mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304
Outcome: followed
other cases too the view has been taken that provided the individual behind the corporate litigant or the trust of which the corporate litigant is trustee assumes liability for the costs, the purpose of the statutory provision is served: see Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304 at 306 (Byrne J); Gentry Bros Pty Ltd v Wilson Brown &amp; Associates Pty Ltd (1992) 8 ACSR 405 at 415 (Cooper J) ( Gentry Bros ) and Clyde Industries Ltd v Ryad Engineering Pty Ltd (1993) 11 ACLC 325 at 328 (WASCFC) ( Clyde Industries ). In Gentry Bros Cooper J said that the making of an order which secures the personal liability of the shareholders "is in itself the provision of security" (at 415). In Erolen v Baulkham Hills Shire Council (1993) 10 ACSR 441 Powell J disagreed with the views expressed by Byrne J in Mantaray and by Cooper J in Gentry Bros to the effect that once the shareholders had agreed to accept personal liability for any judgment for costs, the statutory purpose of s 1335 was fulfilled. His Honour considered (at 456) that that approach would be "a fetter" on the Court's discretion. The respondents rely on KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 ( KP Cable ) and Avspares Pty Ltd v Skywest Aviation Pty Ltd (1997) 24 ACSR 272 ( Avspare s). In KP Cable , Beazley J, when a judge of this Court, reviewed the authorities, expressed disagreement with Powell J, and noted her concurrence with what was said by Byrne J in Mantaray and by Cooper J in Gentry Bros . Her Honour did so on the basis that all that was being said in those two cases was that "the offer of security by way of a guarantee from the directors or shareholders or other persons interested in the outcome of the litigation was a factor, which could be decisive in a given case, to be considered in determining whether any other form of order for security for costs should be made" (at 204). Beazley J concluded that the question for her to decide was whether the respondents should be deprived of the provision of security such as cash or a charge over assets merely because such an offer had been made. She thought that they should not be, noting that one of the individuals concerned had rugs and antiques which that individual valued at $30,000 and which were not necessary for the individual's daily living needs or for the purposes of her earning a living. Her Honour observed that there was no reason why they should not be charged to the extent of the security that her Honour proposed to order.
Case: Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364
Outcome: referred to
Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 366 Rogers J fixed on an undertaking to the Court that the individual would make himself personally liable to indemnify the plaintiff in respect of any order for costs in favour of the defendant up to a stipulated sum.
Case: Oz B and S Pty Ltd v Elders IXL Ltd [1993] FCA 371 ; (1993) 117 ALR 128
Outcome: cited
Court has power to order a non-party to pay costs under a general provision of the kind found in s 43 of the FCA Act: see Knight v F.P. Special Assets Limited [1992] HCA 28 ; (1992) 174 CLR 178. Such an order was made in Oz B and S Pty Ltd v Elders IXL Ltd [1993] FCA 371 ; (1993) 117 ALR 128 , but there were special circumstances in that case. As far as I am aware, there would be no proper basis on which to make such an order against Mr Fitzsimons in the present case, in the absence of a submission to such an order by him.
Case: Pearson v Naydler [1977] 1 WLR 899
Outcome: cited
seems to follow from the dictum of Connolly J that if the present respondents can be placed in a position in which they will enjoy the same remedies against Mr Fitzsimons in respect of costs as they would if he were the applicant instead of Instyle, the object of s 1335(1) of the Corporations Act would be achieved and Mr Fitzsimons's own worth would be "not really relevant". The basis of this approach is the proposition that the impecuniosity of an individual is not a ground on which to order him or her to give security for costs: see Cowell v Taylor (1885) 31 ChD 34 at 38; Pearson v Naydler [1977] 1 WLR 899 at 902; Barton v Minister for Foreign Affairs [1984] FCA 89 ; (1984) 2 FCR 463 at 469.
