A4 Developments Pty Ltd v Suncorp-Metway Ltd - [2022] QDC 283

DISTRICT COURT OF QUEENSLAND

CITATION:

A4 Developments Pty Ltd v Suncorp-Metway Ltd & Others [2022] QDC 283

PARTIES:

A4 DEVELOPMENTS PTY LTD
ACN 087 703 590
(applicant)

v

SUNCORP-METWAY LTD
ACN 010 831 722
(first respondent)

ASHLEY LESLIE AS TRUSTEE FOR THE BANKRUPT ESTATE OF ANTHONY RICHARD ALLATT
(second respondent)

PAUL LEROY AS TRUSTEE FOR THE BANKRUPT ESTATE OF MARIA TERESA ALLATT
(third respondent)

FILE NO:

2109 of 2022

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

13 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2022

JUDGE:

Rosengren DCJ

ORDERS:

1.   The applicant has not surrendered its security.

2.   The applicant is entitled to be paid the surplus.

3.   Before making formal orders, I will hear the parties as to the form of the orders.

4.   Unless a party wishes to submit to the contrary, the second respondent is to pay the applicant’s costs of and incidental to the applications filed on 30 August and 9 September 2022.

CATCHWORDS:

BANKRUPTCY – ADMINISTRATION OF PROPERTY – SECURED CREDITORS – CREDITOR’S PETITION – PROOF OF DEBT –– VOTING – where mortgage given over property as security for advance of loan by applicant – where applicant had second registered mortgage over property – where first respondent had first registered mortgage over property – where first respondent exercised power of sale under the mortgage – where applicant claims surplus proceeds of sale of property – whether applicant has been required to make election – if election has arisen whether security surrendered by unequivocal conduct

Bankruptcy Act 1966 (Cth) ss 44, 90-94
District Court of Queensland Act 1967 (Qld) s 69
Insolvency Practice Rules (Bankruptcy) 2016 (Cth) rr 75-80, 75-85
Insolvency Practice Rules (Corporations) 2016 (Cth) rr 70-35, 75-87
Property Law Act 1974 (Qld) s 88
Trusts Act 1973 (Qld) s 98
Uniform Civil Procedure Rules 1999 (Qld) r 561

Brown v Brown [2007] FCA 2073
Champtaloup v Thomas [1976] 2 NSWLR 264
In the matter of Glacier Ceiling Battens Pty Ltd (in liq) [2017] NSWSC 1832
Kalatzis Nominees Pty Ltd & Anor v Proton Development Group Pty Ltd & Ors [2013] QSC 283
Kelso v McCulloch [1994] ACL Rep 185 NSW 31
Moor v Anglo-Italian Bank (1879) 10 Ch D 681
Porter v Computer Based Technology [2004] NSWSC 476
Provident Capital Limited v Kelso Buiders Supplies Pty Ltd (in liq) (rec and mgs appted) [2008] FCR 868
QCMA Ltd v Humeri Pty Ltd (Cohen J, unreported, 25 July 1986)
Re Douglas Homes Qld Pty Ltd (in liq) [1980] Qd R 528
Re Ferguson; Ex parte Elder’s Trustee and Executor Co Ltd (1943) 13 ABC 1
Re Finn; Ex parte Finn v Amoco Australia Ltd (1982) 58 FLR 54
Re O’Leary; Ex parte Bayne (1985) 61 ALR 674
Re Wiggins; Ex parte Credit Assistance Pty Ltd (1979) 30 ALR 443
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Seventeenth Canute Pty Ltd v Bradley Air-Conditioning Pty Ltd (in liq) [1986] 1 Qd R 111
Surfers Paradise Investments Pty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A4 Developments Pty Ltd v Suncorp-Metway Ltd

Details

AGLC: A4 Developments Pty Ltd v Suncorp-Metway Ltd [2022] QDC 283
Case: [2022] QDC 283
Decision Date: 13 December 2022

CaseChat Overview and Summary

A4 Developments Pty Ltd filed an application against Suncorp-Metway Ltd in the Federal Circuit and Family Court of Australia. The dispute revolves around a mortgage given over a property by A4 Developments to Suncorp-Metway as security for a loan. A4 Developments also has a second registered mortgage over the same property. Suncorp-Metway, the first respondent, exercised the power of sale under the mortgage and sold the property. A4 Developments claims that it is entitled to the surplus proceeds of the sale. The primary issue before the court was whether A4 Developments was required to make an election between the two mortgages and if such an election had occurred, whether the security had been surrendered by unequivocal conduct.

