mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103
Outcome: referred to
There is no suggestion of non-compliance with subsections (1) and (2) of s 418 , so it is subsection (3) which must be considered. The Magistrate made no finding as to whether there had been a breach of the subsection. In Part B of the delegate's decision, the Department's file is referred to as evidence used in making the decision and I think that it is fair to assume that it would have been relevant to the review of the decision within the terms of subsection (3) of s 418. The circumstances under which the file was "lost" and then "found" appear not to have been the subject of evidence, and certainly the Magistrate did not make findings in relation to the issue. The Magistrate proceeded on the basis that even if the Secretary was in breach of s 418(3) that did not vitiate the Tribunal's decision and he referred to WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103 at [48] - [67] (" WAGP "). 23 In WAGP , the Full Court of this Court discussed the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 (" Muin "). It is not necessary for me to repeat the Court's analysis of that decision. At the time Muin was decided, the provisions of the Act (other than s 418) were in quite different terms from the provisions of the Act as they stand today. It is sufficient for me to say that a mere breach of s 418(3) of the Act by the Secretary will not vitiate the Tribunal's decision. That is not to say that a breach of the section may not in some other way result in the Tribunal committing jurisdictional error. In this case, the Tribunal gave the appellant the opportunity to remedy any deficiency (assuming for the moment that there was a deficiency) in the information before it, and it was within the appellant's power to do that. He did not take that opportunity. In any event, the important document in the Department's file which was not before the Tribunal was the appellant's statement, and the essence of the information in that statement was fairly reproduced in the record of decision which was before the Tribunal. That was the finding of the Magistrate and I see no reason to interfere with that finding. In the circumstances of this case, if there was a breach of s 418(3) of the Act , it did not lead to jurisdictional error on the part of the Tribunal.
Case: Spalla v St George Wholesale Finance Pty Ltd [1999] FCA 1566
Outcome: referred to
Mr Spalla appealed against the decision of Finkelstein J to the Full Court. The Full Court, which was constituted by Heerey, Sundberg and Weinberg JJ, upheld his Honour's decision: see Spalla v St George Wholesale Finance Pty Ltd [1999] FCA 1566 (" Spalla (No 2) "). The Full Court held, amongst other things, that the primary judge was correct to find that Irlmond and APS were insolvent at the time receivers were appointed: see Spalla (No 2) at [61]-[70].
Case: St George Wholesale Finance Pty Ltd v Spalla [2000] FCA 1094
Outcome: referred to
In proceeding V 7877 of 1999, St George Wholesale Finance unsuccessfully petitioned for a sequestration order against Mr Spalla based on an alleged failure to comply with a bankruptcy notice. The notice claimed that Mr Spalla owed a debt pursuant to the judgment obtained in proceeding V 74 of 1999 before Finkelstein J. Mr Spalla contested the sum specified. In St George Wholesale Finance Pty Ltd v Spalla [2000] FCA 1094 at [40] - [41] , Heerey J concluded that "St George is not sure itself what is really owing under the judgment" and that "this proceeding amounts to an abuse of the procedures provided by the Act".
Case: Beck v Spalla [2005] FCAFC 82
Outcome: referred to
As already noted, the applications for leave to appeal and the appeals were listed for hearing on 10 and 11 May 2005. The mediation was scheduled for 29 April 2005. A Full Court, which was constituted by Hill, Finn and Kenny JJ, heard argument in proceeding VID 54 of 2005 on 10 May 2005 and, on 13 May 2005, granted leave to appeal and dismissed the appeal: see Beck v Spalla [2005] FCAFC 82. On account of what happened at the mediation on 29 April 2005, proceeding VID 83 of 2005 did not proceed before the Full Court on 10 May 2005. 71 On 27 April 2005, two days prior to the mediation, Mr Rambaldi and Mr Vasudevan, Mr Foale, Mr Borden and Ms Arslan, and Mr Spalla and Mr Ian Still attended a meeting, to discuss the forthcoming mediation. I accept that a file note of that meeting, which Mr Borden had prepared the following day, accurately records the discussions at that meeting. 72 At the meeting of 27 April 2005, Mr Rambaldi repeated that ILF was considering withdrawing its litigation support and that he would be unable to continue with the litigation if it did so. He also said that, if ILF withdrew after the mediation, he would take whatever offer was made, including a walk-away offer. Mr Borden's file note of the meeting specifically recorded that: "Gess [Rambaldi] reported that he had been informed that ILF was considering withdrawing its support. He reported that if ILF withdrew its support, he would not be able to proceed any further with the litigation. He requested ILF to advise whether they would continue support past Friday, as he will need to know this when taking on board any offers that might be made. If the support is withdrawn after Friday, Gess advised that he would take whatever offer was made including a walk-away if that was available." Mr Rambaldi also asked the solicitors what they thought the Irlmond claim was worth. Mr Borden's file note records that Ms Arslan "advised that the bottom line was somewhere between $2 [million] and $3 [million] plus interest and costs".
