Ehlers, Ashley K --- "Inherent equitable jurisdiction and the plenary power of the Supreme Court of New South Wales to order the winding up of companies" [2010] ALRS 8; (2010) 18 Insolv LJ 52

Last Updated: 6 October 2010

The Inherent Equitable Jurisdiction and the Plenary Power of the Supreme Court of New South Wales to Order the Winding Up of Companies.

ASHLEY K EHLERS[1]

I INTRODUCTION

Fifteen years have passed since Young J (as he then was) boldly proclaimed the New South Wales Supreme Court (“the Court”) was empowered pursuant to two alternative sources to order the winding up of a company on the just and equitable ground that could not be wound up pursuant to the New South Wales statutory forerunner[2] to the Corporations Act 2001 (Cth).[3] These two sources were the inherent jurisdiction of the Court and the statutory plenary power given to the Court pursuant to section 23 of the Supreme Court Act 1970 (NSW)[4] that allowed (and indeed today is in identical terms) : “The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales”. The inherent jurisdictional source of Justice Young’s decision in Re Kalblue[5] has been the overwhelmingly prevalent focus of subsequent judicial consideration and current loose leaf services[6] and practitioner’s manuals[7] on the main issue this paper considers: the disputed ability of the Court[8] to order a winding up of companies not amenable to a winding up order under the Corporations Act 2001 (Cth). This paper proposes an alternative paradigm by a proposed methodology which may appear counter intuitive at first blush. It is argued that the plenary power of the Court initially attracts the jurisdiction in relation to companies not encompassed by the Act and the inherent jurisdiction of the Court supplies the equitable remedy of winding up on the just and equitable ground. The significance of this paper extends from what may be perceived as a narrow focus on the question of winding up of companies to the broader and very topical question of the extent to which the inherent jurisdiction of the Court in corporations matters has survived more generally; one example is the question as to the Court’s inherent jurisdiction to permit a derivative action on behalf of a company in liquidation. It was not until very recently that at least in New South Wales an authoritative view was expressed as to whether a statutory derivative action is available regarding a company in liquidation.[9] The Court in obiter did not disagree that the abolition of the common law derivative action by the Corporations Act 2001 (Cth) did not abolish the inherent jurisdiction for a derivative action on behalf of a company in liquidation;[10] this paper’s broader importance is to plumb the depths of the inherent jurisdiction of the Court. In so doing it will raise awareness of the availability of the plenary power of the Court to possibly assist in areas of corporations law more generally.

II WINDING UP COMPANIES PURSUANT TO THE CORPORATIONS ACT 2001 (CTH).
Chapter 5 of the Corporations Act 2001 (Cth) (“the Act”) deals with winding up of companies.[11] The Act applies to all Australian jurisdictions and regard must also be had to the Corporations Regulations 2001 (Cth) and the Corporations Rules 2000.[12] The Corporations Rules 2000 “are now uniform between all State Supreme Courts and the Federal Court (ie all Superior Courts possessing winding up jurisdiction)”.[13]
Under the Act both the Australian Supreme Courts (States, Capital Territory and Northern Territory) and Federal Court of Australia have jurisdiction to deal with winding up[14] however given the ongoing dispute as to whether statutory courts such as the Federal Court possess inherent jurisdiction[15] and the doubt surrounding the extent of the plenary powers of other Australian Supreme Courts[16] this paper focuses exclusively on the New South Wales Supreme Court. Interestingly, the Act states “The jurisdiction conferred on a Supreme Court ... is not limited by any limits to which any other jurisdiction of that Supreme Court may be subject”.[17] This provision presumably would only be inserted if the parliament recognised jurisdiction other than that provided by the Act would continue to vest in the various Supreme Courts after enactment of the Act. The Act “does not purport to be a comprehensive code covering all aspects of company law”.[18] The Act itself is clear that concurrent operation of “any law of a State or Territory” is intended[19] subject to the law not being a “direct inconsistency”.[20] The Act was the result of referral of the State powers to the Commonwealth pursuant to paragraph 51 (xxxvii) of the Australian Constitution.[21] The States were very concerned the Commonwealth would seek to extend the reach of the Act and the States can individually cease to be part of the national Act should they choose to do so.[22] The Acts Interpretation Act 1901 (Cth) s 15A mandates the construction of an Act must be subject to the Australian Constitution and should be read and construed so as not to exceed the legislative power of the Commonwealth. The Acts Interpretation Act 1901 (Cth) applies to the Act.[23] It is submitted the Act is to be ‘read down’ to preserve the States’ rights regarding the inherent jurisdiction and plenary power of the Supreme Courts as there is an established presumption in interpreting legislation that parliament is presumed to not alter common law doctrines nor invade common law rights by general provisions in an Act.[24]
Preservation of the States’ rights is evident throughout the Act; for example s 119A jurisdiction of incorporation and jurisdiction of registration at Note 3 allows “ A law of a State or Territory may impose obligations, or confer rights or powers, on a person by reference to the State or Territory...For example...stamp duty”. Section 9 of the Act defines law of a State or Territory as “a law of, or in force in, the State or Territory”. While a ‘marginal note’ is not technically taken to be part of an Act,[25] the use of extrinsic material including Note 3 s119A is permitted as this provision is ambiguous or obscure and the Note will aid ascertaining the meaning of the provision by reference to the purpose or object of the Act.[26] The plenary power of the Supreme Court Act 1970 (NSW) s23 and the inherent equitable jurisdictions of the States would seem to be laws of, or in force in the various States.

