Controller of Enemy Property v Thornthwaite [1960] HCA 78

Controller of Enemy Property v Thornthwaite [1960] HCA 78

The demurrer failed because the Controller of Enemy Property remained the same continuing corporation sole constituted under the 1939 Regulations; the Regulations gave the Controller dominion over enemy property and authorized directions requiring sale, accounting and payment of proceeds less selling expenses; the pleadings implicitly alleged the sales occurred during a state of war; and the pleaded undertaking in paragraph 17 was construed as given to the Controller.

Jurisdiction
Australia
Procedural Posture
Demurrer / High Court of Australia Decision on Defendant's Demurrer to the Plaintiffs' Statement of Claim
Outcome
Demurrer overruled with costs.
Legal Topics
['demurrer' 'corporation Sole' 'controller of Enemy Property' 'enemy Subject Property' 'statutory Powers to Direct Sale and Payment of Proceeds']
['civil Procedure' 'enemy Property' 'national Security'] ['demurrer' 'corporation Sole' 'controller of Enemy Property' 'enemy Subject Property' 'statutory Powers to Direct Sale and Payment of Proceeds']

Case Brief

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Procedural Posture

Demurrer / High Court of Australia Decision on Defendant's Demurrer to the Plaintiffs' Statement of Claim

Legal Issues

  1. 1 ['Whether the Controller of Enemy Property remained a corporation sole constituted under the National Security (Enemy Property) Regulations 1939 after the 1942 Regulations and the Defence (Transitional Provisions) Act 1946.' "Whether the Controller could maintain an action for proceeds of enemy property sold by the defendant on the Controller's instructions." 'Whether the Regulations authorized the Controller to direct sale of enemy property and payment of proceeds to him.' 'Whether the statement of claim sufficiently alleged that the relevant sales occurred while M.A.N. was an enemy subject and while a state of war existed.' "Whether the Controller's direction of 27th March 1958 to account for gross proceeds less commission or selling charges was authorized." 'Whether paragraph 17 sufficiently alleged to whom the defendant gave an undertaking to pay money when directed.']

Ratio Decidendi

The demurrer failed because the Controller of Enemy Property remained the same continuing corporation sole constituted under the 1939 Regulations; the Regulations gave the Controller dominion over enemy property and authorized directions requiring sale, accounting and payment of proceeds less selling expenses; the pleadings implicitly alleged the sales occurred during a state of war; and the pleaded undertaking in paragraph 17 was construed as given to the Controller.

Court Disposition

Demurrer overruled with costs.

Orders

  • ['Demurrer overruled with costs.']