IMPACT DATASCAPE PTY LTD (In Liq) v MACINTOSH and ANOR [1994] NSWCA 148

IMPACT DATASCAPE PTY LTD (In Liq) v MACINTOSH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 14 June 1994, 29 July 1994

[1994] NSWCA 148

FACTS

Impact Systems Ltd (2nd respondent) started business in 1984 and acquired Impact Datascape Pty Ltd, the appellant, in January 1986 as a subsidiary. In the fifteen month period ended 30 September, the appellant incurred significant losses and was insolvent by the end of 1987.

On 29 April 1988, Mr Macintosh, the first respondent was appointed as adviser to the Board of Directors of the appellant. He was later appointed Receiver of the second respondent. On 29 April 1988 the first respondent, as the Receiver of the second respondent entered into an agreement for the sale of all the stock on hand purporting to be owned by the second respondent to Gestetner Lasers Pty Ltd ("Gestetner") then known as Milleran Pty Ltd. On 2 September 1988, Mr Hamilton was appointed the appellant's liquidator. He instituted proceedings against the respondents claiming that by the sale to Gestetner there had been a conversion of stock in trade, the property of the appellant, which had never effectively been transferred to the second respondent. Mr Hamilton also sought to recover the trade debts of the appellant which had been collected by the first respondent.

ISSUE

whether an agreement had been concluded between the appellant and the second respondent in late 1987 whereby the appellant transferred and assigned to the second respondent the whole of its assets, book debts and business undertaking with the consequence that title in the goods and moneys, the subject of the action, rested with the second respondent as alleged by the second respondent in late 1987 or, at latest, prior to 19 January 1988.

Held (per Clarke JA; Meagher and Handley JJA concurred)