III THE INHERENT JURISDICTION OF THE COURT
The inherent jurisdiction of the Australian Supreme Courts is not set out in statutory form.[27] The inherent jurisdiction is an independent and separate source of jurisdiction exercised by superior courts of record.[28] Inherent jurisdiction was ‘initially possessed by the common law courts of Westminster, which were superior courts of record with unlimited jurisdiction’.[29] Two additional rationales for inherent jurisdiction possessed by the common law courts of Westminster have been recognised; by the very nature of the Court and incidental powers.[30] Every Supreme Court of Australia is a superior court of record;[31] additionally the Australian Supreme Courts possess the inherent jurisdiction of these English courts.[32] Some Australian jurists have not blindly accepted that the inherent jurisdiction of the old English courts is reflected necessarily in the Australian Supreme Courts.[33] The critical distinction for this paper is that between the jurisdiction of the Court to commence the action in comparison to the inherent jurisdiction utilised when the matter is already before the Court. The broad inherent jurisdiction of Supreme Courts post Corporations Act 2001 (Cth), retained in the latter is not controversial but the former is, according to the Australian case law on this point.[34] All Australian courts including the Supreme Courts are created by, or under, legislation.[35] Justice Kirby has stated that there is a danger in ‘a judicial assertion of authority to enlarge the ambit of the jurisdiction and powers of the court without expressly anchoring such enlargement in the text of the law” when dealing with courts of constitutional or statutory origin.[36] His Honour went on to say that the “jurisdiction and powers of every Australian Court are limited by that court’s constitutional and statutory competence”.[37] It seems jurisdiction and powers have not been generally considered as discrete concepts in the scant judicial consideration of the subject matter of this paper.
The Australian High Court has warned against an unsophisticated approach that ignores this distinction and emphasises the importance of separating the two concepts.[38] The jurisdiction in this context is “the authority which a court has to decide the range of matters that can be litigated before it”[39] (the plenary power of the Court in the context of this paper). Whilst the powers are expressly or impliedly conferred by the legislation governing the court and “such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”[40] (the inherent jurisdiction of the Court in the context of this paper).

IV The Reception of Inherent Jurisdiction into the Supreme Courts in Australia
Equity
‘Equity can be described but not defined. It is the body of law developed by the Court of Chancery in England before 1873’.[41] Equity’s two principal proscriptions are unconscionable conduct and unfair outcomes.[42] However, the broad proscriptions of equity are sometimes criticised for not providing an objective definition of equitable jurisdiction.[43] The ‘great bulk’ of the early petitions in Chancery are unpublished[44] and ‘we are always reduced to a more or less disguised enunciation of the historical heads of equity jurisdiction’.[45] From approximately 1673 to 1873, equity developed ‘positive rules and shed its ex tempore characteristics’.[46] Chancery was allocated jurisdiction regarding companies in 1862.[47] Companies are still regarded as part of the equitable jurisdiction of the Court in both England and Australia.[48]
The various States and Territories of Australia all differed to a lesser or greater extent as to the statutory procedures whereby the equitable jurisdiction was conferred on the Supreme Courts, but the final result as evidenced today is an Australian equitable jurisdiction comparable with that of the Lord High Chancellor of England at the time of the Judicature Act in 1873.[49] The Judicature Act divided the new High Court in England into five divisions including Chancery. The general jurisdiction of the new High Court in England at the time was “broadly speaking, unrestricted and unlimited in all matters of substantive law...except...that has been taken away in unequivocal terms by statutory enactment”.[50] The general jurisdiction of the High Court “includes the exercise of an inherent jurisdiction”.[51] The permanent transfer to the Court of Chancery and subsequently to the Supreme Courts of Australia allows the justice in question to be “not retributive justice but justice as between the persons (including the general public) interested in a company’s affairs”.[52] Justice and equity “are referred to herein as one criterion, not two criteria” requiring “balancing all the conflicting claims, giving proper weight to each consideration of right, duty and fairness brought forward by the parties”.[53]
Australian Applications of Inherent Equitable Jurisdiction
Inherent jurisdiction can co-exist with and complement the statutory provisions. For example, in an application for an examination summons under s 596A the Court has no jurisdiction to set aside the summons as an abuse of process if all the requirements of s 596A were met.[54] The Court could stay proceedings in the inherent jurisdiction if ‘the predominant purpose of the applicant is an improper purpose’.[55] Also an application to wind up a company can be stayed by a Court utilising the inherent jurisdiction.[56]
In compulsory winding up, the courts in Australia recognise that the Corporations Act is not a Code that has dealt with all aspects of winding up. For example the liquidator in a compulsory winding up can apply for directions under s 479 (3) or the inherent jurisdiction for directions concerning particular matters.[57] It has been explained that ‘The court’s power to grant an injunction restraining the filing and advertising of winding - up proceedings flows from its inherent jurisdiction to prevent an abuse of process, which has survived the statutory code enacted in the present version of Pt 5.4’.[58]
The Supreme Court of New South Wales recognises that the inherent jurisdiction of the Court has survived the passing of the Corporations Act 2001 (Cth).[59]

