HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479 Hearing dates: 23 and 24 September 2013 Decision date: 23 December 2013 Before: Beazley P at [1]; Meagher JA at [5]; Emmett JA at [10] Decision: 1. The appeal be allowed. 2. The orders made by the primary judge on 31 August 2012 be set aside. 3. In lieu of those orders, there be judgment for the appellant against the first and second respondents for the balance of the principal of the loan made under the loan agreement entered into between Tumut River Orchard Management Limited, on the one hand, and Mr Ludo Dierickx and Mrs Wendy Dierickx, on the other hand, together with interest on that balance. 4. The respondents pay the appellant's costs of the appeal and of the proceedings at first instance. 5. The respondents have an order under the Suitor's Fund Act 1951. [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: CONTRACT - assignment of debt - debt owed by the respondents - respondents borrowed from manager of managed investment scheme in order to invest in scheme - where appellant was assignee of that debt pursuant to a chain of assignments and sued respondents for debt - whether debt validly assigned to appellant - whether first assignment valid - whether directors of assignor company and assignee company under first assignment validly bound their respective companies under first assignment - where neither board of directors approved transaction - whether absence of directors' authority to bind assignor and assignee companies cured by ratification - whether ratification pleaded