mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: DM Cannane &amp; Anor v J Cannane Pty Ltd [1998] HCA 26 ; (1998) 192 CLR 557
Outcome: cited
Paragraph 23.1 pleads that in the circumstances of the particulars identified at 22.2.1 to 22.2.13 (and Particular 3) a reasonable inference arises that within the field of existing and future creditors, a claim by the liquidators of Freedom Homes (appointed on 29 July 1996 by the creditors in the light of a report from the administrators of Freedom Homes that a claim could be made against Waters for an amount up to $2,647,255.00) is a claim by a creditor, a contingent or an anticipated creditor of Waters for that substantial sum. Similarly, the particulars of para 22 provide the content of the contention that the BSA was either a creditor or a contingent or anticipated creditor. It is true that the particulars of 30 March 2007 of para 22 use the term 'future creditors' to define, in part, the field of creditors Waters is said to have sought to defraud as 'then present creditors and all future creditors' and para 23.1 uses the term 'contingent creditors or anticipated creditors'. It seems to me the distinction is not a real one in the context of the pleading. As I said at [29] of Duus v Dalvella , there must be a relation between the steps taken as part of the contended scheme and an intention to defraud identified creditors. Those creditors however might be existing creditors with provable debts or future creditors or any present or future creditors ( Barton v Deputy Federal Commissioner of Taxation [1974] HCA 43 ; (1974) 131 CLR 370 at 374; PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515 at 525-526; DM Cannane &amp; Anor v J Cannane Pty Ltd [1998] HCA 26 ; (1998) 192 CLR 557 at 566 and 593; Ebner v Official Trustee in Bankruptcy [1999] FCA 110 ; (1999) 91 FCR 353 at 370-371). Future creditors include anticipated creditors (such as the liquidators of Freedom Homes or the BSA) or contingent creditors.
Case: Ebner v Official Trustee in Bankruptcy [1999] FCA 110 ; (1999) 91 FCR 353
Outcome: cited
Paragraph 23.1 pleads that in the circumstances of the particulars identified at 22.2.1 to 22.2.13 (and Particular 3) a reasonable inference arises that within the field of existing and future creditors, a claim by the liquidators of Freedom Homes (appointed on 29 July 1996 by the creditors in the light of a report from the administrators of Freedom Homes that a claim could be made against Waters for an amount up to $2,647,255.00) is a claim by a creditor, a contingent or an anticipated creditor of Waters for that substantial sum. Similarly, the particulars of para 22 provide the content of the contention that the BSA was either a creditor or a contingent or anticipated creditor. It is true that the particulars of 30 March 2007 of para 22 use the term 'future creditors' to define, in part, the field of creditors Waters is said to have sought to defraud as 'then present creditors and all future creditors' and para 23.1 uses the term 'contingent creditors or anticipated creditors'. It seems to me the distinction is not a real one in the context of the pleading. As I said at [29] of Duus v Dalvella , there must be a relation between the steps taken as part of the contended scheme and an intention to defraud identified creditors. Those creditors however might be existing creditors with provable debts or future creditors or any present or future creditors ( Barton v Deputy Federal Commissioner of Taxation [1974] HCA 43 ; (1974) 131 CLR 370 at 374; PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515 at 525-526; DM Cannane &amp; Anor v J Cannane Pty Ltd [1998] HCA 26 ; (1998) 192 CLR 557 at 566 and 593; Ebner v Official Trustee in Bankruptcy [1999] FCA 110 ; (1999) 91 FCR 353 at 370-371). Future creditors include anticipated creditors (such as the liquidators of Freedom Homes or the BSA) or contingent creditors.
Case: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564
Outcome: cited
Before dealing with each of these contentions, the case pleaded by the Trustees against Waters needs to be examined in the context of the pleading overall so as to test whether the Statement of Claim makes clear to Waters the case advanced against them which they must answer especially having regard to their contention that the 1996 transactions have no coherent relationship, within the pleading, with the 1997 and 1999 transactions in terms of remedial relief. The principles guiding the exercise of the discretion for the purposes of Order 11, r 16 are well settled ( Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 585-586 at [47] [51] per French J; Australian Competition and Consumer Commission v Fox Symes &amp; Associates Pty Ltd [2005] FCA 1071 at [92] to [109] per Lander J; BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd &amp; Ors (No. 2) [2002] FCA 87 at [2] , [3], [20] and [21] per Mansfield J; Pan Continental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 983 ; (1994) 121 ALR 405 at 414 per Beaumont J; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129 and 130, per Barwick CJ).
