Robert H Barber and Co Limited v Simon

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liquidation status and the value of the assets and the debt claimed, and whether special leave to appeal should be rescinded.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.