Public Trustee of Queensland v Fortress Credit Corporation(Aus) 11 Pty Ltd [2010] HCA 29

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, KIEFEL AND BELL JJ

PUBLIC TRUSTEE OF QUEENSLAND APPELLANT

AND

FORTRESS CREDIT CORPORATION (AUS) 11

PTY LTD & ORS RESPONDENTS

Public Trustee of Queensland v Fortress Credit Corporation

(Aus) 11 Pty Ltd [2010] HCA 29

1 September 2010

B9/2010

ORDER

1. Appeal dismissed.

2. Appellant to pay first respondent's costs.

On appeal from the Supreme Court of Queensland

Representation

W Sofronoff QC, Solicitor-General of the State of Queensland with D B O'Sullivan for the appellant (instructed by Clayton Utz Lawyers)

D F Jackson QC with M J Luchich for the first respondent (instructed by Baker & McKenzie Solicitors)

Submitting appearance for the second, third and fourth respondents

No appearance for the fifth respondent

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

CATCHWORDS

Public Trustee of Queensland v Fortress Credit Corporation (Aus) 11 Pty Ltd

Corporations – Charge – Registration – First respondent ("Fortress") obtained fixed and floating charge over assets of second respondent ("Octaviar") – Charge secured all moneys payable under or in relation to certain documents, including such documents as Fortress and Octaviar agreed in writing – Fortress and Octaviar subsequently agreed by deed ("Deed") that charge secured liability of Octaviar to Fortress under guarantee – Whether charge void, to extent it secured Octaviar's guarantee, under s 266 of the Corporations Act 2001 (Cth) ("the Act") – Whether execution of Deed required notice to be lodged under s 268 of the Act – Whether Deed effected "variation in the terms of the charge" – Relevance of legislative policy expressed in Ch 2K of the Act – Whether Deed created new charge requiring registration under s 263 of the Act.