Case: BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd &amp; Ors (No. 2) [2002] FCA 87
Outcome: cited
Before dealing with each of these contentions, the case pleaded by the Trustees against Waters needs to be examined in the context of the pleading overall so as to test whether the Statement of Claim makes clear to Waters the case advanced against them which they must answer especially having regard to their contention that the 1996 transactions have no coherent relationship, within the pleading, with the 1997 and 1999 transactions in terms of remedial relief. The principles guiding the exercise of the discretion for the purposes of Order 11, r 16 are well settled ( Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 585-586 at [47] [51] per French J; Australian Competition and Consumer Commission v Fox Symes &amp; Associates Pty Ltd [2005] FCA 1071 at [92] to [109] per Lander J; BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd &amp; Ors (No. 2) [2002] FCA 87 at [2] , [3], [20] and [21] per Mansfield J; Pan Continental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 983 ; (1994) 121 ALR 405 at 414 per Beaumont J; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129 and 130, per Barwick CJ).
Case: Pan Continental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 983 ; (1994) 121 ALR 405
Outcome: cited
Before dealing with each of these contentions, the case pleaded by the Trustees against Waters needs to be examined in the context of the pleading overall so as to test whether the Statement of Claim makes clear to Waters the case advanced against them which they must answer especially having regard to their contention that the 1996 transactions have no coherent relationship, within the pleading, with the 1997 and 1999 transactions in terms of remedial relief. The principles guiding the exercise of the discretion for the purposes of Order 11, r 16 are well settled ( Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 585-586 at [47] [51] per French J; Australian Competition and Consumer Commission v Fox Symes &amp; Associates Pty Ltd [2005] FCA 1071 at [92] to [109] per Lander J; BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd &amp; Ors (No. 2) [2002] FCA 87 at [2] , [3], [20] and [21] per Mansfield J; Pan Continental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 983 ; (1994) 121 ALR 405 at 414 per Beaumont J; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129 and 130, per Barwick CJ).
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
Before dealing with each of these contentions, the case pleaded by the Trustees against Waters needs to be examined in the context of the pleading overall so as to test whether the Statement of Claim makes clear to Waters the case advanced against them which they must answer especially having regard to their contention that the 1996 transactions have no coherent relationship, within the pleading, with the 1997 and 1999 transactions in terms of remedial relief. The principles guiding the exercise of the discretion for the purposes of Order 11, r 16 are well settled ( Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 585-586 at [47] [51] per French J; Australian Competition and Consumer Commission v Fox Symes &amp; Associates Pty Ltd [2005] FCA 1071 at [92] to [109] per Lander J; BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd &amp; Ors (No. 2) [2002] FCA 87 at [2] , [3], [20] and [21] per Mansfield J; Pan Continental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 983 ; (1994) 121 ALR 405 at 414 per Beaumont J; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129 and 130, per Barwick CJ).
Case: Re Java 452 Pty Ltd (admin apptd); Permanent Trustee Australia Ltd (as trustee of Advance Property Fund) v Stout [1999] VSC 252 ; (1999) 32 ACSR 507
Outcome: cited
my reasons at [136] I said that the respondent relied upon a decision Re Java 452 Pty Ltd (admin apptd); Permanent Trustee Australia Ltd (as trustee of Advance Property Fund) v Stout [1999] VSC 252 ; (1999) 32 ACSR 507 (incorrectly cited as Re Java 452 Pty Ltd (administrator appointed) (No 2) [1999] VSC 252 ; (1999) 32 ACSR 507). I then discussed that decision concluding that the decision was not contrary to the construction which I put upon s 444F. Last night counsel for the respondent advised my chambers that I had referred to the first decision in Re Java rather than the second which was relied upon by the respondent. This morning, junior counsel for the respondent advised me that they relied upon both decisions in Re Java. I was told that whilst the respondent had referred to the second decision, the respondent had inadvertently given me a reference to the first decision, which is the decision to which my reasons refer.
