Devine and Registrar of Personal Property Securities

[2020] AATA 3126

Devine and Registrar of Personal Property Securities [2020] AATA 3126 (25 August 2020)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):      2019/6981

Re:Brett Devine

APPLICANT

AndRegistrar of Personal Property Securities

RESPONDENT

AndDevine Marine Salvage Pty Ltd

The Trustee for Defender Trust

Transport for NSW

OTHER PARTY

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:25 August 2020

Place:Brisbane

The decision of the Delegate of the Registrar of Personal Property Securities, dated 22 October 2019, to remove Registration 201906070006226 from the Personal Property Securities Register is set aside and is substituted with a decision under s 181(1) of the Personal Property Securities Act 2009 not to register the financing change statement that would remove the registration.

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Deputy President Bernard J McCabe

CATCHWORDS

PERSONAL PROPERTY SECURITY – amendment notice under s 178 – whether the Registrar suspects on reasonable grounds that the amendment is not authorised – amendment not authorised – Tribunal’s jurisdiction to offer relief – Tribunal bound by empowering legislation – decision set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 ss 37, 43

Marine Safety Act 1998 (NSW) s 16
Marine Safety Regulation 2016 (NSW) cl 17A
Personal Property Securities Act 2009 ss 178, 181
Property Law Act 1974 (QLD) s 50

Trusts Act 1973 (QLD) s 59

REASONS FOR DECISION

Deputy President Bernard J McCabe

25 August 2020

1. Captain Brett Devine, the applicant, owned a barge which he subsequently transferred to a company he controls. The applicant and another party also claim to hold a security interest over that barge. They registered the charge on the register maintained under the Personal Property Securities Act 2009 (the PPSA). The barge is currently in the possession of Transport for New South Wales (TfN), the government body which administers the maritime laws in that state. TfN says various fees and charges have accrued in respect of the barge. TfN wants to sell or dispose of the barge and apply the proceeds of the sale towards those fees or charges. When TfN attempted to sell the barge, the sale fell through. It seems the prospective purchaser was put off by the security interest recorded on the register. TfN subsequently applied to the Registrar to amend the register by deleting the security interest.

2. The request for the amendment was made under s 178 of the PPSA. The Registrar has the power to amend the registration (including an amendment that removes the registration) pursuant to s 181 of the PPSA. That section relevantly provides:

   1If an amendment notice is given to a secured party under section 180, after the end of the period covered by subsection (3), the Registrar must (at his or her initiative) register a financing change statement amending the registration (including an amendment to remove the registration) in accordance with the amendment demand, unless the Registrar suspects on reasonable grounds that the amendment is not authorised under section 178. …

   4In making a decision about whether to register a financing change statement amending the registration in accordance with the amendment demand, the Registrar must consider:

   (a)the response (if any) of the secured party to the invitation in the amendment notice; and

   (b)any other relevant information.

   5Data removed from the register because of an amendment under this section must not be made available for search in the register by reference to any time before (or after) the time of removal, if the Registrar so decides for the purposes of this subsection.

3. The Registrar gave notice of the request for amendment to the applicant and the other party claiming to hold the security interest. They objected to the amendment. There was an increasingly fractious exchange of correspondence and documentation. On 22 October 2019, the Registrar made a reviewable decision under s 181 to amend the register by deleting the registration of the security interest held by the applicant and the other party. The matter has now come before the Tribunal.

   WHAT IS GOING ON?

4. It would be helpful at this point to describe the history of the application because this dispute is not really about what it is about. It is about something else.

5. The application before the Tribunal has a number of parties in addition to the Registrar which reflects the different strands of a complex dispute that involves a number of entities in two different states. Those parties are:

   ·The applicant, Captain Devine, who is engaged in the business of marine salvage;

   ·Devine Marine Salvage Pty Ltd, a company controlled by Captain Devine. The company is, I understand, the owner of the property which is subject to the security interest. The company is the first other party;

   ·The Trustee for the Defender Trust (or one of them), an entity called STST Pty Ltd that is represented by Mr Schoch, an accountant. The Trustee is the second other party; and

   ·Transport for NSW, the third other party.

6. I understand Captain Devine is also one of the trustees for the Defender Trust. Lurking in the background is Maritime Services Queensland (MSQ). MSQ, an emanation of the state of Queensland, is not a party to these proceedings. Captain Devine says MSQ’s conduct is still relevant to the dispute.

7. The larger dispute arises out of the applicant’s proposal to salvage a tall ship, the Defender, which was located in Townsville. Captain Devine acquired the rights to salvage the Defender and restore it to its former glory. To that end, he acquired a barge to use in the salvage and restoration process. Ownership of the barge was subsequently transferred to Devine Marine Salvage. Captain Devine says MSQ improperly prevented him from salvaging the vessel. There are now proceedings in the Supreme Court of Queensland in relation to that dispute. Captain Devine and STST subsequently established the Defender Trust. The trustees entered into a loan agreement with Captain Devine.[1] The loan agreement was reproduced at pp 235ff of the documents provide under s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The monies advanced under the agreement were to be used for the purposes of funding the legal proceedings in Queensland against the MSQ.

