State Government Insurance Office (Q) v Rees

High Court of Australia|1979-07-01|Before: Aickin JJ, Gibbs J, Stephen J

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Aickin JJ. State Government Insurance Office (Q) v Rees [1979] HCA 52

My brother Mason, in his reasons for judgment in this appeal which I have had the advantage of reading, sets out the statutory provisions which will govern its result.

In my opinion, the appeal should be dismissed. My reason for holding that opinion is twofold: first, that the list of debts to be given priority which is found in s. 292 (1) of the Companies Act 1961 Q. appears to me to be designed by sub-par. (c) to protect a worker who has not been paid by his employer the compensation which the employer properly owed him under the relevant Workers' Compensation Act at the date of the winding up. Quite clearly, because of the structure of The Workers' Compensation Act 1916 Q., as amended (the Act), the company in this case as an employer was under no such liability for the payment for which the Act provided.

My second reason is that the exclusion from sub-par. (c), effected by s. 292(8)(a) of the Act, of the liability of an employer for workers' compensation who was covered in that respect by a policy of insurance, appears to me to indicate that the sub-par. (c) is confined to the case where the worker's only source of payment of workers' compensation is the employer. Workers' Compensation Acts generally provide for a right over in the worker against an insurance company where there is a contract of insurance for liability to pay workers' compensation. It seems to me quite reasonable that if the worker has a right to obtain payment of his compensation otherwise than from the employer, which is in liquidation, any debt for workers' compensation due by that employer should not be given priority as against other creditors.

I do not think that the undoubted width of the words "in respect of" is sufficient to overcome the consequence of these two grounds.

I would accordingly agree that the appeal be dismissed.

I would dismiss this appeal for the reasons expressed by my brother Mason with which I am in agreement.

A large Queensland employer, K. D. Morris & Sons Pty. Ltd., failed for a considerable period to pay premiums due to the State Government Insurance Office (Queensland) in respect of an accident policy issued under The Workers' Compensation Act 1916 Q., as amended. Then, in February 1975, this employer company was ordered to be wound up.

Meanwhile the S.G.I.O. had paid to this company's workers or their dependants over a quarter of a million dollars in workers' compensation payments during the period while the company was in default of payment of premiums. This amount the S.G.I.O. is, under the Act, entitled to recover from the company and it has proved for it in the winding up.

By s. 292 (1) (c) of the Companies Act 1961 Q. priority in payment in a winding up is accorded to "fifthly, all amounts not exceeding in any particular case one thousand pounds due in respect of workers' compensation under any law relating to workers' compensation accrued before the relevant date". The S.G.I.O. asserts that this amount for which it has proved is entitled to that priority and it obtained a declaration to that effect in the Supreme Court of Queensland. This was reversed on appeal to the Full Court, from whence the present appeal comes.

The correctness of the S.G.I.O.'s claim depends upon whether or not that total amount in question, comprised of course of many individual payments of compensation, is within the description of amounts "due in respect of workers' compensation" within s. 292 (1) (c) of the Companies Act 1961.

The answer does not lie in any analysis of the phrase "in respect of". That phrase, signifying some relationship between one thing and another, is capable of describing relationships over a very wide range of proximity (State Government Insurance Office v. Crittenden [13] ). Were the phrase devoid of significant context, it could, I think, be taken to be descriptive of the relationship between the present indebtedness owed to the State Government Insurance Office and the subject matter of workers' compensation. However a context does exist which is in my view sufficient to confine the operation of s. 292 (1)(c) to bounds too narrow to be of service to the appellant.

That context is provided by s. 292 (8) (a) of the Companies Act, which is as follows:

(8) Notwithstanding anything in subsection (1) of this section -

(a) paragraph (c) of that subsection shall not apply in relation to the winding up of a company in any case where the company is being wound up voluntarily merely for the purpose of reconstruction or of amalgamation with another company and the right to the compensation has on the reconstruction or amalgamation been preserved to the person entitled thereto, or where the company has entered into a contract with an insurer in respect of any liability under any law relating to workers' compensation.

