mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Delnorth Pty Ltd v State Bank of New South Wales (1995) 17 ACSR 379
Outcome: followed
notion of not warranting further investigation has assumed importance in a particular class of case. Where the dispute relates to a simple question of construction that can be decided following a short hearing and there is no factual issue to be resolved, the Court will decide the question and, if the construction is against the company, the dispute will not be classified as "genuine": see Delnorth Pty Ltd v State Bank of New South Wales (1995) 17 ACSR 379 at 384-5 ( Delnorth ); Lifestyle Retirement Projects No 2 Pty Ltd v Parisi Homes Pty Ltd [2005] NSWSC 705 at [16] - [17] ; BBX Holdings Ltd v American Home Assurance Co [2007] NSWSC 549 at [15] - [17] . In the same vein, in the earlier case of Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 , McLelland CJ in Eq said that the expression "genuine dispute" connotes "a plausible contention requiring investigation " (at 787 my emphasis). Counsel for Lodge submitted that it sufficed that Lodge raised an arguable construction. I accept that counsel for Lodge did raise a construction that was arguable, at least on the face of the provision, but the cases cited above show that this is not the end of the matter. The following oft cited passage from the judgment of Cohen J in Delnorth (at 384-385) is pertinent: Section 459H(1) refers to the court finding that there is a genuine dispute. The parties have argued this case on the issue of whether the proper construction of the agreement and the facts results in the plaintiff owing money to the defendant. The facts were not in dispute and there was thus no question of whose evidence would be accepted on a final hearing. Under the previous legislation, when there was a claim that there was a bona fide dispute on substantial grounds as to the debt claimed, the court could decide that dispute if it arose from a question of law or was of short compass. See, for example, Offshore Oil NL v Acron pacific Ltd (1984) 2 ACLC 8. I consider that under the provisions of the Corporations Law, the same approach can be taken. Although questions of disputed fact will not be decided on an application to set aside a statutory demand, the issue of whether there is a genuine dispute can be resolved on that application where the question arises on a short point of law or the construction of documents or agreed facts. In Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 ; 12 ACLC 669 , McLelland CJ in Eq said that the expression "genuine dispute" connotes a plausible contention requiring investigation. Where no further investigation is required, I consider that the court on an application under s 459G may decide as a matter of law if there is a genuine dispute. The occasions when this is possible may be few, but in my view this is one of them.
Case: Lifestyle Retirement Projects No 2 Pty Ltd v Parisi Homes Pty Ltd [2005] NSWSC 705
Outcome: followed
notion of not warranting further investigation has assumed importance in a particular class of case. Where the dispute relates to a simple question of construction that can be decided following a short hearing and there is no factual issue to be resolved, the Court will decide the question and, if the construction is against the company, the dispute will not be classified as "genuine": see Delnorth Pty Ltd v State Bank of New South Wales (1995) 17 ACSR 379 at 384-5 ( Delnorth ); Lifestyle Retirement Projects No 2 Pty Ltd v Parisi Homes Pty Ltd [2005] NSWSC 705 at [16] - [17] ; BBX Holdings Ltd v American Home Assurance Co [2007] NSWSC 549 at [15] - [17] . In the same vein, in the earlier case of Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 , McLelland CJ in Eq said that the expression "genuine dispute" connotes "a plausible contention requiring investigation " (at 787 my emphasis).
Case: Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411
Outcome: cited
concept of a "genuine dispute" has been discussed in the cases. The dispute must be bona fide and must truly exist in fact, and the grounds for alleging the existence of the dispute must be real and not spurious, hypothetical, illusory or misconceived: see, for example, Spencer Constructions Pty Ltd v G &amp; M Aldridge Pty Ltd [1997] FCA 681 ; (1997) 76 FCR 452 at 464. In Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411 , Barrett J said (at [23]), after reviewing the authorities, that the task faced by a company challenging a statutory demand on the "genuine dispute" ground is not a difficult or demanding one. His Honour added: The company will fail in that task only if it is found upon the hearing of its s 459G application that the contentions upon which it seeks to rely in mounting its challenge are so devoid of substance that no further investigation is warranted. Once the company shows that even one issue has a sufficient degree of cogency to be arguable, a finding of genuine dispute must follow. The court does not engage in any form of balancing exercise between the strengths of competing contentions. If it sees any factor that, on rational grounds, indicates an arguable case on the part of the company, it must find that a genuine dispute exists, even where any case apparently available to be advanced against the company seems stronger.
