Wilde v Australian Trade Equipment Co Pty Ltd

[1981] HCA 13

HIGH COURT OF AUSTRALIA

Gibbs, Stephen, Murphy, Aickin and Wilson JJ.

WILDE v. AUSTRALIAN TRADE EQUIPMENT CO. PTY. LTD.

(1981) 145 CLR 590

13 March 1981

Companies

Companies—Charge—Registration—Order extending time to register—Charge registered in reliance upon order—Order subsequently set aside—Effect—Companies Act, 1961 (Q.), ss. 100, 103, 106.

Decisions

1981, March 13.
The following written judments were delivered: -
GIBBS J. The difficult question that arises in this case is whether the respondent, the grantee of a bill of sale, is entitled to priority over the creditors of the company which granted the bill of sale, and is now in liquidation. (at p593)

2. The bill of sale bears the date 6th March 1979. It was not registered within thirty days after the creation of the charge, and so will be void against the liquidator and any creditor of the company, under s. 100(1) of the Companies Act, 1961 (Q.), as amended,("the Act"), unless the circumstances about to be mentioned render it valid or require to to be treated as valid. On 23rd April 1979 the respondent made application to a judge in chambers for an order extending the time for the filing of the bill of sale, and dispensing with the production of a statement of the prescribed particulars. The application was prompted by the fact that the respondent had been advised that the company, the grantor of the bill of sale, had apparently ceased to carry on business and that chattels possibly subject to the bill of sale were being removed from its premises. The application was heard on the same day ex parte and was granted, but the order for extension of time was made subject to the usual provision that it was to be "without prejudice to any rights which may have been or may be acquired against the holders of the charge prior to the time of actual registration". On the same day the charge was registered and the Assistant Commissioner for Corporate Affairs gave a certificate of registration which, omitting formal parts, was in the following terms:
"This is to Certify that a Bill of Sale Dated the Sixth day of March, 1979 created by B. W. FURNITURE PTY. LIMITED in favour of AUSTRALIAN TRADE EQUIPMENT CO. PTY. LTD. to secure Plant and Equipment to the value of Thirty Seven Thousand Dollars ($37,000.00) has this day been registered and numbered 16050 in the Register of Charges.
Given under my hand and Seal at Brisbane
this twenty third day
of April 1979."
Also on the same day a petition was presented for the winding up of the company. It is not known whether the petition was presented before or after the abovementioned order was made. An order for the winding up of the company was made on that petition on 2nd May 1979. (at p594)

3. The decision of this Court in Commercial Banking Co. of Sydney Ltd. v. George Hudson Pty. Ltd. (In liq.) (1973) 131 CLR 605 establishes that an application for an extension of time under s. 106 of the Act should not be granted without giving an opportunity to those whose interests might be adversely affected to be represented at the hearing. If the creditors had been represented, and had drawn attention to the fact that the company appeared to be insolvent, doubtless an order would have been refused. Moreover, although under s. 106 an order may be made for the rectification of omissions and mis-statements in the statement of prescribed particulars, the section does not empower the court to dispense altogether with the filing of such a statement. Unfortunately, the attention of the learned chamber judge was not drawn to these matters. However, on 4th May 1979, on an application made by the liquidators of the company (the present appellants), and opposed by the respondent, the learned chamber judge set aside the order which he had made on 23rd April. It was said in Commercial Banking Co. of Sydney Ltd. v. George Hudson Pty. Ltd.(In liq.) (1973) 131 CLR, at p 621 , and repeated in Re Davelco Equipment Pty. Ltd. (1974) Qd R 247, at p248 , that an order made under s. 106 extending the time for registration of a charge is made without jurisdiction if the interested parties were not given an opportunity to appear in opposition to its making. The word "jurisdiction" in those passages meant power or authority; what was meant was that an order in those circumstances would have been wrongly made. The order of 23rd April was made within jurisdiction, but in any case, having been made by a judge of a superior court, it was not void but voidable. Since it was made ex parte, the judge had power to set it aside, as he did. (at p595)

