mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Neuchatel Swiss General Insurance Co v Vlasons Shipping Inc [2001] VSCA 25
Outcome: cited
to interest, the rule appears to be that as regards the judgment in the foreign currency, interest should be calculated at the rate applicable for that foreign currency. In Miliangos v George Frank (Textiles) Ltd (No 2) [1977] QB 489 at 497 Bristow J held that the plaintiff, who obtained judgment in Swiss francs, was entitled to interest at a rate at which someone could reasonably have borrowed Swiss francs in Switzerland at simple interest. The same approach has been adopted by Australian courts: see eg Maschinenfabrik Augsburg-Nurenburg AG v Altikar Pty Ltd (1984) 3 NSWLR 152 ; Swiss Bank Corporation v State Bank of New South Wales (1993) 33 NSWLR 63 affirmed on appeal State of New South Wales v Swiss Bank Corporation (2001) 39 NSWLR 350. In Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Limited [1998] VSC 135 , Byrne J applied the US prime borrowing rate in respect of a judgment in US dollars. This decision was reversed on appeal, but on other grounds: Neuchatel Swiss General Insurance Co v Vlasons Shipping Inc [2001] VSCA 25. I would also apply that rate calculated on a monthly basis. In the case of judgment for damages to be entered in Australian dollars, the practice is to adopt the rate prevailing in the Supreme Court of the State or Territory in which the Federal Court is sitting: Namol Pty Ltd v AW Baulderstone Pty Ltd (No 2) [1993] FCA 606 ; (1993) 47 FCR 388 at 389.
Case: Schorsch Meier GmbH v Hennin [1975] QB 416
Outcome: cited
this state of affairs BHPB should have judgment for the unpaid hire and ballast bonus in US dollars and the balance of its claim in Australian dollars. As to the US dollar portion, the order should follow the form suggested in Schorsch Meier GmbH v Hennin [1975] QB 416 at 427, namely that the judgment for the specific amount of US dollars or the Australian equivalent at the time of payment or execution cf Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135. As regards the balance, the conversion should be determined on the rates existing when each debt fell due ( Stroms Bruks Aktie Bolog v Hutchison [1905] AC 515 ; The Arpad [1934] P 189) , which I will take to be the day on which the relevant invoice was sent.
Case: State of New South Wales v Swiss Bank Corporation (2001) 39 NSWLR 350
Outcome: cited
to interest, the rule appears to be that as regards the judgment in the foreign currency, interest should be calculated at the rate applicable for that foreign currency. In Miliangos v George Frank (Textiles) Ltd (No 2) [1977] QB 489 at 497 Bristow J held that the plaintiff, who obtained judgment in Swiss francs, was entitled to interest at a rate at which someone could reasonably have borrowed Swiss francs in Switzerland at simple interest. The same approach has been adopted by Australian courts: see eg Maschinenfabrik Augsburg-Nurenburg AG v Altikar Pty Ltd (1984) 3 NSWLR 152 ; Swiss Bank Corporation v State Bank of New South Wales (1993) 33 NSWLR 63 affirmed on appeal State of New South Wales v Swiss Bank Corporation (2001) 39 NSWLR 350. In Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Limited [1998] VSC 135 , Byrne J applied the US prime borrowing rate in respect of a judgment in US dollars. This decision was reversed on appeal, but on other grounds: Neuchatel Swiss General Insurance Co v Vlasons Shipping Inc [2001] VSCA 25. I would also apply that rate calculated on a monthly basis. In the case of judgment for damages to be entered in Australian dollars, the practice is to adopt the rate prevailing in the Supreme Court of the State or Territory in which the Federal Court is sitting: Namol Pty Ltd v AW Baulderstone Pty Ltd (No 2) [1993] FCA 606 ; (1993) 47 FCR 388 at 389.
