United Builders Pty. Ltd. v Mutual Acceptance Ltd.
(1980) 144 CLR 673(1980) CLC 40-663
(Decision by: Gibbs J.)
United Builders Pty Ltd & TKM Finance (Aust) Ltd v Mutual Acceptance Ltd
Court:
Judges:
Barwick C.J.
GibbsStephen
Mason
Wilson JJ.
Judgment date: 7 NOVEMBER 1980
Decision by:
Gibbs J.
I have had the advantage of reading the reasons for judgment prepared by my brother Mason. I agree that the charge given by the appellant United Builders Pty. Ltd. ("United") on "all its right title and interest in the partnership" was not a charge on the beneficial interest of United in the various assets of the partnership, but a charge on a particular asset of United, namely the equitable chose in action constituted by its interest in the partnership, and that it was a specific and not a floating charge. I could not usefully add to the reasons given by my brother Mason for reaching this conclusion. (at p677)
However, although the appeal should be dismissed, it was not disputed before us that it is necessary to vary the order of the Full Court. The respondent, by a cross appeal, raised two questions. First, it was claimed, and not disputed, that the declaration made by the learned trial judge that the value of the share of United in the partnership at 25th September 1974 was $500,000 does not correctly express the apparent intention of the learned trial judge; the declaration should refer to the unencumbered value of the share. Secondly, the respondent sought to appeal against the dismissal of its counterclaim against United for $951,263.93. Before us, counsel for the respondent did not persist in that appeal but sought leave to withdraw the counterclaim and counsel for the appellants did not object to that course. (at p677)
I would dismiss the appeal, but would allow the cross appeal in part and vary the order of the Supreme Court accordingly. (at p677)