4. It is clear that the proviso to the order of 23rd April does not assist the appellants, since it has not been proved that the winding up order took effect before the charge was registered; it has therefore not been proved that the rights of the liquidators or the creditors had affected the property the subject of the charge before the order extending time was made: In re Anglo-Oriental Carpet Manufacturing Co. (1903) 1 Ch 914 ; In re Ehrmann Brothers Ltd.; Albert v. Ehrmann Brothers Ltd. (1906) 2 Ch 697 . (at p595)

5. The first question for decision is whether, putting aside the possible effect of s. 103 (2) and of the issue of the certificate, the charge is void against the appellants for non-compliance with s. 100 (1). In my opinion that question should be answered in the affirmative. The provisions of s. 100 (1) were not complied with: the documents were not lodged for registration within the time fixed by that sub-section. There is no subsisting order for an extension of time under s. 106. Therefore s. 100 (1) operates, and renders the charge void against the liquidator and any creditor. Of course, the registration was perfectly valid when it was effected, and the certificate was properly issued. The voidable order of 23rd April remained good until it was set aside, and supported what had been done under it: cf. MacFoy v. United Africa Co. Ltd. (1962) AC 152, at p 160 . But once the order was set aside that support was removed; what remained was a charge registered out of time, with no order for extension of time continuing in existence. "Without the order the registration is out of time and ineffective.": Commercial Banking Co. of Sydney Ltd. v. George Hudson Pty. Ltd. (In liq.) (1973) 131 CLR, at p 614 . I find it impossible to suppose that an order wrongly made per incuriam and promptly revoked should forever continue to have the same effect as if it had never been set aside. If that were so, as D.M. Campbell J. pointed out in the Full Court, it would mean that a successful appeal against an order extending the time for registration could not undo the fact of registration. But in my opinion when the order was set aside, there no longer remained the one thing that prevented s. 100 (1) from avoiding the charge against the appellant. What I have said is, of course, subject to the effect of the certificate. In oppostion to this view some reliance was placed on two cases in which it was held that an act of bankruptcy was constituted by a failure to comply with a bankruptcy notice founding on a default judgment which was later set aside: Re Hanby; Ex parte Flemington Central Spares Pty. Ltd. (1967) 10 FLR 378 ; Re Hayes; Ex parte Thomas Borthwick &Sons (Australasia) Ltd. (1970) 18 FLR 216 . Those decisions were based on the settled principle that the critical time for determining whether an act of bankruptcy has been committed is the date on which the period limited by the bankruptcy notice expired. If the debtor has not within that time moved to set aside the bankruptcy notice, and if he has failed to comply with it, he has committed an act of bankruptcy, even if the default judgment was wrongly obtained and is later set aside. Of course in such a case it remains necessary for the petitioning creditor, whether original or substituted, to prove the existence of the requisite debt. Those decisions seem to me to have no bearing on the present case. (at p596)

