Legal Research
Cases
Energex Ltd v Elkington

Energex Ltd v Elkington

Case [2003] QCA 430 3 October 2003

Constitutional Validity

Separation of Powers

Statutory Construction

Costs

Wrong Exercise of Discretion

Constitutional Law

Corporate Law & Governance

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

Energex Ltd v Elkington & Ors [2003] QCA 430

PARTIES:

ENERGEX LIMITED ACN 078 849 055
(applicant/respondent)
v
GORDON BRADLEY ELKINGTON
(respondent/appellant)
ARTHURS TRADING CO PTY LTD ACN 072 242 098
(respondent)
MR ANTHONY HUNTA AND MRS DENISE LYNDA BIDDULPH
(respondent)
MR JOHN FREDERICK BLIGH
(respondent)
ANDREW DOUGLAS CAMERON
(respondent)
KATHERINE VICTORIA MAY CAMERON
(respondent)
ROBERT FRANKLIN CAMERON
(respondent)
MR ROBERT FRANKLIN CAMERON
(respondent)
MR ROBERT FRANKLIN CAMERON
(respondent)
ESTATE LATE STUART FRANCIS GRIFFITHS CAMERON
(respondent)
WILLIAM ROBERT CAMERON
(respondent)
MR ANDREW EASTON
(respondent)
MR NICHOLAS PAUL HASLUCK
(respondent)
MRS CONSTANCE WINIFRED HUMPHRIES
(respondent)
ESTATE LATE MARION AGNES HYLES
(respondent)
ELLEN LAING
(respondent)
MR JOHN WESTON SEAFORTH MACKENZIE
(respondent)
ELIZABETH NESTA MARKS
(respondent)
PINK PUMPKIN PTY LTD ACN 007 680 604
(respondent)
TOMYFUTURE HEATH PTY LTD ACN 085 982 805
(respondent)
MR COREY VINCENT
(respondent)
EST WILLIAM VINCENT WALTON DECD
(respondent)
MRS ROSEMARY HAMILTON WEST
(respondent)
MR JOHN WHITE AND MRS NICOLE WHITE
(respondent)
MR ANDREW JOHN WHITE
(respondent)
WINPAR HOLDINGS LIMITED ACN 003 035 523
(respondent)

ENERGEX LIMITED ACN 078 849 055
(applicant/respondent)
v
GORDON BRADLEY ELKINGTON
(respondent)
ARTHURS TRADING CO PTY LTD ACN 072 242 098
(respondent)
MR ANTHONY HUNTA AND MRS DENISE LYNDA BIDDULPH
(respondent)
MR JOHN FREDERICK BLIGH
(respondent)
ANDREW DOUGLAS CAMERON
(respondent)
KATHERINE VICTORIA MAY CAMERON
(respondent)
ROBERT FRANKLIN CAMERON
(respondent)
MR ROBERT FRANKLIN CAMERON
(respondent)
MR ROBERT FRANKLIN CAMERON
(respondent)
ESTATE LATE STUART FRANCIS GRIFFITHS CAMERON
(respondent)
WILLIAM ROBERT CAMERON
(respondent)
MR ANDREW EASTON
(respondent)
MR NICHOLAS PAUL HASLUCK
(respondent)
MRS CONSTANCE WINIFRED HUMPHRIES
(respondent)
ESTATE LATE MARION AGNES HYLES
(respondent)
ELLEN LAING
(respondent)
MR JOHN WESTON SEAFORTH MACKENZIE
(respondent)
ELIZABETH NESTA MARKS
(respondent)
PINK PUMPKIN PTY LTD ACN 007 680 604
(respondent)
TOMYFUTURE HEATH PTY LTD ACN 085 982 805
(respondent)
MR COREY VINCENT
(respondent)
EST WILLIAM VINCENT WALTON DECD
(respondent)
MRS ROSEMARY HAMILTON WEST
(respondent)
MR JOHN WHITE AND MRS NICOLE WHITE
(respondent)
MR ANDREW JOHN WHITE
(respondent)
WINPAR HOLDINGS LIMITED ACN 003 035 523

(respondent/appellant)

FILE NO/S:

Appeal No 11159 of 2002
Appeal No 11170 of 2002

SC No 3973 of 2001

DIVISION:

