McPHAIL V. MITTON 4/1940

pg

IN THE HIGH COURT OF AUSTRALIA.

REASONS FOR JUDGMENT.

Judgment delivered at. RACK mace

4B. J, Gauux, Goveroment Printer, Melbourne, e500,

me PHAITIL Ve MIT

ON

Appeal dismissed with costs.

BE

SS

'S

McPHAIL ve MITION.

ITED.

RE_LASSCOCK'S NURSERIES LIMITED McPHAIL v,. MITTON. TUDGENT. RICH A,C.d,

The transaction under review in this case is complicated and we found it necessary to reserve our judgment not because the argument left us in any real doubt as to the correctness of the judgment of Napier J. but because an examination of the materials laid before the Court ap- peared desirable before disposing of the case, I have now had an opportu- nity of going through the evidence and exhibits and I have re-read the learned Judge's reasons. I have also had the advantage of reading the judgments prepared by Starke J. and Dixon J. with which I agree. It is unnecessary for me to say more than i an confirmed in the conclusions (1) that both payments to Lyons and Leader Ltd were made at the instance of the appellant as director of Lasscock's Nurseries Ltd. not for the purpose of p Pom@ting the interest or advantage of the latter company but with the object of providing the former company with a profit or advantage and

(2) that both payments were voluntary and were not made in discharge of any obligations of Lasscock's Nurseries Ltd. and were not based on any

a interest of that company nor reasonably calculated to benefit it and were therefore not incidental to any power in the memorandum of Association and were ultra vires of the directors and the company. Either of these ground would be enough to support the order of Napier J. In my opinion the ap- pellant McPhail is clearly liable as for a misfeasance and the order under appeal was rightly made. The appeal should be dismissed with costs.

SSCOCK'S NURSERIES LIMITED (IN LIQUIDATION); McPHAIL V MITTON.