6. The second, and more puzzling, question is whether, notwithstanding the fact that the order of 23rd April was set aside, the certificate is conclusive evidence that the charge is validly registered. Section 103 (2) of the Act provides as follows:
"The Commissioner shall issue a certificate of every registration stating if applicable the amount secured by the charge and the certificate shall be conclusive evidence that the requirements as to registration have been complied with."
The provisions of corresponding sections in England have been given a wide effect, and in two cases it has been held that "the requirements as to registration" include the requirement as to the time within which the charge is to be lodged for registration: In re Eric Holmes (Property) Ltd. (1965) 1 Ch 1052 and In re C. L. Nye Ltd. (1971) 1 Ch 442 . In those cases particulars which incorrectly stated the date of the charge were lodged for registration within the prescribed time after the date so stated but not within the prescribed time after the true date. In each case the certificate was held to be conclusive. The respondent naturally places strong reliance on those cases, which follow a number of earlier decisions in which, however, the error in the particulars did not concern the date. As has been pointed out in the authorities, the requirement that a charge shall be registered is intended to enable persons who are minded to deal with companies to be able, by searching the register, to find out whether the company has encumbered its property or not. In other words the provisions are intended to protect persons who may become unsecured creditors of the company. On the other hand, the provision making the certificate conclusive is intended for the protection of the person entitled to the charge. The documents may be lodged for registration by the company or by any person interested, but it appears from the provisions of s. 101 that the primary duty lies on the company. The grantee of the charge may therefore not see the particulars lodged for registration and may be neither aware of nor responsible for erros in them. The object of s. 103 (2) is to give security to persons relying on the certificate: In re C. L. Nye Ltd. (1971) 1 Ch, at pp 469, 474 , and to protect secured creditors from being faced with technical objections to the sufficiency of the registration: see National Provincial and Union Bank of England v. Charnley (1924) 1 KB 431, at p 453 . To achieve these purposes, a certificate is made conclusive evidence of due registration even if the particulars lodged for registration were defective and misleading, and even if in fact the charge was not properly registered: National Provincial and Union Bank of England v. Charnley (1924) 1 KB, at p 448 . The unsecured creditors may, however, have remedies against the grantee of the charge if the latter was guilty of fraud: In re C. L. Nye Ltd. (1971) 1 Ch, at p 474 . (at p597)

7. There is, however, in my respectful opinion a vital point of distinction between the present case and those cases in which a certificate has been held to be conclusive evidence of proper registration although there was no proper registration in fact. In the present case the certificate shows on its face that registration was effected after the period of thirty days mentioned in s. 100 (1) had expired. Of course s. 100 (1) in terms requires that the documents should be lodged for registration within thirty days, and not that registration should be effected within that period. But s. 103 (1) requires the Commissioner to keep a register of all charges lodged for registration, and s. 106 appears to assume that the date of lodgment and the date of registration will be the same. In the ordinary course of events registration will follow forthwith upon lodgment, and a certificate that shows that a charge dated 6th March was not registered until 23rd April suggests that lodgment for registration was not made within the time prescribed. Of course further information may reveal that the registration was validly effected. It may appear that lodgment was duly made within the period of thirty days but that by reason of the issue of an injunction or other process preventing the Registrar from proceeding to perform his duties registration was delayed. Another possibility is that an order had been made under s. 106 extending the time for registration. But a certificate which raises a doubt of this kind is not one on which any party can safely act without inquiring further. Inquiry in the present case will reveal that the lodgment was made out of time and that there is not in existence any order under s. 106. (at p598)

8. The certificate to which s. 103 (2) refers must be one that is sufficient in form. For example, a certificate that omitted the name of the company which created the charge, or that of the person entitled to the charge, would not be conclusive evidence of anything. Further I consider that a certificate cannot be conclusive evidence of something which its own words contradict. In the unlikely case of a certificate endorsed with the notation, "Particulars lodged out of time", it seems unthinkable that the certificate would be conclusive evidence that the particulars were lodged within time. In the present case the certificate may be conclusive that all the requirements of registration have been complied with except the requirement that the documents be lodged for registration within thirty days, but it cannot be evidence of the fulfilment of that requirement when it indicates on its face that it was not fulfilled. If the order of 23rd April had not been set aside, no doubt the order and the certificate in conjunction would have provided the person entitled to the charge (i.e. the respondent) with the security which the sub-section is intended to provide. (at p598)

9. For these reasons I hold that the certificate is not conclusive evidence that the requirements of s. 100 (1) were satisfied and does not require the court to hold, contrary to the truth, that the charge is valid against the appellants. In other words, in my respectful opinion the existence of the certificate does not have the result that the position of the parties has been irrevocably affected by a slip which the court made but almost immediately corrected. (at p598)