Court of Appeal

PROCEEDINGS:

General Civil Appeals

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2003

JUDGES:

de Jersey CJ, Jerrard JA and Helman J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeals dismissed with costs to be assessed

CATCHWORDS:

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – POWERS WITH RESPECT TO PROPERTY – POWER TO ACQUIRE PROPERTY ON JUST TERMS (CONSTITUTION, S 51(XXXI)) – GENERALLY – whether s 51(xxxi) Constitution (Cth) applies to Part 6A.2 Corporations Act 2001 (Cth) – whether Part 6A.2 Corporations Act 2001 (Cth) constitutionally invalid as providing for acquisition of property on other than “just terms”

CORPORATIONS – CORPORATE FINANCE – SHARES – OTHER MATTERS – where respondent held full beneficial interest in at least 90 percent by value of all securities in company…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Energex Ltd v Elkington

Details

AGLC: Energex Ltd v Elkington [2003] QCA 430
Case: [2003] QCA 430
Decision Date: 3 October 2003

CaseChat Overview and Summary

In the case of Energex Ltd v Elkington, the primary dispute revolved around the constitutionality of Part 6A.2 of the Corporations Act 2001 (Cth) in the context of compulsory acquisition of shares, particularly preference shares. The High Court of Australia was tasked with determining whether section 51(xxxi) of the Commonwealth Constitution, which relates to the acquisition of property on just terms, applied to the compulsory acquisition provisions in the Corporations Act. Additionally, the Court examined whether the valuation of preference shares should have included an allowance for any special value attached to those shares and whether the trial judge correctly exercised his discretion regarding costs.

The central legal issues before the Court were whether section 51(xxxi) of the Constitution applied to the compulsory acquisition provisions in Part 6A.2 of the Corporations Act, thereby rendering them constitutionally invalid. Furthermore, the Court had to consider if the trial judge's valuation of the preference shares should have accounted for any special value and whether the judge's exercise of discretion in reducing the appellants' costs was appropriate. The case also questioned whether the trial judge erred in his decision not to make any order as to costs in relation to the application for a stay.

The High Court held that section 51(xxxi) of the Constitution does not apply to the compulsory acquisition provisions in Part 6A.2 of the Corporations Act. The Court reasoned that these provisions do not involve the acquisition of property but rather the regulation of corporate activities. Consequently, the compulsory acquisition provisions were deemed to be within the legislative power of the Commonwealth. Regarding the valuation of preference shares, the Court found no error in the trial judge's approach as he did not need to consider any special value attached to the shares. Lastly, the Court determined that the trial judge did not err in his exercise of discretion concerning the costs, affirming that the appellants' conduct warranted a reduction in costs.

No further orders were made beyond dismissing the appeals and directing that costs be assessed.

Orders

Orders of the court

Appeals dismissed with costs to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Energex Ltd v Elkington [2003] QCA 430

Most Recent Citation

In the matter of Navalo Financial Services Group Limited [2025] NSWSC 317

Cases citing this decision · 1 of 1 shown

In the matter of Navalo Financial Services Group Limited
[2025] NSWSC 317 Para 101

…plication which was contrary to authority: Energex Ltd v Elkington (No 2) [2003] QSC 34 at [11]-[12] (affirmed in Energex Ltd v Elkington [2003] QCA 430 at [24]-[29]).…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

Pauls Ltd v Dwyer
[2002] QCA 545 Para 1

…f Part 6A.2 should be characterized as providing for the acquisition of property on other than just terms, and that insofar as the subsequent case of Pauls Ltd v Dwyer (2002) 43 ACSR 413 holds to the contrary, it is wrong and should not be followed. He submitted that acquisition of property was the sole or dominant purpose…
Austrim Nylex Limited v Kroll (No 3)
[2002] VSC 290 Para 1

…Mr Cotman relied on Austrim Nylex Ltd v Kroll (No 3) [2002] VSC 290, but it is sufficient to observe that the ambit of the phrase "legal proceedings in relation to an application" was not in issue in those proceedings, that court was not referred to the costs decisions in Pauls Ltd v Elkington , and in any event…
Teh v Ramsay Centauri Pty Ltd
[2002] NSWSC 456 Para 1

…(a)), the value selected should reflect any "special value for a particular purchaser". But as Barrett J pointed out in Teh v Ramsay Centauri Pty Ltd (2002) 42 ACSR 354 at para 17, the provision "is not concerned with the "value of the company as a whole" to any particular person". This led into a submission that all…
Capricorn Diamonds Investments Pty Ltd v Catto
[2002] VSC 105 Para 1

…ently rejected a contention that the validity of these provisions is affected by s 51(xxxi): Pauls Ltd v Elkington , supra; re Goodyear Australia Ltd (2002) 167 FLR 1, paras 95-99; Capricorn Diamonds Investments Pty Ltd v Catto (2002) 168 FLR 146, para 117; Austrim Nylex Ltd v Kroll [2001] VSC 168 and Austrim Nylex…
Pauls Ltd v Elkington
[2001] QCA 414 Para 1

…her than "just terms" contrary to s 51(xxxi) of the Commonwealth Constitution – had been rejected by the Court of Appeal in Pauls Ltd v Elkington (2001) 189 ALR 551. In reliance on that authority, the learned Judge rejected the constitutional challenge.…
Austrim Nylex Limited v Kroll
[2001] VSC 168 Para 1

…r Australia Ltd (2002) 167 FLR 1, paras 95-99; Capricorn Diamonds Investments Pty Ltd v Catto (2002) 168 FLR 146, para 117; Austrim Nylex Ltd v Kroll [2001] VSC 168 and Austrim Nylex Ltd v Kroll (No 2) (2002) 42 ACSR 18, para 41. That body of authority establishes that such provisions are not laws "with respect t…
Pauls Ltd v Dwyer
[2001] QSC 103 Para 1

…ewed Mr Lonergan's report, which set substantially higher values, but Mr Hope held to his own view. By then, however, Douglas J had given judgment in Pauls Ltd v Dwyer (2001) 19 ACLC 959, holding that allowance for "special value" was impermissible in light of s 667C. In his original report, Mr Hope had made some such allo…
Airservices Australia v Canadian Airlines International Ltd
[1999] HCA 62 Para 1

…l Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155, 179-181 per Brennan J and Air Services Australia v Canadian Airlines International Ltd (2000) 202 CLR 133, 180 per Gleeson CJ and Kirby J.…
Super John Pty Ltd v Futuris Rural Pty Ltd
[1999] NSWSC 627

…which they could command in the market by demanding a price for their securities above a fair value, or as Foster J said in Re Elders Australia Ltd ; Super John Pty Ltd v Futuris Rural Pty Ltd (1998) FCA 1377, by using the position of a minority shareholder as leverage in the context of a takeover in order to seek a significant financial advantage…
Gambotto v WCP Ltd
[1995] HCA 12 Para 1

…he minority shareholding calculated on that basis might often be different from the fair value calculated in accordance with s 667C. [6](1994-1995) 182 CLR 432, 447.…
Mutual Pools & Staff Pty Ltd v the Commonwealth
[1994] HCA 9 Para 1

…t be seen as merely concerned with resolving or adjusting competing property rights as discussed in Mutual Pools and Staff Pty Limited v Commonwealth (1994) 179 CLR 155. To seek to demonstrate the injustice of the terms of this compulsory acquisition, this appellant relied on disparity between the amount of $2.05 off…
Australian Tape Manufacturers Association Ltd v The Commonwealth
[1993] HCA 10 Para 1

…for majority shareholders to obtain the benefits of 100 per cent ownership". [3] Australian Tape Manufacturers Association Limited v The Commonwealth (1993) 176 CLR 480, 510 per Mason CJ, Brennan, Deane and Gaudron JJ. [4] Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155, 179-181 per Brennan J and A…

Legislation cited in this decision · 4

Corporations Act 2001 (Cth)
664A 2 mentions (from Para 1)
Constitution of Australia (Cth)
1 mention (from Para 1)
Corporate Law Economic Reform Program Act 1999 (Cth)
1 mention
Corporations (Victoria) Act 1990 (Vic)
1 mention (from Para 1)

