mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Dew v Richardson [1999] QSC 192
Outcome: referred to
Finally, I turn to the issue of whether the settlement was so unfavourable for Irlmond that it evidences that Mr Rambaldi acted in bad faith. Absent any other evidence of bad faith, the question must be whether or not, in executing the Deed and ultimately settling Irlmond's claim, Mr Rambaldi acted in a way that no reasonable liquidator could have acted: compare Bridgeport at 161-162. In this context, it must be borne in mind that courts are especially reluctant to second-guess settlement decisions. Public policy favours settlement. As Chesterman J said in Dew v Richardson [1999] QSC 192 at [42] , settlement helps "reduce the level of disharmony in society and conserve the resources both of litigants themselves and the community which funds the courts." Others have seen the virtue of settlement in promoting certainty that permits litigants to deal with their affairs in an orderly way looking to the future. For example, in Kelley v Corston [1998] 3 WLR 246 at 259, Judge LJ said: "Every lawyer in practice and every judge knows that there is no such thing as the case which is bound to succeed. Experience shows that cases with the brightest prospects of success somehow fail and it is difficult to underestimate the value of the certainty provided by a settlement as opposed to the continuing risks of litigation through to judgment".
Case: Kelley v Corston [1998] 3 WLR 246
Outcome: referred to
Finally, I turn to the issue of whether the settlement was so unfavourable for Irlmond that it evidences that Mr Rambaldi acted in bad faith. Absent any other evidence of bad faith, the question must be whether or not, in executing the Deed and ultimately settling Irlmond's claim, Mr Rambaldi acted in a way that no reasonable liquidator could have acted: compare Bridgeport at 161-162. In this context, it must be borne in mind that courts are especially reluctant to second-guess settlement decisions. Public policy favours settlement. As Chesterman J said in Dew v Richardson [1999] QSC 192 at [42] , settlement helps "reduce the level of disharmony in society and conserve the resources both of litigants themselves and the community which funds the courts." Others have seen the virtue of settlement in promoting certainty that permits litigants to deal with their affairs in an orderly way looking to the future. For example, in Kelley v Corston [1998] 3 WLR 246 at 259, Judge LJ said: "Every lawyer in practice and every judge knows that there is no such thing as the case which is bound to succeed. Experience shows that cases with the brightest prospects of success somehow fail and it is difficult to underestimate the value of the certainty provided by a settlement as opposed to the continuing risks of litigation through to judgment".
Case: Ankar Pty Ltd &amp; Arnick Holdings Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549
Outcome: cited
The applicants submit however that the "context otherwise requires" that the term "Leased Premises", when used in the option provision in special cl 11(2) of the Schedule, should not be given its defined meaning if that meaning is construed to refer to part only of the Land. Such a construction, it submits, would impute to the parties the absurd and commercially unreasonable intention of recording the grant of a void option. They point to the traditional doctrine that courts should be astute to adopt a construction that will preserve the validity of the contract: Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571 at 589, and to prefer a construction which will encourage performance rather than avoidance of contractual relations: Ankar Pty Ltd &amp; Arnick Holdings Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549 at 556-557; Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 at 202. The Contract to Lease and the Lease each created a valid demise in that a demise of part of the Land for less than 20 years did not contravene the subdivision provisions of the Planning Act : s 136(1)(a). However the option to purchase would contravene s 136(1)(d) of the Planning Act and hence would be void, if it is construed as referrable to a purchase of part only of the Land. The proper construction, in that context, the applicants submit, is that the option is in respect of the whole of the Land.
Case: Australian Broadcasting Commission v Australian Performing Right Association Limited [1973] HCA 36 ; (1973) 129 CLR 99
Outcome: cited
The process of construction normally requires a consideration of not only the text and context of the written agreement, but also the surrounding circumstances known to the parties, as well as the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179, [40] ; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 461-2. The "history" of a contract is part of the context in which a contract takes its meaning: International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 242 ALR 47 at [8] . Even where there is no linguistic ambiguity extrinsic evidence may be considered in aid of construction: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 , particularly at 49-53. Ambiguity is not confined to a competition between two meanings. It extends to meanings which, for example, are doubtful, uncertain, or indistinct and which therefore require a consideration not only of text but also context: Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133 at [42]-[43]. It may also be admitted to identify the subject matter of a contract, its nature and scope: Codelfa Constructions Proprietary Limited v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 349. The meaning arrived at in this way may not be the most obvious or most grammatically correct: Australian Broadcasting Commission v Australian Performing Right Association Limited [1973] HCA 36 ; (1973) 129 CLR 99 at 109. Words may generally be supplied, omitted, or corrected in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420 at 426-427 and 437.
