Case: National Education Advancement Programs (NEAP) Pty Ltd v Ashton (1995) 33 IPR 281
Outcome: discussed
National Education Advancement Programs (NEAP) Pty Ltd v Ashton (1995) 33 IPR 281 , Young J had to consider the question whether s 219 of the Law required an examination paper marketed by the plaintiff for use by schools for trial examinations to bear the plaintiff's ACN number. The answer turned on the question whether examination papers fell within s 88A of the Act. His Honour said (at p 293): An examination paper is not within the items specifically excluded from the definition in s 88A and one would have thought that such papers are closer to the categories of business letters etc than what is exempt, namely packaging. However, it does seem to me that the exercise in statutory interpretation is to look to see what is ejusdem generis with business letter, statement of account, invoice, receipt etc. All these documents are documents used in trade or commerce. An examination paper or a book or other writings which are intellectual property would seem to me to be in a different class. Young J said that while it was difficult to work out from ss 88A and 219 exactly where to draw the line, the test seemed to be whether the document concerned was one that was possibly part of a process of a business transaction or business contract involving the company. He said that if the document was non-contractual, the ACN number did not have to appear, because the purpose of s 219 appeared to be to make it clear that when a person was dealing with a company, exactly which company in perhaps a group of similarly named companies or companies using similar trading names, was the one with which the person was dealing. In my opinion, the purpose of s 450E(2) is generally similar: to make it clear to persons who are having or are contemplating having business dealings with the company or extending credit to it, that they are or will be dealing with a company that is subject to a DOCA. All five letters concerned were addressed to creditors of the particular company, Sisterella or Trinbay, that was subject to a DOCA. McPherson's Law of Company Liquidation (4 th ed, 2000, by Andrew Keay) states as follows in relation to the lien of a liquidator (at p 305): Liquidators normally have an equitable lien over the funds and assets in her or his control, not only for the costs and expenses of obtaining the property or funds but also for general remuneration [ Nationwide News Pty Ltd v Samalot Enterprises Pty Ltd (No 2) (1986) 5 NSWLR 227 ; 10 ACLR 748 , Shirlaw v Taylor (1991) 9 ACLC 1235]. While this has been accepted as the general position, Young J stated in Re Biposo Pty Ltd (No 4) [Unreported, Supreme Court, NSW, 12 December 1995] that it is an over-simplification to say that there was a lien over all of the moneys which liquidators have in their possession. His Honour went on to say that that is the normal situation, but the lien only arose if a court of equity felt that it was conscionable that there be a lien. I paraphrased the Tribunal's reasons in relation to Mr Gould's lien submission at [187] [188] above. That submission was raised for the first time in six lines in Mr Gould's written submissions before the Tribunal (para 161). While the Tribunal did not deal with the submission at length, it made it clear that the reason why the lien submission was not accepted was that the late fees were not a proper expense of the liquidation. I agree that they were not and that any lien that Mr Gould had did not extend to cover the $120. Moreover, when Mr Gould paid the $120 out of Popwing's liquidation account on 5 February 1999, he was not appropriating to himself money in part payment of fees then due to him. That he was not doing so is shown by the fact that neither in his later invoice nor elsewhere did he give credit for the sum of $120 as a payment of his fees. Nor was he preserving the fund as security for whatever fees might ultimately prove to be payable to him. At that time he was simply using money that he held for company purposes to pay $120 that he was personally liable to pay. His doing so cannot be justified retrospectively by a reconstruction of events or by an argument based on some concept of economic equivalence.