Brookfield Multiplex Capital Management Limited & Ors - Re Multiplex Acumen Property Fund [2009] NSWSC 1014

New South Wales Supreme Court

CITATION : Brookfield Multiplex Capital Management Limited & Ors - Re Multiplex Acumen Property Fund [2009] NSWSC 1014

HEARING DATE(S) : 24 August 2009, 2 September 2009, 9 September 2009

JUDGMENT DATE : 29 September 2009

JUDGMENT OF : Bergin CJ in Eq

DECISION : Time extended

CATCHWORDS : [CORPORATIONS] - Registration of charges - Change of responsible entity - Failure to lodge notice in time - Whether failure due to oversight - Whether failure accidental or due to inadvertence - Application for extension of time to lodge notice - Whether prejudice to creditors apparent

LEGISLATION CITED : Corporations Act 2001

Sanwa Australia Finance Limited v Ground-Breakers Pty Limited (in liquidation) (1990) 2 ACSR 692 CASES CITED : Re Dudley Engineering Pty Limited (1967) 87 WN (Part 1) (NSW) 326 Re Investa Properties Ltd & Anor (2001) 187 ALR 462

PARTIES : Brookfield Multiplex Capital Management Limited (Plaintiff) National Australia Bank Limited (Plaintiff)

FILE NUMBER(S) : SC 3784 of 2009

COUNSEL : EA Collins (Plaintiffs)

SOLICITORS : Clayton Utz (Plaintiffs)

- 10 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BERGIN CJ in Eq

29 SEPTEMBER 2009

3784 OF 2009 BROOKFIELD MULTIPLEX CAPITAL MANAGEMENT LIMITED & ORS: RE MULTIPLEX ACUMEN PROPERTY FUND JUDGMENT 1 The plaintiffs, Brookfield Multiplex Capital Management Limited (Brookfield) and National Australia Bank Limited (the Bank), seek orders pursuant to s 266(4) of the Corporations Act 2001 (the Act) that the time for the lodgement of notices pursuant to s 264 of the Act be extended in respect of charges granted for the benefit of the Bank over the property of Multiplex Acumen Property Fund (the Fund) of which Brookfield is the Responsible Entity. 2 Section 263 of the Act requires a company that creates a charge to ensure that a notice in the prescribed form is lodged with the Australian Securities and Investments Commission (ASIC) within 45 days after the creation of the charge. Section 264 of the Act provides that where a company acquires property that is subject to a charge, the company must ensure that a notice in the prescribed form in relation to the charge is lodged with ASIC within 45 days after the acquisition of the property. 3 Section 266(4) of the Act provides: