mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
The Patrick Respondents point out that the Statement of Claim alleges that each of the Patrick Respondents aided and abetted and was knowingly concerned in the contraventions of each of the others. They submit that the Statement of Claim fails to plead material facts, including the knowledge of the essential elements of the contravention and intentional participation: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661. Mr Hutley, in his oral argument, pointed out that the complaint is of practical importance since Patrick is now a subsidiary of Toll, but the other four Patrick Respondents are within another corporate group. 62 Mr Hutley illustrated the point by reference to the pleading alleging contraventions by Patrick. Paragraph 260 pleads that ' in the premises ' Patrick: '260.1 by entering into the first arrangement, made an arrangement ... containing provisions which had the purpose ... or likely effect of substantially lessening competition in each of [twelve markets]. and thereby contravened [s 45(2)(a)(ii) of the TP Act ]; or alternatively 260.2 aided and abetted, or was knowingly concerned in: 260.2.1 the contravention by Patrick Holdings in making the first arrangement...; 260.2.2 the contravention by Patrick Operations in making the first arrangement ...; 260.2.3 the contravention by Patrick Operations No 2 in making the first arrangement...'. 63 The pleadings follow a similar pattern in relation to Patrick's alleged contravention of s 45(2)(b)(ii) of the TP Act and its knowing participation in the contraventions of that sub-paragraph by each of the other three named Patrick Respondents (para 261). They also follow a similar pattern in relation to the second arrangement (paras 262-263). The same form of pleading is repeated for each of those three Patrick Respondents.
Case: Australian Competition and Consumer Commission v Albert (2005) 223 ALR 467
Outcome: cited
Banks are respondents and potentially liable in their own right. ONGC is not a necessary party to the claim against them. It is not necessary for Clough to join ONGC in order to establish its claims against the Banks : Matheson Engineers Pty Limited v El Raghy [1992] FCA 417 ; (1992) 37 FCR 6 at 9; Australian Competition and Consumer Commission v Albert (2005) 223 ALR 467 at [34]. Of course ONGC, whilst not a necessary party, is amenable as a "proper" party to be joined if in the jurisdiction. A "proper", as distinct from a "necessary" party, is a person who has sufficient connexion to the controversy that he or she might be joined, "but whose absence will not affect the constitution of the action": Edge, in the matter of Eco Panels Australasia Pty Ltd (in liq) [2007] FCA 30 at [12] . As a person who would be a proper party if it were in the jurisdiction, ONGC would be thus amenable to the courts jurisdiction under FCR O 8 r 2, Item 18 (like the former FCR O 8 r 1(g)): Quinlan v Safe International F&ouml;rs&auml;krings AB [2005] FCA 1362 at [24] , applying Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305.
Case: Australian Competition and Consumer Commission v Samton Holdings Pty Ltd (2002) 117 FCR 301
Outcome: cited
to this, it should be recognised that equity will generally intervene to ameliorate the application of a legal right if it is employed capriciously or unreasonably or harshly, or oppressively such as to be unconscionable: Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575 at 587-588 and 590-591; NC Seddon &amp; MP Ellinghaus, Cheshire &amp; Fifoot's Law of Contract (8 th Aust. ed) (2002), [20.9]. This doctrine, although distinct from, is very similar to, the implied contractual duty of good faith: Walker v ANZ Banking Group Ltd (No 2) (2001) 39 ACSR 557 , [93]-[96], esp. [96]; Australian Competition and Consumer Commission v Samton Holdings Pty Ltd (2002) 117 FCR 301. Section 51AA of the TPA likewise may afford relevant protection. This however does not mean that the entitlement at law to call on the whole amount under the performance guarantees should be read down from what is otherwise a construction which is in harmony with the contract as a whole and which in its context produces a commercially sensible meaning. Furthermore, to the extent that the calling up of the performance guarantees resulted in an overpayment to ONGC then there would be an entitlement in Clough to an 'accounting' in due course from ONGC: Cargill International SA Antigua Geneva Branch v Bangladesh Sugar &amp; Food Industries Corporation [1996] 4 All ER 563 at 571.
