Jefferson and Joiner v Shirlaw - [2006] QSC 153

SUPREME COURT OF QUEENSLAND

CITATION:

Jefferson and Joiner v Shirlaw & Ors [2006] QSC 153

PARTIES:

PHILLIP GREGORY JEFFERSON and MATTHEW LESLIE JOINER (in their capacity as Court Appointed Receivers)
(applicant)
v
KEVIN RICHARD SHIRLAW
(first respondent)
OSTABRIDGE PTY LTD ACN 003 611 194 (Receiver and Manager Appointed)
(second respondent)
AMMBAR PTY LTD ACN 080 616 191
(third respondent)
BUSINESS BRIDGING FINANCE PTY LTD
ACN 115 876 741
(fourth respondent)
MARY DEWAR
(fifth respondent)
MACGILLIVRAYS SOLICITORS (a firm) (the partners of which hold registered mortgage No 707 949 495)
(sixth respondent)
THE COMMISSIONER OF LAND TAX
(seventh respondent)
GALLUS PROPERTIES PTY LTD, PETER WILLIAM GALLUS AND BROADBEACH VISTA PTY LTD
(eighth respondent)
KERRIE SUZANNE RICHARDSON
(ninth respondent)

FILE NO/S:

BS No 336 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

23 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2006

JUDGE:

Holmes J

ORDER:

1. The amended originating application filed on 12 January 2006 is dismissed as against the first and second respondents.
2. Any lien to which the applicants are entitled as receivers under the order of this Court made on 16 November 2004 in BS 8484 of 2004 ranks subsequent in priority to the first and second respondents’ registered mortgages numbered 703570735, 703494840, 704544382, 707227959 and 709100851

CATCHWORDS:

CORPORATIONS – RECEIVERS, CONTROLLERS AND MANAGERS – REMUNERATION AND EXPENSES – PRIORITY OF DEBTS – where receivers appointed by court to two companies – where asset of receivership was real property – where existing registered mortgages over the land were transferred to first and second respondents after appointment of receivers – whether registered mortgages take priority over receivers’ indemnity and lien for remuneration, costs and expenses – whether first and second respondents took their interest free from receivers’ equitable interest by virtue of section 184 of the Land Title Act 1994 (Qld) – whether any equity affecting first and second respondents’ title

Land Title Act 1994 (Qld), s 184, s 185, Schedule 2

Choudhri v Palta [1994] 1 BCLC 184
Cobb and Co Holdings Pty Ltd v Daydream Island Tourist Resort Pty Ltd and Anor (1982) 7 ACLR 463
Dean-Willcocks & Anor v Nothintoohard Pty Ltd (In Liq) (2005) 53 ACSR 587
In Re Universal Distributing Company Ltd (In Liquidation) (1933) 48 CLR 171
Moodemere Pty Ltd (In Liq) v Waters [1988] VR 215
Nicobar Pty Ltd v Abrokiss Pty Ltd (2003) 48 ACSR 259
Re Application of Central Commodity Services Pty Ltd & Ors [1984] 1 NSWLR 25
Re Berkeley Applegate (Investment Consultants) Ltd (In Liq); Harris v Conway [1989] Ch 32
ReConlan (as liquidator of Oakleigh Acquisitions Pty Ltd) [2001] WASC 230
ReConlan (as liquidator of Oakleigh Acquisitions Pty Ltd) v Registrar of Titles (2001) 24 WAR 299
Re Lawrenson Light Metal Die Casting Pty Ltd; Australian Securities and Investments Commission v Lawrenson Light Metal Die Casting Pty Ltd (1999) 33 ACSR 288
Shawyer v Amberday Pty Ltd(In Liq) (2001) NSWSC 399
Shirlaw v Taylor (1991)…

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: [2006] QSC 153
Decision Date: 23 June 2006

CaseChat Overview and Summary

In Jefferson and Joiner v Shirlaw, the applicants, Jefferson and Joiner, who were receivers appointed by the court for two companies, challenged the priority of the first and second respondents’ mortgages over their own lien for remuneration, costs, and expenses. The dispute arose out of the appointment of receivers to two companies and the subsequent transfer of registered mortgages to the respondents. The applicants argued that their equitable interest, as receivers, should take precedence over the respondents’ registered mortgages. The court had to determine whether the respondents’ mortgages were subject to the receivers’ equitable interest and if the respondents took their interest free from any equity affecting their title.

The central legal issues were whether the receivers’ lien for remuneration, costs, and expenses had priority over the respondents’ registered mortgages, and if the respondents' interests were taken free from any equity by virtue of section 184 of the Land Title Act 1994 (Qld). The applicants contended that their lien was a charge on the property and should be given priority over the mortgages. The respondents, however, argued that their mortgages were valid and took priority over the receivers' equitable interest.

