact" (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome... The determination of the question whether Collex proposed a "non-complying" development , which turned upon the application of the criterion of "special industry", was a condition upon the existence of which there operated the obligation that the Commission not grant consent... the answer depended, not upon the combined operation of fact and law, but upon the opinion on the matter of the Commission; an opinion based on the evidentiary material before the Commission.'
Case: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (1999) 199 CLR 135 
Outcome: referred to
The case of the applicant was to the effect that before the power to cancel a visa may be exercised by the Minister, notice of intention to cancel the visa must be given to the visa holder, such service being rendered a jurisdictional fact by virtue of s 134(9) of the Act ( ante ). An initial issue immediately arising is that the subsection does not explicitly so provide, and that accordingly the applicant needs the support of implications arising from the operation of the Act according to its true construction. In any event, it was said by the applicant to follow from the said proposition that a finding of fact necessary to found jurisdiction by reason of the service of notice of intention to cancel may be reviewed by appropriate curial process. I was referred by the applicant in that context generally to the following dicta of the joint judgment of all members of the High Court presiding in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 177: 'If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain.' I was also referred to Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (1999) 199 CLR 135 at 148, where the following restatement of principle in the circumstantial setting there arising appears in the joint reasons for judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ: 'The term "jurisdictional fact" (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome... The determination of the question whether Collex proposed a "non-complying" development , which turned upon the application of the criterion of "special industry", was a condition upon the existence of which there operated the obligation that the Commission not grant consent... the answer depended, not upon the combined operation of fact and law, but upon the opinion on the matter of the Commission; an opinion based on the evidentiary material before the Commission.'
Case: Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685
Outcome: cited
The applicant further submitted that the question of whether an authorisation has been withdrawn or varied must be considered subjectively and where there is no direct evidence of intention 'this is assessed having regard to the circumstances', reference being made to Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685 at [35] and Qiu v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FLR 120 at [24] in support of that proposition. The applicant observed in any event that even if the issue of withdrawal needs to be assessed objectively, and the contents of Form 1010 are available for such an inquiry, 'at its highest the...form does no more than vary the authorisation to Ms Tang by providing that "written communications about business skills monitoring" were to be sent to the applicant'. Aside from any debate as to the materiality of '[a]ll written communications about Business Skills monitoring...' the subject of par 71 of Form 1010, the fact is that some two and half years or so after the signing by the applicant on 15 October 2001 of the original or initial Form 956, the applicant left blank and hence inapplicable in the context of Form 1010 the fourth box in Part H bearing the description or subject 'Authorised recipient'. To the extent that the hypothetically reasonable person may be taken to have assigned significance to filling out and signing that Form 1010, the evident intention of that person objectively speaking would have been to provide updated information to the Department, upon which the Department would be objectively presumed to place reliance.
Case: Qiu v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FLR 120
Outcome: cited
The applicant further submitted that the question of whether an authorisation has been withdrawn or varied must be considered subjectively and where there is no direct evidence of intention 'this is assessed having regard to the circumstances', reference being made to Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685 at [35] and Qiu v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FLR 120 at [24] in support of that proposition. The applicant observed in any event that even if the issue of withdrawal needs to be assessed objectively, and the contents of Form 1010 are available for such an inquiry, 'at its highest the...form does no more than vary the authorisation to Ms Tang by providing that "written communications about business skills monitoring" were to be sent to the applicant'. Aside from any debate as to the materiality of '[a]ll written communications about Business Skills monitoring...' the subject of par 71 of Form 1010, the fact is that some two and half years or so after the signing by the applicant on 15 October 2001 of the original or initial Form 956, the applicant left blank and hence inapplicable in the context of Form 1010 the fourth box in Part H bearing the description or subject 'Authorised recipient'. To the extent that the hypothetically reasonable person may be taken to have assigned significance to filling out and signing that Form 1010, the evident intention of that person objectively speaking would have been to provide updated information to the Department, upon which the Department would be objectively presumed to place reliance.
Case: Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1000 
Outcome: discussed
The applicant further invoked Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1000 , where Raphael FM found that a decision of the Refugee Review Tribunal was invalid because of the absence of compliance by the Tribunal with the terms of the former s 379G(iv) of the Act. In reaching that decision, his Honour made the following observations upon which the applicant seemingly placed reliance: '5. The fact that the Tribunal is entitled also to send a copy of the correspondence to the applicant, does not detract from the importance of the provision requiring it to send the document to the authorised representative for the reasons that Mr Dobbie posits. There is a similar provision in subsection 379G(iv) which I believe supports Mr Dobbie's view that the section itself is bent upon ensuing that at no stage shall the applicant's authorised representative be kept out of the loop. 6. In making the point that I have above, I am sensible of the fact that I appear to be flying in the face of the decision of his Honour Mansfield J in Makhu (supra). With respect to his Honour, whilst it may well be that his decision was correct when handed down, the views of the High Court concerning the importance of mandatory provisions of the Migration Act and the fact that his Honour may not have had the advantage of Mr Dobbie's assistance and his association of subsection 379G(iv) with subsection 379G(ii) permits me, I believe, to respectfully differ from the views expressed by him in that case. His Honour takes a view different to mine as to the work that is required of the word "instead". It appears to me that he uses it to give the Tribunal the ability to choose between which parties the Tribunal may address, whereas I believe that the Tribunal has no such discretion and that, in fact, there are no circumstances in which the authorised recipient should not receive a document.'