Toyota Finance Australia Ltd v Easy Dollar Pty Ltd

[2011] NSWSC 828

Supreme Court

New South Wales

Medium Neutral Citation:	Toyota Finance Australia Ltd v Easy Dollar Pty Ltd [2011] NSWSC 828
Hearing dates:	1 August 2011
Decision date:	01 August 2011
Jurisdiction:	Equity Division - Duty List
Before:	Slattery J
Decision:	Upon the plaintiff providing an undertaking to the Court to pay to the defendant any surplus proceeds of sale of the goods, the defendant will be directed to notify the Director General of the Department of Fair Trading that its interest in the goods has ceased to be a registrable interest so as to allow the Director General to cancel that interest in the Goods Act register. Directions are given to notify the defendant of this amended form of relief before final orders are made.
Catchwords:	STATUTES - acts of parliament - operation and effect of statutes - Registration of Interests in Goods Act 1986 ("the Goods Act") - Registration of Interests in Goods Regulation 2004 - plaintiff has a registered mortgage interest in goods under the Goods Act which has priority over the defendant's registered interest in the same goods - plaintiff takes possession of the goods and seeks the exercise of its power of sale - goods unsaleable if offered for sale subject to defendant's subsequent registered interest - plaintiff offers an undertaking to the Court to pay to the defendant any surplus proceeds of sale of the goods, if the defendant's registered interest is cancelled in the register - no statutory mechanism exists under Goods Act to permit a sale free of the defendant's subsequent interest - whether Court can direct the cancellation of the defendant's interest.
Legislation Cited:	Registration of Interests in Goods Act 1986 (NSW) Registration of Interests in Goods Regulation 2004 (NSW)
Cases Cited:	Deputy Commissioner of Taxation v Horsburgh (1983) 2 VR 591 Heid v Reliance Finance Corp Pty Ltd Limited (1983) 154 CLR 326 King v Gousettis (1986) 5 NSWLR 89 Lane v Horlock (1853) 61 ER 576 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397
Texts Cited:	E.Tyler, P.Young and C.Croft, Fisher and Lightwood's Law of Mortgage, Butterworths 1995, Chapter 24, Priorities of Mortgages
Category:	Interlocutory applications
Parties:	Plaintiff - Toyota Finance Australia Limited Defendant - Easy Dollar Pty Limited
Representation:	Plaintiff - D.M.Farrar, FARRAR Lawyers Defendant - No appearance
File Number(s):	2011/223305
Publication restriction:	No

EX TEMPORE Judgment

1. HIS HONOUR: The issue in this case is the finding of a mechanism to overcome what appears to be a procedural deficiency in the Registration of Interests in Goods Act 1986 ("the Goods Act "). The precise problem which confronts Toyota Finance Australia Limited ("Toyota Finance") the plaintiff in these proceedings is this: Toyota Finance is registered under the Goods Act as an interest holder in a motor vehicle which is prescribed goods under the Goods Act; the defendant, Easy Dollar Pty Limited ("Easy Dollar"), is also an interest holder in the same prescribed goods; but, Easy Dollar holds its interest in subsequent priority to the interest of Toyota Finance.

1. Toyota Finance has repossessed the goods and wishes to sell them. It has communicated with Easy Dollar and said that it is prepared to pay to Easy Dollar any surplus left over after the sale of the goods and the debtor's obligations to Toyota Finance are satisfied. Toyota Finance then requested the removal of Easy Dollar's registered interest. Easy Dollar has refused this offer and seeks payment out of the full amounts said to be due to it before it will agree to the cancellation of its registered interest.

1. The evidence before me shows, unsurprisingly, that it is difficult if not impossible for Toyota Finance to sell the goods whilst Easy Dollar's registered interest still exists. The Goods Act does not contain any statutory mechanism by which Toyota Finance can require Easy Dollar to remove its interest to permit a commercial sale of the goods. The Act does not provide any other mechanism to solve this problem, as for example Real Property Act , s 59 does by allowing the purchaser to take free of all encumbrances after the exercise of the power of sale.

1. Some of the evidence available to the Court suggests that Easy Dollar may be exploiting this situation in order to gain a priority for its interest greater than that to which it is entitled. Toyota Finance now asks the Court to intervene to provide a solution.

