Commercial Banking Co of Sydney Ltd v George Hudson Pty Ltd

The said Mortgage Debenture was not registered in the State of Queensland by the said Bank as, to the best of the knowledge of the Bank, there were no assets of the Company in the State of Queensland.

On the sixteenth day of December 1971 the said Bank pursuant to its powers under the said Mortgage Debenture appointed receivers of the property charged thereunder in its favour.

It has now come to the knowledge of the Bank that assets of the said Company which were charged in favour of the Bank are situated in the State of Queensland.

The order for the extension of time was made "without prejudice to the rights of any other person acquired prior to the time when the registration of such Mortgage Debenture is effected" and was stated to have been made on the ground that the omission to register within the prescribed time was "due to inadvertence".

The company and its Queensland liquidator appealed against this order of the Registrar to the Supreme Court of Queensland under the authority of r. 8 of the Companies Rules, 1963, claiming that they and each of them were "affected" by the order. Rule 8, so far as relevant, is as follows:

(1) Any person affected by any order or decision of the Registrar may appeal therefrom to a Judge in Chambers. Such appeal shall be by notice in writing to attend before the Judge, without a fresh summons, within five days after the decision complained of or such further time as may be allowed by a Judge or the Registrar.

(4) The appeal shall be by a rehearing de novo of the application but each party may subject to any proper objections to admissibility rely upon any affidavit used before the Registrar and upon any evidence given orally before him:

This appeal was allowed by Hart J. who set aside the order of the Registrar. It is from that order that this appeal is brought.

It is necessary to state a number of matters of fact relevant to the proceedings. First, the company, which was incorporated in New South Wales, was registered in Queensland as a foreign company on 3rd March 1965. Secondly, on 31st December 1971, a petition for the winding up of the company was lodged in the Supreme Court of New South Wales and on the same day provisional liquidators were appointed. Thirdly, on 14th February 1972, the Supreme Court of New South Wales ordered that the company be wound up and that the provisional liquidators be the liquidators. Fourthly, on 14th February the company lodged a petition in the Supreme Court of Queensland seeking an order that it be wound up by that Court. Fifthly, on 16th February 1972, the Supreme Court of Queensland appointed the appellant Rees as provisional liquidator. Sixthly, on 3rd March 1972, the Supreme Court of Queensland ordered that the company be wound up by the Court under the provisions of the Companies Acts Q. and appointed Rees to be liquidator for the purposes of that winding up. Seventhly, at the time of the making of the order for the extension of time for registering the debenture, the company had assets amounting to about $250,000 in Queensland. Eighthly, the debenture which had been registered in the State of New South Wales on the 15th day of September 1955 was, on the 4th day of February 1972, registered under the provisions of the Companies Acts Q..

There are, I consider, three matters to be determined. First, was the Registrar authorized to grant the extension? Secondly, should the Registrar have granted the extension? Thirdly, was the appeal from the Registrar to the judge properly instituted?

