Nicholls, Robert v The Sheep's Back Bar Pty Ltd & Anor [1997] FCA 1041

Nicholls, Robert v The Sheep's Back Bar Pty Ltd & Anor [1997] FCA 1041

The application was dismissed because the applicant had not served Cohen Holdings Pty Ltd with a notice of default under clause 5(a) of the share mortgage, nor served any such notice in accordance with clause 12 of that mortgage. The letters relied on were directed to requiring the company to register the transfer, not to notifying the mortgagor of default and allowing seven days to remedy it. Accordingly the share mortgage security had not become enforceable and the applicant was not entitled to compel registration of the share transfer or issue of share certificates.

Jurisdiction
Australia
Judgment Date
10 October 1997
Procedural Posture
Application Pursuant to S 1094 and S 1096(4) of the Corporations Law Requiring Company to Effect Transfer of Shares and Issue Share Certificates / Judgment After Hearing
Outcome
Application dismissed.
Legal Topics
['share Transfer Registration' 'share Mortgage Enforcement' 'notice of Default' 'company Share Register' 'share Certificates']
['corporations Law' 'securities'] ['share Transfer Registration' 'share Mortgage Enforcement' 'notice of Default' 'company Share Register' 'share Certificates']

Case Brief

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Procedural Posture

Application Pursuant to S 1094 and S 1096(4) of the Corporations Law Requiring Company to Effect Transfer of Shares and Issue Share Certificates / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the first respondent should be ordered under s 1094 and s 1096(4) of the Corporations Law to register the applicant as holder of two shares and issue share certificates.' 'Whether the applicant was entitled to enforce the share mortgage by registering the blank transfer in his name.' 'Whether the letter dated 14 December 1995 constituted and was served as a notice of default under clause 5(a) of the share mortgage.' 'Whether the transfer of shares and share certificate were delivered to the company through the second respondent.']

Ratio Decidendi

The application was dismissed because the applicant had not served Cohen Holdings Pty Ltd with a notice of default under clause 5(a) of the share mortgage, nor served any such notice in accordance with clause 12 of that mortgage. The letters relied on were directed to requiring the company to register the transfer, not to notifying the mortgagor of default and allowing seven days to remedy it. Accordingly the share mortgage security had not become enforceable and the applicant was not entitled to compel registration of the share transfer or issue of share certificates.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.' "The applicant pay the first and second respondents' costs of the application including reserved costs."]