Morrison v O'Brien [1953] HCA 49

Morrison v O'Brien [1953] HCA 49

Defiance Milling Co. was formed after 1st September 1863 and was not formed in pursuance of any Act of Parliament or letters patent. Because its constitution derived only from the consensual agreement of its members, it was not "otherwise duly constituted by law" within s. 342 (1) (ii) of The Companies Acts 1931 to 1942 Q. and was not entitled to registration under Pt. XII. The injunction granted by Philp J. was therefore restored.

Jurisdiction
Australia
Procedural Posture
Appeal / High Court Appeal From an Order of the Full Supreme Court of Queensland Allowing an Appeal From the Judgment of Philp J.
Outcome
Appeal allowed with costs.
Legal Topics
['registration of an Unincorporated Joint Stock Company' 'meaning of "being Otherwise Duly Constituted by Law"' 'companies Formed by Contract' 'injunction Restraining Registration']
['corporations Law' 'partnership Law' 'statutory Interpretation'] ['registration of an Unincorporated Joint Stock Company' 'meaning of "being Otherwise Duly Constituted by Law"' 'companies Formed by Contract' 'injunction Restraining Registration']

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Procedural Posture

Appeal / High Court Appeal From an Order of the Full Supreme Court of Queensland Allowing an Appeal From the Judgment of Philp J.

Legal Issues

  1. 1 ['Whether an unincorporated joint stock company formed by contract after 1st September 1863 and consisting of seven or more members is entitled to apply for registration under Pt. XII of The Companies Acts 1931 to 1942 Q.' 'Whether Defiance Milling Co. was "otherwise duly constituted by law" within s. 342 (1) (ii) of The Companies Acts 1931 to 1942 Q.']

Ratio Decidendi

Defiance Milling Co. was formed after 1st September 1863 and was not formed in pursuance of any Act of Parliament or letters patent. Because its constitution derived only from the consensual agreement of its members, it was not "otherwise duly constituted by law" within s. 342 (1) (ii) of The Companies Acts 1931 to 1942 Q. and was not entitled to registration under Pt. XII. The injunction granted by Philp J. was therefore restored.

Court Disposition

Appeal allowed with costs.

Orders

  • ['Order of the Full Supreme Court set aside and judgment of Philp J. restored.' 'Respondents to pay costs of the appeal to the Full Supreme Court.']