mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: GE Capital Australia v Davis [2002] NSWSC 1146 ; (2002) 180 FLR 250
Outcome: considered
I am inclined to agree with the approach adopted in GE Capital Australia v Davis [2002] NSWSC 1146 ; (2002) 180 FLR 250, and approved in Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114 ; (2004) 60 NSWLR 646 and Florgale Uniforms Pty Ltd v Orders [2004] VSC 65 ; (2005) 51 ACSR 699, that the effect of s 420A is to substitute a statutory test of liability for the traditional test when determining whether a receiver or mortgagee has breached its general law duty in the exercise of a power of sale. However, the findings of fact made by me in this matter render it unnecessary for me to express a concluded view on this question. 51 Those findings of fact also render it unnecessary for me to form a concluded view on the difficult question of what the legislature intended the expression 'market value' to mean in s 420A(1)(a) (see Skinner v Jeogla Pty Ltd (2001) 37 ACSR 106 at [34]-[41] and GE Capital Australia v Davis at [116]). However, I respectfully agree with the view expressed by Spigelman CJ in Skinner v Jeogla Pty Ltd at [33] that: ' [t] he use of the word "otherwise" as the introductory words of s 420A(1)(b) indicates that the two paragraphs [ie of s 420A(1)] are intended to be both exhaustive and mutually exclusive.'
Case: Gomez v State Bank of NSW Ltd [2001] FCA 1059
Outcome: cited
The relevant authorities indicate that 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 (Receivers and Managers Appointed) (In Liq) 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: Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1995) NSW Conv R 55-731
Outcome: cited
The relevant authorities indicate that 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 (Receivers and Managers Appointed) (In Liq) 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: Skinner v Jeogla Pty Ltd (2001) 37 ACSR 106
Outcome: considered
Those findings of fact also render it unnecessary for me to form a concluded view on the difficult question of what the legislature intended the expression 'market value' to mean in s 420A(1)(a) (see Skinner v Jeogla Pty Ltd (2001) 37 ACSR 106 at [34]-[41] and GE Capital Australia v Davis at [116]). However, I respectfully agree with the view expressed by Spigelman CJ in Skinner v Jeogla Pty Ltd at [33] that: ' [t] he use of the word "otherwise" as the introductory words of s 420A(1)(b) indicates that the two paragraphs [ie of s 420A(1)] are intended to be both exhaustive and mutually exclusive.'
Case: Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114 ; (2004) 60 NSWLR 646
Outcome: considered
I am inclined to agree with the approach adopted in GE Capital Australia v Davis [2002] NSWSC 1146 ; (2002) 180 FLR 250, and approved in Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114 ; (2004) 60 NSWLR 646 and Florgale Uniforms Pty Ltd v Orders [2004] VSC 65 ; (2005) 51 ACSR 699, that the effect of s 420A is to substitute a statutory test of liability for the traditional test when determining whether a receiver or mortgagee has breached its general law duty in the exercise of a power of sale. However, the findings of fact made by me in this matter render it unnecessary for me to express a concluded view on this question. 55 I am inclined to doubt that the above contention reflects a proper reading of s 420A. The opening words of the section suggest that the section is concerned generally with the duty of a controller when exercising a power of sale in respect of property of a corporation. A controller will commonly act in the exercise of a power of sale well ahead of any actual sale of property and his or her conduct at that time may affect the price ultimately achieved for that property. Nonetheless, as Young CJ in Eq observed in Ultimate Property Group Pty Ltd v Lord at [69]: 'unless it can be demonstrated ... that the property in fact sold for under the market price, it is merely a case of injuria sine damnum [ie injury without damage].' 56 However, as I did not hear full argument on the proper construction of s 420A of the Act, I prefer to express no concluded view on the respondents' submissions. For the reasons set out below, assuming the applicability of s 420A to Mr Buckby's conduct in authorising the sending of the letter of 5 May 2000, I am not satisfied that any breach of the section by the respondents has been established. 57 As is mentioned in [16] above, Deangrove's case against the respondents was refined during the course of the hearing to an allegation concerning the sending by the respondents' solicitor, on Mr Buckby's instructions, of the 5 May 2000 letter (see [36] above). Deangrove alleged that Mr Buckby's conduct in authorising sending of the letter of 5 May 2000 gave rise to a breach of the respondents' duties for a number of reasons.
