mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622
Outcome: considered
fourth category was recognised by McLelland J in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 and on appeal in G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 where McHugh JA delivered the Court of Appeal's judgment and observed that the magnitude, subject matter or complexities of a transaction may indicate that an agreement was a limited one not intended to have legal effect (634D) but that what was critical was the parties' intention objectively ascertained, and that this intention should prevail (634E-F). In Uranium Equities Ltd [2008] WASCA 33 ; 36 WAR 97 , the Supreme Court of Western Australia (Court of Appeal) stated at [129] that the fourth Masters v Cameron category was a variation of the first category. The use of such expressions supports a finding of an intention to contract. In Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd 40 NSWLR 622 , McLelland J, in finding that by an exchange of letters the parties to an alleged agreement mutually communicated their respective assents to be legally bound by terms capable of having contractual effect, afforded the expression "legally binding" primacy despite the expression "agreement in principle" also found in the relevant agreement (628). His Honour thought that the case fell into the fourth category as recognised in Sinclair, Scott &amp; Co [1929] HCA 34 ; 43 CLR 310 (629F) . The appeal from McLelland J's judgment G R Securities v Baulkham Hills Private Hospital 40 NSWLR 631 was dismissed. McHugh JA accepted in line with Sinclair, Scott &amp; Co [1929] HCA 34 ; 43 CLR 310 , that it was possible for the parties to be bound immediately and agree to substitute for the first contract a further contract containing additional terms (634G). Further, McHugh JA applied the general rule applicable to every contract explained by Mason J in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 at 607 that each party was obliged to do all that was necessary on his part to enable the other party to have the benefit of the contract.
Case: Buckland v Buckland [1900] 2 Ch 534
Outcome: cited
supports an argument that the agreement recorded in the recitals for CREC to build or "execute" the railway should be given effect and should be treated as an agreement between FMG and CREC even where the operative provisions of the framework agreement do not contain such a provision and there is nothing inconsistent with such a construction in the operative provisions: Buckland v Buckland [1900] 2 Ch 534 at 540.3; MacKenzie v Childers (1889) 43 Ch D 265 at 274.7, 275.4-276.1; Ex parte Dawes; in re Moon (1886) 17 QBD 275 , 286.8, 288.2, 289.7; Aspdin v Austin (1844) 5 QB 671 at 683. This is even more so where, as here, the framework agreements were not drawn by lawyers. They were drafted by Heyting, an engineer, who also holds a Masters of Business Administration and who had some training in contract management. In those circumstances, arguably, a distinction between recitals and operational clauses should not be rigorously applied in an attempt to determine the parties' intention, determined objectively. Expressly, the recitals proceed on the basis that there is an agreement for the relevant Chinese contractor to build the infrastructure which is sought to be recorded in the framework agreements. The recitals do not say or imply that what follows is merely an informal arrangement, or a mere agreement to negotiate.
Case: Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851
Outcome: cited
where there is a finding of intention to deceive, the court may more readily infer that the intention has been or in all probability will be effective: Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 at 861; S &amp; I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd [1999] FCA 316 ; (1998) 88 FCR 354 at 362; Campomar Sociedad [2000] HCA 12 ; 202 CLR 45 at [33] and National Exchange [2004] FCAFC 90 ; 22 ACLC 609 at [63] per Jacobson and Bennett JJ.
Case: Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1
Outcome: referred to
relies upon the following authorities in support of its submission that the framework agreements are bare agreements to negotiate the scope and terms, in each case, of a further agreement to build transfer and finance the relevant Project infrastructure and that such agreements are not enforceable: Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 ; Jobern Pty Ltd v Breakfree Resorts (Victoria) Pty Ltd [2007] FCA 1066 ; Walford v Miles [1992] 2 AC 128. Coal Cliff Collieries 24 NSWLR 1 concerned the enforceability of an agreement to negotiate a complex coal mining joint venture. The parties had agreed on a heads of agreement document for the proposed joint venture which included the statement: "...The parties will forthwith proceed in good faith to consult together upon the formulation of a more comprehensive and detailed Joint Venture Agreement...". The Court of Appeal (Kirby P, Handley JA and Waddell A-JA) held that the statement was not binding as a contractual promise. Kirby P, with whom Waddell A-JA agreed, held at p 27 that the promise, having regard to the context in which it was made, should be classified as too illusory or too vague and uncertain to be enforceable. Handley JA held at pp 42-43 that a promise to negotiate in good faith is illusory and therefore cannot be binding because there are no identifiable criteria by which the content of the obligation to negotiate in good faith can be determined. Jobern [2007] FCA 1066 involved a contractual dispute where the parties had executed a document entitled 'Heads of Agreement' (HofA), clause 3.3 of which stated: "Each party will conduct all such negotiations in good faith to ensure that the terms set out in these Heads of Agreement are given full effect". It was not in dispute in Jobern that the parties were bound by the HoFA, which Gordon J stated to be a final agreement within the first category described in Masters v Cameron [1954] HCA 72 ; 91 CLR 353 at [106] . However Gordon J considered that cl 3.3 was uncertain because it suffered from the same problems referred to by Kirby J in Coal Cliff Collieries 24 NSWLR 1 at [130]. In my view Coal Cliff Collieries 24 NSWLR 1, Jobern [2007] FCA 1066 and Walford [1992] 2 AC 128 do not assist ASIC. I do not take Coal Cliff Collieries as authority for the proposition that a bare agreement to negotiate in good faith is not enforceable, as submitted by ASIC. In my view, that case is authority for the proposition that a promise to negotiate in good faith may, in particular circumstances, be enforceable, depending on the precise terms as construed from the contract. In Jobern [2007] FCA 1066 , it was not in dispute that the heads of agreement document was binding only the negotiation clause was held to be uncertain. In Walford [1992] 2 AC 128 , the agreement that was found to be uncertain was a 'lock-in' agreement committing the parties to negotiate with each other, which is to be distinguished from the types of obligations found in the framework agreements under consideration in the present case.
