Morrison v O'Brien [1953] HCA 49

High Court of Australia Williams A.C.J. Webb, Kitto and Taylor JJ. Morrison v O'Brien [1953] HCA 49

ORDER Appeal allowed with costs. Order of the Full Supreme Court set aside and judgment of Philp J. restored. Respondents to pay costs of the appeal to the Full Supreme Court.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 28 Williams A.C.J., Kitto and Taylor JJ.

This is an appeal by the plaintiff in the action from an order of the Full Supreme Court of Queensland allowing an appeal from the judgment of Philp J. who heard the action and ordering that this judgment be set aside and that in lieu thereof judgment be entered in the action for the defendants. The action was brought by one of twelve partners against the other partners in a partnership carrying on the business of flour millers in Queensland under the name of Defiance Milling Co. to restrain the defendants from proceeding with the proposal to register the partnership as a company limited by shares under the provisions of Pt. XII of The Companies Acts 1931 to 1942 Q.. The partnership was constituted by an agreement called articles of association executed by the plaintiff and nine other persons on 29th November 1919. The articles provide for the introduction of new partners with the limitation that until after the registration of the company pursuant to Pt. VI of The Companies Act 1863 Q. (Pt. XII of the present Act), should that event occur, there should not be at any time more than twenty members. The objects for which the company was established were to carry on the business of flour millers and also to carry on the business of general merchants and any other trade or business whatsoever wholesale or retail which in the opinion of the directors for the time being could be advantageously or conveniently carried on by the company in connection with any such business, or was calculated directly or indirectly to develop any branch of the company's business or to increase the value of the company's assets, property or rights. The original capital of the company was £50,000 divided into 50,000 shares of £1 each but this capital was increased in 1924 to £100,000 divided into 100,000 shares of £1 each. Clause 14 of the articles of association provides for the management of the business of the company being vested in the directors who, in addition to the powers and authorities by these presents or otherwise expressly conferred upon them, may exercise all such powers and do all such acts and things as may be exercised or done by the company and are not thereby or by statute expressly directed or required to be exercised or done by the company in general meeting. Clauses 25, 26 and 33 to 38 inclusive provide for the transfer of the shares of the members. The constitution of the company complies with the definition of a joint stock company in s. 343 of The Companies Acts 1931 to 1942 Q.. Philp J. ordered that the defendants and each of them should be restrained from registering or proceeding further with the registration of the partnership firm known as Defiance Milling Co. as a company limited by shares in pursuance of Pt. XII of The Companies Acts 1931 to 1942 Q. under the name of Defiance Milling Co. Limited. That judgment was, as we have said, set aside on appeal by the Full Supreme Court. From the order of the Full Supreme Court the plaintiff purported to appeal to this Court as of right and objection was taken by the defendants under r. 8 of O. 70 of the rules of this Court to the competency of the appeal. We over-ruled this objection which in the end was but faintly pressed, held that the appeal was competent as of right and ordered that the costs of the objection be costs in the appeal.