Burkard v Oakley [1920] HCA 44; (1920) 27 CLR 520 (10 August 1920)

HIGH COURT OF AUSTRALIA

Burkard Plaintiff; against Oakley (Commonwealth Public Trustee) and Another Defendants.

H C of A

10 August 1920

Knox C.J., Isaacs, Higgins, Rich and Starke JJ.

Maughan K.C. (with him Bavin), for the plaintiff.

Blacket K.C. (with him Flannery K.C.), for the defendants,

Maughan K.C.

Knox C.J.

I feel no doubt that these shares are amply covered by the War Precautions (Enemy Shareholders) Regulations, and that under those Regulations the Public Trustee has power to sell them whether or not De Leeuw had some interest in them. When this case was before this Court previously, Barton J. said[1]:—"Granted that the power conferred by the War Precautions Act will support an order declaring that the shares are transferred to the Public Trustee, and a vesting of the shares in him by virtue of the order, it does not seem to me to be an unwarranted exercise of that power to authorize a sale of the shares so transferred. It may be that in some instances a beneficial interest remains in some person, firm or company, notwithstanding the transfer to the Public Trustee; but the shares are to be transferred in the books of the company to the name of the Public Trustee, who then has the sole control of the shares and of their disposal, subject to the Regulations. It is contended that the enemy shareholder may deal with his beneficial interest in the shares. That may or may not be so. If he has that right it may, on the one hand, be a due precaution for the public safety to take away that power to deal with the beneficial interest by disposing of the shares and handing the money, under reg. 11 (3), to the person by whom the shares were transferred unless the Attorney-General otherwise directs. On the other hand, it may be a wise precaution in the interest of the enemy shareholder himself that the Public Trustee should be able, by selling the shares, to prevent any undue loss to the beneficial interest through a fall in the market value." I respectfully agree with that. I also think that the matters pointed out by my brother Isaacs in connection with regs. 14 and 15 show clearly that this decision is equally applicable to the 750 shares and the 4,500 shares.

Isaacs J.

I agree. The War Precautions (Enemy Shareholders) Regulations seem to me to be entirely applicable. I must say that it was obviously assumed in the case of Burkard v. Oakley[2] that those Regulations did, on their true construction, extend to permit a sale of these shares. In addition to the passage read by the learned Chief Justice from the judgment of Barton J., my brother Rich in his judgment said[3]: "If the Public Trustee may not sell and transfer the shares a winding up must follow." Those words show clearly that the Court had that in view in deciding the validity of the Regulations, and so I think it was involved. If it was not, I am clearly of opinion that the Regulations are valid, and do cover this case.

Higgins J.

I should like to say that I take the point to be covered by the previous case (1), that is, the point that the War Precautions (Enemy Shareholders) Regulations authorized the sale. I do not understand, indeed, how what was done as to the 750 shares was properly done. The decision, however, in principle covers these shares too; and either we are bound by that decision or else what was laid down in that case has not been shown to be manifestly wrong.

Rich J.

Apart from the decision already cited, which covers the matter, I think the Regulations are valid.

Starke J.

I agree with my brother Higgins that the matters involved in this case are covered by the decision of this Court in Burkard v. Oakley[4], and that we are bound by that decision.

Questions answered as follows: (1), (2), (3) and (4)—No; (5), (6) and (7)—Yes. Costs to be costs in the action.

Solicitors for the plaintiff, Villeneuve-Smith & Dawes.

Solicitor for the defendants, Gordon H. Castle, Commonwealth Crown Solicitor.

[1] 25 C.L.R., at p. 425.

[2] [1918] HCA 70; 25 C.L.R., 422.

[3] 25 C.L.R., at p. 426.

[4] [1918] HCA 70; 25 C.L.R., 422.