Winding Up On the Just and Equitable Ground

Prior to the Winding Up Acts of 1844 in the United Kingdom, companies were “treated in theory and practice as nothing more than enlarged partnerships” and the law of partnership applied.[60] It has been suggested that the words ‘just and equitable’ had not been used in the courts or texts as a ground of dissolving a partnership until the passing of the Partnership Act 1890 (UK).[61] However, the common law had developed a concept that was “no narrower” than the statutory concept of ‘just and equitable” and no reported case in partnership exists of a restrictive use of the statutory concept of just and equitable.[62] Accordingly the just and equitable ground was exercised by the Courts prior to statute intruding if not in name, certainly in effect and seemingly very broadly.[63] The first statutory reference to the just and equitable ground of winding up of companies appeared in paragraph 5 (8) of the Joint Stock Companies Winding – up Act 1848 (UK): “Or if any other matter or thing shall be shewn which in the opinion of the Court shall render it just and equitable that the company should be dissolved”.[64]
This was given limited application by the courts initially as being restricted to applying only to insolvent companies[65] due to shared jurisdiction with the Court of Bankruptcy.[66] This restricted operation was alleviated by “paragraph 79 (5) of the Companies Act 1862 (UK) when the entire winding up jurisdiction was permanently transferred to Chancery”.[67] The previous restricted operation to ejusdem generis construction of the enumerated grounds by which the Court could order a winding up on the just and equitable ground was replaced by the “ability of the Court to have regard to the established principles of courts of equity”.[68] While impossible to ‘enumerate all the situations a court will wind up on this ground’[69] there are five broad situations the court will wind up on this ground pursuant to the Act:[70]

• Company fraudulent in inception
• Impossibility of carrying on business for which formed
• Unable to carry on business
• Fraud, misconduct or oppression in control or management
• A company in the nature of a partnership whose members are unable to cooperate

Indeed, the Act itself has been interpreted very broadly “to give the courts a very wide discretion”.[71] In fact ‘there is a tendency to argue that the jurisdiction conferred by
s 461 (1) (k) is completely unfettered’.[72] However, there are limits and ‘The courts will not order winding up if the company is solvent and the applicant is either acting unreasonably or has some other available remedy.[73] The just and equitable ground may be ‘an equitable supplement to the common law principles that apply to company law’.[74] Accordingly as the Act does not deal with the winding up of all companies the equitable just and equitable ground is available to potentially apply to those companies not dealt with by the Act.
V THE PLENARY POWER OF THE SUPREME COURT OF NEW SOUTH WALES
The statutory plenary power given to the Court pursuant to section 23 of the Supreme Court Act 1970 (NSW) is termed: “The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales”. The Australian High Court has recently confirmed that section 23 is arguably the “source of the jurisdiction, and the necessary powers, of the Supreme Court of New South Wales is, after 1970, s23 of the Supreme Court Act, other Acts and implications found there and not inherent jurisdiction and powers”(emphasis added).[75] Chief Justice in Equity, Young unambiguously proclaimed in Re Botar – Tatham “ I remain of the view that in a situation where there is no practical alternative the court, at least in New South Wales under s23 of the Supreme Court Act 1970 has inherent power to wind up a company sua sponte. However, this is a power to be used sparingly” (emphasis added).[76] His Honour has, with respect, gone well beyond mere questions of procedure and is proclaiming a power pursuant to the Court’s own motion to wind up a company.[77] While this may seem startling on first blush, it is submitted that the plenary power provided by section 23 may be a “freestanding statutory power”[78] that is distinct from any equitable jurisdiction, inherent or otherwise.[79] Justice Young has also relied upon section 23 in allowing analogous treatment of companies not covered by statute in Re Aldex.[80] The Western Ausralian Supreme Court has accepted that Justice Young’s approach was correct in Re Aldex[81] while noting that the Western Australian Supreme Court did not possess the plenary power section 23 afforded New South Wales.[82] Very recently, the New South Wales Supreme Court has cautioned against section 23 being used as a source of “power” to make an order sought as opposed to the “jurisdiction”: “Power is not coextensive with jurisdiction”.[83] This paper considers section 23, the jurisdictional trigger that allows the Court to deal with companies not covered by the Act and the writer respectfully agrees with Justice Simpson on that point accordingly.