Case: Spencer Constructions Pty Ltd v G &amp; M Aldridge Pty Ltd [1997] FCA 681 ; (1997) 76 FCR 452 
Outcome: cited
concept of a "genuine dispute" has been discussed in the cases. The dispute must be bona fide and must truly exist in fact, and the grounds for alleging the existence of the dispute must be real and not spurious, hypothetical, illusory or misconceived: see, for example, Spencer Constructions Pty Ltd v G &amp; M Aldridge Pty Ltd [1997] FCA 681 ; (1997) 76 FCR 452 at 464. In Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411 , Barrett J said (at [23]), after reviewing the authorities, that the task faced by a company challenging a statutory demand on the "genuine dispute" ground is not a difficult or demanding one. His Honour added: The company will fail in that task only if it is found upon the hearing of its s 459G application that the contentions upon which it seeks to rely in mounting its challenge are so devoid of substance that no further investigation is warranted. Once the company shows that even one issue has a sufficient degree of cogency to be arguable, a finding of genuine dispute must follow. The court does not engage in any form of balancing exercise between the strengths of competing contentions. If it sees any factor that, on rational grounds, indicates an arguable case on the part of the company, it must find that a genuine dispute exists, even where any case apparently available to be advanced against the company seems stronger.
Case: Symbion Medical Centre Operations Pty Ltd v Thomco (No 2113) Pty Ltd [2009] SASC 65
Outcome: distinguished
for Lodge referred to Symbion Medical Centre Operations Pty Ltd v Thomco (No 2113) Pty Ltd [2009] SASC 65 ( Symbion ). In Symbion the Full Court of the Supreme Court of South Australia allowed an appeal from a Master's decision dismissing an application to set aside a statutory demand. The decision is distinguishable. Unlike the three New South Wales cases to which I have referred and the present case, Symbion involved far more than the construction of a simple provision. It involved heads of agreement which, at least according to one party's submission, were to be construed against the background of "the commercial context including the later conduct of the parties and their agents" (per Gray J at [10]). The Court referred to issues as to the admissibility of post-contract conduct of the parties and the question whether the heads of agreement represented a concluded contract at all. In the circumstances of the present case, I should decide the question of construction. Counsel for Lodge submits, first, that by the time of the November 2008 tranche, ETC was no longer "a new client introduced to [Lodge] by [Mr Pegum]" and that the defendants were entitled to the Introduction Fee only on the first tranche because it was only in respect of that transaction that ETC could be described as "a new client introduced to [Lodge] by [Mr Pegum]". Secondly, he submits that the third sentence of the provision makes the payment of any introduction fee at all dependent on the matters mentioned in that sentence. Thirdly, he submits that the percentage payable is to be determined at Lodge's discretion and that Lodge should be taken to have exercised its discretion against paying any percentage in respect of the second tranche. Counsel for the defendants submits that once ETC was properly described in May 2008 as "a new client introduced to [Lodge] by [Mr Pegum]" it continued to satisfy that description, with the consequence that the defendants were entitled to the Introduction Fee on each transaction entered into by Lodge and ETC not just the first such transaction. Secondly, he submits that the amount of the Introduction Fee was a minimum of 10% and that the third sentence relates only to anything over and above the 10%. Thirdly, he submits that the same argument applies to the determination of the percentage at Lodge's discretion, also referred to in the third sentence. On its face, the first sentence is ambiguous as the following considerations show.
