Polymers International Limited v Toon
[2013] NZHC 1897
•30 July 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-001437 [2013] NZHC 1897
UNDER the Personal Property Securities Act 1999, and the Companies Act 1993
BETWEEN POLYMERS INTERNATIONAL LIMITED
Applicant
ANDVICTORIA TOON and DENNIS WOOD First Respondents
INTERWORLD PLASTICS N Z LIMITED (in liquidation)
Second Respondent
Hearing: 4 July 2013
Counsel: P Moodley for Applicant
G Blanchard for Respondents
Judgment: 30 July 2013
JUDGMENT OF ASHER J
This judgment was delivered by me on Tuesday, 30 July 2013 at 11am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Brookfields Lawyers, Auckland. C Taylor, Auckland.
G Blanchard, Auckland.
POLYMERS INTERNATIONAL LTD v TOON [2013] NZHC 1897 [30 July 2013]
Introduction
[1] This originating application concerns whether the registration of a financing statement under the Personal Property Securities Act 1999 was invalid because of errors and omissions in the statement that was filed.
[2] Polymers International Ltd (Polymers) supplied polymer products to Interworld Plastics N Z Ltd (in liquidation). On 30 July 2002, Polymers and Interworld Plastics N Z Ltd (Interworld) entered into a credit arrangement on the basis that Polymers would supply material to Interworld, and as security for payment for that material under each contract for sale and purchase of goods, Interworld granted Polymers a security interest.
[3] Polymers registered a financing statement under the Personal Property Securities Act 1999 (PPSA) against Interworld as debtor on 14 September 2007. It is accepted that the financing statement failed to comply with the requirements of the PPSA and the Personal Properties Securities Regulations 2001 (the Regulations) in three respects.
(a) It did not include the debtor company’s unique incorporation number.
(b) It did not correctly classify the debtor company as a “Company”.
(c) It misspelled the debtor name of Interworld Plastics N Z Limited without a gap so it read “Interworld Plastics NZ Limited”, with no gap between the “N” and the “Z”, rather than “Interworld Plastics N Z Limited”.
[4] On 30 August 2012, Interworld went into liquidation. The first respondents
Victoria Toon and Dennis Wood were appointed liquidators.
[5] Between March and May 2012, Polymers had supplied goods and services to the value of $751,925.04 to Interworld. Following the liquidation, Polymers lodged a proof of debt claim form with supporting documentation with the liquidators for
$751,925.05. The liquidators in their first report did not recognise Polymers as a
secured creditor, listing it with the unsecured creditors. The liquidators, having conducted a search of the securities register, did not discover any security interest in favour of Polymers. Following Polymers’ notification of its claim and assertion of priority, the liquidators identified the three registration errors referred to and continued to refuse to recognise that Polymers had a validly registered security.
[6] Of the three errors and omissions the last can be put to one side. While there is undoubtedly a mistake in not putting a space between the letters “NZ” in the name of Interworld, the liquidators accept that this defect was not seriously misleading. Indeed, it is common ground that a search for debtor names automatically excludes all spaces and abbreviations in the words “NZ” in the searching process. Thus, even if the space had been included, it automatically would have been removed by the search algorithm. Polymers’ error in the way it set out Interworld’s name could not therefore mislead a searcher, and was not seriously misleading.
[7] However, it is submitted by Mr Blanchard on behalf of the liquidators that the other two omissions or errors were seriously misleading. Mr Moodley for Polymers accepts that these two omissions or errors were made, but submits they were not seriously misleading in terms of the PPSA.
The statutory framework
[8] The three key provisions in the PPSA that relate to errors in financial statements are ss 149–151. They provide:
149 Registration of financing statement invalid only if seriously misleading
The validity of the registration of a financing statement is not affected by any defect, irregularity, omission, or error in the financing statement unless the defect, irregularity, omission, or error is seriously misleading.
150 When financing statement seriously misleading
Without limiting the circumstances in which a registration is invalid, a registration is invalid if there is a seriously misleading defect, irregularity, omission, or error in—
(a) The name of any of the debtors required by section 142 to be included in the financing statement other than a debtor who does not own or have rights in the collateral; or
(b) The serial number of the collateral if the collateral is consumer goods, or equipment, of a kind that is required by the regulations to be described by serial number in a financing statement.
151 Proof that person actually misled not necessary
In order to establish that a defect, irregularity, omission, or error is seriously misleading, it is not necessary to prove that any person was actually misled by it.
