Campbell v Kitchen and Sons Ltd and Brisbane Soap Co Ltd

[1910] HCA 23

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12 C.L.B.]

OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

CAMPBELL

A p p e l l a n t

;

KITCHEN & SONS LTD. AND

Respondents.

BRISBANE SOAP CO. LTD. J '

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND.

Practice—Appeal from Supreme Gourt o f a State—Company—Refusal o f company

H. C. of A.

to appeal—Leave to shareholder to appeal.

1910.

The A. company, which, by itself or its nominees, owned half of the shares N[j;i,boukne

in the B. company, brought an action against the B. company and judgment

May 31.

was given in favour of the A. company.

The directors of the B. company

G riffith C .J .

being equally divided in opinion on the question of bringing an appeal to the

O’Connor,

Isaacs and H i^trins J J .

High Court from this judgment,

Leave was given to C., who, by himself or his nominees, held the other half of the shares in the B. company, to appeal on behalf of himself and all other members of the B. company.

Leave granted to appeal from the decision of the Supreme Court of Queens­

land; Kitchen cfc Sons Ltd. v. Brisbane Soap Co., 1910 St. R. Qd., 301.

A pp l ic a t io n for leave to institute and carry on an appeal to the

High Court.

An action was brought in the Supreme Court of Queensland by J. Kitchen & Sons Ltd. against the Brisbane Soap Co. Ltd., the nature of which is not material to this report. Judgment in the action was given for the plaintiffs. (Kitchen & Sons Ltd. V . Brisbane Soap Co. Ltd. (1) ). I t appeared that the plaintiff .company were by themselves, or their nominees, holders of one-

(1) 1910 St. R. Qd.,301.

514 HIGH COURT

[1910.

H. C. OF A. half of the shares in the defendant company, and the other half -vras held by Peter Morrison Campbell by himself or his C a m p b e l l nominees. There were two directors of the defendant company,

K i t c h e n &

C^ampbell and one John Clark Donaldson, who repre-

S o N s L t d . sented the plaintilF companj^. Campbell wished that the defen-

B b i s b a n e

dant company should appeal from the judgment to the High

Court, but Donaldson was opposed to tha t course being taken.

----- An application was now made by Campbell for leave to insti­ tute and carry on an appeal to the High Court in the name of

the Brisbane Soap Co.

.

Hart, for the applicant.

*

[The following authorities were referred to during argument:— Foss V . Harhottle (1); Connolly v. Macartney (2); Mason v. H arris (3); Buckley on Companies, 8th ed., p. 548; Burland V . Earle (4); Cray v. Lewis (5); Wallworth v. Holt (6); Menier V . Hoopers Telegraph Woidcs (7); Fraser v. Cooper, Hall & Co. (8).

G r i f f i t h C.J. This is a case in which judgment was given in the Supreme Court of Queensland in an action between parties involving an amount over £300. This Court has jurisdic­ tion to entertain an appeal from that judgment, but, owing to the curious circumstances of the case, it cannot be' instituted because those who would be respondents have an equal voice in the company which would be appellants. Under these circum­ stances there must be some remedy, and I think we ought to apply the analogy of the practice of the Court of Chancery, which is now adopted by the Supreme Court of Judicature, and give leave to some person who is substantially interested to come in and institute the appeal. I therefore think that leave should be given to the applicant to appeal from the judgment on behalf of himself and all other members of the defendant company. Of course the defendant company must be made a respondent. If the judgment is to be regarded as being interlocutory, the leave we now give will cover tha t also.

(1) 2 Ha., 461.(5) L.R. 8 Ch., 1035.

(2) 7 C.L.R., 48.(6) 4 My. & C , 619.

(:i) II Ch. D., 97.(7) L.R. 9 Ch., 350.

(4) (1902) A.C., 83.

(8) 21 Ch. L)., 718.

515

12 C.L.R.]

OF AUSTRALIA.

H. C. or A.

O’Connor J. concurred.

1910.

Isaacs J. concurred.

C a m p b e l l

V.

TC T'TnTT'R'N'

&

Higgins J. I

cordially concur in giving leave to the applicant

so n s L t d .

to appeal, but I think the form of the order, giving leave to

appeal on behalf of all other members of the company, even

Soap Co .

those who oppose him, may lead to complications and expense.

___

Leave given accordingly.

Solicitors, Flower & Hart.

B. L.

[HIGH COURT OF AUSTRALIA.]

CAMPBELL

Appellant ;

KITCHEN & SONS LIMITED AND BRIS­

BANE SOAP COMPANY LIMITED

Respondents.

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND.

Agreement—Del credere Agent—Indemnity—Trade Usage—Discount—Mistake of H. C. o f A.

Fact—Mistake of Law—Settled Account—Leave to Appeal.

1910.

An action was brought by Kitchen & Sons Limited against The Brisbane

Soap Company Limited for a declaration of rights, for the return of moneys ̂ 26 27 •

alleged to have been paid under a mistake of fact and for accounts to ascer-

(jgj ’

tain the amount recoverable. The plaintiff company was formed in 1901 to

acquire the business of a company called J. Kitchen & Sons and Apollo ^a®onand ’

Candle Company. By an agreement made on 30th of June 1891 between J. O’Connor JJ.