mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568
Outcome: referred to
I will not discuss the legal principles governing the adequacy of a pleading: I discussed them in Collex Waste Management Pty Ltd v Waste Recycling &amp; Processing Service of New South Wales [1999] FCA 213 and Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568. Reference may be made also to Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd &amp; Anor (1996) ATPR.
Case: Collex Waste Management Pty Ltd v Waste Recycling &amp; Processing Service of New South Wales [1999] FCA 213
Outcome: referred to
I will not discuss the legal principles governing the adequacy of a pleading: I discussed them in Collex Waste Management Pty Ltd v Waste Recycling &amp; Processing Service of New South Wales [1999] FCA 213 and Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568. Reference may be made also to Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd &amp; Anor (1996) ATPR.
Case: Goldsmith v Sandilands [2002] HCA 31 ; (2002) 190 ALR 370
Outcome: referred to
ANZ seeks particulars in two categories: (a) particulars of the oral Representations pleaded in paras 19, 21A, 22, 24, 25, 26, 27, 28 and 29 of the ASC; and (b) in respect of each of the subparagraphs of para 29D of the ASC, the factual matters said to give rise to the alleged failure on the part of ANZ. In Goldsmith v Sandilands [2002] HCA 31 ; (2002) 190 ALR 370 at 371, Gleeson CJ stated: The facts in issue in a civil action case emerged from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but "to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial" ( Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-13). Particulars of the Representations pleaded in paras 19, 21A, 22, 24, 25, 26, 27, 28 and 29 of the ASC 72 In relation to each of the Representations pleaded in the paragraphs identified, ANZ seeks an order that the applicants specify: (a) whether the Representation is alleged to have been made orally; and (b) if it is alleged that the Representation was made orally; (i) when it was made; (ii) by whom it was made; (iii) to whom it was made; (c) whether the Representation is alleged to have been of a present fact or as to an opinion. 73 I do not think that ANZ is entitled to require the applicants to categorise the alleged Representations as being as to present fact or as to an opinion. No doubt, there will be submissions on the final hearing as to the proper characterisation of particular Representations for the purpose of s 51A of the TP Act and s 12BB of the ASIC Act , but I do not think that characterisation at this stage is necessary in order to enable ANZ to file its defence.
Case: Hungerfords v Walker [1989] HCA 8 ; (1989) 171 CLR 125
Outcome: referred to
In principle there is no difficulty in the applicants complaining that, having been induced by ANZ's misleading or deceptive conduct to enter into the Transaction, they lost all the money they paid at the time of doing so, and there is no difficulty in the applicants seeking to recover that money with interest, whether based on Hungerfords v Walker [1989] HCA 8 ; (1989) 171 CLR 125 or otherwise. However, the ASC should plead facts showing that the applicants claim that they got nothing in return for the money paid. It is not suggested, for example, that Newco did not become legally indebted to Geomar for the sum of $4,055,556 which it lent to Newco on 1 May 2003. I presume that immediately following the loan, Newco was able to repay it. Some facts to the effect that Newco ceased to be able to repay the loan at some time should be pleaded. The amounts claimed by the applicants 67 Paras 56 and 57 of the ASC set out the amounts claimed by "the Chapmans" (the ASC uses that expression to refer to the applicants). ANZ complains that para 57 of the ASC is embarrassing because it asserts that the applicants, without distinguishing between them, claim the amount of $13,183,682.38. 68 In their submissions, the applicants reply that the letter dated 21 November 2007 from Atanaskovic Hartnell, coupled with the Substitute Table (that is annexed to these reasons for judgment), adequately identifies the amounts claimed by the respective applicants.
Case: Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd &amp; Anor (1996) ATPR
Outcome: referred to
I will not discuss the legal principles governing the adequacy of a pleading: I discussed them in Collex Waste Management Pty Ltd v Waste Recycling &amp; Processing Service of New South Wales [1999] FCA 213 and Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568. Reference may be made also to Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd &amp; Anor (1996) ATPR.
