mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Outcome: cited
The High Court of Australia recently revisited the question of applications for interlocutory injunctions in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 (see especially at [19] per Gleeson CJ and Crennan J, and at [65]-[72] per Gummow and Hayne JJ). Justices Gummow and Hayne at [65] stated: The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued [at 622-623]: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. (Emphasis added). 101 It is important, at this point, to again emphasise the context in which I am assessing the evidence. I am not to treat the application as a trial of the substantive issues. I need only be satisfied that there is a serious question to be tried in the way described by Gummow and Hayne JJ in O'Neill (2006) 227 CLR at [65]. I must look at the matter having regard to the whole of the evidence before me, and assess the conduct of the Receivers.
Case: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618
Outcome: cited
The High Court of Australia recently revisited the question of applications for interlocutory injunctions in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 (see especially at [19] per Gleeson CJ and Crennan J, and at [65]-[72] per Gummow and Hayne JJ). Justices Gummow and Hayne at [65] stated: The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued [at 622-623]: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. (Emphasis added).
Case: Deangrove Pty Ltd v Buckby (2006) 56 ACSR 630
Outcome: cited
Thirdly, as I have said, I am proceeding on the basis that the applicants have available potential claims against the Receivers under ss 180 and 420A of the Act and on the basis of an equitable duty in favour of the Company. I accept that the equitable duty is as set out in Deangrove Pty Ltd v Buckby (2006) 56 ACSR 630 at [44] where Branson J said: ... the general law duties of a receiver when exercising a power of sale are analogous to those of a mortgagee (see, for example, Expo International Pty Ltd v Chant [1979] 2 NSWLR 820). As I observed in Gomez v State Bank of NSW Ltd [2001] FCA 1059 at [10] , that duty is a duty to act in good faith, without wilfully or recklessly sacrificing the interests of the mortgagor. The principle underlying the duty is that of 'unconscionability' (Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1995) NSW Conv R 55-731 per McLelland CJ in Eq.).
Case: Donne v Lewis (1805) 32 ER 1221
Outcome: cited
Having taken the view that obtaining prior leave is not a condition to jurisdiction of the Court, it is still necessary to determine whether, in the circumstances of this case, leave should be granted nunc pro tunc . The general principle is that the court will enter a decree nunc pro tunc if it is satisfied that it is only doing now what it would have done then: see Emanuele 188 CLR at 132 per Toohey J citing Donne v Lewis (1805) 32 ER 1221 at 1222.
Case: Ehsman v Nutectime International Pty Ltd (2006) 58 ACSR 705
Outcome: cited
This requirement may be equated with that which applies on an application for an interlocutory injunction: Swansson 42 ACSR at [25] per Palmer J; Goozee 42 ACSR at [32]-[32] per Barrett J; Ehsman v Nutectime International Pty Ltd (2006) 58 ACSR 705 at [59] per Austin J. 80 There is no requirement for the Court to make factual determinations about contested issues, as stated in Ehsman v Nutectime 58 ACSR 705 at [6]: In particular, under s 237(2)(d), the court does not make factual determinations concerning the case that the plaintiff seeks leave to assert on behalf of the company, but only considers whether there is a serious question to be tried. The limited nature of that question will often enable the court to avoid making determinations on contested questions of fact. 81 Three further matters must be observed. First, the application must be supported by evidence. I do not accept, with respect, that an "indication of the evidence" without actual evidence is sufficient (cf Re Varsity Queensland Ltd (2006) 60 ACSR 366 at [10] per Mullins J). 82 Secondly, the respondents have chosen not to rely upon any evidence as to the merits of the application. Whilst I may draw certain inferences from the failure of the respondents to provide evidence, the applicants must nevertheless satisfy each of the criteria on the balance of probabilities. The failure of the respondents to provide evidence cannot fill gaps in any necessary evidence of the applicants. However, where certain inferences are open, and the respondents have not led any evidence to rebut such inferences, I may be more confident that the inference should be made.
