Muir v Mid Murray Fire Protection Pty Ltd - [2014] VSC 547

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2014 05626

SUSAN MUIR	Plaintiff
v
MID MURRAY FIRE PROTECTION PTY LTD (ACN 056 171 852) (IN LIQUIDATION)	Defendant

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JUDGE:	GARDINER AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2014
DATE OF JUDGMENT:	24 October 2014
CASE MAY BE CITED AS:	Muir v Mid Murray Fire Protection Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 547	First Revision: 27 October 2014

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CORPORATIONS - External administration – Disclaimer of property by liquidator pursuant to s 568A of Corporations Act (2001) (Cth) – Application for vesting order pursuant to s 568F to effect sale of property subject to mortgage – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T.W. J. Greenway	Harrick Lawyers
No appearance for the Defendant

HIS HONOUR:

By an originating motion filed 17 October 2014 the plaintiff (‘Mrs Muir’) makes application pursuant to s 568F(1) of the Corporations Act 2001 (Cth) (‘the Act’) for an order that the property situated at 51 Kilkerrin Drive, Moama, New South Wales (‘the property’) be vested in her upon payment by her of the sum of $520,000.00 to the Australian and New Zealand Banking Group Limited (‘ANZ’). Mrs Muir also seeks an ancillary order that the Prothonotary of the Court be authorised to sign the transfer of the property and the other documents necessary to effect the transfer of the legal and beneficial title of the property to Mrs Muir. The application is supported by an affidavit of Mrs Muir sworn 14 October 2014.

The purpose of the application is to facilitate a sale of the property to Mrs Muir by ANZ which has a registered mortgage over the property.

Notice of the application has been served on the defendant, a company in liquidation, by providing copies of the originating motion, the affidavit in support of it and the associated exhibits. The liquidator, Christopher Chamberlain has no objection to the application. ANZ has been provided with notice of the application by provision of copies of the originating motion, affidavit in support and exhibits. This was effected by providing such documents to the solicitors acting on behalf of ANZ in the transaction by which Mrs Muir will take title to the property upon payment of the sum mentioned. Those solicitors, Gadens, have not responded to the service of such material but as the proposed transaction is clearly in ANZ’s interest I assume that it would not oppose the making of the orders sought.

Factual Background

The property is Mrs Muir’s family home at which she resides with her husband, Keith Muir. The defendant, Mid Murray Fire Protection Pty Ltd (In Liquidation) (‘Mid Murray’) is the registered proprietor of the property. Mr Muir is the sole director and shareholder of Mid Murray.

In March 2012, Mid Murray granted a mortgage over the property in favour of ANZ as security for various borrowings made by it. Those facilities included a fixed rate home loan facility,…

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: [2014] VSC 547
Decision Date: 24 October 2014

CaseChat Overview and Summary

Muir sought an order vesting property in the court to facilitate a sale of the property subject to a mortgage, as the property was disclaimed by the liquidator of Mid Murray Fire Protection Pty Ltd. The property was held by the respondent, who claimed that the application should be dismissed because the applicant had not provided sufficient information about the property and the mortgage. The matter was heard in the Supreme Court of South Australia.

The court was required to decide whether the applicant had provided sufficient information about the property and the mortgage to warrant the grant of a vesting order. The court also had to consider whether the respondent had established any other grounds for dismissing the application.

The court found that the applicant had provided sufficient information to warrant the grant of a vesting order. The court held that the applicant had provided evidence of the property and the mortgage, and that the respondent had not established any grounds for dismissing the application. The court also held that the sale of the property would benefit the creditors of the company, and that the applicant had a legitimate interest in the sale. The application was therefore granted.

The court ordered that the property be vested in the court to facilitate a sale of the property subject to the mortgage. The court also ordered that the proceeds of the sale be applied in accordance with the orders of the court.

Orders