RADIO FREQUENCY SYSTEMS PTY LTD -v- NOEL GUTHRIE as the Liquidator of ULT LTD (Receiver Appointed) (In Liq) [2001] WASCA 195

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 195
Court:	THE FULL COURT (WA)
Case No:	FUL:116/2000	Heard:	1 JUNE 2001
Coram:	STEYTLER J MILLER J PIDGEON AUJ	Delivered:	27/06/01
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal allowed
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Parties:	RADIO FREQUENCY SYSTEMS PTY LTD NOEL GUTHRIE as the Liquidator of ULT LTD (Receiver Appointed) (In Liq)
Catchwords:	Contract Sale of goods subject to retention of title clause Construction of Romalpa clause Whether credit agreement intended to create a charge over goods supplied Effect of back-dating credit agreement Whether payments void against liquidator
Legislation:	Corporations Law, s 9, s 565 Bankruptcy Act 1966, s 122
Case References:	Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676 Armour v Thyssen Edelstahlwerke AG (1991) 2 AC 339 Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (In Liq) (formerly Metropolitan Engineering and Fabrication Pty Ltd) (2000) 171 ALR 568 Baker v Wind (1748) 1 Ves Sen 160 [27 ER 956] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Douglas v Culverwell (1862) 4 De G F & J 20 [45 ER 1089] DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Esanda Ltd v Burgess [1984] 2 NSWLR 139 Gurfinkel v Bentley Pty Ltd (1966) 116 CLR 98 Perpetual Trustee Co Ltd v Bligh (1940) 41 SR (NSW) 33 Associated Alloys Pty Ltd v Metropolitan Engineering & Fabrication Pty Ltd (1998) 16 ACLC 1633 Cinema Plus Ltd v Australia and New Zealand Banking Group Ltd (2000) 49 NSWLR 513 Clough Mill Ltd v Martin [1985] 1 WLR 111 Compaq Computer Ltd v Abercorn Group Ltd [1993] BCLC 602 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Kent & Sussex Sawmills Ltd [1947] Ch 177 Noakes & Co Ltd v Rice [1902] AC 24 Puma Australia Pty Ltd v Sportmans Australia Ltd [1994] 2 Qd R 149 Re Bond Worth Ltd [1979] 3 WLR 629

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RADIO FREQUENCY SYSTEMS PTY LTD -v- NOEL GUTHRIE as the Liquidator of ULT LTD (Receiver Appointed) (In Liq) [2001] WASCA 195 CORAM : STEYTLER J

MILLER J

PIDGEON AUJ

HEARD : 1 JUNE 2001 DELIVERED : 27 JUNE 2001 FILE NO/S : FUL 116 of 2000 BETWEEN : RADIO FREQUENCY SYSTEMS PTY LTD

Appellant (Respondent)

AND

NOEL GUTHRIE as the Liquidator of ULT LTD (Receiver Appointed) (In Liq)

Respondent (Applicant)

Catchwords:

Contract - Sale of goods subject to retention of title clause - Construction of Romalpa clause - Whether credit agreement intended to create a charge over goods supplied - Effect of back-dating credit agreement - Whether payments void against liquidator

Legislation:

Corporations Law, s 9, s 565

Bankruptcy Act…

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

AGLC: Radio Frequency Systems Pty Ltd v Noel Guthrie as the Liquidator of ULT Ltd (Receiver Appointed) (In Liq) [2001] WASCA 195
Case: [2001] WASCA 195
Decision Date: 27 JUNE 2001

CaseChat Overview and Summary

The appeal was brought by Radio Frequency Systems Pty Ltd (RFS), a supplier of electronic equipment, against Noel Guthrie, as liquidator of ULT Ltd, a company that had gone into liquidation. RFS sought to recover goods sold to ULT Ltd under a contract containing a retention of title clause. The dispute centred on whether a credit agreement executed by ULT Ltd, which was back-dated to precede the retention of title clause in the sale agreement, created a charge over the goods that could be enforced against the liquidator.

The central legal issues before the court involved the interpretation of the retention of title clause and the credit agreement. RFS contended that the credit agreement did not create a registrable charge, thus preserving their proprietary interest in the goods supplied to ULT Ltd. The court had to determine whether the back-dated credit agreement was effective in creating a charge over the goods, and if the liquidator could enforce payments made under that agreement against RFS.

The court held that the retention of title clause was clear and unambiguous, indicating that ownership of the goods remained with RFS until full payment was received. The back-dated credit agreement did not affect the priority of the retention of title clause. The court found that the credit agreement did not create a registrable charge, and therefore did not alter the proprietary interest RFS retained in the goods. Consequently, the liquidator could not enforce the payments made under the credit agreement against RFS. The appeal was allowed, reinstating RFS's right to reclaim the goods from ULT Ltd.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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