mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cook's Construction Proprietary Limited v Stork Food Systems Australasia Pty Ltd [2008] QCA 322
Outcome: cited
In exercising the discretion to grant a stay or fashion the particular terms of intervention, the Court would ordinarily only impede the enforcement of its orders pending appeal so far as is necessary to ensure that orders which might ultimately be made by the Court on appeal can be given effect without leaving residual injustice in the hands of the party ultimately successful, as a residue of the first instance orders being performed, absent a stay. That is why the Court gives particular attention to whether an appeal might be rendered nugatory by the refusal of a stay and whether an appellant would be irremediably prejudiced if the stay were not granted yet its appeal ultimately upheld ( Cook's Construction Proprietary Limited v Stork Food Systems Australasia Pty Ltd [2008] QCA 322). The risk that an appeal may be nugatory must be balanced against the risk of prejudice to the party who succeeded at first instance if execution of the judgment is stayed ( Sevenhill Holdings Pty Ltd v Musovic per French J). On the question of a nugatory appeal, the Queensland Court of Appeal (Keane JA; McMurdo P and White AJA agreeing) in Cook's Construction v Stork Food Systems considered that even if the refusal of a stay were, in the circumstances of that case, to lead to the receivership or liquidation of the appellant, substantive rights could nevertheless be pursued by the receiver or the liquidator.
Case: Hurren v Hurren [1971] VR 459
Outcome: considered
is also to ignore that each is governed by the verb "confined" and the preposition "in". The Tribunal looked (at para 16) to the definition of confine when used as a verb in the Australian Concise Oxford Dictionary. That meaning is, if anything, even clearer in the main work, "To shut up, imprison, immure, put or keep in detention": Oxford University Press 2009, Oxford English Dictionary (Oxford University Press, Oxford, 2009) http://dictionary.oed.com viewed 17 June 2009. In Hurren v Hurren [1971] VR 459 at 464, Anderson J considered that the more sensible meaning to give to the expression "confined in", as used in the presently analogous sense of "confined in ... an institution" was "the commonly accepted meaning of actual physical restriction in a place of confinement". His Honour had been pressed with, but rejected, a submission that a person of unsound mind subject to a confinement order but on release from the institution concerned was nonetheless to be regarded as "confined in ... an institution". In my opinion, the expression carries a like meaning in the context of para (a) of the definition of "interned".
Case: Levene v Inland Revenue Commissioners [1928] UKHL 1 ; [1928] AC 217
Outcome: cited
of contextual relevance in construing "or other place" is para (b) of the definition of "interned". Having been directed by a post surrender order to remain within a designated surrender area it is no misuse of language to describe Mr Collett as having been "restricted within specified limits". He did not though ever "reside" within that specified area. In Levene v Inland Revenue Commissioners [1928] UKHL 1 ; [1928] AC 217 at 222, Viscount Cave LC said, "... the word 'reside' is a familiar English word and is defined in the Oxford English Dictionary as meaning "to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place." It is used in that familiar way in para (b) of the definition of "interned". What that indicates, in my opinion, is that, in para (a), "or other place" does not mean just any place however vaguely delineated and irrespective of whether it has geographic or man-made limits so as to permit "confinement". Places without any particular limit other than that of arbitrary specification are the province of para (b) of the definition. That paragraph requires that the restriction be as to "residing" there. The spending of two hours in the designated surrender area did not residence make. Paragraph (b) did not originally feature in Mr Collett's submissions but assumed some transient interest in the course of submissions. In the result, and rightly, no application was made on behalf of Mr Collett further to amend the notice of appeal so as to rely upon satisfaction of that paragraph of the definition of "interned" as an alternative basis for eligibility. Reference was made on Mr Collett's behalf to the physical proximity of German troops, as close as 50 metres away. I accept that an "other place" might be constituted by a place without any obvious physical limit other than that supplied by enemy sentries. On the facts as found, that is not this case.
