Community Life v Kilmory [2007] NSWSC 943

Community Life v Kilmory [2007] NSWSC 943

The plaintiff was not entitled to relief because notice of the charge had been duly lodged and registered, so there was no failure to lodge notice within s 266(4) and no act left undone or done late for s 1322(4)(d). The substance of the application was to eradicate the effect of the plaintiff's own notification of discharge, which those provisions could not achieve. Rectification was also unavailable because the Register recorded the transaction according to its tenor and there was no omission or misstatement justifying relief under s 274 or s 1322(4)(b). In any event, re-registration could not be said to satisfy s 1322(6)(c), as substantial injustice to a person could not be excluded.

Jurisdiction
Australia
Judgment Date
16 August 2007
Procedural Posture
Application Concerning Extension of Time to Lodge Notice of a Company Charge or Rectification of the Australian Register of Company Charges Under the Corporations Act 2001 (cth) / Ex Tempore Judgment on Amended Originating Process Dated 30 July 2007
Outcome
The Amended Originating Process dated 30 July 2007 was dismissed and the relief sought was refused.
Legal Topics
['company Charges' 'registration of Charges' 'discharge or Release of Charge' 'rectification of Register of Company Charges' 'extension of Time Under Corporations Act 2001 (cth)']
['corporations Law'] ['company Charges' 'registration of Charges' 'discharge or Release of Charge' 'rectification of Register of Company Charges' 'extension of Time Under Corporations Act 2001 (cth)']

Case Brief

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Procedural Posture

Application Concerning Extension of Time to Lodge Notice of a Company Charge or Rectification of the Australian Register of Company Charges Under the Corporations Act 2001 (cth) / Ex Tempore Judgment on Amended Originating Process Dated 30 July 2007

Legal Issues

  1. 1 ['Whether s 266(4) of the Corporations Act 2001 (Cth) was available to extend time to lodge notice of a charge where notice of the charge had already been lodged and the charge had later been discharged on the Register.' 'Whether s 1322(4)(d) of the Corporations Act 2001 (Cth) was available to extend time to lodge notice of the charge or otherwise undo the effect of a notification of discharge.' 'Whether s 274 of the Corporations Act 2001 (Cth) was available to rectify the Register by re-registering the charge.' 'Whether s 1322(4)(b) of the Corporations Act 2001 (Cth) was available to rectify the Register in the circumstances.' 'Whether granting relief would satisfy the requirement in s 1322(6)(c) that no substantial injustice has been or is likely to be caused to any person.']

Ratio Decidendi

The plaintiff was not entitled to relief because notice of the charge had been duly lodged and registered, so there was no failure to lodge notice within s 266(4) and no act left undone or done late for s 1322(4)(d). The substance of the application was to eradicate the effect of the plaintiff's own notification of discharge, which those provisions could not achieve. Rectification was also unavailable because the Register recorded the transaction according to its tenor and there was no omission or misstatement justifying relief under s 274 or s 1322(4)(b). In any event, re-registration could not be said to satisfy s 1322(6)(c), as substantial injustice to a person could not be excluded.

Court Disposition

The Amended Originating Process dated 30 July 2007 was dismissed and the relief sought was refused.

Orders

  • ['The Amended Originating Process dated 30 July 2007 is dismissed.' 'The question of costs of the application is reserved.' 'After hearing submission on costs, the Court declined to make an order.']