I read par. (a) of sub-s. (8) as containing two distinct limbs, each concerned, in a particular circumstance, to exclude, in the case of the winding up of a company, the operation of s. 292 (1)(c) and with it the priority which it confers. The second limb, which is of particular concern, deals with the circumstance that the company "has entered into a contract with an insurer in respect of any liability under any law relating to workers' compensation": where this has occurred there is to be no priority. It is not because of any actual operation of this limb upon the S.G.I.O.'s claim to priority that I regard it as fatal to that claim: counsel for the respondent very properly did not seek to rely upon any positive disentitling operation of the limb. The importance of this limb is rather for the light that it throws upon the meaning to be given to s. 292 (1)(c).

It is important to recall that the Companies Act 1961 is the first so-called "uniform" companies legislation in Queensland. This may serve to explain what may otherwise seem to be curious features of s. 292, features which may be thought to ill accord with the scheme of workers' compensation as it operates in that State. The Queensland workers' compensation legislation, unlike that of some other States, confers no enforceable right upon a worker to recover compensation directly from his employer; instead recovery is exclusively from the Workers' Compensation Fund established under the legislation. The S.G.I.O. is the sole workers' compensation insurer, with which insurance by employers is mandatory.

Where a State's scheme of workers' compensation involves both compulsory insurance by employers and a workers' entitlement to payment of compensation not from his employer but exclusively from a statutory fund backed by the State's consolidated revenue, it seems curious that there should appear in the State's companies legislation any such provision as s. 292(8)(a), and particularly its second limb, or, for that matter, the priority provision of s. 292(1)(c). Their presence, while capable of other explanations, including the possible incidence of the workers' compensation legislation of other jurisdictions, is, I think, more probably simply a result of attempting to attain near-uniformity in the wording of the Companies Acts throughout Australia. Part of the price to be paid for such near-uniformity is the risk that the standard text will imperfectly accommodate itself to the statutory background against which it must operate, varying as the latter does from State to State. Part of that variable background is provided by the different schemes of workers' compensation in each State.

The significance which the second limb of s. 292(8)(a) has for the meaning to be given to s. 292(1)(c) depends upon the form taken by earlier schemes of workers' compensation, since its origin lies in these schemes. In the United Kingdom workmen's compensation was essentially a matter between master and servant. The master might, but need not, insure against his liability to compensate his servant and only in 1934, and then only in the case of workers in coal mines - Workmen's Compensation (Coal Mines) Act, 1934 U.K. - was insurance made compulsory. Should an insolvent employer be insured the worker might stand in the employer's shoes and exercise the employer's rights against the insurer - Workmen's Compensation Act, 1925 U.K., s. 7(1): were the employer uninsured the amount of compensation due to the worker was given priority for purposes both of bankruptcy and of liquidation (s. 7 (3)). This latter provision was, by s. 7(5), expressly made inapplicable when the employer was insured, that is, where "the bankrupt or the company (i.e., the employer) has entered into such a contract with insurers as aforesaid". This was, no doubt, because s. 7(1) was seen as caring for such cases. Moreover the section as a whole was inapplicable where an employer's liquidation was voluntary and was for the purpose of reconstruction or amalgamation - s. 7(6) - see generally Willis's Workmen's Compensation, 24th ed. (1926), pp. 146 et seq. These references are taken from the Act of 1925 to illustrate the statutory scheme in the United Kingdom; in essence the earlier Act of 1906 was to the same effect: Halsbury's Laws of England, 1st ed., vol. 20, pars. 423, 464. The origin of both limbs of s. 292(8)(a) may be seen in these provisions of the United Kingdom scheme of workmen's compensation, which, of course, also provides the model for s. 292(1)(c) itself.

Queensland's workers' compensation legislation never followed the United Kingdom model in the safeguards it provided against the insolvency of employers. The first such legislation, The Workers' Compensation Act 1905 Q., involved no principle of compulsory insurance. It sought to safeguard a worker against the employer's insolvency not by anticipating the means adopted one year later, in 1906, in the United Kingdom but rather by following the model of the earlier and then still current English Act of 1897, which conferred upon the worker a first charge over any amount due to the insolvent employer from a workers' compensation insurer - see Blair, Workers' Compensation (Q.) (1906), pp. 110-111. However in 1916 the State's legislative scheme of workers' compensation was altered radically. Following the pattern of the Workers' Compensation Act 1914 Vict., insurance became obligatory: The Workers' Compensation Act 1916 Q., s. 8. But, unlike the Victorian Act, a monopoly State insurer, then called the State Accident Insurance Office, was established (ss. 4 and 8), and the present system whereby a fund, rather than the employer, is made liable to meet claims for payment of compensation was established (s. 9(1)).

