INVESTA PROPERTIES [2001] NSWSC 1089

INVESTA PROPERTIES [2001] NSWSC 1089

The applicants, as incoming responsible entities, acquired property subject to a registrable charge by operation of law and failed to lodge the notice required by s.264(1) within the prescribed period. The failure was due to inadvertence of their solicitors. There is no prejudice to creditors or shareholders, as the entities are solvent and the chargee held security both before and after the irregularities. The register should be rectified and both entities are entitled to relief from personal liability for breach of trust due to honest and reasonable reliance on their solicitors.

Parties
First Plaintiff: Investa Properties Limited; Second Plaintiff: Westpac Property Funds Management Limited
Jurisdiction
Australia
Judgment Date
28 November 2001
Procedural Posture
Application for Relief (originating Process) / Judgment
Outcome
Relief granted as sought. Extensions of time for lodgment granted. Rectification of the register ordered. Relief from personal liability for breach of trust granted.
Legal Topics
Managed Investment Schemes, Appointment of Responsible Entities, Company Charges, Extension of Time for Lodgment, Rectification of Register, Trusts, Trustee Relief From Liability
Corporations Law Equity Managed Investment Schemes Appointment of Responsible Entities Company Charges Extension of Time for Lodgment Rectification of Register Trusts +1 more

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Parties

Investa Properties Limited

First Plaintiff

Westpac Property Funds Management Limited

Second Plaintiff

Procedural Posture

Application for Relief (originating Process) / Judgment

Legal Issues

  1. 1 Whether the incoming responsible entity acquired property subject to a registrable charge under s.264(1) of the Corporations Law upon appointment
  2. 2 Whether failure to lodge notice of acquisition of charged property within 45 days can be excused by accident or inadvertence under s.266(4) of the Corporations Act
  3. 3 Whether rectification of the Australian Register of Company Charges should be ordered

Ratio Decidendi

The applicants, as incoming responsible entities, acquired property subject to a registrable charge by operation of law and failed to lodge the notice required by s.264(1) within the prescribed period. The failure was due to inadvertence of their solicitors. There is no prejudice to creditors or shareholders, as the entities are solvent and the chargee held security both before and after the irregularities. The register should be rectified and both entities are entitled to relief from personal liability for breach of trust due to honest and reasonable reliance on their solicitors.

Court Disposition

Relief granted as sought. Extensions of time for lodgment granted. Rectification of the register ordered. Relief from personal liability for breach of trust granted.

Orders

  • Time for lodgment of notice for acquisition of charged property by Westpac (second plaintiff) extended to 12 September 2000 under s.266(4) of the Corporations Act.
  • Australian Register of Company Charges rectified by recording 16/08/1999 as the date on which property subject to a charge was acquired (not charge created) under s.274 of the Corporations Act.