case_text: Referring to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1, the applicant submitted that although it is not the duty of the decision maker to make out a case for the applicant, the Tribunal is obliged to correctly apply the law to the issues raised by the evidence and consider the claims expressly made, such as the claim in relation to superior orders. The applicant submitted that the failure by the applicant to raise the issue of the defence of superior orders based on the law existing prior to the coming in to force of the convention could have in no way prejudiced the respondent. The applicant also submitted that, as in Kuswardana , the consequences of not correcting the error of the Tribunal would be exceptionally serious to the applicant. 39 The respondent submitted that this was not a matter of retrospective application of criminal laws. Criminal responsibility was not being created pursuant to the Rome Statute. The respondent submitted that non-retroactivity ratione personae (Art 24 of the Rome Statute) is properly a matter that relates to the exercise of jurisdiction of the International Criminal Court. The respondent submitted that the issue was the appropriate source of the definition of the crimes listed in Art 1F(a) of the Refugees Convention and noted that the Full Court had held that the Rome Statute was one of the international instruments from which crimes mentioned in Art 1F(a) could be characterised. 40 The respondent submitted that the availability or otherwise of any conceivable defence was not an "essential statutory precondition" for the application of Art 7 or Art 8 so as to invoke the Kuswardana principle. Further, the Full Court held that what was required under Art 1F(a) included the availability of a defence under the Rome Statute only if it was relied on by the person (at [127]). The respondent submitted that there was no obligation on the Tribunal to consider a defence that was not relied upon by the applicant and that this situation was a fortiori in relation to defences said to exist not under the Rome Statute. The respondent submitted, relying on NABE (No 2) that a determination that the Tribunal has failed to consider a claim not expressly advanced is not to be lightly made.


case_outcome: referred to

case_title: R v Finta [1994] 1 SCR 701

case_text: The applicant relied on the Canadian decision of R v Finta [1994] 1 SCR 701 as authority for the proposition that the defence predated the Rome Statute and was available. The applicant submitted that the limited defence of superior orders which existed before the entry into force of the Rome Statute, required the consideration of the nature of the orders, whatever the crime and did not draw a distinction between orders to commit genocide, or crimes against humanity as distinct from other international crimes such as war crimes, as Art 33 of the Rome Statute does. 34 The applicant submitted that, in accordance with Art 22 and Art 24 of the Rome Statute and in order not to give Art 33 a detrimental retrospective effect, any other defence that was available prior to the coming into force of the Rome Statute must be considered. Art 24 would preserve any defence which was available prior to the coming into force of the Rome Statute which was consistent with Art 15 of the International Covenant on Civil and Political Rights which provides that no one will be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time it was committed. 35 Specifically, the applicant submitted that once the Tribunal "determined to make a finding" under Art 7 rather than Art 8, it was obliged to consider whether Art 24 would preserve the defence acknowledged in R v Finta . He submitted that under the 1948 United Nations General Assembly, Art 11, no one was to be "held guilty" of any penal offence on account of any act or omission which did not constitute a penal offence under national or international law at the time it was committed. 36 At the hearing an issue was raised about the effect of the applicant's failure to make a submission in the proceeding before the Tribunal about whether the defence of superior orders existed before the Rome Statute came into force. Specifically, the issue was whether jurisdictional error can be established when a Tribunal fails to address a matter that was not raised before it or, as a matter of discretion, whether the applicant is now precluded from raising it. 41 The respondent noted that the Art 33 of the Rome Statute departed from provisions made in previous instruments where "superior orders" were not recognised as a defence, but rather a matter to be pleaded in mitigation of punishment. The respondent submitted that the applicant had not established that prior to the entry into force of the Rome Statute, there existed a defence of superior orders to a charge of crimes against humanity. The respondent submitted that the decision in Finta concerned what may be viewed as a complementary defence of compulsion or duress. The respondent submitted the applicant did not seek to bring himself within the duress defence in Art 31(1)(d). The respondent submitted that even if Finta did stand for the proposition that the defence of superior orders was available, that decision alone would "not go so far as to crystallise customary international law on the point". The respondent submitted that it was not necessary to discern a clear rule of customary international law with regard to the defence of superior orders for the purpose of determining the application of the defence in Art 33 to crimes against humanity, pursuant to Article 1F(a) of the Refugees Convention. 42 The respondent submitted that as the existence of a defence under customary international law had not been raised before the Tribunal, it had been under no obligation to consider it. It was not a matter squarely raised on the material before the Tribunal. 43 In relation to the question of whether the Tribunal erred in failing to consider the definition in Art 7(2)(e) of the Rome Statute, there is no inconsistency between the content of Art 30(2) and the definition of torture in Art 7(2)(e) and the latter does not raise any additional consideration which should be addressed when considering whether the crime of torture had been committed. The definition refers to the "intentional infliction of severe pain or suffering whether physical or mental". Clearly, Art 30(2)(a), which refers to the intent to engage in conduct, encompasses the conduct of "inflicting" pain or suffering and Art 30(2)(b), which refers to the intent to cause a consequence, picks up the consequences of "severe pain or suffering". It was open to the Tribunal to determine whether the applicant had intended to commit the crime defined in Art 7(2)(e) by reference to the test concerning the mental element articulated in Art 30(2)(a). It did so. Ground 1(a) is not made out.


case_text: This decision of the delegate was previously the subject of an unsuccessful application for review to the Tribunal: see SRYYY and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 927. In an appeal to this Court against the Tribunal's decision, Lindgren J found no jurisdictional error and dismissed the application as incompetent: see SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1588. An appeal from that judgment was successful and the Full Court remitted the matter to the Tribunal for determination according to law: see SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 42 ; (2005) 147 FCR 1. 3 Under s 36(2)(a) of the Migration Act 1958 (Cth), a criterion for a protection visa is that the Minister is satisfied that the visa applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Under Art 1F of that Convention: The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity , as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. (emphasis added) 4 One means of ascertaining the meaning of a crime against humanity is to refer to the International Criminal Court Act 2002 (Cth). Section 3(1) of the Act provides that the principal object of the Act is to facilitate compliance with Australia's obligations under the Statute of the International Criminal Court done at Rome on 17 July 1998 (the Rome Statute) which is Schedule 1 to that Act. The Rome Statute is an international instrument of the type referred to in Art 1F(a): see SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 42 ; (2005) 147 FCR 1 at [66] . Relevantly, the Rome Statute provides: Article 7 Crimes against humanity 1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) ... ... (f) Torture; ... 2. For the purpose of paragraph 1: (a) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; ... (e) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; ... ... Article 9 Elements of Crimes 1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Elements of Crimes may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; (c) The Prosecutor. Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. 3. The Elements of Crimes and amendments thereto shall be consistent with this Statute. ... Article 22 Nullum crimen sine lege 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute. ... Article 24 Non-retroactivity ratione personae 1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply. Article 25 Individual criminal responsibility 1. ... ... 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; ... ... Article 30 Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly. ... Article 33 Superior orders and prescription of law 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful. 5 The Tribunal had to determine whether the applicant was subject to the exclusionary provisions in Art 1F of the Refugees Convention. That is, it had to determine whether it was satisfied that "there are serious reasons for considering" that the applicant had committed a war crime or a crime against humanity. 6 The Tribunal set out the applicant's evidence at length. It was from a number of sources (including departmental interviews and a transcript of oral evidence given at the previous tribunal hearing) and spanned the years 2000 to 2006. The applicant joined the Sri Lankan Army in May 1997 as an ordinary soldier. At that time there was a civil war between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE). After a year or so on the frontline in Trincomalee and then another year at Elephant Pass the applicant requested a transfer because he disliked witnessing innocent civilians and fellow soldiers being killed and injured. He was posted to Jaffna where he was assigned to a unit responsible for questioning suspects. This sometimes involved threatening and harming detainees. 32 The applicant submitted, in relation to ground 2, that because the Rome Statute was not in force at the time the applicant was alleged to have committed the crimes alleged, he ought not to be precluded from reliance on the defence of superior orders. He noted that the Full Court decision in SRYYY questioned whether Art 33 accurately reflected customary international law. The applicant submitted that to the extent that Art 33 excluded the defence of superior orders in relation to crimes against humanity, it ought not to be given retrospective effect.


case_text: Prior to the enactment of s 31A of the Federal Court Act, the standard to be satisfied before summary judgment would be granted was settled law. The authorities made it clear that the jurisdiction to give summary judgment should be exercised with great care and only where the Court was satisfied that the respondent had no arguable defence to the claim made by the applicant: see, e.g., Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130; Geoffrey Inc v Luik (1997) 38 IPR 555 at 557 (" Luik "); Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 (" Fancourt ") at 99; and Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598. Accordingly, the Court should apply these authorities in the disposition of this motion.


