Theseus Exploration NL v Foyster [1972] HCA 41

High Court of Australia Barwick C.J. Gibbs and Stephen JJ. Theseus Exploration NL v Foyster [1972] HCA 41

ORDER Appeal allowed and by majority with costs. Order of the Supreme Court of Queensland dismissing the plaintiff's application set aside and in lieu thereof order that judgment be entered for the plaintiff against the defendant for $62,400 plus interest thereon at the rate of eight per cent per annum from 12th November 1970 to the date of judgment and costs.

Cur. adv. vult.

The following written judgments were delivered:—

July 28 Barwick C.J.

In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Stephen. The facts and circumstances of the matter are there fully recounted. I agree with my brother's conclusion that the appellant should succeed in its action for the recovery of the balance of the moneys agreed to be paid on allotment of 416,000 ordinary shares of twenty cents each in the capital of the appellant. I fully agree with the reasons which my brother Stephen gives for that conclusion. In that respect I have nothing I would wish to add.

The appeal is from an order of a judge of the Supreme Court dismissing a summons for summary judgment. Although he gave no reasons for that dismissal, it is evident that the judge was satisfied that there was a question in dispute with respect to the appellant's claim which ought to be tried. Clearly enough the appellant's proof in support of its application for summary judgment made out all the ingredients of its cause of action. The respondent's suggested defence was that by reason of the memorandum and articles of the appellant and the terms of s. 320 of the Companies Acts, 1961-1964 Q., no action would lie against the respondent to recover the amount unpaid in respect of the said shares. There was no dispute as to any fact relating to the claim. The validity or otherwise of the suggested defence turned exclusively on the construction of the agreement, the memorandum and articles of association and the application of the Companies Acts.