mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Freeman &amp; Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480
Outcome: cited
of actual and ostensible authority in agency law are well-known. A succinct explanation was given by Diplock LJ in Freeman &amp; Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 502: An "actual" authority is a legal relationship between principal and agent created by a consensual agreement to which they alone are parties. Its scope is to be ascertained by applying ordinary principles of construction of contracts, including any proper implications from the express words used, the usages of trade, or the course of business between the parties ... An "apparent" or "ostensible" authority, on the other hand, is a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted upon by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the "apparent" authority, so as to render the principal liable to perform any obligations imposed upon him by such a contract. To the relationship so created the agent is a stranger. He need not be (although he generally is) aware of the existence of the representation but he must not purport to make the agreement as principal himself. The representation, when acted upon by the contractor by entering into a contract with the agent, operates as an estoppel, preventing the principal from asserting that he is not bound by the contract. It is irrelevant whether the agent had actual authority to enter into the contract. We have already indicated that actual authority may be implied. It is, however, important to emphasise that the authority impliedly granted by the principal to the agent must be such as could be validly granted by express agreement.
Case: George Biritz v National Australia Bank Limited [1995] VSC 91
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: Guest v Commissioner of Taxation [2007] FCA 193
Outcome: cited
have noted the absence of witnesses capable of giving evidence as to the Deloitte Touche Tohmatsu report, and the lack of opportunity of the respondents to test the contents of the report. This is not, however, automatically fatal to the admissibility of a business record. As Heerey J observed in Guest v Commissioner of Taxation [2007] FCA 193 at [25] : The terms of s 69(2)(a) do not suggest that it is an essential precondition of admissibility that the "person" in question be identified. The ordinary meaning of the language is that it is sufficient that the person who made the representation, whoever he or she is, had or might reasonably be supposed to have had, personal knowledge of the asserted fact. The policy behind the provision is clear enough. Routine business records, made before any legal proceeding arises or is contemplated (cf the exception in s 69(3)) , have an inherent likelihood of reliability which outweighs the common law's aversion to hearsay evidence where the maker of a statement cannot be tested by cross-examination. The utility of s 69 would be greatly diminished if it were necessary to locate among large organisations, perhaps over a long period of time, persons who made representations, often in circumstances where the practical needs of the organisation did not require any identification at the time the representations were made.
Case: Hamilhall Pty Ltd v AT Phillips Pty Ltd [1994] FCA 1446 ; (1994) 54 FCR 173
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: Holme v Brunskill [1877] 3 QBD 495
Outcome: cited
is settled law that a surety will be discharged from his or her obligations where there is a fundamental alteration to the guaranteed obligations to which the surety has not consented: Ankar [1987] HCA 15 ; (1987) 162 CLR 549 , Wallace-Smith v Thiess Infraco (Swanston) Pty Ltd [2005] FCAFC 49 at [302] . As the majority said in Ankar (1987) 162 CLR 546 after discussing a number of English cases: These statements of principle ... indicate that the principle is the by-product, not so much of the general law of contract, as of the special relationship between creditor and surety arising out of the suretyship contract upon which equity fastened to protect the surety when the creditor's conduct affected the surety's liability: Holme v Brunskill . According to the English cases, the principle applies so as to discharge the surety when conduct on the part of the creditor has the effect of altering the surety's rights, unless the alteration is unsubstantial and not prejudicial to the surety. The rule does not permit the courts to inquire into the effect of the alteration. The consequence is that, to hold the surety to its bargain, the creditor must show that the nature of the alteration can be beneficial to the surety only or that by its nature it cannot in any circumstances increase the surety's risk, e.g. a reduction in the debtor's debt or in the interest payable by the surety. The mere possibility of detriment is enough to bring about the discharge of the surety. (at 559-560) In Holme v Brunskill [1877] 3 QBD 495 Cotton LJ (Thesiger LJ concurring) said: The true rule in my opinion is, that if there is any agreement between the principals with reference to the contract guaranteed, the surety ought to be consulted, and that if he has not consented to the alteration, although in cases where it is without inquiry evident that the alteration is unsubstantial, or that it cannot be otherwise than beneficial to the surety, the surety may not be discharged; yet, that if it is not self-evident that the alteration is unsubstantial, or one which cannot be prejudicial to the surety, the Court, will not, in an action against the surety, go into an inquiry as to the effect of the alteration, or allow the question, whether the surety is discharged or not, to be determined by the finding of a jury as to the materiality of the alteration or on the question whether it is to the prejudice of the surety, but will hold that in such a case the surety himself must be the sole judge whether or not he will consent to remain liable notwithstanding the alteration, and that if he has not so consented he will be discharged. (at 505-506)
