mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611 
Outcome: considered
The final category ties the impugned conduct directly to the content of the contract in question. In South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611 at [426] Finn J noted that the: "... positive content of the good faith requirement was what Professor L&uuml;cke has described as "loyalty" to that which actually had been promised and agreed : see L&uuml;cke, "Good Faith and Contractual Performance", in Finn (ed), Essays on Contract, 1987, 162-4; see also the normative view of Fried, Contract as Promise, 1981, 85ff; or, to put the matter negatively, was to preclude what the Restatement, Second, Contracts refers to as " evasion of the spirit of the bargain "; see SS205 comment d; Farnsworth, Contracts, 2 nd ed, 1990, SS7.17 p 551..." (Emphasis added) (v) 149 Although as noted above, the boundaries of good faith evade precise definition, there appears to be at least some consensus on the limits of any such duty. In particular, a duty of good faith: (1) is not fiduciary in nature; (2) does not require a party to subordinate its own interests, let alone act selflessly; and (3) does not require a party to restrict decisions and actions, reasonably taken, which are designed to promote the legitimate interests of a party and which are not otherwise in breach of an express contractual term. See Justice Finn "Good Faith and Fair Dealing: Australia" Commercial Good Faith Conference (Auckland, New Zealand, 2 September 2005); South Sydney District Rugby League at [394] in the context of an implied duty and, finally, in the context of a duty to negotiate in good faith arising out of an alternative dispute resolution clause see Aiton Australia at [83]. (vi)
Case: Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 
Outcome: applied
If it is possible to attribute a definite meaning to cl 3.3 of the HofA, even if there be more than one possible meaning, the requirement that the parties negotiate in good faith will not be void for uncertainty: Meehan v Jones at 578 citing Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 436 (per Barwick CJ). The question whether the court is capable of putting a definite meaning on cl 3.3 raises additional issues - when, how, why and by reference to what standard or principles is the clause to be given a definite meaning? How is one person's bargaining to be judged to be in breach of a promise or a duty to negotiate in good faith? Is a higher duty to be imposed in certain and, if so, what circumstances? Do the additional words " to ensure that the terms set out in these Heads of Agreement are given full effect" in cl 3.3 of the HofA assist in providing certainty or add to its uncertainty? What do these additional words mean?
Case: Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 
Outcome: referred to
Although no implied duty to negotiate in good faith was pleaded or relied on, it is convenient to consider the issue for such light that it sheds upon the express duty that was both pleaded and relied on. There has been a recent willingness of Australia Courts to find that a duty of ' good faith ' in negotiations is an implied or incidental term of every commercial contract unless the duty is either excluded expressly or by necessary implication: Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [64] ; Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 ; Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 ; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) 21 ATPR 41-703; Alcatel Australia Pty Ltd v Scarcella (1998) 44 NSWLR 349; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 and Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 .
Case: Walford v Miles [1992] 2 AC 128 
Outcome: referred to
Traditionally, agreements to negotiate in ' good faith ' were viewed as unenforceable due to want of certainty or lack of consideration, eg Carr v Brisbane City Council [1956] St R Qd 402; Mallozzi v Carapelli SpA [1976] 1 Lloyd's Rep 407 and Walford v Miles [1992] 2 AC 128 at 138 cited by Einstein J in Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996 ; (1999) 153 FLR 236 at [80] . 129 The agreement was considered 'certain' because " B and C must negotiate (B because it is bound to A to do so and C because it is bound to B to do so) and there is a process for resolving any disagreement between B &amp; C" : at 212. Hayne J distinguished the agreement in Con Kallergis from that considered by the House of Lords in Walford. The latter was found to be uncertain because either party could break off negotiations at any time and for any reason.
Case: Andi-Co Australia Pty Ltd v Meyers [2004] FCA 1358
Outcome: cited
The principles to be applied by the Court in determining an application to set aside a statutory demand are also not in dispute. The Court must be satisfied that there is a genuine dispute between Ultradrilling and West about the existence or amount of the debt to which the demand relates: s 459H(1)(a) of the Act . That issue is determined at the time the Court hears the application: Andi-Co Australia Pty Ltd v Meyers [2004] FCA 1358 at [16] . For a genuine dispute to exist, the dispute must "be bona fide and truly exist in fact". The grounds for alleging the existence of a dispute must be "real and not spurious, hypothetical, illusory or misconceived": Spencer Constructions Pty Ltd v G&amp;M Aldridge Pty Ltd [1997] FCA 681 ; (1997) 76 FCR 452 at 464; see also John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 at 253 and TR Administration Pty Ltd v Frank Marchetti &amp; Sons Pty Ltd [2008] VSCA 70 ; (2008) 66 ACSR 67 at 79.
