Investwell Pty Ltd (In Liquidation) v Daryl Leon Roberts [2011] NSWSC 1152

Supreme Court New South Wales

Medium Neutral Citation: Investwell Pty Ltd (In Liquidation) v Daryl Leon Roberts [2011] NSWSC 1152 Hearing dates: 8 September 2011 Decision date: 27 September 2011 Jurisdiction: Equity Division - Corporations List Before: Hammerschlag J Decision: Upon condition that the defendant undertakes to the Court to prosecute his appeal diligently and with all due expedition, stay ordered until determination of the appeal or until further order Catchwords: CORPORATIONS - ss 588FA(1)(b) and (2) of the Corporations Act 2001 (Cth) - application for stay pending appeal against finding that the defendant (the proposed appellant) received an unfair preference by way of payment of an unsecured debt when the company was insolvent - sole ground of proposed appeal is that s 588FA did not apply because the payment was secured by equitable mortgage because there was an agreement between the company and the defendant that the company would give him a mortgage over its land upon request, even though there had been no request - PRACTICE AND PROCEDURE - requirements for a stay - whether there are arguable grounds of appeal - consideration of whether the agreement relied on gave rise to an equitable mortgage without the request - consideration of whether if the stay were refused the appellant would be deprived of the means of prosecuting the appeal - upon condition that the defendant undertakes to the Court to prosecute his appeal diligently and with all due expedition, stay ordered until determination of the appeal or until further order Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Investwell Pty Ltd (in liq) v Daryl Leon Roberts [2011] NSWSC 783 Investwell Pty Ltd (in liq) v Daryl Leon Roberts [2011] NSWSC 784 Pico Holdings Inc v Wave Vistas (2005) ALJR 825 Philpott v NZI Bank Ltd (1989) 1 NZ ConvC 190, 246 (CA) Kilmartin v Monk (2005) 5 NZ ConvC 194,122 Penny Nominees Pty Ltd v Fountain (unreported) NSWSC, 2 May 1989 Canadian Imperial Bank v Rehnby (1992) R.P.R (2d) 93 Penny Nominees Pty Ltd v Fountain (No 2) (unreported) NSWSC, 12 February 1990 Dighton v Withers (1862) 31 Beav 423 Texts Cited: Peter Butt, Land Law, 6th Ed Edward Lawson Griffin Tyler, P.W Young, William Richard Fisher, Clyde E Croft, Fisher & Lightwood's Law of Mortgage, 2nded (2005) Halsbury's Laws of England (1980) 4th Ed p 204 Category: Procedural and other rulings Parties: Investwell Pty Ltd (In Liquidation) - Plaintiff Daryl Leon Roberts -Defendant James Patrick Normoyle - First Respondent Anne-Maree Elizabeth Huxley - Second Respondent Representation: Counsel: C.M. Harris SC - Plaintiff N. Newton - Defendant/Applicant J. Rivett - First and Second Respondents Solicitors: Colin Biggers & Paisley - Plaintiff Clarke Kann Lawyers - Defendant The Affordable Legal Company Pty Ltd - First and Second Respondents File Number(s): 2009/290079