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125


case_title: Geoffrey Inc v Luik (1997) 38 IPR 555


case_text: Prior to the enactment of s 31A of the Federal Court Act, the standard to be satisfied before summary judgment would be granted was settled law. The authorities made it clear that the jurisdiction to give summary judgment should be exercised with great care and only where the Court was satisfied that the respondent had no arguable defence to the claim made by the applicant: see, e.g., Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130; Geoffrey Inc v Luik (1997) 38 IPR 555 at 557 (" Luik "); Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 (" Fancourt ") at 99; and Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598. Accordingly, the Court should apply these authorities in the disposition of this motion. 11 Under O 20 r 1 the applicants are required to adduce evidence of such facts as are necessary for their cause of action: see Rourke v Victorian Finance Guarantee and Share Co Ltd (1894) 20 VLR 8 at 11 and Evans Deakin & Co Pty Ltd v Kaiser Engineers and Constructors Inc [1968] Qd R 379 at 382. By their Defence the respondents in fact admitted that the applicants were the owners of Gap's registered marks. There was no issue as to the applicants' or the second respondent's incorporation. Further, the respondents admitted that, at all material times, the fourth respondent was the sole director of the second respondent, acting as its servant or agent, and in effective control of the business of the second respondent. In an affidavit sworn by Mr Jordan on 16 November 2005, he deposed to an arrangement between the first applicant and United Garment (Vietnam) Co Ltd ("UGV"), pursuant to which UGV was authorized to manufacture garments and apply Gap's registered marks only to the garments ordered. Mr Jordan's affidavit contained evidence that UGV had supplied garments bearing Gap's registered marks to the second respondent without the applicants' authority. Further, there was evidence in another affidavit of Mr Jordan sworn on 25 November 2005 that the respondents had imported the garments. Since it is manifestly clear that the respondents have no arguable defence, I accept that the applicants have satisfied the requirement in O 20 r 1 to adduce evidence of the facts necessary for their infringement claim. Ultimately, as the High Court said in Fancourt at 99, whether or not the Court is satisfied that that there is no real question to be tried will depend entirely on the circumstances of the case.


case_title: Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598


case_title: Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 40

case_text: By its statement of claim the applicants alleged, amongst other things, that the respondents have contravened s 120 of the Trade Mark Act 1995 (Cth). Under this provision a trade mark will be infringed where a mark which is "substantially identical with, or deceptively similar to" a registered trade mark is used in relation to the same goods as the registered goods. The use complained of must be "use by the alleged infringer as a trade mark" and this requires consideration of the "purpose and nature of the impugned use": see Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd [1961] HCA 75 ; (1963) 109 CLR 407 at 426 per Kitto J as cited in Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326 at 347 per Gummow J. It is clear from pleadings and affidavits previously filed in the proceeding that the respondents' use of the allegedly infringing marks has been for the purposes of trade.


case_outcome: cited

case_title: Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326


case_text: Under O 20 r 1 the applicants are required to adduce evidence of such facts as are necessary for their cause of action: see Rourke v Victorian Finance Guarantee and Share Co Ltd (1894) 20 VLR 8 at 11 and Evans Deakin & Co Pty Ltd v Kaiser Engineers and Constructors Inc [1968] Qd R 379 at 382. By their Defence the respondents in fact admitted that the applicants were the owners of Gap's registered marks. There was no issue as to the applicants' or the second respondent's incorporation. Further, the respondents admitted that, at all material times, the fourth respondent was the sole director of the second respondent, acting as its servant or agent, and in effective control of the business of the second respondent. In an affidavit sworn by Mr Jordan on 16 November 2005, he deposed to an arrangement between the first applicant and United Garment (Vietnam) Co Ltd ("UGV"), pursuant to which UGV was authorized to manufacture garments and apply Gap's registered marks only to the garments ordered. Mr Jordan's affidavit contained evidence that UGV had supplied garments bearing Gap's registered marks to the second respondent without the applicants' authority. Further, there was evidence in another affidavit of Mr Jordan sworn on 25 November 2005 that the respondents had imported the garments. Since it is manifestly clear that the respondents have no arguable defence, I accept that the applicants have satisfied the requirement in O 20 r 1 to adduce evidence of the facts necessary for their infringement claim. Ultimately, as the High Court said in Fancourt at 99, whether or not the Court is satisfied that that there is no real question to be tried will depend entirely on the circumstances of the case.


case_title: Evans Deakin & Co Pty Ltd v Kaiser Engineers and Constructors Inc [1968] Qd R 379


case_text: The respondents have not filed any affidavits in opposition or at all in this proceeding. It was common ground at the hearing on 27 January 2006, when the respondents appeared by their solicitor, that they had entered into the settlement agreement (referred to earlier) with the applicants. Their solicitor gave the undertakings (referred to above) on their behalf pursuant to that agreement. By virtue of this agreement, the respondents are estopped from raising their defences to the applicants' infringement claim; alternatively they have waived such rights as they had to rely on those defences: see Commonwealth of Australia v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 at 407, 410 per Mason CJ, 459 per Dawson J and Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 at 883 per Lord Diplock. Accordingly, it is appropriate that the applicants should have summary judgment.


case_title: Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850


case_outcome: considered

case_text: There are, however, some further observations I would make about the applicants' heavy reliance on the settlement deed as justifying the orders they seek. In support of their argument that the deed of settlement alone was sufficient to entitle them to summary judgment, the applicants relied on the decision of Hely J in Reid v Interarch Australia Pty Ltd [2000] FCA 1328 (" Interarch "), a case in which the applicants initially claimed damages for the respondents' allegedly misleading or deceptive advice in connection with the establishment of a business. In that case as in this, the parties compromised the proceedings by entering into a deed of settlement pursuant to which the respondents agreed to pay settlement monies by instalments. As in this case, the deed of settlement in Interarch provided that, if the respondents defaulted in making payments, then they would consent to summary judgment. The respondents failed to pay and the applicant brought a summary judgment application. Hely J considered the question whether the applicants should be required to institute fresh proceedings to enforce the compromise in the settlement agreement. After referring to Phillips v Walsh (1990) 20 NSWLR 206 (" Phillips "), his Honour noted (at [26]-[28]) that, in Interarch , there was only one "short issue of law" advanced on the summary judgment application, that there was no real virtue in fresh proceedings, and that there was "no substantive advantage to be derived from requiring the institution of fresh proceedings". These considerations led his Honour to order summary judgment. Interarch provides some support for the applicants' position in the present case that the deed of settlement alone is enough to entitle them to summary judgment. 15 When Phillips is examined, however, it is apparent that Interarch is of limited assistance. This is because after considering "the authorities which deal with the power of the court to enforce on motion in existing proceedings an agreement compromising those proceedings", McLelland J concluded, in Phillips at 210, that "[t]hese authorities present a confusing picture" and that he did not propose to analyse them since they were not dealt with in argument. He added, again at 210, that: "It is sufficient for present purposes to say that, although there is some arguable support for the proposition (although it is far from clear) that the Court might on motion in the present proceedings enforce a particular term of the agreement between the parties ... which came within the ambit of the proceedings as originally constituted, it would not be proper to do so where substantial matters are involved beyond the ambit of the proceedings as originally constituted, or where, in the interests of justice, disposition of the matter on the summary application is inappropriate." His Honour did not grant summary judgment in that case. 16 Plainly enough, notwithstanding that certain comments in Interarch might suggest otherwise, Phillips is not authority for the proposition that the Court can enforce a deed of settlement in existing proceedings although McLelland J does not rule out this possibility in an appropriate case.