Case: Aristocrat Technologies Australia Pty Ltd v Vidtech Gaming Services Pty Ltd (2006) 68 IPR 229
Outcome: cited
In relation to this aspect of the proposed orders I make the following observations. First, as to whether there should be orders or whether undertakings are sufficient: &#8226; The undertakings reflect what Apotex has called ' the Court's disapproval of the respondents' conduct ' and also reflect the outcome of the proceedings. &#8226; The undertakings, which are in place and have been since April 2007, are offered on a permanent basis. They are no longer made without admissions. They cover the same ground as the proposed injunctions concerning the representations; a matter referred to by Wilcox J in Aristocrat Technologies Australia Pty Ltd v Vidtech Gaming Services Pty Ltd (2006) 68 IPR 229 at [100]. &#8226; There is no suggestion that Servier has breached the undertakings since they were given in April 2007. &#8226; It is not for the Court to consider the potential forensic benefits to either party of making orders in the form of injunctions, rather than accepting undertakings. Secondly, as to the content of orders or undertakings: &#8226; The orders proposed by Apotex would restrain Servier from using any part of the advertisements. Those advertisements, especially with respect to the first full page advertisement, contained representations that were not found to be misleading or deceptive or likely to mislead or deceive. The proffered undertakings focus more on the actual representations that were found to be in contravention of s 52 of the Act. It is the representations that should be the subject of any proposed undertakings and not the advertisements themselves. On the other hand, the proposed undertakings seek only to restrict the placing of any further advertisements which make reference to "improved stability" or to the Europa trial. I see no reason to limit the undertaking or order to the placing of advertisements which contain only the offending words or expressions. If the undertakings are not extended to mirror the wording of Apotex's proposed revised orders that relate to the representations, I would be minded to make orders in those terms. 9 Apotex seeks orders for the destruction of a range of material. If the undertakings are in place, Servier cannot use the advertisements. I accept that it is appropriate that Servier destroy all copies of the offending advertisements and the offending stamp in its possession. I do not, however, have sufficient evidence to enable me to comprehend what is encompassed by the destruction of the other material referred to in Apotex's proposed order, such as instruction manuals, and I do not propose to extend an order for destruction to those materials. 10 The offending stamps are in the possession of third parties, doctors, who may continue to use them despite the provision of a different version of the stamp of which Apotex does not complain. It is appropriate that Servier take all reasonable steps to recall the offending stamps.
Case: Australian Competition and Consumer Commission v On Clinic Australia Pty Ltd (1996) 35 IPR 635
Outcome: cited
As to the stamp, I am not satisfied that the pharmacists or patients likely to have been confused by its use on a single prescription will currently have a false impression of the substitutability of Coversyl. The patient's doctor will either have continued to prevent substitution, or will have used the new stamp, or will have permitted substitution. The evidence of confusion on the part of a pharmacist was of transient confusion. I do not accept that pharmacists, who are fully aware of generic substitution, would require corrective advertising. There can reasonably be no current misapprehension as a result of the stamp ( Australian Competition and Consumer Commission v On Clinic Australia Pty Ltd (1996) 35 IPR 635 at 640 per Tamberlin J). 13 Further, the corrective advertising sought goes well beyond pharmacists and patients who may have seen a stamped prescription. The proposed corrective advertising, to all pharmacies that sell Coversyl, is likely to confuse those patients with the characteristics that led to the conclusion that they would be likely to have been confused by the stamp in the first place. 14 No reason has been advanced for not standing the matter over in relation to a damages inquiry. I will hear from the parties as to the course of that part of the proceedings.
Case: Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483
Outcome: cited
While the Court has the power to make an order for corrective advertising, it must consider the nature and likely effect of the proposed advertising. The time which has elapsed since the publication of the misleading advertising will usually be relevant ( Makita (Australia) Pty Ltd v Black &amp; Decker (Australasia) Pty Ltd [1990] FCA 166 ; (1990) 18 IPR 270 at [282] per Wilcox J; Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483 at 491 492 per Morling J). I do not see the benefit in corrective advertising. I do see that it is likely to create confusion. The stamp has been replaced. That itself is a form of correction. The advertisements were published in medical magazines. The offending representations formed only part of those advertisements. There is no evidence of the numbers of doctors who read those advertisements or of doctors who were misled by them. In my view corrective advertising, in particular in the form suggested, would create more confusion. The advertisements have not been published for some time and the public does not need current protection. It is unlikely that there are current incorrect or false impressions that require correcting and it is not, in my view, in the public interest to order corrective advertising.
