Bennell v Westlawn Finance Limited [2010] FCA 658

FEDERAL COURT OF AUSTRALIA

Bennell v Westlawn Finance Limited [2010] FCA 658

Citation: Bennell v Westlawn Finance Limited [2010] FCA 658

Appeal from: Westlawn Finance Ltd v Bennell [2009] FMCA 915

Parties: SUSAN JANE BENNELL v WESTLAWN FINANCE LIMITED and BRUCE GLEESON IN HIS CAPACITY AS THE TRUSTEE IN BANKRUPTCY OF THE BANKRUPT ESTATE OF SUSAN JANE BENNELL

File number(s): NSD 1138 of 2009

Judge: NICHOLAS J

Date of judgment: 25 June 2010

Catchwords: BANKRUPTCY – sequestration order – whether the first respondent was a creditor of the appellant – whether there was a triable issue in relation to claims made by the appellant in Supreme Court proceedings – whether in the circumstances there was an "other sufficient cause" within the meaning of s 52(2)(b) of the Bankruptcy Act 1966 (Cth) to dismiss the creditor's petition – whether the first respondent was a secured creditor of the appellant

EQUITY – equitable assignment – assignment of facility agreement by deed for no consideration – no notice of assignment given to debtor company pursuant to s 12 Conveyancing Act 1919 (NSW) – conduct of assignor sufficient to result in an equitable assignment of the facility agreement

EQUITY – requirements of s 12 of the Conveyancing Act – letter to appellant purported to give notice of assignment and demand payment of amounts owing – terms of notice sufficient to cover appellant's obligations under the guarantee generally – s 12 satisfied as letter gave express notice that the appellant's obligations under the guarantee had been assigned – validity of notice not affected by the fact that the letter also included a demand or that the amount said to be owing was incorrect