Case: State of Victoria v Hovarth [2003] VSCA 24
Outcome: cited
last contentious matter is BHPB's application for a Bullock or Sanderson order so that Cosco will bear the costs of the successful respondent, Seawise. Such orders may be justified where the applicant has reasonably and properly incurred the cost of joining the successful defendant to establish his claim and it is just that the unsuccessful respondent should bear the costs of the joinder: see generally Gould v Vaggelas (1985) 157 CLR 215 at pp 230, 247, 260; Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179 at [127] - [136] ; State of Victoria v Hovarth [2003] VSCA 24. It will be just to make a Bullock or Sanderson order if the conduct of the unsuccessful respondent has rendered it appropriate to shift the incidents of the successful respondent's costs. That is the position here. BHPB was justified in joining Seawise after Cosco filed a defence denying responsibility for BHPB's losses and laying the blame at the feet of Seawise. That made it inevitable that BHPB would join Seawise and it is equally inevitable that Cosco should bear Seawise's costs.
Case: Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179
Outcome: cited
last contentious matter is BHPB's application for a Bullock or Sanderson order so that Cosco will bear the costs of the successful respondent, Seawise. Such orders may be justified where the applicant has reasonably and properly incurred the cost of joining the successful defendant to establish his claim and it is just that the unsuccessful respondent should bear the costs of the joinder: see generally Gould v Vaggelas (1985) 157 CLR 215 at pp 230, 247, 260; Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179 at [127] - [136] ; State of Victoria v Hovarth [2003] VSCA 24. It will be just to make a Bullock or Sanderson order if the conduct of the unsuccessful respondent has rendered it appropriate to shift the incidents of the successful respondent's costs. That is the position here. BHPB was justified in joining Seawise after Cosco filed a defence denying responsibility for BHPB's losses and laying the blame at the feet of Seawise. That made it inevitable that BHPB would join Seawise and it is equally inevitable that Cosco should bear Seawise's costs.
Case: Stroms Bruks Aktie Bolog v Hutchison [1905] AC 515
Outcome: cited
this state of affairs BHPB should have judgment for the unpaid hire and ballast bonus in US dollars and the balance of its claim in Australian dollars. As to the US dollar portion, the order should follow the form suggested in Schorsch Meier GmbH v Hennin [1975] QB 416 at 427, namely that the judgment for the specific amount of US dollars or the Australian equivalent at the time of payment or execution cf Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135. As regards the balance, the conversion should be determined on the rates existing when each debt fell due ( Stroms Bruks Aktie Bolog v Hutchison [1905] AC 515 ; The Arpad [1934] P 189) , which I will take to be the day on which the relevant invoice was sent.
Case: Swiss Bank Corporation v State Bank of New South Wales (1993) 33 NSWLR 63
Outcome: cited
to interest, the rule appears to be that as regards the judgment in the foreign currency, interest should be calculated at the rate applicable for that foreign currency. In Miliangos v George Frank (Textiles) Ltd (No 2) [1977] QB 489 at 497 Bristow J held that the plaintiff, who obtained judgment in Swiss francs, was entitled to interest at a rate at which someone could reasonably have borrowed Swiss francs in Switzerland at simple interest. The same approach has been adopted by Australian courts: see eg Maschinenfabrik Augsburg-Nurenburg AG v Altikar Pty Ltd (1984) 3 NSWLR 152 ; Swiss Bank Corporation v State Bank of New South Wales (1993) 33 NSWLR 63 affirmed on appeal State of New South Wales v Swiss Bank Corporation (2001) 39 NSWLR 350. In Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Limited [1998] VSC 135 , Byrne J applied the US prime borrowing rate in respect of a judgment in US dollars. This decision was reversed on appeal, but on other grounds: Neuchatel Swiss General Insurance Co v Vlasons Shipping Inc [2001] VSCA 25. I would also apply that rate calculated on a monthly basis. In the case of judgment for damages to be entered in Australian dollars, the practice is to adopt the rate prevailing in the Supreme Court of the State or Territory in which the Federal Court is sitting: Namol Pty Ltd v AW Baulderstone Pty Ltd (No 2) [1993] FCA 606 ; (1993) 47 FCR 388 at 389.
Case: The Arpad [1934] P 189
Outcome: cited
this state of affairs BHPB should have judgment for the unpaid hire and ballast bonus in US dollars and the balance of its claim in Australian dollars. As to the US dollar portion, the order should follow the form suggested in Schorsch Meier GmbH v Hennin [1975] QB 416 at 427, namely that the judgment for the specific amount of US dollars or the Australian equivalent at the time of payment or execution cf Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135. As regards the balance, the conversion should be determined on the rates existing when each debt fell due ( Stroms Bruks Aktie Bolog v Hutchison [1905] AC 515 ; The Arpad [1934] P 189) , which I will take to be the day on which the relevant invoice was sent.
