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Published online by Cambridge University Press: 24 January 2025
When the 1983 amendments were made to the national companies securities legislation, it was stated in the accompanying explanatory memorandum that one of the purposes of the new provisions was to “abolish the doctrine of ultra vires” — an ambitious aim given the tenacity of the doctrine despite widespread criticism on many grounds, perhaps best summed up in the comment, “[u]ltra vires was the expression of a social policy that failed.”
Of course, it has now been realised that the 1983 amending Act did not achieve its stated purpose. It may have achieved a partial elimination of the doctrine but it has left a large area for its continued operation in a different form and in some respects has opened new opportunities for development.
These aspects are explored below but it should be noted here that one curious side of the new provisions is that no explanation was offered of the defects in the previous statutory provisions, ss 67-68 of the Companies Act (Cth) (“the Act”) and its forerunner, s 20 of the State uniform companies legislation, nor was it explained how the new ss 67-68 were intended to remedy those defects. The new regime was simply offered as a better general solution to the ultra vires problem. Unfortunately, in this case, it is not the final solution.
1 Companies and Securities Legislation (Miscellaneous Amendments) Act, No. 108 of 1983 ss 33, 34 and 125.
2 Cary, WL and Eisenberg, MA, Cases and Materials on Corporations (5th ed. 1980) 38.Google Scholar
3 Wilkin, J, “Ultra Vires ... is alive and well and living in Australia” (March 1984) Victorian Law Institute Journal 256Google Scholar; Baxt, R., “Ultra Vires - A Postscript” (March, 1984) 54 The Chartered Accountant in Australia 43.Google Scholar
4 Legislation based on the Model Business Corporation Act still exists in some form in the majority of American States.
5 Canada Business Corporations Act, S.C. 1974-1975 c.33, ss 15-17 provide:
“15. (I) A corporation has the capacity and, subject to this Act, the rights, powers and privileges of a natural person.
(2) A corporation has the capacity to carry on its business, conduct its affairs and exercise its powers in any jurisdiction outside Canada to the extent that the laws of such jurisdiction permit.
16. (1) It is not necessary for a by-law to be passed in order to confer any particular power on the corporation or its directors.
(2) A corporation shall not carryon any business or exercise any power that it is restricted by its articles from carrying on or exercising, nor shall the corporation exercise any of its powers in a manner contrary to its articles.
(3) No act of a corporation, including any transfer of property to or by a corporation is invalid by reason only that the act or transfer is contrary to its articles or this Act.
17. No person is affected by or is deemed to have notice or knowledge of the contents of a document concerning a corporation by reason only that the document has been filed by the Director or is available for inspection at an office of the corporation.”
Section 18 deals with the authority of agents and compares with new ss 68A-68B of the Companies Act 1981 (Cth).
6 This assumes the result of the discussion of the provisions governing the effect of repeals, below.
7 See HA Stephenson & Son Ltd (in liq) v Gillanders Arbuthnot & Co (1931) 45 CLR 476,, 488-9 per Dixon J.
8 A parallel might be drawn with one view of the capacity of the early statutory railway com panies in England. See the views of the Parke B (Lord Wensleydale) expressed in The South Yorkshire Railway and River Dun Company v The Great Northern Railway Company (1853) 9 Exch 55, 84, 89; 156 ER 23, 36, 38 (affirmed on other grounds (1854) 9 Exch 642; 156 E R 274) and approved by Martin B in Bateman v Ashton-under-Lyne Corporation (1858) 3 H & N 323, 335-336; 157 E R 494, 500.
9 Section 803 of the California Corporations Code I929, inter alia, precludes the assertion of ultra vires as between the corporation or any shareholder and any third person. Paragraph 803(d) provides: “This section applies to contracts and conveyances made by foreign corporations in this State and to all conveyances made by foreign corporations of real property situated in this State.” The predecessors to the new s 67 were similarly limited to companies.
10 As was made clear in the Explanatory Memorandum circulated by the Attorney-General, para 191, the true intent was that the wording of the first part of s 67 should not limit the conferral of purely corporate powers. It may be inferred that it was intended that the powers peculiar
11 It is appropriate to note here that, despite much of the language used in Trevor v Whitworth (1887) 12 App Cas 409, it is preferable to regard activities that would amount to the return of capital as merely unlawful rather than conduct that the company lacks capacity to perform. It is submitted that all companies must have the capacity to return capital and that this is consistent with any of the manifestations of the maintenance principle.
