Public Trustee of Queensland v Fortress Credit Corporation (Aus) 11 Pty Ltd

The High Court of Australia considered an appeal by the Public Trustee of Queensland concerning a fixed and floating charge granted by Octaviar to Fortress Credit Corporation (Aus) 11 Pty Ltd. The dispute centred on whether a subsequent deed, which clarified that the charge secured Octaviar's liability under a guarantee to Fortress, constituted a variation of the charge requiring lodgement of a notice under s 268 of the *Corporations Act 2001* (Cth), or if it created a new charge requiring registration under s 263. The Public Trustee argued that failing to lodge a notice of variation rendered the charge void to the extent it secured the guarantee liability.

The central legal issue before the High Court was whether the deed, by incorporating Octaviar's guarantee liability into the secured moneys under the original charge, constituted a "variation in the terms of the charge" for the purposes of s 268 of the *Corporations Act 2001* (Cth). This required the Court to interpret the meaning of "terms of the charge" within the context of the Act's registration system for charges. The Court also considered the legislative policy behind Chapter 2K of the Act, which governs the registration of charges, and whether this policy mandated the lodgement of a notice of variation in these circumstances.

The High Court dismissed the appeal, upholding the decision of the Court of Appeal. The Court reasoned that the "terms of the charge" refer to the rights and obligations created by the charge itself, including the liabilities it secures. While the definition of secured moneys in the original charge referred to another document (the Facility Agreement), the Court found that this did not alter the analysis of whether a variation had occurred. The Court affirmed that the registration system under Chapter 2K is not intended to provide a complete and perfect record of all details of a charge, and that uncertainties regarding secured liabilities are inherent. Therefore, the execution of the deed did not necessitate the lodgement of a notice of variation under s 268, nor did it create a new charge requiring registration under s 263. The appeal was dismissed with costs ordered in favour of the first respondent.