The answer to the first question requires, in the first place, the ascertainment of the meaning of the words "proceedings and matters when the same are unopposed" in O. 65, r. 1A. It appears to me that proceedings are properly described as unopposed when a person entitled to oppose is given the opportunity of doing so and does not do so. It is not sufficient to show merely that no person did oppose the granting of what is being sought by a proceeding. Although it is not necessary to show that a person, a party to the proceedings, has consented to the granting of what is being sought thereby, it is both necessary and sufficient to show that no person entitled to oppose has done so after having been given the opportunity to do so. For the bank it was contended that the learned judge was incorrect in holding that the bank's application to the registrar was not an unopposed application because, in the circumstances, there was nobody with a sufficient interest to oppose it. Thus it was said that the company itself had no interest because neither the granting nor the refusal of the application could affect it in any way. This may well have been so. It was also contended that the provisional liquidators of the company, appointed by the Supreme Court of New South Wales on 31st December 1971, had no interest to oppose the application and, in support of this contention, it was argued that the debenture was effective against those liquidators without registration of the debenture in Queensland. This submission was put in two ways - the first contention depending upon the provisions of the Companies Acts 1961 to 1971 Q., ss. 100 and 102, the other contention depending upon showing the invalidity of ss. 84 and 85 of the Companies Acts, 1931 to 1955 Q. - the law governing the registration of charges at the time when the debenture in question was given in 1955. Elaborate and interesting arguments were presented by counsel for the bank to support each contention. I am satisfied that it is not necessary, in order to determine this appeal, to express any conclusion upon (1) the meaning and application of s. 100 of the Companies Acts 1961 to 1971 Q. having regard to s. 102, or (2) upon the effect of the bank's non-compliance with s. 102, or (3) upon the validity of ss. 84 and 85 of the Companies Acts 1931 to 1955 Q.. These interesting questions can await another day. My reason for this conclusion is that, regardless of how they may eventually be decided, the provisional liquidator appointed by the Supreme Court of New South Wales was a person entitled to oppose the application for an extension of time to allow the registration of the charge in Queensland because the order affected him adversely. Once an extension of time to register was granted and registration was effected within the extended time it was no longer necessary for the bank to rely upon its contentions that ss. 84 and 85 of the Companies Acts 1931 to 1955 Q. were invalid or that s. 100 of the Companies Acts 1961 to 1971 Q. was inapplicable, or that non-compliance with s. 102 did not render the charge void as against the liquidator. The extension of time and the registration of the charge within the extended time would and did change the situation between the bank and the liquidator in favour of the bank. Instead of the bank having to rely upon arguments which might or might not succeed, that the charge was good against the liquidator without registration in Queensland, the bank, by reason of the order, obtained a registered charge over the Queensland assets of the company and the liquidator could resort to those assets only after the bank's claims had been satisfied. It is because the granting of the application put the bank in a position to defeat the liquidator upon an unassailable ground not otherwise available to it that the liquidator was entitled to an opportunity to oppose the application with a view to ensuring that the status quo should be maintained. That status quo will, of course, permit the bank in other proceedings to advance the contention, upon any ground open to it, that its charge was good against the liquidator in respect of the Queensland assets of the company, even without the registration effected on 4th February 1972. The bank, in making its application for extension of time, sought and obtained an advantage which, in answer to a claim that it should not have obtained, asserts that it was unnecessary and so unobjectionable. In my opinion, whether or not it was necessary, it was objectionable, and this is not the occasion to decide whether or not it was necessary.

The considerations which I have adverted to show not only that the proceeding before the registrar was not an unopposed application in the relevant sense, but that, if the registrar could have granted the application, he should have refused to do so and have maintained the status quo. The company was in the course of being wound up when the registrar made an order which would give the bank the opportunity to strengthen its hand against a liquidator who had already been provisionally appointed. It is a deeply rooted principle of company law that, when liquidation has commenced, one creditor should not be assisted by the court to improve its position vis-à-vis other creditors.

Moreover, it seems to me that the decision of the registrar, that the omission of the bank to register the debenture in Queensland at the time when it was given was due to inadvertence, was one that the evidence did not support. The affidavit shows that the omission was due to a mistake of fact, rather than inadvertence.

It remains to be considered whether the appeal from the registrar to the judge was properly instituted. The critical question is whether the Queensland liquidator is a person affected by the order extending time. There was no Queensland liquidator when the order was made, but that is not conclusive, for, if upon his appointment he was affected by the order, he was, I consider, given right to appeal by r. 8 of the Companies Rules. It can be said that it was not the order extending time but the actual registration within the extended time that affected the liquidator, but as that registration could not have been made had the order extending time not been granted, I consider that the liquidator, when appointed, was affected by the order. It had given the bank the opportunity to perfect its security against the liquidator and so improve its position vis-à-vis the liquidator when appointed. It was to achieve this very result that the application was made and it would be to depart from reality to regard the order as one not affecting the liquidator. Without the order the registration is out of time and ineffective. In short, the order, by making late registration effective, does adversely affect the liquidator in relation to the assets of the company in Queensland. It provides a complete answer to any claim by the liquidator that he is entitled as against the bank to assets of the company in Queensland worth $250,000.

