Octaviar Ltd, Re; Re Octaviar Administration P/L

[2009] QSC 37

Supreme Court of Queensland

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Construction and interpretation
3. › Definition clauses
4. › Whether words 'for the purposes of this Agreement' imposed a limiting condition or merely described the effect of an agreement
5. › Whether parties could agree to include an unrelated document as a 'Transaction Document'
1. Corporations
2. › Corporate finance
3. › Charges
4. › Registration of charges
5. › Variation in terms of charge
6. › Whether agreement adding new liability to existing charge constituted variation under s 268(2)
7. › Whether failure to lodge notice rendered charge void under s 266(3)
8. › Corporations Act 2001 (Cth), ss 263, 266(1), 266(3), 268(2), 282
1. Corporations
2. › Corporate finance
3. › Charges
4. › Creation of new charge
5. › Whether agreement to secure additional liability under existing charge created new charge or varied existing charge
6. › Corporations Act 2001 (Cth), ss 263, 268(2)
1. Corporations
2. › Voluntary administration
3. › Deeds of company arrangement
4. › Termination under s 445D
5. › Whether court should decline to declare charge invalid in light of administration regime
6. › Corporations Act 2001 (Cth), s 445D(1)

Quick Take

Where parties to a charge agree to add a new liability as a secured liability under an existing charge (even through a mechanism contemplated by the original charge instrument), this constitutes a variation in the terms of the charge engaging s 268(2) of the Corporations Act 2001, requiring lodgement of a notice of variation. Failure to lodge renders the charge void to the extent of the additional liability under s 266(3). The expression 'increasing the liabilities' in s 268(2) is not limited to increases in a specified maximum amount under s 282(3) but encompasses the addition of any distinct liability not previously secured.