swarb.co.uk - law index
These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.
Company - From: 1960 To: 1969
This page lists 39 cases, and was prepared on 14 January 2015.Lee -v- Lee’s Air Farming Limited  3 All ER 420
Commonwealth, Company, Employment
Mr Lee had formed a company, Lee's Air Farming Limited and held nearly all its shares. He was the managing director, but by profession a pilot. The company was formed to conduct an aerial top-dressing business. He appointed himself the chief pilot for the company. In the Court of Appeal of New Zealand, North J said: "These powers were moreover delegated to him for life and there remained with the company no power of management whatsoever. One of his first acts was to appoint himself the only pilot of the company, for, although article 33 foreshadowed this appointment, yet a contract could only spring into existence after the company had been incorporated. Therefore, he became in effect both employer and worker. True, the contract of employment was between himself and the company: see Booth v Helliwell, but on him lay the duty both of giving orders and obeying them. In our view, the two offices are clearly incompatible. There could exist no power of control and therefore the relationship of master-servant was not created." Held: Appeal allowed. "one person may function in dual capacities. " and "Ex facie there was a contract of service. . . . the real issue is whether the position of the deceased as sole governing director made it impossible for him to be the servant of the company in the capacity of chief pilot of the company. . . there was no such impossibility. There appears to be no greater difficulty in holding that a man acting in one capacity can give orders to himself in another capacity than there is in holding that a man acting in one capacity can make a contract with himself in another capacity. The company and the deceased were separate legal entities. The company had the right to decide what contracts for aerial top-dressing it would enter into. The deceased was the agent of the company in making the necessary decisions."
Barclays Bank Limited -v- Inland Revenue Commissioners; HL 1960 -  AC 509; (1960) 2 All ER 817
Unit Construction Co Ltd -v- Bullock; HL 1960 -  AC 455
Re Bugle Press Ltd; ChD 1961 -  Ch 270
Commercial Banking Co of Sydney Ltd -v- Mann  AC 1;  3 All ER 482
Viscount Simonds, Lord Reid, Lord Radcliffe, Lord Tucker and Lord Morris of Borth-y-Gest
Commonwealth, Company, Banking, Torts - Other
The respondent Mann practiced as a solicitor in partnership with Richardson. They kept a "trust account" in the partnership name with the Australian and New Zealand Bank in Sydney ("ANZ"). Under the partnership agreement, all assets belonged to Mann, but cheques might be drawn on the partnership bank account by either. Mann gave the necessary authority to ANZ. Richardson used that authority to draw cheques, inserting on each after the printed word "Pay", the words "Bank cheque favour H. Ward" or "Bank cheque H. Ward;". He also filed application forms for bank cheques in favour of H. Ward to a like amount, purporting to sign them on behalf of the firm. He took the documents to ANZ, which in each case debited the firm's account and issued a bank draft of an equal amount in the form "Pay H. Ward or bearer." He took the cheques to the appellant bank, and cashed them over the counter. The bank paid the cheques. He was fraudulent throughout; Ward was not a client of the partnership, nor had any client authorised the payment to him of any money held in the trust account. Mann sued the appellant bank for conversion of the bank cheques, or alternatively to recover the sums received by it from ANZ bank as money had and received to his use. He succeeded before the trial judge, whose decision was affirmed by the Court of Appeal of New South Wales. Held: The bank's appeal succeeded. Mann never obtained any title to the cheques, and he could not obtain title by ratifying the conduct of Richardson in obtaining the cheques from ANZ bank, without at the same time ratifying the dealings in the cheques by Ward and the appellant bank. Mann's claim for damages for conversion failed, and that his alternative claim for money had and received also failed. Where a partner in a firm wrongfully draws a cheque on the partnership account, the proceeds of the cheque are legally his.
Viscount Simonds said: "It is important to distinguish between what was Richardson's authority in relation on the one hand to the A.N.Z. bank and on the other to Mann. No question arises in these proceedings between Mann and the A.N.Z. bank. It is clear that Mann could not as between himself and the bank question Richardson's authority to draw cheques on the trust account. The position as between Mann and Richardson was different. Richardson had no authority, express or implied, from Mann either to draw cheques on the trust account or to obtain bank cheques in exchange for them except for the proper purposes of the partnership. If he exceeded those purposes, his act was unauthorised and open to challenge by Mann. It is in these circumstances that the question must be asked whether, as the judge held, the bank cheques were throughout the property of Mann. It is irrelevant to this question what was the relation between Richardson and Ward and whether the latter gave any consideration for the bank cheques that he received and at what stage Mann learned of the fraud that had been practised upon him. The proposition upon which the respondent founds his claim is simple enough: Richardson was his partner and in that capacity was able to draw upon the trust account and so to obtain from the bank its promissory notes: therefore the notes were the property of the partnership and belonged to Mann, and Richardson could not give a better title to a third party than he himself had."