Case: Westpac Banking Corporation v Totterdell (1998) 29 ACSR 448
Outcome: referred to
Mr Spalla relied on s 1321 of the Corporations Act 2001 (Cth) ("the Act ") as a basis for his application. That section allows a "person aggrieved by any act ... or decision" of a liquidator to appeal to the Court in respect of the act or decision. The Court can "confirm, reverse or modify the act or decision". Citing Westpac Banking Corporation v Totterdell (1998) 29 ACSR 448 (" Westpac v Totterdell ") , Mr Spalla submitted that he had standing to bring an appeal under this section as a creditor of Irlmond, of which he was also the sole director. Mr Spalla also maintained that he had standing as an applicant and the funder in the primary proceeding. He also pointed out that he and his wife were the owners and controllers of Anstella, which in turn held all the issued shares in Irlmond. Mr Spalla identified "the decision of Mr Rambaldi to execute the Deed of Settlement on 29 April 2005 and subsequently seek and obtain the ratification of the Deed by his partners on 6 May 2005" as the subject of the appeal. 123 Under r 14.1(2) of the Federal Court (Corporations) Rules ("the Rules") any appeal under s 1321 of an act, omission or decision of a liquidator must be filed within "21 days after the date of the act, omission or decision appealed against". Mr Spalla argued that his appeal was not out of time because, even though his initial notice of motion did not refer to s 1321 of the Act , this proceeding was initiated within 21 days of the execution of the Deed. In the alternative, Mr Spalla sought an extension of time to bring an appeal under s 1321. He argued that an extension of time was appropriate because his initial notice of motion put Mr Rambaldi and other interested parties on notice of the nature of Mr Spalla's complaints against him. 124 Mr Spalla also sought to rely on s 536 and s 1324 of the Act . As I accept that s 1321 is an appropriate vehicle for Mr Spalla's challenge to the Deed, it is unnecessary to discuss these sections of the Act further. 169 In the context of this case, two considerations must be borne steadily in mind. First, s 545(1) of the Act provides that a liquidator is not liable to incur any expense in relation to the winding up of a company unless there is sufficient available property. Secondly (by way of reiteration) the courts are generally "loath to enter into the area where the professional liquidator has made a commercial decision which he considers benefits the stakeholders whom he represents, at least unless something is pointed to which suggests that there are some vitiating factors which entered into the making of the decision": see Star v Silvia (No 1) (1994) 12 ACLC 600 at 604 per Young J; Sanderson v Classic Car Insurances Pty Ltd (1986) 4 ACLC 114 at 116 per Young J; Northbourne at 440; Westpac v Totterdell at 453-454 per Ipp J (with whom Pidgeon and White JJ agreed); and Cook v Northoak Holdings Pty Ltd (1997) 25 ACSR 517.