Case: Florgale Uniforms Pty Ltd v Orders [2004] VSC 65 ; (2004) 11 VR 54
Outcome: cited
Whilst it may be said that generally receivers should obtain two independent valuations prior to sale, or sell assets at a public auction, with a private sale as a last resort (see O'Donovan J, Company Receivers and Administrators (Lawbook Company) at [10.2370]), this is not a rule of law. Nor is it a rule of law that receivers should attempt to bring competing bidders into competition (but see Forsyth v Blundell [1973] HCA 20 ; (1973) 129 CLR 477 at 508-509 and Florgale Uniforms Pty Ltd v Orders [2004] VSC 65 ; (2004) 11 VR 54 at [410] - [438] especially at [418]-[419]). However, they are matters of common sense in normal circumstances, and no satisfactory explanation has been offered for such a course not being followed in the circumstances. 111 I accept that if a mortgagee directs the exercise of the powers of a receiver, or interferes with his or her conduct in the realisation of assets, then the usual consequences of the agency relationship between the receiver and mortgagor may be displaced: Florgale 11 VR at [496]; Chia 50 NSWLR at [881]-[886]; American Express International Banking Corporation v Hurley (1985) 3 All ER 564 at 568 and 571.
Case: Forsyth v Blundell [1973] HCA 20 ; (1973) 129 CLR 477
Outcome: cited
Whilst it may be said that generally receivers should obtain two independent valuations prior to sale, or sell assets at a public auction, with a private sale as a last resort (see O'Donovan J, Company Receivers and Administrators (Lawbook Company) at [10.2370]), this is not a rule of law. Nor is it a rule of law that receivers should attempt to bring competing bidders into competition (but see Forsyth v Blundell [1973] HCA 20 ; (1973) 129 CLR 477 at 508-509 and Florgale Uniforms Pty Ltd v Orders [2004] VSC 65 ; (2004) 11 VR 54 at [410] - [438] especially at [418]-[419]). However, they are matters of common sense in normal circumstances, and no satisfactory explanation has been offered for such a course not being followed in the circumstances.
Case: Goozee v Graphic World Holdings Pty Ltd [2002] NSWSC 640 ; (2002) 42 ACSR 534
Outcome: cited
As set out above, a person referred to in s 236(1)(a) may apply to the court for leave to bring proceedings. On such application, the court must grant leave if the criteria set out in s 237(2) are satisfied. The prevailing view is that failure to satisfy any one of these criteria means that leave must be refused: see Jeans v Deangrove Pty Ltd [2001] NSWSC 84 at [9] per Santow J; Goozee v Graphic World Holdings Pty Ltd [2002] NSWSC 640 ; (2002) 42 ACSR 534 at [27] per Barrett J; Herbert v Redemption Investments Ltd [2002] QSC 340 at [25] per Mackenzie J; Maher v Honeysett [2005] NSWSC 859 at [12] per Brereton J; compare Fiduciary Ltd v Morningstar Research Pty Ltd (2005) 53 ACSR 732 at [16], where Austin J found it unnecessary to decide the point. 64 In relation to the second criterion that the applicants are acting in good faith it is established that there are at least two interrelated factors to which the court will have regard, namely: &#8226; whether the applicants have an honest belief of a good cause of action with reasonable prospects of success; and &#8226; whether the applicants have a collateral purpose that would amount to an abuse of process. See Swansson 42 ACSR at [36] per Palmer J; Goozee 42 ACSR at [56] per Barrett J; Herbert [2002] QSC at [27] per Mackenzie J; Fiduciary v Morningstar 53 ACSR at [21] per Austin J; Maher v Honeysett [2005] NSWSC 859 at [28] per Brereton J. 78 This requirement may be equated with that which applies on an application for an interlocutory injunction: Swansson 42 ACSR at [25] per Palmer J; Goozee 42 ACSR at [32]-[32] per Barrett J; Ehsman v Nutectime International Pty Ltd (2006) 58 ACSR 705 at [59] per Austin J.