Since, under this new scheme, workers looked to a fund for their compensation it was no longer necessary to safeguard them against the insolvency of their employers. Accordingly neither the old remedy by way of first charge which the Act of 1905 afforded nor the remedies available to workers under United Kingdom legislation appeared in the Queensland legislation of 1916, nor were they expressly provided for in the insolvency or company legislation of that State, although the latter did referentially invoke the priorities of the Commonwealth bankruptcy legislation when such legislation came to govern the field. It was only upon the introduction of the Companies Act 1961 Q., the so-called Uniform Act, that by s. 292 the legislature of the State expressly conferred priority upon amounts due in respect of workers' compensation and qualified that priority by the terms of sub-s. (8).

Whatever may be thought of the need either for that priority or for qualifications upon it in the case of compensation due under Queensland's workers' compensation legislation, the origins both of the priority and of its associated qualifications are clear. Arising as they did in the context of schemes of workers' compensation where the worker looked to the employer for payment of compensation, they were designed to ensure so far as possible that those entitled to receive compensation from an employer would receive that compensation from the employer despite the latter's insolvency. When the Workmen's Compensation Act, 1906 U.K. spoke, in s. 5(3), of amounts "due in respect of" compensation, those were amounts due to and recoverable by the worker or his dependants from the employer. So too when the same words appeared in s. 7(3) of the later United Kingdom Act of 1925 and in s. 264 of the Companies Act, 1929 U.K.. The proviso to s. 84 (1)(f) of the Bankruptcy Act 1924 Cth affirms that the same words appearing in that paragraph bore an identical meaning.

The same phrase, amounts "due in respect of" workers' compensation, in s. 292 (1) (c) of the Companies Act 1961 Q. should be given no different meaning. There is, no doubt, a certain difficulty in attributing to a particular State legislature any distinct legislative intent in the case of individual sections of a measure which is enacted as so-called "uniform" legislation. Nevertheless, I would find it difficult to regard the legislative intent of the Queensland legislature as being to give to these words in s. 292(1)(c) any meaning different from that which they bore in these earlier Acts of other jurisdictions. Moreover, the words of s. 292(1)(c), while capable of the broad meaning for which the appellant contends, by no means make its adoption mandatory: they accord equally well with the narrower meaning urged on behalf of the respondents. In such circumstances I regard the considerations to which I have referred as compelling in favour of the respondents: the priority conferred by s. 292(1)(c) must, I think, be regarded as not extending to the debt proved for by the S.G.I.O.

This is an appeal from a decision of the Full Court of the Supreme Court of Queensland (Stable S.P.J., W. B. Campbell and Andrews JJ.) allowing an appeal from a judgment of Connolly J. By his judgment Connolly J. had declared that a sum of $269,443.23, the subject of a proof of debt lodged by the appellant in the liquidation of K. D. Morris & Sons Pty. Ltd. ("the company") of which the respondents are the liquidators, should be paid in priority to all unsecured debts of the company other than those the subject of pars. (a), (aa), (ab) and (b) of s. 292(1) of the Companies Act 1961 Q..

The company was wound up by an order of the Supreme Court of Queensland on 24th February 1975 on the company's own petition. The sum of $269,443.23, the subject of the proof of debt, was due to the appellant by the company pursuant to the provisions of The Workers' Compensation Act 1916 Q. ("the Act"), in particular ss. 8(5) and 19A of that Act. By notice of motion, the respondents sought a determination from the Supreme Court as to the priority, if any, of the sum in question. It was in the proceedings commenced by this notice of motion that Connolly J. declared that the sum was entitled to priority pursuant to s. 292(1)(c) of the Companies Act 1961 Q., a declaration which was set aside by the Full Court on appeal.

The case therefore turns upon the meaning and application of s. 292(1)(c) of the Companies Act 1961 Q. as that provision stood at 24th February 1975, the date of the winding up. It provided as follows:

(1) Subject to the provisions of this Act, in a winding up there shall be paid in priority to all other unsecured debts -

(c) fifthly, all amounts not exceeding in any particular case one thousand pounds due in respect of workers' compensation under any law relating to workers' compensation accrued before the relevant date

"The relevant date" is the date of the winding-up order (see s. 292(10)(b)(i)).