12 Former para 67{1)(c) of the first draft of the 1983 Amending Bill contained a power to make available prescribed interests but it was omitted from the final version of the Bill.
13 Applying reasoning derived from such cases as: In re Introductions Ltd [1970] 1 Ch 199; Re Horsley & Weight Ltd [1982] 3 All ER 1045, 1051; Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1982] 3 All ER 1057, 1075-1078; Simmonds v Heffer [1983] BCLC 298. See Ford, , Supplement to the Third Edition of Principles of Company Law (1984) 15.Google Scholar
14 See Re Halt Garage (1964) Ltd [1982] 3 All ER 1016, 1030-1032; Re Horsley & Weight Ltd [1982] 3 All ER 1045; Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1982) 3 All ER 1057. See also G Shapira, “Ultra Vires Redux”, a paper presented at the 38th Annual A.U.L.S.A. Conference 1983. However, there is the possibility that the memorandum of association may expressly or by implication provide that an express object only extends to acts which benefit or promote the prosperity of the company: Re Horsley & Weight Ltd [1982) 3 All ER 1045, 1054 per Buckley L J. This would constitute a limitation that would.put the company into category C and would expressly introduce the issue of improper exercise of power.
15 Cf Ridge Securities Ltd v IRC [1964] 1 All ER 275, 288; Re Halt Garage (1964) Ltd [1982] 3 All E R 1016 – where remuneration payments were held not to be genuine but rather to constitute, in effect, an unlawful return of capital.
16 [1962] 1 Ch 927.
17 Clause 67(1)(h) of the first draft of the 1983 amending Bill conferred the following specific power:
“power, in connection with the cessation of the whole or part of the business of the company or of a subsidiary of the company, to make provision for the benefit of employees or former employees of the company or of a subsidiary of the company or for the dependants of such employees or former employees ... “.
18 [1962] 1 Ch 927, overcome by the Companies Act 1980 (UK), s 74.
19 See Fisher, OW, “Corporate Benefaction” (1979) 13 Taxation in Australia 932-959 1059-1074.Google Scholar
20 Sub-sections 68(4) and 68(5) repeat the language of the former provisions in contemplating that there may be an “act of the company” that, due to a breach of the statutory prohibition in s 67(1), on the most likely view, falls outside the capacity of the company. See Ford, , Principies of Company Law (3rd ed 1982) para 517.Google Scholar
21 In re Introductions Ltd [1970] 11 Ch 199, 209-210 per Harman L J.
22 Partnership Act 1892 (NSW) and Partnership Act (SA) s 19 ands 24(8); Partnership Act 1891 (Qld) s 22 ands 27(8); Partnership Act 1958 (Vic) s 23 ands 28(8); Partnership Act 1891 Tas) s 24 ands 29(8); Partnership Ordinance 1963 (ACT) s 23 ands 29(8); Partnership Act 1895 (WA) s 29 ands 34(7) and (9); Partnership Act 1890 (UK) s 19 ands 24.
23 (1824) Turn & R 496; 37 ER 1191; [1824-1834) All ER Rep 311.
24 (1824) 2 Coop t Cott 358; 47 E R 1196.
25 [1930] A C 472, 494. The reference in the extract to “companies” is, of course, a refermce to the unincorporated joint-stock companies.
26 Partnership Act 1892 (NSW) and Partnership Act (SA) s 5; Partnership Act 1891 (Qld)I s 8; Partnership Act 1958 (Vic) and Partnership Ordinance 1963 (ACT) s 9; Partnership Act’ 1891 (Tas) s 10; Partnership Act 1895 (WA) s 26; Partnership Act 1890 (UK) s 5.
27 Reynolds, and Davenport, , Bowstead on Agency (14th ed 1976) 237, 254Google Scholar; Fridman, , The Law of Agency (5th ed 1983) 106-110.Google Scholar
28 See Re Wondoflex Textiles Pty Ltd (1951) VLR 458; Ebrahimi v Westboume Galleries Ltc (1973) AC 350; Re A & BC Chewing Gum Ltd (1975] l All ER 1017; Caratti Holding Co PtJ Ltd v Zampatti (1978) 23 ALR 655; Re Medefield Pty Ltd (1977) 2 ACLR 406; Re Bird Precision Bellows Ltd (1984) 3 All ER 444.