The court found that the respondents’ mortgages were not subject to any equity affecting the applicants' title. The court held that the section 184 of the Land Title Act 1994 (Qld) protected the respondents’ interests, allowing them to take their interest free from any equity. Consequently, the respondents' mortgages took priority over the applicants' lien for remuneration, costs, and expenses. The court dismissed the amended originating application filed by the applicants against the respondents, affirming that the respondents’ mortgages ranked higher in priority than the applicants’ lien. This decision underscored the importance of statutory provisions in determining the priority of interests in real property.

Orders

Orders of the court

1. The amended originating application filed on 12 January 2006 is dismissed as against the first and second respondents.

2. Any lien to which the applicants are entitled as receivers under the order of this Court made on 16 November 2004 in BS 8484 of 2004 ranks subsequent in priority to the first and second respondents’ registered mortgages numbered 703570735, 703494840, 704544382, 707227959 and 709100851

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Jefferson and Joiner v Shirlaw & Ors [2006] QSC 153
PARTIES:	PHILLIP GREGORY JEFFERSON and MATTHEW LESLIE JOINER (in their capacity as Court Appointed Receivers) (applicant) v KEVIN RICHARD SHIRLAW (first respondent) OSTABRIDGE PTY LTD ACN 003 611 194 (Receiver and Manager Appointed) (second respondent) AMMBAR PTY LTD ACN 080 616 191 (third respondent) BUSINESS BRIDGING FINANCE PTY LTD ACN 115 876 741 (fourth respondent) MARY DEWAR (fifth respondent) MACGILLIVRAYS SOLICITORS (a firm) (the partners of which hold registered mortgage No 707 949 495) (sixth respondent) THE COMMISSIONER OF LAND TAX (seventh respondent) GALLUS PROPERTIES PTY LTD, PETER WILLIAM GALLUS AND BROADBEACH VISTA PTY LTD (eighth respondent) KERRIE SUZANNE RICHARDSON (ninth respondent)
FILE NO/S:	BS No 336 of 2006
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	23 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	9 May 2006
JUDGE:	Holmes J
ORDER:	1. The amended originating application filed on 12 January 2006 is dismissed as against the first and second respondents. 2. Any lien to which the applicants are entitled as receivers under the order of this Court made on 16 November 2004 in BS 8484 of 2004 ranks subsequent in priority to the first and second respondents’ registered mortgages numbered 703570735, 703494840, 704544382, 707227959 and 709100851
CATCHWORDS:	CORPORATIONS – RECEIVERS, CONTROLLERS AND MANAGERS – REMUNERATION AND EXPENSES – PRIORITY OF DEBTS – where receivers appointed by court to two companies – where asset of receivership was real property – where existing registered mortgages over the land were transferred to first and second respondents after appointment of receivers – whether registered mortgages take priority over receivers’ indemnity and lien for remuneration, costs and expenses – whether first and second respondents took their interest free from receivers’ equitable interest by virtue of section 184 of the Land Title Act 1994 (Qld) – whether any equity affecting first and second respondents’ title Land Title Act 1994 (Qld), s 184, s 185, Schedule 2 Choudhri v Palta [1994] 1 BCLC 184 Cobb and Co Holdings Pty Ltd v Daydream Island Tourist Resort Pty Ltd and Anor (1982) 7 ACLR 463 Dean-Willcocks & Anor v Nothintoohard Pty Ltd (In Liq) (2005) 53 ACSR 587 In Re Universal Distributing Company Ltd (In Liquidation) (1933) 48 CLR 171 Moodemere Pty Ltd (In Liq) v Waters [1988] VR 215 Nicobar Pty Ltd v Abrokiss Pty Ltd (2003) 48 ACSR 259 Re Application of Central Commodity Services Pty Ltd & Ors [1984] 1 NSWLR 25 Re Berkeley Applegate (Investment Consultants) Ltd (In Liq); Harris v Conway [1989] Ch 32 ReConlan (as liquidator of Oakleigh Acquisitions Pty Ltd) [2001] WASC 230 ReConlan (as liquidator of Oakleigh Acquisitions Pty Ltd) v Registrar of Titles (2001) 24 WAR 299 Re Lawrenson Light Metal Die Casting Pty Ltd; Australian Securities and Investments Commission v Lawrenson Light Metal Die Casting Pty Ltd (1999) 33 ACSR 288 Shawyer v Amberday Pty Ltd(In Liq) (2001) NSWSC 399 Shirlaw v Taylor (1991)…