Uniformity in corporate law – the High Court’s grant of special leave in Amerind

A comment in the Victorian Court of Appeal (VCA) decision in Amerind may not have found favour with Justice Gageler at least when the question of whether to grant special leave to appeal from that decision was being considered by the High Court on 17 August 2018.

The Court of Appeal at [286] said that

“(i)n the meantime, whilst the discussion above discloses that there must be some doubt about which of Re Enhill or Suco Gold is correct, it suffices to say that unless and until a subsequent appellate decision decides otherwise, the law as it stands in Victoria as articulated in Re Enhill should continue to be followed by trial judges in this State”. 

By way of footnote, by way of emphasising its state-based focus, the Court of Appeal said that

“(w)e note that Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 do not directly address the position of trial judges where there are conflicting intermediate appellate decisions in different jurisdictions”. [emphasis added]

I have said previously written that this was a rather cute distinction, perhaps not in keeping with the spirit of the need for national uniformity in interpretation and application of our corporations law.

Liquidators, lawyers, creditors and others should not have to suffer the law being interpreted according to the State in which the matter is being litigated.

At the special leave hearing, Justice Gageler may have thought the same, in his referring to

what appears to be a declaration of the law to be applied by courts in Victoria”,

asking counsel for the Commonwealth (representing FEG)

“(w)hat do you say about that?”

The response, overall, appeared to be to confine the VCA decision rather than, as some might have expected of the Commonwealth, as a model litigant, to explain the broader and important aspects of the case.

The fact that counsel for the creditor was not called upon to argue that leave should be granted was a clear indication that special leave was readily decided upon by the High Court judges, hopefully view a view to settling this too complex an area of law.

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