10. I would allow the appeal. (at p598)

STEPHEN, MURPHY AND WILSON JJ. The appellants are the liquidators of Blackburn Industries Pty. Ltd. ("the grantor"), a company which on 6th March 1979 under its then name of B. W. Furniture Pty. Ltd. granted security by way of a bill of sale over its property in favour of the respondent. The charge was one to which Div. 7 of Pt IV of the Companies Act, 1961 (Q.) ("the Act") applied, with the consequence that failing registration pursuant to s. 100 the security would be void against the liquidator and any creditor of the grantor. (at p598)

2. This appeal is concerned with that question. On 2nd May 1979 the appellants instituted proceedings in the Supreme Court of Queensland by way of originating summons, seeking, inter alia, a declaration that the bill of sale to which we have referred "is void against . . . (them) . . ., it not being registered pursuant to s. 100 of the Act prior to the commencement of the winding up". The matter was heard by Hoare J., who refused to make the declaration, and his decision was upheld on appeal to the Full Court (W. B. Campbell and Dunn JJ., D. M. Campbell J. dissenting). The appellants now appeal to this Court. (at p599)

3. Before recounting the sequence of events touching the registration around which the controversy revolves, it is convenient to set out the relevant provisions of the Act. They are as follows:
"100. (1) Subject to this Division, where a charge to which this section applies is created by a company, there shall be lodged with the Commissioner for registration within thirty days after the creation of the charge a statement of the prescribed particulars and - (a) the instrument (if any) by which the charge is created or evidenced; or
(b) a copy thereof together with a statutory declaration verifying the execution of the charge and also verifying the copy as being a true copy of the instrument,
and if this section is not complied with in relation to the charge the charge shall, so far as any security on the company's property or undertaking is thereby conferred, be void against the liquidator and any creditor of the company. . . .
(10) Where a charge requiring registration under this section is created before the lapse of thirty days after the creation of a prior unregistered charge, and comprises all or any part of the property comprised in the prior charge, and the subsequent charge is given as a security for the same debt as is secured by the prior charge, or any part of that debt, then to the extent to which the subsequent charge is a security for the same debt or part thereof, and so far as respects the property comprised in the prior charge, the subsequent charge shall not be operative or have any validity unless it is proved to the satisfaction of the court that it was given in good faith for the purpose of correcting some material error in the prior charge or under other proper circumstances and not for the purpose of avoiding or evading the provisions of this Division." . . .
103. (1) The Commissioner shall keep a register of all the charges lodged for registration under this Division and shall enter in the register with respect to those charges the following particulars: -
(a) in the case of a charge to the benefit of which the holders of a series of debentures are entitled, such particulars as are required to be contained in a statement furnished under sub-section (5) of section one hundred; and
(b) in the case of any other charge -
(i) if the charge is a charge created by the company, the date of its creation, and if the charge was a charge existing on property acquired by the company the date of the acquisition of the property;
(ii) the amount secured by the charge; (iii) a description sufficient to identify the property charges; and (iv) the name of the person entitled to the charge.
(2) The Commissioner shall issue a certificate of every registration stating if applicable the amount secured by the charge and the certificate shall be conclusive evidence that the requirements as to registration have been complied with. . . .
106. The Court, on being satisfied that the omission to register a charge (whether under this or any corresponding previous enactment) within the time required or that the omission or mis-statement of any particular with respect to any such charge or in a memorandum of satisfaction was accidental or due to inadvertence or to some other sufficient cause or is not of a nature to prejudice the position of creditors or shareholders or that on other grounds it is just and equitable to grant relief, may on the application of the company or any person interested and on such terms and conditions as seem to the Court just and expedient order that the time for registration be extended or that the omission or mis-statement be rectified." (at p600)

