Tonic Pty Ltd v State of South Australia [2019] FCA 1361

FEDERAL COURT OF AUSTRALIA

Tonic Pty Ltd v State of South Australia [2019] FCA 1361 File number: SAD 260 of 2018

Judge: CHARLESWORTH J

Date of judgment: 26 August 2019

Catchwords: CORPORATIONS – real property disclaimed by company liquidator – disclaimed property vesting in the Crown under the doctrine of escheat - applicant seeking an order to the effect that the disclaimed property be vested in it under s 588F of the Corporations Act 2001 (Cth) – application made more than five years after disclaimer – whether appropriate to make the vesting order – applicant's financial affairs intermingled with affairs of company – applicant obtaining a loan facility secured by mortgage – applicant repaying loan resulting in discharge of mortgage – purpose of loan unrelated to the disclaimed property – applicant unsecured creditor of company – other unsecured creditors obtaining no dividend in the winding up – liquidator unremunerated in the winding up – application refused

Legislation: Corporations Act 2001 (Cth) ss 475, 476, 568, 568A, 568B, 568D, 568E, 568F, 601AB Law of Property Act 1936 (SA) ss 69, 70

Cases cited: Attorney-General of Ontario v Mercer (1883) 8 App Cas 767 Australia and New Zealand Banking Group Limited v State of Queensland [2018] FCA 464 Australia and New Zealand Banking Group Ltd v Fairfield City Council [2016] NSWSC 668 National Australia Bank Limited v State of New South Wales [2014] FCA 298 RAMS Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75; (2007) 239 ALR 799 Re Middle Harbour Investments Ltd (in liq) [1977] 2 NSWLR 652; (1976) 2 ACLR 226 Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556