VI AUSTRALIAN CASE LAW
There has been some case law surrounding this matter and the following section seeks to review and analyse these cases. Re Kalblue Pty Ltd[84] is the first reported Australian case that dealt with the question of whether the inherent power of the Court to wind up a company survived a statutory power to wind up. Arguably the ratio can be restricted to companies within the compass of the Act. Justice Barrett believes so.[85] This case dealt with legislation in New South Wales as a predecessor to the Corporations Act 2001 (Cth).[86] His Honour commented there was an inherent power in the Court to wind up a company ‘when it is just and equitable to do so’[87] that survived the intrusion of statute in situations where the statute did not cover the particular company.[88] His Honour also found that in the alternative Section 23 of the Supreme Court Act 1970 (NSW) gave the Supreme Court the necessary power to ‘complement and fill up the gap in the then Corporations Law and of its own motion appoint a liquidator to wind up the company under the Corporations Law if that is necessary to produce a just result’.[89] The result seems to be that Young J utilised the inherent jurisdiction or alternatively the plenary power of the Supreme Court to appoint a liquidator on the motion of the Court. This was done because the applicant was not a person with sufficient standing under the statute to apply to have a liquidator appointed.[90] His Honour’s reasoned that “if the whole of Part 5.4A was a code, the situation would be one where the court could not do justice to the community”.[91] One difficulty with this is (with all due respect) approaching the conclusion by an irrelevant consideration: should the legislature have allowed a lacuna in a code to arise then the legislature should amend the code to remove the lacuna. In fact this is the basis of Barrett J’s subsequent criticism of Re Kalblue Pty Ltd that companies created by statute may only be dissolved by statute.[92] The preferable approach may have been to focus on the otherwise sound reasons for finding as a conclusion that the statute was not a code in relation to winding up and appointing a liquidator instead of buttressing the conclusion in this manner and inviting criticism.
Subsequently Lunn v Cardiff Coal Company[93] directly considered an application pursuant to the inherent jurisdiction to wind up a solvent joint stock company incorporated by NSW statute and the effect of the Corporations Act 2001 (Cth) on any such inherent jurisdiction. His Honour did not specifically find the Act is a code for the winding up of companies.[94] Interestingly, His Honour found that if the company was a ‘Part 5.7 body’ and accordingly covered by the Act ‘it may be accepted that a case has been made out for the winding up of Cardiff Coal Co on the ground that it is just and equitable’ to do so.[95] After examining the Act in detail and discussing whether Cardiff Coal Co could be classed as a ‘Part 5.7 body’ the conclusion was reached that Act did not apply to the company.[96] Accordingly, Section 583 of the Act ‘cannot be invoked as a basis for the making of a winding up order’ in these circumstances.[97] His Honour made the point that the Act does not intend to cover all companies and specifically in this particular case this included ‘State and Territory bodies territorially confined to their jurisdiction of origin’.[98] However, the Act is not as comprehensive as the previous New South Wales legislation that allowed for the winding up of any incorporated or unincorporated body having more than five members.[99] His Honour has displayed, it is submitted, that the Act can not be a code and is not as comprehensive as the previous legislation. His Honour, however avoids the possibility of inherent jurisdiction filling any lacuna when ‘parliament has caused such a company or body of proprietors to be incorporated as one body politic and corporate’[100] by further stating ‘a new and separate bond is superimposed by the legislature and it is for the legislature alone to provide the means of putting an end to the perpetual succession it thereby creates’.[101] His Honour repeats this theory in a subsequent case.[102] This is the key point within this judgment; His Honour’s judgment does not refer to the plenary power pursuant to the Supreme Court Act 1970 (NSW). Resort to statute would have accordingly been available, but was not referred to by Justice Barrett in the judgment. Justice Young had no such reservations as discussed above.[103] Justice Barrett cited Clements v Bowes [104] as authority for equitable jurisdiction surviving despite ‘the enactment of the original winding up acts of the 1840’s’ [105]. His Honour limited the availability of equitable jurisdiction to unincorporated bodies/companies.[106] An examination of Clements v Bowes does not limit the ratio so narrowly: Kindersley V.C was confronted by an equitable action for account in the circumstances where statute (the Winding Up Acts) was an alternative source of the purely equitable remedy that was sought.[107] The defendant’s argument was basically that parliament had provided a remedy and accordingly equitable remedies were not available.[108] The plaintiff conceded the Winding Up Acts applied however claimed the traditional equitable remedies remained a separate source.[109] Kindersley V. C agreed with the plaintiff “To oust the jurisdiction of the Court of Chancery in such a case the legislature should have so declared it...an act giving further relief does not by that oust...the court of equity, without express terms being used to put an end to the jurisdiction, which is inherent in the Court” (emphasis added).[110] The Court also makes the point that “the real question is whether the legislature, in providing a remedy under this act has excluded the equitable remedy” (emphasis added).[111] With the greatest respect to Justice Barrett this case is not authority for the decision reached and it is submitted, this case is authority for the complexity surrounding deciding whether the legislature has ‘covered the field’ sufficiently to oust the inherent jurisdiction. The existence of a statute is merely a starting point in that process; careful historical examination is required to ascertain the extent inherent jurisdiction remains available for use. Justice Barrett distinguishes Re Kalblue Pty Ltd [112] from the instant case on the basis that Justice Young made an order regarding a ‘body’ that was clearly in the ‘contemplation’ of the legislation in comparison to Justice Barrett’s finding that the ‘body’ in the instant case was not covered by the statute.[113] No direct criticism is made of Justice Young’s resort to inherent jurisdiction and ‘Whether or not that decision is correct... it has no bearing on the present case’.[114] His Honour also notes Re Kalblue Pty Ltd[115] was not followed in Western Interstate v Deputy Federal Commissioner of Taxation[116].
The Western Interstate case dealt with the application by the Federal Commissioner of Taxation (“the Commissioner”) to wind up a company and resisted on the basis that the Commissioner did not have sufficient standing as one of the entitled persons under the relevant legislation.[117] The Applicant relied on Re Kalblue Pty Ltd[118] and Bredmeyer M limited the ratio of that case to the winding up under the Court’s inherent power on application of a person who did not have standing under the statute,[119] and the reliance upon the plenary power of the Supreme Court of New South as an alternative source by Justice Young is not discussed. This may be simply because the applicant relied upon inherent jurisdiction solely and not the plenary power of the Supreme Court as an alternative source of jurisdiction to allow the order for winding up to be made. Of course, given the possible lack of a plenary power in Western Australia[120] , the applicant may have perceived futility in an approach based on plenary power in that state. This case’s ratio is strictly in terms of whether a person not captured by the legislation has standing to apply for winding up of a company and Master Bredmeyer stated ‘I consider...the court has no inherent power to wind up a company on the application of a person who is not qualified’ (emphasis added).[121]
Finally reference should be made to Re Botar – Tatham Pty Ltd [122] where His Honour Chief Justice Young took the opportunity to explain several important aspects of his earlier judgment in Re Kalblue Pty Ltd[123] by stating that ‘In Re Kalblue I held there was an inherent power in the court to wind up companies where it was just and equitable to do so...I went as far as to say the court could of its own motion appoint a liquidator to wind up...under the general law but perhaps in view of the restructuring of the Corporations Law I may have to reconsider it’ (emphasis added).[124] His Honour went on to say ‘I remain of the view that in a situation where there is no practical alternative the court, at least in New South Wales under s 23 of the Supreme Court Act 1970 has inherent power to wind up a company sua sponte’.[125] His Honour immediately qualifies and limits this declaration of supreme power ‘However, this is a power to be used sparingly’.[126] His Honour does eventually order the company be wound up and a liquidator appointed.[127] His Honour’s concept of the Court possessing such supreme power was repeated when sitting in the New South Wales Court of Appeal: ‘if all else fails they can draw the attention of the Court to the plight of the company and the Court may, in exceptional cases, wind companies up sua sponte’.[128] The other two constituents of the particular Court of Appeal did not specifically or generally question this analysis by His Honour and simply stated: ‘I agree with the Orders...and generally with his reasons’;[129] ‘I agree generally with his reasons’[130] and ‘I agree with orders of Young Chief Justice in Equity’.[131] These comments of Chief Justice Young were possibly obiter in this particular case where the subject matter was excusing directors, as well as dealing with judicial advice and trusts. However, a reading of the case displays no detectable criticism from the two very influential judges toward His Honour’s comments.

