Re Australian Metal Company Limited - [1923] HCA 47

33 CLR 329

IN RE THE AUSTRALIAN METAL COMPANY LIMITED. Trading with the Enemy-Enemy company-Business in Australia directed to be

wound up-Interest on debts owing by company-Trading with the Enemy Act 1914-1921 (No. 9 of 1914-No. 23 of 1921), sec. 9H-Supreme Court Act 1915 (Vict.) (No. 2733), sec. 75.*

Pursuant to sec. 9H of the Trading with the Enemy Act 1914-1916 the Minister for Trade and Customs ordered that the business of the A company in Aus- tralia should be wound up, and appointed a controller to conduct the winding up. Certain claims by the B company and the C company against the A company under certain contracts were made to the controller and, upon appli- cation to the High Court under sec. 9H, the basis on which the B company and the C company were entitled to claim payment was declared, but no claim was then made or question raised as to their right to interest upon the respec- tive amounts due to them. Subsequently, upon motion, the High Court was asked whether the B company or the C company was entitled to interest on the moneys due to it in respect of its claim.

Held, on the evidence, that there was no contractual right in either the B or the C company to such interest.

Held, also, that neither the B nor the C company was entitled to such interest under sec. 75 of the Supreme Court Act 1915 (Vict.). MOTION.

By an order dated 7th December 1917 the Minister of Trade and Customs, purporting to act in pursuance of sec. 9H of the Trading with the Enemy Act 1914-1916, ordered that the business carried on

* Sec. 75 of the Supreme Court Act 1915 (Vict.) provides that Upon

was payable (if payable by virtue of be recovered in any action, the Court at

or time certain); or if payable other- the hearing or the jury on the trial of any issue or on an assessment of any

of payment has been made in writing damages may if the Court or jury think

giving notice to the debtor that interest rate not exceeding eight per cent

33 CLR 330

in Australia by the Australian Metal Co. Ltd., a company incor-

porated in England, should be wound up he appointed Samuel James Warnock of Melbourne, who had been appointed Controller of the Company by the High Court on 25th March 1915, as Controller to control and supervise the carrying out of the order and to conduct the winding up of the business and he conferred upon the Controller powers (inter alia) subject to the provisions of the Trading with the Enemy Act to pay the debts and discharge the liabilities of the Company, and with the consent of the Minister for Trade and Cus- toms to apply to the High Court or a Justice thereof to determine any question arising in the carrying out of the order. On 13th March 1917 an order had been made by the High…

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 Re Australian Metal Company Limited

Details

AGLC: Re Australian Metal Company Limited [1923] HCA 47
Case: [1923] HCA 47
Decision Date: 30 October 1923

CaseChat Overview and Summary

The dispute before the High Court concerned claims for interest by the Broken Hill Proprietary Co. Ltd. and the Broken Hill South Silver Mining Co. No Liability against the Australian Metal Company Limited. The Australian Metal Company's business in Australia had been ordered to be wound up by the Minister for Trade and Customs under the *Trading with the Enemy Act 1914-1921*, and a controller had been appointed to manage this process. While the basis for the principal claims of the two Broken Hill companies had previously been determined by the High Court, the question of their entitlement to interest on these amounts was raised subsequently.

The court was required to determine whether the Broken Hill Proprietary Co. and the Broken Hill South Silver Mining Co. were legally entitled to claim interest on the principal sums owed to them by the Australian Metal Company. This involved examining whether a contractual right to interest existed under the respective agreements between the companies, and alternatively, whether interest could be awarded under section 75 of the *Supreme Court Act 1915* (Vict.). The court also considered whether any such interest, if found to be payable, should be paid absolutely or be subject to the prior payment of capital debts.

The court found that neither company had a contractual right to interest. For the Broken Hill Proprietary Co., clause 18 of its contract was interpreted to apply only to delays in payment on the pro forma account, not to subsequent adjustments. For the Broken Hill South Silver Mining Co., correspondence regarding the potential acceptance of inscribed stock did not constitute a binding agreement to transfer such stock, and therefore did not create a right to interest. Furthermore, the court held that section 75 of the *Supreme Court Act 1915* (Vict.) was not applicable to the present proceedings, which were not actions to recover a debt or a sum certain.

Consequently, the court answered that the Broken Hill Proprietary Co. was not entitled to interest on any part of its claim, and similarly, the Broken Hill South Silver Mining Co. was not entitled to interest on any part of its claim. Questions regarding the subordination of interest claims to capital debts were deemed unnecessary to answer given these findings. The costs of the application were ordered to be shared equally between the two claimant companies.

Orders