1. I have reached the view that this is a case where the Court should intervene to provide a mechanism to allow a commercial sale of the goods free of Easy Dollar's interest because there is no adequate mechanism in the Goods Act itself, because Easy Dollar may be attempting to misuse the statute to gain for itself a false priority over Toyota Finance and because Easy Dollar's interests can be protected adequately. A source of the Court's power to act in these circumstances is the power to enforce the relative priorities between legal and equitable mortgage interests. The jurisdiction is well established: see E.Tyler, P.Young and C.Croft, Fisher and Lightwood's Law of Mortgage , Butterworths 1995, Chapter 24, Priorities of Mortgages. In the exercise of this jurisdiction the Court will enforce, as among a series of encumbrancers, their relative priority to the mortgaged property and to the proceeds of sale of the mortgaged property: see for example Heid v Reliance Finance Corp Pty Ltd Limited (1983) 154 CLR 326 and Deputy Commissioner of Taxation v Horsburgh (1983) 2 VR 591 at 598. There are other sound analogies for equity's intervention here. Toyota Finance's clear statutory priority will be diminished or destroyed unless the Court intervenes, otherwise the goods will remain unsaleable. Injunctions may be granted in aid of rights conferred by statute where the nature, scope and terms of the statute confer such a right: King v Gousettis (1986) 5 NSWLR 89 and Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, at 450, per Kitto J. Here as the analysis of the Goods Act below shows, the statute has the clear objective to promote the orderly preservation and realisation of the interests in moveable property which are conferred or recognised by the statute.

1. This seems to me to be an example of the exercise of jurisdiction of both these kinds. Unless there is some Court intervention the system of the registration of interest set up by the Goods Act will effectively be paralysed at the point of the sale of the goods. But it is important to mould relief that neither bypasses existing administrative mechanisms within the Goods Act nor defeats Easy Dollar's interests in the goods, without it having the opportunity to be heard.

1. Resolution of this problem requires a short examination of the dealings between Toyota Finance, its borrower, Easy Dollar, and an examination of the statutory regime.

Proof of Service

1. But first only Toyota Finance is represented today. I am satisfied, though, that Toyota Finance has given adequate notice of today's hearing to Easy Dollar.

1. These proceedings are commenced by summons supported by an affidavit of David Matthew Farrar to which there is an exhibit, "DMF1". That Summons, affidavit and exhibit were served on the defendant by Marjana Pavlovic on 11 July 2011 by mail at the registered office of Easy Dollar, in Alexandria. There has been no response. Toyota Finance has tendered an ASIC historical company extract showing that the Alexandria address [address not published] is the current address of the registered office of the company (Exhibit A).

1. The Summons was returnable on 20 July 2011. The correspondence to and from the Court shows that there was no appearance on behalf of the plaintiff on that occasion. This is clear from a recent letter to the Court Registrar (Exhibit C):-

"Dear Sir/Madam

Toyota Finance Australia Limited v Easy Dollar Pty Limited

New South Wales Supreme Court proceedings 2011/223305 (Proceedings)

We are aware that the Proceedings were listed on 20 July 2011. Due to a mis-diarisation, there was no appearance on behalf of the plaintiff. We understand from enquiries with the court that the Proceedings are now listed at 9am on 18 August 2011.

The plaintiff's application is fairly urgent and the plaintiff seeks a referral to the Equity Duty List Judge as soon as possible. We request that the listing date for the Proceedings be brought forward, or alternatively, that the Proceedings be listed for hearing before the Equity Duty List Judge as soon as possible.

We look forward to hearing from you.

Yours faithfully

FARRAR Lawyers"

1. After the non appearance by Easy Dollar on 20 July 2011 the Court re-listed the matter on 18 August 2011. Toyota Finance wished to move more urgently than this and had the matter listed before the duty judge today, 1 August 2011. It gave notice of this listing to Easy Dollar by several means. The principal notice of today's listing was by the posting of a letter on 26 July 2011 (Exhibit B), last Tuesday.

1. All this has been proved by Ms Pavlovic. Ms Pavlovic advances other evidence of the making of telephone calls and sending of emails and faxes to various email and telephone and facsimile addresses said to be associated with Easy Dollar. But there was no clear evidence linking any of those addresses with Easy Dollar. I regard the notice by post of today's hearing as sufficient. The defendant, Easy Dollar, was called outside Court before the Registrar this morning and again before me at the commencement of the duty list at 10 am. There was no appearance on its behalf on either occasion.

