Re Ace Funding Ltd

[2003] FCA 59

FEDERAL COURT OF AUSTRALIA

ACE Funding Limited [2003] FCA 59

CORPORATIONS – grant of extension of time retroactively to lodge notice of registrable charge – omission to lodge within 45 days due to inadvertence – no evidence of any hint or possibility of winding up or insolvent administration - no prejudice to creditors or shareholders or evidence of insolvency – just and equitable to grant relief

Corporations Act 2001 (Cth) ss 263(1) and 264(4)

Hamilton v Property Investments Ltd (1983) 7 ACLR 932 applied
Re Investa Properties Ltd (2001) 40 ACSR 124 approved

ACE FUNDING LIMITED

IN THE MATTER OF ACE FUNDING LIMITED ABN 79 086 048 035

N 3004 OF 2003

CONTI J
6 FEBRUARY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 3004 OF 2003

IN THE MATTER OF ACE FUNDING LIMITED ABN: 79 086 048 035

BETWEEN:	ACE FUNDING LIMITED (ABN 79 086 048 035) APPLICANT
JUDGE:	CONTI J
DATE OF ORDER:	6 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The time within which ACE Funding Limited, the abovenamed applicant, must lodge a notice pursuant to s 263(1) of the Corporations Act 2001 (Cth) in respect of the charge granted by ACE Funding Limited to S G Australia Custodian Company Pty Limited dated 20 September 2002, being exhibit marked “MJA1” to the affidavit of Matthew John Allchurch dated 15 February 2003 and filed in the within proceedings, be extended to 5:00pm on 7 November 2002.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 3004 OF 2003

IN THE MATTER OF ACE FUNDING LIMITED ABN: 79 086 048 035

BETWEEN:	ACE FUNDING LIMITED (ABN 79 086 048 035) APPLICANT
JUDGE:	CONTI J
DATE:	6 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. ACE Funding Limited (“AFL”), an unlisted public company limited by shares and incorporated in the Australian Capital Territory on 25 February 1999, has made application pursuant to s 264(4) of the Corporations Act 2001 (“the Act”) for an order that the time within which AFL should have lodged a notice in respect of a registrable charge bearing the date of 20 September 2002 over the property of AFL in favour of S G Australia Custodian Company Pty Limited (“SGA”), namely the period of 45 days ended 4 November 2002, be extended to 5:00pm on 7 November 2002. In that regard, s 264(4) envisages the grant of relief having retroactive as well as proactive operation. By s 263(1) of the Act, it is stipulated of course that where a company creates a charge, the company must ensure that there is lodged with the Australian Securities and Investments Commission (“ASIC”) within 45 days after the creation of the charge a notice in the prescribed form setting out certain particulars of the charge.

2. By clause 2.1 of AFL’s Constitution, restrictions of present significance are placed upon AFL’s business activities in the…