case_title: Phillips v Walsh (1990) 20 NSWLR 206


case_text: I will not repeat here the detailed evidence of the parties concerning the performance characteristics of the two products over a range of different stains and textiles. It suffices to say that it is not practicable at the present time to form any confident prediction as to the likely outcome or strength of the case brought by Unilever. To properly consider the detailed evidence filed (and any further evidence which may become available), it will be necessary to have the benefit of interlocutory processes, cross-examination and addresses by counsel. At this time, however, I am persuaded that the application brought by Unilever is sufficient to raise a prima facie case, as that term is defined by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at 82. 12 Cussons has brought a cross-claim against Unilever. The cross-claim relates to two of Unilever's laundry liquid wash products, namely, Omo Small & Mighty and "Surf Small & Mighty". Both of these products are marketed in bottles which display the words "3X Concentrate". Both bottles display these words under the name of the product and use a silhouette to demonstrate that each product is equivalent to older products marketed by Unilever which were 1.4L in size. In addition, in the case of Surf Small & Mighty, alongside the words "3X Concentrate", the words "As many washes as Surf 1.4L" appear. 13 Cussons contends that these words which appear on Omo Small & Mighty and Surf Small & Mighty represent that the liquids in those products are three times as concentrated as the liquids in Unilever's older laundry liquid wash products (which, being 1.4L, were also approximately three times the size). These words, it is said, have the effect of representing that, at recommended doses, the performance qualities of Omo Small & Mighty and Surf Small & Mighty are the same as the older and larger products, whereas tests conducted on the liquids demonstrate that their characteristics do not support this representation. Accordingly, Cussons claims that the representations are misleading. 14 On the present material and submissions, it seems to me that, as a matter of construction, the representations would be taken by a consumer not so much as indicating that the precise performance qualities of the liquids are identical or that the chemical composition or characteristics of the liquids are identical to the liquids in the larger containers, but rather go to the result that the same number of washes can be obtained from the smaller Omo Small & Mighty and Surf Small & Mighty as can be obtained from the liquids in the larger containers if the recommended dosages are used. For instance, Surf Small & Mighty describes its equivalence with the older and larger products not by reference to the inherent composition or concentration of the liquid, but by reference to the number of washes which a bottle will provide. In the case of Omo Small & Mighty, however, the way in which it is said to be equivalent to the older and larger products is less clear, and I think it unlikely that a consumer will closely study the back of the bottle to calculate the number of caps that are contained in the bottle, and the number of washes that it will produce. The emphasis for which Unilever contends relates to the end result of the use of the products, namely, the number of washes produced rather than on the character or concentration of the liquid. This, Unilever says, is what the consumer would really be interested to know. While Unilever's position on this point is arguable, in my view Cussons has raised a prima facie case within the meaning of Australian Broadcasting Corporation 227 CLR at 82. Whether Cussons' argument can be said to be strong or weak is not a matter which can be decided on the material filed to date. 15 The parties also addressed submissions to the balance of convenience in granting or refusing interlocutory relief. In my view, provided that an early date for final hearing is fixed, and even though the parties have established their respective prima facie cases, there is nothing in the balance of convenience which requires that the interlocutory relief sought by either party should be granted. 16 Omo Small & Mighty was launched in Australia in early February 2008 and national advertising commenced on 24 February 2008. It now has 9% of all Australian liquid wash sales. Unilever says that Cussons, having conducted its tests quite some time ago in February 2008, has delayed the bringing of its cross-claim for the tactical purposes of ensuring that its product, Radiant micro Max, had entered the market before any litigation commenced. Unilever says that Cussons' deliberate delay points to disentitling conduct which should be taken into account in assessing the balance of convenience of awarding interlocutory relief. Unilever submits that the grant of interlocutory relief against it will disrupt its marketing of an innovative product, will cause substantial loss as a result of any recall, and will damage their brand in intangible ways which cannot be satisfied by a pecuniary award on a final hearing (such as by damaging relations with suppliers and losing shelf space in retailers' stores). Accordingly, Unilever resists the grant of the interlocutory orders sought by Cussons on its cross-claim.


case_title: Casella v Casella [1969] VR 49

case_text: The fourteenth respondent is the Victorian Registrar of Titles. It will be convenient to refer to him hereafter as "the Registrar". In his written submissions, counsel for the Registrar contended that Victorian case law which had developed under s 51 of the Trustee Act 1958 (Vic) and s 103 the Transfer of Land Act 1958 (Vic) rendered a vesting order as a step of last resort for parties who had "no other ordinary conveyancing procedure available to them." Section 51 provided for vesting orders to be made, inter alia, when a trustee, who was under a duty to do so, neglected or refused to convey any property. Section 103 provided for the Supreme Court to direct the Registrar to correct the record in the Register. Reliance was placed on Dotter v Evans [1969] VR 41; Casella v Casella [1969] VR 49 and Re Purkiss [1999] VSC 386 ; [1999] 3 VR 223. In argument counsel agreed that these cases were concerned with the exercise, by the Supreme Court of Victoria, of statutory discretions to direct the Registrar to amend the Register. The Registrar placed particular reliance on the observations of Gillard J in Dotter v Evans at 45 where his Honour said: "I would, therefore, be inclined to the view that having regard to this policy [of providing for the certificate of title or Crown Grant to be in duplicate], set out or to be discovered in the Transfer of Land Act , a vesting order should not be where it is merely intended to facilitate or be a substitute for ordinary conveyancing practice. In these proceedings supplementary orders are being sought to enforce a judgment for specific performance and it should be assumed that the defendant should and will obey the Court's orders on any directions given. At the initial stages these orders should involve simple conveyancing matters only. Although from the evidence before the Court one may believe that the defendants will prove recalcitrant and will not willingly co-operate to carry out the judgment of the Court, nevertheless at this stage of the proceedings, in asking for supplementary directions, it seems to me that the plaintiff should follow the ordinary practice, both in Court proceedings and in conveyancing. All remedies based on such practices should be exhausted before other extraordinary remedies are granted by the Court." 9 His Honour's observations were made in the course of dealing with a case in which a vendor had failed to comply with an order for specific performance of a contract for the sale of land. Casella v Casella involved the failure by a husband to comply with a Court order to transfer certain land to his wife as part of property arrangements following a divorce. McInerney J refused to make an order under s 103 of the Transfer of Land Act because of a concern that it could lead to the continuance in existence of a duplicate certificate of title which did not reflect the terms of the Register and which might be misused (see at 59-60).


case_text: The breadth of the discretion was recognised by Sackville J in Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168 at 182 where his Honour said: "There are good reasons to give s 33ZF a generous interpretation. The section is couched in broad terms. Moreover, the Court is given power to act on its own motion. The language, which is described in the Explanatory Memorandum, as "wide", doubtless reflects the drafter's perception that the new statutory procedure for representative proceedings was likely to throw up novel problems that would require close supervision by the Court." See also McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 at 4 (per Wilcox J).


case_text: In exercising my discretion I accept that it is appropriate to have regard to the considerations which underpin the "last resort" approach which has been adopted by the Victorian Supreme Court. However, that approach guides the exercise of different statutory discretions. Even then, it does not fetter the exercise of those discretions in any particular case. Indeed it would be improper for it to do so: see Dix v Crimes Compensation Tribunal [1993] 1 VR 297 at 302. The considerations which informed the excercises of discretion in the cases relied on by the Registrar do not apply in the present circumstances. It is also necessary to bear in mind that different and additional matters arise for consideration when the Court's discretion under s 33ZF is exercised. In particular the power can be exercised to facilitate settlement of class actions which can and do involve complicated issues which impinge on the parties who may be interested in pursuing settlement negotiations. It is relevant in the present proceeding that, if the proposed order is not made, there is a possibility that the settlement agreement will collapse. Moreover I can see no justification in imposing unnecessary costs on the parties who have already suffered greatly both financially and emotionally as a result of being induced to give up title to their homes. The process by which this occurred, in each case, involved a contravention of the Trade Practices Act such as to render the transactions null and void. Unlike the plaintiffs in the Victorian cases the class members are not disadvantaged by reason of the failure of a vendor to deliver up duplicate certificates of title or otherwise failing to facilitate a transfer of title. They are seeking an order which will restore the entry of their names in the Register. 18 The various considerations relied on by the parties who support the making of order 2 strongly justify a departure from the "normal" processes for rectification of the Register. The order should be made. 19 At the hearing I reserved consideration of the costs of the notice of motion until the publication of these reasons. I will now hear the parties as to costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 21 December 2007 Counsel for the Applicant: Mr P Marzella Solicitor for the Applicant: Russell Kennedy Counsel for the First and Second Respondent: Mr I Waller SC Solicitor for the First and Second Respondent: Arnold Bloch Leibler Counsel for the Thirteenth Respondent: Ms S Burchell Solicitor for the Thirteenth Respondent: Monahan & Rowell Counsel for the Fourteenth Respondent: Mr W Rimmer Solicitor for the Fourteenth Respondent: Victorian Government Solicitor Counsel for the Fifteenth Respondent: Mr M Sifris SC & Mr S Maiden Solicitor for the Fifteenth Respondent: Gadens Lawyers Date of Hearing: 5 December 2007 Date of Judgment: 21 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1981.html


