Promoseven Pty Ltd v Markey, in the matter of Bluechip Development Corporation (Cairns) Pty Ltd (in Liquidation) (Receivers and Managers Appointed) [2015] FCAFC 12

Promoseven Pty Ltd v Markey, in the matter of Bluechip Development Corporation (Cairns) Pty Ltd (in Liquidation) (Receivers and Managers Appointed) [2015] FCAFC 12

The primary Judge erred by treating the fact that the advances were contemplated by or made pursuant to the joint venture agreement as excluding the possibility that they were also made under agreements between Bluechip and Promoseven within the meaning of the 2009 mortgage. The Full Court held that "Agreements" in...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
13 February 2015
Procedural Posture
Appeal From a Federal Court Judgment Dismissing an Appeal Against a Decision of Court Appointed Liquidators and Receivers and Managers Rejecting Part of a Proof of Debt / Full Court Appeal
Outcome
Appeal allowed; orders of the primary Judge set aside; matter remitted to the primary Judge for further hearing.
Legal Topics
['proof of Debt' 'secured Debts' 'mortgage Construction' 'joint Venture Funding' 'loan Agreements' 'remitter']
['corporations Law' 'insolvency' 'secured Transactions' 'contract Law'] ['proof of Debt' 'secured Debts' 'mortgage Construction' 'joint Venture Funding' 'loan Agreements' 'remitter']

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Procedural Posture

Appeal From a Federal Court Judgment Dismissing an Appeal Against a Decision of Court Appointed Liquidators and Receivers and Managers Rejecting Part of a Proof of Debt / Full Court Appeal

Legal Issues

  1. 1 ['Whether the primary Judge erred in finding that advances made by Promoseven to Bluechip were not secured by the 2009 mortgage.' 'Whether Bluechip incurred obligations to repay the advances to Promoseven under agreements between Bluechip and Promoseven.' 'Whether any such agreements were "Agreements" within the meaning of the 2009 mortgage.' 'Whether advances made pursuant to or in connection with the joint venture agreement could also be made under agreements between Bluechip and Promoseven secured by the 2009 mortgage.' 'Whether there was any tripartite agreement or any applicable third party benefit under s 55 of the Property Law Act 1974 (Qld).']

Ratio Decidendi

The primary Judge erred by treating the fact that the advances were contemplated by or made pursuant to the joint venture agreement as excluding the possibility that they were also made under agreements between Bluechip and Promoseven within the meaning of the 2009 mortgage. The Full Court held that "Agreements" in the 2009 mortgage had a broad meaning and that, if the advances were loans which Bluechip was liable to repay to Promoseven under agreements between them, those advances were capable of being secured by the 2009 mortgage even if also connected with the joint venture agreement. Because findings on the circumstances of each advance had not been made and the appellate record was...

Court Disposition

Appeal allowed; orders of the primary Judge set aside; matter remitted to the primary Judge for further hearing.

Orders

  • ['The appeal be allowed.' 'The orders made by the primary Judge on 28 November 2013 be set aside.' 'The matter is remitted to the primary Judge for further hearing.' 'The further hearing is to be on the basis of the evidence already adduced in the proceeding, unless the primary Judge orders otherwise.' "Within 14...