mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Yango Pastoral Company Pty Limited v First Chicago Australia Limited [1978] HCA 42 ; (1978) 139 CLR 410
Outcome: distinguished
The other decision on which REX relied was Yango Pastoral Company Pty Limited v First Chicago Australia Limited [1978] HCA 42 ; (1978) 139 CLR 410. That case concerned s 8 of the Banking Act 1959 (Cth) which prohibited a body corporate from carrying on any banking business in Australia unless it was in possession of an authority to do so. The provision went on to impose a penalty for each day of contravention. The first respondent in that case, First Chicago Australia Limited ("First Chicago"), had granted a mortgage which incorporated a guarantee given by the appellants. There was default and First Chicago sued on the guarantee. The appellants pleaded illegality on the basis that the mortgage and the guarantee was illegal and void because of s 8 of the Banking Act 1959 (Cth) or, that by reason of s 8 , a court would not assist the respondent to give effect to the transaction. The Court rejected the contention. Gibbs ACJ outlined four ways in which the enforceability of a contract may be affected by a statutory provision which renders particular conduct unlawful: at 413. In my view, the High Court decision does not assist the disposition of this appeal because, as was ultimately conceded by Counsel for REX, no provision of the Workplace Relations Act could be identified which rendered conduct of REX unlawful or, in particular, which precluded REX and Mr Clarke entering the Letter of Offer incorporating the Training Bond.
Case: Vatera Pty Limited v Meribal Interiors NSW Pty Limited (Under Deed of Company Arrangement); in the Matter of Meribal Interiors NSW Pty Limited (Under Deed of Company Arrangement) [2008] FCA 404
Outcome: related
On 1 April 2008 I delivered reasons for judgment in this matter ( Vatera Pty Limited v Meribal Interiors NSW Pty Limited (Under Deed of Company Arrangement); in the Matter of Meribal Interiors NSW Pty Limited (Under Deed of Company Arrangement) [2008] FCA 404) and stood the matter over in order to consider the orders to be made. This judgment should be read with those reasons. 2 I am satisfied that Mr John Lord is appropriate for appointment as liquidator of the first defendant, Meribal Interiors NSW Pty Limited. He is a recognised liquidator and he has confirmed that he has had no dealings with the plaintiff, Vatera Pty Limited. There is no reason to believe that he will not do his duty as a liquidator of this company and deal with Vatera completely at arm's length. 3 As far as draft order 3 is concerned, it is clear that some such arrangement is necessary, as between the liquidator and the administrator. It is not clear to me that it is necessary that it be by way of order. It may be that the statute will simply operate. However, I can see no disadvantage in making the order which is by way of being ancillary to the other orders. I would only make it, however, on the rider, which is incorporated in the latest version, that the fees involved are only those incurred pursuant to the Deed of Company Arrangement (DOCA). I would not, at the moment, say anything about the costs of the administration; that is a topic best left for consideration by the liquidator.
