Cases
ALH Group Property Holdings Pty Limited v. Chief Commissioner of State Revenue
Case No.
S285/2011
Case Information
Lower Court Judgment
3/03/2011 Supreme Court of New South Wales (Court of Appeal)
(Allsop P, Tobias JA, Handley AJA)
[2011] NSWCA 32
Catchwords
Contracts — Discharge by agreement — Novation — Contract for sale of land ("Parkway Hotel") between Oakland Glen Pty Ltd ("Vendor") and Permanent Trustee Company Limited as trustee of ALE Direct Property Trust ("Purchaser") executed in 2003 ("2003 Contract") — Deed of Consent and Assignment between Vendor, Purchaser and applicant, executed in 2008, assigned rights and entitlements of Purchaser under 2003 Contract to applicant ("Deed") — Commissioner assessed Deed to ad valorem duty under s 22(2) of Duties Act 1997 (NSW) ("Duties Act") as transfer of dutiable property — By Deed of Termination, Vendor and applicant rescinded Deed and 2003 Contract and entered new contract for sale of Parkway Hotel on which ad valorem duty paid — Applicant claimed Deed of Termination avoided liability of Deed for ad valorem duty and conferred right to refund under s 50 of Duties Act — Whether Deed effected novation of 2003 Contract — Whether Deed rescinded 2003 Contract and substituted for it a new contract for sale of Parkway Hotel between Vendor and applicant on terms of 2003 Contract as varied by Deed — Whether Deed a "hybrid tripartite contract" wherein Vendor's obligations flowed from assignment and applicant's obligations flowed from Deed — Duties Act ss 8(1)(a), 22(2), 50.
Words and phrases — "hybrid tripartite contract".
Documents
12/08/2011 Hearing (SLA, Sydney)
26/08/2011 Notice of appeal
02/09/2011 Written submissions (Appellant)
02/09/2011 Chronology (Appellant)
23/09/2011 Written submissions (Respondent)
29/09/2011 Reply
02/02/2012 Hearing (Full Court, Canberra)
08/03/2012 Judgment (Judgment summary)
The Commissioner of Taxation of the Commonwealth of Australia v. Graham Bargwanna & Melinda Bargwanna as trustee of the Kalos Metron Charitable Trust
Case No.
S284/2011
Case Information
Lower Court Judgment
17/02/2011 Federal Court of Australia (Middleton, Dowsett & Kenny JJ)
[2010] FCAFC 126
Catchwords
Taxation and duties — Income tax — Non-assessable income — Exempt entities — Funds established for public charitable purposes by instrument of trust — Section 50-105 of Income Tax Assessment Act 1997 (Cth) ("ITAA") requires Commissioner to endorse entity as exempt from income tax in certain circumstances — Section 50-60 of ITAA provides that funds established in Australia for public charitable purposes by will or instrument of trust are not exempt from income tax unless, inter alia, "the fund is applied for the purposes for which it was established" — Respondents constituted by deed the Kalos Metron Charitable Trust ("Fund") for public charitable purposes — Fund administered by accountant and held in accountant's trust account — Interest from Fund applied to pay accountant's fees — Respondents obtained housing loan with provision of mortgage security — Loan arrangements involved Fund depositing $210,000 into interest-offset account with lender — Respondents deposited other funds into account and withdrew funds in excess of deposits — Applicant refused Fund's application for endorsement under s 50-105 of ITAA — Whether application of part of Fund for purposes other than public charitable purposes meant criteria in s 50-60 of ITAA not satisfied — Whether misapplication of Fund moneys must be deliberate or intentional for conclusion that "is applied" criterion in s 50-60 not satisfied — Whether relevant inquiry is to application of Fund as a whole rather than individual transactions.
Words and phrases — "deliberate", "the fund is applied for the purposes for which it was established".