29 See Gower, , Gower’s Principles of Modem Company Law (4th ed 1979) 152.Google Scholar
30 A specific requirement of board unanimity might, in appropriate circumstances, be waive< by the informal unanimous assent of all voting shareholders on the authority of Re Duomatic Ltd [1969] 2 Ch 365, as qualified by Re Compaction Systems and the Companies Act [1976] 2 NSWLR 477. It is doubtful whether a requirement of board unanimity could by introduc1 by virtue of this principle. See also Cane v Jones (1981) l All E R 533.
31 Re Medefield Pty Ltd (1977) 2 ACLR 406; Caratti Holding Co Pty Ltd v Zampatti (1978) 23 ALR 655.
32 [1973] AC 360.
33 Companies Act 1981 (Cth) s 320. See Clemens v Clemens Bros Ltd [1976] 2 All ER 268, at 282 per Foster J; Caratti Holding Co Ply Ltd v Zampatti (1975) 1 ACLR 87 aff’d (1976) 2 ACLR 152 aff’d (1978) 23 ALR655; Re Bird Precision Bellows Ltd [1984] 3 All ER 444. But cf Re a Company [1983] 2 All ER 36.
34 (1977) 2 ACLR 406. But cf Bentley-Stevens v Jones [1974] 2 All ER 653. See Ford, , Principles of Company Law (3rd ed 1982) 434.Google Scholar
35 Companies Act 1981 (Cth) s 320, as amended by the Companies and Securities (Miscellaneous Amendments) Act 1983 s 89. In Caratti Holding Co Pty Ltd v Zampatti (1978) 23 ALR 655 it is not clear whether the Privy Council based its conclusion on general equitable considerations or merely approved the findings of the Australian courts based on the (former) statutory oppression remedy.
36 The Savoy Hotel Ltd, Second Report June 1954 H M S 0. See Pennington, , Pennington’s Company Law (4th ed 1979) 541Google Scholar; See also Multinational Gas and Peu-ochemicaf Co v Multinational Gas and Petrochemical Services Ltd [1983] 2 All E R 563 for an argument based on an alleged “highly speculative decision that could not properly be regarded as falling within the scope of reasonable business judgment”.
37 Supra n 13. See also Baxter, , “Ultra Vires and Agency Untwined” [1970] C L J 280CrossRefGoogle Scholar. Butcf Wedderbum, , “Ultra Vires in Modern Company Law” (1983) 46 M L R 204, 211Google Scholar and Bond, , “Ultra Vires - A Reassessment” (1983) 133 New Law Journal 561.Google Scholar
38 Charterbridge Corporation v Lloyds Bank Ltd [1970] Ch 62, 69 per Pennycuick J; Rolled Steel Products (Holdings) Ltd v British Steel Corporation (1982) 3 All E R 1057, 1077 per Vinelott J. See Ford, , Principles of Company Law (3rd ed 1982) 108.Google Scholar
39 Winthrop Investments Ltd v Winns Ltd [1975] 2 NSWLR 666, 689 per Mahoney J A; Re Haft Garage (1964) Ltd [1982] 3 All ER 1016, 1036-1037. Russell Kinsefa Pty Ltd (in liq) v Kinsefa (1984) 8 ACLR 384. In Rolled Steel Products (Holdings Ltd v British Steel Corporation [1982] 3 All ER 1057, 1083-1084 Vinelott J advanced the rule that the shareholders, even acting unanimously, cannot ratify a transaction that is “ultra vires” in a special “wider sense”. This is plainly questionable. The effectiveness of a purported ratification, even a unanimous one, should still be subjected to scrutiny upon equitable principles. See Re Horsley & Weight Ltd [1982] 3 All ER 1045, 1055 and 1056 per Cumming-Bruce L J and Templeman L J But cf Wedderburn, “Ultra Vires in Modern Company Law” (1983) 46 M L R. 204 at 209.Google Scholar
40 (1843) 2 Hare 461; 67 E R 189.
41 Marchesi v Barnes and Keogh [1970] V R 434, 438 per Gowans J; Morgan v Flavel (1983) 1 A C L C 831, 838 per White J.
42 This contrasts with the finding by Menhennit Jin Re Tivoli Freeholds Ltd (1972] V R 445, 465 that, in view of the former specific restraint provisions, ultra vires acts of a company, even if persistent, could not be relied upon as a ground for winding up under the former statutory oppression remedy. In passing, it may be noted thats 68(6) does not include applications to wind up on the just and equitable ground under s 364(1)G) in the list of circumstances when breach of s 68 may be asserted.