At the outset of the hearing of this appeal, learned counsel for the appellant made some submissions, the acceptance of which would have the consequence, as he conceded, that the result of the appeal would have no effect upon any relevant right or interest of the appellant or of any other person. The appeal was brought as of right against a judgment of the Supreme Court of Queensland (Hart J.). It was brought on the basis that the effect of that judgment might be that the appellant would lose its security over all the assets of the respondent company George Hudson Pty. Ltd. (the company) in the State of Queensland and would rank pari passu with other unsecured creditors in its liquidation. In the affidavit showing how the appeal lay, it was asserted that the company's assets in Queensland were valued at not less than $290,000 and that if the mortgage debenture in favour of the appellant were valid against the liquidator in Queensland and the unsecured creditors of the company, the appellant would receive payment in full of a claim estimated at over $155,000, whereas otherwise it could expect to receive no more than about $6,000 in respect of that claim. But the submissions for the appellant were to the effect that the scrutiny to which the matter had been subjected since the appeal was lodged had proved fatal to the appeal, since it had revealed that nothing had occurred and no statutory provision had operated at any time to affect the validity of the mortgage debenture with respect to the assets of the company in Queensland and against the liquidator in Queensland and against any unsecured creditors. In particular, it appeared that no effect upon the rights of the appellant or of other creditors of the company had been brought about by the failure, until after the making of the Registrar's order of 28th January 1972, to register the mortgage debenture in Queensland or by the making of that order or by the order of Hart J. setting it aside. The result was that the application made by the appellant for an order extending the time for registering the charge was unnecessary and it mattered not whether the order of the Supreme Court setting it aside was correct or not. By obtaining the Court's acceptance of the submissions, the appellant would lose the present battle but would win the war against the respondent liquidator and the unsecured creditors. The appellant's failure in this appeal would be received by it with satisfaction, provided that the reasons given by the Court were in accordance with the foregoing submissions. To explain these submissions, it is necessary to give some account of the history of the matter and of the questions that were regarded as being involved in the appeal from the Registrar's order, at the time when that appeal was heard by Hart J.

A debenture in favour of the appellant was executed by the company in New South Wales on 7th September 1955. It was registered by the appellant in New South Wales but not in Queensland. On 3rd March 1965 the appellant was registered in Queensland as a foreign company.

On 16th December 1971 the bank appointed receivers of the property charged by the debenture. On 31st December 1971 a petition to wind up the company was presented in New South Wales and on the same day provisional liquidators were appointed in New South Wales.

On 14th February 1972 a petition for winding up was presented in Queensland by the company. On the same day a winding-up order was made in New South Wales. On 16th February 1972 a provisional liquidator (the respondent Lloyd George Rees) was appointed in Queensland. On 3rd March 1972 a winding-up order was made in Queensland.

Before the events mentioned in the preceding paragraph had occurred, that is, on 28th January 1972, the appellant caused a summons to be taken out in the Supreme Court of Queensland. It was made returnable on the same day. It stated that it was not intended to serve the summons on any person. It sought an order that the prescribed time for registering the mortgage debenture given by the company in favour of the appellant be extended until 7th February 1972. The only evidence filed in support of that application was an affidavit which referred to the execution of the debenture, its registration in New South Wales, the appointment of receivers and the appointment in New South Wales of provisional liquidators. The affidavit stated also that the debenture was not registered in Queensland by the bank "as, to the best of the knowledge of the bank, there were no assets of the company" in that State, that it "has now come to the knowledge of the bank that assets of the said company which were charged in favour of the bank are situated in the State of Queensland" and that the deponent had been advised that no application had been made for the appointment of a liquidator or for the winding up of the company in Queensland. On 28th January 1972 the Registrar made an order which recited that he was satisfied that the omission to register the debenture "was due to inadvertence" and ordered that the time prescribed for its registration be extended until 7th February 1972 "without prejudice to the rights of any other person acquired prior to the time when the registration of such Mortgage Debenture is effected".

It is plain, especially in the light of what subsequently took place before Hart J., that the application was made because the appellant or its advisers believed that registration was necessary in order to prevent the charge given by the debenture from being rendered void in Queensland against the liquidator and creditors of the company.