Case: Gauntlett v Repatriation Commission [1991] FCA 498 ; (1991) 32 FCR 73
Outcome: considered
the result then, for the reasons given, the meaning of the definition of "confined in ... other place" in para (a) of the definition of "interned" is tolerably clear without recourse to secondary materials. On the face of the 2007 Budget Measures Act alone, that Parliament is authorising a compensation payment but not employing the term "prisoner of war" in so doing gives one pause for thought about the intended purpose of the payment. When one looks at the eligibility criteria as defined it would be an odd result for someone who, though briefly and technically a prisoner of war, was never subject to the deprivations of imprisonment to be eligible for a compensatory payment. I have reflected upon whether the construction I prefer impermissibly introduces the adjective "physically" to qualify the expression "confined in". In Gauntlett v Repatriation Commission [1991] FCA 498 ; (1991) 32 FCR 73 at 77, Pincus J offered the following salutary, cautionary reminder, "[T]his is not the first time in which the respondent Commission has implied in argument that provisions of this sort could not possibly have been intended to produce such anomalies as, literally read, seem to follow from them; but it is the constitutional function of parliament, and not that of the judges, to correct any anomalies thought to arise from applying the plain language of legislation". It would be just as impermissible to introduce the qualifying adjective "constructively". This, in essence, was a vice in Mr Collett's submissions. There is no need for the qualifying adjective "physically". The latter sense is already present reading the definition of "interned" as a whole and in context.
Case: Clark v Commissioner of Taxation [2007] FCA 1426
Outcome: cited
Mr David Clark and his wife, Helen Clark, are taxpayers who have applied to the Federal Court of Australia (Applications 500/2006 and 501/2006 respectively) in the Court's original jurisdiction conferred by s 14ZZ of the Taxation Administration Act 1953 (Cth) by way of an appeal from a decision of the Commissioner of Taxation made on 27 October 2006 to disallow objections to an amended assessment issued to each taxpayer on 25 November 2005 for the year ending 30 June 2001. Those applications involve a number of questions including whether each taxpayer is entitled to take advantage of capital losses in the Carringbush Trust by reason of the disposal of the Rothwells shares so as to offset capital gains derived by the trust from other projects ( Clark v Commissioner of Taxation [2007] FCA 1426). In those proceedings, the Commissioner of Taxation takes the position that s 468(1) of the Corporations Act renders the disposition void (among a range of other arguments) with the result that no capital loss arises in any event. 16 It is not contended by the Commissioner that the value of the shares at the date of sale was anything other than $1.00. 17 On 30 October 2007, the solicitors for the plaintiffs wrote to the Australian Securities Investments Commission ('ASIC') advising of this proposed application for an order under s 468(1) in relation to the Rothwells shares the subject of the 26 May 1993 transaction. ASIC took the position that it would not be necessary, in its view, to secure reinstatement of Rothwells for the purpose of obtaining an order under s 468(1) and that while shares in Rothwells no longer exist by reason of the winding up and subsequent deregistration of the company, the deregistration ought not to prevent the Court making an order to validate the transaction that occurred when the company was in liquidation. On 20 November 2007, the application and supporting material was served upon ASIC and Mr Ian Ferrier, the former liquidator of Rothwells.
Case: Australian Securities and Investments Commission v Green Pacific Energy Limited (In Liquidation) [2007] FCA 1552
Outcome: cited
There are many authorities that deal with the principles guiding the exercise of the discretion under s 468(1) both as to a disposition of property of the company made after the commencement of the winding up and any transfer of shares made after the commencement of the winding up, although the circumstances of any case or group of cases are not to be treated as prescriptive of the discretion which is conferred in broad terms and is 'at large'. However, ordinarily the discretion will not be exercised in favour of an order unless the Court is satisfied that the order serves either the interests of the company or its creditors. A recent approach to the making of an order under the section can be seen in Australian Securities and Investments Commission v Green Pacific Energy Limited (In Liquidation) [2007] FCA 1552 per Emmett J (26 September 2007). In that case, a transfer of shares was approved under s 468(1) of the Corporations Act as a necessary element of a Deed of Company Arrangement providing for a substantially greater payment to creditors than would occur in a liquidation. 24 The considerations that derive from an assessment of whether a 'disposition of property' of the company ought to be approved are quite different from those immediately relevant to a transfer of shares especially where the shares are fully paid and thus no calls can or will be made upon the shareholder. 25 As to share transfers , the principles seem to be these.