1. The letter to Easy Dollar of 26 July 2011 made clear that when the matter was before the Court today Toyota Finance intended to request the Summons be referred to the duty judge for immediate hearing and determination. The letter further warned that it was likely that orders would be made adverse to Easy Dollar's interests and that to avoid such a consequence, Easy Dollar should arrange representation today.

1. In the light of these communications the Court can proceed against Easy Dollar without any unfairness to it. But Easy Dollar's absence today does make precise formulation of the relief more challenging than it would otherwise be, as I will explain.

Toyota Finance, The Debtor and Easy Dollar

1. Toyota Finance entered into a finance contract (a business vehicle loan agreement) with a Mr Andrew Patrick Crawley on 7 August 2009 to support his purchase of the goods, which are a 2008 Holden utility motor vehicle. The registration number of the vehicle and account details in relation to Mr Andrew Patrick Crawley are not included in this judgment to reduce the possibility of identity theft arising out of the publication of these reasons. The Holden utility is prescribed goods within the meaning of the Goods Act . Toyota Finance registered an associated mortgage interest in the vehicle in the register, maintained under the Goods Act , at 9.32am on 7 August 2009.

1. Unfortunately about 12 months later the customer defaulted. Toyota Finance issued the customer with a series of default notices. The first few of these were satisfied. But the customer failed to satisfy a notice issued on 12 August 2010. The default remained unremedied. Toyota Finance has a right under Clause 10.2 of its business vehicle loan agreement, to repossession of the vehicle upon Mr Crawley's default. It exercised that right on 18 January this year.

1. At this point something curious happened. Six days after Toyota Finance repossessed the motor vehicle, on 24 January 2011, Easy Dollar registered an interest under the Goods Act against the same vehicle. The nature of Easy Dollar's security interest in the goods is a little unclear. The only direct evidence before the Court as to the nature of Easy Dollar's security is a letter of demand it sent to Mr Crawley on 14 January 2011 which merely refers to " An outstanding debt with Easy Dollar Pty Ltd " which was then in default in an amount of $15,000. The letter declares that " Easy Dollar Pty Ltd exercises our right to obtain security through collection of your personal motor vehicle ." The basis for that right is otherwise unclear apart from the entry in the register which describes Easy Dollar's type of interest in the goods as a "mortgage". The Director-General was sufficiently satisfied to register Easy Dollar's interest in this form. The Registration of Interest in Goods Regulation 2004, Regulation 6(b)(iii) requires an applicant for registration to specify to the Director-General information about the type of interest claimed. The Court should therefore work on the basis that Easy Dollar also has a mortgage interest in the motor vehicle. To do otherwise would involve the Court in the Director-General's administrative functions, which it is ill suited to do.

1. In February 2011 Easy Dollar communicated with Toyota Finance inquiring as to whether there were any surplus funds that might be available after discharge of Mr Crawley's existing liabilities. Toyota Finance notified Easy Dollar that there was not expected to be any equity in the vehicle and requested Easy Dollar to remove its second registered encumbrance.

1. This request lead to a stand off. On 1 February 2011 Easy Dollar's Managing Director advised that its second registered interest would not be removed. On successive occasions on 2, 15 and 21 February 2011 Farrar Lawyers acting on behalf of Toyota Finance wrote to Easy Dollar requesting removal of Easy Dollar's second registered interest, but Easy Dollar declined.

1. These letters then led to telephone communications between Mr David Farrar, for Toyota Finance, and a Mr Mark Alexander, apparently a principal of Easy Dollar. The conversation made it quite clear that Mr Alexander had seen Mr Farrar's letters requesting the removal of Easy Dollar's interest. Mr Alexander acknowledged Toyota Finance's offer to protect Easy Dollar's second registered interest and pay any surplus received over and above the payment out of Toyota Finance's interest. But Mr Alexander asserted, " We are entitled to have our interest registered against the vehicle and I want to make sure that we are taken care of. I will take off the interest if Toyota pays us the amount that is owed by Mr Crawley. "

1. Mr Farrar reiterated that was not acceptable. He said "this sounds extortionate, there is no legal basis for you to withhold removal of the registration on the basis that you will be paid by Toyota now, and in effect reverse the order of registration of interest. " To which Mr Alexander replied " Well, if you want the interest removed then that is the price of it. "

1. Apart from encouraging Mr Alexander to " Give sensible consideration to this matter ", Mr Farrar left the matter there. Mr Farrar initiated further communication with Mr Alexander and Easy Dollar on 5 July 2011 but nothing has been heard from Easy Dollar since.

