Hadfield v ACN 092 328 400 Pty Ltd [2011] NSWSC 114

Hadfield v ACN 092 328 400 Pty Ltd [2011] NSWSC 114

The evidence established that the charge instrument was executed and made operative on 27 July 2010, not on the date recorded in the lodged particulars. The ASIC registration on 11 August 2010 was therefore within the 45 day period, and the Register contained a misstatement that should be rectified under s 274. Although the charge secured a past advance and was created within six months before the relation-back day, s 588FJ did not apply because the company was in creditors voluntary winding up, not being wound up in insolvency by court order. The charge was therefore declared valid and subsisting.

Jurisdiction
Australia
Judgment Date
03 March 2011
Procedural Posture
Application for Rectification of the Australian Register of Company Charges and Declaration That a Charge Is Valid / Principal Judgment After Hearing
Outcome
Order made for rectification of the Australian Register of Company Charges and declaration made that the charge is valid and subsisting.
Legal Topics
['registration of Company Charges' 'rectification of Australian Register of Company Charges' 'floating Charges' 'creditors Voluntary Winding Up' 'void Charges Under S 588 FJ of the Corporations Act 2001 (cth)']
['corporations Law'] ['registration of Company Charges' 'rectification of Australian Register of Company Charges' 'floating Charges' 'creditors Voluntary Winding Up' 'void Charges Under S 588 FJ of the Corporations Act 2001 (cth)']

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Procedural Posture

Application for Rectification of the Australian Register of Company Charges and Declaration That a Charge Is Valid / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Australian Register of Company Charges contained a misstatement as to the date of creation of the charge and should be rectified under s 274 of the Corporations Act 2001 (Cth).' 'Whether the charge was lodged within the 45 day period referred to in s 263(1) of the Corporations Act 2001 (Cth).' 'Whether s 588FJ of the Corporations Act 2001 (Cth) applied to render the floating charge void against the liquidator where the company was in creditors voluntary winding up.']

Ratio Decidendi

The evidence established that the charge instrument was executed and made operative on 27 July 2010, not on the date recorded in the lodged particulars. The ASIC registration on 11 August 2010 was therefore within the 45 day period, and the Register contained a misstatement that should be rectified under s 274. Although the charge secured a past advance and was created within six months before the relation-back day, s 588FJ did not apply because the company was in creditors voluntary winding up, not being wound up in insolvency by court order. The charge was therefore declared valid and subsisting.

Court Disposition

Order made for rectification of the Australian Register of Company Charges and declaration made that the charge is valid and subsisting.

Orders

  • ["An order, pursuant to s.274 of the Corporations Act, that the misstatement in the Australian Register of Company Charges consisting of the recording of '23/06/2010' as the date of creation of a charge, being a recording in consequence of lodgment of Form 309 lodged on 11 August 2010 by Redman Hale Simpson,...