Exception Holdings Pty Ltd v Albarran (No 2) [2005] NSWSC 981

Reported Decision : (2006) 24 ACLC 23

New South Wales Supreme Court

CITATION : Exception Holdings Pty Ltd v Albarran (No 2) [2005] NSWSC 981

HEARING DATE(S) : 18 and 25 August 2005

JUDGMENT DATE : 29 September 2005

Equity Division JURISDICTION : Corporations List

JUDGMENT OF : Young CJ in Eq

DECISION : Interlocutory process dismissed.

CATCHWORDS : CORPORATIONS [72]- Charge- Deceased estate loaned money to company to discharge debt to third party- Loan secured by registered charge- Charge previously held to be void ab initio under Corporations Act, s 267- Whether leave under s 267(3) to enforce can nonetheless be granted nunc pro tunc- Discussion of test for insolvency. EQUITY [14]- Subrogation- Deceased estate loaned money to company to pay out company's debt to bank- Bank's loan secured by registered charge- Estate obtained registered charge- Estate's charge subsequently declared void- Clear intention that estate would receive some form of security for loan- Whether estate entitled to be subrogated to bank's security- Whether estate obtained all security it bargained for- Distinction made between charge that is void ab initio and one that becomes void. EQUITY [32]- Oral charge- Content of charge contained in subsequent deed- Whether oral charge merged in deed. PROCEDURE [490]- Leave to re-open and set aside orders- Certain issues canvassed in defence and submissions at previous hearing- Court disallowed ventilation of issues due to limited time- Orders of previous hearing not yet taken out- Unfair to shut out defendant/cross-claimant for failing to argue issues previously.

Conveyancing Act 1919, s 184(1) LEGISLATION CITED : Corporations Act 2001 (Cth), ss 58AA, 95A, 266, 267, 1322