Case: The Despina R [1979] AC 685
Outcome: cited
one time it was clear that an Australian court could only enter judgment in Australian currency: In re United Railways of Havana and Regla Warehouses Ltd [1961] AC 1007 at 1068-1069. That is no longer the law. In some cases at least, a judgment can be given in a foreign currency. In Miliangos v George Frank (Textiles) Ltd [1976] AC 443 the House of Lords held that where a contract provides for a monetary obligation to be paid in foreign currency, the judgment ought be given in that currency. It is now also established that judgment can be given in foreign currency for damages in tort ( The Despina R [1979] AC 685) and for breach of contract ( Jean Kraut A.G v Albany Fabrics [1977] QB 182 ; The Folias [1979] AC 685 , 699). Miliangos has been followed in Australia: see eg Mitsui OSK Lines Ltd v The Ship Mineral Transporter [1983] 2 NSWLR 564 in New South Wales; ANZ Banking Group Ltd v Cawood [1987] 1 Qd R 131 in Queensland; Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135 in Victoria; and Westpac Banking Corp v MV 'Stone Gemini' [1999] FCA 917 in the Federal Court. In breach of contract cases, the question is whether, expressly or by implication, the contract specifies in what currency payment for all obligations under the contract should be made: The Folias [1979] AC 685 , 699 at 700. That the contract requires some payments to be made in a particular currency does not lead to the conclusion that damages must be paid in the same currency. If the contract is silent the plaintiff should be compensated for losses in the currency which most truly expresses his loss: The Folias [1979] AC 685 , 699 at 701. So, for example, where damages consist of expenses incurred in the currency of the contract, the award should be made in that currency: Federal Commerce and Navigation Co Ltd v Tradax Export SA (The Martha Envoy) [1977] QB 324. If, on the other hand, the expenditure is incurred in another currency and in order to meet it the plaintiff uses his own currency, then the award should be made in the plaintiff's own currency: The Folias [1979] AC 685 , 699 at 702.
Case: The Folias [1979] AC 685 , 699
Outcome: considered
one time it was clear that an Australian court could only enter judgment in Australian currency: In re United Railways of Havana and Regla Warehouses Ltd [1961] AC 1007 at 1068-1069. That is no longer the law. In some cases at least, a judgment can be given in a foreign currency. In Miliangos v George Frank (Textiles) Ltd [1976] AC 443 the House of Lords held that where a contract provides for a monetary obligation to be paid in foreign currency, the judgment ought be given in that currency. It is now also established that judgment can be given in foreign currency for damages in tort ( The Despina R [1979] AC 685) and for breach of contract ( Jean Kraut A.G v Albany Fabrics [1977] QB 182 ; The Folias [1979] AC 685 , 699). Miliangos has been followed in Australia: see eg Mitsui OSK Lines Ltd v The Ship Mineral Transporter [1983] 2 NSWLR 564 in New South Wales; ANZ Banking Group Ltd v Cawood [1987] 1 Qd R 131 in Queensland; Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135 in Victoria; and Westpac Banking Corp v MV 'Stone Gemini' [1999] FCA 917 in the Federal Court. In breach of contract cases, the question is whether, expressly or by implication, the contract specifies in what currency payment for all obligations under the contract should be made: The Folias [1979] AC 685 , 699 at 700. That the contract requires some payments to be made in a particular currency does not lead to the conclusion that damages must be paid in the same currency. If the contract is silent the plaintiff should be compensated for losses in the currency which most truly expresses his loss: The Folias [1979] AC 685 , 699 at 701. So, for example, where damages consist of expenses incurred in the currency of the contract, the award should be made in that currency: Federal Commerce and Navigation Co Ltd v Tradax Export SA (The Martha Envoy) [1977] QB 324. If, on the other hand, the expenditure is incurred in another currency and in order to meet it the plaintiff uses his own currency, then the award should be made in the plaintiff's own currency: The Folias [1979] AC 685 , 699 at 702.