Case: Herbert v Redemption Investments Ltd [2002] QSC 340
Outcome: cited
As set out above, a person referred to in s 236(1)(a) may apply to the court for leave to bring proceedings. On such application, the court must grant leave if the criteria set out in s 237(2) are satisfied. The prevailing view is that failure to satisfy any one of these criteria means that leave must be refused: see Jeans v Deangrove Pty Ltd [2001] NSWSC 84 at [9] per Santow J; Goozee v Graphic World Holdings Pty Ltd [2002] NSWSC 640 ; (2002) 42 ACSR 534 at [27] per Barrett J; Herbert v Redemption Investments Ltd [2002] QSC 340 at [25] per Mackenzie J; Maher v Honeysett [2005] NSWSC 859 at [12] per Brereton J; compare Fiduciary Ltd v Morningstar Research Pty Ltd (2005) 53 ACSR 732 at [16], where Austin J found it unnecessary to decide the point. 64 In relation to the second criterion that the applicants are acting in good faith it is established that there are at least two interrelated factors to which the court will have regard, namely: &#8226; whether the applicants have an honest belief of a good cause of action with reasonable prospects of success; and &#8226; whether the applicants have a collateral purpose that would amount to an abuse of process. See Swansson 42 ACSR at [36] per Palmer J; Goozee 42 ACSR at [56] per Barrett J; Herbert [2002] QSC at [27] per Mackenzie J; Fiduciary v Morningstar 53 ACSR at [21] per Austin J; Maher v Honeysett [2005] NSWSC 859 at [28] per Brereton J.
Case: Jeans v Deangrove Pty Ltd [2001] NSWSC 84
Outcome: cited
As set out above, a person referred to in s 236(1)(a) may apply to the court for leave to bring proceedings. On such application, the court must grant leave if the criteria set out in s 237(2) are satisfied. The prevailing view is that failure to satisfy any one of these criteria means that leave must be refused: see Jeans v Deangrove Pty Ltd [2001] NSWSC 84 at [9] per Santow J; Goozee v Graphic World Holdings Pty Ltd [2002] NSWSC 640 ; (2002) 42 ACSR 534 at [27] per Barrett J; Herbert v Redemption Investments Ltd [2002] QSC 340 at [25] per Mackenzie J; Maher v Honeysett [2005] NSWSC 859 at [12] per Brereton J; compare Fiduciary Ltd v Morningstar Research Pty Ltd (2005) 53 ACSR 732 at [16], where Austin J found it unnecessary to decide the point.
Case: Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171
Outcome: cited
There was no contention that the court would not have the power to make the appropriate correction if the court had the appropriate jurisdiction. The proceeding having now been filed with the Court has enlivened the jurisdiction of the Court, and the Court can thus proceed to consider the issues raised for its determination: see Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171.
Case: Karam v ANZ (2000) 34 ACSR 545
Outcome: cited
In addition, given the possibility that the causes of action will be statute-barred if one takes the view that leave should not be granted nunc pro tunc , this will deny the Company any potentially good cause of action. In those circumstances incurable prejudice may flow to the Company. On the other hand, the respondents merely seek to protect a forensic windfall, which is not a proper basis for denying leave nunc pro tunc : see Karam v ANZ (2000) 34 ACSR 545 per Santow J. Nowhere does any respondent indicate any other relevant prejudice arising from granting leave nunc pro tunc , if it were otherwise appropriate to do so.
