Impossible obligations

Barnden, in re Millrange Pty Ltd [2021] FCA 415

What happens when a statutory obligation is impossible to comply with?  In this corporations law case, the liquidator had to notify all creditors a pooling order was to be sought13.  Jagot J (at [5]) held that, where a statutory obligation cannot be complied with ‘for some reason beyond the control of the person’, compliance is not insisted on14.

As a more general proposition, in all civilised legal systems ‘laws must not command the impossible’15.  Bennion (at 1129-1133) deals with the principle under its Latin tag – lex non cogit ad impossibiliaiTip – regard this principle with caution and remember that it will not apply where the incapacity is self-induced.

This principle is from Episode 73 of interpretation NOW!


13 s 579E of the Corporations Act 2001 (Cth).

14 Natkunarajah [2020] FCA 419 (at [40]), Pearce 9th ed (at [11.28]) cited.

15 St Pancras (1834) 110 ER 1138 (at 1146), Vanit (1997) 190 CLR 378 (at 384).