mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549
Outcome: cited
As to (1), DFE contends that the warranty was in all circumstances, something so essential to the decision to invest, pursuant to which the deed was being entered into, as to be an essential term of the contract: see Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 (reversed on other grounds at (1938) 61 CLR 286) ; Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549 at 556. 102 Additional factors that favour treating clause 5.1(1) as a condition of the contract are (see Ankar, op. cit., [1987] HCA 15 ; 162 CLR 549 at 557): (a) the difficulties in proving quantum of damage as a suitable remedy, as evidenced by the dispute between the experts on this topic; (b) the plain purpose of the clause in facilitating a properly informed decision as to whether to enter into the SSD in the first place; and (c) the special nature of a share subscription deed in the context of an unlisted public company in which an investor legitimately requires that the decision to invest be one that is made on a fully informed basis by way of a contractual obligation on the company, as the repository of the relevant information, to disclose rather than on any obligation for the investor to hunt out and discover. The warranty is only of real utility if it is a condition permitting rescission. 103 To meet this condition, DFE contends that nothing less than provision of a copy of the two heads of agreement, or at least whichever was considered current to Mr Sharp, was required. Indeed, it was of sufficient moment to be annexed to the SSD, but of course then Mr Sharp would not have signed it and he would not have handed over his cheque. 104 As to (2), the accounting experts called on behalf of the parties, Dr Martin Bloom ('Mr Bloom') on behalf of DFE and Mr Paul Carter ('Mr Carter') on behalf of the respondents, appear to be in agreement that if the first heads of agreement constituted a binding agreement, then it should have been disclosed in the financial accounts of APIR for the year ended 30 June 2003: see the common ground referred to in [117] below.
Case: Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622
Outcome: cited
In Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 at 628 (affirmed by the Court of Appeal as G R Securities v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631), McLelland J said that there was really a fourth category of case, namely, where the parties were content to be bound immediately and exclusively on the terms which they had agreed upon whilst expecting to make a new contract in substitution for their first contract, containing, by consent, additional terms.
Case: Bramble Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Outcome: applied
In undertaking the task of determining, objectively, what the parties' intention was, the Court may have regard to all the relevant circumstances. 'Intention' in this sense means intention to contract, not what the parties intended by the terms of the contract. The relevant circumstances may include prior negotiations or subsequent conduct, although direct expressions of intent made after the contract was arrived at, are not admissible: Bramble Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at [26] per Heydon JA; Anaconda Nickel at [26]; Thompson v White at [100].
Case: Cleary &amp; Anor v Australian Co-operative Foods Ltd &amp; Ors (Nos. 2 and 3) [1999] NSWSC 991 ; (1999) 32 ACSR 701 
Outcome: cited
The pleadings in the SFASC rely on a number of statutory regimes: the regimes under the Corporations Act 2001 ; the ASIC Act; the TP Act and the ACT Act. Section 51AF of the TP Act provides in subs (1) that Part V (Consumer Protection) does not apply to the supply, or possible supply, of services that are financial services and subs (2) provides, inter alia , in para (a) that, without limiting subs (1), s 52 does not apply to conduct engaged in or in relation to financial services. The term 'financial services' is defined in s 4 of the TP Act by reference to the meaning it has in Division 2 of Part 2 of the ASIC Act and includes 'dealing' in a 'financial product' (subs 12BAB(1)(b)), which is defined to include a security (subs 12BAA(7)). The term 'dealing' is defined to include applying for or acquiring, or issuing, a security (subs 12BAB(7)). It is clear from these provisions, in my view, that s 52 of the TP Act does not apply to conduct which consists of DFE's application for and APIR's issue of the 200,000 shares at $2.65 per share nor, in my view, to DFE's acquisition of the 81,904 shares in APIR at $2.65 per share from existing shareholders: see Cleary &amp; Anor v Australian Co-operative Foods Ltd &amp; Ors (Nos. 2 and 3) [1999] NSWSC 991 ; (1999) 32 ACSR 701 per Austin J at [1-107] [1-109]; Re NRMA Ltd; Re NRMA Insurance Ltd [2000] NSWSC 408 ; (2000) 34 ACSR 261 per Santow J at [125] [129].