Documents
12/08/2011 Hearing (SLA, Sydney)
25/08/2011 Notice of appeal
09/09/2011 Written submissions (Appellant)
09/09/2011 Chronology (Appellant)
04/10/2011 Written submissions (Respondents)
11/10/2011 Reply
01/02/2012 Hearing (Full Court, Canberra)
29/03/2012 Judgment (Judgment summary)
Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor
Plaintiff M106 of 2011 by his Litigation Guardian, Plaintiff M70/2011 v. Minister for Immigration and Citizenship and Anor
Case No.
M70/2011; M106/2011
Case Information
Catchwords
Administrative law — Jurisdictional error — Procedural fairness — Detention and transfer to third country of "irregular maritime arrivals" — Arrangement between Governments of Australia and Malaysia for transfer and refugee status determination of up to 800 people from Australia to Malaysia executed on 25 July 2011 ("Arrangement") — First defendant ("Minister") declared Malaysia a "specified country" ("Declaration") pursuant to s 198A(3) of Migration Act 1958 (Cth) ("Migration Act") — Minister gave direction not to process asylum claims of "offshore entry persons" ("Direction") — Malaysia not party to certain international instruments — Domestic law of Malaysia does not recognise status of "refugee" or "asylum seeker" — Plaintiffs offshore entry persons brought to Christmas Island, an "excised offshore place" under Migration Act — Plaintiffs claim to have well-founded fear of persecution in country of nationality and sought protection from Australia — No assessment of protection obligations to plaintiffs undertaken — Plaintiffs fear they will be transferred to Malaysia — Whether s 198(2) of Migration Act authorises detention and removal of offshore entry persons for purpose of assessment in third country when no assessment of protection obligations undertaken — Whether s 198A of Migration Act the only source of power, or a limitation on s 198(2) power, to detain offshore entry persons whose claims have not been determined — Whether Declaration a valid and enforceable legislative instrument — Whether, by reason thereof, s 198(1) of Migration Act does not confer power to remove plaintiffs to Malaysia — Whether contents of Arrangement capable of providing basis for Declaration under s 198A(3)(i)-(iv) of Migration Act — Whether Minister must be satisfied as to matters in s 198A(3)(i)-(iv) to make a declaration — Whether criteria in s 198A(3)(i)-(iv) matters of jurisdictional fact — Whether, in making Declaration, Minister's satisfaction miscarried or formed otherwise than in accordance with law — Whether Declaration invalid — Whether power in s 198A(1) constrained by requirement to consider individual circumstances — Whether, by his Direction, Minister unlawfully fettered and constrained discretionary power in s 198A(1) — Whether Minister under duty to act in best interests of unaccompanied minors who are "non-citizen children" — Whether in best interests of children to whom Direction applies to be sent to Malaysia — Whether Direction requires repository of s 198A(1) power to contravene Minister's duty as guardian to act in best interests of non-citizen children — Whether Minister constructively failed to exercise jurisdiction under ss 46A and 195A of Migration Act — Migration Act, ss 4AA, 5, 46A, 189(3), 195A, 198, 198A, 486B — Immigration (Guardianship of Children) Act 1946 (Cth), s 4AAA, 6.
Words and phrases — "asylum seeker", "excised offshore place", "irregular maritime arrivals", "offshore entry persons", "non-citizen child", "refugee".
Documents
07/08/2011 Hearing (Single Justice, Melbourne)
08/08/2011 Application for an order to show cause
08/08/2011 Hearing (Single Justice, Canberra by videolink to Melbourne)
15/08/2011 Hearing (Single Justice, Melbourne)
17/08/2011 Written submissions (Plaintiffs)
17/08/2011 Annexure to submissions
17/08/2011 Chronology
17/08/2011 Written submissions (Human Rights Commission seeking leave to intervene in M106/2011)
18/08/2011 Written submissions (Defendants)
19/08/2011 Reply
22/08/2011 Hearing (Full Court, Canberra)
23/08/2011 Hearing (Full Court, Canberra)
31/08/2011 Judgment (Judgment summary)
Waller v. Hargraves Secured Investments Limited
Case No.