Case: Makita (Australia) Pty Ltd v Black &amp; Decker (Australasia) Pty Ltd [1990] FCA 166 ; (1990) 18 IPR 270
Outcome: cited
While the Court has the power to make an order for corrective advertising, it must consider the nature and likely effect of the proposed advertising. The time which has elapsed since the publication of the misleading advertising will usually be relevant ( Makita (Australia) Pty Ltd v Black &amp; Decker (Australasia) Pty Ltd [1990] FCA 166 ; (1990) 18 IPR 270 at [282] per Wilcox J; Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483 at 491 492 per Morling J). I do not see the benefit in corrective advertising. I do see that it is likely to create confusion. The stamp has been replaced. That itself is a form of correction. The advertisements were published in medical magazines. The offending representations formed only part of those advertisements. There is no evidence of the numbers of doctors who read those advertisements or of doctors who were misled by them. In my view corrective advertising, in particular in the form suggested, would create more confusion. The advertisements have not been published for some time and the public does not need current protection. It is unlikely that there are current incorrect or false impressions that require correcting and it is not, in my view, in the public interest to order corrective advertising.
Case: Re Krzywak v Secretary to the Department of Social Security (AAT 4614, 9 September 1988)
Outcome: referred to
The Tribunal member referred to two authorities which had considered the nature of this discretion. He referred to Re Krzywak v Secretary to the Department of Social Security (AAT 4614, 9 September 1988) and Groth v Secretary, Department of Social Security (1995) 40 ALD 541. The Tribunal member said that, in the appellant's circumstances, the consequence of the compensation legislation was as intended, that is to say, that neither the appellant nor Mrs Ilba should retain compensation and compensation effected Centrelink payments. He noted that the appellant argued that in some way Centrelink had foregone its right to retain the recovered moneys through what he considered to be Centrelink's harassment of himself. The Tribunal member said that on the evidence before him he was unable to conclude that the appellant had been harassed by Centrelink, but he said that in any event, he considered that any such harassment was unrelated to Centrelink's decisions in 1989, that is at least 14 years prior to the date the appellant suggested his harassment by Centrelink commenced. For these reasons, the Tribunal decided that the decision under review should be affirmed.
Case: Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Outcome: referred to
The Tribunal member referred to two authorities which had considered the nature of this discretion. He referred to Re Krzywak v Secretary to the Department of Social Security (AAT 4614, 9 September 1988) and Groth v Secretary, Department of Social Security (1995) 40 ALD 541. The Tribunal member said that, in the appellant's circumstances, the consequence of the compensation legislation was as intended, that is to say, that neither the appellant nor Mrs Ilba should retain compensation and compensation effected Centrelink payments. He noted that the appellant argued that in some way Centrelink had foregone its right to retain the recovered moneys through what he considered to be Centrelink's harassment of himself. The Tribunal member said that on the evidence before him he was unable to conclude that the appellant had been harassed by Centrelink, but he said that in any event, he considered that any such harassment was unrelated to Centrelink's decisions in 1989, that is at least 14 years prior to the date the appellant suggested his harassment by Centrelink commenced. For these reasons, the Tribunal decided that the decision under review should be affirmed. 13 Leaving aside the need to identify a question of law I do not think it is arguable that there were special circumstances such that the respondent's power was enlivened. The operation of the recovery provisions did not produce anything unfair, unintended or unjust in the relevant sense (see Groth v Secretary, Department of Social Security (supra) at 545). In fact, I did not understand the appellant to put his case in this way. His complaint was that some time after the respondent's predecessor had decided to recover the relevant amount, he had been harassed by the respondent's predecessor and that this harassment was a sufficient basis for an order that the amount recovered be repaid to him. The acts constituting the alleged harassment were not identified by the appellant. Even if they had been, harassment some time after the recovery of the money by the respondent could not constitute special circumstances within the provisions of s 156 of the Social Security Act 1947 (Cth) or s 1184K of the Social Security Act 1991 (Cth). In my opinion, the appeal is clearly unarguable and it is an appropriate case for me to exercise the power in O 20 r 2 of the Federal Court Rules . 14 The appeal is dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice BESANKO. Associate: Dated: 15 November 2006 The Applicant: The applicant appeared in person. Counsel for the Respondent: J Abbott Solicitor for the Respondent: Sparke Helmore Date of Hearing: 23 October 2006 Date of Judgment: 15 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1520.html
Case: Tringali v Stewardson Stubbs &amp; Collett Pty Limited (1966) 66 SR NSW 335
Outcome: applied
am of opinion that there is the power in the Court to impose conditions on a grant of leave to appeal in circumstances where, like the present, the appeal is interlocutory but there are other proceedings on foot, the benefit of which the unsuccessful party seeks to maintain while at the same time seeking to challenge the result which would have the effect of negating the factual substratum underlying those other proceedings. Such a power seems to me to fall within the inherent power of a superior court of record to condition orders that it makes inter partes to accord with the requirements of the demands of justice, just as the power to grant a stay is not confined to closed categories of cases of which vexatious suits is one illustration. It is a power which is exercisable in any situation where the requirements of justice demand it: Tringali v Stewardson Stubbs &amp; Collett Pty Limited (1966) 66 SR NSW 335 at 344. The power to impose conditions should be similarly approached.