Case: Police and Nurses Credit Society Ltd v Burgess Rowson (WA) Pty Ltd [2006] FCA 1395
Outcome: referred to
It has been suggested that in contemporary commercial litigation, where there will inevitably be a direction for the filing and service of affidavits or witness statements, the necessity for lengthy particulars may be viewed with disfavour: Police and Nurses Credit Society Ltd v Burgess Rowson (WA) Pty Ltd [2006] FCA 1395 at [17] . 79 I have read carefully paras 19, 21A, 22, 24, 25, 26, 27, 28 and 29 of the ASC and I am of the view that the particulars already provided are adequate. In each case, it is said that in so far as the Representations in question were oral, they were made in "a conversation", "a discussion", "various discussions" or "several discussions", between a named person on behalf of ANZPE and one or more named persons on behalf of the applicants. As well, either a particular date or a confined period is stated. 80 I do not think that ANZ needs more to enable it to file its defence. Particulars of falsity subparagraphs of para 29D of the ASC
Case: Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited (No 13) [1995] FCA 626
Outcome: cited
Peoplebank submits that the demands of justice require that the costs of the notice of motion be paid forthwith for the following reasons: 1. To prevent the frustration of prior Court orders. Peoplebank submits that the Court has made it clear to Cytel that the costs awarded to Peoplebank on 3 November 2006 must be paid, before Peoplebank is required to incur any further costs in this action. Peoplebank notes that the current costs order arises out of attempts by Peoplebank to secure this payment. 2. The application ought not to have been brought. Peoplebank submits that the notice of motion ought not to have been brought and that the application is devoid of merit. Peoplebank submits that ' propounding interlocutory applications of dubious merit is a relevant consideration in the exercise of the Court's discretion on costs '. In Life Airbag at 12 Branson J observed that the demands of justice may require a departure from the ordinary rule where a party has been required to incur significant costs over and above those it would have incurred had the opposing party acted with competence and diligence. Peoplebank says that this observation is apposite. 3. The end of the proceedings is still not in sight. Peoplebank: &#8226; notes that the proceedings are stayed until Cytel pays the amount of the 3 November 2006 costs order. &#8226; submits that the Court can infer that Cytel has no present intention to pay this debt and is aiming to postpone payment. &#8226; submits that the length of time until the proceedings can be concluded is a relevant factor in exercise of the Court's discretion ( Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited (No 13) [1995] FCA 626 at [4] [5]). 4. Costs granted by the current costs order are discrete. Peoplebank submits that it is a relevant factor that the current costs order relates to a discrete issue, separate from the principal proceedings. 5. No evidence that a 'forthwith order' will stifle the proceedings. Peoplebank submits that there is no evidence to support Cytel's claim that it will be 'further prejudiced in prosecuting its claim'.
Case: Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347
Outcome: cited
Both parties recognise that the Court retains a discretion ( McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [14] [15], [38] per Weinberg J; Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545 at 11 per Branson J; Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347 at [21] per Sackville J). The authorities provide that, in considering whether to depart from the ordinary rule, ' the discretion should be exercised in favour of a party who establishes that the demands of justice require that there be a departure from what appears to be the general practice... ' ( Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 at 312 per Olney J, cited in Life Airbag at 11 per Branson J; see also McKellar at [38] per Weinberg J).
Case: McKellar v Container Terminal Management Services Ltd [1999] FCA 1639
Outcome: applied
Both parties recognise that the Court retains a discretion ( McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [14] [15], [38] per Weinberg J; Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545 at 11 per Branson J; Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347 at [21] per Sackville J). The authorities provide that, in considering whether to depart from the ordinary rule, ' the discretion should be exercised in favour of a party who establishes that the demands of justice require that there be a departure from what appears to be the general practice... ' ( Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 at 312 per Olney J, cited in Life Airbag at 11 per Branson J; see also McKellar at [38] per Weinberg J).
Case: Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297
Outcome: cited
Both parties recognise that the Court retains a discretion ( McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [14] [15], [38] per Weinberg J; Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545 at 11 per Branson J; Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347 at [21] per Sackville J). The authorities provide that, in considering whether to depart from the ordinary rule, ' the discretion should be exercised in favour of a party who establishes that the demands of justice require that there be a departure from what appears to be the general practice... ' ( Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 at 312 per Olney J, cited in Life Airbag at 11 per Branson J; see also McKellar at [38] per Weinberg J).
Case: ANZ Banking Group Ltd v Cawood [1987] 1 Qd R 131
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: BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 3) [2009] FCA 1087
Outcome: referred to
judgment on the substantive claims was delivered ( BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 3) [2009] FCA 1087) several issues were left for later consideration. Those issues are: (1) on what claim will BHPB elect to take judgment; (2) in what currency should judgment be given; (3) interest; and (4) costs. The parties have filed written submissions on each issue. Some raise nice questions of principle. BHPB was successful in several of its claims against Cosco, including a claim that Cosco had breached a warranty that it had authority to act on behalf of New Century International Leasing Co Ltd (NCI) in the negotiations of the charterparty for the Global Hawk. BHPB elects to take judgment on that claim. In the originating application BHPB claimed damages in US dollars. At trial BHPB proved the value of its claim in US dollars. That value is US$1,063,316.19. This amount comprises unpaid hire, a ballast bonus, bunkers, port costs and miscellaneous expenses, less a payment of US$120,000. Although in its originating process BHPB claimed damages in US currency and established the quantum of that claim in US currency, it now seeks judgment for the Australian dollar equivalent calculated as at the date of entry of judgment.
Case: Federal Commerce and Navigation Co Ltd v Tradax Export SA (The Martha Envoy) [1977] QB 324
Outcome: cited
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: Gould v Vaggelas (1985) 157 CLR 215
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: Jean Kraut A.G v Albany Fabrics [1977] QB 182
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: Maschinenfabrik Augsburg-Nurenburg AG v Altikar Pty Ltd (1984) 3 NSWLR 152
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: Miliangos v George Frank (Textiles) Ltd (No 2) [1977] QB 489
Outcome: followed
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: Miliangos v George Frank (Textiles) Ltd [1976] AC 443
Outcome: followed
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: Mitsui OSK Lines Ltd v The Ship Mineral Transporter [1983] 2 NSWLR 564
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: Namol Pty Ltd v AW Baulderstone Pty Ltd (No 2) [1993] FCA 606 ; (1993) 47 FCR 388
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.