S223/2011
Case Information
Lower Court Judgment
11/11/2010 Supreme Court of New South Wales (Court of Appeal)
(Tobias JA, Macfarlan JA, Sackville AJA)
Catchwords
Mortgages — Primary industry — Farm debt mediation — Mortgagee's remedies — Possession — Clause entitling mortgagee to possession upon default of mortgagor — Farm Debt Mediation Act 1994 (NSW) ("Act") provides no enforcement action to be taken until creditor gives notice of availability of mediation ("Notice") and enforcement action taken by creditor other than in compliance with Act is void — Applicant mortgaged land in favour of respondent to secure all moneys owed under loan agreement — Applicant breached terms of loan agreement and respondent gave Notice — Parties subsequently executed further loan agreements which discharged previous debts and created new farm debts — Applicant defaulted in making interest payments due under third loan agreement — Respondent commenced proceedings for possession of property and judgment debt — Whether each pairing of mortgage and farm debt gave rise to separate farm mortgages — Whether further Notice required for enforcement action pursuant to third loan agreement — Whether there was a certificate "in respect of the farm mortgage concerned" within meaning of s 8(3) of Act — Whether certificate issued by Rural Assistance Authority under s 11 of Act void — Whether proceeding for possession and judgment debt should have been dismissed pursuant to s 6 of Act — Act, ss 6, 8 and 11.
Words and phrases — "enforcement action", "farm debt", "farm mortgage", "in respect of the farm mortgage concerned".
Documents
10/06/2011 Hearing (SLA, Sydney)
24/06/2011 Notice of appeal
08/07/2011 Written submissions (Appellant)
08/07/2011 Chronology (Appellant)
02/08/2011 Written submissions (Respondent)
09/08/2011 Reply
06/10/2011 Hearing (Full Court, Canberra)
29/02/2012 Judgment (Judgment summary)
Amaca Pty Limited (ACN 000 035 512) (Under NSW Administered Winding Up) v. Booth and Anor
Amaba Pty Limited (ACN 000 387 342) (Under NSW Administered Winding Up) v. Booth and Anor
Case No.
S219/2011; S220/2011
Case Information
Lower Court Judgment
10/12/2010 Supreme Court of New South Wales (Court of Appeal)
(Beazley JA, Giles JA, Basten JA)
Catchwords
Torts — Negligence — Causation — Dust diseases — Respondent ("Booth") suffers from mesothelioma contracted from asbestos inhalation in four domestic and employment periods — Third and fourth periods of exposure occurred while Booth worked with brake linings containing asbestos manufactured by applicants — Trial judge found each applicant responsible for 70 per cent of asbestos fibre to which Booth exposed in third and fourth periods — Evidence indicated incidence of mesothelioma increases in proportion to increased exposure to asbestos — Whether causation in asbestos cases can be established by reference to increased risk of developing mesothelioma.
Torts — Negligence — Causation — Dust diseases — Evidence — Expert evidence — Experts for Booth gave evidence that all exposure to asbestos of the type found in applicants' brake linings, other than trivial or minimal exposure, materially contributed to Booth's mesothelioma — Whether sufficient evidence for conclusion that each exposure to asbestos a contributory cause of the development of mesothelioma.
Documents
10/06/2011 Hearing (SLA, Sydney)
24/06/2011 Notice of appeal
08/07/2011 Written submissions (Appellant - Amaca)
08/07/2011 Written submissions (Appellant - Amaba)
08/07/2011 Chronology (Appellants - Amaca)
27/07/2011 Written submissions (First Respondent - Amaca)
27/07/2011 Written submissions (First Respondent - Amaba)
05/08/2011 Reply (Amaca)
05/08/2011 Reply (Amaba)
04/10/2011 Hearing (Full Court, Canberra)
05/10/2011 Hearing (Full Court, Canberra)
14/12/2011 Judgment (Judgment summary)