Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Company [2011] FCA 630 Citation: Transpacific Pty Ltd v Prudential Retirement Insurance Annuity Company [2011] FCA 630
Parties: TRANSPACIFIC PTY LTD ACN 073 644 612 v PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY, DAVID JOHN WINTERBOTTOM and DAVID PAUL MERRYWEATHER
File number: NSD 120 of 2011
Judge: STONE J
Date of judgment: 9 June 2011
Catchwords: MORTGAGES – aircraft mortgage – application for interlocutory relief – orders sought relating to control and operation of aircraft – orders sought to compel mortgagee to consent to lease or to permit lease to be granted without consent – whether withholding consent is unconscionable or misleading and deceptive or whether mortgagee has waived consent – terms of mortgage give mortgagee wide discretion in imposing conditions on consent – limits on discretion determined by context – may be expressed as a duty to act in good faith in exercising contractual rights – context in these circumstances is mortgagee's right to protect its security interest – question is whether conditions imposed are within mortgagee's rights under the mortgage – consideration to be given to the nature of the physical security interest – aircraft has peculiar vulnerabilities – not for Court to determine level of satisfaction of conditions commensurate with mortgagee's right under the mortgage – a serious question not raised – orders not made
Legislation: Competition and Consumer Act 2010 (Cth) Sch 2 Australian Consumer Law, s 22
Cases cited: Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1 Esso Australian Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 Overlook Management BV v Foxtel Management Pty Ltd [2002] NSWSC 17
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