Case: Commonwealth v Cornwell [2007] HCA 16 ; (2007) 229 CLR 519 
Outcome: distinguished
Subsection 1041I(1) of the Corporations Act 2001 is predicated on a person having suffered loss or damage by the contravening conduct of another person. Subsection 1325(1) is predicated on a person who is a party to the proceeding having suffered, or likely to suffer, loss or damage because of the contravening conduct of another person. Putting aside that the latter provision also applies where a person is likely to suffer loss or damage, and that the nexus in the former provisions is 'by', and in the latter is, 'because of', there can be no dispute that the loss or damage of which both provisions speak must be an actual loss or damage; risk of loss is not sufficient: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525. The contravening conduct, while concerned with s 82 and s 87 of the TP Act, is equally applicable to s 1041I and s 1325 of the Corporations Act 2001 in this respect. However, it was submitted on behalf of the respondents that, in the present context, actual loss meant realised loss and that DFE would suffer no loss, if any, until its shares in APIR were sold; only then would it be possible to say whether or not there is an actual loss. Reliance for this was placed on Wardley Australia, Commonwealth v Cornwell [2007] HCA 16 ; (2007) 229 CLR 519 and Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 , as well as other authorities. 187 The remaining case relied upon by the respondents on this issue, Commonwealth v Cornwell , was a limitation case. It turned on when a loss actually took place in respect of the plaintiff having joined the wrong superannuation fund due to being give the wrong information many years earlier, which he only discovered much later. The High Court found that his actual loss matured only at the end of his service and upon the occurrence of one or more of the statutory contingencies which had to be met for him to be entitled to any statutory benefit at all: at [19]. Until he had an entitlement, which might never arise, he could not suffer a loss in respect of that entitlement.
Case: Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118
Outcome: cited
The determination of most of the issues in dispute can be achieved without recourse to witness credibility, but by reference to contemporary materials, objectively established facts and the apparent logic of events. This is helpful because I am mindful of what was said in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at [31] for judges: '... to reason their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principle about witness credibility, but it tends to reduce the decisions, where those principles are seen as critical.' 120 There are one or two exceptions where, for one reason or another, such as lack of contemporary documents, recourse to credit is unavoidable in determining the issue in dispute; but even in the case of these exceptions, witness credibility is only one of the determinants. Nevertheless, if only for this reason, I have set out below my general impression of the lay witnesses called on behalf of each party. 121 I was impressed by Mr Sharp and I have no reason not to accept the evidence he gave by way of affidavit or in cross-examination. He was principally cross-examined on issues raised by the cross-claim, but he was also cross-examined on the issue of whether the disclosure of the proposed issue of 50,000 shares to Messrs Hutchings Broso and Riley was made in the context of their becoming employees of APIR and whether he was offered, at least on one occasion, but perhaps on three occasions, a folder of documents described as a 'due diligence folder'. He was forthright and direct in the responses he gave to questions put to him in cross-examination. There was no inconsistency in his recollection and his oral evidence was consistent with such contemporary documentation that was in evidence on the matters upon which he was cross-examined.
Case: Kizbeau Pty Ltd v W G &amp; B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281
Outcome: cited
Although the Court is entitled to take into account events after the date of acquisition, when assessing damages by comparing the price and the real value of the asset at the date of the acquisition, in relation to s 82 of the TP Act (see Kizbeau Pty Ltd v W G &amp; B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281) , it must, as the High Court said in HTW Valuers at [40], '... distinguish among possible causes of the decline in value of what has been bought' and, in doing so, embrace the dichotomy of Dixon J in Potts v Miller (1940) 64 CLR 282 at 298. '...If the cause is inherent in the thing itself, then its existence should be taken into account in arriving at the real value of the shares or other things at the time of the purchase. If the cause be "dependent," "extrinsic," "supervening" or "accidental," then the additional loss is not the consequence of the inducement ...'
Case: Murphy v Overton Investments Pty Ltd (2004) 216 CLR 3 
Outcome: distinguished
Subsection 1041I(1) of the Corporations Act 2001 is predicated on a person having suffered loss or damage by the contravening conduct of another person. Subsection 1325(1) is predicated on a person who is a party to the proceeding having suffered, or likely to suffer, loss or damage because of the contravening conduct of another person. Putting aside that the latter provision also applies where a person is likely to suffer loss or damage, and that the nexus in the former provisions is 'by', and in the latter is, 'because of', there can be no dispute that the loss or damage of which both provisions speak must be an actual loss or damage; risk of loss is not sufficient: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525. The contravening conduct, while concerned with s 82 and s 87 of the TP Act, is equally applicable to s 1041I and s 1325 of the Corporations Act 2001 in this respect. However, it was submitted on behalf of the respondents that, in the present context, actual loss meant realised loss and that DFE would suffer no loss, if any, until its shares in APIR were sold; only then would it be possible to say whether or not there is an actual loss. Reliance for this was placed on Wardley Australia, Commonwealth v Cornwell [2007] HCA 16 ; (2007) 229 CLR 519 and Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 , as well as other authorities. 186 The High Court also distinguished Murphy v Overton Investments because the contingency upon which the loss was said to arise could never eventuate unless the respondent exercised its discretion to increase the charges above the level disclosed to the applicants, with the undisclosed contingency not having any impact on value such that there was no loss: at [30]. That point of distinction is equally apposite to this case in which any other investor would rationally treat the shares in APIR being worth less with, than without, the binding agreement to issue 20% of its shares to the executive directors.
