mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Federico's Restaurant Pty Ltd v Warwick Entertainment Centre Pty Ltd (1995) 18 ACSR 702
Outcome: approved
Although not established to the standard expected at final trial, it can reasonably be assumed, given the nature of this application, that the dye supplied by the defendant in early 2005 is the dye that generated problems from the middle of 2005. Given the difficulties that arose with this dye, I am thus satisfied that the plaintiff's claim to have an offsetting claim raises "a serious question to be tried"; Scanhill 47 FCR at 467. The threshold that the plaintiff must cross "is not a high one"; Federico's Restaurant Pty Ltd v Warwick Entertainment Centre Pty Ltd (1995) 18 ACSR 702 at 706. I am satisfied that the plaintiff has done more than simply assert a claim and some basis for it without more; Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 at 39.
Case: Hansmar Investments Pty Ltd v Perpetual Trustee Co Ltd (2007) 61 ACSR 321
Outcome: considered
In Hansmar Investments Pty Ltd v Perpetual Trustee Co Ltd (2007) 61 ACSR 321, White J expressed the view that test enunciated by Barratt J in Process Machinery [2002] NSWSC 45 and Elm Financial Services [2004] NSWSC 560 , in so far as it requires the ground of challenge to be raised expressly or by necessary inference, is too strict. His Honour accepted the implication from the statute that the grounds for applying to set aside a statutory demand must be raised in the supporting affidavit but observed at 326: It is one thing to draw that implication from the requirement that an application be accompanied by a supporting affidavit. It is quite another to imply from the requirement that there be a supporting affidavit anything as to the precision with which such a ground must be expressed, other than that it be raised. Whether it is raised expressly, by necessary inference, or by a reasonably available inference, provided it is raised, in my view the requirements of s 459G are satisfied. 30 In my view the first affidavit of Dr Chisholm meets the requirements of s 456G. It "promotes the company's case", and clearly stakes out the grounds of the dispute, namely the dual problems of thickening and composition afflicting the dye. Although the affidavit does not annexe invoices from the defendant, it is explicit that the plaintiff was dealing with "Anar" in 2005, after the incorporation of the defendant. The area of controversy has, by necessary inference, been clearly delineated; Elm Financial Services [2004] NSWSC 560 at [7] ; or is at the very least raised by a reasonably available inference; Hansmar Investments 61 ACSR at 326.
Case: Jesseron Holdings Pty Ltd v Middle East Trading Consultants Pty Ltd (No 2) (1994) 122 ALR 717
Outcome: considered
In making this assessment, it is not appropriate to delve into the merits of the competing claims; Edge Technology Pty Ltd v Lite-On Technology Corporation [2000] NSWSC 471 ; (2000) 34 ACSR 301. There is authority for the view that the amount of the offsetting claim is simply that amount claimed in good faith by the plaintiff, ambit though such a claim may be; Jesseron Holdings Pty Ltd v Middle East Trading Consultants Pty Ltd (No 2) (1994) 122 ALR 717, per Young J at 722; see also Classic Ceramic Importers Pty Ltd v Ceramica Antiga SA (1994) 13 ACSR 263 at 270.
Case: John Shearer Limited v Gehl Company (1995) 60 FCR 136
Outcome: considered
In Royal Premier Pty Ltd v Taleski [2001] WASCA 48 at [57] , Ipp J observed that it was not necessary for there to be evidence of damage "in meticulous detail" however his Honour insisted that "there must be at least some material upon which the court can conclude that some damage has been sustained and which will enable the court to make a reasonable assessment as to the amount thereof." Clearly, the plaintiff cannot be presently entitled to damages to compensate it for unquantified losses incurred in litigation that has not yet commenced. Accordingly, I do not accept the potential claims arising from the presence of Direct Blue 218 in the dye supplied by the plaintiff as "genuine claims" for the purposes of s 459H. I am fortified in this view by the decision of the Full Court in John Shearer Limited v Gehl Company (1995) 60 FCR 136, where claims that were inadequately particularised and that had not been pursued in the year since the dispute commenced were held not to be genuine claims.