Case: Rudge v Bowman , Law Rep 3 Q.B. 689
Outcome: cited
As between the parties to a transfer and as regards the liability of one to the other, (that is, the inter-parties position) the transaction is not affected by [the section] ( Rudge v Bowman , Law Rep 3 Q.B. 689). The transfer is void 'so far as regards any effect to be given to it by the company ' ( In Re Onward v Building Society (1891) 2 Q.B. 463 per Lord Esher at p 475). The parties might choose to make a contract and it 'may be good as between themselves, though if either of them desires that any effect should be given to it by the company, the Act does apply' ( Onward Building Society , per Lord Esher at p 475). When the question is one of transfer of the shares after the commencement of the winding up, the question is 'would it be beneficial to the company' ( Onward Building Society per Bowan LJ at p 481) and would it 'benefit the creditors' ( Onward Building Society per Bowan LJ at p 482). The general scheme of the provision is that 'as the tree falls so it must lie, unless the Court chooses to alter the existing state of things' ( Onward Building Society per Bowan LJ at p 482). The Court will do so if it 'would be of some benefit to the company or those interested in its assets, and that it (the Court) would not so exercise its discretion unless for very strong reasons' ( Onward Building Society per Kay LJ at p 483). Although Kay LJ makes reference to a demonstrated benefit to 'those interested in [the company's] assets', it seems clear that the reference is not one to the interest of an investor/shareholder. Kay LJ clearly had in mind a reference to the creditors of the company when using that phrase ( Onward Building Society per Kay LJ at p 484). In that particular case, no benefit arose out of the proposed transfer of shares to a buyer in favour of either the company or its creditors as a result of which the Court refused to exercise the discretion to avoid the transfer being rendered void.
Case: In Re Onward v Building Society (1891) 2 Q.B. 463
Outcome: cited
As between the parties to a transfer and as regards the liability of one to the other, (that is, the inter-parties position) the transaction is not affected by [the section] ( Rudge v Bowman , Law Rep 3 Q.B. 689). The transfer is void 'so far as regards any effect to be given to it by the company ' ( In Re Onward v Building Society (1891) 2 Q.B. 463 per Lord Esher at p 475). The parties might choose to make a contract and it 'may be good as between themselves, though if either of them desires that any effect should be given to it by the company, the Act does apply' ( Onward Building Society , per Lord Esher at p 475). When the question is one of transfer of the shares after the commencement of the winding up, the question is 'would it be beneficial to the company' ( Onward Building Society per Bowan LJ at p 481) and would it 'benefit the creditors' ( Onward Building Society per Bowan LJ at p 482). The general scheme of the provision is that 'as the tree falls so it must lie, unless the Court chooses to alter the existing state of things' ( Onward Building Society per Bowan LJ at p 482). The Court will do so if it 'would be of some benefit to the company or those interested in its assets, and that it (the Court) would not so exercise its discretion unless for very strong reasons' ( Onward Building Society per Kay LJ at p 483). Although Kay LJ makes reference to a demonstrated benefit to 'those interested in [the company's] assets', it seems clear that the reference is not one to the interest of an investor/shareholder. Kay LJ clearly had in mind a reference to the creditors of the company when using that phrase ( Onward Building Society per Kay LJ at p 484). In that particular case, no benefit arose out of the proposed transfer of shares to a buyer in favour of either the company or its creditors as a result of which the Court refused to exercise the discretion to avoid the transfer being rendered void.
