RYAN & ANOR -v- WESTGROUP PTY LTD (RECEIVERS AND MANAGERS APPOINTED) [2004] WASC 1

Link to Appeal :

[2005] WASCA 68 [2005] WASCA 68

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 1
Case No:	COR:289/2003	Heard:	16 DECEMBER 2003
Coram:	PULLIN J	Delivered:	14/01/04
No of pages:	8	Judgment Part:	1 of 1
Result:	Declarations made
Category:	B
PDF Version

Parties:	MICHAEL JOSEPH PATRICK RYAN IAN CHARLES FRANCIS WESTGROUP PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ACN 067 744 254) NATIONAL AUSTRALIA BANK LTD (ACN 004 044 937) POLICE & NURSES CREDIT SOCIETY LTD (ABN 69 087 651 876)
Catchwords:	Mortgages and charges Debenture Construction of document Turns on own facts
Legislation:	Airports (Transitional) Act 1996, s 21, s 22 Airports Act 1996
Case References:	Neat Domestic Trading Pty Ltd v Wheat Export Authority (2000) 64 ALD 29 R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 Wik Peoples v State of Queensland (1996) 187 CLR 1 Agnew v CIR [2001] 2 AC 710 Arturi v Zupps Motors Pty Ltd (1980) 49 FLR 283 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Blizzard v O'Sullivan [1994] 1 Qd R 112 Chapmans Ltd v Australian Stock Exchange Ltd (1994) 123 ALR 215 Chittick v Ackland (1984) 53 ALR 143 Craddock Bros v Hunt [1923] 2 Ch 136 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 Herman v Gill (1921) 24 WALR 10 Manchester Ship Canal Co v Manchester Racecourse Co [1901] 2 Ch 37 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 Ninety Five Pty Ltd (in liq) v Banque Nationale de Paris [1988] WAR 132 Pan Foods Co Importers & Distributors Pty Ltd v Australia & New Zealand Banking Group Ltd (2000) 170 ALR 579 Pilcher v Rawlins (1871) LR Ch App 7 259 Re Michael; Ex parte WMC Resources Ltd [2003] WASCA 288 Rye v Rye [1962] AC 496 Swiss Bank Corporation v Lloyds Bank Ltd [1979] 1 Ch 548; appealed [1982] AC 584 The National Mutual Life Association of Australasia v Hamersley Iron Pty Ltd, unreported; FCt SCt of WA; Library No 5642; 27 November 1984 Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388 Wilson v Anderson (2002) 190 ALR 313

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RYAN & ANOR -v- WESTGROUP PTY LTD (RECEIVERS AND MANAGERS APPOINTED) [2004] WASC 1 CORAM : PULLIN J HEARD : 16 DECEMBER 2003 DELIVERED : 14 JANUARY 2004 FILE NO/S : COR 289 of 2003 BETWEEN : MICHAEL JOSEPH PATRICK RYAN

IAN CHARLES FRANCIS

Plaintiffs

AND

WESTGROUP PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ACN 067 744 254)

Defendant

FILE NO/S : CIV 2159 of 2003 BETWEEN : NATIONAL AUSTRALIA BANK LTD (ACN 004 044 937)

Plaintiff

AND

POLICE & NURSES CREDIT SOCIETY LTD (ABN 69 087 651 876)

Defendant

(Page 2)

Catchwords:

Mortgages and…

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: [2004] WASC 1
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Pullin J delivered a judgment in two consolidated cases: COR 289 of 2003 and CIV 2159 of 2003. The plaintiffs in COR 289 sought a declaration that they, as receivers, validly entered into possession of the defendant's, Westgroup, lease and licence interests at Perth International Airport under the terms of a debenture. In CIV 2159, the plaintiff bank sought a declaration that upon the sale or disposal by Westgroup of its leasehold interest, it was entitled to the proceeds in priority to the Police & Nurses Credit Society Ltd. The dispute centred on the interpretation of Clause 41.1 of the Debenture, which provided that if a statute prohibited any property or asset of the Mortgagor from being charged, the Debenture would not operate to charge that property or asset unless certain conditions were met.

The court had to determine whether the Sublease, which Westgroup entered into with the Commonwealth, was a "statute" within the meaning of the Debenture. The Police & Nurses argued that the Sublease, being a statute, contained a prohibition of the kind referred to in Clause 41.1, because Clause 18.4 of the Sublease provided that Westgroup should not mortgage or otherwise encumber its interest in the Sublease without the prior consent in writing of the Commonwealth. The court found that the Sublease was not "made" under the legislation, as it was brought into existence, produced, or constituted by reason of the contract entered into between Westgroup and the Commonwealth.

Pullin J concluded that the Sublease was not "made" under the Airports (Transitional) Act 1996, the Airports Act 1996, or the Regulations. As a result, the court made the declarations sought by the receivers and by the Bank.

Orders