Case: Re Jay-O-Bees Pty Ltd (In Liquidation); Rosseau Pty Ltd (In Liquidation) v Jay-O-Bees Pty Ltd (In Liquidation) (2004) 50 ACSR 565
Outcome: referred to
Mr Spalla conceded that, where an appeal under s 1321 of the Act is against a liquidator's discretionary decision or a decision involving business judgment, the Court would not reverse the liquidator's decision unless it was satisfied that the liquidator acted unreasonably or in bad faith: see Re Jay-O-Bees Pty Ltd (In Liquidation); Rosseau Pty Ltd (In Liquidation) v Jay-O-Bees Pty Ltd (In Liquidation) (2004) 50 ACSR 565 (" Jay-O-Bees ") at 575 per Campbell J. Mr Spalla submitted that there were many grounds for concluding that Mr Rambaldi acted in bad faith by executing the Deed. As he raised so many grounds, Mr Spalla's submissions were somewhat diffuse. In what follows, I attempt to outline his main arguments. 126 Perhaps foremost among Mr Spalla's arguments is his claim that Mr Rambaldi acted in breach of the LFA. Additionally, he argues that, by his conduct, Mr Rambaldi breached his obligations under the Act , including under s 180. In particular, in breach of the LFA, Mr Spalla alleges that Mr Rambaldi breached clauses 9.1, 9.3, 14 and 21 of the LFA. Under clause 9.1, HWL were to "conduct the Proceeding on behalf of the Liquidator and the Spalla Interests". In Mr Spalla's view, Mr Rambaldi breached clause 9.1 by negotiating the terms of the Deed without consulting his solicitors. 127 Under clause 9.3, the Liquidator was not permitted to instruct the solicitors to settle the "proceedings as a whole" or to "settle, amend, vary, abandon or discontinue any claim made or the relief sought by the Spalla Interests" without consent of the Spalla Interests. Mr Spalla argued that the words "any claim made" included the claim made on behalf of and in the name of Irlmond. 165 The decision to accept a settlement on behalf of Irlmond, and the preliminary decision to sign the Deed, were clearly discretionary decisions of the liquidator. They also involved matters of business judgment. It is well settled that where an appeal is brought against such a decision "the court will reverse the liquidator's decision only when it is satisfied that he was acting unreasonably or in bad faith": see Jay-O-Bees at 575 and the authorities referred to. This is in contrast to an appeal against a rejection of a proof of debt where the Court hears the issue de novo: see Jay-O-Bees at 575-576. The "general approach ... in a case like this is that [the Court] should not interfere with a decision made by the liquidator unless either there is fraud, or it can be said that the discretion has not been exercised bona fide, or it can be said that the liquidator has acted in a way which no reasonable liquidator could have acted": Bridgeport at 161-162 quoting Yeomans v Walker (1986) 5 NSWLR 378 at 383 per Hodgson J.
Case: Re Luxtrend Pty Ltd (In Liquidation) (1996) 135 FLR 170; [1997] 2 Qd R 86
Outcome: referred to
Mr Spalla also argued that Mr Rambaldi breached s 477(2A) of the Act by compromising a debt for an amount over $20,000 without approval of the Court, or of the committee of inspection or creditors in general meeting. This submission was based on a misunderstanding as to what constitutes a "debt" under the relevant section: see Re Luxtrend Pty Ltd (In Liquidation) (1996) 135 FLR 170 at 171-172; [1997] 2 Qd R 86 at 87-89 per Moynihan J; Farrow Finance Co Ltd (In Liquidation) v ANZ Executors and Trustees Company Ltd (1996) 136 FLR 154 at 179-180; [1998] 1 VR 50 at 74 per Hansen J; and Re Tietyens Investments Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (1999) 31 ACSR 1 at 20-22 per Weinberg J. It is unnecessary to discuss it further.
Case: Farrow Finance Co Ltd (In Liquidation) v ANZ Executors and Trustees Company Ltd (1996) 136 FLR 154; [1998] 1 VR 50
Outcome: referred to
Mr Spalla also argued that Mr Rambaldi breached s 477(2A) of the Act by compromising a debt for an amount over $20,000 without approval of the Court, or of the committee of inspection or creditors in general meeting. This submission was based on a misunderstanding as to what constitutes a "debt" under the relevant section: see Re Luxtrend Pty Ltd (In Liquidation) (1996) 135 FLR 170 at 171-172; [1997] 2 Qd R 86 at 87-89 per Moynihan J; Farrow Finance Co Ltd (In Liquidation) v ANZ Executors and Trustees Company Ltd (1996) 136 FLR 154 at 179-180; [1998] 1 VR 50 at 74 per Hansen J; and Re Tietyens Investments Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (1999) 31 ACSR 1 at 20-22 per Weinberg J. It is unnecessary to discuss it further.
