Lane and Peldan as Liquidators of Drum Suppliers Australia Pty Ltd (In Liquidation) v Jakica Pty Ltd (formerly known as Macquarie Drums Pty Ltd)
[2010] FCA 722
•2 July 2010
FEDERAL COURT OF AUSTRALIA
Lane and Peldan as Liquidators of Drum Suppliers Australia Pty Ltd (In Liquidation) v Jakica Pty Ltd (formerly known as Macquarie Drums Pty Ltd) [2010] FCA 722
Citation: Lane and Peldan as Liquidators of Drum Suppliers Australia Pty Ltd (In Liquidation) v Jakica Pty Ltd (formerly known as Macquarie Drums Pty Ltd) [2010] FCA 722 Parties: MORGAN LANE AND MICHAEL PELDAN AS LIQUIDATORS OF DRUM SUPPLIERS AUSTRALIA PTY LTD (IN LIQUIDATION)
ACN 131 764 059 v JAKICA PTY LTD ACN 118 542 153 (FORMERLY KNOWN AS MACQUARIE DRUMS PTY LTD) and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSIONFile number(s): QUD 237 of 2010 Judge: GREENWOOD J Date of judgment: 2 July 2010 Catchwords: CORPORATIONS – consideration of an application for a declaration that a charge registered after the appointment of the liquidators is void as against the liquidators Legislation: Corporations Act 2001 (Cth) Date of hearing: 2 July 2010 Date of last submissions: 2 July 2010 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 7 Counsel for the Applicant: Mr C Johnstone Solicitor for the Applicant: Russell & Company Solicitors Counsel for the First Respondent: Not represented by counsel Solicitor for the First Respondent: Mr J Barker, Frew Solicitors as town agents for Christopher M. Edwards Solicitors and Accountants Counsel for the Second Respondent: No appearance Solicitor for the Second Respondent: No appearance
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 237 of 2010
BETWEEN: MORGAN LANE AND MICHAEL PELDAN AS LIQUIDATORS OF DRUM SUPPLIERS AUSTRALIA PTY LTD (IN LIQUIDATION) ACN 131 764 059
ApplicantAND: JAKICA PTY LTD ACN 118 542 153 (FORMERLY KNOWN AS MACQUARIE DRUMS PTY LTD)
First RespondentAUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
2 JULY 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.A declaration that the fixed and floating charge, with ASC charge number 1968134, registered by the first respondent on 5 May 2010, is void as against the applicants.
2.An order that the Australian Securities and Investments Commission remove the said charge from the records of Drum Suppliers Australia Pty Ltd (In Liquidation) on the Australian Register of Company Charges.
3.An order that the first respondent pay the applicants’ costs of and incidental to this application, to be calculated on an indemnity basis.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 237 of 2010
BETWEEN: MORGAN LANE AND MICHAEL PELDAN AS LIQUIDATORS OF DRUM SUPPLIERS AUSTRALIA PTY LTD (IN LIQUIDATION) ACN 131 764 059
ApplicantAND: JAKICA PTY LTD ACN 118 542 153 (FORMERLY KNOWN AS MACQUARIE DRUMS PTY LTD)
First RespondentAUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Second Respondent
JUDGE:
GREENWOOD J
DATE:
2 JULY 2010
PLACE:
BRISBANE
EX TEMPORE REASONS FOR JUDGMENT
This is an application by Morgan Lane and Michael Peldan as liquidators of Drum Suppliers Australia Proprietary Limited (in liquidation). The application relates to the validity of a fixed and floating charge registered by a security holder which is now called Jakica Pty Ltd (“Jakica”). That charge is said to be void as against the liquidators.
The application is supported by an affidavit sworn by Mr Morgan Lane on 22 June and filed on 22 June 2010. I will not canvass all of the facts reflected in that affidavit as the application for the particular orders in relation to the validity of the fixed and floating charge are now not challenged. It is sufficient to say, as the deponent reflects at para 19 of the affidavit, that the fixed and floating charge was created on 1 July 2008. The charge was lodged and registered with the Australian Securities and Investments Commission (“ASIC”) on 5 May 2010. The registration occurred some 22 months after the charge was created. Mr Peldan and the opponent were appointed liquidators on 14 April 2010, some 21 days prior to the lodgement and registration of the charge. Neither Mr Peldan nor the deponent consented to the lodgement and registration of the charge and facts are deposed to which make it clear that the solicitors for Jakica were aware of the liquidators’ appointment when the charge was lodged with ASIC, and were also put on notice of the liquidators’ view that the charge would be void. By reason of those foundation propositions which emerge from the facts sworn to by Mr Lane, declarations are sought that “the fixed and floating charge with ASIC charge number 1968134 registered by the first respondent Jakica on 5 May 2010 is void as against the applicants”.
A further order is sought that ASIC remove the said charge from the records of the company (in liquidation) on the register of company charges. A further order is sought that the first respondent to the application pay the applicant’s costs of and incidental to the application, to be calculated on an indemnity basis. The first respondent was served with the material in relation to the application on 23 June 2010 by email and then documents were delivered on 24 June 2010 relating to the application, which consisted of a letter dated 23 June 2010 and the originating application filed 22 June 2010, and the affidavit of Mr Morgan Lane sworn 22 June 2010 with supporting annexures.
The first respondent is represented today and a notice of appearance has been tendered. No material is available or relied upon by the first respondent in seeking to resist that part of the application which relates to indemnity costs. As to that, an application was made for an adjournment of this application to enable the first respondent to put on material which would go to the question of whether the costs ought to be ordered on the orthodox party-party basis, or upon an indemnity basis. I am not minded to adjourn the application for the determination of that matter, as costs have unnecessarily been incurred already in dealing with a charge which, plainly, ought never to have been registered, and was registered in the face of communications that the charge was void and/or would be susceptible of orders of the court removing it from the register if the proposition continued to be advanced that the fixed and floating charge remained a validly registered charge. Moreover, sufficient time has elapsed between the date of service of the application and this hearing to enable affidavit material to be put on.
I have been taken to a sequence of emails and I do not propose to recite them in these short reasons. However, in the affidavit of Mr Lane, there are emails at pages 55 and onwards, including page 58, which go to the communications which Mr Lane deposes to in his own words in his affidavit. In addition to that, in the annexures to the affidavit of Romana Clare Price, sworn 2 July 2010, there is a sequence of exchanges which, again, I will not recite into these reasons, but they are reflected at, in particular, pages 2, 3, 85, 86, 87, 88, of those annexures which establish, plainly enough, that the solicitors for the first respondent were put on notice that the charge was void by reason of its lodging and registration outside the times limited by the Corporations Act 2001 (Cth) but, more particularly, after the appointment of the applicants as liquidators of the company.
Moreover, the solicitors for the first respondent were put on notice that remedial relief would be sought from the court to deal with the validity of the charge in the event that Jakica did not accept the proposition, which it now accepts, that the charge is void. I am satisfied that the discretion is properly exercised by making an order for costs on an indemnity basis in the circumstances which present themselves on the factual matrix in this matter.
Accordingly, I will make orders in terms of the application filed 22 June 2010 as to paragraphs 1, 2, and 3 of that application.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 2 July 2010
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