Case: Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743
Outcome: discussed
The plaintiff submits that its offsetting claim amounts to USD781,900. The defendant has taken issue with the amounts claimed by the plaintiff, asserting that they are not supported by the evidence. The defendant relies on Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743. 41 In Macleay Nominees at [15], Palmer J was explicit that perceived frailties of evidence will not prevent a claim from being a "genuine claim" for the purposes of s 459H. His Honour held at [18] that both the cause of action and the amount claimed must be advanced in good faith. His Honour continued: "Good faith" means arguable on the basis of facts asserted with sufficient particularity to enable the Court to determine that the claim is not fanciful. In a claim for unliquidated damages for economic loss, the Court will not be able to determine whether the amount claimed is claimed in good faith unless the plaintiff adduces some evidence to show the basis upon which the loss is said to arise and how that loss is calculated. If such evidence is entirely lacking, the Court cannot find that there is a genuine offsetting claim for the purposes of s 459H(1) and s 459H(2). 62 Clearly, the evidence in relation to each component is not overwhelming, however, as Palmer J held at [28] in Macleay Nominees [2001] NSWSC 743 : Many such claims at this stage of proceedings would appear to be tenuous, but if they are genuine then the alleged debtor company is entitled to the benefit of CA s.459G and s.459H.
Case: Olsson v Dyson [1969] HCA 3 ; (1968) 120 CLR 365
Outcome: considered
As Mr Bova himself submitted, quoting from the judgment of Windeyer J in Olsson v Dyson [1969] HCA 3 ; (1969) 120 CLR 365 at 388: Novation is the making of a new contract between a creditor and his debtor in consideration of the extinguishment of the obligations of the old contract: if the new contract is to be fully effective to give enforceable rights or obligations to a third person he, the third person must be a party to the novated contract. In Olsson , Barwick CJ and Windeyer J dissented from the decision of the majority (Kitto, Menzies and Owen JJ) in finding, on the facts, that there had been a novation of a contract of loan. Nothing in the reasons of the three majority judges detracts from Windeyer J's discussion of the history and principles of novation. 12 The fact that the defendant company, apparently, took over the business of the partnership does not, in itself, indicate that it assumed the obligations of the partnership. As Windeyer J makes clear, for there to be a novation that released the partnership from its obligations and imposed equivalent obligations on the defendant company the partnership, the defendant company and the plaintiff would have to be parties to the contract. The fact that Dr Chisholm was unaware of the incorporation of the defendant company and the fact that it was supplying the dyes is evidence that tends against, rather than in support of, an implied novation. 13 Whether the partnership was dissolved following the incorporation of the defendant company is presently irrelevant as are any rights the plaintiff may have against the partnership. If the plaintiff is to succeed in this action to set aside the statutory demand of the defendant company it will be necessary for it to show that it has an offsetting claim against that company.
