Snowy Valleys Council v Anthony William Evans - [2021] NSWSC 428

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Snowy Valleys Council v Anthony William Evans & Anor [2021] NSWSC 428
Hearing dates: 27 April 2021
Date of orders: 30 April 2021
Decision date: 30 April 2021
Jurisdiction: Equity
Before: Slattery J
Decision:
Relief granted under Personal Property Securities Act 2009 (Cth), s 182(4)(a) to remove the registration referring to the first defendant’s claimed security interest. Injunction granted restraining the first defendant from registering further security interests on the PPS Register.

Catchwords:
MORTGAGES AND SECURITIES – Personal Property Securities Act 2009 (Cth) – Personal Property Securities Register – the plaintiff, a local council, seeks to remove the registration of certain security interests claimed by the first defendant from the Personal Properties Securities Register (“the PPS Register”) – whether collateral described in the registrations by the first defendant secures any obligation owed by any debtor to a secured party – the first defendant seeks unilaterally to present certain council rates he owes the plaintiff as a commercial debt instrument creating an equivalent financial obligation by the council to him, which he claims constitutes part of his income for US tax purposes – the plaintiff says the first defendant’s re-characterisation of the plaintiff’s rate notices is wholly artificial – the plaintiff seeks an order requiring the second defendant, the Registrar of the Personal Property Securities, to register a financing change statement removing the registration of the first defendant’s purported security interest from the PPS Register – the plaintiff seeks an injunction restraining the first defendant registering any further security interest in the personal property of the plaintiff.

Legislation Cited:
Civil Procedure Act 2005, s 98(4)(c)
Local Government Act 1993, ss 494, 550, 560
Personal Properties Securities Act 2009 (Cth), ss 12(1), 12(2), 151(1), 178, 178(1), 182, 182(4)(a), 184, 184(1)(a)

Cases Cited:
Hamod v New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738
Macquarie Leasing Pty Ltd v Deqmo Pty Ltd [2014] NSWSC 1466
National Australia Bank Ltd v Garrett (2016) 340 ALR 532
Sandhurst Golf Estates Pty Ltd v Coppersmith Pty Ltd (2014) 285 FLR 267
Wickham Hill Investment Pty Limited v Ding [2019] NSWSC 631
Zepinic v Chateau Constructions (Aust) Ltd (No. 2) [2014] NSWCA 99

Category: Principal judgment
Parties: Plaintiff: Snowy Valleys Council
First Defendant: Anthony William Evans
Second Defendant: Registrar, Personal Properties Securities
Representation: Solicitors:
Plaintiff: J. Prowse
First defendant: In person (no appearance)
Second defendant: B. May, Australian Government Solicitor

File Number(s): 2020/310527
Publication restriction: No

Judgment

The plaintiff, the Snowy Valleys Council (“the Council”), administers a local government area in the south-west slopes region of this State. It was formed in 2016 from the merger of the Tumut Shire with the Tumbarumba Shire. The first defendant, Mr Anthony William Evans, owns several parcels of land in the district of Tumbarumba (“the Tumbarumba property”).
By its Amended Summons, the Council seeks orders under the Personal Property Securities Act 2009 (Cth) (“the PPSA”), s 182(4)(a) requiring the second defendant, the Registrar…

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: [2021] NSWSC 428
Decision Date: 30 April 2021

CaseChat Overview and Summary

Snowy Valleys Council brought proceedings against Anthony William Evans, seeking to remove certain registrations from the Personal Property Securities Register. Evans had registered security interests over certain assets, which the Council argued did not secure any obligation owed by any debtor to a secured party. The Council contended that Evans's re-characterisation of the Council's rate notices as a commercial debt instrument was artificial, and sought an order requiring the Registrar to remove the registration of Evans's security interests from the Register, as well as an injunction to prevent further registrations by Evans.

The central issue before the court was whether the collateral described in the registrations by Evans secured any obligation owed by any debtor to a secured party. The court examined whether Evans had a legitimate interest in the collateral that could be protected by a security interest and if the collateral indeed secured an obligation owed by a debtor to a secured party. Additionally, the court had to consider whether Evans's actions in registering the security interests were valid under the Personal Property Securities Act 2009.

The court found that Evans's registration of security interests was not valid as the collateral did not secure any obligation owed by a debtor to a secured party. The court determined that Evans's re-characterisation of the Council's rate notices as a commercial debt instrument was artificial and not reflective of the actual relationship between the parties. Consequently, the court ordered that the Registrar must remove the registration of Evans's security interests from the Personal Property Securities Register. The court also granted an injunction restraining Evans from registering any further security interests in the personal property of the Council.

The final orders of the court mandated the Registrar to remove the registration of Evans's security interests from the Personal Property Securities Register and enjoined Evans from registering any further security interests in the Council's personal property. This decision underscores the importance of ensuring that security interests are properly characterised and that they genuinely secure obligations owed by debtors to secured parties.

Orders