Case: Callegher v Australian Securities and Investments Commission (2007) 239 ALR 749
Outcome: cited
The function of the Court, on review of a Registrar's decision under s 35A(5) of the Federal Court Act , is to rehear the case and decide the facts for itself. It is a hearing de novo. That is to say, it is a complete rehearing at which the parties may adduce further evidence. It is for the Court to be satisfied of the matters prescribed by the Act and to exercise the discretion unfettered by the decision of the Registrar. The cases that make good those propositions include: Mazukov v University of Tasmania [2004] FCAFC 159 at [22] - [27] ; and Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 at [6] and [12] and Callegher v Australian Securities and Investments Commission (2007) 239 ALR 749 at [46]. 28 There is sufficient objective evidence to establish a prima facie allegation of delay on the part of Ultradrilling caused by its own conduct. It is important to note that Ultradrilling's contentions proceeded not on the basis that there could be no implied term relating to time but that the legal argument there existed one or more implied terms covering all of the instances set out in the schedule to the letter dated 7 February 2008 was "patently feeble". That contention is understandable. However, the evidence before the Court on these issues (including the terms of the contract) is not exhaustive: cf TR Administration 66 ACSR at 81-82. Indeed, what evidence was before the Court suggested that there was in fact no formal, integrated written contract, but instead a series of emails, purchase orders, and invoices, including the Purchase Order partially set out above.
Case: John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250
Outcome: followed
The principles to be applied by the Court in determining an application to set aside a statutory demand are also not in dispute. The Court must be satisfied that there is a genuine dispute between Ultradrilling and West about the existence or amount of the debt to which the demand relates: s 459H(1)(a) of the Act . That issue is determined at the time the Court hears the application: Andi-Co Australia Pty Ltd v Meyers [2004] FCA 1358 at [16] . For a genuine dispute to exist, the dispute must "be bona fide and truly exist in fact". The grounds for alleging the existence of a dispute must be "real and not spurious, hypothetical, illusory or misconceived": Spencer Constructions Pty Ltd v G&amp;M Aldridge Pty Ltd [1997] FCA 681 ; (1997) 76 FCR 452 at 464; see also John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 at 253 and TR Administration Pty Ltd v Frank Marchetti &amp; Sons Pty Ltd [2008] VSCA 70 ; (2008) 66 ACSR 67 at 79. 8 The manner in which the Court approaches the task is also not in dispute. The Court does not resolve contested questions of fact or determine where the merits lie in any contest: Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722 ; (2006) 155 FCR 556 at [40] . The Court determines only whether the supporting affidavits filed and served by West depose to facts from which the Court is able to conclude that a genuine dispute exists. As Young J said in John Holland Construction 14 ACSR at 253, something between mere assertion and the proof of the existence of the disputed debt is required: see also Micha International Pty Limited v Jong Seol Lee [2008] NSWSC 921 at [5] and Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411 at [23] .
Case: Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722 ; (2006) 155 FCR 556
Outcome: cited
The manner in which the Court approaches the task is also not in dispute. The Court does not resolve contested questions of fact or determine where the merits lie in any contest: Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722 ; (2006) 155 FCR 556 at [40] . The Court determines only whether the supporting affidavits filed and served by West depose to facts from which the Court is able to conclude that a genuine dispute exists. As Young J said in John Holland Construction 14 ACSR at 253, something between mere assertion and the proof of the existence of the disputed debt is required: see also Micha International Pty Limited v Jong Seol Lee [2008] NSWSC 921 at [5] and Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411 at [23] .
Case: Martin v Commonwealth Bank of Australia (2001) 217 ALR 634
Outcome: cited
The function of the Court, on review of a Registrar's decision under s 35A(5) of the Federal Court Act , is to rehear the case and decide the facts for itself. It is a hearing de novo. That is to say, it is a complete rehearing at which the parties may adduce further evidence. It is for the Court to be satisfied of the matters prescribed by the Act and to exercise the discretion unfettered by the decision of the Registrar. The cases that make good those propositions include: Mazukov v University of Tasmania [2004] FCAFC 159 at [22] - [27] ; and Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 at [6] and [12] and Callegher v Australian Securities and Investments Commission (2007) 239 ALR 749 at [46].
