Singh v Kaur
[2019] ACTSC 270
Para 1
…While the plaintiff bears an onus of showing that there is no real question to be tried ( Singh v Varinder Kaur (1985) 61 ALR 720 at 722), if that burden is discharged then the evidentiary onus shifts to the defendant to show that there is some ground of defence: ANZ Banking Group Ltd v Barry [1992] 2 Qd R 12 at 19.…
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] HCA 53
Para 1
…r. He relied on principles in the line of authority that require judicial officers to give reasons. The leading authority is Pettitt v Dunkley [1971] 1 NSWLR 376, approved by the High Court in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666.…
Waters v Mercedes Holdings Pty Ltd
[2012] FCAFC 80
Para 1
…This approach has been followed more recently where Cohen J in Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 at 436–7 and Perram J in Mercedes Holdings Pty Ltd v Waters (No 2) (2010) 186 FCR 450 at 474; [105]–[106] both held that the principle extends to common law claims vested in a trustee so…
Davey v Herbst and Bray
[2011] ACTCA 27
Para 1
…er for payment of the costs that have been assessed, sought because of the issuing of a bankruptcy notice, has been refused: Davey v Herbst and Ors [2011] ACTCA 27 . I can, I consider, conclude from those proceedings that either those costs have now been paid or compromised, or that the appellant will shortly be d…
Hughes v Janrule Pty Ltd
[2011] ACTCA 23
Para 1
…In Hughes v Janrule Pty Ltd (2011) 252 FLR 397 at 409; [61], Penfold J held that a single judge of the Court of Appeal may, under s 37J(1)(k) of the Supreme Court Act 1933 (ACT), exercise this jurisdiction of the Court.…
John Patrick Davey and Eric Malcolm Bray v Valerie Herbst and Adam Herbst
[2011] ACTSC 112
Para 1
…T)) despite the procedural difficulties, some of which I will have to mention below. This was described by Gray J in Davey and Anor v Herbst and Anor [2011] ACTSC 112 at [18] as “essentially cross-applications for summary judgment.” The Registrar entered judgment for the plaintiff, dismissed the claims of the defen…
Muldoon v Church of England Children's Homes Burwood
[2011] NSWCA 46
Para 1
…al lies to the court from the court or tribunal from which the appeal is sought to be taken: Muldoon v Church of England Children’s Homes Burwood [2011] NSWCA 46 at [42]–[43], [65]–[66]. An appeal will be incompetent if brought by a person who was not a party to the proceedings in the court or tribunal from whose…
Mercedes Holdings Pty Ltd v Waters (No 2)
[2010] FCA 472
Para 1
…ore recently where Cohen J in Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 at 436–7 and Perram J in Mercedes Holdings Pty Ltd v Waters (No 2) (2010) 186 FCR 450 at 474; [105]–[106] both held that the principle extends to common law claims vested in a trustee so that a beneficiary can, in special circumstances,…
Hausman v Abigroup Contractors Pty Ltd
[2009] VSCA 288
Para 1
…rt, albeit in summary form, all the material on which he, she or it will rely to show that there is a defence: Hausman v Abigroup Contractors Pty Ltd [2009] VSCA 288 at [64]).…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27
Para 1
…. The second was that the learned Magistrate failed to exercise her discretion in allowing the amendment in accordance with the principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (the Aon Case ).…
Pape v Federal Commissioner of Taxation
[2009] HCA 23
Para 1
…e (1982) 152 CLR 211 at 214; North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at 21.…
Bresam Investments Pty Ltd v Shmee Pty Ltd
[2008] VSCA 251
Para 1
…In Bresam Investments Pty Ltd v Shmee Pty Ltd [2008] VSCA 251 at [34] Dodds-Streeton JA, with whom Kellam JA agreed, said “[t]he prospects of success on appeal should not, on an application for a stay be considered extensively, although the applicant for a stay must establish an arguable ground of appeal.” That, i…
