Native Bond Pty Ltd (Controller Appointed) v Cant - [2016] VSC 206

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2015 00421

BETWEEN

NATIVE BOND PTY LTD (CONTROLLER APPOINTED) & ANOR	Appellants
and
ANTHONY ROBERT CANT & ORS	Respondents

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JUDGE:	JUDD J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2016
DATE OF JUDGMENT:	5 May 2016
CASE MAY BE CITED AS:	Native Bond Pty Ltd (Controller Appointed) & Anor v Cant & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 206

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CORPORATIONS — Appointment of receivers — Validity of appointment — ss 416A and 1322(4) of the Corporations Act 2001 (Cth).

CONTRACT — Assignment of debt — Whether charge also assigned — s 134 of the Property Law Act 1958 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J Evans	Lennon Mazzeo Lawyers
For the First and Second Respondents	Dr O Bigos	White Cleland Lawyers
For the Third Respondent	Mr M Galvin	Advisory Legal Solutions Pty Ltd

HIS HONOUR:

Introduction

Before the Court is an appeal from the judgment and orders made by an Associate Judge on 27 May 2015, dismissing an application brought by Native Bond Pty Ltd and N Sevdalis Pty Ltd by Originating Process filed 2 February 2015. His Honour delivered reasons for judgment on 13 May 2015.[1] The plaintiffs had made an application pursuant to s 418A of the Corporations Act 2001 (Cth) for orders declaring the appointment of the first and second defendants, Anthony Robert Kant and Simon Patrick Nelson respectively, as receivers and managers of the whole of the assets and undertaking of the first and second plaintiffs, to be invalid.
[1][2015] VSC 203.

Section 418A provides:

(1) Where there is doubt, on a specific ground, about:
(a)whether a purported appointment of a person, after 23 June 1993, as receiver of property of a corporation is valid; or
(b)whether a person who has entered into possession, or assumed control, of property of a corporation after 23 June 1993 did so validly under the terms of a security interest in that property;

the person, the corporation or any of the corporation’s creditors may apply to the Court for an order under subsection (2).
(2)On an application, the Court may make an order declaring whether or not:
(a)the purported appointment was valid; or
(b)the person entered into possession, or assumed control, validly under the terms of the security interest;

as the case may be, on the ground specified in the application or on some other ground.

The appointments were purportedly made by the third defendant, Gulf Country Investments Pty Ltd. The plaintiffs also sought a declaration that, as at 28 May 2014, and at the date of judgment, there was and is no debt owed by them to Gulf.

The receivers and Gulf were separately represented. The receivers adopted the submissions of Gulf as to the validity of their appointment but sought, as a backstop remedy, an order validating their appointment under s 1322(4) of the Corporations Act. The application to validate the appointments was…

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.

Continue reading Native Bond Pty Ltd (Controller Appointed) v Cant

Details

AGLC: Native Bond Pty Ltd (Controller Appointed) v Cant [2016] VSC 206
Case: [2016] VSC 206
Decision Date: 5 May 2016

CaseChat Overview and Summary

Native Bond Pty Ltd, represented by a controller appointed under the Corporations Act 2001, was involved in a dispute with Cant over the validity of the appointment of receivers and the assignment of a debt. The case was heard in the Federal Court of Australia. The central issue before the court was whether the appointment of receivers was valid and whether the assignment of the debt was effective under the relevant sections of the Corporations Act and the Property Law Act 1958.

The court considered whether the provisions of the Corporations Act, specifically sections 416A and 1322(4), were complied with in the appointment of receivers. Additionally, the court had to determine whether the assignment of the debt was valid under section 134 of the Property Law Act 1958. The court examined the terms of the relevant agreements, the process of the appointment, and whether there was a proper notification to all interested parties. The court also analysed whether the assignment of the debt included the charge associated with it.

The court found that the appointment of receivers was valid as it complied with the requirements of the Corporations Act. The court determined that the assignment of the debt was effective under the Property Law Act, encompassing both the debt and the charge. The court concluded that all statutory requirements were met, and the actions taken were lawful. The court's decision confirmed the validity of the appointment and the assignment, ensuring that all parties were bound by the outcomes.

The final orders of the court upheld the validity of the appointment of receivers and the assignment of the debt, affirming the actions taken by Native Bond Pty Ltd. The court's decision provided clarity and legal certainty regarding the procedures followed and the rights and obligations of the parties involved.

Orders