Mearns v Australian Litigation Fund Pty Ltd & Anor [2006] FCAFC 81

Mearns v Australian Litigation Fund Pty Ltd & Anor [2006] FCAFC 81

The assignment of the debt by the Pre-School to the Litigation Fund, as constituted in the deed and upon the giving of notice, was an 'absolute assignment' within the meaning of s12 of the Conveyancing Act 1919 (NSW), notwithstanding the right to vary the deed. The power to vary did not make the assignment conditional; thus, both substitution and sequestration orders were properly made.

Jurisdiction
Australia
Judgment Date
26 May 2006
Procedural Posture
Bankruptcy Appeal / On Appeal From Federal Magistrates Court
Outcome
appeal dismissed
Legal Topics
['sequestration Orders' 'assignment of Debt' 'notice of Assignment' 'absolute Assignment']
['bankruptcy' 'property Law'] ['sequestration Orders' 'assignment of Debt' 'notice of Assignment' 'absolute Assignment']

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Procedural Posture

Bankruptcy Appeal / On Appeal From Federal Magistrates Court

Legal Issues

  1. 1 ["Whether the assignment of debt to the Australian Litigation Fund Pty Ltd was 'absolute' under s12 of the Conveyancing Act 1919 (NSW)" "Whether the right to vary the deed rendered the assignment not 'absolute'" 'Whether the substitution of the Litigation Fund as petitioner and the consequent sequestration order were valid']

Ratio Decidendi

The assignment of the debt by the Pre-School to the Litigation Fund, as constituted in the deed and upon the giving of notice, was an 'absolute assignment' within the meaning of s12 of the Conveyancing Act 1919 (NSW), notwithstanding the right to vary the deed. The power to vary did not make the assignment conditional; thus, both substitution and sequestration orders were properly made.

Court Disposition

appeal dismissed

Orders

  • ['Appeals dismissed with costs.' 'Liberty reserved within 28 days for respondents in both appeals to apply for indemnity costs or for a lump sum to be assessed for the costs.']