Companies—Offence—Accessory—Knowing concern in commission of offence—Company offering or issuing prescribed interest to public—All actions comprising offence carried out by managing director—Whether he was knowingly concerned in commission of offence—Companies (Western Australia) Code, s. 169,—Companies and Securities (Interpretation and Miscellaneous Provisions) (Western Australia) Code, s. 38(1).
Decision
MASON C.J., WILSON AND TOOHEY JJ. The applicant seeks special leave to appeal from the decision of a single Judge (Franklyn J.) of the Supreme Court of Western Australia whereby his Honour, inter alia, discharged four orders to review granted in accordance with s.197 of the Justices Act 1902 (W.A.). There is no appeal to the Full Court of the Supreme Court from any determination of a single Judge made on the return of any order to review: Justices Act, s.206A.
2. The applicant was the complainant in proceedings instituted in the Court of Petty Sessions at Perth against Establish Pty Ltd ("the company"), of which the respondent was the managing director, and against the respondent. The company was charged with six offences under ss.169 and 174 of the Companies (Western Australia) Code ("the Code"), namely, that, not being a company within s.164 nor an authorized agent of such a company, it offered or issued to the public a prescribed interest in the Class European Restoration Syndicate Trust. The respondent was charged on six counts of being knowingly concerned in the commission of the offences alleged against the company, each count relying on s.169 of the Code and s.38(1) of the Companies and Securities (Interpretation and Miscellaneous Provisions) (Western Australia) Code ("the Interpretation Code").
3. The learned magistrate dismissed all twelve charges because he was not satisfied that the offers or issues in question were made to the public or a section of the public (see the Code, s.5(4)) and therefore that element of the offence had not been established. This was the sole ground of appeal in the proceedings before Franklyn J. In four of the six charges against the company, his Honour allowed the appeal and made absolute the orders to review. The remaining charges against the company were founded on somewhat different facts and the orders to review in respect of them were discharged.
4. The outcome of the appeals with respect to the respondent was different. It was not in dispute that, in respect of the charges of which his Honour had found the company to be guilty, the respondent had contacted each of the persons named as the recipient of an offer or issue of a prescribed interest. The contact had been established in consequence of an advertisement, placed by the respondent in a daily newspaper published in Western Australia, reading as follows: "BMW, Merc, Porsche, Restoration Business. Partners wanted (silent or active). 448.7634." The reasoning that led Franklyn J. to discharge the orders to review in respect of the four charges against the respondent corresponding to the…
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.
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AGLC
Hamilton v Whitehead [1988] HCA 65
Case
[1988] HCA 65
Decision Date
CaseChat Overview and Summary
In *Hamilton v Whitehead*, the High Court of Australia considered a dispute between the appellant, Hamilton, and the respondent, Whitehead. The case concerned the validity of a notice of termination of a contract for the sale of land.
The central legal issue before the High Court was whether the notice of termination given by the vendor, Whitehead, was valid and effective in terminating the contract for sale of land, or whether it was void for uncertainty. This required the court to consider the principles of contractual interpretation and the requirements for a valid notice of termination under the terms of the contract.
The High Court held that the notice of termination was void for uncertainty. The Court reasoned that the notice failed to clearly and unambiguously identify the specific breaches of contract that were relied upon by the vendor as grounds for termination. Applying established principles of contractual interpretation, the Court determined that a notice of termination must be sufficiently precise to inform the party receiving it of the nature of the default and the intention to terminate. As the notice in this instance was vague and open to multiple interpretations, it did not satisfy this requirement.
Consequently, the High Court dismissed the appeal, upholding the decision of the lower court that the purported notice of termination was ineffective.