VII CONCLUSIONS

It is submitted this paper displays that Justice Young’s decision in Re Kalblue[132] has been too narrowly limited judicially as an ‘authority’ for the ability of the Court to order a winding up pursuant to the inherent jurisdiction only. As yet, neither the Australian High Court nor an intermediate appellate court[133], has ruled definitively on the interaction of the plenary power of the Court and the inherent jurisdiction of the Court to allow the Court both the jurisdiction and the power to order companies not covered by the Corporations Act to be wound up.

Regardless of the cogency of the criticism of Re Kalblue[134] there are strong reasons to believe Justice Young’s approach in that case, as explained further by His Honour in Re Botar – Tatham[135], is the correct approach. This endorsement is respectfully qualified: the plenary power and inherent jurisdiction should both be utilised and perhaps not by reference to the plenary power of the Court as the source of the actual remedy but as the jurisdictional trigger. Perhaps Justice Young’s decision (as he then was) in Re Kalblue[136] may have the same effect on the law of company liquidation as Justice Callinan’s observation on the effect of ingenious and adventurous counsel on the common law: “The truth is that the common law has often owed its development to, and has benefited from, the adventurousness and ingenuity of counsel”.[137]

The plenary power of the court could conceivably be utilised to firstly attract the jurisdiction of the Court and allow the inherent jurisdiction of the Court to utilise the just and equitable ground to consider and make an order if appropriate to wind up a company not captured within the ambit of the Corporations Act. Such an approach would accord with established equitable principles and would be a practical approach to infrequently posed questions. The broader importance of this paper is that inherent jurisdiction of the Court and the plenary power of the Court remain available in corporations matters more generally although the specific application of those principles apart from the winding up of companies is beyond the scope of this paper.