case_title: Dotter v Evans [1969] VR 41

case_text: The fourteenth respondent is the Victorian Registrar of Titles. It will be convenient to refer to him hereafter as "the Registrar". In his written submissions, counsel for the Registrar contended that Victorian case law which had developed under s 51 of the Trustee Act 1958 (Vic) and s 103 the Transfer of Land Act 1958 (Vic) rendered a vesting order as a step of last resort for parties who had "no other ordinary conveyancing procedure available to them." Section 51 provided for vesting orders to be made, inter alia, when a trustee, who was under a duty to do so, neglected or refused to convey any property. Section 103 provided for the Supreme Court to direct the Registrar to correct the record in the Register. Reliance was placed on Dotter v Evans [1969] VR 41; Casella v Casella [1969] VR 49 and Re Purkiss [1999] VSC 386 ; [1999] 3 VR 223. In argument counsel agreed that these cases were concerned with the exercise, by the Supreme Court of Victoria, of statutory discretions to direct the Registrar to amend the Register. The Registrar placed particular reliance on the observations of Gillard J in Dotter v Evans at 45 where his Honour said: "I would, therefore, be inclined to the view that having regard to this policy [of providing for the certificate of title or Crown Grant to be in duplicate], set out or to be discovered in the Transfer of Land Act , a vesting order should not be where it is merely intended to facilitate or be a substitute for ordinary conveyancing practice. In these proceedings supplementary orders are being sought to enforce a judgment for specific performance and it should be assumed that the defendant should and will obey the Court's orders on any directions given. At the initial stages these orders should involve simple conveyancing matters only. Although from the evidence before the Court one may believe that the defendants will prove recalcitrant and will not willingly co-operate to carry out the judgment of the Court, nevertheless at this stage of the proceedings, in asking for supplementary directions, it seems to me that the plaintiff should follow the ordinary practice, both in Court proceedings and in conveyancing. All remedies based on such practices should be exhausted before other extraordinary remedies are granted by the Court." 10 Gillard J gave further consideration to the exercise of the Court's discretion to make an order under s 103 of the Transfer of Land Act in Marshall v Williams [1974] VR 592. In that case he made an order under s 103 because the vendor could not be found and the duplicate certificate of title obtained from him. Having referred to his judgment in Dotter v Evans he continued (at 594); "The basis for my view was that there should be no opportunity for two duplicate certificates of title being in existence at the same time in respect of the same land. It seemed to me that such a situation was contrary to the intent and policy of the Transfer of Land Act . I think, however, that if one follows the order made by Lush J in Ritzos v Ritzos [1970] VR 150 to ensure the old certificate is cancelled and a new duplicate certificate issued, then some of the difficulties that I had foreseen in Dotter v Evans will be overcome."


case_title: Marshall v Williams [1974] VR 592

case_text: Gillard J gave further consideration to the exercise of the Court's discretion to make an order under s 103 of the Transfer of Land Act in Marshall v Williams [1974] VR 592. In that case he made an order under s 103 because the vendor could not be found and the duplicate certificate of title obtained from him. Having referred to his judgment in Dotter v Evans he continued (at 594); "The basis for my view was that there should be no opportunity for two duplicate certificates of title being in existence at the same time in respect of the same land. It seemed to me that such a situation was contrary to the intent and policy of the Transfer of Land Act . I think, however, that if one follows the order made by Lush J in Ritzos v Ritzos [1970] VR 150 to ensure the old certificate is cancelled and a new duplicate certificate issued, then some of the difficulties that I had foreseen in Dotter v Evans will be overcome." 11 In Re Purkiss , Warren J made an order under s 51 of the Trustee Act 1958 in a case in which no legal entity could be found who could execute a transfer of land. Her Honour referred to Marshall v Williams and held that, in the circumstances, the order which she made was a "step of last resort'. Her Honour did not hold that an order under s 51 could not be made unless all conveyancing processes had been exhausted.


case_title: McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1


case_text: The fourteenth respondent is the Victorian Registrar of Titles. It will be convenient to refer to him hereafter as "the Registrar". In his written submissions, counsel for the Registrar contended that Victorian case law which had developed under s 51 of the Trustee Act 1958 (Vic) and s 103 the Transfer of Land Act 1958 (Vic) rendered a vesting order as a step of last resort for parties who had "no other ordinary conveyancing procedure available to them." Section 51 provided for vesting orders to be made, inter alia, when a trustee, who was under a duty to do so, neglected or refused to convey any property. Section 103 provided for the Supreme Court to direct the Registrar to correct the record in the Register. Reliance was placed on Dotter v Evans [1969] VR 41; Casella v Casella [1969] VR 49 and Re Purkiss [1999] VSC 386 ; [1999] 3 VR 223. In argument counsel agreed that these cases were concerned with the exercise, by the Supreme Court of Victoria, of statutory discretions to direct the Registrar to amend the Register. The Registrar placed particular reliance on the observations of Gillard J in Dotter v Evans at 45 where his Honour said: "I would, therefore, be inclined to the view that having regard to this policy [of providing for the certificate of title or Crown Grant to be in duplicate], set out or to be discovered in the Transfer of Land Act , a vesting order should not be where it is merely intended to facilitate or be a substitute for ordinary conveyancing practice. In these proceedings supplementary orders are being sought to enforce a judgment for specific performance and it should be assumed that the defendant should and will obey the Court's orders on any directions given. At the initial stages these orders should involve simple conveyancing matters only. Although from the evidence before the Court one may believe that the defendants will prove recalcitrant and will not willingly co-operate to carry out the judgment of the Court, nevertheless at this stage of the proceedings, in asking for supplementary directions, it seems to me that the plaintiff should follow the ordinary practice, both in Court proceedings and in conveyancing. All remedies based on such practices should be exhausted before other extraordinary remedies are granted by the Court." 11 In Re Purkiss , Warren J made an order under s 51 of the Trustee Act 1958 in a case in which no legal entity could be found who could execute a transfer of land. Her Honour referred to Marshall v Williams and held that, in the circumstances, the order which she made was a "step of last resort'. Her Honour did not hold that an order under s 51 could not be made unless all conveyancing processes had been exhausted.


case_title: Ritzos v Ritzos [1970] VR 150

case_text: Gillard J gave further consideration to the exercise of the Court's discretion to make an order under s 103 of the Transfer of Land Act in Marshall v Williams [1974] VR 592. In that case he made an order under s 103 because the vendor could not be found and the duplicate certificate of title obtained from him. Having referred to his judgment in Dotter v Evans he continued (at 594); "The basis for my view was that there should be no opportunity for two duplicate certificates of title being in existence at the same time in respect of the same land. It seemed to me that such a situation was contrary to the intent and policy of the Transfer of Land Act . I think, however, that if one follows the order made by Lush J in Ritzos v Ritzos [1970] VR 150 to ensure the old certificate is cancelled and a new duplicate certificate issued, then some of the difficulties that I had foreseen in Dotter v Evans will be overcome."


case_text: operation of O 21 of the Federal Court Rules , as then in force, was considered by Sackville J in Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378. The following principles emerge from that decision at [51]-[59] and are relevant to the present form of O 21: (a) The power to make an order under O 21 is to be exercised having regard to the fundamental principle that every person has a right of access to the Court to seek remedies in consequence of an alleged infringement of his or her rights and that it is a serious thing to limit or restrict that right. (b) The power to restrict that right of access exists to protect the Court's own processes against unwarranted usurpation of judicial time and resources and to avoid the loss and disruption caused to those who face actions which lack substance. (c) The terms of O 21 r 1 identify the jurisdictional criteria which must be established before the power to make any order will arise. An application for such an order needs to show that the person against whom such an order is sought: - habitually and persistently; - and without any reasonable cause; - institutes; - a vexatious proceeding; - in the Court [or any other Australian court]. (d) The expression "habitually and persistently" implies more than "frequently". "Habitually" suggests that the institution of proceedings is undertaken automatically and without due consideration to the merits of the proceedings. "Persistently" suggests determination and continuation in the face of difficulty or opposition, with a degree of stubbornness. (e) The test of whether a vexatious proceeding has been commenced "without any reasonable cause" is an objective one. The relevant inquiry is whether the legal proceedings in fact can be shown to have had no reasonable basis regardless of the subjective motive or point of view of Mr Tsekouras. Similar principles were stated by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 which considered the equivalent provision of the Supreme Court Act 1970 (NSW) ('the Supreme Court Act ').


case_text: am satisfied that Mr Tsekouras has no reasonable prospects of successfully prosecuting any part of his proceeding. The subject matter of this proceeding has been considered by numerous other courts. Accordingly, Mr Olsen is entitled to summary judgment pursuant to s 31A of the Federal Court Act. Further, I am satisfied that Mr Tsekouras' case is hopeless and bound to fail and Mr Olsen would have been entitled to summary judgment under the test under General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. Order 21 of the Federal Court Rules : vexatious litigants Order 21 rule 1 of the Federal Court Rules relevantly provides: (1) If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order: (a) that any proceeding instituted by the person may not be continued without leave of the Court; and (b) that the person may not institute a proceeding without leave of the Court. (2) An order under this rule may be made: (a) on the application of a person against whom the person mentioned in subrule (1) has instituted or conducted vexatious proceedings; or (b) on the application of a person who has sufficient interest in the matter; ...


