Motor Terms Co Pty Ltd v Liberty Insurance Ltd [1967] HCA 9

High Court of Australia Barwick C.J. Kitto, Taylor, Menzies and Owen JJ. Motor Terms Co Pty Ltd v Liberty Insurance Ltd [1967] HCA 9

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

April 21 Barwick C.J.

I have had the advantage of reading the judgments about to be delivered by my brother Taylor and by my brother Menzies. I agree with their conclusions and the several reasons they give for arriving at them. I would wish merely to say for myself that, in my opinion, the relevant date at which to determine whether or not for the purposes of a liquidation under the Companies Act, 1961 N.S.W., a debt is statute-barred is the date of the presentation of the petition on which the winding up order has been made. Of course, if the petitioner's status as a creditor is challenged before the order is made, the date of the presentation of his petition will also be the appropriate date. The date of the presentation of the petition on which the order is made is set by the Companies Act (s. 223 (2)) as the date of the commencement of the liquidation, that is to say, as the date of the commencement of the process of administering the assets of the company with a view to their proper distribution according to the statute amongst the creditors. That date to my mind is both the logical and the practical date, as well as being the date chosen by the legislature, as at which to determine who are the creditors and as at which to adjust their rights. That process is statutory and does not, in my opinion, invite analogy with an administration suit: nor, in my opinion, are the statutory duties and obligations of the liquidator to be explained by reference to the laws relating to trusts.

Kitto J.

This appeal depends upon the interpretation and application to the facts of the case of a provision of the Companies Act, 1961 N.S.W., which authorizes the winding up of a company under an order of the court, in certain circumstances, "on the petition of any creditor": s. 221 (1) (b). The respondent petitioned the Supreme Court for an order for the winding up of the appellant under this provision, claiming to be a creditor by virtue of a substantial debt for money lent and interest. The appellant opposed the petition on the ground that both at the date of the presentation of the petition and at the date of the hearing the debt was unenforceable at law by reason of the Statute of Limitations. The Chief Judge in Equity, who heard the petition, made an order for winding up, holding that by reason of acknowledgments the debt was not statute-barred at either date. An appeal to the Full Court was dismissed, the Court holding that the debt was not statute-barred when the petition was presented, and that thereafter the Statute did not run with respect to it.