Bradnam's Windows and Doors Pty Ltd v Offermans - [2011] QCA 106

SUPREME COURT OF QUEENSLAND

CITATION:

Bradnam’s Windows and Doors Pty Ltd v Offermans [2011] QCA 106

PARTIES:

BRADNAM’S WINDOWS AND DOORS PTY LTD
ACN 010 409 819
(applicant)
v
DENNIS JOHN OFFERMANS
(respondent)

FILE NO/S:

Appeal No 10360 of 2010
DC No 1 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

20 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

28 March 2011

JUDGES:

Muir JA, Margaret Wilson AJA, Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for leave to appeal be granted.1.

The appeal be allowed.2.

Those parts of paragraph 2 of the order made on 30 August 2010 in the proceedings striking out paragraphs 4, 26, 27 and 33 of the applicant’s defence be set aside.3.

The costs of the application and of the appeal be the parties’ costs in the cause.4.

CATCHWORDS:

CORPORATIONS – CHARGES, DEBENTURES AND OTHER BORROWINGS – CHARGES – VALIDITY – OF CHARGES IN FAVOUR OF CERTAIN PERSONS – where the applicant entered into an agreement with a Company and agreed to extend credit to that Company in connection with the supply of goods to that Company – where the respondent was appointed administrator of the Company – where the Company paid the applicant $80,870.82 in satisfaction of debts due and owing – where the statement of claim alleged that the applicant was an unsecured creditor of the Company and that the payments having been made during “the relation-back period” were recoverable as unfair preferences within the meaning of s 588FA of the Corporations Act 2001 (Cth) – where applicant alleged that payments by the Company were in respect of goods supplied by the applicant to the Company – where applicant alleged it was a secured creditor of the Company – where the primary judge found that the charge created by the credit agreement did not meet the requirements of s 262 and s 263 of the Corporations Act 2001 (Cth) – where primary judge consequently found the charge to be void against the respondent liquidator – whether the primary judge’s interlocutory order striking out the subject pleadings should be set aside – whether the pleadings disclose a cause of action or valid defence – whether the subject charge is a security against the real property and personal property of the Company

Corporations Act 2001 (Cth), s 262, s 263, s 266, s 280, s 281, s 588FA, s 588FC

Boambee Bay Pty Ltd (in liq) v Equus Financial Services Ltd (1991) 26 NSWLR 284, cited
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404, cited
Miller v Deputy Commissioner of Taxation (1997) 26 ACSR 533; [1997] NSWCA 205, cited
Pioneer Construction Materials Pty Ltd v Schoch & Ors [2007] QDC 143, considered
Tolcher v Capital Finance Australia Ltd (2006) 60 ACSR 584; [2006] FCA 1804, cited
United Builders Pty Ltd v Mutual Acceptance Ltd

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 Bradnam's Windows and Doors Pty Ltd v Offermans

Details

AGLC: Bradnam's Windows and Doors Pty Ltd v Offermans [2011] QCA 106
Case: [2011] QCA 106
Decision Date: 20 May 2011

CaseChat Overview and Summary

Bradnam's Windows and Doors Pty Ltd (the applicant) brought an appeal against a decision made by the primary judge in Offermans v Bradnam's Windows and Doors Pty Ltd. The applicant was a creditor of the company, which had entered into an agreement with Bradnam's for the supply of goods. Offermans was appointed as the administrator of the company, and subsequently, as the liquidator. Bradnam's alleged that it was a secured creditor of the company, while Offermans argued that Bradnam's was an unsecured creditor, and payments made by the company during the "relation-back period" were recoverable as unfair preferences. The primary judge found that the charge created by the credit agreement did not meet the requirements of sections 262 and 263 of the Corporations Act 2001 (Cth) and consequently, the charge was void against the liquidator. Bradnam's challenged the primary judge's interlocutory order striking out parts of its defence, and sought to set aside the order. The court was required to determine whether the primary judge's interlocutory order should be set aside, whether the pleadings disclosed a cause of action or a valid defence, and whether the subject charge was a security against the real and personal property of the company.