case_title: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27


case_title: Black & Black [2008] FamCAFC 7

case_text: Fourth, I do not accept the submission of the respondent that the decision in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 is distinguishable because in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 there was only an informal agreement whereby the wife had relinquished her entitlement to sue, whereas in this case the respondent and Mr Jensen had executed a financial agreement pursuant to the Family Law Act in which the respondent had expressly relinquished and forfeited any claims and entitlements to property in Mr Jensen's name as well as an entitlement to spousal maintenance. I take this view because: (a) Although one of the reasons for the decision of the Full Court in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 was that there was no evidence to support a finding that Mrs Lopatinsky had promised to give up a claim under s 79 of the Family Law Act , in fact the primary reason described by Whitlam and Jacobson JJ as "the short answer to this appeal" (at [101]-[102]) was the incorrect view the primary judge had taken of the alleged consideration provided in the circumstances of the case. (b) It is not in dispute that a binding financial agreement which is valid under the relevant provisions of Pt VIIIA of the Family Law Act has the effect of ousting the jurisdiction of the court in respect of certain matters covered by the agreement, including financial matters or financial resources to which a binding financial agreement applies: Black & Black [2008] FamCAFC 7 at [29] . However the simple fact of acknowledgment by one spouse in a financial agreement of the provision of consideration for the transfer of property does not mean that the alleged consideration is adequate for the purposes of s 120 and s 121 of the Bankruptcy Act if a transaction is subsequently challenged by a trustee in bankruptcy. As I noted earlier in this judgment, "consideration" in the context of the bankruptcy legislation has its ordinary legal and commercial meaning ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 249). The fact that the movement of consideration is acknowledged in a financial agreement does not give the consideration validity it would not otherwise have. (c) Further, and in any event, as I have already found in Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen [2009] FCA 778 , the transfer of property pursuant to a financial agreement does not equate to a transfer of property pursuant to Court order, as was the case in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217. The current legislative framework applicable to financial agreements contemplates that a trustee in bankruptcy may make application pursuant to both s 120 and s 121 of the Bankruptcy Act to set aside a transfer pursuant to a financial agreement executed by the parties. Similarly, it is open to the Court to review the nature of the consideration stated in a financial agreement. The Court is not in any way prevented from doing so by the fact that the financial agreement is enforceable as between the parties under the Family Law Act. (b) Alleged payment by the respondent and her mother for the Carrara property, resulting in the transfer of that property to the respondent by Mr Jensen was merely a transfer of the bare legal title


case_text: to sue for an antecedent debt pursuant to an agreement, either express or implied, may constitute valuable consideration, including in a bankruptcy context: Wigan v English and Scottish Law Life Assurance Association (1909) 1 Ch 291 at 303, re Zampatti ex parte RJ Levack Ltd [1993] FCA 170 , Cannane & Anor v Official Trustee in Bankruptcy (1996) 65 FCR 453 at 466, Official Trustee in Bankruptcy v Racovitis [1995] FCA 959 , Victorian Producers Co-Operative Co Ltd v Kenneth [1999] FCA 1488 , Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85 at [22] . However in bankruptcy-related proceedings the forbearance must be for value. This point was emphasised in para 84.14 of the Explanatory Memorandum to the Bankruptcy Legislation Amendment Bill 1996 (Cth), which enacted s 120 in its current form, states: Forbearance to sue has always been regarded at law as good consideration. Such forbearance will, under the Act as proposed to be amended by the Bill, have to be looked at in the light of the likely value of the chose in action. (emphasis added)


case_text: background to these proceedings is described in detail in Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen [2009] FCA 778. In summary, pursuant to a financial agreement executed on 22 January 2002 by Mr Jensen and the respondent in accordance with s 90C of the Family Law Act 1975 (Cth) (Family Law Act), Mr Jensen agreed to transfer the interest he held as a joint tenant in the parties' matrimonial home at 640-646 Nerang-Broadbeach Road, Carrara ("the Carrara property") to the respondent. Mr Jensen became bankrupt on 14 February 2006. The applicant is his trustee in bankruptcy ("trustee"). In substantive proceedings in this Court the trustee has sought orders pursuant to s 120 and s 121 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) to set aside the transfer by Mr Jensen of his interest in the Carrara property to the respondent, and consequential orders in respect of the matrimonial home. In Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen [2009] FCA 778 I dismissed the respondent's notice of motion seeking an order that the substantive proceedings be stayed as an abuse of process. At the same time I dealt in part with the trustee's amended notice of motion filed 31 March 2009, and ordered that the trustee have leave to amend his statement of claim. However that part of the trustee's amended notice of motion seeking an order that paras 10a to 10i of the Defence filed by the respondent be struck out has remained unresolved. This is because: The respondent now seeks leave to file an Amended Defence and Cross-Claim. In her Amended Defence and Cross-Claim the respondent has also sought to further amend para 10, the subject of the trustee's notice of motion. It was not in contention during the hearing before me that the trustee's application to strike out para 10 of the respondent's Amended Defence and Cross-Claim extended to the amended version of para 10. 4. Fourth, I do not accept the submission of the respondent that the decision in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 is distinguishable because in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 there was only an informal agreement whereby the wife had relinquished her entitlement to sue, whereas in this case the respondent and Mr Jensen had executed a financial agreement pursuant to the Family Law Act in which the respondent had expressly relinquished and forfeited any claims and entitlements to property in Mr Jensen's name as well as an entitlement to spousal maintenance. I take this view because: (a) Although one of the reasons for the decision of the Full Court in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 was that there was no evidence to support a finding that Mrs Lopatinsky had promised to give up a claim under s 79 of the Family Law Act , in fact the primary reason described by Whitlam and Jacobson JJ as "the short answer to this appeal" (at [101]-[102]) was the incorrect view the primary judge had taken of the alleged consideration provided in the circumstances of the case. (b) It is not in dispute that a binding financial agreement which is valid under the relevant provisions of Pt VIIIA of the Family Law Act has the effect of ousting the jurisdiction of the court in respect of certain matters covered by the agreement, including financial matters or financial resources to which a binding financial agreement applies: Black & Black [2008] FamCAFC 7 at [29] . However the simple fact of acknowledgment by one spouse in a financial agreement of the provision of consideration for the transfer of property does not mean that the alleged consideration is adequate for the purposes of s 120 and s 121 of the Bankruptcy Act if a transaction is subsequently challenged by a trustee in bankruptcy. As I noted earlier in this judgment, "consideration" in the context of the bankruptcy legislation has its ordinary legal and commercial meaning ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 249). The fact that the movement of consideration is acknowledged in a financial agreement does not give the consideration validity it would not otherwise have. (c) Further, and in any event, as I have already found in Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen [2009] FCA 778 , the transfer of property pursuant to a financial agreement does not equate to a transfer of property pursuant to Court order, as was the case in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217. The current legislative framework applicable to financial agreements contemplates that a trustee in bankruptcy may make application pursuant to both s 120 and s 121 of the Bankruptcy Act to set aside a transfer pursuant to a financial agreement executed by the parties. Similarly, it is open to the Court to review the nature of the consideration stated in a financial agreement. The Court is not in any way prevented from doing so by the fact that the financial agreement is enforceable as between the parties under the Family Law Act. (b) Alleged payment by the respondent and her mother for the Carrara property, resulting in the transfer of that property to the respondent by Mr Jensen was merely a transfer of the bare legal title In Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen [2009] FCA 778 the Court declined of its own motion to transfer these proceedings to the Family Court. In that decision I observed that no formal application for transfer had been made by the respondent and no opportunity provided to the trustee to answer such an application. The respondent has now specifically sought an order that these proceedings be transferred to the Family Court, and filed detailed submissions in support of her application. The trustee opposes such an order, in summary, on the following grounds: The question whether bankruptcy-related proceedings should be transferred from the Federal Court to the Family Court has been considered in a number of cases by this Court. So, for example, the respondent has drawn my attention to the following cases: 1. First, Mr Griffin QC for the respondent submitted that if the trustee is successful in the substantive proceedings the respondent will make an application in the Family Court under s 79(1) of the Family Law Act seeking an order altering the interests of the trustee in the relevant property of Mr Jensen. As Besanko J observed in Macks v Edge [2006] FCA 1077 ; (2006) 156 FCR 302 at [42] , the Federal Court can hear and determine the trustee's claim, but it cannot hear and determine a spouse's claim under the Family Law Act should it become necessary to do so. Since judgment was delivered in Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen [2009] FCA 778 it has become clear that:


case_text: relation to the Cross-Claim before me, there is no suggestion by the trustee that the respondent has unduly delayed her application to file a Cross-Claim, that it would be unjust to the trustee if I were to grant leave to the respondent to file the Cross-Claim, or that the Cross-Claim is designed as a calculated harassment of the trustee in the principal proceedings (cf National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 at 238). The s 139ZQ notice the subject of the Cross-Claim was issued on the basis of a claim that the transfer of the Hope Island property was made for no consideration at a time at which Mr Jensen was insolvent, and that it was void as against the trustee pursuant to s 120 of the Bankruptcy Act . Similar issues, as between the same parties, are raised by both the s 139ZQ notice and the principal proceedings. While, as submitted by Mr McQuade for the trustee, the issue of the s 139ZQ notice does not require the trustee to commence proceedings in relation to the property the subject of that notice, I consider that the submissions of the respondent I listed earlier in this judgment concerning the broader question of whether the Court should grant leave to file the Cross-Claim have merit, and I propose to adopt them. Accordingly, I consider it appropriate that the respondent have leave to file Cross-Claim in the terms annexed to the affidavit of the respondent sworn 22 September 2009. 2. SHOULD PARAGRAPHS 7e, 10 AND 24 AMENDED DEFENCE AND CROSS-CLAIM BE STRUCK OUT? Under the heading " Section 120 " in para 8 of the Amended Statement of Claim the trustee pleads: The respondent gave no consideration to the transfer or alternatively gave consideration less than the market value of the property transferred to the respondent.