Case: Australian and New Zealand Banking Group Limited v Financial Services Union of Australia (2001) 111 IR 227
Outcome: cited
In Australian and New Zealand Banking Group Limited v Financial Services Union of Australia (2001) 111 IR 227 at 236, the Full Court (Black CJ, Wilcox and von Doussa JJ) considered the circumstances in which a payment under contract could discharge an obligation under an award. Their Honours quoted the Full Court in Poletti v Ecob (No 2) (1989) 31 IR 321 at 236, (at [41]): 41 In Poletti v Ecob (at 393; 332-333) the Full Court made this comment: "It is to be noted that there are two separate situations dealt with in the passage from the judgment of Sheldon J which has been quoted and in the reasoning of the Commission in Pacific Publications . The first situation is that in which the parties to a contract of employment have agreed that a sum or sums of money will be paid and received for specific purposes, over and above or extraneous to award entitlements. In that situation, the contract between the parties prevents the employer afterwards claiming that payments made pursuant to the contractual obligation can be relied on in satisfaction of award entitlements arising outside the agreed purpose of the payments. The second situation is that in which there are outstanding award entitlements, and a sum of money is paid by the employer to the employee. If that sum is designated by the employer as being for a purpose other than the satisfaction of the award entitlements, the employer cannot afterwards claim to have satisfied the award entitlements by means of the payment. The former situation is a question of contract. The latter situation is an application of the common law rules governing payments by a debtor to a creditor. In the absence of a contractual obligation to pay and apply moneys to a particular obligation, where a debtor has more than one obligation to a creditor, it is open to the debtor, either before or at the time of making a payment, to appropriate it to a particular obligation. If no such appropriation is made, then the creditor may apply the payment to whichever obligation or obligations he or she wishes: see Halsbury's Laws of England , 4th ed, vol 9, pars 505 and 506."
Case: Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410
Outcome: cited
It was accepted that one cannot contract out of award provisions: see Josephson v Walker (1914) 18 CLR 691 at 700; Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 421; Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250 at 256. However, the parties agreed that there was, in theory, no barrier to compromising or satisfying a claim arising under the Act for underpayment of wages. The compromise or settlement of a claim in accord and satisfaction was distinguishable from a contracting out scenario where an employer seeks to avoid award obligations by entering into an employment agreement that strips away award rights.
Case: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24 ; (1982) 149 CLR 337
Outcome: considered
I have ignored the expressions of subjective intention of the employees, although such were in evidence before me. Obviously, the subjective intentions of any party should not be taken into account when construing an agreement: see eg, DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12 ; (1978) 138 CLR 423 at 429, and Pacific Carriers Limited v BNP Paribas (2004) 281 CLR 451 , 461-62. Of course, the objective background which I may consider does include the purposes and assumptions shared by the parties: see Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24 ; (1982) 149 CLR 337 , 354. It is the fact of their concurrence by the parties which converts what would otherwise be 'subjective intention' into objective elements of an agreement's context. Relevantly, in this proceeding, as I will return to later, I take into account Heinemann's position made known to the Union and the employees that it could not make any payment by reason of s 507 of the Act, and the fact that the issue of the unpaid wages in respect of the overtime ban was not up for discussion or consideration by Heinemann at the time of entering each sign-on bonus agreement.
Case: DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12 ; (1978) 138 CLR 423
Outcome: followed
I have ignored the expressions of subjective intention of the employees, although such were in evidence before me. Obviously, the subjective intentions of any party should not be taken into account when construing an agreement: see eg, DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12 ; (1978) 138 CLR 423 at 429, and Pacific Carriers Limited v BNP Paribas (2004) 281 CLR 451 , 461-62. Of course, the objective background which I may consider does include the purposes and assumptions shared by the parties: see Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24 ; (1982) 149 CLR 337 , 354. It is the fact of their concurrence by the parties which converts what would otherwise be 'subjective intention' into objective elements of an agreement's context. Relevantly, in this proceeding, as I will return to later, I take into account Heinemann's position made known to the Union and the employees that it could not make any payment by reason of s 507 of the Act, and the fact that the issue of the unpaid wages in respect of the overtime ban was not up for discussion or consideration by Heinemann at the time of entering each sign-on bonus agreement.
Case: Josephson v Walker (1914) 18 CLR 691
Outcome: cited
It was accepted that one cannot contract out of award provisions: see Josephson v Walker (1914) 18 CLR 691 at 700; Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 421; Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250 at 256. However, the parties agreed that there was, in theory, no barrier to compromising or satisfying a claim arising under the Act for underpayment of wages. The compromise or settlement of a claim in accord and satisfaction was distinguishable from a contracting out scenario where an employer seeks to avoid award obligations by entering into an employment agreement that strips away award rights.