Case: Re Tietyens Investments Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (1999) 31 ACSR 1
Outcome: referred to
Mr Spalla also argued that Mr Rambaldi breached s 477(2A) of the Act by compromising a debt for an amount over $20,000 without approval of the Court, or of the committee of inspection or creditors in general meeting. This submission was based on a misunderstanding as to what constitutes a "debt" under the relevant section: see Re Luxtrend Pty Ltd (In Liquidation) (1996) 135 FLR 170 at 171-172; [1997] 2 Qd R 86 at 87-89 per Moynihan J; Farrow Finance Co Ltd (In Liquidation) v ANZ Executors and Trustees Company Ltd (1996) 136 FLR 154 at 179-180; [1998] 1 VR 50 at 74 per Hansen J; and Re Tietyens Investments Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (1999) 31 ACSR 1 at 20-22 per Weinberg J. It is unnecessary to discuss it further.
Case: Watson v Foxman (2000) 49 NSWLR 315
Outcome: referred to
Although Mr Rambaldi asked the Court to prefer his evidence to that of Mr Spalla in so far as their evidence conflicted, he did not ask the Court to make a negative credibility finding with respect to Mr Spalla. Rather, Mr Rambaldi relied on the principles referred to by McLelland CJ in Watson v Foxman (2000) 49 NSWLR 315 at 319: " [H] uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience." Mr Rambaldi said that these considerations were especially apposite in this case where Mr Spalla has a very high degree of personal involvement in the proceedings. Mr Rambaldi noted that Mr Spalla has been caught up in litigation including the failed criminal prosecution for many years now. Mr Rambaldi submitted that these difficult circumstances have impacted on Mr Spalla's ability to consider the issues and events relating to this case in a dispassionate manner. According to Mr Rambaldi, this has lead to Mr Spalla misremembering some conversations such as the meeting at the conclusion of the mediation. 146 Mr Rambaldi submitted that, as Mr Spalla alleged bad faith, the Court is not being asked to decide whether Mr Rambaldi achieved the best settlement possible. Mr Rambaldi sought to distinguish bad faith from negligence. With bad faith, he submitted, the enquiry is directed to the actual state of mind of the decision-maker against whom bad faith is alleged. He argued that there is no such thing as constructive bad faith.
Case: Ex parte Sidebotham; In re Sidebotham (1880) 14 Ch D 458
Outcome: referred to
Various statutes have used the expression "person aggrieved" and courts have discussed its meaning in numerous cases: compare the much quoted passage in Ex parte Sidebotham; In re Sidebotham (1880) 14 Ch D 458 at 465-466 per James LJ; Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434 (" Northbourne ") at 437-438 per McLelland J; and Bridgeport Advisers &amp; Asset Managers Pty Ltd (2005) 221 ALR 146 (" Bridgeport ") at 162 per Barrett J. As Gibbs CJ said in Koowarta v Bjelke-Peterson [1982] HCA 27 ; (1982) 153 CLR 168 at 184-185, the meaning of the expression must ultimately depend on the context of the particular statute. Having regard to the circumstances outlined above, I find that Mr Spalla has standing under this provision. None of the respondents contended that he did not.
Case: Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168
Outcome: referred to
Various statutes have used the expression "person aggrieved" and courts have discussed its meaning in numerous cases: compare the much quoted passage in Ex parte Sidebotham; In re Sidebotham (1880) 14 Ch D 458 at 465-466 per James LJ; Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434 (" Northbourne ") at 437-438 per McLelland J; and Bridgeport Advisers &amp; Asset Managers Pty Ltd (2005) 221 ALR 146 (" Bridgeport ") at 162 per Barrett J. As Gibbs CJ said in Koowarta v Bjelke-Peterson [1982] HCA 27 ; (1982) 153 CLR 168 at 184-185, the meaning of the expression must ultimately depend on the context of the particular statute. Having regard to the circumstances outlined above, I find that Mr Spalla has standing under this provision. None of the respondents contended that he did not.