Case: Applicant S1140/2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 526
Outcome: cited
It is unnecessary to set out again the factual and procedural history which is set out in the reasons for judgment published on 1 May 2006 Applicant S1140/2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 526. These reasons, should be read together with those, for that purpose. 9 The husband, in the presence of his wife, and with her authority confirmed orally in Court, made submissions on behalf of both of them in support of their applications for leave to appeal against the learned magistrate's decisions. However, nothing that was said in support of those applications identified any error in the reasoning of the Federal Magistrates Court which would warrant the grant of such leave. As previously observed, the proposed draft notice of appeal does not disclose any viable grounds for a proposed appeal. There was reference to other cases in which it was said applicants had been allowed to proceed in the Federal Magistrates Court but there was no principle proposed, emerging from those cases, which suggested they would be of any assistance in this case. 10 A matter which was drawn to my attention by counsel for the respondent, and which was not dealt with in the previously published reasons, was that the wife's application for judicial review in the Federal Magistrates Court had been amended on or about 4 May 2005. A copy of the amended application appears in the Appeal Book relating to the wife. I assume that an amended application in like terms was filed in the husband's name. The amended application for judicial review of the Tribunal's 1998 decision asserts in substance that the Tribunal misconstrued the concept of persecution and ignored an important integer of the applicants' claim. It makes reference to s 91R of the Migration Act 1958 (Cth) which was not in force at the time of the Tribunal's decision. 11 The grounds of the amended application do not assist the applicants. Indeed they strengthen the proposition that the proceedings in this case were an abuse of process because they canvass matters which clearly were, or could have been, raised before Mathews J in 1998. 12 I am satisfied that there is no merit in the proposed appeal and that the Magistrate correctly found that the proceedings in the Federal Magistrates Court amounted to an abuse of process. The applications for leave to appeal will be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 18 May 2006 SZFMQ appeared on behalf of the Applicants Counsel for the Respondent: Ms B Griffin Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 May 2006 Date of Judgment: 18 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/588.html
Case: Bhagat v Global Custodians Ltd [2002] FCAFC 51 
Outcome: followed
it was not enough for Mr Young to formulate a claim in sweeping conclusory terms and to say on oath that he believed in his claim or was confident that he would be able to sustain it on a hearing: see, for example, Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346 at 350-351; Bhagat v Global Custodians Ltd [2002] FCAFC 51 at [53].
Case: Commonwealth v Ling (1993) 44 FCR 397
Outcome: cited
present case concerns an assignment of a bare cause of action for unliquidated damages for breach of contract, not of a property right to which a cause of action is ancillary. The parties accepted that in these circumstances the assignment could be sustained only if Mr Young had a genuine commercial interest in taking the assignment and enforcing it for his own benefit: see Trendtex Trading Corporation v Credit Suisse [1982] AC 679 at 703, which has been followed in many cases in Australia including, but not limited to, Re Timothy's Pty Ltd and the Companies Act [1981] 2 NSWLR 706; Commonwealth v Ling (1993) 44 FCR 397 ; National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 ; and see G Tolhurst, The Assignment of Contractual Rights (Hart Publishing, 2006) at [6.59]ff .
Case: Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346
Outcome: followed
Federal Magistrate quoted as follows from my judgment in Glew v Harrowell of Hunt and Hunt Lawyers [2003] FCA 373 ( Glew ) at [8]-[9]: In order to avoid committing the act of bankruptcy identified in par 40(1)(g) of the Act, Glew and Tresider [the recipients of the bankruptcy notice] must satisfy the Court that they have a counter-claim, set-off or cross demand against Hunts of the kind described in that paragraph. What they must do in order to "satisfy the Court" for the purposes of par 40(1)(g) of the Act that they have the asserted counter-claim, set-off or cross demand has been variously described. The descriptions do not necessarily purport to be comprehensive definitions. To state that a debtor in receipt of a bankruptcy notice must show X does not necessarily imply that he or she need not also show Y, or that he or she will not be defeated if the creditor shows Z. There are authorities suggesting that Glew and Tresider must satisfy me of the following interrelated and sometimes overlapping matters: that they have a "prima facie case", even if they do not adduce evidence which would be admissible on a final hearing making out that case ( Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346 (" Ebert ") at 350; Re Brink; Ex parte Commercial Banking Company of Sydney Ltd (1980) 44 FLR 135 (" Brink ") at 141; Gomez v State Bank of NSW Ltd [2002] FCAFC 101 at [17], [18]); that they have "a fair chance of success" or are "fairly entitled to litigate" the claim: Brink at 141; Re Gould; Gould v Day [1999] FCA 1650 at [27] , [28]; Re Capsanis; Capsanis v The Owners Strata Plan 11727 [2000] FCA 1262 at [11] ); and that they are advancing a "genuine" or "bona fide" claim ( Re Capsanis; Capsanis v The Owners Strata Plan 11727 [2000] FCA 1262 at [11] ). It may be that the first and second formulations are intended to cover the same ground. In Brink Lockhart J treated (at 141) the reference to a " prima facie case " in Ebert as a reference to "a fair chance of success". But it was not enough for Mr Young to formulate a claim in sweeping conclusory terms and to say on oath that he believed in his claim or was confident that he would be able to sustain it on a hearing: see, for example, Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346 at 350-351; Bhagat v Global Custodians Ltd [2002] FCAFC 51 at [53].