Case: Process Machinery Australia Pty Ltd (t/as DCL Engineering) v ACN 057 260 590 Pty Ltd [2002] NSWSC 45
Outcome: discussed
In Elm Financial Services Pty Ltd v MacDougal [2004] NSWSC 560 at [7] , Barratt J, echoing comments he had previously made in Process Machinery Australia Pty Ltd (t/as DCL Engineering) v ACN 057 260 590 Pty Ltd [2002] NSWSC 45 at [21] - [22] , said of the " Graywinter principle": What it means is that the application ... and the affidavit in support of that application, both filed and served within the 21 day period stipulated in s 459G(3) , must fairly alert the claimant to the nature of the case the company will seek to make in seeking to have the statutory demand set aside. The content of the application and affidavit must convey, even if it be by necessary inference, a clear delineation of the area of controversy so that it is identifiable with one or more of the grounds made available by ss 459H and 459J for setting aside statutory demands. The process of delineation may not be extended after the end of the 21 day period although it is open to the plaintiff to supplement the initial affidavit by way of additional evidence relevant to the area of controversy identified within the period. 19 In Hansmar Investments Pty Ltd v Perpetual Trustee Co Ltd (2007) 61 ACSR 321, White J expressed the view that test enunciated by Barratt J in Process Machinery [2002] NSWSC 45 and Elm Financial Services [2004] NSWSC 560 , in so far as it requires the ground of challenge to be raised expressly or by necessary inference, is too strict. His Honour accepted the implication from the statute that the grounds for applying to set aside a statutory demand must be raised in the supporting affidavit but observed at 326: It is one thing to draw that implication from the requirement that an application be accompanied by a supporting affidavit. It is quite another to imply from the requirement that there be a supporting affidavit anything as to the precision with which such a ground must be expressed, other than that it be raised. Whether it is raised expressly, by necessary inference, or by a reasonably available inference, provided it is raised, in my view the requirements of s 459G are satisfied.
Case: Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601
Outcome: approved
Dr Chisholm attests in his first affidavit that he was required to travel to Indonesia in June 2005 to "supervise the thinning of the blue Anar dye", and "a number of times" in 2006 to discuss the revelation that the dye included Direct Blue 218. Mr DeBuse took issue with the costs claimed by the plaintiff for business class travel. As Mr Bova correctly argued, whilst this may be a question of mitigation, it cannot affect the existence of a genuine claim. The task of this Court is "to identify the genuine level of an offsetting claim (not the likely result of it)"; Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601 at 605. 46 As noted above, certain paragraphs of Dr Chisholm's first affidavit concern transactions with the defendant's predecessor partnership. I have rejected the plaintiff's assertion that these transactions can give rise to a genuine claim against the defendant. Dr Chisholm states that, in addition to his trip in June 2005, he made an earlier trip to Indonesia in August 2004 to deal with a similar problem of dye thickening. I am not prepared to assume that the second trip, following soon after the incorporation of the defendant, related to dye supplied by the defendant. Accordingly, I disregard the USD14,000 travel claim relating to the thickening. I accept the claim of USD19,000 for travel to Indonesia to address the problems caused by the presence of Direct Blue 218 as a genuine claim. 47 There is no evidence as to how the two amounts claimed for accommodation were calculated. Nevertheless, there is evidence that Dr Chisholm was required to travel to Indonesia, and such travel necessarily involves some accommodation expenses. Given that the nine nights of accommodation attributed to the thickening involves both of Dr Chisholm's trips, I can only accept that the USD2,400 which is related to the Direct Blue 218 is claimed in good faith.
Case: Royal Premier Pty Ltd v Taleski [2001] WASCA 48
Outcome: followed
In Royal Premier Pty Ltd v Taleski [2001] WASCA 48 at [57] , Ipp J observed that it was not necessary for there to be evidence of damage "in meticulous detail" however his Honour insisted that "there must be at least some material upon which the court can conclude that some damage has been sustained and which will enable the court to make a reasonable assessment as to the amount thereof." Clearly, the plaintiff cannot be presently entitled to damages to compensate it for unquantified losses incurred in litigation that has not yet commenced. Accordingly, I do not accept the potential claims arising from the presence of Direct Blue 218 in the dye supplied by the plaintiff as "genuine claims" for the purposes of s 459H. I am fortified in this view by the decision of the Full Court in John Shearer Limited v Gehl Company (1995) 60 FCR 136, where claims that were inadequately particularised and that had not been pursued in the year since the dispute commenced were held not to be genuine claims.