Case: Westpac Banking Corp v MV 'Stone Gemini' [1999] FCA 917
Outcome: cited
one time it was clear that an Australian court could only enter judgment in Australian currency: In re United Railways of Havana and Regla Warehouses Ltd [1961] AC 1007 at 1068-1069. That is no longer the law. In some cases at least, a judgment can be given in a foreign currency. In Miliangos v George Frank (Textiles) Ltd [1976] AC 443 the House of Lords held that where a contract provides for a monetary obligation to be paid in foreign currency, the judgment ought be given in that currency. It is now also established that judgment can be given in foreign currency for damages in tort ( The Despina R [1979] AC 685) and for breach of contract ( Jean Kraut A.G v Albany Fabrics [1977] QB 182 ; The Folias [1979] AC 685 , 699). Miliangos has been followed in Australia: see eg Mitsui OSK Lines Ltd v The Ship Mineral Transporter [1983] 2 NSWLR 564 in New South Wales; ANZ Banking Group Ltd v Cawood [1987] 1 Qd R 131 in Queensland; Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135 in Victoria; and Westpac Banking Corp v MV 'Stone Gemini' [1999] FCA 917 in the Federal Court.
Case: SZDWB v Minister for Immigration &amp; Citizenship [2007] FMCA 1522
Outcome: considered
Federal Magistrate Nicholls dismissed the application for review ( SZDWB v Minister for Immigration &amp; Citizenship [2007] FMCA 1522). In dealing with the grounds of review and the matters raised in argument, his Honour considered that the Tribunal gave sufficient reasons for its conclusion (at [17]). His Honour also considered that the Tribunal's finding that the appellant's political profile was not such as to engage protection obligations pursuant to the Convention was open to the Tribunal on the material before it (at [24]). His Honour also concluded that the distinction drawn by the Tribunal between a high profile political member of the Awami League and an "ordinary member" was not a distinction applicable to the relevant test under s 91R of the Act but a distinction drawn from the factual circumstances of the appellant (at [52]). To the extent that the appellant took issue with that finding of fact, his Honour found that it amounted to impermissible merit review which does not found jurisdictional error. 7 As to an alleged breach of s 424A of the Act, while noting that the Tribunal had not been obliged to put the information in the 6 June letter to the appellant, Nicholls FM found that the Tribunal had plainly had regard to the information and the appellant's response to it (at [55]-[56]). 8 In this appeal, the appellant appeared in person assisted by an interpreter. He provided submissions in writing that addressed each of the grounds in his notice of appeal. He also emphasised in his oral submissions that his claim was that he was a high office holder in the Awami League and had been targeted on that basis.
Case: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 
Outcome: followed
Mr Bromwich relied upon Philip Morris (Australia) Ltd v Nixon [1999] FCA 1281. In that case, a Full Court of this Court held at [17]: The general principles governing an application for a stay pending the determination of an appeal or application for leave to appeal are not in doubt. The party seeking a stay must demonstrate a reason, or an appropriate case, to warrant the exercise of a discretion in his or her favour. This requirement is not satisfied by the mere filing of an appeal or an application for leave to appeal: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 (CA), at 694. The Court has a discretion whether or not to grant the stay, and if so, as to the terms that will be fair. In the exercise of the Court's discretion, it weighs consideration such as the balance of convenience and the competing rights of the parties, in particular whether prejudice will be caused by reason of the grant or withholding of a stay: Alexander, at 694; Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84 ; (1986) 161 CLR 681 (Brennan J), at 685. Within this framework, the Court exercises a broad discretion, and the party seeking a stay does not have to establish "special" circumstances: Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 (FC), at 66, per Burchett J. In general, a party which has succeeded at the trial is entitled to the benefit of a judgment and thus to commence with the presumption that the judgment is correct: Powerflex, at 66. The question on the present application is how these principles apply to the unusual circumstances of the present case. 47 Mr Bromwich also placed reliance upon Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 in support of two particular submissions made by him as follows: (a) a stay will be granted if, unless it is granted, the appeal will be nugatory there is no basis for that conclusion in this case; (b) although courts will not generally speculate about the appellant's prospects of success, this does not prevent some preliminary assessment about whether the applicant for the stay has an arguable case, a consideration which is protective of the judgment creditor where it may be plain that an appeal has been lodged without any real prospect of success and simply in the hope that of gaining a respite against immediate execution upon judgment. Mr Bromwich submitted that the appellants had poor prospects of success on appeal. 48 Mr Bromwich also directed some attention to the financial position of APIR. He submitted that the financial position of APIR was not such as to give confidence that it was going to be, or remain, in a position to meet the requirements of his Honour's orders. 49 There did not appear to be much dispute between the parties as to the principles which govern the present case. 50 Order 52 r 17 provides a specific basis upon which a stay pending appeal may be granted.