Case: Maher v Honeysett &amp; Maher Electrical Contractors [2005] NSWSC 859
Outcome: cited
I note that there have been a number of cases in which leave to proceed under s 237 has been granted nunc pro tunc : see McLean v Lake Como Venture Pty Ltd [2004] 2 Qd R 280; RTP Holdings Pty Ltd v Roberts (2000) 36 ACSR 170; and Maher v Honeysett &amp; Maher Electrical Contractors [2005] NSWSC 859. I accept that in these cases no objection was taken to the grant of leave nunc pro tunc . It seems to me, having analysed the position, the grant of leave nunc pro tunc would be an available order to make in appropriate circumstances. 60 As set out above, a person referred to in s 236(1)(a) may apply to the court for leave to bring proceedings. On such application, the court must grant leave if the criteria set out in s 237(2) are satisfied. The prevailing view is that failure to satisfy any one of these criteria means that leave must be refused: see Jeans v Deangrove Pty Ltd [2001] NSWSC 84 at [9] per Santow J; Goozee v Graphic World Holdings Pty Ltd [2002] NSWSC 640 ; (2002) 42 ACSR 534 at [27] per Barrett J; Herbert v Redemption Investments Ltd [2002] QSC 340 at [25] per Mackenzie J; Maher v Honeysett [2005] NSWSC 859 at [12] per Brereton J; compare Fiduciary Ltd v Morningstar Research Pty Ltd (2005) 53 ACSR 732 at [16], where Austin J found it unnecessary to decide the point. 64 In relation to the second criterion that the applicants are acting in good faith it is established that there are at least two interrelated factors to which the court will have regard, namely: &#8226; whether the applicants have an honest belief of a good cause of action with reasonable prospects of success; and &#8226; whether the applicants have a collateral purpose that would amount to an abuse of process. See Swansson 42 ACSR at [36] per Palmer J; Goozee 42 ACSR at [56] per Barrett J; Herbert [2002] QSC at [27] per Mackenzie J; Fiduciary v Morningstar 53 ACSR at [21] per Austin J; Maher v Honeysett [2005] NSWSC 859 at [28] per Brereton J.
Case: Malouf v Malouf [1999] FCA 284 ; (1999) 86 FCR 134
Outcome: cited
The first matter raised was whether this application was to be regarded as interlocutory or as a final proceeding. This question arose in the context of the operation of s 75 of the Evidence Act . A number of authorities were referred to, but it is important to recall that care must be taken before applying cases which are not concerned with the meaning of the term "interlocutory" for the purposes of the Evidence Act , but rather with the meaning of the term in the context of statutory provisions concerning leave to appeal. The point was made by the Full Court in Malouf v Malouf [1999] FCA 284 ; (1999) 86 FCR 134 at [33] : It has long been accepted that the terms "final" and "interlocutory" may mean different things in different contexts: see Salter Rex and Co v Ghosh [1971] 2 QB 597 at 600-601; Tampion v Anderson (1973) 48 ALJR 11 at 12-13; Wentworth v Wentworth (unreported, Supreme Court, NSW, Santow J, 17 April 1997) at p 4. It is not difficult to find good reason for allowing relaxation of the hearsay rule in a narrower category of cases than that in which the right of appeal is truncated by a requirement for leave. The latter requirement merely places the parties in the hands of the Court. Relaxation of the hearsay rule may substantially affect the outcome of the proceedings or the way in which they are conducted. 23 I need not and do not consider this matter any further, as whether the application is treated as interlocutory or not for the purposes of s 75 of the Evidence Act does not impact upon my conclusions. However, I am of the tentative view that for the purposes of s 75 of the Evidence Act the application should be regarded as interlocutory. 24 The second preliminary matter related to the characterisation of the right under ss 236 and 237 of the Act to bring the proceedings and whether leave can be granted nunc pro tunc .
Case: Medforth v Blake [1999] EWCA Civ 1482 ; [2000] Ch 86
Outcome: cited
A mortgagee has no power to direct a receiver in the performance of the receiver's task: Medforth v Blake [1999] EWCA Civ 1482 ; [2000] Ch 86 at 94-95; Chia 50 NSWLR at [881]. Nevertheless, communication between the receiver and the mortgagee is entirely proper. As was stated by Einstein J in Chia 50 NSWLR at [881] (citations omitted): But there is no doubt that the law allows, and even requires, interaction between a receiver and his or her appointors. The receiver occupies a fiduciary relationship with his or her appointors, one aspect of which is the duty of the receiver to keep his or her appointors informed about the progress of the receivership.
Case: McLean v Lake Como Venture Pty Ltd [2004] 2 Qd R 280
Outcome: cited
I note that there have been a number of cases in which leave to proceed under s 237 has been granted nunc pro tunc : see McLean v Lake Como Venture Pty Ltd [2004] 2 Qd R 280; RTP Holdings Pty Ltd v Roberts (2000) 36 ACSR 170; and Maher v Honeysett &amp; Maher Electrical Contractors [2005] NSWSC 859. I accept that in these cases no objection was taken to the grant of leave nunc pro tunc . It seems to me, having analysed the position, the grant of leave nunc pro tunc would be an available order to make in appropriate circumstances.