The court found that the primary judge had failed to consider the possibility that the charge in question might be a security against the personal property of the company. The court held that the primary judge's failure to consider this possibility was an error of law, and that the interlocutory order striking out parts of the applicant's defence should be set aside. The court also found that the applicant's pleadings disclosed a cause of action, as they raised a valid argument that the charge was a security against the personal property of the company. The court held that the primary judge's finding that the charge was void against the liquidator was therefore incorrect, and that the charge was in fact valid. The court allowed the appeal and set aside the primary judge's interlocutory order striking out parts of the applicant's defence.

The court further held that the costs of the application and of the appeal should be the parties' costs in the cause. The court found that the applicant's appeal had merit, and that the primary judge's error of law had resulted in an incorrect outcome. The court therefore held that the applicant was entitled to its costs of the application and of the appeal. The court also held that the liquidator was not entitled to its costs of the application and of the appeal, as it had not succeeded in its challenge to the applicant's defence.

In conclusion, the court allowed the applicant's appeal and set aside the primary judge's interlocutory order striking out parts of its defence. The court found that the applicant's pleadings disclosed a cause of action, and that the charge in question was in fact a valid security against the personal property of the company. The court held that the primary judge's failure to consider this possibility was an error of law, and that the interlocutory order should therefore be set aside. The court further held that the costs of the application and of the appeal should be the parties' costs in the cause.

Orders

Orders of the court

The application for leave to appeal be granted.1.

The appeal be allowed.2.

Those parts of paragraph 2 of the order made on 30 August 2010 in the proceedings striking out paragraphs 4, 26, 27 and 33 of the applicant’s defence be set aside.3.

The costs of the application and of the appeal be the parties’ costs in the cause.4.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Bradnam’s Windows and Doors Pty Ltd v Offermans [2011] QCA 106
PARTIES:	BRADNAM’S WINDOWS AND DOORS PTY LTD ACN 010 409 819 (applicant) v DENNIS JOHN OFFERMANS (respondent)
FILE NO/S:	Appeal No 10360 of 2010 DC No 1 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	20 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	28 March 2011
JUDGES:	Muir JA, Margaret Wilson AJA, Martin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The application for leave to appeal be granted.1. The appeal be allowed.2. Those parts of paragraph 2 of the order made on 30 August 2010 in the proceedings striking out paragraphs 4, 26, 27 and 33 of the applicant’s defence be set aside.3. The costs of the application and of the appeal be the parties’ costs in the cause.4.
CATCHWORDS:	CORPORATIONS – CHARGES, DEBENTURES AND OTHER BORROWINGS – CHARGES – VALIDITY – OF CHARGES IN FAVOUR OF CERTAIN PERSONS – where the applicant entered into an agreement with a Company and agreed to extend credit to that Company in connection with the supply of goods to that Company – where the respondent was appointed administrator of the Company – where the Company paid the applicant $80,870.82 in satisfaction of debts due and owing – where the statement of claim alleged that the applicant was an unsecured creditor of the Company and that the payments having been made during “the relation-back period” were recoverable as unfair preferences within the meaning of s 588FA of the Corporations Act 2001 (Cth) – where applicant alleged that payments by the Company were in respect of goods supplied by the applicant to the Company – where applicant alleged it was a secured creditor of the Company – where the primary judge found that the charge created by the credit agreement did not meet the requirements of s 262 and s 263 of the Corporations Act 2001 (Cth) – where primary judge consequently found the charge to be void against the respondent liquidator – whether the primary judge’s interlocutory order striking out the subject pleadings should be set aside – whether the pleadings disclose a cause of action or valid defence – whether the subject charge is a security against the real property and personal property of the Company Corporations Act 2001 (Cth), s 262, s 263, s 266, s 280, s 281, s 588FA, s 588FC Boambee Bay Pty Ltd (in liq) v Equus Financial Services Ltd (1991) 26 NSWLR 284, cited Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404, cited Miller v Deputy Commissioner of Taxation (1997) 26 ACSR 533; [1997] NSWCA 205, cited Pioneer Construction Materials Pty Ltd v Schoch & Ors [2007] QDC 143, considered Tolcher v Capital Finance Australia Ltd (2006) 60 ACSR 584; [2006] FCA 1804, cited United Builders Pty Ltd v Mutual Acceptance Ltd