Roberts v Investwell Pty Ltd (In liq) [2012] NSWCA 134

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Roberts v Investwell Pty Ltd (In liq) [2012] NSWCA 134 Hearing dates: 5 March 2012 Decision date: 25 May 2012 Before: Bathurst CJ at [1]; Beazley JA at [37]; Tobias AJA at [38] Decision: 1. Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CORPORATIONS - Winding up - Payment to director when company insolvent - "Unfair preference" - ss 588FA, 588FC, 588FE, 588FF Corporations Act 2001 (Cth) - Whether payment in respect of secured debt - Effect of agreement to grant director security - Whether equitable charge.

STATUTORY INTERPETATION - Words and phrases - Corporations Act 2001 - "Charge". Legislation Cited: Corporations Act 2001 (CTH) s 9, s294 s588D, s 588FA, s 588FC, s 588FE, s 588FF, Pt 5.3A, Ch2K Cases Cited: Associated Alloys Pty Limited v ACN 001 452 106 Pty Limited (In liquidation) [2000] HCA 25; (2000) 202 CLR 588 Cinema Plus Limited v Australia & New Zealand Banking Group Limited [2000] NSWCA 195; (2000) 49 NSWLR 513 Investment and Merchant Finance Corporation Ltd v Kirkwood Estates Ltd (1974) 5 ALR 191 National Provincial and Union Bank of England v Charnley [1924] 1 KB 431 Penny Nominees Pty Limited v Fountain (NSWSC, unreported, 2 May 1989) Philpott v NZI Bank Limited (1989) 1 NZConvC 95-025 Pico Holdings Inc v Wave Vistas Pty Limited [2005] HCA 13; (2005) 79 ALJR 825 Re Bank of Credit and Commerce International SA (In Liquidation) (No 8) [1998] AC 214 Re Charge Card Services Ltd (No. 2) [1987] Ch 150 Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584 Texts Cited: Butt, Land Law, 6th ed (2010) Thomson Reuters Gough, Company Charges, 2nd ed (1996) Butterworths Category: Principal judgment Parties: Daryl Leon Roberts (Appellant) Investwell Pty Ltd (in Liquidation) (First Respondent) Peter Paul Krejci (Second Respondent) James Patrick Normoyle (Third Respondent) Anne-Maree Elizabeth Huxley (Fourth Respondent) Representation: Counsel H N Newton (Appellant) C Harris SC (First and Second Respondents) J P Rivett (Third and Fourth Respondents) Solicitors ClarkeKann Lawyers (Appellant) Colin Biggers & Paisley (First and Second Respondents) The Affordable Legal Company Pty Ltd (Third and Fourth Respondents) File Number(s): 2009/290079 Decision under appeal Citation: Investwell Pty Ltd (in liquidation) v Daryl Leon Roberts [2011] NSWSC 783 Date of Decision: 2011-06-28 00:00:00 Before: Hammerschlag J File Number(s): 2009/290079