Case: Re Varsity Queensland Pty Ltd [2006] QSC 356
Outcome: cited
The applicants bear the onus of satisfying the Court, on the balance of probabilities, that the criteria identified in s 237(2) have been met: Swansson v RA Pratt Properties Pty Ltd (2002) 42 ACSR 313 at [24]-[26] per Palmer J; Fiduciary v Morningstar 53 ACSR at [15] per Austin J; Re Varsity Queensland Pty Ltd [2006] QSC 356 at [9] per Mullins J.
Case: RTP Holdings Pty Ltd v Roberts (2000) 36 ACSR 170
Outcome: cited
I note that there have been a number of cases in which leave to proceed under s 237 has been granted nunc pro tunc : see McLean v Lake Como Venture Pty Ltd [2004] 2 Qd R 280; RTP Holdings Pty Ltd v Roberts (2000) 36 ACSR 170; and Maher v Honeysett &amp; Maher Electrical Contractors [2005] NSWSC 859. I accept that in these cases no objection was taken to the grant of leave nunc pro tunc . It seems to me, having analysed the position, the grant of leave nunc pro tunc would be an available order to make in appropriate circumstances.
Case: Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114 ; (2004) 60 NSWLR 646
Outcome: cited
Equating mortgagees' equitable obligations to those which apply to a receiver, the equitable principle was described in Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114 ; (2004) 60 NSWLR 646 at [38] per Young CJ as follows: The duty is a duty to act conscionably towards the mortgagor and persons under the mortgagor. The duty is not to be considered in some mechanical way, but the whole of the mortgagee's conduct with respect to the sale is to be considered. The mortgagee may, up to a point, act solely in its own interests, but it must also act conscionably towards the mortgagor and those claiming under the mortgagor. 85 Chief Justice Young considered other authorities which explained that the content of the duty included the duty to deal fairly with the interests of the mortgagor, which in turn involves an obligation to refrain from acting in wilful or reckless disregard of those interests (at [45]). Furthermore, to establish breach of the duty, a borrower will need to establish a mortgagee so failed "to take reasonable steps to obtain a proper price for the properties that it was guilty of unconscionable conduct" (at [47]). 86 It may be that s 420A of the Act imposes a higher standard of duty on receivers (see O'Donovan J, Company Receivers and Administrators (Lawbook Company) at [11.50]), but I need not investigate whether this is so. Nor do I need, for the purposes of disposing of the application, to deal with the precise requirements of s 180, other than to say that it is necessary for the applicants to show the standard of conduct expected in the circumstances, and the relevant breach of that standard.
Case: Rogers v Dale &amp; Meyers Timber Trading Centre Pty Ltd [2005] FCA 1891
Outcome: cited
On 23 February 2005, Deputy Registrar Baldwin made an order for the sequestration of the estate of Mr Rogers based upon a failure to comply with a bankruptcy notice founded upon a default judgment in favour of a creditor. An application for review of that order was filed on 25 February 2005 in the Federal Magistrates Court. On 15 March 2005, Federal Magistrate Baumann made an order staying the sequestration order pending the determination of the application for review. On 19 May 2005, Federal Magistrate Baumann dismissed the application for review and discharged the stay order of 15 March 2005. On 25 May 2005, Mr Rogers appealed to the Federal Court from the order of Federal Magistrate Baumann dismissing the application for review. Mr Rogers made a further application for a stay of the sequestration order pending the determination of the appeal. His Honour Justice Dowsett on 14 June 2005 dismissed the motion for a stay, ordered Mr Rogers to pay the costs of the motion and made directions in relation to the appeal: Rogers Trading as Living Space Building v Dale &amp; Meyers Timber Trade Centre Pty Ltd [2005] FCA 862. On 5 December 2005, His Honour Justice Dowsett heard and determined the appeal by Mr Rogers, dismissed the appeal and ordered Mr Rogers to pay the costs of the appeal: Rogers v Dale &amp; Meyers Timber Trading Centre Pty Ltd [2005] FCA 1891.