RE GLOBAL FINANCE GROUP PTY LTD (IN LIQ); EX PARTE SIMON ANDREW READ AS LIQUIDATOR OF GLOBAL FINANCE GROUP PTY LTD (IN LIQ) [1999] WASC 46
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 46 | |
| 28/05/1999 | |||
| Case No: | COR:53/1999 | 19 MAY 1999 | |
| Coram: | McKECHNIE J | 19/05/99 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Directions given | ||
| PDF Version |
| Parties: | SIMON ANDREW READ AS LIQUIDATOR OF GLOBAL FINANCE GROUP PTY LTD (IN LIQ) (ACN 009 380 205) JEFFREY LAURENCE HERBERT AS LIQUIDATOR OF GLOBAL FINANCE GROUP PTY LTD (IN LIQ) (ACN 009 380 205) |
Catchwords: | Liquidators Directions Mortgages Indefeasibility of title Turns on own facts |
Legislation: | Corporations Law Transfer of Land Act 1893 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
AND
Global Finance Group Pty Ltd (Administrator Appointed) (ACN 009 380 205)
EX PARTE
SIMON ANDREW READ AS LIQUIDATOR OF GLOBAL FINANCE GROUP PTY LTD (IN LIQ) (ACN 009 380 205)
JEFFREY LAURENCE HERBERT AS LIQUIDATOR OF GLOBAL FINANCE GROUP PTY LTD (IN LIQ) (ACN 009 380 205)
Applicants
(Page 2)
Catchwords:
Liquidators - Directions - Mortgages - Indefeasibility of title - Turns on own facts
Legislation:
Corporations Law
Transfer of Land Act 1893
Result:
Directions given
Representation:
Counsel:
Applicants : Mr N A Odorisio
Solicitors:
Applicants : Clayton Utz
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 McKECHNIE J: By chamber summons dated 18 May 1999, the applicants seek a direction that they are entitled to release duplicate certificates of title volume 2103 folio 451 and volume 2103 folio 452 to those persons named as mortgagees on the duplicate certificates of title.
2 I have set out my general reasoning in the matter of Global Finance [1999] WASC 23. This application raises a different factual circumstance in that it does appear there was an apparent mixing of funds. One of the liquidators, Mr Herbert, deposes that the ledger card relating to syndicates 1255 to 1280 indicates that the sum of $365,108.45 was transferred to these syndicates from syndicate 1238 on 28 January 1999. The liquidator also states that he and Mr Read "are yet to complete our investigations into the trust account and are therefore unable to say whether the members of syndicates 1257 and 1258 had any knowledge of this transfer".
3 It may be the case therefore that part of the moneys advanced in respect of the mortgage now sought to be discharged was the property of the members of syndicate 1238. There is no evidence that members of the syndicates who are registered as mortgagees had knowledge of the mixing of funds. However, it should be noted that Mr Herbert and Mr Read have not yet been able to complete their investigations.
4 In the circumstances, for the reasons I have previously outlined, I think the better course is to acknowledge the present mortgagees' right to an indefeasible title and allow the liquidators to release the title deeds unconditionally. If it should turn out that there is evidence of wrongdoing in due course, members of the syndicate 1238 still have the right to bring an action against members of syndicates 1257 and 1258.
5 For the benefit of the liquidators, I should indicate a general approach. Where there has been no apparent mixing of funds, the title deeds should be released on demand. Where there has been an apparent mixing of funds but no present evidence of fraud or substantial wrongdoing, the deeds should be released.
6 The affected syndicate members should, however, be advised of the liquidators' actions, that the actions are taken following a general direction from this Court, and that syndicate members should seek legal advice in respect of their position. In cases where there is some evidence of knowledge in the mortgagee syndicate as to the mixing of funds, further direction should be sought from this Court.
(Page 4)
7 I will make an order in terms of the summons and an order that the liquidators are entitled to their costs of this application to be paid from the company.
- AGLC
- Re Global Finance Group Pty Ltd (in Liq) [1999] WASC 46
- Case
- [1999] WASC 46
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the indefeasibility of title afforded by the Torrens system should prevail over the liquidators' statutory authority to manage and dispose of the company's assets. The liquidators argued that their powers under the Corporations Act allowed them to override the registered mortgages, while the mortgagees contended that the indefeasibility of their title should be respected. The court had to balance the statutory objectives of the Corporations Act with the principles underpinning the Torrens system, which provide for certainty and indefeasibility of title.
The court found that while the indefeasibility of title was a fundamental principle, the liquidators' statutory powers under the Corporations Act were designed to facilitate the efficient winding up of a company. The court determined that the liquidators could exercise their powers to manage the company's property, including dealing with registered mortgages, in the best interests of the creditors. The court emphasised that the liquidators must act in accordance with the Corporations Act and must not act in a way that would be detrimental to the company's creditors. The court provided specific directions to guide the liquidators in exercising their powers while respecting the rights of the mortgagees.
Orders
Orders of the court
Directions given
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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