mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: ASIC v Rich [2005] NSWSC 417
Outcome: cited
business records are prepared as internal records in the course of or for the purposes of the business (Austin J in ASIC v Rich [2005] NSWSC 417 at [212] ). Business records can clearly include opinions ( Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933) however as observed by Austin J in ASIC v Rich [2005] NSWSC 417: It is most unlikely that those expressing opinions in business records would attend to the requirements of s 78 or s 79 , let alone with the precision required by Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. It would not occur to the people creating those documents that they should set out to justify their opinions in the same way that an expert would do in preparing a written report for a court hearing. In those circumstances, to apply the opinion rule to business records that meet the requirements of s 69 would be substantially to undermine, if not to negate, the implementation of the policy underlying the business records provisions, asserted so forcefully by Hope JA in Albrighton (at 548-549) and by the Australian Law Reform Commission in its Interim Report on Evidence at [709]. Courts would be prevented from having access to substantial components of the records of businesses so as to assess them for what they are, on the ground that they do not satisfy requirements which their authors would not have regarded as relevant. As Brownie AJ remarked in a somewhat different context ( Linfox Transport (Aust) Pty Ltd v Arthur Yates &amp; Co Ltd (2003) 47 ACSR 261 at [23]), "it does not seem apt in this context to draw a lawyerly distinction between the way a witness might or might not be permitted to give opinion evidence in court with the way in which a company officer routinely reports to his superiors". (at [212])
Case: Australia &amp; New Zealand Banking v Pan Foods Company Importers &amp; Distributors Pty Ltd [1998] VSC 346
Outcome: cited
legal principles emerging from Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 have been largely confined to circumstances where a banker's certificate has been issued as to the amount of indebtedness of a debtor to the bank (for example Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , Je Maintiendrai Pty Ltd v Australia and New Zealand Banking Group Ltd (1985) 128 SASR 70, Campbell v National Australia Bank Ltd [1994] SASC 4526 , Equus Financial Services Limited v Sabri [1994] FCA 1331 , George Biritz v National Australia Bank Limited [1995] VSC 91 , Shomat v Rubenstein (1995) 124 FLR 284 , Thurwood v First for Finance Pty Ltd [1997] FCA 559 , Australia &amp; New Zealand Banking v Pan Foods Company Importers &amp; Distributors Pty Ltd [1998] VSC 346 , Jenkins v National Australia Bank Ltd [1999] VSCA 33 , State Bank v Lo [2000] NSWSC 1191 , State Bank of NSW v Kit Cheng Chia [2000] NSWSC 552 , Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305 , Julong Pty Ltd v Fenn [2002] QCA 529 , Apple Computer [2003] NSWSC 126 , Commonwealth Bank of Australia v Bouwman [2003] WASC 205 , Timms v Commonwealth Bank of Australia [2004] NSWSC 76 , Permanent Trustee Company Limited v Gulf Import and Export Company [2008] VSC 162). Since and possible because of Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , bankers' certificates have become well-known in practice. That is not to say that the principle articulated in Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 has not been extended beyond the banker/customer/surety relationship, however circumstances in which the Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 principle is applicable are primarily confined to those involving the issue of a certificate as to the existence of a fact pursuant to legislation, or certain types of agreement, for example:
Case: Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305
Outcome: cited
legal principles emerging from Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 have been largely confined to circumstances where a banker's certificate has been issued as to the amount of indebtedness of a debtor to the bank (for example Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , Je Maintiendrai Pty Ltd v Australia and New Zealand Banking Group Ltd (1985) 128 SASR 70, Campbell v National Australia Bank Ltd [1994] SASC 4526 , Equus Financial Services Limited v Sabri [1994] FCA 1331 , George Biritz v National Australia Bank Limited [1995] VSC 91 , Shomat v Rubenstein (1995) 124 FLR 284 , Thurwood v First for Finance Pty Ltd [1997] FCA 559 , Australia &amp; New Zealand Banking v Pan Foods Company Importers &amp; Distributors Pty Ltd [1998] VSC 346 , Jenkins v National Australia Bank Ltd [1999] VSCA 33 , State Bank v Lo [2000] NSWSC 1191 , State Bank of NSW v Kit Cheng Chia [2000] NSWSC 552 , Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305 , Julong Pty Ltd v Fenn [2002] QCA 529 , Apple Computer [2003] NSWSC 126 , Commonwealth Bank of Australia v Bouwman [2003] WASC 205 , Timms v Commonwealth Bank of Australia [2004] NSWSC 76 , Permanent Trustee Company Limited v Gulf Import and Export Company [2008] VSC 162). Since and possible because of Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , bankers' certificates have become well-known in practice. That is not to say that the principle articulated in Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 has not been extended beyond the banker/customer/surety relationship, however circumstances in which the Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 principle is applicable are primarily confined to those involving the issue of a certificate as to the existence of a fact pursuant to legislation, or certain types of agreement, for example:
Case: Campbell v National Australia Bank Ltd [1994] SASC 4526
Outcome: cited
legal principles emerging from Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 have been largely confined to circumstances where a banker's certificate has been issued as to the amount of indebtedness of a debtor to the bank (for example Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , Je Maintiendrai Pty Ltd v Australia and New Zealand Banking Group Ltd (1985) 128 SASR 70, Campbell v National Australia Bank Ltd [1994] SASC 4526 , Equus Financial Services Limited v Sabri [1994] FCA 1331 , George Biritz v National Australia Bank Limited [1995] VSC 91 , Shomat v Rubenstein (1995) 124 FLR 284 , Thurwood v First for Finance Pty Ltd [1997] FCA 559 , Australia &amp; New Zealand Banking v Pan Foods Company Importers &amp; Distributors Pty Ltd [1998] VSC 346 , Jenkins v National Australia Bank Ltd [1999] VSCA 33 , State Bank v Lo [2000] NSWSC 1191 , State Bank of NSW v Kit Cheng Chia [2000] NSWSC 552 , Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305 , Julong Pty Ltd v Fenn [2002] QCA 529 , Apple Computer [2003] NSWSC 126 , Commonwealth Bank of Australia v Bouwman [2003] WASC 205 , Timms v Commonwealth Bank of Australia [2004] NSWSC 76 , Permanent Trustee Company Limited v Gulf Import and Export Company [2008] VSC 162). Since and possible because of Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , bankers' certificates have become well-known in practice. That is not to say that the principle articulated in Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 has not been extended beyond the banker/customer/surety relationship, however circumstances in which the Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 principle is applicable are primarily confined to those involving the issue of a certificate as to the existence of a fact pursuant to legislation, or certain types of agreement, for example:
Case: City of London v New Hampshire Insurance Company (unreported, Phillips J, Queens Bench Division (Commercial Court) 18 January 1991
Outcome: cited
in any event I consider the facts that the profit forecasts which formed the framework for negotiations and discussions in relation to the profit guarantee related only to the Brisbane-based business of Forbes Australia, and that there was no suggestion prior to 22 September 1997 that Forbes would undergo any radical expansion in its operations, are of no moment in relation to the liabilities of the respondents as guarantors. I take this view because I consider that the acquisition of Favco in the circumstances I have outlined was actually, to paraphrase comments of Phillips J in City of London v New Hampshire Insurance Company (unreported, Phillips J Queens Bench Division (Commercial Court) 18 January 1991), discussed in Butterworth's Journal of International Banking and Financial Law , March 1991, pp 144-5 and cited in Duffy Bros Fruit Market (Campbelltown) v Gumland Property Holdings Pty Ltd [2007] NSWCA 7 at [220] ) an event "arising out of a contemplated course of dealing" and as such it remained within the scope of the guarantee. No provision of the share sale agreement or the guarantees signed by the respondents limited the activities of Forbes Australia following execution of the share sale agreement. The expansion of the business of Forbes Australia under the control of Mr Forbes as chief executive officer by the acquisition of Favco was not an event which could be considered as outside the terms of either the share sale agreement or the relevant guarantees. There was no covenant in any relevant agreement that, for example, Forbes Australia would continue to operate a business based only in Brisbane (contrast for example Spencer, Turner and Boldero v Lotz (1916) 32 TLR 373 where the Court held that the intention of the parties was that the guarantee should only be in respect of goods supplied in a certain location and not otherwise).