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[1] LL.B (Hons) (Qld); Grad Dip Leg Prac (NSW); LL.M student and sessional academic QUT Brisbane; Barrister, Queensland Bar.
[2] Corporations Law (NSW).
[3] Re Kalblue Pty Ltd (1994) 12 ACLC 1057 at 1058.
[4] Re Kalblue Pty Ltd (1994) 12 ACLC 1057 at 1058.
[5] Re Kalblue Pty Ltd (1994) 12 ACLC 1057.
[6] Butterworths, Fords Principles of Corporation Law, vol 1 (at 67); Butterworths, Australian Corporations Law Principles and Practice, vol 2.
[7] Thomson Reuters Legal Online, Gronow M and Mason R., McPhersons Law of Company Liquidation, Electronic.
[8] Lunn v Cardiff Coal Company [2002] NSWSC 1247; (2002) 171 FLR 430.
[9] Chahwan v Euphoric Pty Ltd T/as Clay & Michel and Another [2008] NSWCA 52; (2008) 245 ALR 780.
[10] Chahwan v Euphoric Pty Ltd T/as Clay & Michel and Another [2008] NSWCA 52; (2008) 245 ALR 780 at 808.
[11] Corporations Act 2001 (Cth) s 513: winding up in the Act applies to companies in insolvency, by the Court or voluntarily.
[12]Gronow and Mason, above n 7, Introduction, ‘Outline of present legislative scheme’ [1.450] at 9 November 2009.
[13] Ibid.
[14] Corporations Act 2001 (Cth) s 1137B.
[15] Wendy Lacey, ‘Inherent Jurisdiction, Judicial Power and Implied Guarantees Under Chapter III of the Constitution’ [2003] FedLawRw 2; (2003) 31 (1) Federal Law Review 57, 60-61; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256, 296 (Kirby J).
[16] Nilant & Anor [2004] WASC 7 (Unreported, Barker J, 23 January 2004) [53].
[17] Corporations Act 2001 (Cth) s 1137B (5).
[18] Phillip Lipton and Abe Herzberg, Understanding Company Law (first published 1984, 11th ed 2003) 4.
[19] Corporations Act 2001 (Cth) s 5E (1).
[20] Corporations Act 2001 (Cth) s 5E (4).
[21] Lipton and Herzberg, above n 18, 11; Corporations Act 2001 (Cth) s 3.
[22] Ibid 12.
[23] Corporations Act 2001 (Cth) s5C.
[24] John Pyke and Alastair MacAdam, Legal Institutions and Method ( first published 2001, 3rd ed 2007) 118.
[25] Acts Interpretation Act 1901 (Cth) s13 (3).
[26] Acts Interpretation Act 1901 (Cth) s15AB (2) (a).
[27] Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256, 296 (Kirby J).
[28] Lacey, above n 15, 64; I H Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) 23 Current Legal Problems 23, 51; Paul de Jersey, ‘The Inherent Jurisdiction of the Supreme Court’ (1985) 15 Queensland Law Society Journal 325, 326-327.
[29] Lacey, above n 15, 61.
[30] M S Dockray, ‘The Inherent Jurisdiction to Regulate Civil Proceedings’, (1997) 113 Law Quarterly Review 120, 122.
[31] Supreme Court Act 1995 (Qld) s 200; Supreme Court Act 1970 (NSW) ss 22-24; Supreme Court Act 1986 (Vic) s 10; Supreme Court Act 1935 (WA) s16; Supreme Court Act 1935 (SA) s6; for Tasmania see Supreme Court Act 1856 (TAS) s2; Supreme Court Act 1887 (TAS) s9; Criminal Code Act 1924 (TAS) s400(3); Australian Courts Act 1828 (Imp) 9 Geo 4, c 83.
[32] Lacey, above n 15, 61.
[33] See the discussion in this paper below.
[34] See the discussion in this paper generally.
[35] Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256, 296 (Kirby J).
[36] Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256, 297 (Kirby J).
[37] Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256, 297 (Kirby J).
[38] Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 136 (Toohey J); Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256, 263 (Gleeson CJ, Gummow, Hayne and Crennan JJ).
[39] Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 136 (Toohey J).
[40] Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 590 (Gleeson CJ, Gaudron and Gummow JJ).
[41] R P Meagher, J D Heydon and M J Leeming, Meagher Gummow & Lehane’s Equity Doctrines & Remedies ( first published 1975, 4th ed 2002, ) 3.
[42] Gino Dal Pont, ‘Judgments Fraudulently Obtained: The Forgotten Equity’[1995] UTasLawRw 11; , (1995) 14 (2) University of Tasmania Law Review 129, 131.
[43] Ray Mulholland, ‘Priority Between Unregistered Mortgages’, (2008) July New Zealand Law Journal 247, 249.