Each worker who has received an injury or his dependants in case of death of the worker, shall receive out of the Workers' Compensation Fund compensation in accordance with this Act, and except as in this Act is otherwise provided such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever.

"Injury" is defined by s. 3 to mean "personal injury arising out of or in the course of employment" and to include a disease contracted in the course of employment to which the employment was a contributing factor and the aggravation or acceleration of any disease where the employment was a contributing factor to such aggravation or acceleration. The Workers' Compensation Fund ("the Fund") is created by s. 5 of the Act.

The concluding words of s. 9(1) are of some importance. The payment of workers' compensation out of the Fund is "in lieu of any and all rights of action whatsoever against any person whomsoever" except as is otherwise provided in the Act.

Nothing in this Act shall affect any civil liability of the employer when the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible. Where there is a relevant civil liability in the employer, the worker may still take proceedings independently of the Act, but the damages recoverable are to be reduced by the compensation payable under the Act: see s. 9A. However, if the worker chooses the latter course and obtains judgment against the employer, he is not entitled to compensation under the Act. It should be noted that the word "worker" is given an extended meaning under s. 3(4) of the Act which provides: Any reference to a worker who has been injured, where the worker is dead, includes a reference to his legal personal representative or to his dependants or other person to whom or for whose benefit compensation is payable.

Section 8(1) of the Act imposes upon every employer a legal liability to pay the compensation which the Act prescribes a worker employed by him shall receive out of the Fund. The sub-section then imposes upon every employer an obligation to insure himself and keep himself insured with the appellant Office against all sums for which, in respect of injury to any worker employed by him, he may become legally liable by way of (a) compensation under the Act, and (b) damages arising in circumstances creating, independently of the Act, a legal liability in the employer to pay damages in respect of the injury.

The Office is given a monopoly in relation to the policies of accident insurance which employers are required to take out under s. 8(1) (see s. 6(1)). The premiums paid by employers under the insurance policies are paid into the Fund (s. 5). All payments in respect of policies issued by the Office under the Act are payable out of the Fund (s. 5). Policies of accident insurance issued by the Office are guaranteed by the Government of Queensland (s. 6(1)). There is appropriated out of consolidated revenue such sum as the Treasurer may certify to secure any payment payable under a policy of accident insurance issued by the Office under the Act to the extent to which it cannot be paid out of the Fund (s. 6(2)).

Where any employer has failed to comply with the requirements of this section in respect of any worker employed by him and moneys are paid to such worker from the Workers' Compensation Fund, the Office may recover the amount so paid from such employer Under s. 8(2)(b)(ii), an employer has failed to comply with s. 8 if he has applied for and obtained an appropriate insurance policy but has not maintained it in force by paying the relevant premium. Every amount recoverable by the Office under s. 8(5) in respect of compensation paid to an uninsured worker is deemed by s. 19A of the Act to be a debt "due to His Majesty and payable to the Office".

Of critical importance to the scheme of workers' compensation established by the Act is the imposition under s. 8(1) of a legal liability in the employer to pay workers' compensation. However, the creation of this liability does not result in the creation of a correlative right in the worker to obtain compensation from the employer. Rather, the right of the worker, under s. 9 (1) of the Act, is to receive compensation out of the Fund, which is the exclusive source from which the liability is to be satisfied. Nevertheless, the employer's liability to pay compensation under s. 8(1) is fundamental to the scheme of the Act. It forms a liability in respect of which the employer is required to insure under s. 8(1). The premiums which employers pay under the policies of accident insurance are the major source of the moneys which comprise the Fund and out of which payments of compensation are made. Furthermore, the failure of an employer to obtain or to maintain the relevant insurance policy can lead to the recovery from the employer by the Office of any amounts in the form of compensation paid by the Office to workers employed by the employer. Thus the employer's liability to pay compensation is the foundation for the payment of compensation to injured workers and their dependants.

In the present case, the company had failed to pay the premiums due under its policy of accident insurance for the financial year 1973-1974 and for the period from 1st July 1974 to 24th February 1975, the date of the winding-up order. The company had therefore, under s. 8(2)(b)(ii), failed to comply with its obligation to insure under s. 8 and hence, under s. 8(5), was liable to the Office for the amounts paid to its workers or their dependants for workers' compensation during those periods. The sum of $269,443.23 represents the aggregate of those amounts of less than $2,000 paid to the company's workers by the Office during those periods.