Case: Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378
Outcome: applied
Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 393 Mason CJ and Deane and Dawson JJ discussed the inherent jurisdiction of a superior court to stay proceedings on the grounds of abuse of process and said that that power extended to all those categories of cases in which the processes and procedures of the court which exist to administer justice with fairness and impartiality may be converted into instruments of injustice or unfairness. They relied on what Lord Diplock had said in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536, that the inherent power which any court of justice must possess is to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute among right-thinking people.
Case: Abebe v The Commonwealth of Australia [1999] HCA 14 , 197 CLR 510
Outcome: applied
it would be curious if any contrary conclusion were to be reached. It is for a claimant to advance whatever evidence or arguments he wishes to advance in support of a claim that he has a well-founded fear of persecution for a Convention reason; it is then for the Tribunal to decide whether the claim is made out: Abebe v The Commonwealth of Australia [1999] HCA 14 at [187] , 197 CLR 510 at 576 per Gummow and Hayne JJ. It would be a curious result (and an unacceptable result) if a claimant could unsuccessfully advance some materials and thereafter have an entitlement, perhaps a repeated entitlement, to supplement the original material until he may ultimately prevail. The unacceptability of such a course is only compounded by a claimant shunning an invitation to attend and to participate in a hearing so that the material originally provided could then be discussed. The passage in the Tribunal's " Findings and Reasons " which is the subject of the final Ground of Appeal , together with the " Conclusions " thereafter expressed, provide as follows: [26] ... I am unable to be satisfied on the evidence before me that, if the applicant returns to Bangladesh now or in the reasonably foreseeable future, there is a real chance that he will be involved in any form of political activity or that he will be persecuted (whether by the Awami League leader and his people, the Awami League more generally, the caretaker government or the army) for reasons of his real or imputed political opinion or for any other Convention reason. CONCLUSIONS [27] I am unable to be satisfied on the evidence before me that the applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. It follows that I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Consequently the applicant does not satisfy the criterion set out in paragraph 36(2)(a) of the Act for a protection visa. By reference to the reasons for decision of the Federal Magistrate, it is understood that " the applicant contended that the Tribunal had acted in excess of its jurisdiction by giving him a guarantee that he would not have any real chance of persecution ...". But, as correctly observed by the Federal Magistrate, no such " guarantee " was given. The conclusion of the Tribunal was that it was " unable to be satisfied on the evidence " that the now Appellant would be " involved in any form of political activity or that he will be persecuted ... ".
Case: Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: applied
if the Ground is intended to convey that the Tribunal should have placed greater weight upon the claims being advanced, notwithstanding the fact that the now Appellant elected not to appear before the Tribunal, the weight to be given to the evidence advanced is a matter for the Tribunal &#8212; and not a matter for the Federal Magistrate or this Court on appeal: Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291 to 292 per Kirby J. This Ground is without substance. The second Ground of Appeal , again construed as a contention that the Federal Magistrate erred in not concluding that there had been a failure on the part of the Tribunal to comply with s 424A of the Migration Act 1958 (Cth), is also to be rejected.