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing &amp; Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466
Outcome: referred to
140(1) of the Evidence Act 1995 (Cth) (the Evidence Act ) prescribes the standard of proof in a civil proceeding as the balance of probabilities, and s 140(2) provides that the Court may take into account, in deciding whether it is so satisfied, the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing &amp; Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 the Full Court noted at [31] that Dixon J's classic discussion in Briginshaw appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account. In conclusion, the standard of proof that I must apply is the balance of probabilities as prescribed by s 1332, and I accept that in deciding whether ASIC's allegations are made out on the balance of probabilities I am required to take into account the causes of action and the gravity of the matters alleged and their consequences: s 140(2) Evidence Act ; Briginshaw [1938] HCA 34 ; 60 CLR 336. If inferences are to be drawn, ASIC has to establish that the circumstances appearing from the evidence give rise to a reasonable and definite inference and not merely to conflicting inferences of equal degrees of probability: Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287 ; (2009) 256 ALR 199 at [186] ; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; 162 FCR 466 at [38] . In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 , the Court discussed the Adler and Rich cases and concluded at [76] that there is no reason in civil proceedings for pecuniary penalties to deny the applicability of the principles in Jones v Dunkel provided that in doing so the court proceeds in accordance with the principles in relation to s 140 of the Evidence Act , which prescribes he civil standard as the applicable standard of proof. I have discussed the standard of proof earlier.
Case: Council of the New South Wales Bar Association v Power [2008] NSWCA 135 ; (2008) 71 NSWLR 451
Outcome: referred to
Council of the New South Wales Bar Association v Power [2008] NSWCA 135 ; (2008) 71 NSWLR 451 at [21] , a proceeding seeking removal of a legal practitioner from the Roll, Hodgson JA, with whom Beazley and McColl JJA agreed, referred to the High Court's conclusion in Azzopardi [2001] HCA 25 ; 205 CLR 50 that it was open to a trial judge in a criminal case to make a comment relating to the absence of evidence of additional facts peculiarly within the knowledge of the accused. Hodgson JA went on to say at [22] concerning the case before him that: If this had been a criminal trial, then in my opinion what the High Court said in Azzopardi would have meant that a jury could have been told that inferences from proved facts could more safely be drawn because the opponent elected not to give any explanation in terms of additional facts peculiarly within his knowledge or any evidence of such facts. In my opinion, if such Jones v Dunkel reasoning is available to a jury in a criminal trial, it must a fortiori be available to a court in civil proceedings such as the present. That would be so, even if these civil proceedings are regarded as proceedings for a civil penalty. I note that a similar view was expressed by Hill J in Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd [2001] FCA 1800 ; (2001) 201 ALR 502 at [33] .
Case: Ex parte Dawes; in re Moon (1886) 17 QBD 275
Outcome: cited
supports an argument that the agreement recorded in the recitals for CREC to build or "execute" the railway should be given effect and should be treated as an agreement between FMG and CREC even where the operative provisions of the framework agreement do not contain such a provision and there is nothing inconsistent with such a construction in the operative provisions: Buckland v Buckland [1900] 2 Ch 534 at 540.3; MacKenzie v Childers (1889) 43 Ch D 265 at 274.7, 275.4-276.1; Ex parte Dawes; in re Moon (1886) 17 QBD 275 , 286.8, 288.2, 289.7; Aspdin v Austin (1844) 5 QB 671 at 683. This is even more so where, as here, the framework agreements were not drawn by lawyers. They were drafted by Heyting, an engineer, who also holds a Masters of Business Administration and who had some training in contract management. In those circumstances, arguably, a distinction between recitals and operational clauses should not be rigorously applied in an attempt to determine the parties' intention, determined objectively. Expressly, the recitals proceed on the basis that there is an agreement for the relevant Chinese contractor to build the infrastructure which is sought to be recorded in the framework agreements. The recitals do not say or imply that what follows is merely an informal arrangement, or a mere agreement to negotiate.