Case: Bachmann Pty Ltd v B.H.P Power New Zealand Ltd [1998] VSCA 40 ; [1999] 1 VR 420
Outcome: discussed
Pty Ltd v B.H.P Power New Zealand Ltd [1998] VSCA 40 ; [1999] 1 VR 420 involved consideration of a letter of credit. The supplier in Bachmann did not seek to establish any case of fraud on the purchaser's part but relied only on the contractual qualification upon the purchaser's powers under the general conditions of the underlying contract to demand payment under the letter of credit. It was conceded that the clause referred to constituted a contractual qualification on the purchaser's powers in relation to the security. This is to be contrasted with earlier Australian cases where the initial question was whether the underlying contract, on its proper construction, qualified the security holder's powers to claim under the security. The only point in the appeal as his Honour put it was as to the content of the qualification at [30].
Case: Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317
Outcome: cited
relation to the application to set aside service of the Amended Application on ONGC, an application under O 9 r 7 of the Federal Court Rules (FCR) results in a review of the original decision to grant leave to serve ex juris and is a rehearing conducted on the basis of additional materials, recognising that a respondent should have "the opportunity to put before the Court any additional facts or arguments which might suggest that leave ought not to have been granted": Tycoon Holdings Limited v Trencor Jetco Inc [1992] FCA 25 ; (1992) 34 FCR 31 at 33; Bray v F Hoffmann-La Roche Limited (2003) 130 FCR 317 at [53] per Carr J. The onus remains on the applicant to satisfy the Court, in light of those additional materials and facts and arguments, that leave should have been granted: Voth v Manildra Flour Mills Proprietary Limited [1990] HCA 55 ; (1990) 171 CLR 538 at 564. The task of the Court, at this early stage of the proceedings, does not require evidence to justify a "finding" of the alleged TPA contravention: Bray v F Hoffman-La Roche Ltd at [96].
Case: Cargill International SA Antigua Geneva Branch v Bangladesh Sugar &amp; Food Industries Corporation [1996] 4 All ER 563
Outcome: cited
to this, it should be recognised that equity will generally intervene to ameliorate the application of a legal right if it is employed capriciously or unreasonably or harshly, or oppressively such as to be unconscionable: Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575 at 587-588 and 590-591; NC Seddon &amp; MP Ellinghaus, Cheshire &amp; Fifoot's Law of Contract (8 th Aust. ed) (2002), [20.9]. This doctrine, although distinct from, is very similar to, the implied contractual duty of good faith: Walker v ANZ Banking Group Ltd (No 2) (2001) 39 ACSR 557 , [93]-[96], esp. [96]; Australian Competition and Consumer Commission v Samton Holdings Pty Ltd (2002) 117 FCR 301. Section 51AA of the TPA likewise may afford relevant protection. This however does not mean that the entitlement at law to call on the whole amount under the performance guarantees should be read down from what is otherwise a construction which is in harmony with the contract as a whole and which in its context produces a commercially sensible meaning. Furthermore, to the extent that the calling up of the performance guarantees resulted in an overpayment to ONGC then there would be an entitlement in Clough to an 'accounting' in due course from ONGC: Cargill International SA Antigua Geneva Branch v Bangladesh Sugar &amp; Food Industries Corporation [1996] 4 All ER 563 at 571.
Case: Clough Engineering Ltd v Oil &amp; Natural Gas Corporation Ltd [2007] FCA 881
Outcome: referred to
maintain service ex juris , Clough needs to demonstrate a prima facie case for the relief claimed: FCR O 8, r 3(2)(c). The threshold for demonstrating a prima facie case is not high. It is whether on the material before the Court, inferences are open which, if translated into findings of fact, would support the relief claimed: Clough Engineering Ltd v Oil &amp; Natural Gas Corporation Ltd [2007] FCA 881 at [36] ; Western Australian v Vetter Tritter (1991) 30 FCR 102 at 110; Puccini Festival Australia Pty Ltd v Nippon Express (Australia) Pty Ltd [2007] VSC 288. It requires the demonstration of an "arguable case", bearing in mind that this requirement is to be met at the outset of the action, "without the advantage of discovery and other procedural aids to the making out of a case": Ho v Akai Pty Limited (in liquidation) [2006] FCAFC 159 at [10] , [12], [37], [43].
