Mercantile Credits Ltd v Foster Clark (Australia) Ltd [1964] HCA 66

High Court of Australia Kitto, Taylor and Windeyer JJ. Mercantile Credits Ltd v Foster Clark (Australia) Ltd [1964] HCA 66

ORDER Appeals consolidated and allowed. The appellant's costs of the appeals (except so far as relating exclusively to the second appeal) to be paid by the respondent Bank. Order of the Supreme Court of South Australia discharged. In lieu thereof order (1) that the respondent Foster Clark (Australia) Limited be wound up by the Supreme Court under the provisions of the Companies Act, 1934-1960 S.A., and (2) that the petitioner's costs of the proceedings in the Supreme Court so far as increased by the opposition of the respondent Bank be paid by the respondent Bank, and save to that extent be paid out of the assets of the company. Matter remitted to the Supreme Court to appoint a liquidator or liquidators, and to proceed in the winding-up conformably with this order.

Cur. adv. vult.

The Court delivered the following written judgment:—

Nov. 5 Kitto, Taylor and Windeyer JJ.

We have before us two appeals by the one appellant against an order of the Supreme Court of South Australia (Chamberlain J.) dismissing a creditor's petition for the winding-up by the Court of a company which was incorporated in the United Kingdom and, though registered as a foreign company in New South Wales, has never been registered in South Australia. One appeal is brought as of right, but the notice of appeal, though served on the second respondent, was never served on the company. The other is brought by special leave (the time for appeal having elapsed when the omission to serve the first notice of appeal was discovered), and the second notice of appeal has been duly served on the company in accordance with directions which we gave for substituted service. The appeals have been heard together and are to be consolidated.