Hadfield v ACN 092 328 400 Pty Ltd - [2011] NSWSC 114

Supreme Court

New South Wales

Medium Neutral Citation: Hadfield v ACN 092 328 400 Pty Ltd [2011] NSWSC 114
Hearing dates: 3 March 2011
Decision date: 03 March 2011
Before: Barrett J
Decision:
Order for rectification of Australian Register of Company Charges; Declaration that charge valid

Catchwords: CORPORATIONS - registration of charges - application for order rectifying Australian Register of Company Charges - where evidence establishes that instrument executed and charge created on a date after that borne by the instrument and included in the lodged particulars - rectification appropriate - whether charge created within six months before commencement of winding up is void against liquidator under s 588FJ as to subsequent advances - section confined to company that is "being wound up in insolvency" - winding up in place is creditors voluntary winding up - section does not apply
Legislation Cited: Corporations Act 2001 (Cth), Chapter 2K, Part 5.3A, ss 9, 234, 263(1), 274, 459A, 459B, 459P, 462, 463, 491, 494, 513B(e), 588FJ
Cases Cited: Re Carter (as liquidator of New Tel Pty Ltd) [2003] NSWSC 128; (2003) 44 ACSR 661
Category: Principal judgment
Parties: Kevin Hadfield and Vicki Jane Hadfield - Plaintiffs
ACN 092 328 400 Pty Ltd - First Defendant
Jamieson Louttit - Second Defendant
Representation: Counsel:
Mr R M Jefferis - Plaintiff
Mr S A Wells - Defendants
Solicitors:
Davis Legal - Plaintiff
TressCox Lawyers - Defendants

File Number(s): 2010/349763

Judgment

These are my reasons for having made, on 3 March 2011, the following substantive order and declaration:

"1. An order, pursuant to s.274 of the Corporations Act, that the misstatement in the Australian Register of Company Charges consisting of the recording of '23/06/2010' as the date of creation of a charge, being a recording in consequence of lodgment of Form 309 lodged on 11 August 2010 by Redman Hale Simpson, Solicitors (Barcode 0266448819) in respect of ACN 092 328 400 Pty Ltd (formerly called Australian Metal Spinning Pty Ltd), be rectified by instead recording 27/07/2010 as the date on which property subject to a charge was acquired.

2. A Declaration that the charge in respect of ACN 092 328 400 Pty Ltd (formerly called Australian Metal Spinning Pty Ltd) recorded in ASIC Charge Number 2030325 in favour of Kevin Hadfield and Vicki Jane Hadfield lodged on 11/08/2010 be declared to be and is a valid and subsisting charge."

The proceedings were brought by Mr Hadfield and Mrs Hadfield, the directors and shareholders of ACN 092 328 400 Pty Ltd (formerly Australian Metal Spinning Pty Ltd) and the chargees under a charge created by that company.

The company created a charge caught by Chapter 2K of the Corporations Act 2001 (Cth) in circumstances that became productive of doubts as to the date of the charge's creation. The charge was a floating charge on the assets and undertaking generally and operated, as to certain items, as a fixed charge. The chargees were, as I have said, Mr Hadfield and Mrs Hadfield.

The doubts about the date…

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: [2011] NSWSC 114
Decision Date: 03 March 2011

CaseChat Overview and Summary

The case of Hadfield v ACN 092 328 400 Pty Ltd was heard in the Federal Circuit Court of Australia, where the plaintiff sought an order to rectify the Australian Register of Company Charges. The plaintiff argued that the date on which the charge was executed and created was different from the date recorded on the instrument and the particulars lodged. This discrepancy arose because the charge was executed and created on a date later than that indicated on the instrument and in the lodged particulars. The primary issue before the court was whether the plaintiff was entitled to have the register rectified to reflect the correct date of creation of the charge.

The court examined the provisions of the relevant legislation, particularly focusing on the requirements for rectifying the register and the circumstances under which a charge may be void. The court determined that since the evidence clearly established the correct date of creation of the charge, rectification of the register was appropriate. Regarding the second issue, the court analysed the statutory provision which disqualifies charges created within six months before the commencement of winding up against the liquidator. The court found that the winding up in question was a creditors' voluntary winding up, and therefore, the statutory provision did not apply as it is confined to companies being wound up in insolvency.

Ultimately, the court held that the Australian Register of Company Charges should be rectified to reflect the correct date of creation of the charge. The court also concluded that the statutory provision concerning charges created within six months before winding up did not apply in this case because the winding up was not an insolvent winding up. The court did not need to address the issue of subsequent advances under section 588FJ as the primary issue of rectification was resolved in favour of the plaintiff.

Orders