43 [1975) V R 607, aff’d on other grounds (1975) 7 ALR 527.
44 (1856) 6 E & B 327; 119 ER 886.
45 See Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 Q B 480, 497, 503-504, 505. See also Gower, , Gower’s Principles of Modern Company Law (4th ed 1979) 193-196.Google Scholar
46 (1975) 7 AL R 527.
47 Ford, , Supplement to the Third Edition of Principles of Company Law (1984) 22-23.Google Scholar See also n 49.
48 Companies and Securities Legislation (Miscellaneous Amendments) Bill 1983, Explanatory Memorandum circulated by the Attorney-General, 90-93.
49 I am indebted to Mr Geoffrey Lindell, Senior Lecturer in Law, A N U, for the interpretation of the new statutory assumptions, particularly as applied to apparent authority to make representations. The expression of the analysis is mine.
50 Clearly, where actual or constructive notice under s 68A(4) or (5) may be relied upon by a company, there can be no relevant validation for the outsider’s benefit under s 68(4) or (5). See Ford, , Supplement to the Third Edition of Principles of Company Law (1984) 18.Google Scholar
51 Halsbury’s Laws of England (4th ed) vi, para 819. Cf the partnership rules relating to the power of a partner to bind the firm.
52 Ford, , Principles of Company Law (3rd ed 1982) 120.Google Scholar In addition to the cases there cited see Colonial Bank of Australia v Loch Pyne Gold Mining Co Registered (1866) 3 W W & A’B (L) 168; Sangara (Holdings) Ltd v Hamac Holdings Ltd (In Liq) [1973] P N G L R 504.
53 Howard v Patent Ivory Manufacturing Company (1888) 38 Ch D 156; A L Underwood Ltd v Bank of Liverpool [1924] I KB 775; B Liggett (Liverpool) Ltd v Barclays Bank Ltd [1928] I KB 48; Reckitt v Barnett Pembroke and Slater Ltd [1929] AC 176; Morris v Kanssen [1946] AC 459; Progress Advertising (NZ) Ltd v Auckland Licensed Victuallers Industrial Union of Employers [1957] NZLR 1207; Sangara (Holdings) Ltd v Hamac Holdings Ltd (In Liq) [1973] P N G L R 504.
54 See Ford, , Supplement to the Third Edition of Principles of Company Law (1984) 24Google Scholar. Contrary to the view there expressed, the courts may resolve the difficulty by giving paragraph (b) rather than (a) a wide interpretation or by resorting to general principles.
55 Mahony v East Holyford Mining Co (1875) C R 7 H L 869, 894 per Lord Hatherley (in the context of the public documents but the same would apply to notice of informal restrictions upon the board).
56 Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 2 All E R 1073.
57 Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) [1980] 1 All ER 393; Consul Development Pty Ltd v D.P.C. Estates Pty Ltd (1975) 132 CLR 373; Green v Bestobell Industries Pty Ltd [1982] W A R 1; Paul A Davies (Australia) Pty Ltd (In Liq) v PA Davies (1983) 8 A C L R 1.
58 Supra n 3.
59 (1843) 2 Hare 461; 67 ER 189.
60 See Donald, B G and Reydon, JD, Trade Practices Law Vol 2 (1978) 806-8l7.Google Scholar
61 Hornsby Building Information Centre Proprietary Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216, 234-235.
62 World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181, 185 and 199.
63 See Ford, , Principles of Company Law (3rd ed 1982) 81.Google Scholar
64 (1984) 8 ACLR 609.
65 Ibid 613.
66 Ibid 614.
67 Mills v Northern Railway of Buenos Aires Co (1870) 5 Ch App 621; Lawrence v West Somerset Mineral Railway Co. (1918] 2 Ch 250; Cross v Imperial Continental Gas Association [1923] -2 Ch 553.
68 Re KL Tractors Ltd (In Liq) (1961) 106 CLR 318, 337-338.
69 Bell Houses Ltd v City Wall Properties Ltd [1966] 1 QB 207, 224 per Mocatta J, reversed on other grounds [1966] 2 Q B 656. But cf Salmon L J at 694.
70 Ware v Regents Canal Company (1858) 2 De G & J 212, 218; Booth v New Afrikander Gold Mining Co Ltd [1903] I Ch 295; Smith v London Transport Executive [1951] AC 555; Charterbridge Corporation Ltd v Lloyds Bank Ltd [1970] Ch 62.
