Robert H Barber & Co Ltd v Simon [1914] HCA 69; (1914) 19 CLR 24 (17 November 1914)

HIGH COURT OF AUSTRALIA

Robert H. Barber & Co Limited and another Appellants; and Simon Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

17 November 1914

Griffith C.J., Isaacs and Powers JJ.

Clive Teece (with him Nicholas), for the appellants.

Maughan (with him Weston), for the respondent.

Teece, in reply.

Griffith C.J.

This is an appeal by special leave from an order of Harvey J. setting aside a notice of appeal to this Court given by the present appellants against an order made by Street J. for winding up the appellant Company. The order of Harvey J. purported to be made under rule 11 of Sec. III. of Part II. of the Rules of the High Court, which provides that "when notice of appeal is given without leave or special leave of the High Court in a case in which an appeal cannot be brought as of right, the Court from which the appeal is proposed to be brought, or a Judge thereof, may set aside the notice." When the order for compulsory winding up was made the Company was in voluntary liquidation, and the appellant Hirsch was the voluntary liquidator. The assets of the Company were worth some thousands of pounds. The petitioning creditor was the present respondent, who claimed to be a creditor of the Company for about £17,000, which claim the Company disputed. He was therefore a person claiming to be a creditor and seeking to enforce his claim by the process of a compulsory winding up. The effect of the winding up order, so far as it caused a change of status, was immediate and definite, although for some purposes its operation was not conclusive, since the validity and amount of this petitioning creditor's debt might still have been disputed in the winding up. On the other hand the order had the immediate effect of taking the property of the Company out of its own hands in which it remained during the voluntary liquidation, and placing it under the entire control of the official liquidator, with power to carry on the Company's business and to dispose of its property. Under those circumstances it is impossible to deny either that the winding up order was a judgment pronounced in respect of a sum at issue amounting to £300, or that it was a judgment respecting property of that value. From both points of view it was within the terms of sec. 35 (1) (a) (2) of the Judiciary Act. The appeal, therefore, lay as of right, and the learned Judge had no authority to set aside the notice.

We were, however, asked to rescind the special leave to appeal. The first ground urged was that the special leave ought not to have been granted at all. The order from which it was sought to appeal, if valid, deprived the appellants of their constitutional and statutory right of access to this Court. Being clearly wrong, it was quite right that leave should be given to appeal from it and important in the general interest that it should be discharged. Then it was said that since the leave was given the Company has been practically wound up by the official liquidator, so that the main appeal would now be futile. Whose fault is that? The present appellants duly gave notice of appeal in pursuance of the leave, and duly lodged security. The operation of the order of Harvey J. was thereby suspended, and the original appeal was and still is pending. Now it is said that because during its pendency the respondent or those who came in under the winding up order have given full effect to it, the appellants should be no longer heard to complain of it. It would be a singular inversion of justice to hold that an appellant who has observed the condition giving him the right of appeal can be deprived of that right by the conduct of the respondent. It will be for the Court on the hearing of the principal appeal to do what is right under the altered circumstances.

A further objection was taken that the original appeal against the winding up order was not properly instituted. It was instituted in the names of the voluntary liquidator and the Company. It is doubtful whether the liquidator was formally a necessary or even a proper party, but certainly the Company was a competent appellant, and it is equally certain that the voluntary liquidator was a competent, and, indeed, the proper, person to institute the appeal in its name. The fact that he is since deceased does not affect the validity of the original institution.

The motion to rescind must therefore be refused and the appeal allowed.

Isaacs J.

I agree, and would only add this, that whatever interpretation be given to the relevant paragraph of sec. 35 of the Judiciary Act the requisite amount exists.

Powers J.

I agree

Appeal allowed. Order appealed from discharged. Motion to set aside notice of appeal dismissed with costs. Respondent to pay costs of this appeal including costs of motion to rescind special leave to appeal.

Solicitor, for the appellants, William Arnott.

Solicitors, for the respondent, Sly & Russell.