Case: Mazukov v University of Tasmania [2004] FCAFC 159
Outcome: followed
The function of the Court, on review of a Registrar's decision under s 35A(5) of the Federal Court Act , is to rehear the case and decide the facts for itself. It is a hearing de novo. That is to say, it is a complete rehearing at which the parties may adduce further evidence. It is for the Court to be satisfied of the matters prescribed by the Act and to exercise the discretion unfettered by the decision of the Registrar. The cases that make good those propositions include: Mazukov v University of Tasmania [2004] FCAFC 159 at [22] - [27] ; and Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 at [6] and [12] and Callegher v Australian Securities and Investments Commission (2007) 239 ALR 749 at [46].
Case: Micha International Pty Limited v Jong Seol Lee [2008] NSWSC 921
Outcome: referred to
The manner in which the Court approaches the task is also not in dispute. The Court does not resolve contested questions of fact or determine where the merits lie in any contest: Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722 ; (2006) 155 FCR 556 at [40] . The Court determines only whether the supporting affidavits filed and served by West depose to facts from which the Court is able to conclude that a genuine dispute exists. As Young J said in John Holland Construction 14 ACSR at 253, something between mere assertion and the proof of the existence of the disputed debt is required: see also Micha International Pty Limited v Jong Seol Lee [2008] NSWSC 921 at [5] and Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411 at [23] .
Case: Rhagodia Pty Ltd v National Australia Bank Ltd (2008) 67 ACSR 367
Outcome: cited
I reject Ultradrilling's "failure to particularise" contention on a number of bases. First, it cannot be said that when Mr West identified incidents allegedly caused by Ultradrilling and giving rise to the need to place Ultradrilling on standby pending further instructions, he was purporting to give a complete list. So much is made clear by the language of para [12] of his affidavit of 29 May 2008. Secondly, it is apparent from the contemporaneous correspondence before the Court that Macmahon itself attributed delays on the Project to what it described as "lack of production" by Ultradrilling. In those circumstances and having regard to the nature of the incidents identified, it is neither possible nor appropriate for a Court in a proceeding of this nature to seek an exhaustive list of each incident, determine its cause, and then ascertain the time and cost of any such delay. There is objective evidence that there is a genuine dispute about whether Ultradrilling was entitled to charge separately for "other standby" for the whole of the amount of $18,634. Put another way, contrary to the submissions of Ultradrilling, it cannot be said that the dispute as to the whole of the amount is a "patently feeble legal argument or an assertion of facts unsupported by evidence": Rhagodia Pty Ltd v National Australia Bank Ltd (2008) 67 ACSR 367 at [93] (internal citation and quotation marks omitted). There is "sufficient prima facie plausibility to merit further investigation" as to the truth of the assertion: Rhagodia at [93] (internal citation and quotation marks omitted). 23 As noted earlier, West contended that it also had offsetting claims of $120,420 against Ultradrilling based on Ultradrilling's alleged delay in completing the drilling work that was said to constitute a breach of the contract between West and Ultradrilling. The losses arising from the breach were said by Mr West in his 29 May affidavit to comprise: 1. $18,152 for internal administrative costs; 2. $31,990 short payment from Macmahon; and 3. $70,278 for other delay costs incurred by West. 24 Before turning to consider these amounts, it is necessary to say something about the general nature and alleged cause of the offsetting claims. There is no dispute that the Project was delayed. As noted earlier, what is in dispute is the cause of the delays and, having determined the cause, the precise costs resulting from those delays and their recoverability under the contract (i.e. whether the delays constitute breaches of one or more terms of the contract). Some of the costs said to arise from the delays I have already considered (see [18] to [22] above).
Case: Spencer Constructions Pty Ltd v G&amp;M Aldridge Pty Ltd [1997] FCA 681 ; (1997) 76 FCR 452
Outcome: cited
The principles to be applied by the Court in determining an application to set aside a statutory demand are also not in dispute. The Court must be satisfied that there is a genuine dispute between Ultradrilling and West about the existence or amount of the debt to which the demand relates: s 459H(1)(a) of the Act . That issue is determined at the time the Court hears the application: Andi-Co Australia Pty Ltd v Meyers [2004] FCA 1358 at [16] . For a genuine dispute to exist, the dispute must "be bona fide and truly exist in fact". The grounds for alleging the existence of a dispute must be "real and not spurious, hypothetical, illusory or misconceived": Spencer Constructions Pty Ltd v G&amp;M Aldridge Pty Ltd [1997] FCA 681 ; (1997) 76 FCR 452 at 464; see also John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 at 253 and TR Administration Pty Ltd v Frank Marchetti &amp; Sons Pty Ltd [2008] VSCA 70 ; (2008) 66 ACSR 67 at 79.