4. We turn now to the facts, none of which are in dispute. The charge was created on 6th March 1979. Section 100 required that a statement of the prescribed particulars together with the instrument be lodged with the Commissioner for Corporate Affairs for registration within thirty days, but for various reasons this was not done. Notwithstanding that the Act (s. 102) makes it an offence for a grantor of a charge to fail to comply with s. 100, the grantor in this case does not appear to have concerned itself at all with such compliance. On the other hand, the respondent was very much concerned to have its security registered, particularly when matters came to its knowledge suggesting that a winding-up of the grantor was likely. It applied to a judge in chambers for an order pursuant to s. 106 extending the time for registration. The application was made ex parte on a summons issued on 23rd April 1979, returnable at 2.30 p.m. on the same day. It was supported by an affidavit which outlined the reasons for the delay in effecting registration, and informed the judge that the grantor had apparently ceased to carry on business and that information had been received to the effect that action was being taken to put the company into liquidation. The respondent further informed the judge that it was unable to secure the completion by the grantor of the statement of prescribed particulars required by s. 100. The learned judge extended the time for registration to include the 24th April, subject to a proviso directed to preserving "any rights which may have been or may be acquired against the holders of the charge prior to the time of actual registration". He also dispensed with the lodging of a statement of particulars with the charge. Armed with this order, the respondent lodged the charge for registration during the afternoon of 23rd April. The precise time of lodgment is not known. The Commissioner for Corporate Affairs subsequently issued his certificate dated 23rd April 1979 in the terms required by s. 103 (2). (at p601)

5. Another event of potential significance occurred on 23rd April 1979, when a petition was presented for the winding-up of the grantor. The precise time when the petition was presented is not known. Proceedings on the petition were pursued as a matter of urgency, and on 2nd May 1979 the company was ordered to be wound up, and the appellants were appointed liquidators. By virtue of s. 103 (2) of the Act the winding-up is deemed to have commenced at the time of the presentation of the petition for winding-up, but as we have indicated, apart from knowing that that event occurred at some time on 23rd April, the precise time is unknown. (at p601)

6. The actual time of presentation, had the appellants been able to prove that it occurred prior to the registration of the charge by the respondent, was a matter of critical importance, because in that event, by reason of the proviso to which the exension of time for registration was subject, the charge would have been void as against them. (at p601)

7. The appellants immediately applied on notice to the respondents for an order that the extension of time for registration granted on 11rd April be set aside, and on 4th May that order was made. (at p601)

8. It is against the background of these events that the question on which this appeal depends is to be determined. As we have said, the appellants claim is for a declaration that the charge is void against them for the reason that it was not registered before the commencement of the winding-up. Mr. Williams, counsel for the appellants, puts his case very succinctly. He argues that the essential foundation of a valid registration in this case is a valid and subsisting order extending the time within which that registration may be effected. Without such an order, the documents were not lodged for registration within thirty days with the result that the charge was void against the liquidators. The submission is that because the order extending time was set aside it necessarily follows that it was set aside ab initio with the result that there never has been and is not now an order which could form the legal foundation for a registration out of time. (at p602)

9. But although the submission may be stated shortly and simply, there are substantial difficulties in the way of its acceptance. In the first place, it is not seriously contended that the order exending time was made without jurisdiction. It is true that the procedure that was followed was irregular in that the Rules made under the Companies Act (r. 54) contemplate that an application under s. 106 for an extension of time will not be heard ex parte; it was also unusual, at least so far as Australian practice is concerned (cf. Gough on Company Charges, p. 347) that such an order be made not merely in the absence of evidence of the solvency of the company but in the light of evidence pointing to a contrary conclusion. Of course, the order was conditioned by the usual proviso saving any rights in respect of the property acquired prior to registration. (at p602)

10. It may be that a further objection could have been made concerning the propriety of the procedures that were followed, although little attention was directed to it in the course of argument. It would be that the learned judge had no power to dispense with the lodgment of a statement containing the prescribed particulars. The "terms and conditions" which the court is empowered by s. 106 to attach to an order extending time must be pertinent to the possible effect or consequences of such an extension of time. The section does not confer a general authority to dispense with the requirements of registration. (at p602)

