Brookfield Multiplex Capital Management Limited & Ors - Re Multiplex Acumen Property Fund [2009] NSWSC 1014

Brookfield Multiplex Capital Management Limited & Ors - Re Multiplex Acumen Property Fund [2009] NSWSC 1014

The Court was satisfied that the failures to lodge the requisite notices were accidental or due to inadvertence: those involved in the Custodian change did not give consideration to the need to lodge notices, the issue was not acted on when later detected, and those involved in the Responsible Entity change did not appreciate that ASIC forms were required. The Bank was the Fund's only secured creditor, unsecured creditors had been notified, there was no objection and no evidence of prejudice to any person. Accordingly, it was appropriate to extend the period for lodging the notices.

Jurisdiction
Australia
Judgment Date
29 September 2009
Procedural Posture
Application Under S 266(4) of the Corporations Act 2001 to Extend Time for Lodgement of Notices Under S 264 / Final Determination of Application
Outcome
Time extended
Legal Topics
['registration of Charges' 'extension of Time' 'responsible Entity' 'failure to Lodge Notice' 'inadvertence' 'prejudice to Creditors']
['corporations Law'] ['registration of Charges' 'extension of Time' 'responsible Entity' 'failure to Lodge Notice' 'inadvertence' 'prejudice to Creditors']

Case Brief

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Procedural Posture

Application Under S 266(4) of the Corporations Act 2001 to Extend Time for Lodgement of Notices Under S 264 / Final Determination of Application

Legal Issues

  1. 1 ['Whether the failure to lodge notices under s 264 of the Corporations Act 2001 within 45 days of the acquisition of charged property was accidental or due to inadvertence or some other sufficient cause under s 266(4).' 'Whether extending time for lodgement of the notices would prejudice creditors or shareholders or any person protected by the statutory scheme.']

Ratio Decidendi

The Court was satisfied that the failures to lodge the requisite notices were accidental or due to inadvertence: those involved in the Custodian change did not give consideration to the need to lodge notices, the issue was not acted on when later detected, and those involved in the Responsible Entity change did not appreciate that ASIC forms were required. The Bank was the Fund's only secured creditor, unsecured creditors had been notified, there was no objection and no evidence of prejudice to any person. Accordingly, it was appropriate to extend the period for lodging the notices.

Court Disposition

Time extended

Orders

  • ['Orders will be made extending the period for lodging the requisite Notices.' 'The plaintiff is to bring in Short Minutes of Order at 9.30 am on 1 October 2009 when the matter is listed for that purpose.']