The court considered whether A4 Developments was required to make an election between the two mortgages and whether such an election had occurred. The court found that A4 Developments was not required to make an election because it did not act in a manner that unequivocally surrendered its security. The court also found that even if an election had occurred, A4 Developments had not surrendered its security by unequivocal conduct. The court held that A4 Developments was entitled to be paid the surplus proceeds of the sale.

The court ordered that A4 Developments had not surrendered its security and was entitled to be paid the surplus. The court further ordered that before making formal orders, it would hear the parties regarding the form of the orders. Unless the second respondent, who is not identified in the text, wished to submit to the contrary, it was to pay the applicant's costs of and incidental to the applications filed on 30 August and 9 September 2022.

Orders

Orders of the court

1. The applicant has not surrendered its security.

2. The applicant is entitled to be paid the surplus.

3. Before making formal orders, I will hear the parties as to the form of the orders.

4. Unless a party wishes to submit to the contrary, the second respondent is to pay the applicant’s costs of and incidental to the applications filed on 30 August and 9 September 2022.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	A4 Developments Pty Ltd v Suncorp-Metway Ltd & Others [2022] QDC 283
PARTIES:	A4 DEVELOPMENTS PTY LTD ACN 087 703 590 (applicant) v SUNCORP-METWAY LTD ACN 010 831 722 (first respondent) ASHLEY LESLIE AS TRUSTEE FOR THE BANKRUPT ESTATE OF ANTHONY RICHARD ALLATT (second respondent) PAUL LEROY AS TRUSTEE FOR THE BANKRUPT ESTATE OF MARIA TERESA ALLATT (third respondent)
FILE NO:	2109 of 2022
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	13 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	15 September 2022
JUDGE:	Rosengren DCJ
ORDERS:	1. The applicant has not surrendered its security. 2. The applicant is entitled to be paid the surplus. 3. Before making formal orders, I will hear the parties as to the form of the orders. 4. Unless a party wishes to submit to the contrary, the second respondent is to pay the applicant’s costs of and incidental to the applications filed on 30 August and 9 September 2022.
CATCHWORDS:	BANKRUPTCY – ADMINISTRATION OF PROPERTY – SECURED CREDITORS – CREDITOR’S PETITION – PROOF OF DEBT –– VOTING – where mortgage given over property as security for advance of loan by applicant – where applicant had second registered mortgage over property – where first respondent had first registered mortgage over property – where first respondent exercised power of sale under the mortgage – where applicant claims surplus proceeds of sale of property – whether applicant has been required to make election – if election has arisen whether security surrendered by unequivocal conduct Bankruptcy Act 1966 (Cth) ss 44, 90-94 District Court of Queensland Act 1967 (Qld) s 69 Insolvency Practice Rules (Bankruptcy) 2016 (Cth) rr 75-80, 75-85 Insolvency Practice Rules (Corporations) 2016 (Cth) rr 70-35, 75-87 Property Law Act 1974 (Qld) s 88 Trusts Act 1973 (Qld) s 98 Uniform Civil Procedure Rules 1999 (Qld) r 561 Brown v Brown [2007] FCA 2073 Champtaloup v Thomas [1976] 2 NSWLR 264 In the matter of Glacier Ceiling Battens Pty Ltd (in liq) [2017] NSWSC 1832 Kalatzis Nominees Pty Ltd & Anor v Proton Development Group Pty Ltd & Ors [2013] QSC 283 Kelso v McCulloch [1994] ACL Rep 185 NSW 31 Moor v Anglo-Italian Bank (1879) 10 Ch D 681 Porter v Computer Based Technology [2004] NSWSC 476 Provident Capital Limited v Kelso Buiders Supplies Pty Ltd (in liq) (rec and mgs appted) [2008] FCR 868 QCMA Ltd v Humeri Pty Ltd (Cohen J, unreported, 25 July 1986) Re Douglas Homes Qld Pty Ltd (in liq) [1980] Qd R 528 Re Ferguson; Ex parte Elder’s Trustee and Executor Co Ltd (1943) 13 ABC 1 Re Finn; Ex parte Finn v Amoco Australia Ltd (1982) 58 FLR 54 Re O’Leary; Ex parte Bayne (1985) 61 ALR 674 Re Wiggins; Ex parte Credit Assistance Pty Ltd (1979) 30 ALR 443 Sargent v ASL Developments Ltd (1974) 131 CLR 634 Seventeenth Canute Pty Ltd v Bradley Air-Conditioning Pty Ltd (in liq) [1986] 1 Qd R 111 Surfers Paradise Investments Pty…