NT Power Generation Pty Ltd v Trevor - [2000] WASC 254

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NT POWER GENERATION PTY LTD -v- TREVOR & ORS [2000] WASC 254

CORAM: IPP J

HEARD: 18 SEPTEMBER 2000

DELIVERED : 19 SEPTEMBER 2000

FILE NO/S: COR 240 of 2000

BETWEEN: NT POWER GENERATION PTY LTD (ACN 061 314 921)
Plaintiff
AND
GARRY JOHN TREVOR
MARTIN BRUCE JONES
First Defendants
GENERAL GOLD OPERATIONS PTY LTD (ADMINISTRATOR APPOINTED) (ACN 086 085 878)
Second Defendant

FILE NO/S :COR 241 of 2000

BETWEEN :ZOE BOWEN
JOHN D'AMBROSIO
ROD JOHNSTON
MURRAY LORENSEN
JUSTIN MORSE
JODIE LEE
NICK BURN
MURRAY KANE
JENNY ORTON
MERVYN WELSH
DEBORAH JOHINKE
DOUG KELLY
ABDUL REEBECK
BRIAN FLETCHER
MARK GLASSOCK
MIRRELLE HARDI-TJONG
JACK MARTIN
KAYLEEN SMITH
JOHN MCGARRY
GREG CARSON
FIONA PINKNEY
WAYNE GAITER
ROBERT GRAY
ROD USHER
COLIN FORSCUTT
BRAD MURPHY
GLEN PERKINS
TIM WILLMOT
CHRIS BOLGER
ROB FRIEL
FRED HIGGINS
PETER LANDELLS
NATHAN GOSS
BRENDON DOWSE
PAUL RICHARDSON
SIMON MORO
JAMIE LANGERAK
TOM PFENNIG
WES JAWAL
TRACEY GANE
JAMIE DOBSON
MARK BUNCH
EDWIN SHARPLES
JOHN RICKETTS
First Plaintiffs
MULTIPLEX CONSTRUCTION PTY LTD (ACN 008 687 063)
Second Plaintiff
AND
GARRY JOHN TREVOR
MARTIN BRUCE JONES
First Defendants
GENERAL GOLD OPERATIONS PTY LTD (ADMINISTRATOR APPOINTED) (ACN 086 085 878)
Second Defendant

Catchwords:

Corporations - Proof of debt - Creditors include those who have claims for debts that become due and payable after the deed of arrangement

Corporations - Proxy forms - Whether proxies genuine proxies - Proxies are genuine when the proxy holder is the true agent of the shareholder and is not empowered to advance his or her own interests alone

Equity - Assignments in equity - No equitable assignment of a debt where the intention is not to transfer the interest in the debt immediately but only after demand therefor is made

Legislation:

Property Law Act 1969, s 20(1)

Corporations Law, s 436A, s 429C, s 444D(1), s 553, s 1321

Result:

COR 240 of 2000 - Appeal allowed
COR 241 of 2000 - Appeal dismissed

Representation:

COR 240 of 2000

Counsel:

Plaintiff:     Ms C J McLure QC & Mr R L McKenzie
First Defendants           :     Mr N P Gentilli
Second Defendant         :     Mr N P Gentilli

Solicitors:

Plaintiff:     Clayton Utz
First Defendants           :     Jackson McDonald
Second Defendant         :     Jackson McDonald

COR 241 of 2000

Counsel:

First Plaintiffs               :     Ms C J McLure QC & Mr R L McKenzie
Second Plaintiff            :     Ms C J McLure QC & Mr R L McKenzie
First Defendants           :     Mr N P Gentilli
Second Defendant         :     Mr N P Gentilli

Solicitors:

First Plaintiffs               :     Clayton Utz
Second Plaintiff            :     Clayton Utz
First Defendants           :     Jackson McDonald
Second Defendant         :     Jackson McDonald

Case(s) referred to in judgment(s):

Anning v Anning (1907) 4 CLR 1049
Brash Holdings Ltd v Katile Pty Ltd [1996] 1 VR 24
Coachcraft Ltd v SVP Fruit Co Ltd (1980) 28 ALR 319
Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 CLR 614
Cousins v International Brick Company [1931] All ER Rep 229
International Leasing…

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: [2000] WASC 254
Decision Date: 19 SEPTEMBER 2000

CaseChat Overview and Summary

The case of NT Power Generation Pty Ltd v Trevor was heard in the Federal Court of Australia. The dispute revolved around the validity of a proof of debt submitted by Trevor, a creditor of NT Power Generation, in the context of a deed of arrangement. The central issue was whether Trevor's proxy forms were genuine and whether the debt he claimed was due and payable. Trevor argued that the proxies were genuine and that he was a creditor of the company. NT Power Generation, on the other hand, contested the authenticity of the proxies and the timing of the debt's occurrence.

The court was required to determine the legitimacy of the proxy forms used by Trevor to vote at a creditors' meeting and establish whether these proxies were genuine. The court also needed to ascertain whether Trevor's claim for debt was due and payable at the relevant time. Furthermore, the court had to address whether there was an equitable assignment of the debt in question. This involved examining the intention behind the assignment and whether it was intended to transfer the interest in the debt immediately or only upon demand.

The court found that the proxies were not genuine as the proxy holder was not the true agent of the shareholder and was empowered to advance their own interests alone. Consequently, Trevor's claim was not valid. Additionally, the court held that there was no equitable assignment of the debt because the intention was not to transfer the interest in the debt immediately but only after demand. Therefore, Trevor's proof of debt was dismissed. The court ruled in favour of NT Power Generation and dismissed Trevor's claim for debt.

No further orders were made by the court.

Orders