[9] What is required for a registration to be seriously misleading turns on the effectiveness or otherwise of information provided in the statement, which allows an effective search using the PPSA’s search criteria. Those criteria are set out in s 172:
172 Search criteria
The register may be searched only by reference to the following criteria: (a) The name of the debtor:
(b) the name and address of the debtor or, if the debtor is an organisation, the name and address of the organisation and the name or job title, and contact details, of the person acting on its behalf:
(c) The name and date of birth of the debtor:
(d) If the debtor is a company, the unique number assigned to the company by the Registrar of Companies on the registration of the company under the Companies Act 1993:
(e) If collateral is required … by this Act or by the regulations to be described by serial number in a financing statement, the serial number of the collateral:
(f) The registration number assigned to the registration under section 144:
(g) Any other criteria specified in the regulations. (emphasis added)
[10] The PPSA in 1999 turned the previous chattels security system, which had been accurately described as a “quagmire”,1 into a modern centralised register that is fully accessible online with no physical office and no paper-based records.2
Creditors file an electronic record of their interest called a financing statement.
1 Stefan A Riesenfeld “The Quagmire of Chattels Security in New Zealand” (paper for New
Zealand Legal Research Foundation, Auckland, 1970).
2 For a general description see Thomas Gault (ed) Gault on Commercial Law (online looseleaf ed, Brookers) at 8A.7.01; and Michael Gedye, Ronald Cuming and Roderick Wood Personal Property Securities in New Zealand (Thomson Brookers, Wellington, 2002) at 4–5.
Priority is measured from the time of registration. Commensurate with what is contained in the financing statement, a search responds to the entry of the name of the debtor, and reveals by general description the specified property, and gives notice that parties will enter into a transaction in respect of that property. Details of particular security transactions are not provided. It was observed of the Canadian
system in Saskatoon in Royal Bank of Canada v Touche Ross Ltd by Tallis JA:3
The most characteristic difference between notice filing and traditional systems of registration is that notice filing is party-specific rather than transaction-specific. What is filed are not the details of a particular security but notice that certain parties have entered into, or may in future enter into, a secured transaction in relation to specified property.
[11] Unsurprisingly, therefore, the name of the debtor is a critical element of the financing statement. It is the indexing point for all searches, and an error in the debtor’s name will mean that the security interest will not be discovered by a searching creditor.
[12] Contrary to the old system, there is now no gateway through which registrants must pass in which they have to show compliance with various requirements. There is indeed no check made for compliance. The register’s operating computer software ensures only that the financing statements contain the minimum number of characters required.4 Further, the verification statement mandated by the PPSA is merely a notice of registration, not a certificate of compliance.5
[13] Indeed, the system that is put in place is self-policing. Those who register are aware that the penalty for error is not rejection of the registration, but rather its later invalidity. The onus is thus placed entirely on those who register to enter data correctly and keep it up to date, and the assumption by those who use the register is
that such data is correct.6 If it is not, the consequences can be fatal to the ultimate
success of the registration, and for a good reason of substance. Erroneous data can mean that the registration will not work in practice.
3 Royal Bank of Canada v Touche Ross Ltd (1984) 31 Sask R 131 at 135.
4 Gedye, Cuming and Wood, above n 2, at 451.
5 Personal Property Securities Act 1999, s 145.
6 Personal Property Securities Regulations 2001, reg 4.
The first error – failure to include the incorporation number
[14] There is a direct requirement to register a company’s number.
Section 142(1)(c) provides:
142 Data required to register financing statement
(1) The following data must be contained in the financing statement in order to register it:
...
(c) If the debtor is an organisation that is incorporated, the unique number assigned to it on its incorporation:
(emphasis added)
[15] This failure to register the company number was therefore not just an error in registration; it was the omission of an item that the Act provided “must” be in the financing statement. Furthermore, a company’s incorporation number is one of the limited s 172 search criteria by which searches can be conducted.
[16] Although not determinative of the objective question of whether the statement was seriously misleading,7 the evidence before me established that unsurprisingly, the consequence of the lack of the company number in the financing statement was that a search where the incorporation number was used as the reference did not reveal the financing statement relating to Interworld. Thus, if the search criterion set out in s 172(d) was used, it would not reveal the name of the
debtor. Of the 67 financing statements registered in relation to Interworld on the Personal Property Securities Register, all included the incorporation number save for the Polymers financing statement.
[17] The significance of the number of the company is indicated by the Companies Office register website. Under the heading “How do I search using a debtor’s details-organisation?” the website advised:
When searching for an organisation that is a New Zealand company we recommend searching using only the incorporation number (if you do not know the number, you can search the Companies Register – FREE).
7 Personal Property Securities Act 1999, s 151.
[18] It is also noteworthy that the register website, in its instructions for those intending to conduct a search, provides that it is possible to search a company’s interests by the debtor’s name or by the company’s incorporation number.