Case: Pacific Carriers Limited v BNP Paribas (2004) 281 CLR 451
Outcome: followed
I have ignored the expressions of subjective intention of the employees, although such were in evidence before me. Obviously, the subjective intentions of any party should not be taken into account when construing an agreement: see eg, DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12 ; (1978) 138 CLR 423 at 429, and Pacific Carriers Limited v BNP Paribas (2004) 281 CLR 451 , 461-62. Of course, the objective background which I may consider does include the purposes and assumptions shared by the parties: see Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24 ; (1982) 149 CLR 337 , 354. It is the fact of their concurrence by the parties which converts what would otherwise be 'subjective intention' into objective elements of an agreement's context. Relevantly, in this proceeding, as I will return to later, I take into account Heinemann's position made known to the Union and the employees that it could not make any payment by reason of s 507 of the Act, and the fact that the issue of the unpaid wages in respect of the overtime ban was not up for discussion or consideration by Heinemann at the time of entering each sign-on bonus agreement.
Case: Poletti v Ecob (No 2) (1989) 31 IR 321
Outcome: cited
In Australian and New Zealand Banking Group Limited v Financial Services Union of Australia (2001) 111 IR 227 at 236, the Full Court (Black CJ, Wilcox and von Doussa JJ) considered the circumstances in which a payment under contract could discharge an obligation under an award. Their Honours quoted the Full Court in Poletti v Ecob (No 2) (1989) 31 IR 321 at 236, (at [41]): 41 In Poletti v Ecob (at 393; 332-333) the Full Court made this comment: "It is to be noted that there are two separate situations dealt with in the passage from the judgment of Sheldon J which has been quoted and in the reasoning of the Commission in Pacific Publications . The first situation is that in which the parties to a contract of employment have agreed that a sum or sums of money will be paid and received for specific purposes, over and above or extraneous to award entitlements. In that situation, the contract between the parties prevents the employer afterwards claiming that payments made pursuant to the contractual obligation can be relied on in satisfaction of award entitlements arising outside the agreed purpose of the payments. The second situation is that in which there are outstanding award entitlements, and a sum of money is paid by the employer to the employee. If that sum is designated by the employer as being for a purpose other than the satisfaction of the award entitlements, the employer cannot afterwards claim to have satisfied the award entitlements by means of the payment. The former situation is a question of contract. The latter situation is an application of the common law rules governing payments by a debtor to a creditor. In the absence of a contractual obligation to pay and apply moneys to a particular obligation, where a debtor has more than one obligation to a creditor, it is open to the debtor, either before or at the time of making a payment, to appropriate it to a particular obligation. If no such appropriation is made, then the creditor may apply the payment to whichever obligation or obligations he or she wishes: see Halsbury's Laws of England , 4th ed, vol 9, pars 505 and 506."
Case: Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250
Outcome: cited
It was accepted that one cannot contract out of award provisions: see Josephson v Walker (1914) 18 CLR 691 at 700; Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 421; Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250 at 256. However, the parties agreed that there was, in theory, no barrier to compromising or satisfying a claim arising under the Act for underpayment of wages. The compromise or settlement of a claim in accord and satisfaction was distinguishable from a contracting out scenario where an employer seeks to avoid award obligations by entering into an employment agreement that strips away award rights.
Case: The Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642
Outcome: considered
The application of the expression 'in respect of' was discussed by the High Court in The Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 (per Deane, Dawson and Toohey JJ) at 653-54: Undoubtedly the words "in respect of" have a wide meaning, although it is going somewhat too far to say, as did Mann CJ in Trustees Executors &amp; Agency Co Ltd v Reilly [1941] VLR 110 at 111, that "they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer". The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends. 64 The wage dispute in respect of the overtime ban could be viewed as in someway connected to the industrial action. The overtime ban was part of the industrial action, as shown by the notice given by the Union. The employees actually engaged this form of industrial action and, as a consequence of that course of conduct, Heinemann withheld all pay for the period. 65 However, the context in which the release appears in the sign-on bonus agreement, and the context of the agreement with the Union, indicates that the basis of the payment was not intended to extend to the unpaid wages in respect of the five days in August 2006. The employees' claim arising from Heinemann's failure to pay the employees in full for the period of industrial action was essentially only a claim for non-payment of wages. While the non-payment of employees occurred during the period of industrial action, this does not mean the employees' claim was 'in respect of' any industrial action as contemplated by the ambit of the sign-on bonus agreement and the releases contained therein.