Case: Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411
Outcome: referred to
The manner in which the Court approaches the task is also not in dispute. The Court does not resolve contested questions of fact or determine where the merits lie in any contest: Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722 ; (2006) 155 FCR 556 at [40] . The Court determines only whether the supporting affidavits filed and served by West depose to facts from which the Court is able to conclude that a genuine dispute exists. As Young J said in John Holland Construction 14 ACSR at 253, something between mere assertion and the proof of the existence of the disputed debt is required: see also Micha International Pty Limited v Jong Seol Lee [2008] NSWSC 921 at [5] and Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411 at [23] .
Case: Minister for Immigration &amp; Ethnic Affairs v Pochi (1980) 4 ALD 139
Outcome: considered
This does not mean that evidence subsequent to the visa application does not need to be considered at all. Evidence of events subsequent to the visa application is relevant if it 'tends logically to show the existence or non-existence of facts relevant to the issue to be determined': see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.
Case: Ashburton Oil NL v Alpha Minerals NL [1971] HCA 5 ; (1971) 123 CLR 614
Outcome: cited
It is clear that the power to issue shares must be exercised for a proper purpose. In Ashburton Oil NL v Alpha Minerals NL [1971] HCA 5 ; (1971) 123 CLR 614 at 640 Gibbs J said as follows: However powers conferred on directors by the articles of association of a company must be used bona fide for the benefit of the company as a whole and not to obtain some private advantage. Directors are not entitled to use their power of issuing and allotting shares merely for the purpose of defeating the wishes of an existing majority of shareholders or maintaining their own control of the company.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: discussed
First, as to the question of standard of proof, the defendants submitted that the allegations that the directors acted with improper purpose were serious and that the principles in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361-362 apply. It was submitted the Court must be satisfied that the allegations are made out having regard to the gravity of the matters alleged and that such satisfaction must not be produced by 'inexact proofs, indefinite testimony or indirect inferences'. 22 It is undoubtedly plain as stated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 at 450 that the principles in Briginshaw do not create any different or intermediate standard of proof between the civil standard of on a balance of probabilities and the criminal standard of proof of beyond reasonable doubt. Clearly where there is an allegation of impropriety or criminal or fraudulent conduct then a court should not lightly make a finding of a person being guilty of such conduct. However, the essential task always remains of looking at the evidence in its totality and determining whether a party has proved on the balance of probabilities the factual matters required for that party to succeed.
Case: Howard Smith Ltd v Ampol Petroleum Ltd [1974] 1 NSWLR 68
Outcome: referred to
Similarly, in Howard Smith Ltd v Ampol Petroleum Ltd [1974] 1 NSWLR 68 at 74 the Privy Council stated that: ... it would be wrong for the court to substitute its opinion for that of the management, or indeed to question the correctness of the management's decision, on such a question, if bona fide arrived at. There is no appeal on merits from management decisions to courts of law: nor will courts of law assume to act as a kind of supervisory board over decisions within the powers of management honestly arrived at. 35 Similarly in Idameneo (No 123) Pty Ltd v Symbion Health Ltd (2007) 64 ACSR 680 , at [114], Lindgren J stated: There is a well-known line of authority to the general effect that it is the province of directors, not the courts, to identify where the interests of a company lie, and that the courts do not exercise a supervisory function over the business judgments of directors: see, for example, Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co NL [1968] HCA 37 ; (1968) 121 CLR 483 at 493; Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821 at 832.
Case: Idameneo (No 123) Pty Ltd v Symbion Health Ltd (2007) 64 ACSR 680 
Outcome: referred to
Similarly in Idameneo (No 123) Pty Ltd v Symbion Health Ltd (2007) 64 ACSR 680 , at [114], Lindgren J stated: There is a well-known line of authority to the general effect that it is the province of directors, not the courts, to identify where the interests of a company lie, and that the courts do not exercise a supervisory function over the business judgments of directors: see, for example, Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co NL [1968] HCA 37 ; (1968) 121 CLR 483 at 493; Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821 at 832.