Crown & Gleeson Securities Cairns Pty Ltd v Moore's Airspray Pty Ltd (in liq) [2005] QSC 294

State Reporting Bureau JL \S fif'i-R. k f)s\J j&oos] ©sc ^4 Queensland Government Department of Justice and Attorney-Genera! Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J REVISED COPIES ISSUED State Reporting Bureau Date: 6 October, 2005 No 381 of 2005 CROWN & GLEESON SECURITIES CAIRNS PTY Applicant LTD and MOORE ’ S AIRSPRAY PTY LIMITED Respondent (RECEIVERS AND MANAGERS APPOINTED)(IN LIQUIDATION) CAIRNS .. DATE 03/10/2005 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 3 -- HIS HONOUR: This is an application to deal with the first of the issues raised in the originating application filed on the 2nd of September 2005. The issue is whether the applicant in proving a debt upon the liquidation of Moore's Airspray Pty Limited inadvertently surrendered the security which they held pursuant to a bill of sale granted by the company on the 3rd of September 2003. What is required, is for me to look at the circumstances in which the proof of debt was prepared and lodged. This is made necessary because regulation 5.6.24 made pursuant to the Corporations Act deems a creditor to have surrendered its security if it votes for the full amount of indebtedness in its proof of debt "unless the Court is satisfied that the act or that the omission to value the security arose from inadvertence" [in sub-regulation 3] . That question of inadvertence is attested to by Ms Paronella in her affidavit filed on the 2nd of September 2005. Her inadvertence relates to her lack of familiarity with the process of proving a debt. She did seek advice from someone in the liquidator's office, but that advice did not draw attention to the consequences of that regulation. The respondent liquidator does not oppose my making a declaration in the terms sought. Having read the affidavit of Ms Paronella I accept the genuineness of her reasons, and I am satisfied that the filing of the proof of debt for a level 03102005 T7/LFG M/T CNS1/2005 (Jones J) 1 10 20 30 40 50 2 JUDGMENT 60 -- 2 of 3 -- beyond the extent of the security was done through inadvertence. In those circumstances, I declare that the bill of sale granted by the respondent to the applicant on the 3rd of September 2003 in respect of the respondent's turbine thrush aeroplane, registration marked VH-CMY, was and has not been surrendered by the applicant in the winding up of the respondent company. 03102005 T7/LFG M/T CNS1/2005 (Jones J) There will be no order as to costs. 1 10 20 30 40 50 3 JUDGMENT 80 -- 3 of 3 --