Case: Prime Forme Cutting Pty Ltd v Baltica General Insurance Co (1990) 8 ACLC 29
Outcome: followed
J reviewed the authorities. There was an inconsistency of approach between that taken by Ormiston J in Irwin Alsop Services v Mercantile Mutual Insurance Co Ltd [1986] VR 61 ( Irwin ) and that taken by Brooking J in Prime Forme Cutting Pty Ltd v Baltica General Insurance Co (1990) 8 ACLC 29 ( Prime Forme ). In Irwin, the defendants were two pools of insurers. Ormiston J had described them (at p 65) as "pre-eminently loss-bearing and loss-sharing entities, whose raison d'&ecirc;tre is their ability to shoulder the losses of others albeit on a commercial basis". His Honour expressed the opinion (at p 66) that "it is not ordinarily appropriate to grant security for costs in favour of an insurer defendant, certainly where the existence of a relevant policy is not in dispute". In Prime Forme, Brooking J disagreed, saying that the fact that the party seeking security had substantial means or was liable to be sued because of its business or profession was irrelevant. His Honour considered (at p 32) that s 533(1) of the Companies (Victoria) Code (a predecessor of s 1335(1) of the Corporations Act ) should not be viewed as a provision designed to protect those unable to protect and cover themselves against the costs of litigation. Rather, his Honour thought that the provision was designed to protect defendants sued by insolvent companies against the risk that an order for costs in favour of the defendants would prove fruitless. A solicitor who had the benefit of professional indemnity insurance sought security in Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377 ( Livingspring ). The plaintiff urged the court to take the insurance into account. Maxwell P and Buchanan JA stated: [67] We can see no reason in principle why an insured defendant should be in any different position from an uninsured defendant for this purpose. Let it be assumed that the insurer has agreed to indemnify the defendant against the plaintiff's claims. The insurer should be regarded as having exactly the same entitlement as the insured defendant to protection against the risk that the plaintiff will be unable to meet an adverse costs order (cf [ Prime Forme at p 32]). [68] On this view, the fact that a defendant is insured is irrelevant to an application for security for costs. If, as [the plaintiff] argued, the judge had in fact been expressing that view, there would have been no error in doing so.
Case: Remm Construction (SA) Pty Ltd v Wallbridge and Gilbert Pty Ltd (1991) 162 LSJS 99; [1991] SASC 3090
Outcome: followed
relies on Remm Construction (SA) Pty Ltd v Wallbridge and Gilbert Pty Ltd (1991) 162 LSJS 99; [1991] SASC 3090 ( Remm) . In that case the relevant defendants were engineers. They had professional indemnity insurance, or at least the application for security before the Master proceeded on the assumption that they did with respect to the causes of action pleaded against them. The Master nonetheless ordered the plaintiff to provide a security. The plaintiff appealed. In Remm, Mullighan J (at p 111) accepted the views of Brooking J as "stating the current position", although he distinguished Irwin as a case in which the insurer was the defendant and in any event said that a close reading of Ormiston J's reasons in that case showed that his Honour had not regarded the presence of insurance as determinative against the ordering of security. The decision of Mullighan J in Remm does not support Instyle's argument and is in fact against it.
Case: Corporate Affairs Commission v ASC Timber Pty Ltd (1998) 16 ACLC 1,642
Outcome: cited
Section 477(2B) was enacted by the Corporate Law Reform Act 1992 (Cth) as a result of a recommendation of the Law Reform Commission in its General Insolvency Inquiry, Report No 45, 1988, known as the Harmer Report. That report proposed the removal of restrictions requiring approvals to be obtained from the Court on various matters by liquidators and trustees in bankruptcy. It also proposed, that restrictions requiring prior approvals should be placed on, inter alia, "the power to enter into long term commitments such as the mortgaging or leasing of property of the insolvent" (Report Vol 1, [608]). That purpose was reflected in the Explanatory Memorandum for the 1992 Bill and led Austin J to conclude in Corporate Affairs Commission v ASC Timber Pty Ltd (1998) 16 ACLC 1,642 (at 1,649): It appears, therefore, that the purpose of s 477(2B) is, in the Harmer Report's words, to restrict the unfettered exercise of powers which may not be conducive to an expeditious and beneficial administration. That suggests that the role of the court, the committee of inspection or the creditors (as the case may be) is to review the liquidator's proposal by reference to those criteria. The role of the approving body, at any rate where that body is a court, is to grant or deny approval to the liquidator's proposal rather than to develop some alternative proposal which might seem to be preferable.
