Austino Wentworthville Pty Limited v Metroland Australia Limited [2013] NSWCA 59

Austino Wentworthville Pty Limited v Metroland Australia Limited [2013] NSWCA 59

The deed of assignment by Austino to BOC assigned all of Austino's right, title, benefit and interest in the relevant choses in action and was intended to operate as security by way of legal mortgage, not as a charge only. The assignment was unconditional, the words "as beneficial owner", the subrogation language, and the further assurance provisions did not detract from its absolute character, and written notice had been given to Metroland. Accordingly the assignment was effective at law under Conveyancing Act 1919, s 12, Austino was not a creditor of Metroland for the relevant amount or at all, and the appeal had to be dismissed.

Jurisdiction
Australia
Judgment Date
22 March 2013
Procedural Posture
Appeal / Appeal From Dismissal of Originating Process Challenging Administrator's Decision on Proof of Debt and Related Corporations Act Relief
Outcome
Appeal dismissed with costs.
Legal Topics
['voluntary Administration' 'meeting of Creditors' 'proof of Debt and Voting by Creditors' 'deed of Company Arrangement' 'assignment of Choses in Action' 'legal Assignment Under Conveyancing Act 1919, S 12' "creditors' Trust" 'necessary Parties']
['corporations' 'personal Property' 'civil Procedure'] ['voluntary Administration' 'meeting of Creditors' 'proof of Debt and Voting by Creditors' 'deed of Company Arrangement' 'assignment of Choses in Action' 'legal Assignment Under Conveyancing Act 1919, S 12' "creditors' Trust" 'necessary Parties']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal / Appeal From Dismissal of Originating Process Challenging Administrator's Decision on Proof of Debt and Related Corporations Act Relief

Legal Issues

  1. 1 ['Whether Austino was a creditor of Metroland for voting purposes at the meeting of creditors held on 5 October 2012.' "Whether the April 2011 deed of assignment by Austino to Bank of China Limited effected a legal assignment of Austino's rights under the Rental Guarantee and Management Contract." 'Whether the assignment was an "absolute assignment" within Conveyancing Act 1919, s 12.' 'Whether the assignment purported to be "by way of charge only" within Conveyancing Act 1919, s 12.' "Whether, if Austino remained a creditor, relief affecting the deed of company arrangement and creditors' trust could or should be granted without joining beneficiaries of the creditors' trust."]

Ratio Decidendi

The deed of assignment by Austino to BOC assigned all of Austino's right, title, benefit and interest in the relevant choses in action and was intended to operate as security by way of legal mortgage, not as a charge only. The assignment was unconditional, the words "as beneficial owner", the subrogation language, and the further assurance provisions did not detract from its absolute character, and written notice had been given to Metroland. Accordingly the assignment was effective at law under Conveyancing Act 1919, s 12, Austino was not a creditor of Metroland for the relevant amount or at all, and the appeal had to be dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed.' "That the appellant pay the respondents' costs of the appeal."]