Case: Hadley v Baxendale (1854) 9 Exch 341(156 ER 145)
Outcome: applied
even if all of the facts and conclusions referred to in Mr Young's District Court statement of claim were proved, he would have failed because his claim as formulated does not fit within either the first or second limb of Hadley v Baxendale (1854) 9 Exch 341 (156 ER 145); see Castle Constructions Pty Ltd v Fekala Pty Ltd (2006) 65 NSWLR 648 at [34], [39]. The leading of evidence of value on the appeal would not have overcome this problem. A complete reformulation of the alleged counter-claim would have been necessary. Second, in so far as AAC's losses are said to relate to "Royalties Due and Payable" in accordance with the Sublicence, those losses could not properly be said to have been caused by a breach of the Grower's Licence by ICM. They were caused by the insolvency of Namoi. It will be recalled that a voluntary administrator was appointed to Namoi on 11 July 2003, only four days after Mr Young wrote his letter of 7 July 2003 on the letterhead of Namoi. The creditors of Namoi passed a special resolution for the winding up of the company on 8 August 2003. For the two reasons last given, Mr Young could not have properly satisfied the Federal Magistrate that ICM was liable to AAC. I acknowledge that the second reason relates to only $54,855 of the total counter-claim of $257,355. The balance of $202,500 still exceeds (just) the amount of the Bankruptcy Notice of $198,278.06. Ground 2(b): the validity of the assignment
Case: Monk v The Australian &amp; New Zealand Banking Group Limited (1994) 34 NSWLR 148 
Outcome: followed
the validity of the assignment, ICM relied on two propositions before the Federal Magistrate: (a) The cause of action was unable to be assigned by AAC to Mr Young because it was a bare cause of action and Mr Young had no genuine commercial interest to support he assignment (ICM cited Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532 at [108] - [124] ; Monk v The Australian &amp; New Zealand Banking Group Limited (1994) 34 NSWLR 148 at 152 ( Monk )); (b) The assignment was procured in breach of fiduciary duties owed by Mr Young to the shareholders of AAC, and on this basis the proper exercise of the Court's discretion would be to refuse to set aside the Bankruptcy Notice (ICM cited Re Daley; ex parte National Australia Bank Ltd (1992) 37 FCR 390 at 395 ( Daley )). The circumstances of the present case are analogous to those in Monk in which the assignee's interest was that of obtaining a set-off against a judgment debt. In that case, Cohen J said (at 153): The plaintiff's only apparent interest is in the possibility of his becoming a creditor of the Bank. That is, his interest is in using the debt which might arise from the cause of action for his personal benefit. That no doubt is the interest of any assignee. The using of the debt as a set-off against the judgment debt is merely an example of obtaining some personal benefit. In that regard the plaintiff is in no stronger position than he would be if he had obtained an assignment of a cause of action for negligence by a customer of the Bank who claimed to have suffered injuries arising from unsafe premises. In the authorities where the Trendtex test has been applied, the commercial interest has gone beyond a mere personal interest in profiting from the outcome of the proceedings and has required an interest by the assignee in the assignor or its business affairs or activities which the assignment may in some way protect. These observations are applicable, mutatis mutandis , to the present case.