The terms of s. 106 of The Companies Act, 1961 Q., (the Act), in reliance upon which the order was sought and obtained, are set out in the reasons for judgment of Menzies J. and need not be repeated.

On 26th May 1972 a notice of appeal against the Registrar's order, pursuant to r. 8 of the Companies Rules 1963 Q., was filed on behalf of the company and the respondent Rees. The relevant parts of that rule are also set out in the reasons for judgment of Menzies J.

That appeal came before Hart J. It appears from his Honour's reasons for judgment that no point was taken that neither of the persons in whose name the appeal had been brought was competent to bring it, because neither was a "person affected" by the Registrar's order within the meaning of r. 8. That point has been raised in this Court. It was submitted that the company could not be affected by that order. Then it was submitted that because the liquidator had not been appointed when the order was made he could not be a person affected by it and, in any event, if registration or the lack of it was relevant at all to the operation of the security, it was the registration effected after the order was made and not the order itself that affected the liquidator. I would reject these submissions. I agree with what Menzies J. has written about them. It is to be observed that in r. 8 (1) the first sentence gives to a "person affected" a right of appeal which is not made conditional upon a time limit. The second sentence imposes a time limit but the period limited may include such further time as may be allowed. In my opinion there is no reason to hold that an appeal by a person who is at the time of the appeal affected by an order is not competent. To the question whether the order extending time was one which could ever affect the liquidator, I shall make some further reference later.

Hart J. held that the Registrar had no authority to make the order of 28th January 1972. In my respectful opinion he was plainly right in so holding and I agree with the reasons given by him for that conclusion. In the first place, his Honour referred to rr. 54 and 55 of the Companies Rules 1963 Q.. He pointed out that r. 54 (b) provides that certain specified applications included in the applications enumerated in r. 54 (a) may be made ex parte (that is, to a judge in chambers). Applications under s. 106 of the Act are included in r. 54 (a) but are not mentioned in r. 54 (b). Thus the rules indicate that a judge is not authorized by them to hear an application under s. 106 ex parte. No authority to hear such an application is given by the Rules to the Registrar, with the exception that r. 55 (2) gives power to the Registrar to hear an application with the consent of all parties. In the present case, of course, that power was not exercised. No authority for the making of the order of 28th January 1972 is to be found in the Companies Rules. As to O. 65, r. 1A of the Supreme Court Rules Q., the appellant as applicant for the order could rely on that rule only if the proceedings could be properly described as "unopposed". I agree with the following statement in the judgment of Hart J. as to what is meant by an application being unopposed. His Honour said:

I do not think an application on which a person has a right to be heard can be said to be unopposed until that person has had notice of the application and has indicated by words or conduct an intention not to oppose it. In a sense every application is unopposed until it is served, but that could not be the meaning in O. 65, r. 1A. Nor do I think an application is unopposed, because it turns out in the end that it could not have been successfully opposed. The respondent has a right to the opinion of a Judge on the question.

But it is contended on behalf of the appellant that there was no person who had any right to be afforded an opportunity to be heard because there was no person who could have had any interest in opposing the application. I agree with the reasons given by Menzies J. for rejecting this contention. There are some additional considerations to which I wish to refer. Apart from the position of the provisional liquidators who had been appointed by the Supreme Court of New South Wales, I am of opinion that it is right to consider the matter on the footing that there were unsecured creditors of the company at the time when the order was made and, in my opinion, they or some person representing them should have been given an opportunity to be heard, at any rate, if it had turned out that the provisional liquidators, after having notice of the proceedings, had elected to take no part in them. On behalf of the appellant it was submitted that at the hearing before Hart J. there was no evidence that there were any unsecured creditors in Queensland. This was coupled with the submission that if any unsecured creditors could have been prejudicially affected by the order, these could only have been creditors who were in Queensland. I need not decide whether the second of these submissions is correct. But the submission based on the lack of evidence to show whether or not there were creditors who might be affected by the order comes strangely from an appellant which was seeking in the hearing before Hart J. to uphold an order which it had obtained from the Registrar without providing any direct evidence at all, either as to the solvency or as to the indebtedness of the company and which has not challenged the accuracy of the statement of the learned judge that at the hearing he was informed that the amount involved in the application was about $250,000. The company was registered in Queensland as a foreign company in 1965. It is highly probable that it had some unsecured creditors in Queensland. In any event, if unsecured creditors were entitled to an opportunity to be heard, as in my opinion they were, the application should not have proceeded without requiring notice to be given to them by advertisement or otherwise, unless the applicant proved by evidence that there were no such creditors.