Burrell v The Queen
[2008] HCA 34
Para 1
…arcbord (2008) 186 A Crim R 106 at 112; [23]–[24]. A second appeal where the first has been heard and determined is also incompetent: Burrell v The Queen (2008) 238 CLR 218.…
McIlvar v Szwarcbord
[2008] SASC 179
Para 1
…the appeal is not the kind of decision (e.g. a judgment or order) from which an appeal lies: R v Steffan (1993) 30 NSWLR 633 at 639–40; McIlvar v Szwarcbord (2008) 186 A Crim R 106 at 112; [23]–[24]. A second appeal where the first has been heard and determined is also incompetent: Burrell v The Queen (2008) 238 CLR 218.…
Benjamin v GB Franchising Australia Pty Ltd
[2008] ACTCA 11
Para 1
…In Benjamin v GB Franchising Australia Pty Ltd (2008) 1 ACTLR 287, I discussed the principles relating to the discretion to order security for costs in appellate matters. These may be summarised as follows:…
Maher v Commonwealth Bank of Australia
[2008] VSCA 122
Para 1
…story of the failure to satisfy such orders is relevant to the discretion as to ordering security for costs: Maher v Commonwealth Bank of Australia [2008] VSCA 122 at [109]. In this case, however, since hearing the application, I note that a stay of enforcement of the order for payment of the costs that have been…
Commonwealth of Australia v BIS Cleanaway Limited
[2007] NSWSC 1075
Para 1
…An appeal is incompetent if, for example, leave is required and the appellant does not seek such leave: Coles v Wood [1981] 1 NSWLR 723 at 727; cf Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (No 2) (1990) 21 NSWLR 200 at 210, 214, 218. Similarly, where the court on appeal does not have…
Transglobal Capital Pty Ltd v Yolarno Pty Ltd
[2005] NSWCA 68
Para 1
…vant to assessment of an application [for security for costs]”. As the NSW Court of Appeal noted in Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143 at 151; [33], though perhaps rather in relation to the notion of “special circumstances”, frequently recurring circumstances or outcomes should not be de…
Transglobal Capital Pty Ltd v Yolarno Pty Ltd
[2004] NSWCA 136
Para 1
…tate comprehensively the factors that are relevant to assessment of an application [for security for costs]”. As the NSW Court of Appeal noted in Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143 at 151; [33], though perhaps rather in relation to the notion of “special circumstances”, frequently recurring circumstances or outcomes sho…
de Groot v Nominal Defendant
[2004] NSWCA 88
…rton [1975] VR 776 Hood Barrs v Heriot [1898] 2 QB 375 Australasian Compressed Fodder Co v Westwood (1903) IX Arg LR 113 de Groot v Nominal Defendant [2004] NSWCA 88 Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241 Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143 PS Chellaram & Co v China Ocea…
Alexander v Perpetual Trustees WA Ltd
[2004] HCA 7
Para 1
…proceedings against a debtor: Ramage v Waclaw (1988) 12 NSWLR 84 at 91–3. That approach was approved in Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109 at 129; [55].…
Natcraft Pty Ltd v Det Norske Veritas
[2002] QCA 241
Para 1
…into account have been identified by courts over time. I am conscious that, as Davies JA said in Natcraft Pty Ltd (deregistered) v Det Norske Veritas [2002] QCA 241 at [2], “[i]t is impossible to state comprehensively the factors that are relevant to assessment of an application [for security for costs]”. As the…
Tait v Bindal People
[2002] FCA 322
Para 1
…In those circumstances, I gave careful consideration to making an order for nominal security, as Spender J did in Tait v Bindal People [2002] FCA 322.…
Banks v Copas Newham Pty Ltd
[2001] QCA 526
…bal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143 PS Chellaram & Co v China Ocean Shipping Co (1991) 65 ALJR 642 Banks v Copas Newham Pty Ltd [2001] QCA 526 Ivory v Telstra Corp Ltd [2001] QCA 490 Jackson v Coal Resources of Queensland Ltd [2000] QCA 413 Commonwealth Bank of Australia v Eise (1991) 6 ACSR…