Case: Bond v Barry (2007) 73 IPR 490
Outcome: cited
Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A: (a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings; (b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed; (c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading; (d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial; (e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success'; (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial; (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48] ; Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at [13] ; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60. .
Case: Codelfa Constructions Proprietary Limited v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337
Outcome: cited
The process of construction normally requires a consideration of not only the text and context of the written agreement, but also the surrounding circumstances known to the parties, as well as the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179, [40] ; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 461-2. The "history" of a contract is part of the context in which a contract takes its meaning: International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 242 ALR 47 at [8] . Even where there is no linguistic ambiguity extrinsic evidence may be considered in aid of construction: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 , particularly at 49-53. Ambiguity is not confined to a competition between two meanings. It extends to meanings which, for example, are doubtful, uncertain, or indistinct and which therefore require a consideration not only of text but also context: Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133 at [42]-[43]. It may also be admitted to identify the subject matter of a contract, its nature and scope: Codelfa Constructions Proprietary Limited v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 349. The meaning arrived at in this way may not be the most obvious or most grammatically correct: Australian Broadcasting Commission v Australian Performing Right Association Limited [1973] HCA 36 ; (1973) 129 CLR 99 at 109. Words may generally be supplied, omitted, or corrected in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420 at 426-427 and 437.
Case: Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133
Outcome: cited
The process of construction normally requires a consideration of not only the text and context of the written agreement, but also the surrounding circumstances known to the parties, as well as the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179, [40] ; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 461-2. The "history" of a contract is part of the context in which a contract takes its meaning: International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 242 ALR 47 at [8] . Even where there is no linguistic ambiguity extrinsic evidence may be considered in aid of construction: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 , particularly at 49-53. Ambiguity is not confined to a competition between two meanings. It extends to meanings which, for example, are doubtful, uncertain, or indistinct and which therefore require a consideration not only of text but also context: Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133 at [42]-[43]. It may also be admitted to identify the subject matter of a contract, its nature and scope: Codelfa Constructions Proprietary Limited v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 349. The meaning arrived at in this way may not be the most obvious or most grammatically correct: Australian Broadcasting Commission v Australian Performing Right Association Limited [1973] HCA 36 ; (1973) 129 CLR 99 at 109. Words may generally be supplied, omitted, or corrected in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420 at 426-427 and 437.
Case: Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416
Outcome: cited
Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A: (a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings; (b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed; (c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading; (d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial; (e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success'; (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial; (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48] ; Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at [13] ; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60. .
Case: Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420 
Outcome: cited
The process of construction normally requires a consideration of not only the text and context of the written agreement, but also the surrounding circumstances known to the parties, as well as the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179, [40] ; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 461-2. The "history" of a contract is part of the context in which a contract takes its meaning: International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 242 ALR 47 at [8] . Even where there is no linguistic ambiguity extrinsic evidence may be considered in aid of construction: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 , particularly at 49-53. Ambiguity is not confined to a competition between two meanings. It extends to meanings which, for example, are doubtful, uncertain, or indistinct and which therefore require a consideration not only of text but also context: Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133 at [42]-[43]. It may also be admitted to identify the subject matter of a contract, its nature and scope: Codelfa Constructions Proprietary Limited v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 349. The meaning arrived at in this way may not be the most obvious or most grammatically correct: Australian Broadcasting Commission v Australian Performing Right Association Limited [1973] HCA 36 ; (1973) 129 CLR 99 at 109. Words may generally be supplied, omitted, or corrected in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420 at 426-427 and 437.
Case: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401
Outcome: cited
Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A: (a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings; (b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed; (c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading; (d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial; (e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success'; (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial; (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48] ; Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at [13] ; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60. .
Case: Genovese v BGC Construction Pty Ltd [2007] FCA 923
Outcome: cited
Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A: (a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings; (b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed; (c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading; (d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial; (e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success'; (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial; (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48] ; Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at [13] ; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60. .