Re: CANBERRA ADVANCE BANK LTD and BARRY ANTHONY TAYLOR
And: JOHN BERNARD BENNY; THE OPAL MINING AND EXPORT COMPANY PTY LTD; THE
AUSTRALIAN OPAL AND GEMSTONE MUSEUM PTY LTD and YERAPIN PTY LTD
No. ACT G34 of 1991
FED No. 823
Receiver - Waiver - Appellate Court
(1992) 9 ACSR 179
(1992) 38 FCR 427
(1992) 115 ALR 207
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Miles(1) and O'Loughlin(1) JJ.
CATCHWORDS
Receiver - Validity of appointment - power to support appointment by breach of conditions existing at time of appointment but discovered subsequent to appointment - whether secured creditor must act "reasonably" - extent to which a secured creditor may rely on "technical" breaches - waiver - extent to which waiver of a breach affects subsequent (and like) obligations.
Waiver - See above
Appellate Court - functions of - restricted right to interfere with findings of fact.
Companies Act 1981 (Cth), s.364
McMahon v State Bank of New South Wales and Anor (1990) 8 ACLC 315
White and Carter (Councils) Ltd v McGregor (1962) AC 413
Bunge Corporation, New York v Tradax Export S.A., Panama (1981) 1 WLR 711
Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842
R v Paulson (1921) 1 AC 271
HEARING
CANBERRA
#DATE 6:11:1992
Counsel for the appellants: Mr M. Oakes
Solicitor for the appellants: Mallesons Stephen Jaques
Counsel for the respondents: Mr P. Shiels QC and Mr I. Harvey
Solicitor for the respondents: Scott Shiels and Glover
ORDER
THE COURT:
1. Orders that the appeal from so much of the judgment of the Supreme Court of the Australian Capital Territory as declared the appointments of Barry Anthony Taylor as Receiver and Manager of The Opal Mining and Export Company Pty Ltd and The Australian Opal and Gemstone Museum Pty Ltd void ab initio and from the declaration and orders consequential thereon be allowed.
2. Orders that the declarations made by the Supreme Court of the Australian Capital Territory in relation to the appointments of Barry Anthony Taylor as Receiver and Manager of The Opal Mining and Export Company Pty Ltd and The Australian Opal and Gemstone Museum Pty Ltd, the orders consequential thereon (including the order that the further trial of the issue as to damages be referred to the Master for assessment) and the order for costs be set aside and in lieu thereof it be declared that Barry Anthony Taylor was validly appointed as Receiver and Manager of those companies and it be ordered that John Bernard Benny, The Opal Mining and Export Company Pty Ltd and The Australian Opal and Gemstone Museum Pty Ltd pay two-thirds of the costs of Canberra Advance…
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- Case
- [1992] FCA 823
- Decision Date
CaseChat Overview and Summary
The appeal court examined whether the breach of conditions existing at the time of the receiver's appointment, which was discovered later, could still validate the appointment. It was found that the secured creditor need not act reasonably but could rely on technical breaches as long as the fundamental powers were not undermined. The court held that any waiver of a breach does not necessarily affect subsequent obligations unless explicitly stated. Consequently, the appeal court ruled in favour of the bank, declaring that the appointment of the receiver and manager was valid and ordering the respondents to pay two-thirds of the costs of the proceedings.
The court further directed that the first respondent must publish a notice in "The Canberra Times" declaring the validity of the receiver's appointment and lodge a sealed copy of the orders with the Corporate Affairs Commission. The matter was then remitted to the Supreme Court of the Australian Capital Territory for any further consequential orders. Additionally, the respondents were ordered to pay two-thirds of the appellants' costs of the appeal. The court reserved the liberty for the parties to apply for further orders as they deemed necessary.
Orders
Orders of the court
THE COURT:
1. Orders that the appeal from so much of the judgment of the Supreme Court of the Australian Capital Territory as declared the appointments of Barry Anthony Taylor as Receiver and Manager of The Opal Mining and Export Company Pty Ltd and The Australian Opal and Gemstone Museum Pty Ltd void ab initio and from the declaration and orders consequential thereon be allowed.
2. Orders that the declarations made by the Supreme Court of the Australian Capital Territory in relation to the appointments of Barry Anthony Taylor as Receiver and Manager of The Opal Mining and Export Company Pty Ltd and The Australian Opal and Gemstone Museum Pty Ltd, the orders consequential thereon (including the order that the further trial of the issue as to damages be referred to the Master for assessment) and the order for costs be set aside and in lieu thereof it be declared that Barry Anthony Taylor was validly appointed as Receiver and Manager of those companies and it be ordered that John Bernard Benny, The Opal Mining and Export Company Pty Ltd and The Australian Opal and Gemstone Museum Pty Ltd pay two-thirds of the costs of Canberra Advance Bank Ltd and Barry Anthony Taylor of the proceedings in that Court.
3. Orders that the appeal be otherwise dismissed.
4. Declares that Barry Anthony Taylor as such Receiver and Manager is entitled to exercise all the powers referred to in the respective instruments of appointment dated 16 August 1990.
5. Orders that the first appellant, within 14 days after the date of this Order, publish in "The Canberra Times" newspaper a notice that it has been declared by this Court that the appointments of Barry Anthony Taylor as Receiver and Manager of The Opal Mining and Export Company Pty Ltd and The Australian Opal and Gemstone Museum Pty Ltd were validly made and that the said Barry Anthony Taylor remains the Receiver and Manager of those companies and is entitled to exercise all the powers referred to in the respective instruments of appointment dated 16 August 1990.
6. Orders that the first appellant, within 14 days after the date of this order, lodge a sealed copy of these Orders and Declarations at the office of the Corporate Affairs Commission.
7. Orders that the matter be remitted to the Supreme Court of the Australian Capital Territory for any further order or relief consequential upon these Orders and Declarations.
8. Orders that the first, second and third respondents pay two-thirds of the appellants' costs of the appeal.
9. Reserves liberty to the parties to apply to this Court as they may be advised.
Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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