Case: Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Outcome: followed
notion of not warranting further investigation has assumed importance in a particular class of case. Where the dispute relates to a simple question of construction that can be decided following a short hearing and there is no factual issue to be resolved, the Court will decide the question and, if the construction is against the company, the dispute will not be classified as "genuine": see Delnorth Pty Ltd v State Bank of New South Wales (1995) 17 ACSR 379 at 384-5 ( Delnorth ); Lifestyle Retirement Projects No 2 Pty Ltd v Parisi Homes Pty Ltd [2005] NSWSC 705 at [16] - [17] ; BBX Holdings Ltd v American Home Assurance Co [2007] NSWSC 549 at [15] - [17] . In the same vein, in the earlier case of Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 , McLelland CJ in Eq said that the expression "genuine dispute" connotes "a plausible contention requiring investigation " (at 787 my emphasis). Counsel for Lodge submitted that it sufficed that Lodge raised an arguable construction. I accept that counsel for Lodge did raise a construction that was arguable, at least on the face of the provision, but the cases cited above show that this is not the end of the matter. The following oft cited passage from the judgment of Cohen J in Delnorth (at 384-385) is pertinent: Section 459H(1) refers to the court finding that there is a genuine dispute. The parties have argued this case on the issue of whether the proper construction of the agreement and the facts results in the plaintiff owing money to the defendant. The facts were not in dispute and there was thus no question of whose evidence would be accepted on a final hearing. Under the previous legislation, when there was a claim that there was a bona fide dispute on substantial grounds as to the debt claimed, the court could decide that dispute if it arose from a question of law or was of short compass. See, for example, Offshore Oil NL v Acron pacific Ltd (1984) 2 ACLC 8. I consider that under the provisions of the Corporations Law, the same approach can be taken. Although questions of disputed fact will not be decided on an application to set aside a statutory demand, the issue of whether there is a genuine dispute can be resolved on that application where the question arises on a short point of law or the construction of documents or agreed facts. In Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 ; 12 ACLC 669 , McLelland CJ in Eq said that the expression "genuine dispute" connotes a plausible contention requiring investigation. Where no further investigation is required, I consider that the court on an application under s 459G may decide as a matter of law if there is a genuine dispute. The occasions when this is possible may be few, but in my view this is one of them.
Case: Prenn v Simmonds [1971] 1 WLR 1381
Outcome: followed
speaking, it is not permissible to take pre-contract negotiations into account in the construction of contracts: see, for example, Prenn v Simmonds [1971] 1 WLR 1381. However, there are exceptions to the general rule, one of which is that evidence is admissible to show what both parties intended a particular ambiguous term used in the contract to mean: see, for example, Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 348-350, 352-353 per Mason J; ProForce Recruit Ltd v Rugby Group Ltd [2008] 1 All ER 569 (Comm) at [83], [86], [88]; Yoshimoto v Canterbury Golf International Ltd [2001] 1 NZLR 523 ; and see Corbin on Contracts (rev'd ed, 1998) vol 5 &#167; 24.8. Sometimes cases of this kind are called "private dictionary" cases: the parties have agreed that a word or expression in the express terms of their contract is to have (or not to have) a certain meaning. The reasons that support the general rule excluding evidence of antecedent negotiations (see, for example, Prenn v Simmonds , above, at 1384-1385; and Carter, Peden and Tolhurst, Contract Law in Australia (5 th ed, 2007) at [12-11]) do not apply here. The evidence of the change made to the draft on 24 November 2006 at Mr Pegum's request and agreed to by Lodge was clear, undisputed, and admitted without objection. The word "each" as used in the contractual provision means "the first and each subsequent". I return to the word "new". In the light of the now revealed meaning of "each", the word "new" can be seen to add nothing to the word "introduced". It has been included, admittedly tautologously, to emphasise that the client must not have been a client of Lodge prior to the introduction, not that the client must not have been a client of Lodge prior to the transaction in question. It is common enough to speak of introducing a new client, customer, supplier, etc without embarrassment over the tautology involved.
Case: Yoshimoto v Canterbury Golf International Ltd [2001] 1 NZLR 523
Outcome: followed
speaking, it is not permissible to take pre-contract negotiations into account in the construction of contracts: see, for example, Prenn v Simmonds [1971] 1 WLR 1381. However, there are exceptions to the general rule, one of which is that evidence is admissible to show what both parties intended a particular ambiguous term used in the contract to mean: see, for example, Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 348-350, 352-353 per Mason J; ProForce Recruit Ltd v Rugby Group Ltd [2008] 1 All ER 569 (Comm) at [83], [86], [88]; Yoshimoto v Canterbury Golf International Ltd [2001] 1 NZLR 523 ; and see Corbin on Contracts (rev'd ed, 1998) vol 5 &#167; 24.8. Sometimes cases of this kind are called "private dictionary" cases: the parties have agreed that a word or expression in the express terms of their contract is to have (or not to have) a certain meaning.
