Australian Softwood Forests Pty Ltd v Attorney-General (NSW) (Ex Rel Corporate Affairs Commission)

148 CLR 121
36 ALR 257

---

(Judgment by: Gibbs CJ)

Between: Australian Softwood Forests Pty Ltd
And: Attorney-General (NSW) (ex rel Corporate Affairs Commission)

Court:

Judges:
Gibbs CJStephen J
Mason J
Murphy J
Wilson J

Hearing date: 4 December 1980
Judgment date: 18 September 1981

Canberra

---

Judgment by:
Gibbs CJ

I have had the advantage of reading the reasons for judgment prepared by my brother Mason and by my brother Wilson. I have reached the conclusion that in the present case the appellant issued or offered to the public for subscription or purchase an interest within the meaning of s. 76 of the Companies Act 1961 (NSW), as amended, and am in general agreement with the reasons given by my brethren for reaching this conclusion. However, I do not consider that it is necessary in the present case to decide whether a grower under the scheme obtained an interest in the nature of a profit a prendre. Clearly each grower had an interest in the timber on severance and had a right to participate in the realization of the scheme. In addition I agree that there was a "common enterprise" within par. (b) of the definition of "interest" contained in s. 76.

With all respect, Hutley J.A. was not correct in saying that declarations "are little more than prefatory averments to the grant of an injunction". In my opinion it was proper to grant a declaration in the present case although it is now agreed that an injunction is not an appropriate remedy.

I would dismiss the appeal and allow the cross appeal. I would set aside the order for an injunction and make declarations with regard to Plantations No. 66A to 70A inclusive.