Case: Philip Morris (Australia) Ltd v Nixon [1999] FCA 1281
Outcome: followed
Mr Bromwich relied upon Philip Morris (Australia) Ltd v Nixon [1999] FCA 1281. In that case, a Full Court of this Court held at [17]: The general principles governing an application for a stay pending the determination of an appeal or application for leave to appeal are not in doubt. The party seeking a stay must demonstrate a reason, or an appropriate case, to warrant the exercise of a discretion in his or her favour. This requirement is not satisfied by the mere filing of an appeal or an application for leave to appeal: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 (CA), at 694. The Court has a discretion whether or not to grant the stay, and if so, as to the terms that will be fair. In the exercise of the Court's discretion, it weighs consideration such as the balance of convenience and the competing rights of the parties, in particular whether prejudice will be caused by reason of the grant or withholding of a stay: Alexander, at 694; Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84 ; (1986) 161 CLR 681 (Brennan J), at 685. Within this framework, the Court exercises a broad discretion, and the party seeking a stay does not have to establish "special" circumstances: Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 (FC), at 66, per Burchett J. In general, a party which has succeeded at the trial is entitled to the benefit of a judgment and thus to commence with the presumption that the judgment is correct: Powerflex, at 66. The question on the present application is how these principles apply to the unusual circumstances of the present case.
Case: Australian Prudential Regulation Authority v Rural &amp; General Insurance Ltd [2004] FCA 185 ; (2004) 136 FCR 149
Outcome: followed
impact, in part, of a requirement for leave notwithstanding, it remains the case that the Court at least has before it an application brought as of right for the winding up of the company on the just and equitable ground. Irrespective of the ground upon which it is brought, s 440D does not give rise to any separate requirement for a grant of leave to ASIC in order for it to bring the application: Australian Prudential Regulation Authority v Rural &amp; General Insurance Ltd [2004] FCA 185 ; (2004) 136 FCR 149. That being so, the first issue which necessarily arises is whether ASIC's winding up application should be adjourned? Should the winding up application be adjourned? Subsection 440A(2) of the Act provides: (2) The Court is to adjourn the hearing of an application for an order to wind up a company if the company is under administration and the Court is satisfied that it is in the interests of the company's creditors for the company to continue under administration rather than be wound up. It was common ground that it fell to those who opposed the hearing of the winding up application to satisfy the Court that it is in the interests of Storm Financial's creditors for it to continue under administration rather than be wound up. If that satisfaction is engendered, the language of s 440A(2) dictates that the Court must adjourn the winding up application. The converse does not automatically follow. The Court would possess a discretion nonetheless to adjourn the winding up application.
Case: Australian Securities and Investments Commission v International Unity Insurance Pty Ltd [2004] FCA 1059 ; (2004) 22 ACLC 1416
Outcome: followed
Australian Securities Commission v AS Nominees Ltd [1995] FCA 1663 ; (1995) 62 FCR 504 at 531-532 Finn J highlighted that, at the behest of a public official or agency, the public interest might warrant the winding up of a company on the just and equitable ground; a proposition later accepted by Lander J in Australian Securities and Investments Commission v International Unity Insurance Pty Ltd [2004] FCA 1059 ; (2004) 22 ACLC 1416 at [135] . I, too, accept this proposition. Its correctness seems to me to follow inexorably from the standing granted to ASIC in the circumstances described in s 462(2)(e) and s 464(1). There will be occasions and this is one where, in the course of an investigation, matters come to the attention of ASIC that motivate it to seek the winding up of a company on the just and equitable ground because it is in the public interest and perhaps also on other grounds, notably, insolvency. As noted, the latter requires a grant of leave to ASIC but the conditions for that are met. I grant leave.