Austino Wentworthville Pty Limited v Metroland Australia Limited [2013] NSWCA 59

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Austino Wentworthville Pty Limited v Metroland Australia Limited [2013] NSWCA 59 Hearing dates: 5 March 2013 Decision date: 22 March 2013 Before: Beazley P (at [1]); Meagher JA (at [2]); Barrett JA (at [3]) Decision: 1. Appeal dismissed. 2. That the appellant pay the respondents' costs of the appeal. [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 - voluntary administration - meeting of creditors - voting by creditors - whether the appellant was a creditor - where company owed obligations to the appellant but appellant had taken steps to assign rights to another - PERSONAL PROPERTY - alienation of personal property - choses in action - assignment of legal chose in action - whether assignment effective at law under Conveyancing Act 1919, s 12 - assignment by party accommodated to accommodating party as security for indebtedness - common ground that assignment in writing and that notice thereof given to the debtor - whether "absolute assignment" - whether assignment "by way of charge only" - PROCEDURE - parties - proper and necessary parties - where deed of company arrangement executed by company contemplates creation of creditors' trust and such trust is established - where plaintiff seeks order modifying actions resulting in and proceeding from execution and effectuation of deed of company arrangement - potential effect on rights of persons who have become beneficiaries of creditors' trust. Legislation Cited: Conveyancing Act 1919, ss 7(1), 12, 74, 78(1)(C) Corporations Act 2001 (Cth), Part 5.3A, ss 444A(4)(i), 444D, 445G, 447A, 1321 Corporations Regulations 2001 (Cth), regs 5.6.21(2), 5.6.21(4), 5.6.23(2), 5.6.26(3) Judicature Act 1873 (Eng), s 25(6) Cases Cited: Burlinson v Hall (1884) 12 QBD 347 Clyne v Commissioner of Taxation [1981] HCA 40; (1981) 150 CLR 1 Comfort v Betts [1891] 1 QB 737 Commissioner of Stamp Duties v Hopkins [1945] HCA 14; (1945) 71 CLR 351 Commissioner of Taxation v Linter Textiles Australia Ltd [2005] HCA 20; (2005) 220 CLR 592 Discount & Finance Ltd v Gehrig's NSW Wines Ltd (1940) 40 SR (NSW) 598 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1982] HCA 14; (1982) 149 CLR 431 Durham Bros v Robertson [1898] 1 QB 765 Gurfinkel v Bentley Pty Ltd [1966] HCA 75; (1966) 116 CLR 98 at 107 Hughes v Pump House Hotel Co Ltd [1902] 2 KB 190 John Alexander's Clubs Pty Ltd v White City Club Ltd [2010] HCA 19; (2010) 241 CLR 1 MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24; (1999) 195 CLR 636 National Provincial Bank of England v Harle (1881) 6 QBD 626 Norman v Federal Commissioner of Taxation [1963] HCA 21; (1963) 109 CLR 9 One.Tel Ltd v Watson [2009] NSWCA 282 Parkview Constructions Pty Ltd v Tayeh [2009] NSWSC 186; (2009) 71 ACSR 65 Re Jones; Farrington v Forrester [1893] 2 Ch 461 Re Row Dal Constructions Pty Ltd [1966] VR 249 Re Willmott Forests Ltd (No 2) [2012] VSC 125; (2012) 88 ACSR 18 Santley v Wilde [1899] 2 Ch 474 Tancred v Delagoa Bay and East Africa Railway Co (1889) 23 QBD 239 Texts Cited: "Daniel's Chancery Practice", 8th ed (1914), p 187 Category: Principal judgment Parties: Austino Wentworthville Pty Limited - Appellant Metroland Australia Limited - First Respondent David Levi - Second Respondent Representation: MW Young SC - Appellant CRC Newlinds SC and DR Sulan - First Respondent EA Collins SC - Second Respondent Dixon Holmes Du Pont - Appellant DLA Piper Australia - First Respondent Addisons Commercial Lawyers - Second Respondent File Number(s): 2013/45192 Decision under appeal Citation: In the matter of Metroland Australia Limited [2013] NSWSC 98 Date of Decision: 2013-02-07 00:00:00 Before: Brereton J File Number(s): 2012/326339