Working Capital Solutions Holdings Ltd v Pezaro - [2014] NZHC 1020

For a Court ready (fee required) version please follow this link

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000159 [2014] NZHC 1020

BETWEEN
WORKING CAPITAL SOLUTIONS

HOLDINGS LIMITED Applicant

AND

SARAH JANE PEZARO Respondent

Hearing: 8 May 2014

Appearances:

C Light for Applicant
Respondent Appears In person

Judgment:

15 May 2014

JUDGMENT OF GENDALL J

Introduction

[1] This is an application by Working Capital Solutions Holdings Limited (“WCSH”) as lender/charge-holder grantee pursuant to s 167 the Personal Property Securities Act 1999 (“the Act”), for an order maintaining a financing statement FP1P97543V84MM78 (“the statement”) against the respondent, Sarah Jane Pezaro
(“Ms Pezaro”). The application was in time.1 On 26 March 2014 an interim order

was granted maintaining the statement until further order of this Court. This judgment will now determine whether that interim order should be made permanent.

[2] The necessity for this application was brought on by Ms Pezaro as borrower/guarantor grantor lodging a financing change statement with the Registrar of the Personal Property Securities Register (“PPSR”) on the basis that “[a]ll of the
obligations under the security agreement to which the financing statement relates

1 Personal Property Securities Act 1999, s 165(1). The change demand was lodged on 11 March
2014, with the expiration of the 15 working day period being 1 April 2014.

WORKING CAPITAL SOLUTIONS HOLDINGS LIMITED v PEZARO [2014] NZHC 1020 [15 May 2014]

have been performed”,2 and therefore requesting that the registration of the statement be discharged.3

The test

The cases

[3] By s 167(1) of the Act I can make an order that the financing statement/security interest be maintained if I am “satisfied that none of the grounds for making a demand under section 162 exist”. The invariably vexed question then arises as to what is meant by “satisfied” in this context. There is no Court of Appeal or Supreme Court authority on point.

[4] As is patently apparent, there are strong parallels between this procedure and the caveat lapsing procedure.4 This led Winkelmann J in Asset Traders Ltd v Favas Sportscar World Ltd to postulate that the same “reasonably arguable” test that applies in the caveat lapsing context ought equally to apply to applications under s
167.5

[5] By contrast, in Toyota Finance New Zealand Ltd v Christie Asher J considered that the wording of s 167 was such that the test should be elevated to that of a “seriously arguable” case.6 This issue was acknowledged, but left unresolved in Daniel Smith Industries Ltd v Cranes International NZ Ltd where Allan J also proceeded on the basis of the “seriously arguable” test.7 Similarly, Toogood J adopted the same test in the more recent decision Nichibo Trading Company New
Zealand Ltd v Lucich.8

2      Section 162(a).
3      Section 163(a).
4      Land Transfer Act 1952, ss 137, 143, 145 and 145A.
5      Asset Traders Ltd v Favas Sportscar World Ltd (2006) 9 NZCLC 264,138, (2006) 3 NZCCLR
545 at [13].
6      Toyota Finance New Zealand Ltd v Christie HC Auckland CIV-2009-404-3797, 15…

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.

Keep reading for free

Create a free CaseChat account to read Working Capital Solutions Holdings Ltd v Pezaro and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 1020
Decision Date: 15 May 2014

CaseChat Overview and Summary

Working Capital Solutions Holdings Limited (WCSH) applied for an order maintaining a financing statement against Sarah Jane Pezaro (Ms Pezaro). The application was pursuant to section 167 of the Personal Property Securities Act 1999 (the Act). The financing statement was FP1P97543V84MM78. The application was brought about by a change demand lodged by Ms Pezaro that all obligations under the security agreement to which the financing statement related had been performed, and therefore the registration of the statement should be discharged. The court had to decide whether the application should be made permanent. The court found that the applicant had failed to satisfy the court that s 162(a) of the Act was inapplicable, and therefore the application to maintain the registration of the statement would fail. Accordingly, the interim order made earlier would be discharged. The application by WCSH under s 167 to maintain registration of the statement failed. The interim order made in this proceeding on 26 March 2014 was discharged. The court ordered that the registered financing statement FP1P97543V84MM78/C0004 be discharged from the Personal Property Securities Register. The applicant was to pay the reasonable disbursements of Ms Pezaro on this application as fixed by the Registrar.

Orders