Case: Potts v Miller (1940) 64 CLR 282
Outcome: applied
Although the Court is entitled to take into account events after the date of acquisition, when assessing damages by comparing the price and the real value of the asset at the date of the acquisition, in relation to s 82 of the TP Act (see Kizbeau Pty Ltd v W G &amp; B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281) , it must, as the High Court said in HTW Valuers at [40], '... distinguish among possible causes of the decline in value of what has been bought' and, in doing so, embrace the dichotomy of Dixon J in Potts v Miller (1940) 64 CLR 282 at 298. '...If the cause is inherent in the thing itself, then its existence should be taken into account in arriving at the real value of the shares or other things at the time of the purchase. If the cause be "dependent," "extrinsic," "supervening" or "accidental," then the additional loss is not the consequence of the inducement ...'
Case: Re NRMA Ltd; Re NRMA Insurance Ltd (2000) 34 ACSR 2 
Outcome: cited
The pleadings in the SFASC rely on a number of statutory regimes: the regimes under the Corporations Act 2001 ; the ASIC Act; the TP Act and the ACT Act. Section 51AF of the TP Act provides in subs (1) that Part V (Consumer Protection) does not apply to the supply, or possible supply, of services that are financial services and subs (2) provides, inter alia , in para (a) that, without limiting subs (1), s 52 does not apply to conduct engaged in or in relation to financial services. The term 'financial services' is defined in s 4 of the TP Act by reference to the meaning it has in Division 2 of Part 2 of the ASIC Act and includes 'dealing' in a 'financial product' (subs 12BAB(1)(b)), which is defined to include a security (subs 12BAA(7)). The term 'dealing' is defined to include applying for or acquiring, or issuing, a security (subs 12BAB(7)). It is clear from these provisions, in my view, that s 52 of the TP Act does not apply to conduct which consists of DFE's application for and APIR's issue of the 200,000 shares at $2.65 per share nor, in my view, to DFE's acquisition of the 81,904 shares in APIR at $2.65 per share from existing shareholders: see Cleary &amp; Anor v Australian Co-operative Foods Ltd &amp; Ors (Nos. 2 and 3) [1999] NSWSC 991 ; (1999) 32 ACSR 701 per Austin J at [1-107] [1-109]; Re NRMA Ltd; Re NRMA Insurance Ltd [2000] NSWSC 408 ; (2000) 34 ACSR 261 per Santow J at [125] [129].
Case: Sinclair Scott &amp; Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310
Outcome: cited
Such a view is said to have its origin in the High Court's decision in Sinclair Scott &amp; Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 317, and has found support in a number of more recent cases. There has been some academic debate on whether a fourth category of case may exist: see, for example, Elisabeth Peden, JW Carter and GJ Tolhurst, When Three Just Isn't Enough: the Fourth Category of the "Subject to Contract" Cases (2004) 20 JCL 156; DW McLauchlan, In Defence of the Fourth Category of Preliminary Agreements: Or Are There Only Two? (2005) 21 JCL 286. It is unnecessary to get involved in that debate. Whether the first heads of agreement falls within the first category of case in Masters v Cameron , or the so-called fourth category of case described in [129] above, it will, in my view, for the reasons outlined below, constitute a binding agreement.
Case: Thompson v White &amp; Ors [2006] NSWCA 350 ; (2007) NSW Conv R 56-171
Outcome: applied
Whether the parties to an instrument intend to enter into a contract binding at law in the terms of the instrument is a question of fact to be determined objectively: Thompson v White &amp; Ors [2006] NSWCA 350 ; (2007) NSW Conv R 56-171 at [99] , [100] per Tobias JA (Ipp and McColl JJA agreeing). In Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27 ; (2000) 22 WAR 101 , Ipp J (as he then was) referred to the qualities or characteristics of 'completeness' and 'certainty' of the terms of the instrument in question, saying at [23]: 'Where some terms are uncertain or where terms which one would expect to be in a contract of the kind entered into are missing, inferences may be drawn that the parties lacked the requisite intention to contract.' Earlier, his Honour had said at [23]: 'Thus, in dealing with the overall submission, it is not possible to divorce issues of completeness and uncertainty from the intention to contract.' 132 In undertaking the task of determining, objectively, what the parties' intention was, the Court may have regard to all the relevant circumstances. 'Intention' in this sense means intention to contract, not what the parties intended by the terms of the contract. The relevant circumstances may include prior negotiations or subsequent conduct, although direct expressions of intent made after the contract was arrived at, are not admissible: Bramble Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at [26] per Heydon JA; Anaconda Nickel at [26]; Thompson v White at [100].