11. But notwithstanding that these mistakes were made, the fact remains that at the time when the documents were presented for registration on 23rd April there was a valid order extending time and thereby to that extent enabling due compliance with ss. 100 and 103. It will have been noted that s. 100 (1) opens with the words "Subject to this Division", thereby accommodating the provisions of the section to those of s. 106. It does not assist the appellant to argue, whether rightly or wrongly, about lack of jurisdiction. In Cameron v. Cole (1944) 68 CLR 571, at p 590 , Rich J. said: "It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside". See also Posner v. Collector for Inter-State Destitute Persons (Vict.) (1946) 74 CLR 461, at p 489 . (at p602)

12. In the second place, registration having been effected on 23rd April, the Commissioner performed his statutory duty to issue his certificate. By virtue of s. 103 (2), that certificate is "conclusive evidence that the requirements as to registration have been complied with". (at p603)

13. The appellants then are confronted with two significant facts which were in existence when they sought to have the order extending time set aside, namely, the fact of a registration effected within the extended time, and the fact of a certificate of the Commissioner having the effect and operation accorded to it by the statute. It seems to us that the second of these two facts must be evaluated, in the light of the appellants' submission, separately from the first. The essential question is as to the effect if any of the order setting aside the extension of time. Mr. Williams argues that the discharge of the ex parte order necessarily deprives the registration that was effected in reliance on that order of its efficacy as against the liquidator. The registration is as if it had never been, it is void ab initio as against the liquidator. We pause to remark that if the argument is a good one the registration should be wholly void, not merely as against the liquidator. But in any event the consequence that will follow an order setting aside an earlier decision will vary from case to case. So long as the earlier decision stands, and no stay is operative, it is a lawful decision and the action taken in reliance upon it is lawful. It is true that from the moment it is set aside the order can no longer provide the lawful justification for further action, but whether what has been done can be undone will depend upon the availability of appropriate remedies, to bring about the appropriate relief. If s. 106 conferred on the court a power to remove a registration from the register then clearly on the facts of this case such action would be appropriate consequent on the order setting aside the extension of time. But it is quite clear that s. 106 does not empower the court to remove a registration as distinct from rectifying an entry: cf. per Russell L.J. in In re C.L. Nye Ltd. (1971) 1 Ch 442 at 474 . Again, the cases of Re Hanby; Ex parte Flemington Central Spares Pty. Ltd. (1967) 10 FLR 378 and Re Hayes; Ex parte Thomas Borthwick &Sons (Australasia) Ltd. (1970) 18 FLR 216 provide illustrations where a judgment, although subsequently set aside, has nevertheless provided the occasion for an event of lasting significance, in these cases the commission of an act of bankruptcy. (at p603)

14. We are unable to escape the conclusion that the order extending time was beyond recall so soon as registration had been effected in reliance upon it, and once those steps were taken the operation of the order could not be undone retrospectively. It follows that the validity of the registration was not dependent on the continued subsistence of the order extending time, and consequently the order setting aside the extension of time could not affect the registration that had already been concluded. Of course, the qualification on which the extension of time was conditioned continued in effect in any event because it had become incorporated into the subject matter of the charge itself. (at p604)

15. This conclusion is supported by considerations touching the certificate. The certificate is conclusive evidence that "the requirements as to registration" have been complied with. Mr. Williams argued that if on its face the certificate shows that registration was not effected within thirty days from the date of the creation of the charge then it will not avail to sustain the charge against the liquidator unless it is supported by a subsisting order extending the time for registration. But such an argument fails to regard the clear and unqualified words of s. 103 (2). The certificate is conclusive of compliance with "the requirements of registration". We find these requirements in s. 100 read in the light of s. 106. They are that the relevant documents be lodged with the Commissioner for registration within thirty days or such extended time and subject to such terms and conditions as the court pursuant to s. 106 may require. (at p604)

16. In this case, therefore, it cannot be said, having regard to the certificate, that the charge was not validly registered so as to be void against the liquidator. Although it is always appropriate to go behind the certificate to the instrument itself to discover the details concerning the charge and to any order of the court to discover any terms and conditions that may have been imposed on late registration, one cannot go behind the certificate to challenge the propriety of the registration itself. Any other conclusion would amount to a denial of the plain words of the section. (at p604)