What is in issue is whether this sum of $269,443.23, the subject of the appellant's proof of debt, is an aggregate of amounts due "in respect of workers' compensation" within the meaning of s. 292 (1) (c) of the Companies Act 1961 Q.. It is not disputed that The Workers' Compensation Act 1916 Q. is a "law relating to workers' compensation" within the terms of the provision, and that the sum in question is due under the Act.

The crucial question, then, is the meaning to be given to the words "in respect of workers' compensation". The expression "in respect of" denotes a relationship or connexion between two things. In State Government Insurance Office v. Crittenden [14] Taylor J. quoted, with evident approval, the remarks of Mann C.J. in Trustees Executors & Agency Co. Ltd. v. Reilly [1] , "The words "in respect of" are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject-matters to which the words refer". The same view was taken later in Club Motor Insurance Agency Pty. Ltd. v. Sargent [2] . But, as with other words and expressions, the meaning to be ascribed to "in respect of" depends very much on the context in which it is found.

(1966) 117 C.L.R. 412, at p. 416. 2. [1941] V.L.R. 110, at p. 111. 3. (1969) 118 C.L.R. 658.

The two competing interpretations are: (a) that the words "amounts due in respect of workers' compensation" are confined to amounts due for or by way of workers' compensation by the person liable to pay that compensation to the person entitled to it; and (b) that the words also denote amounts due to the Office by an employer by way of recoupment under s. 8(5) of the Act. Of these two interpretations I favour the first.

My principal reason for this preference is to be found in s. 292(8)(a) which, on my reading of it, is consistent with the interpretation in (a) above, but not with that in (b). Section 292(8)(a) provides:

Notwithstanding anything in subsection (1) of this section -

(a) paragraph (c) of that subsection shall not apply in relation to the winding up of a company in any case where the company is being would up voluntarily merely for the purpose of reconstruction or of amalgamation with another company and the right to the compensation has on the reconstruction or amalgamation been preserved to the person entitled thereto, or where the company has entered into a contract with an insurer in respect of any liability under any law relating to workers' compensation;

This provision operates as an exception to s. 292(1)(c) and deals with situations in which no priority is given to debts arising out of an entitlement to workers' compensation because a right to payment of the debt has been otherwise secured. As such, s. 292(8)(a) clearly proceeds on the footing that s. 292(1)(c) is only concerned with amounts due for or by way of workers' compensation. In particular, the reference to "the right to the compensation" in the first limb of s. 292(8)(a) assumes that the amounts due "in respect of workers' compensation" of which s. 292(1)(c) speaks are amounts which are due to a worker or his dependants from the employer in satisfaction of a right to workers' compensation conferred upon the worker or his dependants and exercisable against the employer. The "liability [of the company] under any law relating to workers' compensation" referred to in the second limb of s. 292(8)(a) is obviously the liability imposed upon the employer which is correlative to the right of the worker or his dependants mentioned in the first limb and so this limb, too, makes the same assumption as to the nature of the amounts to which s. 292(1)(c) is addressed.

The interpretation of s. 292(1)(c) which is implicit in the provisions of s. 292(8)(a) is reinforced by another feature of s. 292. The place which par. (c) has in the order of priority established by s. 292(1) is significant. The sub-section not only sets out the debts which are to be paid in priority, but also establishes a descending order of priority for payment of the debts which are mentioned. The first three paragraphs, (a), (aa) and (ab), deal with the costs of the winding up, the costs of official management and the debts of the company properly and reasonably incurred by the official manager. Paragraph (b) deals with "wages or salary of any employee in respect of services rendered by him to the company " and par. (d) deals with "all amounts due to or in respect of an employee whose contract of employment is terminated on or before the relevant date, being amounts so due on that termination in respect of long service leave, annual leave, recreation leave or sick leave". There is good sense and good policy in an order of priorities which, after making provision for the costs and debts mentioned in par. (a), (aa) and (ab), descends from wages or salary, to workers' compensation due to workers and their dependants, and then to amounts due for or in respect of leave. It would be incongruous to include in this order money owing by way of reimbursement to an insurer for workers' compensation which it has paid. Consequently, the position which par. (c) occupies in the statutory order of priorities points to the conclusion that the paragraph deals with amounts due for or by way of workers' compensation.

