CORPORATIONS — judicial advice — where deed administrators seek judicial advice under s 90-15 of the Insolvency Practice Schedule (Corporations) as to the disposition of original bank guarantees
Quick Take
1Where a builder mistakenly delivers copies rather than originals of unconditional bank guarantees to a proprietor, and the proprietor releases retention monies in reliance on having received the originals, the proprietor acquires a right to immediate possession of the original documents sufficient to ground a claim in detinue, and a constructive trust arises over the documents once the builder becomes aware of the error, because it would be unconscionable for the builder to rely on its own mistake to defeat the proprietor's entitlement.
2Rights arising under the general law — including constructive trusts and possessory rights founded on mistake rather than on a transaction securing payment or performance — are excluded from the PPSA registration requirements by s 8 and do not constitute 'security interests' within s 12, and therefore do not vest in the company under s 267 upon the appointment of administrators.
3Whether a contractual obligation enforceable by specific performance survives a deed of company arrangement, in light of the Full Federal Court's analysis in SCL AUS Ltd v Kirkalocka Gold SPV Pty Ltd [2026] FCAFC 60, was left open as a question of some complexity not requiring determination where the claim succeeded on other grounds.
