Re NSW Tennis Association Limited [2004] NSWSC 175

Reported Decision : 49 ACSR 83

New South Wales Supreme Court

CITATION : Re NSW Tennis Association Limited [2004] NSWSC 175 HEARING DATE(S) : 15 March 2004 JUDGMENT DATE : 15 March 2004 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Order that charge be completely removed from the Register refused. Particulars of charge amended.

CATCHWORDS : CORPORATIONS - corporate finance - amendment of particulars of charge - whether possible for charge to be completely removed from the Register - what is "a particular with respect to a registrable charge on property of a company" LEGISLATION CITED : Corporations Act 2001 (Cth) CASES CITED : In Re Nye Limited [1971] 1 Ch 442 PARTIES : New South Wales Tennis Association Limited - Plaintiff FILE NUMBER(S) : SC 1113/04 COUNSEL : J Robson - Plaintiff SOLICITORS : Parish Patience Immigration Lawyers - Plaintiff

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

CAMPBELL J

MONDAY 15 MARCH 2004

1113/04 APPLICATION OF NEW SOUTH WALES TENNIS ASSOCIATION LIMITED JUDGMENT – Ex Tempore 1 HIS HONOUR: The New South Wales Lawn Tennis Association Limited ("the Company") is a company which was incorporated in the early years of the twentieth century. 2 Such records as are currently available show that, on about 1 August 1908, one of the original founders of the Company, Sir Daniel Cooper, lent to the Company the sum of £1254, secured by a mortgage over land owned by the Company in Manning Road, Double Bay. Sir Daniel died in London on 13 June 1909. Local executors obtained a resealing of the probate of his will. 3 The financial records of the Company recorded the debt owing to the estate of Sir Daniel Cooper in the balance sheet as at 31 December 1912 and in the balance sheet as at 31 December 1915. A register of mortgages and charges under the Companies (Registration of Securities) Act 1918, showed that the charge was registered on 11 March 1919 and that, at that time, the amount secured had been reduced to £222. The balance sheet of the Company as at 31 December 1925 records no amount owing to the estate of Sir Daniel Cooper. 4 The records of ASIC relating to the Company continue to show a charge registered in favour of the estate of the late Sir Daniel Cooper, created on 1 August 1908. 5 The Company asks the Court to remove that charge from the Australian Register of Company Charges or, alternatively, to make a declaration that the charge is no longer enforceable. 6 Section 274 of the Corporations Act 2001, provides: "Where the Court is satisfied: (a) that a particular with respect to a registrable charge on property of a company has been omitted from, or misstated in, the Register or a memorandum referred to in section 269; and (b) that the omission or misstatement: (i) was accidental or due to inadvertence or to some other sufficient cause; or (ii) is not of a nature to prejudice the position of creditors or shareholders; or that on other grounds it is just and equitable to grant relief; the Court may, on the application of the company or any person interested and on such terms and conditions as seem to the Court just and expedient, order that the omission or mis-statement be rectified." 7 I think that the better view is that that section does not extend so far as to enable a charge to be completely removed from the register. In this respect, I follow the decision in In Re Nye Limited [1971] 1 Ch 442. 8 Further, this application is brought by the Company alone: there is no contradictor to it. For that reason, it would not be appropriate to make a declaration of the type which has been sought. 9 However, the evidence satisfies me that there has been no claim made by anyone representing the estate of Sir Daniel since 1925, and that there is no reason to believe it is possible, given the running of limitation periods, that the debt remains enforceable. Attempts to find the current executors of the estate have failed. If there was any realistic chance that an order for substituted service would bring the present application to the attention of the executors, I would require substituted service. In the present case, ordering it would be an empty ritual. It is possible for an application to be made under section 274 without service of anyone, though ordinarily the Court would not make an order without notice to any person whose interests might be prejudiced. 10 The Register of Charges is kept in a form which makes provision for information to be entered against certain headings, which are part of the prescribed form. It is information so entered against one of those headings which amounts, it seems to me, to "a particular with respect to a registrable charge on property of a company". 11 In the present case, the form contains a provision for stating the "type" of the charge. That heading has a blank alongside it. In circumstances where the charge secures no money, the continuing existence of the entry relating to the charge on the register is apt to cause a reader of the Register to be misled. 12 I would construe section 274 sufficiently widely to enable the power under section 274 to be exercised in a way which allows particulars with respect to a charge to be altered in a way which is calculated to have the reader of the register not misled. 13 In my view, it is within the power contained under section 274 to order that the entry in the Australian Register of Charges relating to the Company be amended so that, alongside the heading "type" is inserted the words "charge securing no debt enforceable against the Company as at 15 March 2004". 14 I order that the Register be amended in that fashion. This order may be entered forthwith. **********