Hanson Construction Materials P/L v Davey & Anor

(2010) 79 ACSR 668; [2010] QCA 246

Queensland Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Pleadings
3. › Deemed admissions
4. › Withdrawal of deemed admissions
5. › Whether genuine dispute about subject matter of admissions
6. › Whether primary judge erred in refusing leave
7. › Uniform Civil Procedure Rules 1999 (Qld), r 166
1. Corporations
2. › Voluntary administration
3. › Deeds of company arrangement
4. › Effect on personal guarantees of directors
5. › Whether deed deeming liabilities 'paid in full' circumvents s 444J
6. › Whether release by another name still a release
7. › Corporations Act 2001 (Cth), ss 444A(4)(d), 444D, 444H, 444J
1. Mortgages
2. › Equitable charges and equitable mortgages
3. › Distinction between equitable charge and equitable mortgage
4. › Whether declaration of equitable charge within relief claimed as equitable mortgage
5. › Property Law Act 1974 (Qld), s 99(2)
6. › Land Title Act 1994 (Qld), s 74
1. Appeal
2. › Standard of appellate review
3. › Discretionary decisions
4. › Application of House v The King principles
5. › Whether appellate court should interfere with decision on practice and procedure

Quick Take

A Deed of Company Arrangement that deems all liabilities to have been 'paid and fully satisfied' rather than 'released' is in substance a release of the company from its debts, and s 444J of the Corporations Act 2001 (Cth) therefore preserves creditors' rights under guarantees and indemnities notwithstanding such a clause. An applicant seeking to withdraw deemed admissions under UCPR r 166 must demonstrate a genuine dispute about the subject matter of the admissions with sufficient evidentiary particularity; bare assertions of dispute are insufficient. The distinction between equitable mortgage and equitable charge has limited practical significance for Torrens system land.