In the matter of Antqip Hire Pty Ltd (in liq) [2021] NSWSC 1122

In the matter of Antqip Hire Pty Ltd (in liq) [2021] NSWSC 1122

Section 588FL does not apply to security interests granted by a security agreement made after the critical time; thus, the plaintiff's security interests are not covered and there is no need for an order fixing a later time. Were the securities caught by s 588FL, it would be just and equitable to fix the time of the 2019 registrations as the later registration time, given the absence of material prejudice to creditors and that the security was granted in substitution for a prior secured creditor.

Parties
Plaintiff: National Funding Group Pty Ltd; First Defendant: Antqip Hire Pty Ltd; Second Defendant: Antqip Pty Ltd; Third Defendant: Alan Walker and Ozem Kassem (Liquidators of Antqip Hire Pty Ltd and Antqip Pty Ltd); Intervener: Deputy Commissioner of Taxation
Jurisdiction
Australia
Judgment Date
08 September 2021
Procedural Posture
Corporations Proceeding / Final Judgment
Outcome
Application resolved; declaration made and leave granted; no order as to costs.
Legal Topics
PPSA Security Interests, Vesting of Securities, Extension of Time to Register Security Interest, Voluntary Administration, Deed of Company Arrangement, Liquidation, Validation of Security Interest, Prejudice to Unsecured Creditors
Corporations Law Insolvency Law Mortgages and Securities PPSA Security Interests Vesting of Securities Extension of Time to Register Security Interest Voluntary Administration Deed of Company Arrangement +3 more

Case Brief

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Parties

National Funding Group Pty Ltd

Plaintiff

Antqip Hire Pty Ltd

First Defendant

Antqip Pty Ltd

Second Defendant

Alan Walker and Ozem Kassem (Liquidators of Antqip Hire Pty Ltd and Antqip Pty Ltd)

Third Defendant

Deputy Commissioner of Taxation

Intervener

Procedural Posture

Corporations Proceeding / Final Judgment

Legal Issues

  1. 1 Whether (CTH) Corporations Act 2001, s 588FL applies to security interests granted after the 'critical time'
  2. 2 Whether an order under s 588FM should be made fixing a later time for PPSR registration to avoid vesting
  3. 3 Whether the failure to register collateral earlier was due to inadvertence or caused prejudice to creditors

Ratio Decidendi

Section 588FL does not apply to security interests granted by a security agreement made after the critical time; thus, the plaintiff's security interests are not covered and there is no need for an order fixing a later time. Were the securities caught by s 588FL, it would be just and equitable to fix the time of the 2019 registrations as the later registration time, given the absence of material prejudice to creditors and that the security was granted in substitution for a prior secured creditor.

Court Disposition

Application resolved; declaration made and leave granted; no order as to costs.

Orders

  • The plaintiff have leave pursuant to (CTH) Corporations Act 2001, s 500(2), insofar as it be required, to commence and proceed with these proceedings notwithstanding the passing of a resolution for voluntary winding up of the companies.
  • It is declared that registrations 2019-04240002907 and 2019-04240003175 on the Personal Properties Security Register, which are in respect of securities granted after the critical time referred to in (CTH) Corporations Act 2001, s 588FL(7)(a), are not covered by s 588FL(2).