71 Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd (1970) 92 W N (NSW) 199, 217.
72 Ibid 219.
73 See Brice, , Treatise on the Doctrine of Ultra Vires (3rd ed 1893) Ch VIGoogle Scholar; Pennington, , Company Law (4th ed 1979) 101-108Google Scholar; Goff, and Jones, , The Law of Restitution (2nd ed 1978) 358-364.Google Scholar
74 Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1979) 53 ALJR 1, 2 per Gibbs A C J.
75 Ibid 6 per Mason J.
76 See Starke, , Higgins, and Seddon, , Cheshire and Fifoot: Law of Contract (4th Aust ed 1981) ch 12, 331Google Scholar, Goff, and Jones, , The Law of Restitution (2nd ed 1978) 325.Google Scholar
77 (1970) 92 W N (NSW) 199, 213-219.
78 Ibid 218.
79 Ibid 219.
80 See Goff, & Jones, , The Law of Restitution (2nd ed 1978) 340.Google Scholar
81 Hornstein, , Corporation Law and Practice (1959) Vol 2, 34.Google Scholar
82 Cf Slutsky, , “Ultra Vires - The British Columbia Solution” (1973) 8 University of Britsh Columbia Law Review 309, 314.Google Scholar
83 Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd (1970) 92 W N (NSW) 99, 218 per Street J. Although the new provisions do not specifically preserve the precondition hat all parties to any contract are parties to the proceedings, presumably the various rules of court for the joinder and addition of parties will achieve a comparable result.
84 Cf Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410, 427.
85 International Sales and Agencies Ltd v Marcus [1982] 3 All ER 551, 558.
86 Meagher, , Gummow, & Lehane, , Equity: Doctrines and Remedies (2nd ed 1984) 582.Google Scholar
87 [1970]AC 652.
88 See Meagher, , Gummow, & Lehane, , Equity: Doctrines and Remedies (2nd ed 1984) 607Google Scholar
89 Companies and Securities Legislation (Miscellaneous Amendments) Bill 1983, ExplanatorJ Memorandum, 84.
90 Report of the Committee on Company Law Amendment Cmd 6659 H M S O (1945) 10.
91 See Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd (1969) 92 WN (NSW 199, 221.
92 See Re Edward Love and Company Pty Ltd (in liq) [1969] VR 230, 233-234.
93 Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd (1969) 92 WN (NSW) 169, 221.
94 Supra n 92.
95 In the ACT: Companies Transitional Provisions Act 1981 (Cth) s 7. In the States: Companies (Application of Laws) Acts of 1981 s 21. In the ACT because of the repeal of the Companies Ordinance 1962, s 29(2) of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 may also be relevant.
96 The courts were given power to resolve any transitional difficulties: in the ACT by s 34’ of the Companies (Transitional Provisions) Act 1981 (Cth) and in the States bys 44 of the Companies (Application of Laws) Acts of 1981.
97 Pearce, , Statutory Interpretation (2nd ed 1981) paras 127-132.Google Scholar
98 [1972] VR 445.
99 Ibid 471.
100 Ibid 471-472.
101 Ibid 472 and also Re Johnson Corporation Ltd and the Companies Act (1980) 5 ACLR 227, 235 per Needham J.
102 Re Tivoli Freeholds Ltd [1972] VR 445, 472.
103 Callaway, , Winding Up on the Just and Equitable Ground (1978) 14.Google Scholar
104 See Income Tax Assessment Act 1936 (Cth), ss 23(e)(ea), (g), (h), 78(1)(a) (i)-(viii), 103A(2)(c), 117; Sales Tax (Exemptions and Classifications) Act 1935, 1st Schedule, Div XI, cl 81(1); Bank Account Debits Tax Administration Act 1982 (Cth), s 3(1); Pay-roll Tax Act 1971 (NSW), s l0(l)(b) - (d), (k); Stamp Duties Act 1920 (NSW), Second Schedule cl (24); Land Tax Management Act 1956 (NSW) s 10; Local Government Act 1919 (NSW) s 132(1)(d), (h).
105 See CIR (UK) v Forrest (1890) 15 App Cas 334, 354; CIR (UK) v The Aberdeen Medico - Chirurgical Society (1931) 16 TC 237, 249; F C T v Cappid Pty Ltd (1971) 127 CLR 140; Nadir Pty Ltd v F C T (1981) 35 ALR 293.