case_outcome: followed

case_text: claiming that the alleged relinquishment and forfeiture of claims by the respondent did not constitute valid consideration the trustee relied in particular on the decision of the Full Court in Official Trustee in Bankruptcy v Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 , in which case their Honours had in turn considered the earlier Full Court decision in Official Trustee in Bankruptcy v Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217. The respondent claimed that her forbearance to sue and relinquishment of claims as pleaded in both the Amended Defence and the Cross-Claim constituted consideration in the circumstances of this case, and that accordingly those pleadings were not untenable as claimed by the trustee. Submissions of the trustee In summary Mr McQuade for the trustee submitted that: The claims in relation to the properties listed in para 10j of the Amended Defence, in respect of which the respondent alleges relinquishment and forfeiture of her claims and in respect of which the respondent also claims forfeiture of her claims to spousal maintenance, are inconsistent with the recitals and terms of the Financial Agreement (in particular Recital N and cl 6) and are therefore untenable. Recital K to the Financial Agreement stated that the agreement was entered into in substitution for any rights for spousal maintenance and property under Pt VIII of the Family Law Act . Whitlam and Jacobson JJ in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at [97] - [102] rejected the proposition that valuation of consideration in the form of a forbearance to sue could be undertaken by assessing the non-financial and financial contributions to the marriage as if an application had been made under s 79 of the Family Law Act . The respondent's pleaded case is underpinned by the allegation of assessment of the value of the consideration, namely the relinquishment of causes of action on the basis of the factors set out in paras 10a to 10d and 10f to 10(ia) of the Amended Defence and Cross-Claim. For the reasons set out in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 and Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 that is untenable. Submissions of the respondent In summary, Mr Griffin QC for the respondent submitted that: The decision in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 does not support the proposition that forbearance to sue in matrimonial proceedings is of no commercial value and therefore not consideration within the meaning of s 120 of the Bankruptcy Act . Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 is distinguishable because in that case the parties made an informal agreement which did not prevent the wife from applying for relief under s 79 of the Family Law Act , whereas in this case: the parties signed a formal agreement recognised under the Family Law Act ; the respondent expressly relinquished and forfeited any claims and entitlements to property in Mr Jensen's name as well as an entitlement to spousal maintenance; the respondent has, by entering into the financial agreement and by virtue of s 71A of the Family Law Act , lost the right to apply for relief under s 72 and s 79 of the Family Law Act in relation to spousal maintenance and alteration of property interests. Insofar as the decision in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 related to the meaning of the phrase "consideration of less than market value" it was obiter because: the primary judge in Lopatinsky found that a forbearance to sue under s 79 of the Family Law Act was consideration within the meaning of s 120 of the Bankruptcy Act ; the Full Court found that there was no agreement to compromise Mrs Lopatinsky's claims and if there had been an implied forbearance to sue it was worthless because there were no consent orders entered under s 79 of the Family Law Act nor was the agreement approved under s 87 of the Family Law Act ; the trustee in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 accepted that an implied forbearance to sue can constitute good consideration. The appeal in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 was allowed because the agreement of Mrs Lopatinsky not to sue was found to be unenforceable and therefore was not valid consideration. The outcome would have been different had the agreement been binding and enforceable. In any event the whole issue of consideration and forbearance to sue are matters of judicial debate, and the pleadings ought not be struck out on an interlocutory application. Forbearance to sue and bankruptcy The concepts of forbearance to sue and consideration sit uneasily with circumstances where property interests are altered in a matrimonial context and one of the spouses becomes bankrupt. This issue was considered in detail by the Full Court in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234. It is useful at this point to turn to that decision. Official Trustee in Bankruptcy v Lopatinsky A property was registered in the name of Mr and Mrs Lopatinsky as joint tenants. The property was sold. Approximately eighteen months after the settlement of the sale Mr Lopatinsky became bankrupt. It appears that the Lopatinskys had agreed informally that, on settlement of the sale of the property, Mrs Lopatinsky would receive $81,387 more than she would have been paid out of the net proceeds if those proceeds had been equally divided between them. Mr Lopatinksy's trustee in bankruptcy claimed that Mrs Lopatinsky gave no consideration for the transfer to her of the $81,387 or alternatively that she gave consideration which was less than the market value of the sum transferred to her, and that accordingly the payment of that sum was void pursuant to s 120 of the Bankruptcy Act . So far as relevant the trial judge found that: Mrs Lopatinsky gave consideration for the transfer of the $81,387 in the form of a forbearance to sue under s 79 of the Family Law Act for an adjustment of property rights to reflect her contribution to the acquisition of the property and to the welfare of the marriage; Mr Lopatinsky had agreed to this arrangement: because he was settling, in a general sense, with his wife following the failure of their marriage in relation to all the matrimonial property. It is to be recalled that the bankrupt told the applicant she could take whatever money was necessary to purchase something for her and the children to live in and that he believed she would be fair. I also infer from these remarks of the bankrupt, having regard to he context in which they were made, that his offer was in recognition of the applicant's contribution to the family and the property they jointly owned as well as her future needs in raising their children, and an acceptance that a fair distribution of that property would result in her receiving a disproportionately large sum of the proceedings. ( Official Trustee in Bankruptcy v Lopatinsky (2002) 29 Fam LR 274 at 287 [43]) Accordingly the trial judge ordered that the relevant s 139ZQ notice be set aside. Before the Full Court the trustee contended that: The Full Court allowed the appeal against the decision of the primary judge. The majority judgment in the case was delivered by Whitlam and Jacobson JJ. Their Honours considered the earlier decision of the Full Court in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 upon which the trial judge in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 relied, and in summary observed that: The trial judge in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 had found that there was implied in the settlement a forbearance on the part of Mrs Lopatinsky to make a claim against Mr Lopatinsky under the Family Law Act , and that an implied forbearance to sue constitutes good consideration. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 245-246) Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 was not a case involving express or implied forbearance to sue rather consent orders had been made and entered pursuant to s 79 of the Family Law Act which provided for , inter alia, the transfer of the matrimonial home. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 244) All the members of the Full Court in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 were of the view that where a consent order is made under s 79 of the Family Law Act the transfer of property takes place pursuant to the order of the Court. Accordingly, as a matter of construction of s 121 , there can be no "transfer of property by a person who later becomes a bankrupt". ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 246) The purpose of s 120 of the Bankruptcy Act is to prevent properties, including the matrimonial home, from being transferred to related parties to the disadvantage of the bankrupt's creditors. Disadvantage will occur if the property is transferred for no consideration or for less than market value. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 249) There is nothing in s 120(5) to suggest that Parliament intended that the term "consideration" in s 120(1)(b) is to be read in anything other than its legal sense. It would be inconsistent with the observations of Wilcox and Branson JJ in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 to proceed upon the basis that "consideration" could be something less than the ordinary legal and commercial understanding of that term. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 249) In applying s 120(1)(b) the first step is to identify the consideration which was actually given. If consideration was given, the second step is to determine whether its value was less than the market value of the property transferred. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 249) As Wilcox J observed in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 at [66] , the issue of the value of contributions is to be determined at a time when the marriage has come to an end and any contributions to the marriage were made in the past. Past consideration is, generally speaking, no consideration. The only significant exception to that rule arises where there is an earlier promise to pay (express or implied), an exception which is difficult to apply to matrimonial contributions unless for example there is a valid prenuptial agreement to that effect. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 247) The primary judge acknowledged that there was no express agreement between the Lopatinskys that Mrs Lopatinsky would not maintain proceedings for an adjustment of her property rights under the Family Law Act. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 250) The trustee accepted that an implied forbearance to sue can constitute good consideration. While the evidence of such a forbearance was slim, it was in any event unnecessary to decide whether the primary judge was correct in drawing the inference that Mrs Lopatinsky had so acted because the approach of the primary judge as to what constituted consideration and the value of it was contrary to the decision in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217. Their Honours continued: [Findings of the primary judge] indicate that his Honour endeavoured to value the "consideration" provided by Mrs Lopatinsky upon the basis of her financial and non-financial contributions to the marriage in accordance with the criteria referred to in s 79 of the Family Law Act . The short answer to this appeal is therefore that the primary judge's view of the value of the consideration given by Mrs Lopatinsky depended upon factors which cannot provide a basis for assessing the value of the consideration which was given. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 250) In any event, actual forbearance to sue does not constitute consideration unless it is evidence of an implied promise to forbear or unless it is given at the express or implied request of the other party. There was no evidence to support a finding that Mrs Lopatinsky promised to give up a claim under s 79 of the Family Law Act , in that there were no proceedings on foot in the Family Court and no mention by either party of the possibility of such a claim. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 250) Further, even if the informal agreement between Mr and Mrs Lopatinsky was supported by consideration in the form of an implied promise not to sue, it would not amount to a legally binding agreement for a compromise of Mrs Lopatinsky's entitlement to make a claim for a further property adjustment. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 251) Findings 2. Second, even had such inconsistencies not existed between the terms of the financial agreement and the terms of para 10 and para 24 of the Amended Defence and Cross-Claim, I consider that the reliance by the respondent on her financial and non-financial contributions to the marriage as consideration for the transfer of the relevant properties is untenable. This is because the consideration pleaded by the respondent in para 10 and para 24 of the Amended Defence and Cross-Claim "depended on factors which cannot provide a basis for assessing the value of the consideration which was given" (Whitlam and Jacobson JJ in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 250). Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 is clear authority that previous financial and non-financial contributions to a marriage do not constitute "consideration" (within the meaning of s 120 or s 121 of the Bankruptcy Act ) for the transfer of property from a person who subsequently becomes bankrupt to his or her spouse. Specifically, paras 10a, 10b, 10c, 10d, 10f, 10g, 10h, 10i, 24a, 24b, 24c, 24d, 24g, 24h, 24i and 24j of the Amended Defence and Cross-Claim plead facts relevant to the circumstances of the marriage of the respondent and Mr Jensen and the financial and non-financial contributions they have each made. In my view: In light of these findings, I do not accept the respondent's submission that the facts pleaded in these paragraphs are directly relevant to support the respondent's allegation that the respondent provided consideration to Mr Jensen for the transfer, being either in the form of the consideration for the transfer of the relevant properties, or the consideration being in the form of the forbearance to sue for spousal maintenance and the respondent's abandonment of her interest in various specified assets. Accordingly these paragraphs in the Amended Defence and Cross-Claim are untenable. 3. Third, I do not accept the submission of the respondent that the decision in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 with respect to the meaning of the phrase "consideration of less value than market value" was obiter. The Full Court in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 accepted the general proposition that forbearance to sue could constitute good consideration, but found that the approach of the primary judge in endeavouring to "value" the alleged consideration provided by Mrs Lopatinsky upon the basis of Mrs Lopatinsky's financial and non-financial contributions to the marriage in accordance with the criteria referred to in the Family Law Act was incorrect (at [101]-[102]). In light of these clear findings I do not accept the submission by the respondent that Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 was distinguishable because no consent orders pursuant to s 79 of the Family Law Act had been entered in those proceedings. 4. Fourth, I do not accept the submission of the respondent that the decision in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 is distinguishable because in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 there was only an informal agreement whereby the wife had relinquished her entitlement to sue, whereas in this case the respondent and Mr Jensen had executed a financial agreement pursuant to the Family Law Act in which the respondent had expressly relinquished and forfeited any claims and entitlements to property in Mr Jensen's name as well as an entitlement to spousal maintenance. I take this view because: (a) Although one of the reasons for the decision of the Full Court in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 was that there was no evidence to support a finding that Mrs Lopatinsky had promised to give up a claim under s 79 of the Family Law Act , in fact the primary reason described by Whitlam and Jacobson JJ as "the short answer to this appeal" (at [101]-[102]) was the incorrect view the primary judge had taken of the alleged consideration provided in the circumstances of the case. (b) It is not in dispute that a binding financial agreement which is valid under the relevant provisions of Pt VIIIA of the Family Law Act has the effect of ousting the jurisdiction of the court in respect of certain matters covered by the agreement, including financial matters or financial resources to which a binding financial agreement applies: Black & Black [2008] FamCAFC 7 at [29] . However the simple fact of acknowledgment by one spouse in a financial agreement of the provision of consideration for the transfer of property does not mean that the alleged consideration is adequate for the purposes of s 120 and s 121 of the Bankruptcy Act if a transaction is subsequently challenged by a trustee in bankruptcy. As I noted earlier in this judgment, "consideration" in the context of the bankruptcy legislation has its ordinary legal and commercial meaning ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 249). The fact that the movement of consideration is acknowledged in a financial agreement does not give the consideration validity it would not otherwise have. (c) Further, and in any event, as I have already found in Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen [2009] FCA 778 , the transfer of property pursuant to a financial agreement does not equate to a transfer of property pursuant to Court order, as was the case in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217. The current legislative framework applicable to financial agreements contemplates that a trustee in bankruptcy may make application pursuant to both s 120 and s 121 of the Bankruptcy Act to set aside a transfer pursuant to a financial agreement executed by the parties. Similarly, it is open to the Court to review the nature of the consideration stated in a financial agreement. The Court is not in any way prevented from doing so by the fact that the financial agreement is enforceable as between the parties under the Family Law Act. (b) Alleged payment by the respondent and her mother for the Carrara property, resulting in the transfer of that property to the respondent by Mr Jensen was merely a transfer of the bare legal title