Case: Commonwealth Bank of Australia v Bouwman [2003] WASC 205
Outcome: cited
legal principles emerging from Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 have been largely confined to circumstances where a banker's certificate has been issued as to the amount of indebtedness of a debtor to the bank (for example Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , Je Maintiendrai Pty Ltd v Australia and New Zealand Banking Group Ltd (1985) 128 SASR 70, Campbell v National Australia Bank Ltd [1994] SASC 4526 , Equus Financial Services Limited v Sabri [1994] FCA 1331 , George Biritz v National Australia Bank Limited [1995] VSC 91 , Shomat v Rubenstein (1995) 124 FLR 284 , Thurwood v First for Finance Pty Ltd [1997] FCA 559 , Australia &amp; New Zealand Banking v Pan Foods Company Importers &amp; Distributors Pty Ltd [1998] VSC 346 , Jenkins v National Australia Bank Ltd [1999] VSCA 33 , State Bank v Lo [2000] NSWSC 1191 , State Bank of NSW v Kit Cheng Chia [2000] NSWSC 552 , Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305 , Julong Pty Ltd v Fenn [2002] QCA 529 , Apple Computer [2003] NSWSC 126 , Commonwealth Bank of Australia v Bouwman [2003] WASC 205 , Timms v Commonwealth Bank of Australia [2004] NSWSC 76 , Permanent Trustee Company Limited v Gulf Import and Export Company [2008] VSC 162). Since and possible because of Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , bankers' certificates have become well-known in practice. That is not to say that the principle articulated in Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 has not been extended beyond the banker/customer/surety relationship, however circumstances in which the Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 principle is applicable are primarily confined to those involving the issue of a certificate as to the existence of a fact pursuant to legislation, or certain types of agreement, for example:
Case: Commonwealth Bank of Australia v Oberdan [2000] SASC 428
Outcome: cited
assuming that the effect of cl 3.3 and Annexure 1 is that an audit opinion is akin to a "Dobbs" certificate as submitted by the applicants, I do not accept that the position as to the audited profits before tax is so finally and conclusively determined by the tender of the Deloitte Touche Tohmatsu audit report that the respondents are not permitted to challenge the findings of the report on the basis that it does not comply with Annexure 1, which provided the machinery of calculation adverted to in cl 3.3. The High Court in Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 accepted that a clause of this nature should not be interpreted as covering all grounds which go to the validity of the amount certified, for example illegality (at 651). Similarly, the Courts have found that a certificate can be challenged on such grounds as fraud and obvious error ( Permanent Trustee Company Limited v Gulf Import and Export Company [2008] VSC 162) , although if the certificate is properly tendered the onus falls upon the defendant to demonstrate by acceptable evidence that the certificate is incorrect ( Commonwealth Bank of Australia v Oberdan [2000] SASC 428 at [14] , Concrete Constructions Group Pty Ltd v Coddlestone Pty Ltd [1995] ACTSC 332).
Case: Concrete Constructions Group Pty Ltd v Coddlestone Pty Ltd [1995] ACTSC 332
Outcome: cited
assuming that the effect of cl 3.3 and Annexure 1 is that an audit opinion is akin to a "Dobbs" certificate as submitted by the applicants, I do not accept that the position as to the audited profits before tax is so finally and conclusively determined by the tender of the Deloitte Touche Tohmatsu audit report that the respondents are not permitted to challenge the findings of the report on the basis that it does not comply with Annexure 1, which provided the machinery of calculation adverted to in cl 3.3. The High Court in Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 accepted that a clause of this nature should not be interpreted as covering all grounds which go to the validity of the amount certified, for example illegality (at 651). Similarly, the Courts have found that a certificate can be challenged on such grounds as fraud and obvious error ( Permanent Trustee Company Limited v Gulf Import and Export Company [2008] VSC 162) , although if the certificate is properly tendered the onus falls upon the defendant to demonstrate by acceptable evidence that the certificate is incorrect ( Commonwealth Bank of Australia v Oberdan [2000] SASC 428 at [14] , Concrete Constructions Group Pty Ltd v Coddlestone Pty Ltd [1995] ACTSC 332).