106 See Royal Australasian College of Surgeons v F C T (1943) 68 CLR 436; The Australian Council of Social Service Incorporated v C of Pay-roll Tax (NSW) (1982) 13 ATR 290; Church of the New Faith v C of Pay-roll Tax (Vic) (1983) 49 ALR 65.
107 See R v The Institution of Civil Engineers (1879) 5 QBD 48, 53; Australian Dental Association (NSW Branch) v FCT (l934) 3 ATD 114, 118.
108 (1983) 46 ALR 41.
109 Ibid 62-63, per Mason, Murphy, Brennan and Deane JJ, who acknowledge that the corporate constitution will never be completely irrelevant, even for companies engaged in trading or financial activity.
110 (1983) 46 ALR 41, 52 per Gibbs CJ and 80, per Dawson J.
111 Ibid.
112 The words of Lord Sterndale MR in CIR (UK) v Korean Syndicate Ltd [1921] 3 KB 258, 273 bear relevance to the new s 67: “The fact that the limited company comes into existence in a different way from that in which an individual comes into existence is a matter to be considered. An individual comes into existence for many purposes, or perhaps sometimes for none, whereas a limited company comes into existence for some particular purpose ... “. Has this difference been narrowed?
113 (1983) 46 ALR 41, 53, and 81 per Dawson J.
114 CIR (UK) v Korean Syndicate Ltd [1921] 3 K.B. 258; Ruhamah Property Co Ltd. v FCT (1928)41 CLR 148, 151-152 per Knox CJ, Gavan Duffy, Powers and Starke JJ; Scottish Australian Mining Co Ltd v FCT (1950) 81 CLR 188, 192 per Williams J; FCT v Whitfords Beach Pty Ltd (1982) 39 ALR 521, 548 and 554 per Wilson J (re articles of association). The objects in a memorandum have not been considered to be a factor relevant to the “same business” test in s SOE of the Income Tax Assessment Act 1936 relating to prior year loss deductions.
115 Willmott v London Celluloid Co (1886) 34 Ch D 147; In re Borax Company [1901] 1 Ch 326.
116 Gough, , Company Charges (1978) 114.Google Scholar
117 (1983) 7 ACLR 295.
118 Ibid 305.
119 Blanchard, . The Law of Company Receiverships in Australia and New Zealand (1982) 14;Google Scholar Goode, RM, “The Death of Insolvency Law” (1980) 1 The Company Lawyer 123, 125.Google Scholar
120 See MacLean and MacKay v Portland Masonry Ltd (1982) 55 NSR (2d) 666; WR Benjamin Products Ltd v Saulnier (1982) 40 NBR (2d) 537; G W Turner Ltd v Lauze and Sunshine Travel Centre Ltd (1984) 44 Nfld & PEIR 132; Enterprises Crousette Ltee v St-Onge (1984) 3 CLR 314.
121 (1867) LR 2 Exch 356, 375.
122 (1874) LR 9 Exch 224, 254 rev’d sub nom Ashbury Railway Carriage and Iron Company Ltd v Riche (1875) LR 7 HL.653.
123 (1874) LR 9 Exch 224, 255, 263-264, 266. With respect to statutory companies, see Taylor v The Chichester and Midhurst Railway Co. (1867) LR 2 Exch 356, 378, 379, 383-385, 388-389.
124 The ramifications of the exception in section 68B(b) are also uncertain. It has been presumed that this provision is merely an expression of the “negative” character of constructive notice.
125 (1875) LR 7 HL 653.
126 Winthrop Investments Ltd v Winns Ltd (1975) 2 NSWLR 666, 681 per Samuels JA Cf Grant v United Kingdom Switchback Railways Co. (1888) 40 Ch D 135, & Bamford v Bamford [1970] Ch 212.
127 (1843) 2 Hare 461; 67 ER 189.
128 See Parkinson, , “Non-Commercial Transactions and the Interests of Creditors” (1984) 5 The Company Lawyer 55.Google Scholar
129 [1982] 3 All E R 1045.
130 Parkinson, Supra n 128. But cf Re W & M Raith Ltd [1967] l All ER 427 and Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1982] 3 All ER 1057.
131 Parkinson, supra n 128, 65.
132 Thus it remains necessary to turn to 35(5)(a) for a general declaration of purely corporate powers.
133 [1982] 3 All ER 1057.
134 Companies and Securities Legislation (Miscellaneous Amendments) Bill 1985, Explanatory Paper June 1985, para 207.