Porter v Computer Based Technology Pty Ltd [2004] NSWSC 476

New South Wales Supreme Court

CITATION : Porter v Computer Based Technology Pty Ltd [2004] NSWSC 476 HEARING DATE(S) : 13 and 16 February, 2004 JUDGMENT DATE : 4 June 2004 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : A valid equitable mortgage had been created; the conduct of the secured creditor in lodging a proof of debt in the liquidation was equivocal in the circumstances; no election to surrender the security was to be imputed.

CATCHWORDS : CORPORATIONS - WINDING UP - SECURITY - SURRENDER - ELECTION - Whether evidence as to circumstances of creation of an equitable mortgage should be accepted - issues of credit - whether lodgement by the secured creditor of a proof of debt in the liquidation was conduct from which an irrevocable election to surrender the equitable mortgage could be imputed - principles summarised. LEGISLATION CITED : Corporations Act 2001 (Cth) - Pt 5.9, s. 530B, s.530C, s.554E, s.597(14) Evidence Act 1995 (NSW) - s.140(2)(c) - Briginshaw v Briginshaw (1938) 60 CLR 336 - Douglas Homes Qld Pty Ltd (in liq), Re [1980] Qd R 528 - Ferguson, Re; ex parte Elder's Trustee & Executor Co Ltd (1943) 13 ABC 1 CASES CITED : - Jones v Dunkel (1959) 101 CLR 298 - Kelso v McCulloch (24 October 1994, NSWSC, Young J) - Moor v Anglo-Italian Bank (1879) 10 Ch D 681 - Seventeenth Canute Pty Ltd v Bradley Air Conditioning Pty Ltd (in liq) [1987] 1 Qd R 111 - Surfers Paradise Investments Pty Ltd (in liq) v Davoren Nominees Pty Ltd [2003] QCA 458 Richard James Porter - Plaintiff/First Cross Defendant PARTIES : Computer Based Technology Pty Ltd - First Defendant/Cross Claimant Bruce Percy Hocking - Second Defendant Imperial Plantations Pty Ltd (In liq) - Second Cross Defendant FILE NUMBER(S) : SC 4920/03 COUNSEL : R.W. Tregenza - Plaintiff/Cross Defendants S. Loughnan - Defendants/Cross Claimant SOLICITORS : Access Business Lawyers - Plaintiff/Cross Defendants B.P. Hocking - Defendants/Cross Claimant