Case: Starmaker (No 51) Pty Ltd v Mawson KLM Holdings Pty Ltd [2005] SASC 313
Outcome: referred to
I do not base this finding on Mr Spalla's claim to be a creditor of Irlmond. Mr Spalla's claim to be a creditor is in tension with the fact that, in this and the primary proceeding, Mr Spalla relied on the report by Banks Group Services, which, amongst other things, estimated directors' loans to be $1,230,000. The evidence as it stands does not permit me to find whether in fact Mr Spalla was a creditor of Irlmond. As previously noted, some important issues concerning the financial status and dealings of Irlmond have already been found to be subject to res judicata and issue estoppels. This proceeding has focussed on the conduct of Mr Rambaldi, particularly in entering the Deed. I have not been required to make findings about the financial affairs of Irlmond. Nor have I been presented with a proper evidentiary foundation to make such findings. It is unnecessary to decide whether it is sufficient for standing under s 1321 that Mr Spalla claims to be a creditor of Irlmond: compare Starmaker (No 51) Pty Ltd v Mawson KLM Holdings Pty Ltd [2005] SASC 313 at [49] - [51] per Layton J.
Case: Re Hedge (No 2) (2002) 196 ALR 557
Outcome: referred to
Section 1321 of the Act provides an appropriate vehicle for Mr Spalla's challenge to Mr Rambaldi's actions. The section confers jurisdiction in respect of matters arising in liquidations and "provides a species of review into the decisions of ... liquidators in the original jurisdiction of the court notwithstanding the reference in the section to an 'appeal to the court'": see Re Hedge (No 2) (2002) 196 ALR 557 at 574 per French J. Also, it provides the Court with broad discretion regarding remedies. Therefore, I find it unnecessary to consider any other bases of jurisdiction. Some of these bases, such as s 536 of the Act , would apparently require Mr Spalla to meet a higher threshold before securing the Court's scrutiny: see Re Glowbind Pty Ltd (In Liquidation); Takchi v Parbery [2003] NSWSC 1190 ; (2003) 181 FLR 208 (" Glowblind ") at 217 per Burchett AJ (noting that an inquiry under s 536 will be appropriate only if the Court "considers that inquiry to be 'in the public interest'" and "'it is satisfied that there is a prima facie case' to justify subjecting the liquidator to it").
Case: Re Glowbind Pty Ltd (In Liquidation); Takchi v Parbery [2003] NSWSC 1190 ; (2003) 181 FLR 208
Outcome: referred to
Section 1321 of the Act provides an appropriate vehicle for Mr Spalla's challenge to Mr Rambaldi's actions. The section confers jurisdiction in respect of matters arising in liquidations and "provides a species of review into the decisions of ... liquidators in the original jurisdiction of the court notwithstanding the reference in the section to an 'appeal to the court'": see Re Hedge (No 2) (2002) 196 ALR 557 at 574 per French J. Also, it provides the Court with broad discretion regarding remedies. Therefore, I find it unnecessary to consider any other bases of jurisdiction. Some of these bases, such as s 536 of the Act , would apparently require Mr Spalla to meet a higher threshold before securing the Court's scrutiny: see Re Glowbind Pty Ltd (In Liquidation); Takchi v Parbery [2003] NSWSC 1190 ; (2003) 181 FLR 208 (" Glowblind ") at 217 per Burchett AJ (noting that an inquiry under s 536 will be appropriate only if the Court "considers that inquiry to be 'in the public interest'" and "'it is satisfied that there is a prima facie case' to justify subjecting the liquidator to it").
Case: Yeomans v Walker (1986) 5 NSWLR 378
Outcome: referred to
The decision to accept a settlement on behalf of Irlmond, and the preliminary decision to sign the Deed, were clearly discretionary decisions of the liquidator. They also involved matters of business judgment. It is well settled that where an appeal is brought against such a decision "the court will reverse the liquidator's decision only when it is satisfied that he was acting unreasonably or in bad faith": see Jay-O-Bees at 575 and the authorities referred to. This is in contrast to an appeal against a rejection of a proof of debt where the Court hears the issue de novo: see Jay-O-Bees at 575-576. The "general approach ... in a case like this is that [the Court] should not interfere with a decision made by the liquidator unless either there is fraud, or it can be said that the discretion has not been exercised bona fide, or it can be said that the liquidator has acted in a way which no reasonable liquidator could have acted": Bridgeport at 161-162 quoting Yeomans v Walker (1986) 5 NSWLR 378 at 383 per Hodgson J.