[44] Meagher, Heydon and Leeming, above n 41, 3
[45] Ibid.
[46] Ibid 8.
[47] Ibid 9; Companies Act 1862 (UK) (25 & 26 Vict c 80) s81.
[48] Meagher, Heydon and Leeming, above n 41, 10.
[49] Ibid 11 – 23; The Judicature Act 1873 (UK) (36 & 37 Vict c 66).
[50] Jacob, above n 28, 24. However, note there is an argument that important differences existed between the separate courts and that in effect the abolition of the Court of Chancery in 1873 abolished the equitable jurisdiction that had existed to that point and accordingly the reception into New South Wales of the ‘inherent jurisdiction’ is really dependent on the statutes and no reference should be made to the previous English courts when assessing the current inherent jurisdiction: R W White, ‘Equitable Obligations in Private International Law: The Choice of Law’ [1986] SydLawRw 6; (1986) 11 (1) Sydney Law Review 92, 106.
[51] Jacob, above n 28, 24.
[52] F H Callaway, The Just and Equitable Ground (1978) 5.
[53] Ibid.
[54] Gronow and Mason, above n 7, Investigations, examinations, prosecutions and civil or pecuniary penalty orders, ‘Requirements for obtaining examination summons’ [15.150] at 9 November 2009.
[55] Ibid; Carter v Gartner; Re Gartner Wines [2003] FCA 653; (2003) 130 FCR 99 at 108 per Branson J. Here in the Federal Court it was suggested the inherent jurisdiction was ‘better described as implied jurisdiction’.
[56] Gronow and Mason, above n 7, Creditor’s application for a winding – up order, ‘Application for a stay of the winding – up application’ [3.1020] at 9 November 2009; Re Obie Pty Ltd (No 1) (1983) 8 ACLR 439; Mc Donald v Favelle (1998) 28 ACSR 432 at 437.
[57] Gronow and Mason, above n 7, The Liquidator: status, role, functions, powers and duties, ‘Directions in compulsory winding - up’ [8.1610] at 9 November 2009.
[58] Gronow and Mason, above n 7, Creditor’s application for a winding – up order, ‘Injunctions restraining filing or advertising winding – up applications’ [3.800] at 9 November 2009.
[59] Redglove Holdings Pty Ltd v GNE & Associates Pty Ltd [2001] NSWSC 867; (2001) 165 FLR 72 at 73 per Palmer J.
[60] J Donovan, McPherson’s The Law of Company Liquidation (first published 1968, 3rd ed, 1987) 10; Rosalind Mason, ‘ Local Proceedings in a Multi – State Liquidation: Issues of Jurisdiction’ (2006) (30) 1 Melbourne University Law Review 145, 158 -159; United Kingdom, Parliamentary Debates, House of Lords, 10 February 1859, vol 152 cc 215-9, 216, Lord Chancellor.
[61] Foreward by K A Aickin, x in: Callaway, above n 52.
[62] Ibid.
[63] Ibid.
[64] Callaway, above n 52, 2-3.
[65] Ibid 2.
[66] Ibid.
[67] Ibid.
[68] Ibid 6.
[69] Gronow and Mason, above n 7, Contributories’ winding – up applications, ‘General nature of ground’ [4.225] at 9 November 2009.
[70] Ibid.
[71] Jankar v Dellmain & Ors [2009] NSWSC 766 (Unreported, Slattery J, 4 September 2009); Ebrahimi v Westbourne Galleries Limited (1973) AC 360; Booker v You Run The Business Pty Ltd [2008] FCA 1762 (Unreported, Finkelstein J, 24 November 2008); Johnny Ocean’s Restaurant Pty Ltd v Page [2003] NSWSC 952 (Unreported, Palmer J, 16 October 2003).
[72] Gronow and Mason, above n 7, Contributories’ winding – up applications, ‘General nature of ground’ [4.225] at 9 November 2009.
[73] Ibid.
[74] Ibid.
[75] Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256, 298 (Kirby J).
[76] Re Botar – Tatham Pty Ltd [2001] NSWSC 613; (2001) 52 NSWLR 680, 683.
[77] “sua sponte” : “of one’s own free will”; “voluntarily” from Butterworths, Concise Australian Legal Dictionary (first published 1998, 2nd ed 1999) 406.
[78] Nilant & Anor [2004] WASC 7 (Unreported, Barker J, 23 January 2004) [53].
[79] Nilant & Anor [2004] WASC 7 (Unreported, Barker J, 23 January 2004) [53].
[80] Re Aldex Distributors Pty Ltd; Ex parte Butterell (1994) 12 ACLC 489.
[81] Re Aldex Distributors Pty Ltd; Ex parte Butterell (1994) 12 ACLC 489.
[82] Nilant & Anor [2004] WASC 7 (Unreported, Barker J, 23 January 2004) [53].