Case: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337
Outcome: followed
speaking, it is not permissible to take pre-contract negotiations into account in the construction of contracts: see, for example, Prenn v Simmonds [1971] 1 WLR 1381. However, there are exceptions to the general rule, one of which is that evidence is admissible to show what both parties intended a particular ambiguous term used in the contract to mean: see, for example, Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 348-350, 352-353 per Mason J; ProForce Recruit Ltd v Rugby Group Ltd [2008] 1 All ER 569 (Comm) at [83], [86], [88]; Yoshimoto v Canterbury Golf International Ltd [2001] 1 NZLR 523 ; and see Corbin on Contracts (rev'd ed, 1998) vol 5 &#167; 24.8. Sometimes cases of this kind are called "private dictionary" cases: the parties have agreed that a word or expression in the express terms of their contract is to have (or not to have) a certain meaning.
Case: Applicant A376 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 222
Outcome: cited
if the proposed Ground were to be pursued, there would be a need to resolve as a factual issue the question as to what was and what was not put to the now Appellant during the course of the Tribunal hearing. A submission advanced on behalf of the Respondent Minister by his Senior Counsel as to prejudice should the Ground be entertained is not to be dismissed lightly. Prejudice is claimed by reason of a lost " opportunity to call evidence to rebut the proposed allegations about what issues were raised and how they were raised at the Tribunal's three hearings ". It is appropriate to refuse leave to amend where " it may be unfair to the respondent, who may have been able to call evidence at first instance to rebut the proposed allegations, if they had been made at that stage ": Applicant A376 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 222 at [2] per Tamberlin, Madgwick and Hely JJ. Leave to amend should also be rejected on this further basis. Even if leave were granted, the proposed Ground would be rejected. The Appeal is to be dismissed. The written outline of submissions as filed on behalf of the Respondent Minister seeks costs. The Appellant accepted that if the appeal was to be dismissed, there was no reason why costs should not follow the event. Although the Minister may not have prevailed in respect to all of the contentions sought to be advanced in his Notice of Contention , he has substantially prevailed. The appeal is thus to be dismissed with costs.
Case: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 , 221 CLR 1
Outcome: cited
to a particular issue in the reasons for decision of a Tribunal may provide a basis upon which a conclusion may be reached that that issue was in fact addressed and considered during the course of a Tribunal hearing. But the difficulty in drawing an inference that an issue was not addressed because of the absence of any reference to that issue in the reasons for decision of a Tribunal is a difficulty that has been adverted to by the Full Court in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241. When addressing a submission that an inference should be drawn that the Tribunal did not raise an issue with the appellant, Beaumont, Merkel and Hely JJ there observed: [21] We cannot accept this submission, for several reasons. For one thing, as the respondent submitted, the appellant's case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this 'appeared' to be the case 'from the record of the [Tribunal] decision'. On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appelant [ sic ] has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice. Their Honours were obviously directing attention to the facts then before the Court. But the caution expressed as to the dangers in too readily drawing inferences from an incomplete factual foundation is to be heeded. The decision in NAOA has since been followed: NBBO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1132 at [31] per Conti J. The Full Court, it has also been said, " simply made its comments based on the particular facts of that case ": SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 at [32] , 102 ALD 598 at 606 per Rares J. In an appropriate case, inferences may be drawn from an account given by a Tribunal member: e.g. Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 at [28] to [30] [2004] HCA 62 ; , 221 CLR 1 at 10 to 11 per McHugh, Gummow, Callinan and Heydon JJ. Whether an inference is or is not available must obviously depend upon the facts and circumstances of each individual case.
Case: Black v Minister for Immigration and Citizenship [2007] FCAFC 189 , 99 ALD 1
Outcome: cited
for the Appellant resisted such a conclusion and submitted that the Tribunal's reasons did not disclose any finding as to " purpose ". He accepted that the Tribunal's reasons were not to be scrutinised in an " over-zealous " manner and with an " eye keenly attuned to the perception of error ": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 271 to 272, see also Kirby J at 291; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25] , [2007] HCA 26 ; 96 ALD 1 at 9 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9.
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: applied
for the Appellant accepts what must inevitably be common ground as between the parties. It is thus accepted that a party is normally bound by the manner in which it has previously conducted its case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed at 71: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. Applied: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 at [18], 190 ALR 543 at 548 to 549 per Hill, O'Loughlin and Tamberlin JJ; SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 at [33] , 104 ALD 22 at 30. Similarly, in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , Gibbs CJ, Wilson, Brennan and Dawson JJ observed at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.