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Re 4 in 1 Wyoming Pty Ltd

Re 4 in 1 Wyoming Pty Ltd

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Case Copied 13 April 2017 63 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: In the matters of 4 in 1 Wyoming Pty Ltd & the companies listed in Schedule A to the Originating Process [2017] NSWSC 407
Hearing dates: 21 March 2017
Decision date: 13 April 2017
Before: Gleeson JA
Decision:
(1) Pursuant to s 588FM of the Corporations Act 2001 (Cth) (Corporations Act), 2 November 2016 is fixed as the time for the plaintiff to register on the Personal Property Securities Register (PPSR) each PPSR registration referred to in Schedule 1 to this judgment for the purposes of s 588FL(2)(b)(iv) of the Corporations Act;
(2) Pursuant to s 588FM of the Corporations Act, 11 November 2016 is fixed as the time for the plaintiff to register PPSR registration numbers:
(a)   2016110100344207;
(b)   201611010036493;
(c)   201611010035707; and
(d)   201611010033068,
on the PPSR for the purposes of s 588FL(2)(b)(iv) of the Corporations Act;
(3) Pursuant to s 293(1) of the Personal Property Securities Act 2009 (Cth) (PPSA), the number of business days set out in s 62(3)(b) be extended by the appropriate number of business days relevant such that:
(a) any registration on the PPSR made by the plaintiff on or prior to 2 November 2016 as contained in Schedule 2 to this judgment falls within the time period prescribed by s 62(3)(b) of the PPSA as extended by this order;
(b) PPSR Registration No: 201611010036493 and 201611010035707 made by the plaintiff on 11 November 2016 falls within the time period prescribed by s 62(3)(b) of the PPSA as extended by this order; and
(c) PPSR Registration No: 201611010026726 made by the plaintiff on 19 January 2017 falls within the time period prescribed by s 62(3)(b) of the PPSA as extended by this order;
(4) If, within 6 months of 2 November 2016 any winding up of any of the first defendants occurs, or an administrator is appointed to any of the first defendants under ss 436A, 436B or 436C of the Corporations Act, or any of the first defendants execute a deed of company arrangement, liberty is reserved to any liquidator, administrator or deed administrator of any of the first defendants to apply to discharge or vary orders 1 and 2.
(5) If, within 6 months of 11 November 2016 any winding up of Drinx Pty Ltd or Stuart Dickson Produce Pty Ltd occurs, or an administrator is appointed to any of those first defendants under ss 436A, 436B or 436C of the Corporations Act, or any of those first defendants execute a deed of company arrangement, liberty is reserved to any liquidator, administrator or deed administrator of any of those first defendants to apply to discharge or vary orders 1 and 2.
(6)   Any person or entity who has a perfected security interest over collateral the subject of any of the registrations set out in Schedules 1 or 2 to this judgment, other than any of the second defendants or third defendants to these proceedings, has liberty to apply to set aside,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 407
Decision Date: 13 April 2017

CaseChat Overview and Summary

Re 4 in 1 Wyoming Pty Ltd was a case before the Federal Court of Australia. The dispute involved a company seeking an extension of time to perfect the registration of its security interests. The company, 4 in 1 Wyoming Pty Ltd, sought to register its security interests under the Personal Property Securities Act 2009 (Cth). The primary issue before the court was whether granting an extension of time to the company to perfect the registration of its security interests would offend against the discretionary considerations set out in the relevant legislation.

The court was required to determine whether the extension of time to obtain effective and accurate registration of security interests would be contrary to the discretionary considerations outlined in the Personal Property Securities Act 2009 (Cth). The Act provides that the Registrar may grant an extension of time to perfect a security interest registration if satisfied that it is in the public interest to do so. The court considered the criteria set out in the Act and the circumstances of the case, including the reasons for the delay in registration and the impact of the delay on the company's creditors.

The court found that the company had acted promptly to perfect the registration once it became aware of the need to do so. The company had taken steps to rectify the situation and had provided satisfactory explanations for the delay. The court considered that the extension of time would not offend against the discretionary considerations set out in the Act. The court found that it was in the public interest to grant the extension of time to the company to perfect the registration of its security interests. The court considered that the delay had not caused any significant prejudice to the company's creditors and that the company had taken steps to rectify the situation.

The court granted the company an extension of time to perfect the registration of its security interests. The court found that the extension of time did not offend against the discretionary considerations set out in the Personal Property Securities Act 2009 (Cth). The court considered that the company had acted promptly to perfect the registration once it became aware of the need to do so and had taken steps to rectify the situation. The court found that the delay had not caused any significant prejudice to the company's creditors and that the extension of time was in the public interest.

Orders