Case: Fame Decorator Agencies Pty Limited v Jeffries Industries Ltd [1998] HCA 30 ; (1998) 16 ACLC 1 ,235
Outcome: referred to
Fame Decorator Agencies Pty Limited v Jeffries Industries Ltd [1998] HCA 30 ; (1998) 16 ACLC 1 ,235 at 1,240-1,241, a case also dealing with s 995, Gleeson CJ with whom Powell JA agreed stated that the parliament regarded is as desirable that, although s 52 of the TPA may have applied to some cases of dealing in securities, there should be a similar provision having as its focus conduct in relation to securities. His Honour added that much of the case law which has developed around s 52 will apply also to s 995.
Case: Faulkner v Thomas [2000] TASSC 159
Outcome: considered
will now turn to the cases cited by ASIC in support of its submission that the framework agreements were unenforceable because they were uncertain due to a lack of essential terms such as price: Hall v Busst 104 CLR 207; Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd (1994) 2 VR 106 at 168-177 per Tadgell J; Faulkner v Thomas [2000] TASSC 159 at [34] ; and Southern Cross Financial Group (Newcastle) Pty Ltd v Rodrigues (2005) 66 IPR 166 at [36], [44]. Faulkner v Thomas [2000] TASSC 159 concerned a partnership agreement which included a clause containing an elaborate mechanism for the determination of the purchase price of the assets and goodwill of a deceased partner, with the price to be fixed by a valuer. Underwood J held at [34] that the rule imposed on the valuers for the ascertainment of the value of the goodwill was completely meaningless by virtue of the omission of a dollar figure from a particular subparagraph of the clause. Underwood J stated that the rule that had to be applied for the ascertainment of the value of the goodwill was incomplete in just the same way as if a contract specified that "the purchase price of the goods sold is $____". Accordingly, the uncertainty created by this omission rendered the whole contract void for uncertainty. Underwood J went on in that paragraph to state: "It is not for the Court to supply the omission upon some notions of general fairness" and cited Hall v Busst as authority for that proposition. In the present matter, my view is that the pricing mechanism in the framework agreements is arguably certain for reasons I will explain below.
Case: Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd [2002] 2 NZLR 433
Outcome: referred to
have concluded, for reasons which I explain later in this Part that, in the case of each of the framework agreements, there was an intention to contract. This, as a starting point considerably strengthens the case for the defendants because in such circumstances a Court will always strive to give effect to that intention: Hillas &amp; Co Ltd v Arcos Ltd [1932] UKHL 2 ; [1932] All ER Rep 494 ; York Air Conditioning and Refrigeration (A/sia) Pty Ltd v The Commonwealth [1949] HCA 23 ; (1949) 80 CLR 11 ; G R Securities 40 NSWLR 631; Fletcher Challenge Energy [2002] NZLR 433 . In the same vein in Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd [2002] 2 NZLR 433 at 445, Blanchard J observed: The court has an entirely neutral approach when determining whether the parties intended to enter into a contract. Having decided that they had that intention, however, the Court's attitude will change. It will then do its best to give effect to their intention and, if at all possible, to uphold the contract despite any omissions or ambiguities. At 448, Blanchard J referred to the statement of the English Court of Appeal in Pagnan SpA v Feed Products [1987] 2 Lloyd's Rep 601: Merely because an important term is deferred to be settled on a future occasion that does not mean that there is no intention to be bound.
Case: Foley v Classique Coaches Limited [1934] 2 KB 1
Outcome: considered
Foley v Classique Coaches Limited [1934] 2 KB 1 , the sale of land under a written contract was subject to the buyer entering into a supplemental agreement to purchase petrol and/or oil from the seller, the terms of which had been agreed between them. The supplemental agreement stated that petrol would be purchased "at a price to be agreed by the parties in writing and from time to time", and provided for arbitration in the event of any dispute or difference arising on the subject matter or construction of the agreement. Scrutton LJ agreed at p 10 that there was an effective and enforceable contract, although as to the future no definite price had been agreed with regard to the petrol. Greer LJ held at p 12 that it was appropriate to imply a term in the contract that the price of the petrol supplied shall be reasonable and in no way inconsistent with the agreement. Maugham LJ held that the contract was enforceable, inter alia, because implied in the obligation to sell and purchase the petrol at an agreed price was words to the effect that, in the absence of agreement, the arbitration clause provided a means for the determination of a reasonable price for the petrol.
