Venture Platinum Pty Ltd v Rogue Constructions Pty Ltd [2006] FCA 294

FEDERAL COURT OF AUSTRALIA

Venture Platinum Pty Ltd v Rogue Constructions Pty Ltd [2006] FCA 294 VENTURE PLATINUM PTY LTD & ANOR v ROGUE CONSTRUCTIONS PTY LTD NSD241 OF 2006 EMMETT J 10 MARCH 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD241 OF 2006

BETWEEN: VENTURE PLATINUM PTY LTD

FIRST APPLICANT

MORTON SALES PTY LTD

SECOND APPLICANT

AND: ROGUE CONSTRUCTIONS PTY LIMITED

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 10 MARCH 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The originating process be dismissed. 2. The applicants pay all costs reasonably incurred by the respondent in relation to the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD241 OF 2006

BETWEEN: VENTURE PLATINUM PTY LTD

FIRST APPLICANT

MORTON SALES PTY LTD

SECOND APPLICANT

AND: ROGUE CONSTRUCTIONS PTY LIMITED

RESPONDENT

JUDGE: EMMETT J

DATE: 10 MARCH 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicants have commenced a proceeding seeking relief under s 1071F of the Corporations Act 2001 (Cth) ('the Act'). Section 1071F(1) provides that if a relevant authority in relation to a company refuses or fails to register or refuses or fails to give its consent or approval of the registration of a transfer of securities of the company, the transferee may apply to the Court for an order under s 1071F. Section 1071F(2) provides that, if the Court is satisfied on such an application that the refusal or failure is without just cause, the Court may order that the transfer be registered or make such other order as it thinks just and reasonable. The term relevant authority is defined in s 1071F(3) as meaning a person who has authority to register a transfer of securities of the company. 2 The material before the Court indicates that an agreement was entered into between the applicants and certain individuals whereby the applicants were to make a loan to the individuals. As security for that loan the individuals were to transfer shares in the respondent to the applicants. The precise nature of the loan is unclear because there is no stamped loan agreement. A copy has been tendered but has not been admitted by reason of the operation of s 304 of the Duties Act 1997 (NSW) ('the Stamp Duties Act'). Section 304(1) of the Duties Act provides that an instrument that effects a dutiable transaction or is chargeable with duty under the Stamp Duties Act is not available for use in law or equity for any purpose and may not be presented in evidence in a court exercising civil jurisdiction unless it is duly stamped or it is stamped by the Chief Commissioner in a manner approved by the Chief Commissioner. 3 However, under s 304(2) of the Stamp Duties Act a court may admit in evidence an instrument that effects a dutiable transaction or is chargeable with duty in accordance with the provisions of the Stamp Duties Act and does not comply with s 304(1): (a) if the instrument after its admission is transmitted to the Chief Commissioner in accordance with arrangements approved by the Court; or (b) if the name and address of the person liable to pay the duty is forwarded together with the instrument to the Chief Commissioner in accordance with arrangements approved by the Court.