Campbell v Kitchen and Sons Ltd and Brisbane Soap Co Ltd [1910] HCA 23

"High Court from this judgment, Isaacs and Higgins JJ.

Leave was given to C., who, by himseli or his nominees, held the other "half of the shares in the B. company, to appeal on behalf of himself and all other members of the B. company.

Leave granted to appeal from the decision of the Supreme Court of Queens- "land: Kitchen & Sons Ltd. v. Brisbane Soap Oo., 1910 St. R. Qd., 301.

PPLICATION for leave to institute and carry on an appeal to the igh Court.

_ An action was brought in the Supreme Court of Queensland J. Kitchen & Sons Ltd. against the Brisbane Soap Co. Ltd., hhe nature of which is not material to this report. Judgment in the action was given for the plaintiffs. (Kitchen & Sons Ltd. v. Brisbane Soap Co. Ltd. (1) ). It appeared that the plaintiff company were by themselves, or their nominees, holders of one- (1) 1910 St. R. Qa., 301.

CAMPBELL Py Kironen & Sons Lrp. AND BrisBaNE Soap Co. Lop.

half of the shares in the defendant company, and the other was held by Peter Morrison Campbell by himself or hi nominees. There were two directors of the defendant comp: viz., P. M. Campbell and one John Clark Donaldson, who repr sented the plaintiff company. Campbell wished that the d dant company should appeal from the judgment to the Court, but Donaldson was opposed to that course being taken.

An application was now made by Campbell for leave to ii tute and carry on an appeal to the High Court in the name the Brisbane Soap Co.

Hart, for the applicant. [The following authorities were referred to during argumen' Foss vy. Harbottle (1); Connolly v. Macartney (2); Mason Harris (3); Buckley on Companies, 8th ed. p. 548; Burlan v. Earle (4); Gray v. Lewis (5); Wallworth v. Holt (6); Meni v. Hooper's Telegraph Works (7); Fraser v. Cooper, Hall & Co. ('

Grirrita C.J. This is a case in which judgment was giv in the Supreme Court of Queensland in an action betwee parties involving an amount over £300. This Court has juri tion to entertain an appeal from that judgment, but, owing the curious circumstances of the case, it cannot be' institut because those who would be respondents have an equal voice in the company which would be appellants. Under these cireum stances there must be some remedy, and I think we ought apply the analogy of the practice of the Court of Chancery, which is now adopted by the Supreme Court of Judicature, and - give leave to some person who is substantially interested to come in and institute the appeal. I therefore think that leave shoul be given to the applicant to appeal from the judgment on bel of himself and all other members of the defendant company. course the defendant company must be made a respondent.

the judgment is to be regarded as being interlocutory, the lea we now give will cover that also.

(1) 2 Ha., 461. (5) L.R. 8 Oh., 1035. Q 7C.L. (6) 4 My. & C, 619. @) 10 (7) LR. 9 Ch., 350. (4) (1902) A.C., 83. (8) 21 Ch. D., 718.

ee : Kircuen & ans J. I cordially concur in giving leave to the applicant 'sons Lrp. AND

appeal, but I think the form of the order, giving leave to 5 .touane appeal on behalf of all other members of the company, even See ts those who oppose him, may lead to complications and expense.

_ KITCHEN & SONS LIMITED AND ie BANE SOAP COMPANY LIMITED RESPONDENTS.

Agreement - Del credere Agent - Indemnity - Trade Usage - Discount - Mistake of H.C. or A. Fact - Mistake of Law - Settled Account - Leave to Appeal. 1910.

An action was brought by Kitchen & Sons Limited against The Brisbane

Soap Company Limited for a declaration of rights, for the return of moneys . alleged to have been paid under a mistake of fact and for accounts to ascer- tain the amount recoverable, The plaintiff company was formed in 1901 to acquire the business of a company called J. Kitchen & Sons and Apollo Candle Company. By an agreement made on 30th of June 1891 between J, 'Connor JJ.