Case: Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305
Outcome: cited
Banks are respondents and potentially liable in their own right. ONGC is not a necessary party to the claim against them. It is not necessary for Clough to join ONGC in order to establish its claims against the Banks : Matheson Engineers Pty Limited v El Raghy [1992] FCA 417 ; (1992) 37 FCR 6 at 9; Australian Competition and Consumer Commission v Albert (2005) 223 ALR 467 at [34]. Of course ONGC, whilst not a necessary party, is amenable as a "proper" party to be joined if in the jurisdiction. A "proper", as distinct from a "necessary" party, is a person who has sufficient connexion to the controversy that he or she might be joined, "but whose absence will not affect the constitution of the action": Edge, in the matter of Eco Panels Australasia Pty Ltd (in liq) [2007] FCA 30 at [12] . As a person who would be a proper party if it were in the jurisdiction, ONGC would be thus amenable to the courts jurisdiction under FCR O 8 r 2, Item 18 (like the former FCR O 8 r 1(g)): Quinlan v Safe International F&ouml;rs&auml;krings AB [2005] FCA 1362 at [24] , applying Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305.
Case: Hitchcock v TCN Channel Nine Pty Ltd [2000] Aust Torts Reports p81-550
Outcome: applied
is appropriate, in my view, to seek to resolve the construction issue, despite the interlocutory nature of the motion. The hearing engaged some three days. Full argument was presented on the issue by both sides. There was no suggestion that the evidence before me, bearing on the construction issue, was other than complete. The area of contest is neither beset by difficulty or novelty: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535; Hitchcock v TCN Channel Nine Pty Ltd [2000] Aust Torts Reports p81-550 at [22]-[26].
Case: Ho v Akai Pty Limited (in liquidation) [2006] FCAFC 159
Outcome: cited
maintain service ex juris , Clough needs to demonstrate a prima facie case for the relief claimed: FCR O 8, r 3(2)(c). The threshold for demonstrating a prima facie case is not high. It is whether on the material before the Court, inferences are open which, if translated into findings of fact, would support the relief claimed: Clough Engineering Ltd v Oil &amp; Natural Gas Corporation Ltd [2007] FCA 881 at [36] ; Western Australian v Vetter Tritter (1991) 30 FCR 102 at 110; Puccini Festival Australia Pty Ltd v Nippon Express (Australia) Pty Ltd [2007] VSC 288. It requires the demonstration of an "arguable case", bearing in mind that this requirement is to be met at the outset of the action, "without the advantage of discovery and other procedural aids to the making out of a case": Ho v Akai Pty Limited (in liquidation) [2006] FCAFC 159 at [10] , [12], [37], [43].
Case: Hughes Bros Pty Ltd v Telede Pty Ltd (1989) 7 BCL 210
Outcome: cited
Honour canvassed a number of cases in which the proper construction of the language contained in the standby letter of credit, "... until the party becomes entitled to exercise a right under the contract ..." had been similarly discussed. Those authorities range from requiring no more than a claimed entitlement which is not specious or fanciful: Hughes Bros Pty Ltd v Telede Pty Ltd (1989) 7 BCL 210 to requiring that the holder of the security establish, whether by litigation or arbitration, an actual entitlement to payment of the moneys: Mitsui Kensetsu Corporation Australia Pty Ltd v State of South Australia (unreported Qld Supreme Court, 9 August 1990 per Byrne J).
Case: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Outcome: applied
is appropriate, in my view, to seek to resolve the construction issue, despite the interlocutory nature of the motion. The hearing engaged some three days. Full argument was presented on the issue by both sides. There was no suggestion that the evidence before me, bearing on the construction issue, was other than complete. The area of contest is neither beset by difficulty or novelty: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535; Hitchcock v TCN Channel Nine Pty Ltd [2000] Aust Torts Reports p81-550 at [22]-[26].
Case: Matheson Engineers Pty Limited v El Raghy [1992] FCA 417 ; (1992) 37 FCR 6
Outcome: cited
Banks are respondents and potentially liable in their own right. ONGC is not a necessary party to the claim against them. It is not necessary for Clough to join ONGC in order to establish its claims against the Banks : Matheson Engineers Pty Limited v El Raghy [1992] FCA 417 ; (1992) 37 FCR 6 at 9; Australian Competition and Consumer Commission v Albert (2005) 223 ALR 467 at [34]. Of course ONGC, whilst not a necessary party, is amenable as a "proper" party to be joined if in the jurisdiction. A "proper", as distinct from a "necessary" party, is a person who has sufficient connexion to the controversy that he or she might be joined, "but whose absence will not affect the constitution of the action": Edge, in the matter of Eco Panels Australasia Pty Ltd (in liq) [2007] FCA 30 at [12] . As a person who would be a proper party if it were in the jurisdiction, ONGC would be thus amenable to the courts jurisdiction under FCR O 8 r 2, Item 18 (like the former FCR O 8 r 1(g)): Quinlan v Safe International F&ouml;rs&auml;krings AB [2005] FCA 1362 at [24] , applying Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305.