Case: Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612
Outcome: cited
The general power of the Court to give directions to a liquidator under s 479(3) of the Act will, in my opinion, also allow the Court to approve the liquidator proceeding under an agreement made without the requisite prior approval under s 477(2B). Further, and equivalent to the inherent jurisdiction of the State Supreme Courts, relied upon in Empire (Aust) Nominees Pty Ltd 18 ACLC 738, is the implied incidental power of this Court to make orders which are necessarily incidental to its express powers. In Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612, Deane J (Mason CJ, agreeing) quoted with approval the statement by Bowen CJ in the Full Court of the Federal Court, under appeal (at 623-624): In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words 'inherent jurisdiction'. Nevertheless, a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred.
Case: Re Aslor Pty Ltd (1997) 15 ACLC 1,412
Outcome: cited
In the light of the Harmer Report and Young J's observations, Austin J characterised the court's approval under s 477(2B) thus (at 1,650): ... the court's approval is not an endorsement of the proposed agreement but is merely a permission for the liquidator to exercise his or her own commercial judgment in the matter. His Honour also approved the application to the exercise of the discretion under s 477(2B) of principles adopted by Mandie J in Re Aslor Pty Ltd (1997) 15 ACLC 1,412. That case concerned an agreement of more than three months duration involving compromise of a claim against the company. Mandie J followed principles applicable to the approval of compromises enunciated by Giles J in Re Spedley Securities Ltd (in liq) (1992) 10 ACLC 1,742. On those principles the Court does not rubber stamp the liquidator's proposal. Nevertheless it will not generally interfere unless there is some want of good faith, error of law or principle, or real and substantial grounds for doubting the prudence of the liquidator's proposal. While the principles so adopted by Mandie J and approved by Austin J related to approval of compromises, they seem to me to have wider application to the exercise of the discretion generally under s 477(2B).
Case: Re Associated Travel, Leisure &amp; Services Ltd [1978] 1 WLR 547
Outcome: cited
In Empire (Aust) Nominees Pty Ltd v Vince (2000) 18 ACLC 738, the liquidators of the company had entered into an agreement with a litigation funder which should have had prior approval under s 477(2B). The failure to obtain approval was innocent and based upon ignorance and oversight. Warren J said (at [14]): I adopt a similar view to that expressed by Templeman J in Re Associated Travel [ Leisure and Services Ltd (In Liquidation) [1978] 1 WLR 547] that either under the statute, in this case s 479(3) of the Law or pursuant to the inherent jurisdiction of the court approval may be granted as sought by the liquidator in the present matter. Her Honour went on to refer to s 1322(4)(a) and added (at [15]): I note, further, that s 1322(4)(d) of the Law empowers the court to order an extension of the period for doing any act, matter or thing under the Law, including an order extending a period where the period concerned ended before the application for the order was made and that the court may make such consequential or ancillary orders as it thinks fit. 37 Re Associated Travel, Leisure &amp; Services Ltd [1978] 1 WLR 547 was a case in which a liquidator appointed solicitors without the prior sanction of the court or a committee of inspection as required by s 245(1) of the Companies Act 1948 (UK). In retrospectively approving the appointment, Templeman J relied upon s 246(3) of that Act to give directions to the liquidator. In the alternative he relied upon the "inherent powers" of the court. In Re HIH Insurance Group Ltd [2000] NSWCA 374 ; (2001) 19 ACLC 1,102, Hamilton J relied upon Re Associated Travel 1 WLR 547 and Empire (Aust) Nominees Pty Ltd 18 ACLC 738 for the proposition that an approval under s 477(2B) could be "given by the court retrospectively" (at [6]).
