High Court of Australia
c.a228045
HL B Dew, Gor, Print, Melb.
Wed TU] Y
IN THE HIGH COURT OF AUSTRALIA
REASONS FOR JUDGMENT
Judgment delivered at__MEILBOURNE on__ THURSDAY ,..22nd_MAY,..1.947,.....-
REASONS FOR JUDGMENT. LATHAM C.J RICH J. Je DIXON J.
McTIBRNAN J.
CLEARY & ANOR. Vv CLEARY
REASONS FOR JUDGMENT. LATHAM C.J
In my opinion this appeal should be dismissed. The order for restoration of the name of the company to the register may be supported by reference to a concurrence of circumstances, .
In the first place, I think it is quite plain that the applicant as a shareholder is a person who is aggrieved by what happened when his father took possession of the assets of the company and no provision was made for the rights of the son as a shareholder. The circumstances to which I refer as justifying the order are, first, that the basis of the action by the Registrar- General was a declaration which was in fact false, and that that in itself affords a foundation of considerable substance for the order which was made. Then, further, the circumstances of the case taken as a whole show that it was just that the company should be restored to the register.
The son, Henry James Cleary, had 1250 shares for which he has got nothing. At the time when the company's name was removed from the register the company had a surplus in its accounts after paying creditors, and the shares had a value. There is evidence to show that he agreed at the time to what his father was doing. But I agree with the argument submitted by Mr. Dean that that agreement was conditional upon matters continuing in the same position as they had been for many years, namely that the son be employed by the father with an expectation of benefiting by the father's will. It was no absolute binding agreement to surrender his rights, but a conditional consent. With the dismissal of the son from the employment the condition upon which this consent operated disappeared, so tht when the condition ceased to be fulfilled and when the father placed himself in a position in which
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