The use of "in respect of" in pars. (b) and (d) of s. 292(1) does not illuminate the meaning of the expression in par. (c) of the subsection because "in respect of" is evidently used in various senses in those paragraphs. Nor is the use of the words "in any particular case" in s. 292(1)(c) of any assistance in the resolution of the problem. The words are, I think, designed to cover situations in which a worker sustains two or more separate injuries and, as a consequence, makes several claims for workers' compensation, each claim being for less than $2,000 but the aggregate value of which amounts to $2,000 or more. As such, the words are, in themselves, equally applicable to amounts due from an employer to a worker for workers' compensation and those due from an employer to the Office pursuant to s. 8(5) of the Act.

The construction which I favour is, I would add, consistent with the interpretation accorded to s. 292(1)(c) of the Companies Act, 1961 N.S.W., as amended, by Bowen C.J. in Eq. in Re Northumberland Insurance Co. Ltd. [3] . The only material difference between the terms of ss. 292(1)(c) and 292(8)(a) of the Queensland Act and those of the same provisions in the New South Wales Act is that the former refer to "any law relating to workers' compensation" and the latter refer to "the Workers' Compensation Act, 1926-1960 ". The problem with which Bowen C.J. in Eq. was concerned in the Northumberland Case was rather different from that posed in the present case, but the case turned directly on the scope of s. 292(1)(c) of the Companies Act, 1961 N.S.W.. His Honour held that the only amounts comprehended by the provision were "amounts due by employer-companies who go into liquidation and upon whom a statutory liability [to pay compensation] to their employees is imposed by the Act. [i.e. the Workers' Compensation Act, 1926-1960 N.S.W.]" [4] . His Honour largely relied upon s. 292 (8) (a) of the Companies Act, 1961 N.S.W. in support of this conclusion. Thus, like their counterparts in the Queensland legislation, ss. 292 (1) (c) and 292 (8) (a) of the Companies Act, 1961 N.S.W. look only to a situation in which an employee of the company, or his dependants, have a right to workers' compensation which is exercisable against the employer company.

[1975] 1 N.S.W.L.R. 471. 2. [1975] 1 N.S.W.L.R., at p. 478.

As I have already explained, The Workers' Compensation Act 1916 Q. does not impose a primary liability upon the employer to pay workers' compensation to his employees or their dependants. In this respect, The Workers' Compensation Act 1916 differs, for example, from the Workers' Compensation Act, 1926 N.S.W. (see the discussion in the Northumberland Case [5] ).

The consequence is that the provisions of ss. 292(1)(c) and 292(8)(a) have no application to the scheme of workers' compensation established by The Workers' Compensation Act 1916 Q.. However, it does not follow that the provisions have no practical application. The expression "any law" in s. 292(1)(c) is not defined by the Companies Act or the Acts Interpretation Act 1954 Q., as amended. In my opinion it signifies here not only a law made by the Queensland Parliament, but also any law made by a competent legislative authority, whether it be of the Commonwealth or another State, which operates to impose a liability of the relevant kind on a company. The expression appears in a section of a Companies Act which contemplates that a company incorporated in Queensland will be subject to Commonwealth law and, if it carries on business outside the State, to the laws of other States. See R. v. Canadian Northern Railway Co. [6] .

Sections 292 (1) (c) and 292 (8) (a) therefore apply to amounts of compensation payable under the Workers' Compensation (Lead Poisoning, Mt. Isa) Acts 1933 Q.. They apply also to amounts of compensation payable under Commonwealth legislation and workers' compensation legislation in force in other States which impose a liability on an employer to pay compensation to an injured worker or his dependants.

For all these reasons, amounts due to the appellant Office pursuant to ss. 8(5) and 19A of the Workers' Compensation Act, 1916 Q. are not amounts due "in respect of workers' compensation" under s. 292 (1) (c) of the Companies Act 1961 Q. as that provision stood at 24th February 1975. Accordingly, I would dismiss the appeal.

I have had the advantage of reading the reasons for judgment prepared by my brother Mason in this appeal. I agree with those reasons and the conclusion that this appeal should be dismissed.

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