Alert of 21 September 2009 discussed Re Octaviar Ltd
(No7)  QCA 282, an appeal from the decision of Re
Octaviar Ltd; Re Octaviar Administration Pty Ltd  QSC
37. In that case, the Queensland Court of Appeal reversed the first
instance decision. These cases dealt with the interpretation of
section 268(2) of the Corporations Act 2001 (Cth) and the
circumstances in which a "variation" to the terms of a
registrable charge, which has the effect of increasing the amount
of the debt or increasing the liabilities (whether present or
prospective) secured by that charge, will occur and require
registration with the Australian Securities and Investments
Our previous Alert of 21 September 2009 mentioned that any
application for special leave to appeal from the Queensland Court
of Appeal decision to the High Court must be filed by 16 October
2009. An application for special leave to appeal was filed on 15
What Is An Application For Special Leave?
An application for special leave is an application requesting
the High Court to hear an appeal from the judgment of another
Although the High Court may take into account any matter it
determines is relevant when considering an application for special
leave, the Judiciary Act 1903 (Cth) lists the following specific
criteria that the High Court must have regard to:
whether the relevant proceedings involve a question of law
which is of public importance or where there has been differences
of opinions in other judicial decisions; or
whether the "interests of the administration of
justice" require the High Court to consider a particular
An application for special leave is not a decision on the merits
of the case. It deals only with the question of whether the High
Court will allow the appeal to proceed to a hearing.
When Will A Decision Be Made?
It is not possible to predict with certainty when a decision
will be made by the High Court in relation to this application for
special leave to appeal. It could be between six and nine
months before a decision is made.
If the application is successful, the matter will then proceed
to a hearing. It will therefore be an additional period of time
before the substantive question of the appeal is heard and a
What Does This Mean?
Although the Queensland Court of Appeal decision supported the
usual financing practices adopted before the time of the first
instance decision, until the application for special leave is
determined, prudence dictates a cautious approach.
When taking new security, give careful consideration to the
terms of the "secured money" and associated definitions
used in the security document to ensure these are as clear as
possible. When amending or restructuring financing documents,
analyse carefully whether the terms of any ASIC registered charge
have been amended in a manner that is notifiable under section
268(2) of the Corporations Act 2001 (Cth).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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