Case: Sacon Constructions Pty Ltd v Concrite Quarries Pty Ltd (1997) 15 ACLC 1303
Outcome: discussed
While the defendant correctly states that the plaintiff has not identified a specific cause of action with which it pursues its claim, it is apparent from the circumstances described by the affidavit that the claim would be in the nature of breach of contract or of consumer protection legislation. Adopting the language of Emmett J in Sacon Constructions Pty Ltd v Concrite Quarries Pty Ltd (1997) 15 ACLC 1303 at 1305, the affidavit attempts both to explain the nature of the cross-claim and to quantify it. In Sacon , Emmett J held that the supporting affidavit was insufficient, although his Honour observed in obiter at 1305 that, had supplementary material been filed in time, it would have probably satisfied the requirements of s 459G. That material asserted the offsetting claim in that case with significantly less detail than is present in Dr Chisholm's first affidavit in the present application. 32 The next issue is raised by the plaintiff's decision not to read certain paragraphs of the affidavit that was filed and served on the defendant. As discussed above at [21], if the case that was notified to the defendant by the affidavit served upon it was materially different from the case put to the Court, then it would be arguable that there was no compliance with the subsection, in that the affidavit relied on to support the plaintiff's application had not been served on the defendant company. The paragraphs omitted from the affidavit as read at the hearing are relevant to the resolution of this question and therefore admissible when tendered by the defendant. 33 In the omitted paragraphs Dr Chisholm refers to specific orders for dyes including Direct Blue 290 that were placed with "Anar" in August 2003, March 2004 and June 2004. As, according to the affidavit of Mr Choksi, the defendant company was incorporated on 24 May 2004, the former order is likely to have been placed with the partnership and the latter with the defendant company. The orders were for direct shipment of the dyes to Indonesia; they arrived there in May and August 2004 respectively.
Case: SMEC International Pty Ltd v CEMS Engineering Inc [2001] NSWSC 459 ; (2001) 38 ACSR 595
Outcome: followed
The entitlement of the plaintiff to rely on affidavits filed outside the 21 day period is an issue in this case. In SMEC International Pty Ltd v CEMS Engineering Inc [2001] NSWSC 459 ; (2001) 38 ACSR 595 at 599, Austin J noted that the authorities accepting such an entitlement do so "provided that the application has otherwise been instituted validly". His Honour further commented that this proposition: ... must imply that later affidavits can expand and supplement the factual grounds upon which the plaintiff will rely at the hearing, subject perhaps to the qualification that the initial supporting affidavit must indicate the general nature of the plaintiff's case (eg that the plaintiff asserts a genuine dispute as to the existence or amount of the debt rather than (or as well as) an offsetting claim). 36 The plaintiff also relied on a supplementary affidavit of Dr Chisholm filed on 10 August 2007. Annexed to this affidavit are purchase orders, bills of lading and invoices relating to the dye supplied by the defendant in early 2005. The affidavit provides additional factual detail in support of the plaintiff's claim to have an offsetting debt. Given that the first affidavit had clearly indicated the general nature of its case it is entirely legitimate for the plaintiff to expand the factual grounds on which it relies in this way; SMEC International 38 ACSR at 599, Graywinter Properties 70 FCR at 460.
Case: Tito v Waddell (No 2) [1977] Ch 106
Outcome: considered
This submission is fatally flawed. Under Australian law, in the absence of any statutory provision to the contrary, the burden (as distinct from the benefit) of contractual obligations cannot be assigned. There are, of course, some well established exceptions as where the obligations run with an estate in land (as in a lease) or they "touch and concern" land (as in the case of covenants restricting the use of land) but no such exceptions are suggested to apply here. There are also two possible exceptions raised by Sir Robert Megarry V-C in Tito v Waddell (No 2) [1977] Ch 106 however they have attracted little if any support in England and none in Australia. In any event neither is relevant here. The fundamental principle of the non-assignability of contractual obligations is so well established that it should need no authority however, if authority is sought, the principles and the relevant authorities are discussed in Chapter 17 of Carter JW, Peden E and Tolhurst GJ, Contract Law in Australia (5 th ed, LexisNexis Butterworths, 2007) especially at [17-37]. 10 In the alternative, Mr Bova suggested that the defendant company became subject to the partnership obligations by an implied novation. While it would be possible for the defendant company, by contract, to assume obligations equivalent to those undertaken by the partnership, no evidence was adduced to show that this had occurred. Mr Bova referred to evidence given by Dr Allan Chisholm, a director of the plaintiff, to the effect that he was unaware of the change in the supplier of the dyes and that, in his purchase of dyes, he had not differentiated between the partnership and the company. Dr Chisholm said that he always dealt with the same persons, at the same email and business addresses and used the same telephone number to contact Mr Choksi.
