Lift Capital Partners Pty Ltd v Merrill Lynch International [2009] NSWSC 7

224 FLR 125 Reported Decision : 73 NSWLR 404 253 ALR 482 69 ACSR 385

New South Wales Supreme Court

CITATION : Lift Capital Partners Pty Ltd v Merrill Lynch International [2009] NSWSC 7

HEARING DATE(S) : 11/11/08, 12/11/08. 13/11/08

JUDGMENT DATE : 3 February 2009

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

DECISION : Short minutes to be brought in.

CATCHWORDS : AGENCY - appointment of attorney by deed - scope of attorney's authority - need for authority to execute deed to be created by deed - DEEDS - what amounts to a deed - purported deed between named company and each person "identified from time to time in the Annexure to this Deed" - where no "annexure" physically attached to deed - whether unattached electronic record may be "the Annexure to this Deed" - DEEDS - form and execution - need for signing, sealing and delivery - statutory deeming of sealing where there is signing and attestation - need for delivery contemporaneously with or after signing and attestation - purported delivery by attorney ineffective in absence of signing by principal or principal's attorney - CORPORATIONS - corporate finance - securities lending - elements of "lending" that is "compliant with" s 26BC Income Tax Assessment Act 1936 (Cth) - where subject matter is ASX listed shares held under CHESS system - whether "borrower" obliged to restore the shares "lent" or to transfer identical shares - whether "lender" by lending acquires any interest in shares owned or held by "borrower" - CONTRACTS - construction and interpretation - effect of provisions allowing mortgagee to dispose of mortgaged property - MORTGAGES - equity of redemption - rule against clogging - whether rule against fetter upon equity of redemption is an absolute rule or applicable only in cases of unconscionability - held unconscionability is a necessary element - whether unconscionability shown in the circumstances of this case