Case: Re GA Listing &amp; Maintenance Pty Ltd (1994) 15 ACSR 308
Outcome: cited
Austin J quoted with approval the observations of Young J in Re GA Listing &amp; Maintenance Pty Ltd (1994) 15 ACSR 308 at 311 (at 1,650): If the court can see that the transaction that is to enure past three months is really for the proper realization of the assets of the company or assists its winding up, then the leave should be granted. In view of the general attitude in the Harmer Report that, subject to the particular fetters spelt out in the legislation, liquidators should be given fairly free rein to conduct the winding up. The court's duty is to see that despite the prolongation of the leading the horse home process, the transaction is in the interests of the company, the creditors and the community. 45 In the light of the Harmer Report and Young J's observations, Austin J characterised the court's approval under s 477(2B) thus (at 1,650): ... the court's approval is not an endorsement of the proposed agreement but is merely a permission for the liquidator to exercise his or her own commercial judgment in the matter. His Honour also approved the application to the exercise of the discretion under s 477(2B) of principles adopted by Mandie J in Re Aslor Pty Ltd (1997) 15 ACLC 1,412. That case concerned an agreement of more than three months duration involving compromise of a claim against the company. Mandie J followed principles applicable to the approval of compromises enunciated by Giles J in Re Spedley Securities Ltd (in liq) (1992) 10 ACLC 1,742. On those principles the Court does not rubber stamp the liquidator's proposal. Nevertheless it will not generally interfere unless there is some want of good faith, error of law or principle, or real and substantial grounds for doubting the prudence of the liquidator's proposal. While the principles so adopted by Mandie J and approved by Austin J related to approval of compromises, they seem to me to have wider application to the exercise of the discretion generally under s 477(2B).
Case: Re HIH Insurance Group Ltd [2000] NSWCA 374 ; (2001) 19 ACLC 1
Outcome: cited
Re Associated Travel, Leisure &amp; Services Ltd [1978] 1 WLR 547 was a case in which a liquidator appointed solicitors without the prior sanction of the court or a committee of inspection as required by s 245(1) of the Companies Act 1948 (UK). In retrospectively approving the appointment, Templeman J relied upon s 246(3) of that Act to give directions to the liquidator. In the alternative he relied upon the "inherent powers" of the court. In Re HIH Insurance Group Ltd [2000] NSWCA 374 ; (2001) 19 ACLC 1,102, Hamilton J relied upon Re Associated Travel 1 WLR 547 and Empire (Aust) Nominees Pty Ltd 18 ACLC 738 for the proposition that an approval under s 477(2B) could be "given by the court retrospectively" (at [6]).
Case: Re Spedley Securities Ltd (In liq) (1992) 10 ACLC 1,742
Outcome: cited
In the light of the Harmer Report and Young J's observations, Austin J characterised the court's approval under s 477(2B) thus (at 1,650): ... the court's approval is not an endorsement of the proposed agreement but is merely a permission for the liquidator to exercise his or her own commercial judgment in the matter. His Honour also approved the application to the exercise of the discretion under s 477(2B) of principles adopted by Mandie J in Re Aslor Pty Ltd (1997) 15 ACLC 1,412. That case concerned an agreement of more than three months duration involving compromise of a claim against the company. Mandie J followed principles applicable to the approval of compromises enunciated by Giles J in Re Spedley Securities Ltd (in liq) (1992) 10 ACLC 1,742. On those principles the Court does not rubber stamp the liquidator's proposal. Nevertheless it will not generally interfere unless there is some want of good faith, error of law or principle, or real and substantial grounds for doubting the prudence of the liquidator's proposal. While the principles so adopted by Mandie J and approved by Austin J related to approval of compromises, they seem to me to have wider application to the exercise of the discretion generally under s 477(2B).
Case: Dranichnikov v Minister for Immigration [2003] HCA 26 ; (2002) 77 ALJR 1088
Outcome: cited
The appellant claims to fear both violence and extortion causing hardship, by reason of her opposition to extortion. It may be that she also fears further extortion because of the relatively favourable financial position of her and her husband. It is arguable that a social group may be defined by its members' possession of wealth and/or by their having spoken out against extortion. See Dranichnikov v Minister for Immigration [2003] HCA 26 ; (2002) 77 ALJR 1088. 14 Under the heading 'Findings and Reasons' the Tribunal summarized the appellant's case as follows: 'Essentially, the (appellant) claims refugee protection on the basis of actual and imputed political opinion, arising from her opposition to the MILF's imposition of a "revolutionary taxes" on her and her family.' 15 In this passage the Tribunal recognized the appellant's claim to fear persecution by reason of her opposition to extortion. It is not clear that it recognizes that she claimed to fear both violence and financial hardship. The statement also says nothing about persecution based on her membership of a class comprising persons who are relatively wealthy and/or who have spoken out against extortion.
