In the matter of Kimberley Diamonds Limited (in liquidation) [2021] NSWSC 865

In the matter of Kimberley Diamonds Limited (in liquidation) [2021] NSWSC 865

The Court found that the amendment demand made under s 178 PPSA was authorised, as the collateral (Alto shares and their proceeds) did not secure any obligation owed by KDL to Huitong under the Security Deed; orders requiring the Registrar to register a financing change statement were appropriate.

Parties
First Plaintiff: Katherine Elizabeth Barnet and Hugh Armenis in their capacity as joint and several liquidators of Kimberley Diamonds Limited (in liquidation); Second Plaintiff: Kimberley Diamonds Limited (in liquidation); First Defendant: Zhejiang Huitong Auction Co Ltd; Second Defendant: Registrar of Personal Property Securities
Jurisdiction
Australia
Judgment Date
13 July 2021
Procedural Posture
Application Under S 182 of Personal Property Securities Act 2009 (cth) / Hearing of Application for Orders
Outcome
Orders made in accordance with short minutes of order.
Legal Topics
Personal Property Securities Register, Security Interests, Corporations in Liquidation
Corporations Property Personal Property Securities Register Security Interests Corporations in Liquidation

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Parties

Katherine Elizabeth Barnet and Hugh Armenis in their capacity as joint and several liquidators of Kimberley Diamonds Limited (in liquidation)

First Plaintiff

Kimberley Diamonds Limited (in liquidation)

Second Plaintiff

Zhejiang Huitong Auction Co Ltd

First Defendant

Registrar of Personal Property Securities

Second Defendant

Procedural Posture

Application Under S 182 of Personal Property Securities Act 2009 (cth) / Hearing of Application for Orders

Legal Issues

  1. 1 Whether the registration of a security interest on the PPSR by the First Defendant exceeds the scope of the security granted under contractual agreements.
  2. 2 Whether the collateral recorded includes property not secured by the relevant Security Deed.
  3. 3 Whether an amendment demand made under s 178 PPSA was authorised, enabling the Court to order the Registrar to register a financing change statement.

Ratio Decidendi

The Court found that the amendment demand made under s 178 PPSA was authorised, as the collateral (Alto shares and their proceeds) did not secure any obligation owed by KDL to Huitong under the Security Deed; orders requiring the Registrar to register a financing change statement were appropriate.

Court Disposition

Orders made in accordance with short minutes of order.

Orders

  • Registrar ordered to register a financing change statement amending the PPSR registration as sought by the applicants.
  • Costs and expenses of the application are to be costs and expenses in the liquidation of KDL.