Case: Re Atlas Truck Service Pty Ltd 4 ACTR 19
Outcome: cited
The section confers upon the Court a 'wide general discretion which is not to be limited by any attempted classification of those cases which do, and those which do not, fall within them' ( Re Atlas Truck Service Pty Ltd 4 ACTR 19 per Fox J at p 20). The discretion is 'entirely at large' ( Re Atlas Truck Service Pty Ltd ; Tellsa Furniture Pty Ltd (in Liquidation) v Glenave Nominees Pty Ltd (1987) 9 NSWLR per Hope, Mahoney and Priestly JJA; Jardio Holdings Pty Ltd v Dorcon Constructions Pty Ltd [1984] FCA 247 ; (1984) 3 FCR 311 per Woodward, Neaves and Beaumont JJ).
Case: Tellsa Furniture Pty Ltd (in Liquidation) v Glenave Nominees Pty Ltd (1987) 9 NSWLR
Outcome: cited
The section confers upon the Court a 'wide general discretion which is not to be limited by any attempted classification of those cases which do, and those which do not, fall within them' ( Re Atlas Truck Service Pty Ltd 4 ACTR 19 per Fox J at p 20). The discretion is 'entirely at large' ( Re Atlas Truck Service Pty Ltd ; Tellsa Furniture Pty Ltd (in Liquidation) v Glenave Nominees Pty Ltd (1987) 9 NSWLR per Hope, Mahoney and Priestly JJA; Jardio Holdings Pty Ltd v Dorcon Constructions Pty Ltd [1984] FCA 247 ; (1984) 3 FCR 311 per Woodward, Neaves and Beaumont JJ).
Case: Jardio Holdings Pty Ltd v Dorcon Constructions Pty Ltd [1984] FCA 247 ; (1984) 3 FCR 311
Outcome: cited
The section confers upon the Court a 'wide general discretion which is not to be limited by any attempted classification of those cases which do, and those which do not, fall within them' ( Re Atlas Truck Service Pty Ltd 4 ACTR 19 per Fox J at p 20). The discretion is 'entirely at large' ( Re Atlas Truck Service Pty Ltd ; Tellsa Furniture Pty Ltd (in Liquidation) v Glenave Nominees Pty Ltd (1987) 9 NSWLR per Hope, Mahoney and Priestly JJA; Jardio Holdings Pty Ltd v Dorcon Constructions Pty Ltd [1984] FCA 247 ; (1984) 3 FCR 311 per Woodward, Neaves and Beaumont JJ). 28 In Jardio , the Court in considering an application concerning the granting of an equitable mortgage after the date of presentation of a winding up petition (rather than a transfer of shares) noted that 'special circumstances' may justify the intervention of the Court to approve the transaction 'but only as a means to an end; and that end is the promotion of the interests of the creditors as a whole' ( Jardio , per Woodward, Neaves and Beaumont JJ at p 317). The Court regarded the overriding 'inquiry' required by s 227(1) of the Companies Act (NT) (the equivalent of s 468(1) of the Corporations Act ), as 'essentially a commercial or economic one, calling for a balancing of the anticipated net gains or losses from the transaction for which approval is sought' ( Jardio , per the Court at p 317). Moreover, the 'merits' of the transaction 'should be tested at the date of entry into the transaction sought to be validated' ( Jardio , per the Court at p 320). 29 It seems to me that in assessing the merits of the approval of a transfer of shares, the Court should also adopt an inquiry that is 'essentially a commercial or economic one' although the interests affected will not just be the company or the creditors. In assessing the net gains and losses from the perspective of the company and the creditors, there is no prejudice or loss to either, nor any benefit, by reason of the disposal on 26 May 1993. The position is, in that sense, neutral. If the disposal of the shares has occurred with no prejudice to the company or the creditors, why should the vendor of the shares be deprived of the validity of a transfer of shares to a buyer? If the prohibition upon transfer is a prohibition inter-parties upon a valid disposal, why should a vendor be deprived of a valid disposition when no prejudice is suffered by the company or the creditors?
