Macintosh v Turner Corporation Ltd (In liq) [1995] FCA 602

Macintosh v Turner Corporation Ltd (In liq) [1995] FCA 602

Clause 1.04 prohibited assignment of the Contract and made the Charge ineffective only insofar as it purported to apply to Turner's right to performance or accrued benefits under the Contract. It did not prevent Turner from charging moneys actually received pursuant to the Contract. The broadly worded Charge over all present and future assets applied to the $1,525,000 received after crystallisation, and liquidation did not divest or override the Bank's secured proprietary interest. The liquidator was therefore justified in paying the balance of the moneys and interest to the Bank after proper costs, fees and expenses.

Jurisdiction
Australia
Judgment Date
11 August 1995
Procedural Posture
Application by a Liquidator Pursuant to S.479(3) of the Corporations Law Seeking Directions / Directions on Whether the Liquidator Was Justified in Paying Settlement Moneys to the Secured Creditor
Outcome
Direction made substantially in the form sought by the liquidator.
Legal Topics
["liquidator's Directions" 'fixed and Floating Charges' 'crystallisation of Floating Charge' 'prohibition on Assignment of Contract' "secured Creditor's Proprietary Interest in Liquidation"]
['corporations' 'insolvency and Liquidation' 'secured Transactions' 'contract'] ["liquidator's Directions" 'fixed and Floating Charges' 'crystallisation of Floating Charge' 'prohibition on Assignment of Contract' "secured Creditor's Proprietary Interest in Liquidation"]

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Procedural Posture

Application by a Liquidator Pursuant to S.479(3) of the Corporations Law Seeking Directions / Directions on Whether the Liquidator Was Justified in Paying Settlement Moneys to the Secured Creditor

Legal Issues

  1. 1 ["Whether cl.1.04 of the Building Works Contract, prohibiting assignment of the agreement without consent, rendered the Bank's Charge ineffective over moneys actually received by Turner." 'Whether the Charge applied to the sum of $1,525,000 received by the liquidator after the floating charge had crystallised into a fixed charge.' "Whether liquidation or the statutory winding up scheme displaced the Bank's secured proprietary interest in the charged moneys."]

Ratio Decidendi

Clause 1.04 prohibited assignment of the Contract and made the Charge ineffective only insofar as it purported to apply to Turner's right to performance or accrued benefits under the Contract. It did not prevent Turner from charging moneys actually received pursuant to the Contract. The broadly worded Charge over all present and future assets applied to the $1,525,000 received after crystallisation, and liquidation did not divest or override the Bank's secured proprietary interest. The liquidator was therefore justified in paying the balance of the moneys and interest to the Bank after proper costs, fees and expenses.

Court Disposition

Direction made substantially in the form sought by the liquidator.

Orders

  • ['The applicant is justified in paying to the State Bank of New South Wales the balance of the sum of $1,525,000 together with interest thereon, now standing to the credit of an account in the name of the first respondent in account No. 000 156 629 60 with the said Bank, after payment of his proper costs and fees...