Case: Corumo Holdings Pty Ltd v C Itoh Ltd (1991) 24 NSWLR 370
Outcome: cited
agree with the respondents that any ambiguity in relation to cl 4 ought be resolved in their favour. Not likely do the Courts assume that a party to a contract gives up all defences available at law. However in my view the respondents' defence with respect to the variations to the share sale agreement are not assisted by their submissions in respect of cl 4. Unlike the situation as considered in Corumo Holdings (1991) 24 NSWLR 370 , variations to the share sale agreement in this case were not such as to impact on the obligations of the respondents. Prima facie , the respondents are bound by cl 4 of the Forbes Guarantee. 6. Was the transaction resulting in the acquisition of Favco by Forbes Australia an alteration in the factual substratum sufficient to discharge the respondents as guarantors? In relation to this point the respondents submit in summary: The applicants submit in summary: The acquisition of Favco was Mr Forbes' idea alone. The evidence of Mr Poh, which Mr Forbes did not dispute in his evidence in chief, was that Mr Poh expressly told Mr Forbes that it was his (that is, Mr Forbes') decision. Mr Forbes, as chief executive officer, had exclusive control over such expenses of the company. The acquisition of Favco, being Mr Forbes' own decision, cannot alleviate him of his responsibility under the profit guarantee. Consideration
Case: Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713
Outcome: cited
Dixon J observed in Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 720, the jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the respondents which could be avoided without risk of injustice to the applicant. His Honour also said that a litigant is entitled to submit a claim for determination notwithstanding that its foundation may be slender; and It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped. (at 720) Abuses of procedure usually fall into one of three categories:
Case: Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising &amp; Addressing Co Pty Ltd [1975] HCA 49 ; (1975) 133 CLR 72
Outcome: cited
principles represent the law in Australia ( Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising &amp; Addressing Co Pty Ltd [1975] HCA 49 ; (1975) 133 CLR 72 , Northside Developments Pty Ltd v Registrar-General [1990] HCA 32 ; (1990) 170 CLR 146 , Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; [2004] 218 CLR 451).
Case: David Towney v Minister for Land &amp; Water Conservation for NSW [1997] FCA 656
Outcome: cited
courts have recognised the importance of access to source financial documentation in the face of conflicting financial evidence (for example, Hamilhall Pty Ltd v AT Phillips Pty Ltd [1994] FCA 1446 ; (1994) 54 FCR 173 , ALF No 12 Pty Ltd v Starkey [2006] QSC 297). However the fact that source financial documentation is not available does not mean that the Court is unable to make a determination on a question of financial position (for example, David Towney v Minister for Land &amp; Water Conservation for NSW [1997] FCA 656 , ALF No 12 Pty Ltd v Starkey [2006] QSC 297).
Case: Duffy Bros Fruit Market (Campbelltown) v Gumland Property Holdings Pty Ltd [2007] NSWCA 7
Outcome: cited
in any event I consider the facts that the profit forecasts which formed the framework for negotiations and discussions in relation to the profit guarantee related only to the Brisbane-based business of Forbes Australia, and that there was no suggestion prior to 22 September 1997 that Forbes would undergo any radical expansion in its operations, are of no moment in relation to the liabilities of the respondents as guarantors. I take this view because I consider that the acquisition of Favco in the circumstances I have outlined was actually, to paraphrase comments of Phillips J in City of London v New Hampshire Insurance Company (unreported, Phillips J Queens Bench Division (Commercial Court) 18 January 1991), discussed in Butterworth's Journal of International Banking and Financial Law , March 1991, pp 144-5 and cited in Duffy Bros Fruit Market (Campbelltown) v Gumland Property Holdings Pty Ltd [2007] NSWCA 7 at [220] ) an event "arising out of a contemplated course of dealing" and as such it remained within the scope of the guarantee. No provision of the share sale agreement or the guarantees signed by the respondents limited the activities of Forbes Australia following execution of the share sale agreement. The expansion of the business of Forbes Australia under the control of Mr Forbes as chief executive officer by the acquisition of Favco was not an event which could be considered as outside the terms of either the share sale agreement or the relevant guarantees. There was no covenant in any relevant agreement that, for example, Forbes Australia would continue to operate a business based only in Brisbane (contrast for example Spencer, Turner and Boldero v Lotz (1916) 32 TLR 373 where the Court held that the intention of the parties was that the guarantee should only be in respect of goods supplied in a certain location and not otherwise).