Case: Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 
Outcome: cited
As to (1), DFE contends that the warranty was in all circumstances, something so essential to the decision to invest, pursuant to which the deed was being entered into, as to be an essential term of the contract: see Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 (reversed on other grounds at (1938) 61 CLR 286) ; Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549 at 556.
Case: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: distinguished
Subsection 1041I(1) of the Corporations Act 2001 is predicated on a person having suffered loss or damage by the contravening conduct of another person. Subsection 1325(1) is predicated on a person who is a party to the proceeding having suffered, or likely to suffer, loss or damage because of the contravening conduct of another person. Putting aside that the latter provision also applies where a person is likely to suffer loss or damage, and that the nexus in the former provisions is 'by', and in the latter is, 'because of', there can be no dispute that the loss or damage of which both provisions speak must be an actual loss or damage; risk of loss is not sufficient: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525. The contravening conduct, while concerned with s 82 and s 87 of the TP Act, is equally applicable to s 1041I and s 1325 of the Corporations Act 2001 in this respect. However, it was submitted on behalf of the respondents that, in the present context, actual loss meant realised loss and that DFE would suffer no loss, if any, until its shares in APIR were sold; only then would it be possible to say whether or not there is an actual loss. Reliance for this was placed on Wardley Australia, Commonwealth v Cornwell [2007] HCA 16 ; (2007) 229 CLR 519 and Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 , as well as other authorities. 185 The High Court, in HTW Valuers , distinguished Wardley Australia on the ground that the case was dealing with risk of loss only: at [29]. That reasoning arises from the fact that Wardley Australia was an indemnity case, so that there was no actual loss unless and until a loss was suffered under that indemnity, which was an event that might never occur. Unlike an asset worth less than was paid for it by reason of misleading or deceptive conduct, an indemnity cannot give rise to a loss until the party providing the indemnity is liable to pay.
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: applied
Only (a), (c) and (d) are relied on in the SFASC, but (d), correctly in my view, was not pressed. There is no evidence of any conspiracy between the executive and non-executive directors as groups or among them individually. Moreover, each of (a) and (c) requires a level of knowledge, not necessarily the same level, but absent which a conclusion that a person is involved in conduct that is misleading or deceptive, or likely to mislead or deceive, cannot be sustained. A person will not have aided or abetted such conduct unless it is proven that the person had actual knowledge of the essential elements of such conduct and intentional participation in it: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 in the joint judgment at 666 669. The words 'party to a contravention' refer to a person who participates in, or assents to, the contravention. To be regarded as participating, a person must have actual knowledge of the essential elements constituting the contravention: Yorke v Lucas at 670. At the same page in the joint judgment, their Honours said: '...There can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention. ... In our view ... [in order to be knowingly involved] ... a party to a contravention [needs] to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention.' 173 While the extent of knowledge required to determine that a person is 'knowingly concerned' in a contravention has not been settled, my findings in [157] and [164] above impel the conclusion that none of the non-executive directors satisfied any of the relevant criteria to sustain a conclusion of being involved in the misleading or deceptive conduct of APIR and the executive directors referred to in [170] above.
Case: 29 Equities Ltd v Bank Leumi (UK) Ltd [1986] 1 WLR 1490
Outcome: considered
In its natural and ordinary meaning in factor 5(b) the word 'cannot' means that it is not possible to decrease the quantity. In other contexts the word 'cannot' has a natural and ordinary meaning of excluding the possibility of something occurring. So, in 29 Equities Ltd v Bank Leumi (UK) Ltd [1986] 1 WLR 1490 at 1496G-H Dillon LJ said that it was a simple question of fact to be decided in the light of common sense whether at the date on which a vendor purported to rescind a contract of sale a licence 'cannot be obtained'. And, in The Newbattle (1885) 10 PD 33 the English Court of Appeal held that a statutory provision referring to a ship which 'cannot be arrested' connoted that it was impossible to arrest the ship. In Rhymney Iron Company v Gelligaer District Council [1917] 1 KB 589 at 594, Viscount Reading CJ had to construe a provision empowering a local authority to service a notice on an owner or occupier where the person responsible for a nuisance 'cannot be found'. He said that having regard to the public health purpose in the legislation, the authority had only to be unable to ascertain, in its then state of knowledge, who was responsible for the nuisance.