[19] The New Zealand registry, unlike some Canadian registries, only provides returns that exactly match what is entered, and not entries that are not exact matches. There is little margin for error. It is also relevant that a feature of the New Zealand system is the ability to search the register direct from the Companies Office. This search through the Companies Office website only responds to the entry of incorporation numbers of the company. It is not possible to search the company’s interests on the Personal Property Securities Register by name via the Companies Office website. Thus, searches via the Companies Office will not reveal a financing statement entered using only the company’s name.
[20] Therefore, the omission of the company’s number was a serious error. It meant that those who searched the register by company number or through the Companies Office would not discover the relevant financing statement.
[21] In Rabobank New Zealand Ltd v Stockco Ltd8 the financing statement was registered in the name of “A N and M J Campbell”, a partnership. It was argued that the description of the Campbells as a partnership was wrong and seriously misleading. It was argued that the name of the partnership, Awapapa Station, should have been used and that anything else was an error. Simon France J held that the registration was not seriously misleading as no partnership called “Awapapa Station” ever arose despite the fact that there was a deed of partnership signed.
[22] The Rabobank decision has been criticised,9 but it is not necessary to analyse its merits as it is plainly distinguishable. The error in Rabobank concerned a wholly different search criterion. What might have amounted to a “seriously misleading”
error was very different to that which arose in this case.
8 Rabobank New Zealand Ltd v Stockco Ltd [2011] 13 TCLR 191 (HC).
9 See Linda Widdup Personal Property Securities Act: A Conceptual Approach (3rd ed, LexisNexis, Wellington, 2013) at 322, and Gault, above n 2, at 8A.7.03(2).
[23] There is a considerable body of Canadian authority that considers whether when there are two search criteria available, both of which could reveal the registration, an error in only one of them is seriously misleading.10 In Ontario the concept of “reasonable searcher” is applied.11 I have decided not to use that concept given that the Ontario legislation expressly contains a “reasonable person” test
whereas New Zealand, along with the other Canadian provinces, does not. In those circumstances to apply the concept of “reasonable user” would be to create an unnecessary complexity. I agree with various New Zealand commentators that it is preferable to ask whether the error would prevent a registration being disclosed by a
properly formatted search in the relevant searchable field.12 Such a question is
straightforward and objective.
[24] Here, the users would be misled if they entered the company number only, or accessed the register through the Companies Office register website. If they did this they would miss the Polymers registration. Indeed, this is what happened when the liquidators carried out their search.
[25] Mr Moodley pointed out that s 151 did not make registration of the company name a prerequisite. That may be so, but it is a compulsory requirement under s 142(1)(c).
[26] I note that it is the view of the authors of Personal Property Securities in New Zealand13 that s 172(d) provides searchers with a simple and alternative search option to searches in the debtor name. They note that a failure to correctly record the incorporation number “… will result in the registration not being retrieved by a search of the field”. Accordingly any error in this field would also appear to invalidate the registration. They also observe that a failure to include the debtor’s
incorporation number is not expressly mentioned in s 150, and there may be some
latitude applied in this regard. However, for the reasons I have given, I agree with
10 See the discussion in Gault, above n 2, at 8A.7.3(3).
11 Re Lambert (1994) 7 PPSAC (2d) 240 (ONCA) at 258. See also Stevenson v GMAC Leaseco
Ltd (2003) 227 DLR (4th) 154 (NBCA).
12 Gedye, Cuming and Wood, above n 2, at 477; and Roger Fenton Garrow and Fenton’s Law of Personal Property in New Zealand (7th ed, LexisNexis, Wellington, 2010) vol 2 at 691–692. Gault, above n 2, discusses the reasonable person test at 8A.7.3(1)(a).
13 Gedye, Cuming and Wood, above n 2, at 484.
the authors that to preserve the efficacy of the search function as prescribed by the
Act, invalidity is the likely outcome.
The second error – failure to classify the debtor company as a “company”
[27] Mr Blanchard submitted that the failure to enter Interworld as a company could in itself lead a searching party to obtain no results. If whoever filled out the statement had indicated that the statement being filled out was concerning an incorporated body, the website would have prompted the person to input the company number. Instead, the person who registered for Polymers chose “other”, and no prompt came up.
[28] The two errors are to an extent interlinked to one another. The organisation type error contributed to the company incorporation number error. In this sense, the second error, which was of classification, can be seen as augmenting in seriousness the first error of inserting no number. I doubt whether on its own the second omission could be regarded as “seriously misleading”.
Result
[29] The respondents have established that Polymers financial statement was not validly registered. I therefore decline the relief sought, namely a declaration that registration number F909JW90824R2R71 dated 14 September 2007 and renewed on
5 September 2012 was validly registered.
[30] The respondents have been successful in resisting this application and costs should follow that result. The applicant is to pay the respondents’ costs on a 2B basis.
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Asher J
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