Case: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514
Outcome: cited
present case concerns an assignment of a bare cause of action for unliquidated damages for breach of contract, not of a property right to which a cause of action is ancillary. The parties accepted that in these circumstances the assignment could be sustained only if Mr Young had a genuine commercial interest in taking the assignment and enforcing it for his own benefit: see Trendtex Trading Corporation v Credit Suisse [1982] AC 679 at 703, which has been followed in many cases in Australia including, but not limited to, Re Timothy's Pty Ltd and the Companies Act [1981] 2 NSWLR 706; Commonwealth v Ling (1993) 44 FCR 397 ; National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 ; and see G Tolhurst, The Assignment of Contractual Rights (Hart Publishing, 2006) at [6.59]ff .
Case: Re Daley; ex parte National Australia Bank Ltd (1992) 37 FCR 390
Outcome: distinguished
the validity of the assignment, ICM relied on two propositions before the Federal Magistrate: (a) The cause of action was unable to be assigned by AAC to Mr Young because it was a bare cause of action and Mr Young had no genuine commercial interest to support he assignment (ICM cited Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532 at [108] - [124] ; Monk v The Australian &amp; New Zealand Banking Group Limited (1994) 34 NSWLR 148 at 152 ( Monk )); (b) The assignment was procured in breach of fiduciary duties owed by Mr Young to the shareholders of AAC, and on this basis the proper exercise of the Court's discretion would be to refuse to set aside the Bankruptcy Notice (ICM cited Re Daley; ex parte National Australia Bank Ltd (1992) 37 FCR 390 at 395 ( Daley )). His Honour cited Heerey's decision in Daley. In Daley , the debtor, Mr Daley was a director and the sole beneficial shareholder of certain companies, and had guaranteed their liability to a bank. The bank had a judgment against Mr Daley on credit card liabilities and served a bankruptcy notice on him. One of the companies sued the bank for $45,811.28 which represented the total of the amounts of cheques drawn on the company's account which the bank had, allegedly wrongfully, honoured. That company, for a consideration of $1.00, assigned "the Debt" to Mr Daley. Daley is distinguishable because, first, Mr Young was not a guarantor of AAC; second, what was assigned in Daley was a debt rather than a bare cause of action for unliquidated damages for breach of contract as in the present case; and, third, Mr Daley was the sole shareholder in the assignor. At the date of the assignment, Mr Young held no shares in AAC. As noted at [51]-[54] above, it is agreed that the appeal is to be determined on the basis that at the time of the assignment Young's Rural Services Pty Ltd held one of six shares issued in AAC and Mr Young was the sole director and shareholder of Young's Rural Services Pty Ltd.
Case: Re Timothy's Pty Ltd and the Companies Act [1981] 2 NSWLR 706
Outcome: cited
present case concerns an assignment of a bare cause of action for unliquidated damages for breach of contract, not of a property right to which a cause of action is ancillary. The parties accepted that in these circumstances the assignment could be sustained only if Mr Young had a genuine commercial interest in taking the assignment and enforcing it for his own benefit: see Trendtex Trading Corporation v Credit Suisse [1982] AC 679 at 703, which has been followed in many cases in Australia including, but not limited to, Re Timothy's Pty Ltd and the Companies Act [1981] 2 NSWLR 706; Commonwealth v Ling (1993) 44 FCR 397 ; National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 ; and see G Tolhurst, The Assignment of Contractual Rights (Hart Publishing, 2006) at [6.59]ff .
Case: Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532
Outcome: cited
the validity of the assignment, ICM relied on two propositions before the Federal Magistrate: (a) The cause of action was unable to be assigned by AAC to Mr Young because it was a bare cause of action and Mr Young had no genuine commercial interest to support he assignment (ICM cited Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532 at [108] - [124] ; Monk v The Australian &amp; New Zealand Banking Group Limited (1994) 34 NSWLR 148 at 152 ( Monk )); (b) The assignment was procured in breach of fiduciary duties owed by Mr Young to the shareholders of AAC, and on this basis the proper exercise of the Court's discretion would be to refuse to set aside the Bankruptcy Notice (ICM cited Re Daley; ex parte National Australia Bank Ltd (1992) 37 FCR 390 at 395 ( Daley )).