Case: Eastwood v Kenyon [1840] EngR 80 ; (1840) 11 A &amp; E 438 , 113 ER 482
Outcome: cited
is trite law that past consideration is no consideration ( Eastwood v Kenyon [1840] EngR 80 ; (1840) 11 A &amp; E 438 , 113 ER 482 , Roscorla v Thomas [1842] EngR 70 ; (1842) 3 QB 234 , 114 ER 496, and see the discussion in such learned texts as Chitty on Contracts (30th ed, Vol 1, Sweet &amp; Maxwell, 2008) at 270 et seq and Carter JW, Carter on Contract (Vol 1 looseleaf, Butterworths, 2002) at [06-230] et seq). However where the giving of the consideration and the making of the promise are substantially one transaction, the exact order of events is not decisive and the consideration is treated as executed consideration rather than past consideration (Carter JW, Carter on Contract (Vol 1 looseleaf, Butterworths, 2002) at [06-250], Chitty on Contracts (30th ed, Vol 1, Sweet &amp; Maxwell, 2008) at 271). So, for example, a contract to erect buildings on land and a contract to grant of lease of land were in fact one transaction, notwithstanding that the lease was not entered until the relevant buildings were completed: Westminster City Council v Duke of Westminster [1991] 4 All ER 136 , discussed in Chitty at 271). Further, executed consideration is good consideration in circumstances where an act is done at the request of the promisor, it is understood that payment would be made, and the payment is legally recoverable ( re Casey's Patents [1892] 1 Ch 104 , Pao On v Lau Yiu Long [1979] UKPC 2 ; [1980] AC 614 at 629).
Case: Equus Financial Services Limited v Sabri [1994] FCA 1331
Outcome: cited
legal principles emerging from Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 have been largely confined to circumstances where a banker's certificate has been issued as to the amount of indebtedness of a debtor to the bank (for example Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , Je Maintiendrai Pty Ltd v Australia and New Zealand Banking Group Ltd (1985) 128 SASR 70, Campbell v National Australia Bank Ltd [1994] SASC 4526 , Equus Financial Services Limited v Sabri [1994] FCA 1331 , George Biritz v National Australia Bank Limited [1995] VSC 91 , Shomat v Rubenstein (1995) 124 FLR 284 , Thurwood v First for Finance Pty Ltd [1997] FCA 559 , Australia &amp; New Zealand Banking v Pan Foods Company Importers &amp; Distributors Pty Ltd [1998] VSC 346 , Jenkins v National Australia Bank Ltd [1999] VSCA 33 , State Bank v Lo [2000] NSWSC 1191 , State Bank of NSW v Kit Cheng Chia [2000] NSWSC 552 , Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305 , Julong Pty Ltd v Fenn [2002] QCA 529 , Apple Computer [2003] NSWSC 126 , Commonwealth Bank of Australia v Bouwman [2003] WASC 205 , Timms v Commonwealth Bank of Australia [2004] NSWSC 76 , Permanent Trustee Company Limited v Gulf Import and Export Company [2008] VSC 162). Since and possible because of Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 , bankers' certificates have become well-known in practice. That is not to say that the principle articulated in Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 has not been extended beyond the banker/customer/surety relationship, however circumstances in which the Dobbs [1935] HCA 49 ; (1935) 53 CLR 643 principle is applicable are primarily confined to those involving the issue of a certificate as to the existence of a fact pursuant to legislation, or certain types of agreement, for example: