Australian Securities & Investments Commission, In the Matter of Richstar Enterprises Pty Ltd ACN 099 071 968 (No 9) v Carey [2006] FCA 1242

FEDERAL COURT OF AUSTRALIA

Australian Securities & Investments Commission, In the Matter of Richstar Enterprises Pty Ltd ACN 099 071 968 (No 9) v Carey [2006] FCA 1242

CORPORATIONS – freezing orders affecting property of members of corporate property group – liberty to third parties to apply – option to purchase valuable land – held by member of corporate group as assignee from another member of corporate group – assigned option subject to freezing order – assignor company subject to fixed charge over 'land' and other property classes – assignment of option without notice to chargee – receivers appointed to assignor company under charge – application to vary freezing orders to enable receivers to assert and exercise rights to option held by assignee company – whether appropriate to determine substantive rights as an incident of protective proceedings under s 1323 of Corporations Act 2001 (Cth) – urgency - option due to expire within five weeks of hearing – unresolved question as to validity of option against Responsible Entity for syndicate of investors in relation to land – whether appropriate to make declaration as to whether charge over option fixed or floating at creation – discovery of documents – whether discovery should be ordered in favour of assignee company – relevance to commercial context of charge – relevance to construction of charge – whether charge fixed or floating – criteria for characterisation – case of urgency – no useful purpose served by discovery – discovery oppressive in circumstances of urgency - declaration made – charge fixed – freezing orders varied Corporations Act 2001 (Cth) s 1323 Federal Court of Australia Act 1976 (Cth) Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd v Carey (No 3) (2006) 57 ACSR 307 cited Barba v Gas & Fuel Corporation of Victoria (1976) 136 CLR 120 cited London and South Western Railway Co v Gomm (1882) 20 Ch D 562 cited In re Yorkshire Woolcombers Association [1903] 3 Ch 284 cited United Builders Pty Ltd v Mutual Acceptance Ltd (1980) 44 CLR 673 cited Illingworth v Houldsworth [1904] AC 355 cited Agnew v Commissioner of Inland Revenue [2001] 2 AC 710 cited Re Spectrum Plus Limited [2005] 2 AC 680 cited Waters v Widdows [1984] VR 503 cited Deputy Commissioner of Taxation v LAI Corporation Pty Ltd (Receivers and Managers Appointed) [1987] WAR 15 cited Boambee Bay Pty Ltd (In liq) v Equus Financial Services Ltd (1991) 6 ACSR 532 cited Hanson Construction Materials v Vimwise Civil Engineering [2005] NSWSC 880 cited