Case: Pradhan v Holmes [2001] FCA 1560
Outcome: cited
In the draft report, the Committee noted that Adjudicative Referral No 187 which had been issued to the applicant contained wording which was similar to the wording in investigative and adjudicative referrals considered by the Federal Court in the case of Pradhan v Holmes [2001] FCA 1560 ('Pradhan') and found by the Court in the Pradhan case to be invalid. The Committee said that it had withheld consideration of the matter until validating legislation, which retrospectively validated the Adjudicative Referral, became effective on 18 December 2002. It had then resumed consideration of the matter. 9 The applicant was invited to make submissions in respect of the draft report. The applicant's solicitor, Mr Malcolm J Ayoub, in an eight page letter dated 25 March 2004, made submissions on behalf of the applicant. In the letter, the applicant's solicitor pointed out that the submissions were not made with the benefit of a transcript. The solicitor also stated that the applicant had made errors in answers that he had given to certain questions at the hearing due to his ill health at the time. The solicitor said that the applicant had administered to himself strong pain killers that could cause confusion and drowsiness. It was also said that at the time of the hearing the applicant was also suffering from recognised health problems such as hypertension, Type II diabetes and hyperuricaemia. The solicitor referred to an enclosed copy of a medical certificate from Dr M D Hawkins dated 24 November 2000 which referred to certain conditions from which the applicant was suffering. The applicant's solicitor said that whilst it was recognised that the medical certificate was dated prior to the hearing, it did show 'evidence of [the applicant's] health at the time leading up to the hearing and shows evidence of what his health may have been at the time of the hearing...' 10 The applicant's submissions also referred to the delay between the hearing, which concluded on 26 July 2001, and the handing down of the draft report on 28 January 2004 a delay of some two and a half years. The letter went on to say: '...and it is of some concern that [the applicant's] decision was not prepared until specifically legislation had been amended...that validated Adjudicative Referral No 187. It seems clear that the decision was withheld until the law had changed so that there was no way that [the applicant] could not have been alleged to have committed any inappropriate behaviour until this validation of the amendments.'
Case: Megitt Overseas Limited v Grdovic [1998] 43 NSWLR 527
Outcome: cited
As to the first argument, there is authority that it is improper to grant a contested adjournment of legal proceedings for the purpose of enabling one party to take advantage of a proposed amendment of an enacted law ( Meggitt Overseas Limited v Grdovic [1998] 43 NSWLR 527). That authority could apply by analogy to the circumstances of the delay by the Committee in this case. 50 However, in considering the merits of the applicant's case for the purposes of determining whether to extend the time for the making of the proposed application for review, it is necessary to consider whether any effective relief could be granted to the applicant on this ground at the hearing of the review application. In my view, because the legislation which was passed has retrospectively validated the adjudicative referral in question, no effective relief would be available to the applicant on that ground at the hearing of the review application. 51 I now deal with the second possible argument in relation to delay. In my view, it is apparent from the transcript of the hearing that at the conclusion of the evidence at the end of the hearing on 26 July 2001, the Committee expressed its concerns in relation to the complaints made against the applicant. A reading of this transcript shows that the concerns were expressed in a way which was adverse to the applicant and that the Chairman of the Committee invited the applicant to make further submissions either orally or in writing to the Committee prior to the Committee preparing its draft report. The applicant responded to that invitation as follows: 'No, there is nothing more to [add] because the whole thing has been explained.'
Case: Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45 ; (1991) 173 CLR 231
Outcome: applied
I decline to make an order for the joinder of the members of the Committee and the Director. I do so by applying, by analogy, the principle that a court will not usually exercise its discretion to allow an amendment to join a person as a party to an application who has a good defence under a period of limitation (see, Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45 ; (1991) 173 CLR 231 at 236).