Mhanna v Sovereign Capital Limited [2004] FCA 1040

FEDERAL COURT OF AUSTRALIA

Mhanna v Sovereign Capital Limited [2004] FCA 1040 CORPORATIONS – leave sought to institute proceedings in the name of the company pursuant to s 237 of the Corporations Act 2001 (Cth) – purpose of proceedings to have an account taken as between mortgagor and mortgagee – statutory requirements satisfied – leave granted MORTGAGES – an account may be ordered where there is no offer to redeem – offer to redeem required in ordinary circumstances – applicants unable to make offer in their own names – grant of leave to commence proceedings in the name of the company includes the authority to offer in the name of the company to redeem the mortgage – absence of offer to redeem no impediment to grant of leave Corporations Act 2001 (Cth) s 236(1)(a), 236(2), 237, 237(2), 436C Federal Court (Corporations) Rules 2000

Charlton v Baker (2003) 47 ACSR 31 referred to Scandinavian Pacific Ltd v Burke (1991) 5 BPR 11,846 referred to E Tyler, P Young and C Croft, Fisher & Lightwood's Law of Mortgage (Australian Edition, 1995) JOHN MHANNA & ANOR v SOVEREIGN CAPITAL LIMITED & ANOR N 908 OF 2004 HELY J 13 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 908 OF 2004

BETWEEN: JOHN MHANNA

FIRST APPLICANT

EMAN SHONODA

SECOND APPLICANT

AND: SOVEREIGN CAPITAL LIMITED

(ACN 085 821 218)

FIRST RESPONDENT

PETER GEORGE YATES AND DAVID JOHN FRANK LOMBE AS RECEIVERS AND MANAGERS OF HIGHWATCH PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED)

(ACN 101 120 389)

SECOND RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 13 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Leave be granted to the first and second applicants to bring proceedings on behalf of Highwatch Pty Ltd (ACN 101 120 389) against the first respondent claiming the relief set out in the draft Amended Application annexed to the Notice of Motion filed on 26 July 2004. 2. Leave be granted to the first and second applicants to file an amended application against the first respondent in the form of the draft Amended Application, subject to the replacement, where necessary, of the terms 'applicant' and 'respondent' with 'plaintiff' and 'defendant'. 3. Costs of the motion to be costs in the proceedings.