The Comptroller-General of Customs forwards the following case for opinion:

On 5 October 1916, by Commonwealth of Australia Gazette No.137, sundry shares in the Amalgamated Zinc (de Bavay's) Ltd were vested in the Public Trustee.

Under date 17 April 1917, the Solicitor-General authorised the Public Trustee to sell the shares in question.

By minute dated 17 September 1917, a letter as follows received by the Public Trustee was referred to the Secretary, Attorney-General's Department, for favour of advice, namely:

Amalgamated Zinc (de Bavay's),

Collins Street,

Melbourne.

Adverting to my letter of 19 May last and previous correspondence, I beg to inform you that the 25,520 shares referred to have been received from London but same have not been placed on the Melbourne register for the following reasons:

Since instructions to transfer these shares were given to our London office, the questions incident to the proposed sale of same by yourself have been considered.

Our solicitors have had an opportunity of perusing the opinion expressed by Messrs Blake and Riggall, as solicitors of the Mt Lyell Mining and Railway Company Ltd, and a copy of the letter addressed to you by the Broken Hill Proprietary Company Limited.

Our solicitors concur in the opinion expressed by Messrs Blake and Riggall, and I am directed to ask whether it is your intention to take action to obtain in the English courts an order vesting in you the legal and equitable right in the shares which you propose to sell.

Our solicitors concur in the statement that questions of most difficult nature are present owing to the possibility of there being impliedly an English contract which cannot be affected by Australian legislation in consequence of the territorial limitation of Australian legislative powers, and they agree that as it is impossible at present to establish beyond doubt the status or enemy character of all the shareholders, my Company will run a serious risk if it is subsequently proved that any such shareholder is not bound by the Regulations. This applies particularly to naturalized persons of enemy origin.

Appli ications addressed to the Attorney-General's Department under date 20 December and 4th instant for an early settlement have not been responded to, and a letter as follows has now come to hand from the Amalgamated Zinc (de Bavay's) Ltd, namely:

I beg to refer you to my letter of 12 September last, acknowledged by yours of the 18th idem and will be glad to know what action it is proposed to take in regard to the 25,520 shares which have been transferred from London, but which, for reasons stated in my letter above mentioned, have not so far been placed on the Melbourne register.

An early reply will be esteemed. Meanwhile I would like to say that we are retaining the dividends payable on those shares.

The position is that notwithstanding the fact that the shares were vested in the Public Trustee on 5 October 1916, and that the Solicitor-General issued an order so far back as 17 April 1917, authorising sale, the shares in question are still unsold.

I shall therefore be glad if the Secretary will kindly cause me to be furnished with early advice as to-

1. Whether the vesting order as set out in Commonwealth of Australia Gazette No. 137 of 5 October 1916, is to stand; and
2. Whether under the Solicitor-General's direction of 17 April 1917, the shares may be forthwith sold.

It will be noted that the shares cover a very large holding in Zincs, and it is most desirable that this Department should not lay itself open to a charge of delay in disposing of the 'enemy' interest. It is this fact mainly which makes it necessary for me to urge early settlement.

I have carefully perused the opinion of Messrs Blake and Riggall, but I am unable to agree that the regulations which provide for the vesting of the shares in the Public Trustee are ultra vires as regards shares on the London register.

That register is a register established in London by virtue of Australian law (i.e. the Companies Act of a State). The shares are shares in an Australian Company, and the rights of ownership in them are governed by Australian law. It appears to me quite immaterial where the register of the shares is kept; the Company is an Australian corporation, and I think that the vesting order of the Solicitor-General operates over shares on the London register as well as on those on Australian registers.

My answers to the questions asked are:

1. The vesting order should stand.
2. The shares should be sold under the direction.

[Vol. 15, p. 389]