Mainka v Custodian of Expropriated Property (1924) 34 CLR 297; 31 ALR 1 See also Rabaul Times of 8/9/1933 or it may be to Sutherland v R [32/1923]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Starke J:
• Judgment Date: 10 June 1924
• Year: 1924

High Court: Isaacs J, Rich J, Starke J

Judgment Delivered: 10 June 1924

1 Constitutional Law—High Court—Jurisdiction—Appeal from Central Court of New Guinea—Federal Court—Territory acquired by Commonwealth—The Constitution (63 & 64 Vict c12), s73, s122—Treaty of Peace Act 1919 (9 & 10 Geo V c33), s1—New Guinea Act 1920 (No. 25 of 1920), s4, s5, s14—Treaty of Peace, art 22, art 119—Mandate by Council of the League of Nations of 17 December 1920, art 2—Judiciary Act 1921–1922 (NG) (Acts under New Guinea Act 1920, No 3 of 1921—No 22 of 1922), s7, s24.

2 Company—Company established under German law in New Guinea—New capital—Payment to company—Payment to banker of company—Acquiescence of company—Rights of shareholder.

The High Court has jurisdiction to entertain an appeal from the Central Court of the Territory of New Guinea.

Prior to the War a commercial company with limited liability was formed in German New Guinea under German law, of which the appellant and N were the only shareholders, and each of them had contributed the same proportion of the capital. In 1913 N went to Germany and never returned to German New Guinea. In 1916 the capital of the company was increased by a certain sum of which each shareholder was to pay in one half, but, it being impossible for N to be communicated with during the War, the company announced that the appellant took over the whole amount of the new capital and that the right of taking over one half of the new capital was reserved to N until six months after the termination of the War provided that he had paid in his share with interest to the company.

Held, that a payment made within the time limited on behalf of N to a firm in German New Guinea which was the banker of the company, such payment having been authorised by the only representative of the company then in German New Guinea and not having been disavowed by the company, was a payment in of N's share to the company so as to entitle him to an interest in the new capital equal to that of the appellant.

Decision of the Central Court of the Territory of New Guinea (Drake Brockman J) affirmed.

APPEAL from the Central Court of the Territory of New Guinea.

Early in 1911 a company was duly formed in German New Guinea pursuant to German law called the Londip Pflanzung Gesellschaft mit beschrankter Haftung, of which the only shareholders were Karl Nauer and Karolina Charlotte Mainka, who contributed equally to the capital of the company which, until the increase hereafter mentioned, was 90,000 marks. Nauer went to Germany in 1913, and never returned. In 1916 the capital of the company was increased by 25,000 marks. In 1923 an action was brought in the Central Court of the Territory of New Guinea by the Custodian of Expropriated Property, as representing Nauer, against Mrs Mainka and the company, by which the plaintiff claimed in substance a declaration that Nauer was entitled to one half of the new capital of the company. The action was heard by Drake Brockman J, who gave judgment for the plaintiff.

From that decision Mrs Mainka now appealed to the High Court.

The other material facts are stated in the judgment of Isaacs J hereunder.

Leverrier K.C. (with him Teece KC and Harrington), for the appellant. The High Court has jurisdiction to entertain an appeal from the Central Court of the Territory of New Guinea. Under s73 of the Constitution the High Court has jurisdiction to entertain appeals from any Federal Court, that is, any Court established by the Parliament of the Commonwealth (see R v Bernasconi (1915) 19 CLR 629).

[GAVAN DUFFY J referred to In re Judiciary and Navigation Acts (1921) 29 CLR 257.]

By the Judiciary Act 1921–1922, made under the authority of the New Guinea Act 1920, s14, the Central Court was established (s7) and an appeal was given to the High Court (s24). The authority of the Parliament to enact the New Guinea Act is contained in s122 of the Constitution, which gives power to the Parliament to make laws for the government of "any territory placed by the Queen under the authority of an accepted by the Commonwealth, or otherwise acquired by the Commonwealth." The Territory of New Guinea was "otherwise acquired" by the Commonwealth, namely, by the renunciation by Germany in favour of the Principal Allied and Associated Powers "of all her rights and titles over her Possessions in the Pacific" (Treaty of Peace, art 119), the Mandate conferred by the Council of the League of Nations upon the Commonwealth for the government of German New Guinea, the acceptance by His Majesty the King of the Mandate on behalf of the Commonwealth pursuant to the Treaty of Peace Act 1919 (9 & 10 Geo V c 33), s1, and the acceptance of that Mandate by the Commonwealth by the New Guinea Act 1920. [On the merits of the appeal counsel referred to Todd v Reid (1821) 4 B & Ald 210; Sweeting v Pearce (1859) 7 CB (NS) 449; Pearson v Scott (1878) 9 Ch D 198; Pape v Westacott [1894] 1 QB 272.]

EM Mitchell (with him JH. Moore), for the respondent. The Central Court is properly described as a Court exercising Federal jurisdiction within the meaning of s73 of the Constitution, for it exercises a jurisdiction derived from the Commonwealth (Lorenzo v Carey (1921) 29 CLR 243 at 252; Menges v R (1919) 26 CLR 369; Buchanan v Commonwealth (1913) 16 CLR 315; Mitchell v Barker (1918) 24 CLR 365). The intention of s73 of the Constitution was to give the High Court jurisdiction to hear appeals from all Courts over which the Commonwealth Parliament has control.

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