17. Mr. Williams relied on a passage in the judgment of Menzies J. in Commercial Banking Co. of Sydney Ltd. v. George Hudson Pty. Ltd. (In liq.) (1973) 131 CLR 605, at p 614 . This was an appeal from a decision of the Supreme Court of Queensland (Hart J.) setting aside an order extending time which had been made by the Registrar of the Court in purported pursuance of s. 106. The Registrar's authority to deal with the application was founded on O. 65, r. 1A of the Supreme Court Rules, on the basis that it was unopposed. However, the High Court (Menzies, Walsh and Stephen JJ.) held that having regard to the fact that a provisional liquidator had been appointed in New South Wales and that there might be unsecured creditors whose interest could be affected by a late registration, the application could not be regarded as "unopposed" unless an opportunity had been given to them to be represented on the hearing of the application. A second question that was argued in the case was the standing of the Queensland liquidator to appeal from the Registrar's decision as a person "adversely affected" by the order (Company Rules, r. 8). In dealing with this argument, Menzies J. said (1973) 131 CLR, at pp 613-614 :
"It can be said that it was not the order extending time but the actual registration within the extended time that affected the liquidator, but as that registration could not have been made had the order extending time not been granted, I consider that the liquidator, when appointed, was affected by the order. It had given the bank the opportunity to perfect its security against the liquidator and so improve its position vis-a-vis the liquidator when appointed. It was to achieve this very result that the application was made and it would be to depart from reality to regard the order as one not affecting the liquidator. Without the order the registration is out of time and ineffective. In short, the order, by making late registration effective, does adversely affect the liquidator in relation to the assets of the company in Queensland" (emphasis added).
The sentence which we have emphasized is the statement upon which Mr. Williams relies to support his proposition that the effect of an order setting aside an extension of time is necessarily to render the registration ineffective as against the liquidator, notwithstanding the existence of a certificate. But with respect we do not think that his Honour is speaking to either limb of Mr. Williams' problem at all. His attention in this passage is not directed to the effect of a certificate nor to the effect on registration of an order setting aside an extension of time. There was no evidence before Hart J. that a certificate had been issued, and no argument was directed to the question of its effect had it been issued; although the point was mentioned in argument in the High Court, no member of the Court took it up (see per Walsh J. (1973) 131 CLR, at p 620 ). In our opinion, Menzies J. is saying simply that of course the liquidator was adversely affected by the Registrar's order because without it the charge could not be registered and was therefore ineffective as against the liquidator. The point becomes clear if the following sentence is understood as saying "In short, the order, by making late registration" (possible and therefore) "effective, does adversely affect the liquidator in relation to the assets of the company in Queensland". It follows from what we have said that we do not find Hudson to be of assistance in the present case. (at p606)

18. Mr. Williams urged upon the Court the demands of justice, and the consequent necessity of the Court finding some way of preferring the liquidators and through them the unsecured creditors of the grantor to the security over the property which the respondent had perfected by means of an irregular, though bona fide, procedure. We are by no means sure that the demands of justice can be identified so easily. It is apparent that, consistently with the due operation of the words of the statute, the proviso to the order extending time protects the rights of third parties who might otherwise have suffered prejudice by reason of the extension. It is accepted that the unsecured creditors of an insolvent grantor company will acquire through the liquidator an interest in the property of the company only from the time of presentation of a petition for winding-up. If it is a question of undue preference to a creditor, other provisions of the Act will be available in an appropriate case. It may be remarked that relief of this latter kind was sought initially in the present proceedings, but the claim was not pursued. (at p606)

