Luckins (Receiver & Manager of Australian Trailways Pty Ltd) v Highway Motel (Carnarvon) Pty Ltd [1975] HCA 50

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Jacobs JJ. Luckins (Receiver & Manager of Australian Trailways Pty Ltd) v Highway Motel (Carnarvon) Pty Ltd [1975] HCA 50

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 29 Barwick C.J.

The facts and relevant statutory provisions upon and with respect to which this appeal falls to be decided are set out in the judgments of other members of the Court. I have no need to repeat them in these my reasons.

Three questions arise in this appeal, and I list them in the order in which it seems to me they must be answered:

1. Was Australian Trailways Pty. Ltd. (the company) carrying on business in Western Australia on 13th August 1973?

2. If it was, did the Companies Act, 1961-1970 W.A. invalidate the debenture given that day to H. C. Sleigh Ltd. as to assets of the company then situate otherwhere than in Western Australia?

3. In any case did the receiver appointed on 9th January 1974 (the claimant) prove his title to the bus?

The facts relevant to the first question are that the only activity of the company in Western Australia at any time was its purchase of food and lodging for its passengers on tour in its bus in order to fulfil the obligations to them assumed by the company outside Western Australia. The company had no property, no agent, no bank account, no office, not even a booking office, and no staff in Western Australia other than the drivers of its buses as they moved through that State on tour.

It has been found by the Supreme Court of Western Australia that the purchase of food and lodging in these circumstances was, relevantly, a carrying on of business in that State. If that were a possible view, I should be loath to say that the judge who took it was wrong. But after a deal of consideration, I cannot bring myself to think that the conclusion is open on the abovementioned material. Certainly no reported decision in that sense has been founded on like material.