Albert Gardens (Manly) Pty Ltd v Mercantile Credits Ltd [1973] HCA 60

High Court of Australia Barwick C.J. McTiernan and Gibbs JJ. Albert Gardens (Manly) Pty Ltd v Mercantile Credits Ltd [1973] HCA 60

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 21 Barwick C.J.

This suit, brought by the appellant company (the appellant), as matters now stand, asserts the invalidity of seven securities under some one or more of which the respondent claims to have validly appointed a receiver of the appellant's property. The grounds of invalidity propounded by the appellant are, first, that those who executed the security documents either had not been duly appointed, or lacked qualification to be appointed, as directors of the appellant and, second, that the amounts for which the securities were given exceeded at the date of their execution the upward limit of the borrowing powers of the directors of the appellant fixed by its articles of association and that the respondent had express notice of that fact.

The seven securities were executed in formal conformity with the articles of the appellant on the dates, for the amounts, and by the persons conveniently set out as under by the learned Chief Judge in Equity who heard and dismissed the suit: Date Nature of Instrument Amount of Principal Signatories as Directors Signatories as Secretary 1/6/61 Mortgage £268,840/—/— S. P. Mathieson Phillip J. W. Mathieson C. E. Cox 9/6/61 Debenture 3,162/13/9 S. P. Mathieson C. E. Cox J. W. Mathieson 30/6/61 Debenture 6,282/16/— S. P. Mathieson R. B. Wallis J. W. Mathieson 14/7/61 Debenture 3,729/1/4 J. W. Mathieson R. B. Wallis S. P. Mathieson 16/8/61 Debenture 3,602/17/5 J. W. Mathieson Phillip S. P. Mathieson C. E. Cox 15/9/61 Debenture 6,212/—/— S. P. Mathieson C. E. Cox J. W. Mathieson 19/10/61 Debenture 3,295/4/9 S. P. Mathieson R. B. Wallis G. Kelly