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Wickham Hill Investment Pty Ltd v Ding

Wickham Hill Investment Pty Ltd v Ding

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Case Copied 31 May 2019 47 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Wickham Hill Investment Pty Ltd v Ding [2019] NSWSC 631
Hearing dates: 27 and 28 August 2018; further written submissions ending 5 October 2018
Date of orders: 31 May 2019
Decision date: 31 May 2019
Jurisdiction: Equity
Before: Parker J
Decision:
1) Order that the second defendant register a financing change statement removing registration number 2017 02030061920 from the Personal Property Securities Register.
2) Order that the first defendant pay the plaintiff’s costs of the proceedings.

Catchwords:
MORTGAGES AND SECURITIES – personal property security interests – Personal Property Securities Act 2009 (Cth) (“PPSA”) – amendment demands – judicial process for considering amendment demand under PPSA s 182 – nature of the Court’s enquiry – whether the Court can finally determine the parties’ rights in an application under s 182 – onus of proof – consideration of jurisdiction to restrain threatened registration of further financing statements under s 182(4)(c).

EQUITY – equitable remedies – injunctions – injunctions in the Court’s inherent jurisdiction – injunctive relief in aid of the determination of title to property – where injunction sought to restrain further registration of a financing statement of the Personal Property Securities Register – injunction refused in circumstances where no declaratory relief sought to clarify existence of security interest.

CONTRACTS – construction – five agreements entered into between individual shareholders / directors of a company and a third party lender – where agreements written in Mandarin and translated into English – whether the company was a party to the agreements – whether the five agreements create “security interests” arising under the Personal Property Securities Act 2009 (Cth).
CORPORATIONS – capacity to contract by corporation – whether corporation became party to agreement by stamping its corporate seal to a pre-existing agreement – corporate state of mind – stamping of corporate seal not intended to signify accession to agreement but merely to comply with Chinese custom.
Legislation Cited: Corporations Act 2001 (Cth), ss 127, 131, 132, 133
Land Transfer Act 1952 (NZ), s 145A
Personal Property Securities Act 1999 (NZ), s 167
Personal Property Securities Act 2009 (Cth), ss 12, 19, 21, 150, 151, 157, 178, 179, 181, 182, 206, 245, 275, 296
Real Property Act 1900 (NSW) ss 74K, 74MA
Cases Cited: Bennett v Strauss [2016] NSWCA 324
Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; 62 NSWLR 653
Capital Finance Australia Ltd v Clough [2015] NSWSC 1327
Daniel Smith Industries Ltd v Cranes International NZ Ltd [2009] NZHC 2589
Fencott v Muller [1983] HCA 12; 152 CLR 570
Gangemi v Gangemi [2009] WASC 268
Gibbons v Wright [1954] HCA 17; 91 CLR 423
Halaga Developments Pty Ltd v Grime (1986) 5 NSWLR 740
Macquarie Leasing Pty Ltd v DEQMO Pty Ltd [2014] NSWSC 1466
Milne Feeds Pty Ltd v Bride (unreported, Supreme Court of WA, Murray J, 7 May 1996)
National Australia Bank Ltd v Garrett [2016] FCA 714
Nichibo Trading Company New Zealand Ltd v…

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: [2019] NSWSC 631
Decision Date: 31 May 2019

CaseChat Overview and Summary

The case of Wickham Hill Investment Pty Ltd v Ding involved a dispute between Wickham Hill Investment Pty Ltd, a company, and Ding, an individual, over personal property security interests and the capacity of a corporation to contract. The matter was heard in the Federal Court of Australia. The central issue was whether Wickham Hill Investment, as a company, had entered into agreements with Ding, the individual, that created security interests under the Personal Property Securities Act 2009 (Cth). Additionally, the case examined the court's jurisdiction to restrain the registration of further financing statements under section 182(4)(c) of the PPSA and the inherent jurisdiction to grant injunctive relief.

The court had to determine whether the agreements, written in Mandarin and translated into English, were binding on Wickham Hill Investment and if they created security interests. The key issue was whether the company became a party to the agreements by stamping its corporate seal, a practice that was allegedly done to comply with Chinese custom rather than signify acceptance of the agreement. The court considered the onus of proof and the nature of the judicial process for considering an amendment demand under section 182 of the PPSA. The court also needed to ascertain whether it could finally determine the parties' rights in an application under section 182, particularly in relation to the jurisdiction to restrain threatened registration of further financing statements.

The Federal Court found that Wickham Hill Investment was not bound by the agreements as it had not intended to signify its accession to the agreements by stamping its seal. The court concluded that the agreements did not create security interests under the PPSA. Furthermore, the court ruled that it could not finally determine the parties' rights in an application under section 182 without declaratory relief to clarify the existence of a security interest. The court declined to grant an injunction to restrain the registration of further financing statements as no declaratory relief was sought.

Orders