WANG & ASSOCIATE SOLICITORS – 澳大利亚英杰律师事务所,澳大利亚律师,律师,悉尼,澳洲律师

Bofinger v Kingsway Group Limited [2009] HCA 44 (13 October 2009)

Last Updated: 13 October 2009

Guarantee and indemnity – Surety – Right to subrogation to securities – Three separate loans made to company, each secured by mortgage over company’s property – Appellants guarantors of each loan – Appellants sold personal properties and used proceeds to reduce first loan – First mortgagee exercised power of sale over company’s property to satisfy outstanding amounts owing under first loan and transferred surplus to second mortgagee – Whether appellants have right to subrogation to securities in priority to puisne mortgagees – Whether appellants’ right to subrogation excluded by terms of guarantees to puisne mortgagees – Whether rule in Otter v Lord Vaux (1856) 2 K & J 650 [1856] EngR 694; [69 ER 943] applied to prevent appellants from exercising right to subrogation or should be extended to so apply – Whether transfer of surplus required to be unconscionable for doctrine of subrogation to apply.

 Equity – Remedies – Constructive trust – Nature of constructive trust – Surplus transferred by first mortgagee to second mortgagee – Whether first mortgagee constructive trustee of surplus – Whether obligation to account. (more…)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 (30 September 2009)

Last Updated: 30 September 2009

Taxes and duties – Stamp duty – Transactions resulted in acquisition of all shares in corporation which held Crown leases containing options to renew – Section 56N(2)(b) of Taxation (Administration) Act (NT) (“Act”) requires valuation for assessment of duty of “all land” to which corporation is entitled at time of acquisition – Section 4(1) of Act provides “land” includes “a lease of land” but that “‘lease’ … does not include … an option to renew a lease” – Whether “land” in s 56N(2)(b) includes option to renew lease. (more…)

Vale v Sutherland [2009] HCA 26

Bankruptcy – Notice – Official Receiver issued notice under s 139ZQ of the Bankruptcy Act 1966 (Cth) (“the Act”) asserting certain property transactions void under s 120 of the Act – Notice asserted market value of properties at time of transfer – Failure to comply with notice may result in criminal sanctions under s 139ZT of the Act – Whether notice should be set aside under s 30 or s 139ZS if value stated incorrect.
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