Case: Topfelt Pty Limited v State Bank of New South Wales Limited (1993) 47 FCR 226
Outcome: followed
As noted above, I consider that Dr Chisholm's first affidavit satisfies the requirements of s 459G(3)(a). Accordingly, it is entirely legitimate to supplement it with Dr Chisholm's second affidavit; Topfelt Pty Limited v State Bank of New South Wales Limited (1993) 47 FCR 226 at 242. In these two affidavits, and Dr Chisholm's oral testimony, the plaintiff adduces evidence relating to each of these components. It is convenient to address some of these components together.
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: followed
Section 21 of the Federal Court of Australia Act 1976 (Cth) confers power upon this Court to grant declaratory relief. The power conferred is a discretionary power which is not to be limited by the laying down of rules as to the manner of its exercise: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581 2. Mason CJ, Dawson, Toohey and Gaudron JJ there observed: It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties" (citations omitted).
Case: Australian Competition &amp; Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834
Outcome: followed
The requirement for the Court itself to be satisfied as to the appropriateness of a penalty is a responsibility which ultimately derives from s 71 of the Commonwealth of Australia Constitution Act and is not a responsibility which can be circumscribed by private agreement: cf Australian Competition &amp; Consumer Commission v Hobie Cat Australasia Pty Ltd [2008] FCA 402 at [19] per Finn J. And in discharging that responsibility in the context of the Therapeutic Goods Act the Court, as it is in the context of the Trade Practices Act when considering whether to make an order by consent, " is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so ": cf Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 at [18] , [1999] FCA 18 ; 161 ALR 79 at 86 per French J. The Court is not to be regarded as a " rubber stamp ": Australian Competition &amp; Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834 at [121] per Weinberg J
Case: Australian Competition &amp; Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21
Outcome: cited
Also of general relevance to most (if not all) civil penalty provisions is the significance that a pecuniary penalty may have for deterrence upon both the current offender and others: cf Trade Practices Commission v CSR Ltd (1990) ATPR 41-076 ; Australian Competition &amp; Consumer Commission v D M Faulkner Pty Ltd [2004] FCA 1666 at [53] per Bennett J; Australian Competition &amp; Consumer Commission v Gullyside Pty Ltd [2005] FCA 1727 at [34] per Kiefel J; Australian Competition &amp; Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 at [11] ; Australian Competition &amp; Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21 at [15] per Goldberg J. A " civil penalty ", it has been said, " needs to be sufficiently high to deter contravention by others, but not so high as to be oppressive ": Vivian v Fitzgeralds [2007] FCA 1602 at [29] per Logan J. An apparent limited capacity of a respondent to pay cannot mitigate against the need for an appropriate pecuniary penalty to be applied: Australian Communications and Media Authority v Clarity1 Pty Ltd (No 2) [2006] FCA 1399 at [41] , [2006] FCA 1399 ; 155 FCR 377 at 386 7 per Nicholson J. See also: Beaton-Wells C, 'Recent corporate penalty assessment under the Trade Practices Act and the rise of general deterrence' (2006) 14 CCLJ 65; Yeung K, 'Quantifying Regulatory Penalties: Australian Competition Law Penalties in Perspective' (1999) 23 Melb Univ L Rev 440 (particularly at 468 74).