Ivory v Telstra Corp Ltd
[2001] QCA 490
…004) 60 NSWLR 143 PS Chellaram & Co v China Ocean Shipping Co (1991) 65 ALJR 642 Banks v Copas Newham Pty Ltd [2001] QCA 526 Ivory v Telstra Corp Ltd [2001] QCA 490 Jackson v Coal Resources of Queensland Ltd [2000] QCA 413 Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1 Intercraft Cabinets Pty Ltd v Sampas…
Eljon Pty Limited v The Chief Commissioner of State Revenue
[1999] NSWSC 266
Para 1
…that the party executing the deed is presently bound: Xenos v Wickham (1867) LR 2 HL 296 at 312; Eljon Pty Ltd v Chief Commissioner of State Revenue [1999] NSWSC 266 at [31]–[32].…
Lidden v Composite Buyers Ltd
[1996] FCA 728
Para 1
…ary can claim as limited to equitable relief. That, however, has not necessarily been the limit of such proceedings. In Lidden v Composite Buyers Ltd (1996) 67 FCR 560, Finn J said (at 563–4):…
North Ganalanja Aboriginal Corporation v Queensland
[1996] HCA 2
Para 1
…52; Mackay v The Queen (1977) 136 CLR 465 at 467; R v Winneke (1982) 152 CLR 211 at 214; North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at 21.…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801
…by the Magistrate. Particulars (a) The Order for indemnity costs made by the learned Magistrate was not consistent with the principles articulated in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. (b) Pursuant to regulation 1726(2) Court Procedures Rules 2006, a party who amends a document must pay the costs of and caused by the ame…
PS Chellaram & Co Ltd v China Ocean Shipping Co
[1991] HCA 36
Para 1
…As McHugh J said in PS Chellaram & Co v China Ocean Shipping Co (1991) 65 ALJR 642 at 643,…
Equity Access Ltd v Westpac Banking Corporation
[1989] FCA 520
…nk of Australia v Eise (1991) 6 ACSR 1 Intercraft Cabinets Pty Ltd v Sampas Pty Ltd (1997) 18 WAR 306 Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 Maher v Commonwealth Bank of Australia [2008] VSCA 122 Davey v Herbst and Ors [2011] ACTCA 27 Bresam Investments Pty Ltd v Shmee Pty Ltd [2008] V…
Fancourt v Mercantile Credits Ltd
[1983] HCA 25
Para 1
…er is clear, namely, that it should not be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99.…
Mackay v The Queen
[1977] HCA 22
Para 1
…mer and Anor (1921) 29 CLR 329 at 336; Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 752; Mackay v The Queen (1977) 136 CLR 465 at 467; R v Winneke (1982) 152 CLR 211 at 214; North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595; Pape v Federal Commis…
Olsson v Dyson
[1969] HCA 3
Para 1
…isposals Ltd [1994] 1 AC 85 at 103), the contract could be, and most likely was in fact, novated, creating thereby a new contract: Olsson v Dyson (1969) 120 CLR 365 at 388. This, Burns J effectively suggested, had happened not by the Deed (as the Deed said nothing about it and the recital E implied a prior dealing) b…
Deputy Federal Commissioner of Taxation v W R Moran Pty Ltd
[1939] HCA 27
Para 1
…f its existence, namely Roche & Ors v Kronheimer and Anor (1921) 29 CLR 329 at 336; Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 752; Mackay v The Queen (1977) 136 CLR 465 at 467; R v Winneke (1982) 152 CLR 211 at 214; North Ganalanja Aboriginal Corporation v State of Queens…
Roche v Kronheimer
[1921] HCA 25
Para 1
…a procedure that has been followed from time to time by the High Court in cases over much of its existence, namely Roche & Ors v Kronheimer and Anor (1921) 29 CLR 329 at 336; Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 752; Mackay v The Queen (1977) 136 CLR 465 at 467; R v…
Woolworths Limited v Crotty
[1942] HCA 35
Para 1
…s on bankruptcy it is, in certain circumstances, vested in the trustee in bankruptcy. This applies in the case of contract: Woolworths Ltd v Crotty (1942) 66 CLR 603 at 613–5.…
[1979] FCA 38
[1979] FCA 38
Para 1
