Robert H Barber and Co Limited v Simon - [1914] HCA 69

ROBERT H. BARBER &CO. LIMITED

AND ANOTHER SIMON

ON APPEAL FROM THE SUPREME COURT OF Practice-High Court-Appeal from Supreme Court of a State - Appeal as of right

- -Appealable eamount-Company-Order - for compulsory liquidation-Special leave to appeal-Rescission-Judiciary Act 1903-1912 (No. 6 of 1903-No. 31 SYDNEY,

of 1912), secs. 35 (1) (a) (2).

An appeal lies to the High Court as of right from an order of the Supreme Court of a State for the winding up by the Court of a company then in the course of voluntary liquidation, where the assets of the company at the time of the order exceed the sum of £300 and where the petitioning creditor alleges that the company's debt to him exceeds £300.

Decision of the Supreme Court of New South Wales (Harvey J.) reversed.

A company had obtained special leave to appeal to the High Court against an order of a Judge of the Supreme Court setting aside a notice of appeal to the High Court from an order for the winding up of the company by the Court, the company being then in course of voluntary liquidation. The voluntary liquidator died before the appeal to the High Court was heard, and no one had been appointed in his place. Notwithstanding the granting of special leave to appeal the official liquidator had, with the knowledge and assent of the only shareholder who was substantially interested in the company, pro- ceeded with the compulsory liquidation, and had realized nearly all the assets.

Held, that no reason had been shown for rescinding the special leave to appeal.

APPEAL from the Supreme Court of New South Wales.

19 CLR 25

Robert H. Barber &Co. Ltd., a company registered in New H. C. OF South Wales, went into voluntary liquidation, and William Hirsch was appointed voluntary liquidator. On 24th June 1913, on the petition of George Simon, trading as Simon, Israel &Co., Street J. ordered the Company to be compulsorily wound up. On 27th June 1913 the Company and Hirsch gave notice of appeal to the High Court from that decision. On 3rd July 1913, on the motion of Simon, Harvey J., acting under rule 11 of Sec. III. of Part II. of the Rules of the High Court 1911, set aside the notice of appeal of 27th June on the ground that the appeal did not involve, directly or indirectly, any claim, demand, or question, to or respecting any property or any civil right amounting to or of the value of £300, within the meaning of sec. 35 (1) (a) (2) of the Judiciary Act 1903-1912.

From that decision Hirsch and the Company obtained special leave to appeal to the High Court. On the hearing of the appeal a motion was made by the respondent to rescind the order granting special leave to appeal. In support of the motion affidavits were filed in which it was alleged that the Company consisted of 1,600 shares, of which 800 stood in 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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Details

Case: [1914] HCA 69
Decision Date: 17 November 1914

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning an order for the compulsory winding up of Robert H. Barber & Co. Limited. The company had been in voluntary liquidation when the compulsory winding-up order was made. The respondent, George Simon, trading as Simon, Israel & Co., had petitioned for the compulsory winding up, alleging the company owed him a significant debt. The company and its voluntary liquidator initially appealed the winding-up order to the High Court, but this notice of appeal was subsequently set aside by a judge of the Supreme Court. Special leave to appeal this latter decision to the High Court was granted to the company and its liquidator.

The legal issues before the High Court were whether an appeal lay as of right from the order for compulsory winding up, given the company's voluntary liquidation status and the value of the assets and the debt claimed, and whether special leave to appeal should be rescinded. The respondent argued that the appeal did not involve a claim, demand, or question respecting property or a civil right amounting to £300, and therefore no appeal lay as of right. Further, the respondent sought to rescind the special leave to appeal on grounds including the death of the voluntary liquidator, the completion of the compulsory liquidation with the acquiescence of the main shareholder, and the alleged futility of the appeal.

The High Court determined that an appeal lay as of right. The Court reasoned that the order for compulsory winding up, in circumstances where the company was in voluntary liquidation, had the immediate effect of placing the company's property, valued at thousands of pounds, under the control of an official liquidator, thereby constituting a judgment respecting property of significant value. Consequently, the order fell within the ambit of section 35(1)(a)(2) of the Judiciary Act 1903-1912, which permits appeals as of right where the matter involves property or a civil right amounting to or of the value of £300. The Court also refused to rescind the special leave to appeal, finding that the circumstances did not warrant its rescission and that any prejudice arising from the progress of the liquidation during the pendency of the appeal was a consequence of the respondent's actions.

The High Court allowed the appeal, discharged the order appealed from, and dismissed the motion to set aside the notice of appeal. The respondent was ordered to pay the costs of the appeal, including the costs of the motion to rescind the special leave to appeal.

Orders