Case: McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579
Outcome: cited
it were the case that, on its proper construction, ONGC could not call on the guarantees until there was an admitted or established breach of contract, the time at which an arbitral tribunal or court might determine that matter could well be after the performance guarantees had expired: cf Ideas Plus Investments at [39] per Steytler P. Such a construction does not, in my view, make commercial common sense: McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579 at [22] and [23] per Gleeson CJ.
Case: Mitsui Kensetsu Corporation Australia Pty Ltd v State of South Australia (unreported Qld Supreme Court, 9 August 1990 per Byrne J)
Outcome: cited
Honour canvassed a number of cases in which the proper construction of the language contained in the standby letter of credit, "... until the party becomes entitled to exercise a right under the contract ..." had been similarly discussed. Those authorities range from requiring no more than a claimed entitlement which is not specious or fanciful: Hughes Bros Pty Ltd v Telede Pty Ltd (1989) 7 BCL 210 to requiring that the holder of the security establish, whether by litigation or arbitration, an actual entitlement to payment of the moneys: Mitsui Kensetsu Corporation Australia Pty Ltd v State of South Australia (unreported Qld Supreme Court, 9 August 1990 per Byrne J).
Case: Perri v Coolangatta Investments Pty Ltd [1982] HCA 29 ; (1982) 149 CLR 537
Outcome: cited
in my opinion, Clough was obliged under cl 3.3.2 of the Construction Contract to extend the validity of the performance guarantees so that they would be valid for 12 months plus 60 days from the date of completion of Works as varied. On the basis of the two variations to which I have referred, Clough, within a reasonable time of the date of each variation, was required to extend the performance guarantees to 31 March 2008 and June 30 2008 respectively. What is a reasonable time is a question of fact. It depends upon the circumstances and its limit is determined by what is fair to both parties: Perri v Coolangatta Investments Pty Ltd [1982] HCA 29 ; (1982) 149 CLR 537 at 567-568. I do not accept Clough's submissions that the date for Practical Completion was at large and therefore that cl 3.3.2 could not be complied with because the duration of the extension was not clear. Even if it were the case that cl 3.3.2 required Clough to extend the performance guarantees at any time prior to their lapsing, as Clough contends, it was clear as at: (a) 16 April 2007 that Clough was not then prepared to extend the performance guarantees. In a letter to ONGC it advised ONGC that it required the three performance guarantees then held by ONGC to be returned and stated that it was willing to provide a performance bond to the value of 10% of the remaining work, in the amount of US$2.17 million; and (b) 1 June 2007 that the CEO of Clough had no relevant authority from Clough's Board to extend these and in any event such authorisation was, wrongly in my view, stated by him to be subject to ONGC agreeing to "reach a negotiated exit solution". The obligation under cl 3.3.2 is not so conditioned.
Case: Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575
Outcome: cited
to this, it should be recognised that equity will generally intervene to ameliorate the application of a legal right if it is employed capriciously or unreasonably or harshly, or oppressively such as to be unconscionable: Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575 at 587-588 and 590-591; NC Seddon &amp; MP Ellinghaus, Cheshire &amp; Fifoot's Law of Contract (8 th Aust. ed) (2002), [20.9]. This doctrine, although distinct from, is very similar to, the implied contractual duty of good faith: Walker v ANZ Banking Group Ltd (No 2) (2001) 39 ACSR 557 , [93]-[96], esp. [96]; Australian Competition and Consumer Commission v Samton Holdings Pty Ltd (2002) 117 FCR 301. Section 51AA of the TPA likewise may afford relevant protection. This however does not mean that the entitlement at law to call on the whole amount under the performance guarantees should be read down from what is otherwise a construction which is in harmony with the contract as a whole and which in its context produces a commercially sensible meaning. Furthermore, to the extent that the calling up of the performance guarantees resulted in an overpayment to ONGC then there would be an entitlement in Clough to an 'accounting' in due course from ONGC: Cargill International SA Antigua Geneva Branch v Bangladesh Sugar &amp; Food Industries Corporation [1996] 4 All ER 563 at 571.