CITATION:	Energex Ltd v Elkington & Ors [2003] QCA 430
PARTIES:	ENERGEX LIMITED ACN 078 849 055 (applicant/respondent) v GORDON BRADLEY ELKINGTON (respondent/appellant) ARTHURS TRADING CO PTY LTD ACN 072 242 098 (respondent) MR ANTHONY HUNTA AND MRS DENISE LYNDA BIDDULPH (respondent) MR JOHN FREDERICK BLIGH (respondent) ANDREW DOUGLAS CAMERON (respondent) KATHERINE VICTORIA MAY CAMERON (respondent) ROBERT FRANKLIN CAMERON (respondent) MR ROBERT FRANKLIN CAMERON (respondent) MR ROBERT FRANKLIN CAMERON (respondent) ESTATE LATE STUART FRANCIS GRIFFITHS CAMERON (respondent) WILLIAM ROBERT CAMERON (respondent) MR ANDREW EASTON (respondent) MR NICHOLAS PAUL HASLUCK (respondent) MRS CONSTANCE WINIFRED HUMPHRIES (respondent) ESTATE LATE MARION AGNES HYLES (respondent) ELLEN LAING (respondent) MR JOHN WESTON SEAFORTH MACKENZIE (respondent) ELIZABETH NESTA MARKS (respondent) PINK PUMPKIN PTY LTD ACN 007 680 604 (respondent) TOMYFUTURE HEATH PTY LTD ACN 085 982 805 (respondent) MR COREY VINCENT (respondent) EST WILLIAM VINCENT WALTON DECD (respondent) MRS ROSEMARY HAMILTON WEST (respondent) MR JOHN WHITE AND MRS NICOLE WHITE (respondent) MR ANDREW JOHN WHITE (respondent) WINPAR HOLDINGS LIMITED ACN 003 035 523 (respondent) ENERGEX LIMITED ACN 078 849 055 (applicant/respondent) v GORDON BRADLEY ELKINGTON (respondent) ARTHURS TRADING CO PTY LTD ACN 072 242 098 (respondent) MR ANTHONY HUNTA AND MRS DENISE LYNDA BIDDULPH (respondent) MR JOHN FREDERICK BLIGH (respondent) ANDREW DOUGLAS CAMERON (respondent) KATHERINE VICTORIA MAY CAMERON (respondent) ROBERT FRANKLIN CAMERON (respondent) MR ROBERT FRANKLIN CAMERON (respondent) MR ROBERT FRANKLIN CAMERON (respondent) ESTATE LATE STUART FRANCIS GRIFFITHS CAMERON (respondent) WILLIAM ROBERT CAMERON (respondent) MR ANDREW EASTON (respondent) MR NICHOLAS PAUL HASLUCK (respondent) MRS CONSTANCE WINIFRED HUMPHRIES (respondent) ESTATE LATE MARION AGNES HYLES (respondent) ELLEN LAING (respondent) MR JOHN WESTON SEAFORTH MACKENZIE (respondent) ELIZABETH NESTA MARKS (respondent) PINK PUMPKIN PTY LTD ACN 007 680 604 (respondent) TOMYFUTURE HEATH PTY LTD ACN 085 982 805 (respondent) MR COREY VINCENT (respondent) EST WILLIAM VINCENT WALTON DECD (respondent) MRS ROSEMARY HAMILTON WEST (respondent) MR JOHN WHITE AND MRS NICOLE WHITE (respondent) MR ANDREW JOHN WHITE (respondent) WINPAR HOLDINGS LIMITED ACN 003 035 523 (respondent/appellant)
FILE NO/S:	Appeal No 11159 of 2002 Appeal No 11170 of 2002 SC No 3973 of 2001
DIVISION:	Court of Appeal
PROCEEDINGS:	General Civil Appeals
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	3 October 2003
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2003
JUDGES:	de Jersey CJ, Jerrard JA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeals dismissed with costs to be assessed
CATCHWORDS:	CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – POWERS WITH RESPECT TO PROPERTY – POWER TO ACQUIRE PROPERTY ON JUST TERMS (CONSTITUTION, S 51(XXXI)) – GENERALLY – whether s 51(xxxi) Constitution (Cth) applies to Part 6A.2 Corporations Act 2001 (Cth) – whether Part 6A.2 Corporations Act 2001 (Cth) constitutionally invalid as providing for acquisition of property on other than “just terms” CORPORATIONS – CORPORATE FINANCE – SHARES – OTHER MATTERS – where respondent held full beneficial interest in at least 90 percent by value of all securities in company…