…Whether that is so or not, the parties cannot confer jurisdiction by consent: McLeish v Faure (1979) 40 FLR 462 at 467. Whether the defendant’s acceptance, if it was that, of the first respondent’s capacity to sue for the benefit of the debt that passed to her through the will, as acknowledged by the exchange, is mo…
R v Winneke; Ex parte Gallagher
[1982] HCA 77
Para 1
…Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 752; Mackay v The Queen (1977) 136 CLR 465 at 467; R v Winneke (1982) 152 CLR 211 at 214; North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at…
Public Service Board of NSW v Osmond
[1986] HCA 7
Para 1
…easons. The leading authority is Pettitt v Dunkley [1971] 1 NSWLR 376, approved by the High Court in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666.…
North Ganalanja Aboriginal Corporation v State of Queensland
[1995] FCA 869
Para 1
…of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 752; Mackay v The Queen (1977) 136 CLR 465 at 467; R v Winneke (1982) 152 CLR 211 at 214; North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at 21.…
Jackson v Coal Resources of Queensland Ltd
[2000] QCA 413
…Co (1991) 65 ALJR 642 Banks v Copas Newham Pty Ltd [2001] QCA 526 Ivory v Telstra Corp Ltd [2001] QCA 490 Jackson v Coal Resources of Queensland Ltd [2000] QCA 413 Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1 Intercraft Cabinets Pty Ltd v Sampas Pty Ltd (1997) 18 WAR 306 Equity Access Ltd v Westpac Bank…
[1933] AC 70
[1933] AC 70
…l setting, the authors refer to observations of Lord Wright in the Privy Council in Vandepitte v Preferred Accident Insurance Corporation of New York [1933] AC 70 at 79: ‘a party to a contract can constitute himself a trustee for a third party of a right under the contract and thus confer such rights enforceabl…
Crescendo Management Pty Ltd v Westpac Banking Corporation
248 US 67
Para 1
…nsidered all the evidence. As McHugh JA, with whom Samuels and Mahoney JJA agreed, said in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 46, as to the approach to a challenge to a contract because of duress,…
[1933] AC 289
[1933] AC 289
Para 1
…rs the Originating Process a nullity. This must follow as a matter of principle for, as Lord Wright said in Lazard Brothers and Co v Midland Bank Ltd [1933] AC 289 at 296, though of a corporation,…
[1994] 1 AC 85
[1994] 1 AC 85
Para 1
…t and the third respondent is inapt (because the burden of a contract cannot be assigned: Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 at 103), the contract could be, and most likely was in fact, novated, creating thereby a new contract: Olsson v Dyson (1969) 120 CLR 365 at 388. This, Bu…
[1987] AC 730
[1987] AC 730
…I should add that to like effect in my view are the comments of the Privy Council in Hayim v Citibank NA [1987] AC 730 at 748, though the relief there sought was equitable. See also G G Bogert, G T Bogert and W K Stevens, The Law of Trusts and Trustees (Revised 2 nd ed, 1977), par 869 where the subject is consid…
[1896] 2 QB 375
[1896] 2 QB 375
…ns such as the public importance of the issues in the appeal ( Smail v Burton [1975] VR 776 at 779), the liberty of the subject ( Hood Barrs v Heriot [1896] 2 QB 375 at 376), or where the only property of the appellant is the subject matter of the appeal ( Australasian Compressed Fodder Co v Westwood (1903) IX Arg…
(1887) 20 QBD 331
(1887) 20 QBD 331
…erty of the subject is involved ( Hood Barrs v Heriot [1896] 2 QB 375), where the appeal is an abuse of process ( Weldon v Maples, Teesdale & Company (1887) 20 QBD 331), where the appeal is manifestly groundless ( Lall v 53-55 Hall Street Pty Ltd [[1978] 1 NSWLR 310]) where there has been great delay in prosecuting…
Smith v London and North Western Railway Co
(1853) 118 ER 694
Para 1
…at the suit. In these circumstances, the first respondent could still sue for her half share of the debt: Smith v London and North Western Railway Co (1853) 118 ER 694.…