[83] Gerard Michael McGuirk v The University of New South Wales [2009] NSWSC 253 (Unreported, Simpson J, 7 April 2009) [87].
[84] (1994) 12 ACLC 1057: New South Wales Supreme Court Young J
[85] See discussion in this paper below.
[86] Corporations Law (NSW).
[87] Re Kalblue Pty Ltd (1994) 12 ACLC 1057 at 1058.
[88] Re Kalblue Pty Ltd (1994) 12 ACLC 1057 at 1058.
[89] Re Kalblue Pty Ltd (1994) 12 ACLC 1057 at 1058.
[90] Re Kalblue Pty Ltd (1994) 12 ACLC 1057 at 1058.
[91] Re Kalblue Pty Ltd (1994) 12 ACLC 1057 at 1058.
[92] Lunn v Cardiff Coal Company [2002] NSWSC 1247; (2002) 171 FLR 430 at 436.
[93] [2002] NSWSC 1247; (2002) 171 FLR 430; (also see Lunn v Cardiff Coal Company (No. 2) [2003] NSWSC 25; (2003) 173 FLR 63): Supreme Court of New South Wales Barrett J.
[94] Lunn v Cardiff Coal Company [2002] NSWSC 1247; (2002) 171 FLR 430.
[95] Lunn v Cardiff Coal Company [2002] NSWSC 1247; (2002) 171 FLR 430 at 432.
[96] Lunn v Cardiff Coal Company [2002] NSWSC 1247; (2002) 171 FLR 430 at 435.
[97] Lunn v Cardiff Coal Company [2002] NSWSC 1247; (2002) 171 FLR 430 at 435.
[98] Lunn v Cardiff Coal Company [2002] NSWSC 1247; (2002) 171 FLR 430 at 435.
[99] Lunn v Cardiff Coal Company [2002] NSWSC 1247; (2002) 171 FLR 430 at 435: Companies (New South Wales) Code.
[100] Lunn v Cardiff Coal Company [2002] NSWSC 1247; (2002) 171 FLR 430 at 436.
[101] Lunn v Cardiff Coal Company [2002] NSWSC 1247; (2002) 171 FLR 430 at 436.
[102] Re Bankstown Community Childcare Inc [2008] NSWSC 173 (Unreported, Barrett J, 5 March 2008) [4]; University of Newcastle Union Ltd [2008] NSWSC 1361 (Unreported, Barrett J, December 2008) [16]; Lunn v Cardiff Coal Company No. 2 [2003] NSWSC 25; (2003) 173 FLR 63 at 71.
[103] Re Kalblue Pty Ltd (1994) 12 ACLC 1057.
[104] (1852) 21 LJ Ch 306.
[105] Lunn v Cardiff Coal Company [2002] NSWSC 1247; (2002) 171 FLR 430 at 436.
[106] Lunn v Cardiff Coal Company [2002] NSWSC 1247; (2002) 171 FLR 430 at 436.
[107] Clements v Bowes (1852) 21 LJ Ch 306 at 308.
[108] Clements v Bowes (1852) 21 LJ Ch 306 at 308.
[109] Clements v Bowes (1852) 21 LJ Ch 306 at 308.
[110] Clements v Bowes (1852) 21 LJ Ch 306 at 310.
[111] Clements v Bowes (1852) 21 LJ Ch 306 at 310.
[112] (1994) 12 ACLC 1057.
[113] Lunn v Cardiff Coal Company [2002] NSWSC 1247; (2002) 171 FLR 430 at 437.
[114] Lunn v Cardiff Coal Company [2002] NSWSC 1247; (2002) 171 FLR 430 at 437.
[115] (1994) 12 ACLC 1057.
[116] (1995) 13 WAR 479 Supreme Court of Western Australia per Master Bredmeyer .
[117] Western Interstate v Deputy Federal Commissioner of Taxation (1995) 13 WAR 479 at 479: Corporations Law (WA).
[118] (1994) 12 ACLC 1057.
[119] Western Interstate v Deputy Federal Commissioner of Taxation (1995) 13 WAR 479 at 480.
[120] Nilant & Anor [2004] WASC 7 (Unreported, Barker J, 23 January 2004) [53].
[121] Western Interstate v Deputy Federal Commissioner of Taxation (1995) 13 WAR 479 at 480.
[122] [2001] NSWSC 613; (2001) 52 NSWLR 680: Supreme Court of New South Wales Chief Justice in Equity Young.
[123] (1994) 12 ACLC 1057.
[124] Re Botar – Tatham Pty Ltd [2001] NSWSC 613; (2001) 52 NSWLR 680 at 683.
[125] Re Botar – Tatham Pty Ltd [2001] NSWSC 613; (2001) 52 NSWLR 680 at 683.
[126] Re Botar – Tatham Pty Ltd [2001] NSWSC 613; (2001) 52 NSWLR 680 at 683.
[127] Re Botar – Tatham Pty Ltd [2001] NSWSC 613; (2001) 52 NSWLR 680 at 683.
[128] Edwards v Attorney General & Anor [2004] NSWCA 272 at [63] per Young Chief Justice in Equity.
[129] Edwards v Attorney General & Anor [2004] NSWCA 272 at [31] per Mason P.
[130] Edwards v Attorney General & Anor [2004] NSWCA 272 at [1] per Spigelman CJ.
[131] Edwards v Attorney General & Anor [2004] NSWCA 272 at [29] per Spigelman CJ.
[132] Re Kalblue Pty Ltd (1994) 12 ACLC 1057.
[133] ASC v Marlborough Gold Mines Ltd (1993) 11 ACLC 370.
[134] Re Kalblue Pty Ltd (1994) 12 ACLC 1057.
[135] Re Botar – Tatham Pty Ltd [2001] NSWSC 613; (2001) 52 NSWLR 680.
[136] Re Kalblue Pty Ltd (1994) 12 ACLC 1057.
[137] Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256, 320 (Callinan J).