United Builders Pty Ltd v Mutual Acceptance Ltd [1980] HCA 43

United Builders Pty Ltd v Mutual Acceptance Ltd [1980] HCA 43

By majority, the deed of charge over United Builders Pty. Ltd.'s right, title and interest in the partnership created a fixed or specific charge over United's partner's share, an equitable chose in action, and not a floating charge over United's undertaking or property or over the partnership assets. Because it was not a floating charge within The Companies Act of 1961 Q., s. 100(3)(d), non-registration did not make it void against the liquidator and creditors, and Mutual Acceptance Limited's earlier charge was valid and entitled to priority over TKM Finance (Aust.) Ltd.'s later registered mortgage debenture.

Jurisdiction
Australia
Procedural Posture
Appeal and Cross Appeal / High Court of Australia Appeal From the Full Court of the Supreme Court of Queensland
Outcome
Appeal dismissed with costs. Cross appeal allowed in part. No order as to the costs of the cross appeal.
Legal Topics
['floating Charge' 'fixed Charge' 'registration of Company Charges' "partner's Share in Partnership" 'priority of Securities' 'unregistered Charge']
['corporations Law' 'partnership Law' 'secured Transactions' 'insolvency'] ['floating Charge' 'fixed Charge' 'registration of Company Charges' "partner's Share in Partnership" 'priority of Securities' 'unregistered Charge']

Case Brief

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Procedural Posture

Appeal and Cross Appeal / High Court of Australia Appeal From the Full Court of the Supreme Court of Queensland

Legal Issues

  1. 1 ["Whether the deed of charge granted by United Builders Pty. Ltd. to Mutual Acceptance Limited over United's right, title and interest in the partnership was a floating charge on the undertaking or property of the company within The Companies Act of 1961 Q., s. 100(3)(d)." 'Whether the unregistered deed of charge was void against the liquidator and creditors of United Builders Pty. Ltd. for non-registration.' "Whether Mutual Acceptance Limited's charge had priority over TKM Finance (Aust.) Ltd.'s later registered mortgage debenture." "Whether the Full Court's orders should be varied on the cross appeal to state the unencumbered value of United's share and to permit withdrawal of Mutual Acceptance Limited's counterclaim."]

Ratio Decidendi

By majority, the deed of charge over United Builders Pty. Ltd.'s right, title and interest in the partnership created a fixed or specific charge over United's partner's share, an equitable chose in action, and not a floating charge over United's undertaking or property or over the partnership assets. Because it was not a floating charge within The Companies Act of 1961 Q., s. 100(3)(d), non-registration did not make it void against the liquidator and creditors, and Mutual Acceptance Limited's earlier charge was valid and entitled to priority over TKM Finance (Aust.) Ltd.'s later registered mortgage debenture.

Court Disposition

Appeal dismissed with costs. Cross appeal allowed in part. No order as to the costs of the cross appeal.

Orders

  • ['Judgment of the Full Court of the Supreme Court of Queensland varied.' 'Appeal to the Full Court allowed with costs.' 'Judgment of D. M. Campbell J. set aside.' 'Declared that the partnership between United Builders Pty. Ltd. and Mutual Acceptance Limited under the deed of partnership dated 31st July 1972 was...