Case: Je Maintiendrai Pty Ltd v Australia and New Zealand Banking Group Ltd (1985) 38 SASR 70
Outcome: cited
I have already observed, as a general proposition the law construes terms in guarantees contra proferentum in the surety's favour. It is clear that the profit guarantee under cl 3.3 exists solely for the benefit of Forbes Asia. Such a clause should be strictly construed ( Je Maintiendrai Pty Ltd v Australia and New Zealand Banking Group Ltd (1985) 38 SASR 70 at 71, Apple Computer [2003] NSWSC 126 at [127] , O'Donovan J &amp; Phillips J, The Modern Contract of Guarantee (4th ed, looseleaf) at 5.920). The 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: Jenkins v National Australia Bank Ltd [1999] VSCA 33
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: Julong Pty Ltd v Fenn [2002] QCA 529
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: Koenigsblatt v Sweet [1923] 2 Ch 314
Outcome: cited
fact that the oral agreement between Mr Poh and Mr Forbes did not result in a written amendment to the Forbes Guarantee does in my view detract from the validity of the agreement with respect to the 1998 profit shortfall so far as concerns Mr Forbes, where the agreement was implemented by reference to journal entries in the accounts of Forbes Australia (cf Koenigsblatt v Sweet [1923] 2 Ch 314). Notwithstanding the agreement reached by Mr Poh and Mr Forbes however, it also appears clear that despite the relevant journal entry Forbes Australia continued to pay Mr Forbes rent in respect of the Lot 8 lease (TS p 302 ll 9-11). Subsequently a journal entry reversing the prepayment was entered in Forbes Australia's general ledger on 30 June 1999. The fact that this event occurred does not appear to be in doubt (for example evidence that it occurred was given by Mr Brauer in his affidavit sworn 25 January 2006 para 28). Prima facie on these facts, it follows that if the 1998 profit shortfall agreed by the parties on 14 January 1999 is enforceable, not only is that amount ($127,284) outstanding from the respondents, but because Forbes Australia continued to pay rent of Lot 8 and Lot 9 and any purported prepayment of rent was reversed in the accounts, the applicants have substantiated their claims that:
Case: Morley v Boothby [1825] EngR 575 ; (1825) 3 Bing 107 ; 130 ER 455
Outcome: cited
more substance is the claim by the respondents that, because the nominated consideration for the respondents entering the Forbes Lot 8 Lease Guarantee was the previous agreement of Forbes Australia to enter into the Lot 8 Lease with the respondents, the consideration for this agreement is past consideration and invalid. Of particular moment is the fact that the Forbes Lot 8 Lease Guarantee is not in the form of a deed, where consideration would have been unnecessary ( Morley v Boothby [1825] EngR 575 ; (1825) 3 Bing 107 ; 130 ER 455).
Case: Northside Developments Pty Ltd v Registrar-General [1990] HCA 32 ; (1990) 170 CLR 146
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: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; [2004] 218 CLR 451
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: Pao On v Lau Yiu Long [1979] UKPC 2 ; [1980] AC 614
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: Parker v QBSA [2000] QCA 422
Outcome: cited
observed by McPherson J in Parker v QBSA [2000] QCA 422 at [13] , the provision concerning conclusiveness of certificate of title under the Torrens system of registration is perhaps the best known Australian legislative example of the issue of a certificate having a final effect.
Case: re Casey's Patents [1892] 1 Ch 104
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: Roach and Ors v Page and Ors (No 27) [2003] NSWSC 1046
Outcome: cited
purpose of the s 69 exception to the hearsay rule for business records was noted by Sperling J in Roach and Ors v Page and Ors (No 27) [2003] NSWSC 1046 at [11] : The thinking behind the section is clear enough. Things recorded or communicated in the course of the business and constituting or concerning business activities are likely to be correct. There is good reason for the courts to afford to such records the same kind of reliability as those engaged in business operations customarily do. The same is not true of publications made for wider dissemination, for entertainment, for advertising or for public relations purposes. Such publications are justifiably received with healthy scepticism.
Case: Roscorla v Thomas [1842] EngR 70 ; (1842) 3 QB 234 , 114 ER 496
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).