The argument for the appellant that no person had an interest to oppose the application depends in part on a submission that there was no valid and applicable statutory provision which brought about the consequence that the non-registration of the debenture affected its validity in Queensland and with respect to the Queensland liquidator and the Queensland creditors. This submission means really that if some person had been heard on the application, it would have been shown by argument that his interests would not be affected by the order sought and, indeed, it would have been shown that that order was unnecessary. (It is not to be thought that it was being sought in order to protect the company or its officers in respect of a liability to be found guilty of an offence under s. 102 (2) of the Act.) Concerning this argument it is enough to say that the question as to the right to be heard in opposition to the order ought not to be determined by considering whether, if he had been heard, the person concerned would or would not have been successful. It is important to insist that such a person should be given a chance to present his arguments, particularly in a case where the order in question may have the effect of making unassailable the position of the moving party with respect to a matter in which otherwise its claim would depend upon its success or failure in debating legal questions of some complexity.

I wish now to refer briefly to the submissions to the effect that neither the order of the Registrar nor that of Hart J. was of any legal consequence. It appears to have been assumed in the Supreme Court that s. 100 of the Act, read with s. 110 thereof, applied. It was submitted for the appellant that this was not so. The charge was created before the Act was enacted and it was said that s. 100 speaks prospectively of charges created thereafter. In any event, it was submitted that s. 110 provides that nothing in Div. 7 of Pt IV of the Act (which includes s. 100) applies to a charge on property outside the State of a foreign company. As to this, there is really no evidence whether or not the company had assets in Queensland at the time of the creation of the charge. It was submitted that s. 102 of the Act applied or may have applied so as to require the company, after it became registered in Queensland as a foreign company, to cause the charge to be registered but that s. 102 does not attach to non-registration any consequence as to the validity of the charge. For the respondents, it was submitted that the provisions of ss. 84 and 85 of the Companies Acts, 1931 Q., as amended, were applicable. Section 85 (1) provides, in effect, that every mortgage "to which this Part applies created by a company shall, so far as any security on the company's property or undertaking is thereby conferred, be void against the liquidator or any creditor of the company" unless it is registered in Queensland. Section 84 (2) provides that the Part in which s. 85 appears applies "to every mortgage created by any company, whether such company is registered or incorporated in Queensland or elsewhere". A proviso to s. 85 (1) indicates that that section is intended to apply (at least in some cases) to a mortgage created outside Queensland. Another proviso indicates that it is intended to apply to a mortgage created in Queensland which comprises property outside that State. There was some debate as to the basis upon which and the extent to which these provisions were within the legislative competence of the Queensland Parliament. It is possible, I think, to uphold their validity in so far as they are concerned with mortgages created in Queensland and in so far as they are concerned with mortgages created elsewhere which are expressed to give a security over property in Queensland, to the extent to which such property is or becomes subject to them. But I express no concluded view on this question. It is enough to say that I am not satisfied that it is clear that the provisions have no valid operation in relation to the debenture with which this case is concerned. It is possible that s. 85 (1) applies if the Company had property in Queensland at the date of the debenture, but does not apply if it had no such property there at that time. That raises a question of fact on which there is no evidence. Another possible view is, I think, that s. 85 (1) applied to make the debenture void against the liquidator and any creditor, so far as the debenture operated according to its terms upon property in Queensland acquired subsequently. Again, it may be, as was submitted on behalf of the respondents, that the provisions have a valid territorial basis in so far as they operate in relation to, and in consequence of, the appointment in Queensland of a liquidator. In the final resolution of these questions it would be necessary to have regard to s. 4 of the Acts Interpretation Act, 1954 to 1971 Q..