Case: Puccini Festival Australia Pty Ltd v Nippon Express (Australia) Pty Ltd [2007] VSC 288
Outcome: cited
maintain service ex juris , Clough needs to demonstrate a prima facie case for the relief claimed: FCR O 8, r 3(2)(c). The threshold for demonstrating a prima facie case is not high. It is whether on the material before the Court, inferences are open which, if translated into findings of fact, would support the relief claimed: Clough Engineering Ltd v Oil &amp; Natural Gas Corporation Ltd [2007] FCA 881 at [36] ; Western Australian v Vetter Tritter (1991) 30 FCR 102 at 110; Puccini Festival Australia Pty Ltd v Nippon Express (Australia) Pty Ltd [2007] VSC 288. It requires the demonstration of an "arguable case", bearing in mind that this requirement is to be met at the outset of the action, "without the advantage of discovery and other procedural aids to the making out of a case": Ho v Akai Pty Limited (in liquidation) [2006] FCAFC 159 at [10] , [12], [37], [43].
Case: Quinlan v Safe International Forsakrings AB [2005] FCA 1362
Outcome: cited
Banks are respondents and potentially liable in their own right. ONGC is not a necessary party to the claim against them. It is not necessary for Clough to join ONGC in order to establish its claims against the Banks : Matheson Engineers Pty Limited v El Raghy [1992] FCA 417 ; (1992) 37 FCR 6 at 9; Australian Competition and Consumer Commission v Albert (2005) 223 ALR 467 at [34]. Of course ONGC, whilst not a necessary party, is amenable as a "proper" party to be joined if in the jurisdiction. A "proper", as distinct from a "necessary" party, is a person who has sufficient connexion to the controversy that he or she might be joined, "but whose absence will not affect the constitution of the action": Edge, in the matter of Eco Panels Australasia Pty Ltd (in liq) [2007] FCA 30 at [12] . As a person who would be a proper party if it were in the jurisdiction, ONGC would be thus amenable to the courts jurisdiction under FCR O 8 r 2, Item 18 (like the former FCR O 8 r 1(g)): Quinlan v Safe International F&ouml;rs&auml;krings AB [2005] FCA 1362 at [24] , applying Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305.
Case: Reed Construction Services Pty Ltd v Kheng Seng (Australia) Pty Ltd (1999) 15 BCL 158
Outcome: cited
particular, Clough contends that the delay in its providing the 'Christmas Trees' was caused by breach on the part of ONGC relating to the 'DHPTT Cards'. It also asserts that ONGC was in breach in other respects, such as failing to effect well-completion in relation to the deep water work and that ONGC lost the first 'Christmas Tree' and certain tools, all of which contributed to delays of the Project. The failure to undertake shallow water works, likewise, Clough says, was occasioned by breaches on the part of ONGC. It is not possible to resolve these factual questions and whether those asserted breaches were occasioned by ONGC's own breaches. This in turn gives rise to a prima facie case or a serious issue to be tried, whether based on those asserted breaches, ONGC acted unconscionably contrary to s 51AA of the TPA in calling up the performance guarantees: Reed Construction Services Pty Ltd v Kheng Seng (Australia) Pty Ltd (1999) 15 BCL 158 at 164. However, this does not determine the matter. ONGC contends that Clough is indisputably in breach of its contractual obligations in two further important respects. These concern Clough's obligations to extend the validity of the performance guarantees and to provide documentary proof that relevant insurance cover is being maintained by Clough. ONGC submits that these obligations exist, even assuming that the need for the extensions is the result of breach(es) on its part. I now turn to consider each of these. Breach of cl 3.3.2: The performance guarantees I have, again, set out cl 3.3.2 below, for ease of reference: 3.3.2 In the event completion of Works is delayed beyond the Scheduled Completion Date for any reasons whatsoever, the Contractor shall get the validity of the guarantee suitably extended so as to make it valid for 12 months plus 60 days from the actual date of completion of Works. However if the delay is attributable to the Company, Company shall bear the cost of extension of such performance guarantee for such extended period at the normal bank rates as applicable to International Banking procedures.