1. Toyota Finance's vehicle sales agents are unable to sell the vehicle on an unencumbered basis unless the Easy Dollar second ranking interest is removed.

1. Mr Farrar is prepared to give an undertaking to the Court on behalf of Toyota Finance that Toyota Finance will pay Easy Dollar any moneys received by Toyota Finance, upon the sale of the vehicle, that are surplus after the moneys owing to Toyota Finance under the business loan agreement are repaid.

The Statutory Framework

1. The Goods Act does not provide for what is to be done in this situation. The Goods Act provides for a system of registration of interests in prescribed goods, which relevantly include motor vehicles, in a register maintained by the Director-General of the Department of Fair Trading for the purposes of the Goods Act :-

"4 Register to be maintained

(1) The Director-General shall maintain a Register of Interests in Goods for the purposes of this Act.

(2) The Register may be maintained in or upon any medium, or combination of mediums, capable of having information recorded in or upon it or them.

(3) The Director-General may, from time to time, vary the manner or form in which the whole or any part of the Register is maintained.

(4) Section 24 of the Stamp Duties Act 1920 does not impose any duty or liability on the Director-General in relation to the making under this Act of a recording in the Register, and the Director-General is not concerned to inquire, before making a recording in the Register relating to a registrable interest in goods, whether the instrument giving rise to the registrable interest is liable to stamp duty, or is unstamped, or is insufficiently stamped."

1. The purpose of the register is principally to provide a mechanism for giving notice to persons of interests in goods which are in the possession of others. Under the Goods Act "registrable interest" is defined as: -

"'registrable interest' , in relation to goods, means:

(a) the interest in the goods of the person to whom is owed the obligation of which the performance is secured by a security interest to which the goods are subject,

(b) the interest in the goods of a lessor of the goods,

(c) the interest in the goods of the owner under a hire-purchase agreement relating to the goods, or

(d) any other prescribed interest in the goods,

whether arising under the law of New South Wales or of a participating State."

1. The Goods Act is administered by the Director-General: to whom an application is made for registration of a registrable interest in prescribed goods; and who has control of the register as Goods Act , s 5 provides:-

"5 Registration of interest in prescribed goods

(1) Application may be made for registration of a registrable interest in prescribed goods.

(1A) Such an application is not properly made unless:

(a) it is made in a manner approved by the Director-General and lodged with the Director-General, and

(b) it specifies the prime identifier of the goods concerned and such other information relating to the goods and the interest concerned as may be prescribed, and

(c) it is accompanied by the prescribed fee payable in respect of an application for registration or arrangements have been made with the Director-General for payment of the fee.

(2) If an application is properly made, the Director-General is to register the interest to which the application relates by recording in the Register the prime identifier of the goods and the prescribed information relating to the goods and interest.

(3) The Director-General may record in the Register a reference to other prescribed information, including information received from the Commissioner of Police in relation to prescribed goods reported to the Commissioner of Police as having been stolen or otherwise unlawfully obtained and may cancel or amend any such recording.

(4) A recording made under subsection (3) is not a recording of, and does not operate to create, a registrable interest in the goods to which the recording relates."

1. The register may be varied: Goods Act , s 6. But registration may only be cancelled in the limited circumstances provided for by Goods Act , s 7. The limitations on the availability of cancellation under s 7 have led to the present request by Toyota Finance for the Court to intervene in this matter. Goods Act , s 7 relevantly provides:-

"7 Cancellation of registration

(1) The Director-General may cancel the registration of an interest after the date ( the expiry date ) specified in the Register as the date on which the interest ceases to be a registrable interest and may cancel that registration before the expiry date if:

(a) a period of at least 7 years has elapsed since the current registration of the interest commenced, and

(b) (if the expiry date has been varied) a period of at least 7 years has elapsed since the date of the most recent variation of the expiry date.

(1A) The Director-General may cancel the registration of an interest under subsection (1) only if:

(a) the Director-General has given notice in writing to the person registered as the holder of the interest of the Director-General's intention to cancel the registration unless application is made for variation of the date specified in the Register as the date on which the interest ceases to be a registrable interest, and

(b) the person has not, within the period required by the notice, properly made application for the variation under section 6.

(2) Where:

(a) a registered interest ceases to be a registrable interest before its registration may be cancelled under subsection (1), and

(b) the prescribed documents are lodged with the Director-General, or the Director-General is, in a manner approved by the Director-General, otherwise notified that paragraph (a) applies,

the Director-General shall cancel the registration of the interest.

