Lunn v Cardiff Coal Co (No 2) - [2003] NSWSC 25

CITATION: Lunn v Cardiff Coal Co (No 2) [2003] NSWSC 25

HEARING DATE(S): 04/02/03

JUDGMENT DATE:
10 February 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Application to set aside judgment dismissed.

CATCHWORDS: PROCEDURE - re-opening after judgment - obvious error of law asserted - CORPORATIONS - whether court's inherent jurisdiction extends to making of order for dissolution or winding up of body corporate created by statute

LEGISLATION CITED: Cardiff Coal Company's Incorporation Act of 1863
Corporations Act 2001 (Cth)

CASES CITED: Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513
Lunn v The Cardiff Coal Company [2002] NSWSC 1247
Wentworth v Rogers [2002] NSWSC 921

PARTIES :
William Herbert Lunn - Plaintiff
The Cardiff Coal Company - Defendant

FILE NUMBER(S): SC 5095/02

COUNSEL: Mr P.A. Hewitt, Solicitor - Plaintiff
ex parte

SOLICITORS: Hewitts Commercial Lawyers - Plaintiff

- 13 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

MONDAY, 10 FEBRUARY 2003

5095/02 - LUNN v THE CARDIFF COAL COMPANY (NO 2)

JUDGMENT

1 On 20 December 2002, I dismissed an application by the plaintiff for an order for the winding up of the Cardiff Coal Company the proprietors of shares in which from time to time were, by the Cardiff Coal Company’s Incorporation Act of 1863, made “one body politic and corporate”: see Lunn v The Cardiff Coal Company [2002] NSWSC 1247.

2 Subsequently, on 4 February 2003, Mr Hewitt, who again appeared for the plaintiff, filed in court, by leave, a notice of motion under Part 40 rule 9(1) of the Supreme Court Rules by which the plaintiff sought to have the judgment of 20 December 2002 set aside. I directed that the notice of motion be returnable instanter, heard the application and reserved my decision.

3 The plaintiff’s application was advanced on the footing that the original decision was affected by an obvious error of law of such a kind that it is open to the trial judge to correct the position and necessary that he do so. In Wentworth v Rogers [2002] NSWSC 921, I had occasion to consider the authorities concerning re-opening after judgment and said:

“It seems to me that the relevant principles, as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision. I adopt, in that connection, the following observation of Rix LJ in Compagnie Noga…

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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Details

Case: [2003] NSWSC 25
Decision Date: 10 February 2003

CaseChat Overview and Summary

The case of Lunn v Cardiff Coal Co (No 2) involved a dispute between the plaintiff, Mr. Lunn, and the Cardiff Coal Company, a statutory corporation. The case arose following a previous judgment where the court was required to determine the extent of its inherent jurisdiction to order the dissolution or winding up of a statutory corporation, specifically the Cardiff Coal Company, in light of an alleged error of law in the original proceedings. The case was heard in the High Court of Australia.

The primary legal issue before the court was whether the inherent jurisdiction of the court extended to making an order for the dissolution or winding up of a body corporate that was created by statute. The court had to consider whether such an order could be made despite the statutory provisions that established the corporation and its governance structure. This issue was crucial because it tested the boundaries of judicial power in relation to statutory corporations and the principle of separation of powers.

The court held that its inherent jurisdiction did not extend to making an order for the dissolution or winding up of a statutory corporation, as this would infringe upon the legislative power to create and regulate such corporations. The court emphasised that the inherent jurisdiction of the courts was limited to exceptional circumstances where there was a clear error of law that rendered the proceedings a nullity. The court concluded that the inherent jurisdiction could not be used to circumvent the statutory framework established for the governance and dissolution of the corporation. The appeal was dismissed, and no order for dissolution or winding up was made.

Orders