SUPREME COURT OF QUEENSLAND
CITATION:
Equititrust Limited v Willaire Pty Ltd [2012] QSC 206
PARTIES:
EQUITITRUST LIMITED ACN 061 383 944
(Plaintiff/Applicant)
v
WILLAIRE PTY LTD ACN 010 437 297
(Defendant/Respondent)
FILE NO/S:
BS 11273 of 2010
BS 3949 of 2011
DIVISION:
Trial Division
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court
DELIVERED ON:
9 August 2012
DELIVERED AT:
Brisbane
HEARING DATE:
10 – 13 April 2012
JUDGE:
Philip McMurdo J
ORDER:
In 3949 of 2011:
1. On the applicant’s claim, the mortgage numbered 711944444 be rectified by:
(a) deleting page three of the schedule to the mortgage; and
(b) amending the page numbers in the top right hand corner of pages 1 and 2 of the schedule to the mortgage by changing ‘3’ to ‘2’.
2. The respondent’s counterclaim be dismissed.
In 11273 of 2012:
3. The respondent company be wound up.
4. David Lewis Clout be appointed as liquidator of the respondent company.
CATCHWORDS:
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS - where the defendant/respondent sent a two page mortgage document to the plaintiff/applicant for execution – where the plaintiff/applicant returned the executed document with a third page inserted which had the effect of limiting the liability of the defendant/respondent’s liability under the mortgage – whether the applicant executed the mortgage under a unilateral mistake which was induced by the conduct of the respondent and its solicitor – whether the mortgage document can be rectified to accord with the objective intention of the parties
CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – STATUTORY DEMAND – THE DEMAND – OTHER PROCEDURAL REQUIREMENTS – where the plaintiff/applicant applied to have the defendant/respondent wound up in reliance on a number of events under s 459C of the Corporations Act 2001 (Cth) which it said resulted in a presumption of insolvency - where the plaintiff/applicant served a statutory demand on the defendant/respondent which it failed to comply with - where the plaintiff/applicant was then given leave to also rely on this failure as giving rise to the presumption of insolvency – whether the defendant/respondent company is presumed to be insolvent from an unsatisfied statutory demand if the failure to comply with the demand postdates that filing of the winding up application
Corporations Act 2001 (Cth), s 459C, s 459P, s 459Q
Trade Practices Act 1974 (Cth), s 87Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited (2008) 232 CLR 314, considered
Eroc Pty Ltd v Amalg Resources NL [2003] QSC 074, considered
Golden Plantation Pty Ltd v TQM Design and Construct Pty Ltd [2010] NSWSC 1453, considered
Leibler v Air New Zealand Ltd [1999] 1 VR 1, considered
Masri Apartments Pty Ltd (in liq) and Anor v Perpetual Nominees Pty Ltd [2004] NSWCA 471; (2004) 214 ALR 338, cited
Missing Link Network Integration Pty Ltd v Keene Consulting International Pty Ltd [2007] NSWSC 1377, cited
Octavo Investments Pty ltd v…
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- AGLC
- Equititrust Limited v Willaire Pty Ltd [2012] QSC 206
- Case
- [2012] QSC 206
- Decision Date
CaseChat Overview and Summary
The legal issues in the case included whether the applicant had executed the mortgage under a unilateral mistake and whether the mortgage document could be rectified to accord with the objective intention of the parties. The court also had to consider whether the respondent was presumed to be insolvent from an unsatisfied statutory demand if the failure to comply with the demand postdated the filing of the winding up application. The applicant had applied to have the respondent wound up in reliance on a number of events under s 459C of the Corporations Act 2001 (Cth), which it said resulted in a presumption of insolvency. The applicant had also served a statutory demand on the respondent, which it failed to comply with, and was then given leave to also rely on this failure as giving rise to the presumption of insolvency.
The court found that the applicant had executed the mortgage under a unilateral mistake which was induced by the conduct of the respondent and its solicitor. The court also found that the mortgage document could be rectified to accord with the objective intention of the parties. The court held that the respondent was presumed to be insolvent from an unsatisfied statutory demand if the failure to comply with the demand postdated the filing of the winding up application. The court ordered that the mortgage document be rectified by deleting the third page and amending the page numbers in the top right-hand corner of pages 1 and 2 of the schedule to the mortgage. The court also ordered that the respondent company be wound up and that David Lewis Clout be appointed as liquidator of the respondent company.
Orders
Orders of the court
In 3949 of 2011:
1. On the applicant’s claim, the mortgage numbered 711944444 be rectified by:
(a) deleting page three of the schedule to the mortgage; and
(b) amending the page numbers in the top right hand corner of pages 1 and 2 of the schedule to the mortgage by changing ‘3’ to ‘2’.
2. The respondent’s counterclaim be dismissed.
In 11273 of 2012:
3. The respondent company be wound up.
4. David Lewis Clout be appointed as liquidator of the respondent company.
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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