case_text: claiming that the alleged relinquishment and forfeiture of claims by the respondent did not constitute valid consideration the trustee relied in particular on the decision of the Full Court in Official Trustee in Bankruptcy v Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 , in which case their Honours had in turn considered the earlier Full Court decision in Official Trustee in Bankruptcy v Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217. The respondent claimed that her forbearance to sue and relinquishment of claims as pleaded in both the Amended Defence and the Cross-Claim constituted consideration in the circumstances of this case, and that accordingly those pleadings were not untenable as claimed by the trustee. Submissions of the trustee In summary Mr McQuade for the trustee submitted that: The claims in relation to the properties listed in para 10j of the Amended Defence, in respect of which the respondent alleges relinquishment and forfeiture of her claims and in respect of which the respondent also claims forfeiture of her claims to spousal maintenance, are inconsistent with the recitals and terms of the Financial Agreement (in particular Recital N and cl 6) and are therefore untenable. Recital K to the Financial Agreement stated that the agreement was entered into in substitution for any rights for spousal maintenance and property under Pt VIII of the Family Law Act . Whitlam and Jacobson JJ in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at [97] - [102] rejected the proposition that valuation of consideration in the form of a forbearance to sue could be undertaken by assessing the non-financial and financial contributions to the marriage as if an application had been made under s 79 of the Family Law Act . The respondent's pleaded case is underpinned by the allegation of assessment of the value of the consideration, namely the relinquishment of causes of action on the basis of the factors set out in paras 10a to 10d and 10f to 10(ia) of the Amended Defence and Cross-Claim. For the reasons set out in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 and Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 that is untenable. Submissions of the respondent The Full Court allowed the appeal against the decision of the primary judge. The majority judgment in the case was delivered by Whitlam and Jacobson JJ. Their Honours considered the earlier decision of the Full Court in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 upon which the trial judge in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 relied, and in summary observed that: The trial judge in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 had found that there was implied in the settlement a forbearance on the part of Mrs Lopatinsky to make a claim against Mr Lopatinsky under the Family Law Act , and that an implied forbearance to sue constitutes good consideration. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 245-246) Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 was not a case involving express or implied forbearance to sue rather consent orders had been made and entered pursuant to s 79 of the Family Law Act which provided for , inter alia, the transfer of the matrimonial home. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 244) All the members of the Full Court in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 were of the view that where a consent order is made under s 79 of the Family Law Act the transfer of property takes place pursuant to the order of the Court. Accordingly, as a matter of construction of s 121 , there can be no "transfer of property by a person who later becomes a bankrupt". ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 246) The purpose of s 120 of the Bankruptcy Act is to prevent properties, including the matrimonial home, from being transferred to related parties to the disadvantage of the bankrupt's creditors. Disadvantage will occur if the property is transferred for no consideration or for less than market value. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 249) There is nothing in s 120(5) to suggest that Parliament intended that the term "consideration" in s 120(1)(b) is to be read in anything other than its legal sense. It would be inconsistent with the observations of Wilcox and Branson JJ in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 to proceed upon the basis that "consideration" could be something less than the ordinary legal and commercial understanding of that term. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 249) In applying s 120(1)(b) the first step is to identify the consideration which was actually given. If consideration was given, the second step is to determine whether its value was less than the market value of the property transferred. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 249) As Wilcox J observed in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 at [66] , the issue of the value of contributions is to be determined at a time when the marriage has come to an end and any contributions to the marriage were made in the past. Past consideration is, generally speaking, no consideration. The only significant exception to that rule arises where there is an earlier promise to pay (express or implied), an exception which is difficult to apply to matrimonial contributions unless for example there is a valid prenuptial agreement to that effect. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 247) The primary judge acknowledged that there was no express agreement between the Lopatinskys that Mrs Lopatinsky would not maintain proceedings for an adjustment of her property rights under the Family Law Act. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 250) The trustee accepted that an implied forbearance to sue can constitute good consideration. While the evidence of such a forbearance was slim, it was in any event unnecessary to decide whether the primary judge was correct in drawing the inference that Mrs Lopatinsky had so acted because the approach of the primary judge as to what constituted consideration and the value of it was contrary to the decision in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217. Their Honours continued: [Findings of the primary judge] indicate that his Honour endeavoured to value the "consideration" provided by Mrs Lopatinsky upon the basis of her financial and non-financial contributions to the marriage in accordance with the criteria referred to in s 79 of the Family Law Act . The short answer to this appeal is therefore that the primary judge's view of the value of the consideration given by Mrs Lopatinsky depended upon factors which cannot provide a basis for assessing the value of the consideration which was given. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 250) In any event, actual forbearance to sue does not constitute consideration unless it is evidence of an implied promise to forbear or unless it is given at the express or implied request of the other party. There was no evidence to support a finding that Mrs Lopatinsky promised to give up a claim under s 79 of the Family Law Act , in that there were no proceedings on foot in the Family Court and no mention by either party of the possibility of such a claim. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 250) Further, even if the informal agreement between Mr and Mrs Lopatinsky was supported by consideration in the form of an implied promise not to sue, it would not amount to a legally binding agreement for a compromise of Mrs Lopatinsky's entitlement to make a claim for a further property adjustment. ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 251) Findings 4. Fourth, I do not accept the submission of the respondent that the decision in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 is distinguishable because in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 there was only an informal agreement whereby the wife had relinquished her entitlement to sue, whereas in this case the respondent and Mr Jensen had executed a financial agreement pursuant to the Family Law Act in which the respondent had expressly relinquished and forfeited any claims and entitlements to property in Mr Jensen's name as well as an entitlement to spousal maintenance. I take this view because: (a) Although one of the reasons for the decision of the Full Court in Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 was that there was no evidence to support a finding that Mrs Lopatinsky had promised to give up a claim under s 79 of the Family Law Act , in fact the primary reason described by Whitlam and Jacobson JJ as "the short answer to this appeal" (at [101]-[102]) was the incorrect view the primary judge had taken of the alleged consideration provided in the circumstances of the case. (b) It is not in dispute that a binding financial agreement which is valid under the relevant provisions of Pt VIIIA of the Family Law Act has the effect of ousting the jurisdiction of the court in respect of certain matters covered by the agreement, including financial matters or financial resources to which a binding financial agreement applies: Black & Black [2008] FamCAFC 7 at [29] . However the simple fact of acknowledgment by one spouse in a financial agreement of the provision of consideration for the transfer of property does not mean that the alleged consideration is adequate for the purposes of s 120 and s 121 of the Bankruptcy Act if a transaction is subsequently challenged by a trustee in bankruptcy. As I noted earlier in this judgment, "consideration" in the context of the bankruptcy legislation has its ordinary legal and commercial meaning ( Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 at 249). The fact that the movement of consideration is acknowledged in a financial agreement does not give the consideration validity it would not otherwise have. (c) Further, and in any event, as I have already found in Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen [2009] FCA 778 , the transfer of property pursuant to a financial agreement does not equate to a transfer of property pursuant to Court order, as was the case in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217. The current legislative framework applicable to financial agreements contemplates that a trustee in bankruptcy may make application pursuant to both s 120 and s 121 of the Bankruptcy Act to set aside a transfer pursuant to a financial agreement executed by the parties. Similarly, it is open to the Court to review the nature of the consideration stated in a financial agreement. The Court is not in any way prevented from doing so by the fact that the financial agreement is enforceable as between the parties under the Family Law Act. (b) Alleged payment by the respondent and her mother for the Carrara property, resulting in the transfer of that property to the respondent by Mr Jensen was merely a transfer of the bare legal title


