In the matter of Accolade Wines Australia Limited and other companies [2016] NSWSC 1023
Hearing dates:
28 June and 1 July 2016
Date of orders:
25 July 2016
Decision date:
25 July 2016
Jurisdiction:
Equity - Corporations List
Before:
Brereton J
Decision:
Refer to para 53
Catchwords:
CORPORATIONS – charges, debentures and other borrowings – security interests – registration – extension of time – application pursuant to (CTH) Corporations Act 2001, s 588FM – inadvertence – where security interest initially registered against grantor’s ABN, not ACN – prejudice – where no apparent prejudice to creditors by delay in obtaining effective registration – where no defendant joined – held, appropriate to exercise discretion under s 588FM to fix later time, but grantors must be joined and afforded opportunity to be heard
COMMERCIAL LAW – Personal Property Securities – (CTH) Personal Property Securities Act 2009 – extension of registration time for PMSIs pursuant to PPSA, s 293 – relevant considerations – where need for extension is due to inadvertence – prejudice – prejudice in s 293(3)(b) differs from s 588FM(2)(a)(ii) – prejudice not conclusive because necessary consequence of remedy is prejudice to other secured parties – prejudice significant where coupled with reliance – reliance – expert evidence that financiers search against ABN as well as ACN – whether other secured parties should be joined before or after orders made – held, their interests are liable to be affected and they must be joined – held, just and equitable to grant extension – order made ex parte, reserving liberty to apply to set aside or vary
[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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AGLC
Re Accolade Wines Australia Ltd [2016] NSWSC 1023
Case
[2016] NSWSC 1023
Decision Date
CaseChat Overview and Summary
In the recent case of Re Accolade Wines Australia Ltd, the parties involved were Accolade Wines Australia Ltd and its creditors, among others. The dispute centred around the registration of a security interest under the Personal Property Securities Act 2009. The case was heard in the Federal Court of Australia, where the court was required to determine whether an extension of time should be granted for the registration of a security interest that was initially recorded against the grantor's Australian Business Number (ABN) instead of the Australian Company Number (ACN).
The legal issues that the court needed to resolve included whether inadvertence justified an extension of time under section 293 of the Personal Property Securities Act 2009, and whether there was any prejudice to the creditors due to the delay in obtaining effective registration. The court also had to consider whether other secured parties should be joined in the proceedings before or after the making of orders. The court noted that while prejudice was not a conclusive factor, it was significant when coupled with reliance. Expert evidence indicated that financiers typically search against both the ABN and ACN, suggesting that the delay in this case might have caused reliance issues.
The court held that it was appropriate to exercise its discretion to fix a later time for registration, but the grantors must be joined and given an opportunity to be heard. The court concluded that it was just and equitable to grant an extension, making an order ex parte while reserving the right to apply to set aside or vary the order if necessary. The court underscored the importance of joining all relevant parties, as their interests were liable to be affected by the outcome of the case.