Case: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82
Outcome: referred to
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 , the Court (Bowen CJ, Lockhart and Fitzgerald JJ) stated at 88: An expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and perhaps that there is a basis for the opinion. At least if those conditions are met, an expression of opinion, however erroneous, misrepresents nothing. A reasonable reader of the disclosures made by FMG and Forrest on FMG's behalf would have expected FMG to have a genuine and reasonable basis for making those statements: Global Sportsman v Mirror Newspapers [1984] FCA 180 ; 2 FCR 82 at 88; James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 372 per Toohey J; Wright v Wheeler Grace &amp; Pierucci Pty Ltd (1988) ATPR 40-865 at 49,375-49,376 per French J (affirmed in Wheeler Grace &amp; Pierucci Pty Ltd v Wright (1989) 16 IPR 189) ; Bateman v Slayter (1987) 71 ALR 553 at 559 per Burchett J.
Case: Glorie v WA Chip and Pulp Co Pty Ltd [1981] FCA 224 ; (1981) 55 FLR 310
Outcome: referred to
Glorie v WA Chip and Pulp Co Pty Ltd [1981] FCA 224 ; (1981) 55 FLR 310 at 328, Morling J stated: I do not think that a statement is necessarily misleading or deceptive if it cannot be demonstrated to be correct beyond any doubt. Nor is it necessarily misleading or deceptive merely if it is not accompanied by words indicating that a contrary view is held by others. If it were otherwise, public discussion and the free expression of opinions would be greatly inhibited. This would especially be the case where the statement is one of opinion or of mixed fact and opinion. When such a statement is made, the person to whom it is addressed will, in most cases, understand that there may be room for another opinion on the same matter. Where that is the case, I find it difficult to characterize the statement as being misleading or deceptive. The position would be different, of course, when a statement of opinion is made by a person who does not, in fact, hold that opinion. It might be thought that the disclosures, to the effect that FMG had executed binding build and transfer agreements with each of the Chinese Contractors, ought be characterised as statements of fact rather than opinion. Certainly, they were assertive in nature and were not expressly said to be expressions of opinion. However, I consider that they constitute mixed fact and law. As an objective matter, an assertion as to the meaning and legal effect of an agreement is necessarily the product of an opinion formulated to that effect. However the disclosures are characterised, a question as to the reasonableness of the underlying opinion and, in this case, whether or not it was honestly held, arises.
Case: Godecke v Kirwan [1973] HCA 38 ; (1973) 129 CLR 629
Outcome: considered
v Kirwan [1973] HCA 38 ; (1973) 129 CLR 629 involved an agreement for the sale of land which contained a provision that, if required, a further agreement would be executed containing the agreed terms and such other terms as the seller's solicitors may 'reasonably require'. Despite this provision, it was held that there was a binding contract. Walsh J, with whom Mason J agreed, stated at 642: ' It is clearly established that a binding agreement may be made which leaves some important matter, e.g. the price, to be settled by the decision of a third party'. Gibbs J concurred but cast the principles slightly more narrowly in some respects (646-8). He stated at 648 that the fact that the further agreement contemplated in the case before him would contain additional covenants and conditions if the vendor's solicitors reasonably required them did not mean that the parties had not reached complete agreement. This case was decided after Hall v Busst (1960) 104 CLR 207, an authority relied on by ASIC . In Uranium Equities [2008] WASCA 33 ; 36 WAR 97 , a recent judgment of the Supreme Court of Western Australia (Court of Appeal), the Court stated at [127]: There is some overlap between the requirements of intention to create legal relations and certainty. If a contract is legally uncertain, this might indicate that the parties did not intend to create legal relations. A contract can be uncertain in various ways, one of these being incompleteness, in the sense that essential terms are lacking: Thorby v Goldberg [1964] HCA 41 ; (1964) 112 CLR 597 , 603 (Kitto J); Godecke v Kirwan [1973] HCA 38 ; (1973) 129 CLR 629 , 646 - 647 (Gibbs J). The overlap between intention and uncertainty is at its greatest in cases in which agreement on some matters is deliberately postponed. If what is postponed is essential to the agreement (itself a question that largely depends upon the intention of the parties) , the agreement, to the extent that it has been reached, will be void. Also, the fact that essential terms have been left over for later agreement will militate against a finding that the parties intended to create contractual relations. (Emphasis added)
Case: G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Outcome: considered
fourth category was recognised by McLelland J in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 and on appeal in G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 where McHugh JA delivered the Court of Appeal's judgment and observed that the magnitude, subject matter or complexities of a transaction may indicate that an agreement was a limited one not intended to have legal effect (634D) but that what was critical was the parties' intention objectively ascertained, and that this intention should prevail (634E-F). In Uranium Equities Ltd [2008] WASCA 33 ; 36 WAR 97 , the Supreme Court of Western Australia (Court of Appeal) stated at [129] that the fourth Masters v Cameron category was a variation of the first category.