Case: Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101
Outcome: referred to
Reference may also be made to the observations, to the same effect, by Gyles J in Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101 at [68] . See also the review of the authorities by Allsop J in DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384 ; and Lombe v Pollak [2004] FCA 264 at [30] [33] dealing with the common law test. 46 The tender of Exhibit JL1 cannot be said to have been to deploy the substance of legal advice for forensic or commercial purposes so as to reveal an implied inconsistency with the maintenance of confidentiality; Bennett at [68]. 47 I accept Mr Johnson's submission that it is extraordinary that both solicitors and counsel for Mr Boensch failed to make any or any adequate enquiry as to the extent of the materials contained in Exhibit JL1. Some criticism may flow from that. But it does not preclude a finding of inadvertence. 48 I do not accept Mr Johnson's submission that the documents in Exhibit JL1 were delivered without qualification as to their status. The qualification was stated in [50] of the statement to which the Exhibit was attached. Although no evidence was put before his Honour to explain the mistake, the circumstances make it plain that error and inadvertence were revealed. 49 I will make orders 1, 3 and 4 sought in the notice of appeal filed on 13 February 2007. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 16 April 2007 Counsel for the Appellant: N Perram SC with MJ Heath Solicitor for the Appellant: Wright Pavuk Lawyers Counsel for the Respondent: JT Johnson Solicitor for the Respondent: McLean &amp; Associates Date of Hearing: 6 February 2007 Date of Judgment: 16 April 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/532.html
Case: DES (Holdings) Pty Limited v Intertan Inc [2003] FCA 384
Outcome: referred to
Reference may also be made to the observations, to the same effect, by Gyles J in Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101 at [68] . See also the review of the authorities by Allsop J in DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384 ; and Lombe v Pollak [2004] FCA 264 at [30] [33] dealing with the common law test.
Case: Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538
Outcome: referred to
Of course, "a mere plea" of inadvertence may not by itself necessarily enable a party to avoid a waiver of privilege; Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538 at 542-543. Thus, the Court must be satisfied on the material before it that the act was in truth inadvertent. 40 In the present case, inadvertence is established by the fact that even when cross-examined on the documents, Mr Leong did not realise that the documents in Exhibit JL1 included the Extra Documents. 41 It was only when Mr Heath realised what had happened that he drew his Honour's attention to the apparent inadvertence. This is clear, in my view from the passages of the transcript that I have reproduced above. 42 It is true that in the last passage of the transcript that I have reproduced at [27], Mr Heath said that no issue of inadvertence arose. However, this was because, as Mr Heath correctly observed, the amended application before his Honour dealt only with the question of whether privilege could be maintained over Exhibit SDP6. 43 With due respect to his Honour, whose judgment was given ex tempore , an examination of the transcript shows that Mr Heath did not eschew inadvertence in relation to the maintenance of the claim over the Extra Documents. 44 Of course, I do not criticise his Honour for delivering ex tempore reasons. It is merely that a full reading of the transcript puts in context the last passage of Counsel's remarks on the issue of inadvertence. 45 In any event, I would add that it is difficult to see how the tender of Exhibit JL1 was inconsistent with the maintenance of confidentiality. It was tendered on an application to claim privilege and it was tendered with the express proviso in [50] of Mr Leong's statement that he did not intend to disclose confidential communications to which privilege may attach.
Case: Lombe v Pollack [2004] FCA 264
Outcome: referred to
Reference may also be made to the observations, to the same effect, by Gyles J in Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101 at [68] . See also the review of the authorities by Allsop J in DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384 ; and Lombe v Pollak [2004] FCA 264 at [30] [33] dealing with the common law test.