(3) Where:

(a) an interest, or a purported interest, in goods has been registered,

(b) it appears to the Director-General:

(i) that the interest has ceased to exist, or

(ii) that the interest never existed, and

(c) the Director-General is not authorised by subsection (1) or (2) to cancel the registration,

the Director-General may, by notice in writing given to the person registered as holder of the interest, require the person, within a period (being not less than 14 days) specified in the notice, to show cause why the registration should not be cancelled.

(4) If a notice has been given under subsection (3), the Director-General must, not earlier than the expiration of the period specified in the notice, cancel the registration of the interest to which the notice relates unless:

(a) cause has been shown why the registration should not be cancelled, or

(b) an order of the Tribunal staying or prohibiting the cancellation, or written notice of such an order, has been served on the Director-General.

(4A) A person to whom a notice has been given under subsection (3) may apply to the Tribunal for a review of any decision of the Director-General to cancel the registration of an interest to which the notice relates.

(5) A notice is sufficiently given to a person under subsection (1A) or (3) if it is given by post, and a proper address for that purpose is the address of the person recorded in the Register.

(6) The Director-General need not retain any record relating to an interest for more than 7 years after registration of the interest is cancelled."

1. The Goods Act provides for its own system of priority of registrable instruments: Section 10A. That system, excluding repairers liens and unregistered interests, neither of which are relevant in this case, is set up in s 10 A, (1) - (3), which provide as follows:-

"10A Priority of registrable interests

(1) A registered interest ranks in priority over any unregistered interest, with respect to all debts or other pecuniary obligations (including contingent obligations) and all other obligations secured under the registered interest whenever arising.

(2) Registered interests rank in priority in the order in which they are registered, with respect to all debts or other pecuniary obligations (including contingent obligations) and all other obligations respectively secured under them whenever arising.

(3) If the creditor in whom a registrable interest is vested (whether or not it is a registered interest) takes possession of the goods, that registrable interest ranks in priority over any registered interest with respect to those goods that was registered after possession of the goods was taken. This subsection applies despite subsections (1) and (2)."

1. Sections s 10 A(2) and (3) are relevant here. It is clear from my findings that Toyota Finance's interest in the subject vehicle has priority over Easy Dollar's interest under both sections 10 A(2) and (3). The priority under s 10A(2) arises because Easy Dollar's registered interest was only registered after Toyota Finance's interest. But Toyota Finance, it seems to me, can also take advantage of s10 A(3), because it has taken possession of the goods. By virtue of that fact, its interest ranks in priority over any registered interest with respect to those goods that was registered after the possession of the goods was taken. That is what happened here. There is no doubt here as to Toyota Finance's priority.

1. The immediate problem for Toyota Finance is that it cannot sell the goods at the best market price as an unencumbered vehicle without removing the Easy Dollar's registered interest. It appears to be unsaleable as an encumbered vehicle. But Easy Dollar will not agree to do this without being paid out in full, thereby substantially diminishing the value of Toyota Finance's prior security interest. The Goods Act itself provides no solution to this problem.

Solving the Problem

1. Mr Farrar comes before the Court today and seeks orders to the following effect:-

(1) An order that the defendant provide the prescribed documents within the meaning of section 7(2) of the Registration of Interests in Goods Act 1986 (NSW) and regulation 18 of the Registration of Interests in Goods Regulation 2004 (NSW) to the NSW Director-General of the Department of Fair Trading, to cancel the registration of the defendant's second ranking interest in respect of a 2008 Holden motor vehicle bearing NSW registration no. BHW-28V with VIN/Chassis no. 6G1EP42H39L196129 ( Vehicle ), within 24 hours of the Court so ordering.

(2)   In default of the defendant complying with order 1 above, an order that the Registrar of the Court be empowered to execute all such documents and do all such things in the name of the defendant as may be necessary to enable the cancellation of the defendant's second ranking interest in respect of the Vehicle.

(3)   Costs on an indemnity basis, or alternatively, on the ordinary basis against the defendant.

