Mango Boulevard Pty Ltd v Mio Art Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Mango Boulevard Pty Ltd & Anor v Mio Art Pty Ltd & Ors [2016] QCA 148

PARTIES:

MANGO BOULEVARD PTY LTD
ACN 101 544 601
(first appellant)
BMD HOLDINGS PTY LTD
ACN 010 093 348
(second appellant)
v
MIO ART PTY LTD ACN 121 010 875 as trustee of the SPENCER FAMILY TRUST
(first respondent)
SILVANA PEROVICH
(second respondent)
ROBERT WILLIAM WHITTON as trustee of the Estate of SILVANA PEROVICH (a bankrupt)
(third respondent)

FILE NO/S:

Appeal No 6097 of 2015
SC No 1714 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2015] QSC 116

DELIVERED ON:

7 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2015

JUDGES:

Fraser and Gotterson JJA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Dismiss the appeal with costs.

CATCHWORDS:

PERSONAL PROPERTY – TRANSFER – CHOSE IN ACTION – APPLICATION OF STATUTORY REGIME TO ASSIGNMENTS – ELEMENTS OF STATUTORY REGIME – ABSOLUTE ASSIGNMENT – where the appellants contended that Mio Art, the first respondent, had made a statutory assignment of its right to sue for payment under an agreement to Standard Builders Pty Ltd – where the appellants alleged the assignment took effect in accordance with s 199 of the Property Law Act 1974 (Qld) – where the trial judge found that there was no ‘absolute assignment not purporting to be by way of charge only’ – where the appellants argued that the effect of the first respondents agreement with Standard Builders Pty Ltd was an absolute, unconditional assignment of the debt – where the relevant agreement used the words ‘assign’ and absolutely – where, pursuant to the relevant agreement, unless and until the first respondent defaulted all moneys in respect of the secured assets were to be received by it – whether there was an absolute assignment of the debt

PERSONAL PROPERTY – TRANSFER – CHOSE IN ACTION – APPLICATION OF STATUTORY REGIME TO ASSIGNMENTS – ELEMENTS OF STATUTORY REGIME – NOTICE AND WRITING – where the appellants contended that Mio Art, the first respondent, had made a statutory assignment of its right to sue for payment under an agreement to Standard Builders Pty Ltd – where the appellants alleged the assignment took effect under s 199 of the Property Law Act – where a judge of the trial division held that if there was such an assignment it was not effective because of the absence of the required ‘express notice in writing’ – where the appellant argued that notice was given via its receipt of a copy of a letter to Standard Builders from its solicitor referring to a (separate) dispute between Standard Builders and the appellants – where the appellants alleged that notice was also given by the first respondent’s disclosure of the relevant agreement in separate litigation involving the parties – where the appellants argued that notice was also given by a…