In the matter of MINMXT Holdings Pty Limited [2017] NSWSC 1678

In the matter of MINMXT Holdings Pty Limited [2017] NSWSC 1678

Subject to stamping of its loan agreement, Prospa has a security interest entitled to priority over the liquidator and beneficiaries to the extent of $587,035.06; Osborne has a security interest entitled to priority over the liquidator and beneficiaries to the extent of $360,183.06. The funds in court may be distributed accordingly, subject to evidence of stamping and determination regarding accrued interest. There are no other higher priority claimants established.

Parties
First Plaintiff: Adam Bernard Preiner; Second Plaintiff: MINMXT Holdings Pty Ltd; First Defendant: Nichole Paula Schlebusch; Second Defendant: Morney Schlebusch; Third Defendant: Winghouse Australia Pty Ltd; Fourth Defendant: Peter Bernard Shade and Emily Long; Third Respondent: Prospa Advance Pty Ltd; Fourth Respondent: Hoot Townsville Pty Ltd (in liquidation); Fifth Respondent: Hoot Gold Coast Pty Ltd (in liquidation); Sixth Respondent: Andrew Kent Osborne; Seventh Respondent: Prime Capital Securities Pty Limited
Jurisdiction
Australia
Judgment Date
01 December 2017
Procedural Posture
Equity—corporations List—application for Determination of Priority and Distribution of Funds / Judgment on Competing Claims to Sale Proceeds and Directions for Further Orders
Outcome
Orders deferred pending evidence of stamping and proposals on accrued interest; court satisfied as to priority entitlements of Prospa and Osborne.
Legal Topics
Equitable Interests in Trust Property, Priorities Among Creditors, Trustee Indemnity, Unstamped Loan Agreements, Security Interests and Caveats, Liquidator’s Entitlements, Constructive Trust, Equitable Charge, Subrogation
Equity Trusts and Trustees Corporations Law Equitable Interests in Trust Property Priorities Among Creditors Trustee Indemnity Unstamped Loan Agreements Security Interests and Caveats +4 more

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Parties

Adam Bernard Preiner

First Plaintiff

MINMXT Holdings Pty Ltd

Second Plaintiff

Nichole Paula Schlebusch

First Defendant

Morney Schlebusch

Second Defendant

Winghouse Australia Pty Ltd

Third Defendant

Peter Bernard Shade and Emily Long

Fourth Defendant

Prospa Advance Pty Ltd

Third Respondent

Hoot Townsville Pty Ltd (in liquidation)

Fourth Respondent

Hoot Gold Coast Pty Ltd (in liquidation)

Fifth Respondent

Andrew Kent Osborne

Sixth Respondent

Prime Capital Securities Pty Limited

Seventh Respondent

Procedural Posture

Equity—corporations List—application for Determination of Priority and Distribution of Funds / Judgment on Competing Claims to Sale Proceeds and Directions for Further Orders

Legal Issues

  1. 1 Whether Prospa and Osborne have priority security interests in trust property proceeds over liquidator and beneficiaries
  2. 2 Whether unstamped loan agreements affect enforceability and priority of security interests
  3. 3 Ranking of secured and unsecured claims to trust property proceeds

Ratio Decidendi

Subject to stamping of its loan agreement, Prospa has a security interest entitled to priority over the liquidator and beneficiaries to the extent of $587,035.06; Osborne has a security interest entitled to priority over the liquidator and beneficiaries to the extent of $360,183.06. The funds in court may be distributed accordingly, subject to evidence of stamping and determination regarding accrued interest. There are no other higher priority claimants established.

Court Disposition

Orders deferred pending evidence of stamping and proposals on accrued interest; court satisfied as to priority entitlements of Prospa and Osborne.

Orders

  • Subject to stamping, Prospa to have priority security interest of $587,035.06 over liquidator and beneficiaries;
  • Osborne to have priority security interest of $360,183.06 over liquidator and beneficiaries;