19. The conclusion to which we have come is consistent with an impressive body of authority in the United Kingdom, including In re Yolland, Husson &Birkett Ltd.; Leicester v. Yolland, Husson &Birkett Ltd. (1908) 1 Ch 1552 ; Cunard Steamship Co. Ltd. v. Hopwood (1908) 2 Ch 564 ; National Provincial and Union Bank of England Ltd. v. Charnley (1912) 1 KB 431 ; In re Eric Holmes (Property) Ltd. (In liq.) (1965) 1 Ch 1052 ; In re Mechanisations (Eaglescliffe) Ltd. (1966) Ch 20 and In re C. L. Nye Ltd. (1971) 1 Ch 442 . (at p606)

20. These cases were all concerned with the conclusive character of a certificate of registration in the light of statutory provisions which are substantially in the same terms as those with which we are concerned. In National Provincial and Union Bank of England v. Charnley (1924) 1 KB, at p 453 , Atkin L.J. spoke of the object pursued by the legislature:
". . . the Legislature, while imposing upon companies the obligation of registration in the interest of their creditors or other persons having dealings with them, was quite alive to the difficulties which that very obligation to register might cause to the holders of the company's securities. Every one is familiar with the technical points that have been raised from time to time under the Bills of Sale Acts, and with the fact that constantly bills of sale given in good faith have been defeated by non-compliance with the requirements of those Acts, and the Legislature, having that in view, intended to protect the secured creditors of companies from similar difficulties arising from having to comply with the technical requirements of registration, by providing that the registrar shall exercise his own judgment as to what he will register, and that when once he has certified that the mortgage or charge is registered the title of the creditor to his security shall be unassailable on the ground of the insufficiency of the registration." (at p607)

21. On the question of the meaning of the certificate, the same Lord Justice (1924) 1 KB, at p 452 cited with approval a passage from the judgment of Cozens-Hardy M.R. in In re Yolland (1908) 1 Ch, at pp 158-159 as follows:
"That means not merely that he" (i.e. the Commissioner) "has done his mechanical duties, but that that has been done which is required to be done by any person upon whom a duty is imposed by this Act in order to get the benefit of the security, including the company itself."
In several of these cases the problem arose because of inaccuracy of the particulars which were entered in the register, for example, an incomplete or erroneous description of the property the subject of the charge, or a mistake in the amount secured. It has been established that in order to discover the terms and effect of the charge one must look at the document creating the charge and not at the register: cf. In re Mechanisations (Eaglescliffe) Ltd. (1966) 1 Ch 20, at pp 35-36 . But Holmes (1965) 1 Ch 1052 and Nye (1971) 1 Ch 442 were different. The facts were similar. The instrument creating the charge in each case was left undated at the time of its execution, and registration was not effected within the prescribed time. Subsequently each document was given a date which bore no relation to the date of creation of the charge, and was registered apparently within time. Notwithstanding the impropriety, the Commissioner's certificate was upheld as conclusive in each case. The earlier cases have been followed in Australia: Richard Brady Franks Ltd. v. Price (1937) 37 SR (NSW) 37, at p 47 . (at p607)

10. Counsel for the appellant sought to distinguish the English cases on two grounds. He observed that the English legislation does not include the provision found in sub-s. (10) of s. 100. In the second place, he rightly points out that in none of the reported cases was registration effected by virtue of an order extending time which was subsequently set aside. In our opinion, neither point renders the reasoning of these cases inapplicable to the present facts. Section 100 (10) does not lead to a different complexion being placed on s. 103 (2). As to the second consideration, we would have thought, with respect, that the cases of Holmes and Nye, where registration was effected in reliance upon a date which was wholly unauthorized, afforded more striking illustrations of the efficacy of a certificate than the present case where registration was effected under the authority of a court order which was valid and operative at the material time. (at p608)

11. We would dismiss the appeal. (at p608)

AICKIN J. In this matter I have had the advantage of reading the joint reasons for judgment of Stephen, Murphy and Wilson JJ. I agree with their reasons and their conclusion that this appeal should be dismissed. There is nothing I can usefully add. (at p608)

Orders

Appeal dismissed with costs.