Kerry Lowe Management Pty Limited v Isherwood

Kerry Lowe Management Pty Limited sought special leave to appeal to the High Court of Australia from a decision of the Court of Appeal. The dispute concerned the validity of an appointment of joint and several receivers and managers. The applicant argued that the Court of Appeal's decision was inconsistent with previous decisions of single judges in the Federal Court and the Supreme Court of Western Australia, which had dealt with similar appointments under deeds of charge.

The central legal issue before the High Court was whether an appointment of receivers and managers, which purported to appoint them as both joint and several receivers and managers, was valid when the underlying deed of charge permitted only a joint appointment. The applicant contended that the Court of Appeal had erred by treating the appointment as two distinct appointments, one joint and one several, and by attempting to sever an invalid part of the appointment from a valid part, a process they argued was not supported by the deed's severance clause.

The applicant submitted that the deed of appointment in this case was distinct from the deed of charge, and therefore, a severance provision within the deed of charge could not apply to an invalid appointment made under a separate deed. The Court of Appeal, however, had found that the deed of appointment separated the joint and several appointments in a manner that allowed for the conclusion that if the power of appointment was only for joint receivers, the deed of appointment had succeeded in achieving that latter objective. The applicant argued that this approach was fundamentally flawed, particularly as the Court of Appeal did not rely on the deed's severance clause, unlike a previous single judge decision.