Ling v Commonwealth

(1996) 68 FCR 180
(1996) 139 ALR 159

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Noel Ling v
Commonwealth

Court:

Judge: Wilcox

Subject References:
Practice and Procedure
Estoppel
Anshun estoppel
Successful claim by Commonwealth for refund of fees charged by provider of educational services to Asian students
Subsequent claim by provider for damages against Commonwealth for misleading conduct inducing him to establish educational institutions for Asian students
Whether provider's claim should have been set up as cross-claim in Commonwealth proceeding
Whether Anshun estoppel applies to cross-claims
Jurisdiction of Court to entertain cross-claim
Associated jurisdiction
Whether jurisdiction denied by O.5 r.1
Whether consent of Commonwealth confers jurisdiction
Whether appellant's failure to raise cross-claim 'unreasonable'

Legislative References:
Bankruptcy Act 1966 -
Federal Court Rules O.1 r.8, O.5 r.1 -

Case References:
Henderson v. Henderson - (1843) 3 Hare 110
Port of Melbourne Authority v. Anshun Pty Ltd - (1981) 147 CLR 589
Bryant v. Commonwealth Bank of Australia - (1995) 57 FCR 287
Phillip Morris Inc v. Adam P Brown Male Fashions Pty Ltd - (1981) 148 CLR 457
Sutton v. Sharp - (1994) 125 ALR 643
Edward Ward & Co v. McDougall - [1972] VR 43
Eagle Star Nominees Ltd v. Merril - [1982] VR 55
Indrisie v. General Credits Ltd - [1985] VR 25
James v. Commonwealth Bank of Australia - (1992) 37 FCR 445
Obacelo Pty Ltd v. Taveraft Pty Ltd - (1985) 5 FCR 210
Pilecki & Turner Pty Ltd v. Chen - unreported 23 April 1993 FCA
163 Clarence Street Pty Ltd v. New World Oil and Developments Pty Ltd - unreported 31 May 1994 FCA
Australasian Jam Co Pty Ltd v. Federal Commissioner of Taxation - (1953) 88 CLR 23
Breavington v. Godleman - (1988) 169 CLR 41
Yat Tung Investments Co Ltd v. Dao Heng Bank Ltd - [1975] AC 58
Re Schmidt; Ex parte Anglewood Pty Ltd - (1968) 13 FLR 111
Re James; Ex parte Carter Holt Harvey Roofing (Australia) Pty Ltd [No 2] - (1994) 51 FCR 14

Hearing date: 28 May 1996
Judgment date: 25 July 1996

Sydney

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Order

In proceeding NG 383 of 1996 the Court orders that:

1.

The appeal be allowed.

2.

The respondent's motion notice of which was filed on 13 February 1996 be dismissed.

3.

The proceeding be remitted to Lehane J for pre-trial directions.

4.

The respondent pay the appellant's costs of the appeal and of the proceedings before Lehane J.

In proceeding NG 397 of 1996 the Court orders that:

1.

The appeal be allowed.

2.

The sequestration order against the appellant's estate made on 14 May 1996 be set aside.

3.

The hearing of the petition be adjourned until the determination of proceeding NG 751 of 1995 or any earlier date determined by a Judge of the Court.

4.

The respondent pay the appellant's costs of the appeal and of the proceedings before Lehane J.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.