Case: Backoffice Investments v Campbell [2007] NSWSC 161 ; 61 ACSR 144
Outcome: cited
In Backoffice Investments v Campbell [2007] NSWSC 161 ; 61 ACSR 144 , Bergin J was required to consider whether in the context of a finding of oppressive conduct by one shareholder (Campbell) on the part of the company (Healthy Water (NSW) Pty Ltd) against another shareholder (Backoffice), an order ought to be made under s 468(1) (a provisional liquidator having been appointed to the company) validating the transfer of Backoffice's share to Campbell as part of a remedial order that Campbell acquire (pursuant to s 233(1)(d) of the Corporations Act ), Backoffice's share at a particular valuation. The Court so ordered as an incident of relieving Backoffice of Campbell's oppressive conduct, not on the footing that the order served only the interests of the company but, principally, on the footing that the interest of the oppressed shareholder would be served by making an order under s 468(1) in connection with the share transfer, as a necessary incident of the remedial orders. 31 In this case, I can see no reason why the vendor of the shares on 26 May 1993 nor the purchaser ought to be deprived of the validity of the disposition by reason of s 468(1) of the Corporations Act if that is what the prohibition upon 'transfer' under s 468(1) effects, as there is no prejudice to the company or its creditors; all shares at the relevant date were fully paid; and although served with the present application, neither ASIC nor the former liquidator of Rothwells nor the Commissioner has appeared before the Court to contradict the orders sought by the plaintiffs. 32 Accordingly, I propose to make order that the transfer by Carringbush Pty Ltd to Carringbush Corporation Pty Ltd on 26 May 1993 of 949,583 12.5% cumulative redeemable convertible preference shares of $1.75 in Rothwells Limited, each fully paid, and 474,791 ordinary shares of $1.75 in Rothwells Limited, each fully paid, is not rendered void by operation of s 468(1) of the Corporations Act 2001 (Cth). 33 I further order that the Plaintiffs and the former liquidators of Rothwells Limited have liberty to apply. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 10 April 2008 Counsel for the Applicant: Mr M L Robertson Solicitor for the Applicant: Damien Bourke &amp; Associates Counsel for the Respondent: No appearance by any of the Australian Securities and Investments Commission, the Commissioner of Taxation or the former liquidators of Rothwells Limited Solicitor for the Respondent: No appearance by any of the Australian Securities and Investments Commission, the Commissioner of Taxation or the former liquidators of Rothwells Limited Date of Hearing: 10 December 2007 Date of Judgment: 10 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/474.html
Case: Woodward v Repatriation Commission (2003) [2003] FCAFC 160 ; (2003) 131 FCR 473
Outcome: cited
The construction which Full Court decisions have placed on this expression in the context of the SoP can be summarized as follows: 1. The event must be one which (i) the person actually perceived as involving actual or threatened death or serious injury and (ii) which could reasonably be so perceived by someone with that person's knowledge and experience. There are both subjective and objective elements: Repatriation Commission v Stoddart [2003] FCAFC 300 ; (2003) 134 FCR 392 at [22] , [30]. 2. It is sufficient if a threat is (actually and reasonably) perceived, notwithstanding that there was in fact no threat: Stoddart at [31]. 3. To be "confronted" with the event the person does not necessarily have to be physically present: Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at [123] . 4. "Risk" is used in the sense of "an indication of probable evil to come: something that gives indication of causing evil or harm": Stoddart at [36].
Case: Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (unreported, Madgwick J, 17 November 1998)
Outcome: cited
an issue which arises in the context of interim relief in industrial law matters is that the interim relief could be in effect the grant of final relief. On the other hand, it is also common for the refusal to grant interim relief to be a refusal to grant final relief in actual fact. In Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (unreported, Madgwick J, 17 November 1998) the AIRC had made an order under s 127(1) of the Act that a proposed national stoppage not occur. In that case the refusal to grant interim relief to enforce the order effectively meant the refusal for final relief to enforce the order as the national stoppage was to take place before the final hearing; See too Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413.
Case: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618
Outcome: cited
any interlocutory injunction is granted, the Court must be satisfied that there is both a serious question to be tried in the principal proceeding and that the balance of convenience favours the grant of an injunction: see, e.g. Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 621; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1; Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55.