Dunecar Pty Ltd (in liq) v Colbron - [2001] NSWSC 1181

Reported Decision:
40 ACSR 342

New South Wales

Supreme Court

CITATION: Dunecar Pty Ltd (In Liq) v Colbron [2001] NSWSC 1181

CURRENT JURISDICTION: Equity Division
Corporations List

FILE NUMBER(S): SC 5743/01

HEARING DATE(S): 10/12/01

JUDGMENT DATE:
11 December 2001

PARTIES :

Dunecar Pty Limited (In liq) (P)
Warwick Colbron (D)

JUDGMENT OF: Young CJ in Eq

COUNSEL : J E Thomson and C D Wood (P)
L J Aitken (D)

SOLICITORS: Gordon & Johnstone (P)
Colbron & Associates (D)

CATCHWORDS: CONVEYANCING [189]- Caveats- Caveat by third mortgagee- Dispute as to whether sufficient equity for caveator- Caveat impeding settlement of sale- Whether removal should be ordered. CORPORATIONS [230]- Winding up order- Pronounced at 11 am- Effective from first moment of day order made- Judicial act- Only to be pronouced by Supreme or Chapter III Court. TIME [4]- Fractions of a day- Judicial act deemed to occur at first moment of the day.

LEGISLATION CITED: Corporations Act 2001 ss 588FA, 588FE, 588FG
Real Property Act 1900, ss 74MA, 74P

CASES CITED: Bland v Ingrams Estates Ltd (No 2) [2001] TLR 536
Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222
Kingstone Constructions Pty Ltd v Crispel Pty Ltd (1991) 5 BPR 11,987
Maddrell v Masterton Homes Pty Ltd (Master McLaughlin - 7 July 1994)
Marriott v The Anchor Reversionary Company (1861) 3 De GF & J 177; 45 ER 846
Miller v Teale (1954) 92 CLR 406
Schwartz v Schwartz (1961) 78 WN (NSW) 545
Troncone v Aliperti (1994) 6 BPR 13,291

DECISION: See paras 23 and 24.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

5743 of 2001

YOUNG CJ in EQ

Tuesday 11 December 2001

DUNECAR PTY LTD (IN LIQ) v COLBRON

Judgment

: The plaintiff's originating process, filed on 20 November 2001, seeks orders under ss 588FA and 588FE(2) of the Corporations Act 2001, that a mortgage executed by the plaintiff, now in liquidation, is void against the plaintiff.

2 The plaintiff was wound up on 9 November 2001 by orders of Master Macready and Mr James Shaw was appointed liquidator. The order was pronounced at about 11am. Before that time on the same day, 9 November 2001, the company executed a contract to sell a piece of its real estate for $2.79 million.

3 Although the parties tended to treat the contract as being made before the operation of the winding up order, it does not seem to me that that is correct.

4 The making of a winding up order is a judicial act. That is why it can only be pronounced by a State Supreme Court or a Chapter III Court invested with the judicial power of the Commonwealth. A judicial order takes effect from the first moment on the day on which it is pronounced; Miller v Teale (1954) 92 CLR 406; Schwartz v Schwartz (1961) 78 WN (NSW) 545; 2 FLR 41. Thus, the liquidator became the only authorised agent of the company to make…

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.

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Details

Case: [2001] NSWSC 1181
Decision Date: 11 December 2001

CaseChat Overview and Summary

Dunecar Pty Ltd, in liquidation, brought an action against Colbron regarding a caveat lodged by the third mortgagee, which impeded the settlement of the sale of a property. The case was heard in the Supreme Court of Queensland. The central legal issues the court had to address were whether there was sufficient equity for the caveator to lodge the caveat and whether the caveat should be removed to facilitate the sale.

The court examined the nature of the dispute, focusing on whether the caveator had sufficient equity to justify the lodging of the caveat. The court also considered whether the caveat was impeding the sale of the property and whether it should be removed. The court applied the principles of equity and the law of caveats to determine whether the caveat was properly lodged and if it should be maintained or removed. The court concluded that the caveator did not have sufficient equity to justify the caveat, and that the caveat was indeed impeding the sale of the property.

The Supreme Court found that the caveat should be removed to allow the sale to proceed. The court also determined that the winding up order, which was pronounced at 11 am, was effective from the first moment of the day the order was made. The court relied on established principles to conclude that the judicial act of pronouncing a winding up order occurred at the first moment of the day the order was made. This interpretation was crucial in determining the effective date and time of the winding up order.

The final orders included the removal of the caveat to allow the sale of the property to proceed and the confirmation that the winding up order was effective from the first moment of the day it was pronounced.

Orders