SARACEN PROJECT MANAGEMENT PTY LTD AS TRUSTEE FOR THE SARACEN PROJECT MANAGEMENT TRUST Second Plaintiff
AND
MARK FRANCIS XAVIER MENTHA CLIFFORD STUART ROCKE First Defendants
BOSI SECURITY SERVICES LTD Second Defendant
(BY ORIGINAL ACTION)
BOSI SECURITY SERVICES LTD Plaintiff by Counterclaim
AND
LUKE SARACENI First Defendant by Counterclaim
SARACEN PROJECT MANAGEMENT PTY LTD AS TRUSTEE OF THE SARACEN PROJECT MANAGEMENT TRUST Second Defendant by Counterclaim
WESTGEM INVESTMENTS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ADMINISTRATOR APPOINTED) Third Defendant by Counterclaim
(BY COUNTERCLAIM)
Catchwords:
Contract - Construction of deed - Whether deed charged all of the assets and undertaking of a party to the deed - Application of the principle in Fitzgerald v Masters
Equity - Rectification - Whether deed could be rectified where the parties were mistaken as to the effect of the deed - Whether deed should be rectified to create a charge over all of the chargor's assets where the chargor was in administration - Whether chargee had misled ASIC and Office of State Revenue over circumstances relevant to the payment of stamp duty - Whether chargee had unclean hands - Whether the court should refuse to rectify deed for unclean hands
Equity - Subrogation - Whether defendants were entitled to be subrogated to the securities granted to another financier - Whether assignee of securities had unclean hands
Equity - Estoppel - Whether the plaintiffs estopped from denying that deed created a fixed and floating charge over all of the assets and undertaking of party to the deed - Whether parties estopped where they have made an assumption about the effect of their agreement - Whether plaintiffs party to the alleged estoppel
Declarations to be made that deed charged all of the assets and undertaking of Westgem Investments Pty Ltd and that the charge was not void as against the administrator
Category: B
Representation:
Original Action
Counsel:
First Plaintiff : Mr J T Gleeson SC &
Mr M L Bennett
Second Plaintiff : Mr J T Gleeson SC &
Mr M L Bennett
First Defendants : Mr P W Collinson SC,
Ms K F Banks-Smith & Ms E Dias
Second Defendant : Mr P N Collinson SC,
Ms K F Banks-Smith & Ms E Dias
Solicitors:
First Plaintiff : Jackson McDonald
Second Plaintiff : Jackson McDonald
First Defendants : King & Wood Mallesons
Second Defendant : King & Wood Mallesons
Counterclaim
Counsel:
Plaintiff by Counterclaim : Mr P W Collinson SC,
Ms K F Banks-Smith & Ms E Dias
First Defendant by Counterclaim : Mr J T Gleeson SC &
Mr M L Bennett
Second Defendant by Counterclaim : Mr J T…
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
Saraceni v Mentha [No 2] [2012] WASC 336
Case
[2012] WASC 336
Decision Date
CaseChat Overview and Summary
The matter before the court involved a dispute between the plaintiffs, Saraceni, and the defendants, Mentha. The central issue was the interpretation of a deed, which the plaintiffs argued charged all of the assets and undertaking of a party to the deed. The court was required to determine whether the deed should be rectified to reflect the parties' true intentions, whether the chargee had misled regulatory bodies, and whether the defendants were entitled to be subrogated to the securities granted to another financier. The plaintiffs also claimed estoppel against the defendants.
The court examined the principle in Fitzgerald v Masters to ascertain the effect of the deed. It considered whether the deed could be rectified due to a mutual mistake regarding its effect and whether such rectification should occur when the chargor was in administration. The court also explored whether the chargee's alleged misleading conduct towards ASIC and the Office of State Revenue barred rectification, as well as whether the chargee had unclean hands. The court addressed the defendants' entitlement to subrogation and the assignee's potential unclean hands. Finally, the court considered whether the plaintiffs were estopped from denying that the deed created a fixed and floating charge over all of the assets and undertaking of a party to the deed.
The court found that the deed should be rectified to reflect the parties' true intentions, despite the chargor's administration. It determined that the chargee's alleged misleading conduct did not bar rectification, and the chargee did not have unclean hands. The court held that the defendants were entitled to be subrogated to the securities granted to another financier, and the assignee's unclean hands did not prevent subrogation. The court also found that the plaintiffs were estopped from denying the deed's effect.
The court ordered that the deed be rectified to create a charge over all of the chargor's assets and that the defendants were subrogated to the securities granted to another financier. The court also found that the plaintiffs were estopped from denying the deed's effect.