   [1] Loan agreements with one’s self are not really a thing – not at general law, at any rate, since there must ordinarily be at least two separate entities to an enforceable agreement. How does one enforce an agreement against one’s self? The anomaly is resolved by statutory intervention in some cases. The agreement in this case is governed by the laws of Queensland. In that state, a trustee may enforce an agreement with himself: see s 59 of the Trusts Act 1973 (QLD). An agreement entered into between two individuals on the one hand and one of those individuals on the other is treated as if it were an agreement between the second party and the other of the two individuals: see s 50 of the Property Law Act 1974 (QLD).

8. In the meantime, the barge that was to be used in the restoration process has languished at anchor in Sydney. That has attracted the attention of TfN which points out the owner of a vessel may not permit a vessel to be at anchor in New South Wales’ waters for more than 90 days in a calendar year: see cl 17A, Marine Safety Regulation 2016 (NSW). TfN issued a notice to remove the vessel from its mooring pursuant to s 16(2) of the Marine Safety Act 1998 (NSW). When the vessel was not removed, TfN seized the vessel on 21 December 2018. TfN subsequently wrote to the applicant and foreshadowed its intention to dispose of the vessel if the fees and charges were not paid and a suitable mooring place was not found. TfN subsequently tried to sell the barge. It was unsuccessful on its first attempt. TfN retains custody of the barge. Captain Devine says TfN is not taking good care of the barge. He is worried it might sink. TfN agreed not to take further steps towards disposing of the barge while these proceedings were underway.

9. TfN approached the Registrar to amend the register on 17 June 2019. That application prompted the reviewable decision. And here we are.

   Everyone agrees about the outcome of these proceedings – up to a point

10. By the time the parties convened for the hearing, there was agreement between them that (a) the decision under review should be set aside under s 43 of the AAT Act and (b) I should decide in substitution that the Registrar suspects on reasonable grounds that the amendment is not authorised. Ms Maltabarrow, who represented TfN, said TfN had reviewed material that was provided by the applicant and the other party in the course of the proceedings and now accepted it would be inappropriate to amend the register to delete reference to the security interest over the barge. Mr Piotrowicz, who represented the Registrar, said the Registrar agreed with TfN’s view. I was referred to the material that TfN and the Registrar had considered. I have no reason to reach a different conclusion.

11. The applicant and the Trustee were initially reluctant to accept the win. They wanted the Tribunal to make additional orders directed to TfN instructing it on how it should deal with the barge. TfN objected to those orders. I agree I cannot make the orders sought by the applicant and the Trustee.

12. The Tribunal is a creature of statute. Its role is to review decisions made by designated decision-makers. In the ordinary course, the Tribunal steps into the shoes of the original decision-maker. In doing so, the Tribunal assumes the original decision-maker’s powers, and is subject to the same constraints. (It is also informed by the same statutory objectives, albeit that the Tribunal has its own overlying objective of modelling good decision-making behaviour). In the absence of legislation directing a different approach, the Tribunal will re-make the decision on the merits as if it were the original decision-maker having regard to the material before the Tribunal at the time of the hearing.

13. It is important to emphasise that the Tribunal cannot do more than the original decision-maker is empowered to do. The Tribunal is conducting the decision-making process afresh, albeit that it uses its own court-like procedures, has access to up-to-date material and performs its role in public. Once the review is completed, the Tribunal’s power is limited to making the orders in s 43 of the AAT Act, which permit it to:

    ·Affirm the decision under review – which means the Tribunal agrees with the decision, whether or not it has different reasons;

    ·Vary the decision under review, which means it substantially agrees with the decision subject to minor alterations; or

    ·Set aside the original decision-maker’s decision and substitute the Tribunal’s different conclusion or remit the matter for reconsideration by the original decision-maker in accordance with directions or recommendations.

14. It follows the Tribunal cannot make orders the original decision-maker was not authorised to make under the relevant legislation – and it cannot issue directions or make recommendations to the decision-maker to do things the decision-maker cannot do under its statute.

15. Captain Devine and Mr Schoch are clearly upset at the behaviour of TfN and MSQ. The two authorities are accused of high-handed behaviour, conspiracies, and much else besides. I am not in a position to make an assessment of those claims, and I express no view about them other than to note Captain Devine and Mr Schoch are plainly animated by a sense of grievance over their perceptions of maltreatment. Importantly, though, neither Captain Devine nor Mr Schoch were able to point me to any power in the PPSA that would authorise the Registrar (or the Tribunal on review) to make the additional orders they request. In those circumstances, I do not propose to go any further than the orders under s 43 which were proposed by TfN and the Registrar, and which were acknowledged by Captain Devine and Mr Schoch.

    CONCLUSION

16. The reviewable decision is set aside. I decide in substitution that the Registrar should not amend the register in accordance with s 181 of the PPSA.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

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Associate

Dated: 25 August 2020

Date(s) of hearing:	21 July 2020
Date final submissions received:	9 July 2020
Applicant:	By video
Respondent:	Mr M Piotrowicz
Other Party 1:	Mr B Devine
Other Party 2:	Mr W Schoch
Other Party 3:	Ms S Maltabarow, NSW Crown Solicitors Office