1. But it seems to me there are problems with making orders in this form. Principal among these problems is a difficulty with the form of the documents prescribed for the purpose of G oods Act , s 7(2), which Toyota Finance asks the Court to direct Easy Dollar to send to the Director-General. Registration of Interest in Goods Regulation 2004 requires particular documents to be submitted for the cancellation of the registration of interests. The Registration of Interests in Goods Regulation 2004, Regulation 18 imposes specific requirements about the particulars to be supplied:-

"18 Cancellation of registration of interests

For the purposes of section 7 (2) (b) of the Act, the prescribed

document is a document signed by the creditor who has the

registered interest in a motor vehicle or boat, or by an agent of the creditor, setting out the following particulars:

(a) the date on which the interest ceased to be a registrable interest,

(b) the creditor's reference number for that interest,

(c) if the creditor is an account customer, the creditor's account

number."

1. But it is quite unclear on the form of the orders now being sought: (1) as to the date on which the documents to be signed by Easy Dollar should declare that its interest ceased to be a registrable interest; and (2) the terms upon which easy Dollar's otherwise valid mortgage interest has ceased to be a registrable interest.

1. Also the orders that Toyota Finance seeks in effect require Easy Dollar to declare to the Director-General that it has ceased to have a registrable interest in the goods at a particular date. Although this form of order was foreshadowed in the Summons, I am reluctant to make it in this form also because if Easy Dollar does not comply with order 1 then the default order will require the Court's Registrar to provide a prescribed document to the Director-General without the Registrar being able to inform the Director-General as to the date on which Easy Dollar's interests "ceased to be a registrable interest": Regulation 18 A.

1. There is yet another difficulty. The mechanism which Toyota Finance proposes for the sending of Goods Act , s 7(2)B prescribed documents is a mechanism which Regulation 18 assumes is satisfied by prescribed documents being sent "by an agent of the creditor." It is not clear that the Director-General will readily accept the Registrar's document as directed by the Court under the proposed default order (2) in satisfaction of Regulation 18 as a prescribed document issued " by an agent of the creditor ". For that reason it is also appropriate, in my view, for a copy of these reasons to be provided to the Director-General. The Director-General may wish to indicate, whether or not in default of Easy Dollar supplying the prescribed Regulation 18 documents, that the Director-General will act under the Goods Act on a document from the Registrar. That difficulty will be overcome I expect if it is made clear to the Director-General that the Registrar should be treated as a result of the Court's orders as Easy Dollar's agent to sign the prescribed Regulation 18 documents. The Court's Registrar often assumes that status where default signing orders of this kind are made and executed.

1. Easy Dollar has a right to the proceeds of sale of the goods next in priority after Toyota Finance: Lane v Horlock (1853) 1 Drew 587 at 616; 61 ER 576 at 586 and Deputy Commissioner of Taxation v Horsburgh (1983) 2 VR 591 at 598. If Toyota Finance gives an undertaking to the Court to pay any surplus to Easy Dollar, then Easy Dollar will be in the same position that it would have been had its interest in the goods remained registered under the Goods Act. There is no suggestion here of any other competing interest in the goods. Easy Dollar should have a final opportunity to contest the form of relief now proposed. Once that happens the course which is (1) consistent with the Director-General's orderly administration of the Goods Act, and (2) preserves the interest of the prior encumbrancer, Toyota Finance, is that provided for in the next paragraph.

1. It seems to me that the practical and better course is: to require Toyota Finance to serve a copy of this judgment and the orders that I will make today upon Easy Dollar in the same way that other documents have been served; to serve this judgment upon the Director-General; and to require that if Easy Dollar does not within a period of 7 days of today seek to defend this action and maintain its registered interest in the goods, that the Court will direct the Registrar to sign and submit to the Director General a Regulation 18 document which indicates that Easy Dollar's interest in the goods has ceased to be a registrable interest; and to substitute the plaintiff's undertaking for the defendant's registrable interest as at a particular date on or after 11 August 2011. In that way the Registrar will have a clear direction as to what information the Registrar should supply to the Director-General and Easy Dollar will have a final opportunity to contest these orders.

1. Therefore the orders that the Court will make are:

(1) A copy of these orders and the reasons for decision be served upon the defendant by Friday 5 August 2011.

(2) I will adjourn the proceedings for further hearing to Thursday 11 August 2011 on which occasion the defendant will be required to show cause to establish its interest in the goods and to show cause why the registration of its interest in the goods should not be cancelled on or after 11 August 2011 in exchange for the defendant's undertaking to the Court to pay the surplus of any proceeds of sale of the goods to Easy Dollar after the payment out of obligation of the debtor secured by the plaintiff's mortgage over the goods.

(3) Direct the plaintiff to provide a copy of these reasons to the Director-General, Department of Fair Trading.

(4)   I grant liberty to apply.

Decision last updated: 04 August 2011