General Motors Acceptance Corp Australia v Southbank Traders Pty Ltd [2007] HCA 19

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, KIRBY, HAYNE AND HEYDON JJ

GENERAL MOTORS ACCEPTANCE

CORPORATION AUSTRALIA & ANOR APPELLANTS

AND

SOUTHBANK TRADERS PTY LTD RESPONDENT

General Motors Acceptance Corp Australia v Southbank Traders Pty Ltd

[2007] HCA 19

16 May 2007

M132/2006

ORDER

1. Appeal allowed with costs. 2. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 31 May 2006. 3. Remit the matter to the Court of Appeal of the Supreme Court of Victoria for further consideration in accordance with the reasons of this Court. 4. The Court of Appeal of the Supreme Court of Victoria to determine the question of costs at trial and in the Court of Appeal in the light of its further disposition of the matter.

On appeal from the Supreme Court of Victoria

Representation

D F Jackson QC with A P Trichardt for the appellants (instructed by Corrs Chambers Westgarth)

W T Houghton QC with I W D Upjohn for the respondent (instructed by Browne & Co Solicitors)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

General Motors Acceptance Corp Australia v Southbank Traders Pty Ltd

Chattel Securities Act 1987 (Vic) – Meaning of "security interest" – Where respondent had entered into a conditional sale agreement for motor vehicles with a third party – Where sale agreement contained a "Romalpa clause" – Where appellant was a purchaser from the third party – Competing interests of appellant and respondent – Whether respondent held a security interest – Whether including conditional sales within the meaning of security interest is consistent with the purpose and text of the Chattel Securities Act 1987 (Vic) – Whether rights over property owned by the debtor must be "conferred" on the creditor for a security interest to exist – Whether an interest over goods which is reserved, not created, can constitute a security interest.