Re ABHG Contracting Pty Ltd & Ors - [2023] VSC 263

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2022 05111

IN THE MATTER of ABHG CONTRACTING PTY LTD (ACN 160 008 22) & Ors (according to the attached schedule)

SCANIA FINANCE AUSTRALIA (ACN 609 637 596)

Plaintiff

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JUDGE:	ATTIWILL J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2023 (further submissions filed 5 May 2023)
DATE OF JUDGMENT:	19 May 2023
CASE MAY BE CITED AS:	Re ABHG Contracting Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2023] VSC 263

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CORPORATIONS – Security interests – Registration – Application to extend time pursuant to s 588FM of the Corporations Act 2001 (Cth) – Where grantors not joined as defendants but given notice – Inadvertence in registration – Where security interest initially registered against grantor trustees’ ACN, not ABN – No apparent prejudice to secured creditors – Risk of prejudice to unsecured creditors protected by order reserving leave to vary or discharge order – Where likely that unsecured creditors were aware of plaintiff’s invalid registration and therefore did not act on basis of grantor being unencumbered - Joinder of grantors as defendants to the proceeding - Application granted on conditions, including order reserving leave to vary or discharge order – ss 588FL, 588FM of the Corporations Act (Cth) – In the matter of Accolade Wines Australia Limited and other companies [2016] NSWSC 1023 applied.

COMMERCIAL LAW – Personal Property Securities – Application to extend time for registration of purchase money security interests pursuant to s 293 of the Personal Property Securities Act 2009 (Cth) – Inadvertence in registration – Where security interest initially registered against grantor trustees’ ACN, not ABN – Where other secured creditors with perfected security interests granted by the same grantor in the same collateral given notice of proceeding – Where likely that other secured creditors were aware of plaintiff’s invalid registration and therefore did not act on basis of grantor being unencumbered – Joinder of secured creditors as defendants to the proceeding - Application granted on conditions, including order reserving leave to vary or discharge order – ss 62, 293 of the Personal Property Securities Act 2009 (Cth) - In the matter of Accolade Wines Australia Limited and other companies [2016] NSWSC 1023 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C R Brown with Ms R N Malone	Holley Nethercote Lawyers

HIS HONOUR:

INTRODUCTION

The plaintiff, Scania Finance Australia Pty Ltd (Scania Finance), by originating process filed 12 December 2022, applied for orders that:

(a) under s 588FM of the Corporations Act2001 (Cth) (the Corporations Act) specified dates be fixed as the registration time for the purposes of s 588FL(2)(b)(iv) of the Corporations Act in respect of collateral in which Scania Finance was granted a security interest arising out financing agreements entered into with the eight grantor entities listed in the originating process (grantors);

(b) pursuant to s 293 of the Personal Property Securities Act 2009 (Cth) (the PPSA

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.

Continue reading Re ABHG Contracting Pty Ltd & Ors

Details

AGLC: Re ABHG Contracting Pty Ltd & Ors [2023] VSC 263
Case: [2023] VSC 263
Decision Date: 19 May 2023

CaseChat Overview and Summary

In the matter of ABHG Contracting Pty Ltd and others, the court addressed applications to extend the time for registering security interests under the Corporations Act 2001 (Cth) and the Personal Property Securities Act 2009 (Cth). The applicants sought to rectify inadvertent errors in the registration of security interests. Specifically, the security interests were initially registered against the grantor trustees' Australian Company Number (ACN) instead of their Australian Business Number (ABN), and the grantors were not joined as defendants but were provided with notice. The primary concern was the potential prejudice to unsecured creditors, despite indications that they were likely aware of the error and had not acted on the basis that the grantor was unencumbered.

The court had to determine whether the applications could proceed under sections 588FM and 293 of the Corporations Act and Personal Property Securities Act, respectively, given the inadvertent registration errors and the absence of apparent prejudice to secured creditors. The court considered the risk to unsecured creditors, which was mitigated by the order reserving leave to vary or discharge the orders if needed. The court also relied on the decision in the matter of Accolade Wines Australia Limited and other companies, where similar issues were addressed, to guide its reasoning.

After considering the evidence and arguments, the court granted the applications on conditions, including an order that reserved the leave to vary or discharge the orders. This decision ensured that any potential prejudice to unsecured creditors could be addressed if necessary. The conditions reflected a balanced approach, recognising the inadvertent nature of the errors and the lack of actual prejudice, while safeguarding the interests of all parties involved.

Orders