Re Bugle Press Ltd  Ch 270
2 Jan 1961
Lord Evershed MR, Lord Justice Harman
Shareholders with over 90% of the issued shares sought to acquire the remaining shares, and create another company to do so. That company offered to purchase the shares at a valuation. The majority shareholders accepted but the minority shareholder refused. The new company gave notice to exercise the statutory power of compulsory acquisition under the section. The minority shareholder said that the transferee was not entitled to acquire his shares despite the approval of 9/10ths of the shareholder, and said the offer undervalued his shares. The majority did not file any evidence verifying their valuation. The court at first instance granted the declaration, saying the connection between the acquiring company and the majority shareholders was an exception. Held: Upholding the declaration, the constitution of the acquiring company and its connection with the majority shareholders rendered this a special case where the normal rule as to the burden of proof did not apply. ""But if the minority shareholder shows, as he shows here, that the offeror and the ninety per cent of the transferor company's shareholders are the same, then as it seems to me he has prima facie shown that the court ought to order otherwise, since if it should not so do the result would bethat the section has been used not for the purpose of any scheme or contract properly so called or contemplated by the section, but for the quite different purpose of enabling majority shareholders to expropriate or evict the minority" Lord Justice Harman:- "The minority shareholders advisers waived that objection also, and he having applied to the court under the section had, like any other applicant, to prove his case, that is to say to set up a case which the respondents had to answer. He did that quite simply by showing that the transferee company was nothing but a little hut built round his two co-shareholders, and that the so-called "scheme" was made by themselves as directors of that company with themselves as shareholders and the whole thing, therefore, is seen to be a hollow sham. It is then for the transferee company to show that nevertheless there is some good reason why the scheme should be allowed to go on. The transferee company, whether because the two members did not wish to go into the witness-box and be cross-examined or for some other reason, did not file any evidence at all; they merely purported to rely on a copy of a valuation said to have been made on their behalf by a firm of chartered accountants. That valuation was not sworn to, nobody has been able to cross-examine the authors of it and there was in my judgment no case in answer. The minority shareholder has nothing to knock down; he has only to shout and the walls of Jericho fall flat. I am surprised that it was thought that so elementary a device would receive the court's approval."
Companies Act 1948 209
Musselwhite -v- CH Musselwhite & Son Ltd; 1962 -  Ch 964
in Re William Hockley Ltd; ChD 1962 -  1 WLR 555
Independent Automatic Sales Ltd -v- Knowles and Foster; ChD 1962 -  1 WLR 974;  3 All ER 27
Parke -v- Daily News Ltd; 1962 -  Ch 927
Jones -v- Lipman and Another; ChD 1962 -  1 WLR 832;  1 All ER 442
Boulting -v- Association of Cinematograph, Television and Allied Technicians; CA 1963 -  2 QB 606
In re Overseas Aviation Engineering(GB) Ltd  I Ch 24
Lord Denning MR, Harman LJ
A charging order on land under section 35(1) of the 1956 Act obtained to enforce a judgment debt was a form of "execution" for the purposes of section 325 CA 1948. Lord Denning MR: "The word "execution" is not defined in the Act. It is, of course, a word familiar to lawyers. "Execution" means, quite simply, the process for enforcing or giving effect to the judgment of the court: and it is "completed" when the judgment creditor gets the money or other thing awarded to him by the judgment. That this is the meaning is seen by reference to that valuable old book Rastill Termes de la Ley, where it is stated: "Execution is, where Judgment is given in any Action, that the plaintiff shall recover the land, debt, or damages, as the case is; and when any Writ is awarded to put him in Possession, or to do any other thing whereby the plaintiff should the better be satisfied his debt or damages, that is called a writ of execution; and when he heath the possession of the land, or is paid the debt or damages, or heath the body of the defendant awarded to prison, then he heath execution." And the same meaning is to be found in Blackman v. Fysh, 3 Ch 209,217 (C.A.) when Kekewich J. said that execution means the "process of law for the enforcement of a judgment creditor's right and in order to give effect to that right." In cases when execution was had by means of a common law writ, such as fieri facias or elegit, it was legal execution: when it was had by means of an equitable remedy, such as the appointment of a receiver, then it was equitable execution. But in either case it was "execution" because it was the process for enforcing or giving effect to the judgment of the court."