Another argument advanced on behalf of the appellant should be mentioned. It was said that once the debenture was registered in Queensland after the making of the Registrar's order, a certificate of registration issued under s. 103 (2) of the Act, which provides that the certificate is to be conclusive evidence that the requirements as to registration have been complied with, would preclude any dispute as to the effectiveness or the propriety of the Registrar's order, and the conclusiveness of the certificate would not be affected by the fact that the Registrar's order had been set aside. In relation to the effect to be given to such a provision as s. 103 (2) reliance was placed on the decision in In re C.L. Nye Ltd. [32] . On this ground, as well as on others, it was contended that the respondents, when they were appellants before Hart J., were not "affected" by the Registrar's order and, also, that the result of this appeal is of no consequence to any of the parties.

In my opinion we should not deal in the present appeal with the submission that the earlier non-registration of the debenture had no effect on its validity or with the submission that the registration after the Registrar's order has enabled the appellant to rely on that belated registration as being conclusive. It may be suggested, perhaps, that although these questions were not litigated in the Supreme Court, this Court should resolve them now in order to avoid further litigation and expense. But, in my opinion we could not deal with them satisfactorily on the evidence which is before the Court, and in a proceeding which is not apt to raise in a proper form all the questions that may need consideration or to permit the making of such declarations and orders as may be necessary in order to resolve those questions. As has been indicated, it may be material to decide whether the company had assets in Queensland at the time of the execution of the debenture. If it did not, it may be material to know when it acquired assets in Queensland. There is no evidence as to these matters. There is no satisfactory evidence concerning the creditors of the company or as to when and where the debts were incurred. The New South Wales liquidators are not parties to the proceedings. As to the registration in Queensland of the charge, it has been stated that this occurred on 4th February 1972. The affidavit to which I referred earlier, which was filed to show how the appeal lay, stated that the debenture was registered on 4th February 1972, "pursuant to the order". But there was no evidence before Hart J. that it had been registered on that day or at all. There was no evidence as to the details of the registration or as to the terms of the certificate of registration, if such a certificate had been issued. I have said enough to indicate that it would be wrong in my opinion to attempt to deal with the matters raised by the arguments addressed to the Court, other than those which need to be decided in order to determine whether or not the decision of Hart J. was correct. The order of the Registrar was not an order which he could or should have made. It is not suggested that the learned judge, hearing the appeal as a rehearing of the application, but hearing it at a time when an order for the winding up of the company had been made in Queensland, should himself have made the order sought.

I have had the advantage of reading the reasons for judgment of the other members of the Court. I agree that the learned primary judge correctly held that the Registrar of the Supreme Court of Queensland had no jurisdiction to make the order extending time for registration of the relevant mortgage debenture. This order was sought upon an ex parte application, it was, of course, not consented to and, for the reasons stated by Hart J., neither r. 54 nor r. 55 of the Companies Rules 1963 was therefore apt to confer jurisdiction; nor does O. 65, r. 1A of the Supreme Court Rules afford any better foundation for the Registrar's alleged jurisdiction, and this for the reasons discussed in my brothers' judgments.

Even had the Registrar had jurisdiction the other sought was not, in my view, one which he should have made without affording some opportunity for representation of the interests of those who might thereby be adversely affected. The provisional liquidator of the mortgagor and its unsecured creditors, if any, suffered a real detriment by the late registration which the making of the order permitted, and which prevented reliance upon the argument otherwise available that the mortgage debenture, by reason of its non-registration, was void so far as it purported to confer security over the mortgagor's Queensland assets. It is not to the point that a court might not, in the outcome, treat the security as void, instead perhaps accepting the contention that the registration requirements of the 1961 Act were in any event inapplicable or did not, in view of the terms of s. 102 of that Act, operate to avoid the charge in default of registration. What is material is that by permitting late registration of the mortgage debenture the position of interested parties was jeopardized; thenceforth there would be no need for the mortgagee to seek to rely upon contentions such as those mentioned above; it would instead have a duly registered charge, valid against unsecured creditors.

The appeal from the order of the Registrar was, in my view, a competent and proper one for the reasons referred to in the other judgments in this Court. I would dismiss this appeal from the judgment and order of Hart J. and do so upon the above grounds, without entering upon the other matters canvassed on the hearing of the appeal.