case_title: Official Trustee in Bankruptcy v Racovitis [1995] FCA 959


case_title: Official Trustee in Bankruptcy, the Trustee of the Property of Phillip Martin Higgins v Higgins [2000] FCA 1850


case_text: First, Mr Griffin QC for the respondent submitted that if the trustee is successful in the substantive proceedings the respondent will make an application in the Family Court under s 79(1) of the Family Law Act seeking an order altering the interests of the trustee in the relevant property of Mr Jensen. As Besanko J observed in Macks v Edge [2006] FCA 1077 ; (2006) 156 FCR 302 at [42] , the Federal Court can hear and determine the trustee's claim, but it cannot hear and determine a spouse's claim under the Family Law Act should it become necessary to do so. Since judgment was delivered in Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen [2009] FCA 778 it has become clear that:


case_title: Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85


case_title: re Sabri; ex parte Sabri v Brien (1995) 60 FCR 131


case_title: re Sharpe ex parte Powell v Donnelly [1996] FCA 896


case_title: re Zampatti ex parte RJ Levack Ltd [1993] FCA 170


case_title: Sutherland, in the matter of Khanafer [2000] FCA 463


case_text: Trustees of the Property of Cummins v Cummins [2006] HCA 6 ; (2006) 227 CLR 278 , Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ observed: [71] ...the following view expressed in the present edition of Professor Scott's work respecting beneficial ownership of the matrimonial home [ The Law of Trusts , 4th ed (1989), vol 5, §454 at 239] should be accepted: It is often a purely accidental circumstance whether money of the husband or of the wife is actually used to pay the purchase price to the vendor, where both are contributing by money or labour to the various expenses of the household. It is often a matter of chance whether the family expenses are incurred and discharged or services are rendered in the maintenance of the home before or after the purchase. ... [72] That reasoning applies with added force in the present case where the title was taken in the joint names of the spouses. There is no occasion for equity to fasten upon the registered interest held by the joint tenants a trust obligation representing differently proportionate interests as tenants in common. The subsistence of the matrimonial relationship, as Mason and Brennan JJ emphasised in Calverley v Green [(1984) [1984] HCA 81 ; 155 CLR 242 at 259], supports the choice of joint tenancy with the prospect of survivorship. ...The range of financial considerations and accidental circumstances in the matrimonial relationship referred to by Professor Scott answers the second concern of equity, namely the disproportion between quantum of beneficial ownership and contribution to the acquisition of the matrimonial home. In Cummins [2006] HCA 6 ; (2006) 227 CLR 278 the High Court upheld the decision of the primary judge that the subject of the relevant disposition of land was that which appeared on the transfer, namely the interest of the husband as joint tenant of the matrimonial home, without any displacement to allow for a beneficial tenancy in common in shares of which the larger was that of the wife. In these proceedings there is no dispute that the Carrara property, described in the financial agreement as the matrimonial home, was registered in the names of the respondent and Mr Jensen as joint tenants. The decision of the High Court in Cummins [2006] HCA 6 ; (2006) 227 CLR 278 supports an inference of joint tenancy with the prospect of survivorship as to the equitable interest held by the parties to the marriage. The pleadings of the respondent do not displace this inference, nor did the submissions at the hearing. In my view paras 7e, 10e, 10(ea), 24e and 24f of the Amended Defence and Cross-Claim are untenable. Conclusion It follows that paras 7e, 10 and 24 of the Amended Defence and Cross-Claim should be struck out.


case_title: Victorian Producers Co-Operative Co Ltd v Kenneth [1999] FCA 1488


case_title: Wigan v English and Scottish Law Life Assurance Association (1909) 1 Ch 291


case_text: On 21 December 2005 I gave judgment in this matter: see Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885. I dismissed the application. This judgment concerns the costs of that proceeding. 2 The third, fourth, fifth and sixth respondents (the Commonwealth respondents) seek costs of the proceeding, and that their costs be fixed under O 62 r 4(2)(c) of the Federal Court Rules in a gross sum. The second respondent, Mr Price, seeks similar orders. 3 The interests of the Commonwealth respondents, and of Mr Price, were not identical. They were separately represented by solicitors and counsel. Mr Dunstan has not suggested that was inappropriate. In my view, it was appropriate for them to be separately represented. To the extent to which they are entitled to costs of the proceeding, I consider that separate orders for costs should be made. 21 Mr Dunstan also argued that the Commonwealth respondents had failed to give proper discovery in the course of the conduct of the proceedings. He said that somehow disentitled them from recovering costs. The material shows that Mr Dunstan sought supplementary discovery by notices given on 12 and 20 June 2003. Directions were given on 1 August 2003 for the hearing on 14 November 2003 of the disputed issues about discovery. That application was not pressed on 14 November 2003, as Mr Dunstan was confronted with an application by the Commonwealth respondents to strike out the statement of claim. He was given further time to formulate the terms of his proposed pleading. Ultimately, on 19 March 2004, he was directed to provide further particulars of the pleading and was refused leave to amend it in certain respects: Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 284. Further directions were given for the preparation of the matter for trial; the issue of further discovery was not revived by Mr Dunstan. Those matters do not indicate any sinister conduct on the part of the Commonwealth respondents. Nor do they reveal any factors which, in my view, weigh in the scales either at all, or certainly not sufficiently, to decline to make the orders for costs which I propose to make. 22 Order 62 r 4(2)(c) entitles the Court to order that any costs which are ordered shall be in a gross sum specified in the costs order.