Harman LJ: "Now what is execution but the enforcement of a judgment or order? In my judgment, the new remedy given by section 35 is merely an alternative method of execution against the debtor's land, replacing the old writ".
Administration of Justice Act 1956 35(1) - Companies Act 1948 325
Savoy Corp Ltd -v- Development Underwriting Ltd; 1963 - (1963) NSWR 138
NW Robbie & Co Ltd -v- Witney Warehouse  1 WLR 1324
A floating charge effects an equitable assignment of the charged asset to the security holder.
Thorby -v- Goldberg; 1964 - (1964) 112 CLR 597
Meekins -v- Henson; 1964 -  1 QB 472
Freeman & Lockyer -v- Buckhurst Park Properties; CA 1964 -  2 QB 480
Charles Forte Investments Ltd -v- Amanda; CA 1964 -  1 Ch 240;  2 All ER 940
Harrison-Broadley -v- Smith; CA 1964 -  1 WLR 456
Ridge Securities Ltd -v- Inland Revenue Commissions; ChD 1964 -  1 WLR 479
Heyting -v- Dupont  1 WLR 843
The plaintiff owned shares in a company registered in Jersey and created to make the most of an invention. The articles contained a deadlock provision. Held: This was “essentially a dispute between two discordant partners” There was a general exception to the rule in Foss v Harbottle where the interests of justice so required, and service out of the jurisdiction was allowed: “I dare say that the rule in Foss v. Harbottle is a conception as unfamiliar in the Channel Islands as is the Clameur de Haro in the jurisdiction of England and Wales. But clearly this is a matter of procedure to be decided according to the law of the forum.”
Wenlock -v- Moloney; CA 1965 -  1 WLR 1238
Noble -v- Noble; OHCS 1965 -  SLT 415
Broadway Approvals Ltd -v- Odhams Press Ltd (No 2)  1 WLR 805
Sellers, Davies and Russell L.JJ
Defamation, Damages, Company
A company's mind is not to be assessed on the totality of knowledge of its employees. Malice was not to be established by forensic imagination however eloquently and subtly expressed.
Russell LJ said: "the law of libel seems to have characteristics of such complication and subtlety that I wonder whether a jury on retiring can readily distinguish their heads from their heels."
Willis -v- Association of Universities of the British Commonwealth; CA 1965 -  1 QB 140;  2 All ER 393
Hogg -v- Cramphorn Limited; ChD 1966 -  3 All ER 420;  Ch 254
Noble -v- Noble Unreported, 26 January 1996
26 Jan 1966
Pathirana -v- Pathirana; PC 28-Jun-1966 -  1 AC 233;  3 WLR 666;  UKPC 14
in Re Resinoid and Mica Products Ltd; CA 1967 -  3 All ER 677
In Re Plymouth Breweries Ltd; 1967 - (1967) 111 SJ 715
R W Pathirana -v- A Pathirana  1 AC 233
Section 29 requires a partner to account to the partnership for any private benefit which he derives at the expense of the partnership, and this duty subsists after the dissolution of the partnership until the winding up is completed. An inalienable asset had been acquired by one partner in his own name but in account of the firm.
Partnership Act 18980 29
Selangor United Rubber Estates Ltd -v- Cradock (No 3); ChD 1968 -  1 WLR 1555;  2 All ER 1073
Re Saltdean Estates; 1968 -  1 WLR 583
Harlowe’s Nominees Pty Ltd -v- Woodside (Lakes Entrance) Oil Company No Liability (1968) 121 CLR 483
Hely-Hutchinson -v- Brayhead Ltd  1 QB 549
Directors are required to disclose their interests in contracts with the company: "'It is not contended that [the] section in itself affects the contract. The section merely creates a statutory duty of disclosure and imposes a fine for non-compliance. But it has to be read in conjunction with article . The first sentence of that article is obscure. If a director makes or is interested in a contract with the company, but fails duly to declare his interest, what happens to the contract? Is it void, or is it voidable at the option of the company, or is it still binding on both parties, or what? The article supplies no answer to these questions. I think the answer must be supplied by the general law, and the answer is that the contract is voidable at the option of the company, so that the company has a choice whether to affirm or avoid the contract, but the contract must be either totally affirmed or totally avoided and the right of avoidance will be lost if such time elapses or such events occur as to prevent rescission of the contract . . ."
Companies Act 1948 317
Barclays Bank Ltd -v- Quistclose Investments Ltd; etc; HL 31-Oct-1968 -  AC 567;  UKHL 4
Capital Finance -v- Stokes; 1969 -  1 Ch 261
In Re Duomatic Ltd; ChD 1969 -  2 Ch 365;  2 WLR 114;  1 All ER 161
|Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG.|