In the matter of H&H Funding Pty Ltd [2022] NSWSC 1354

In the matter of H&H Funding Pty Ltd [2022] NSWSC 1354

The Court fixed 20 April 2022 as the registration time because the failure to register was established to be inadvertent, there was no plausible explanation that Noda deliberately chose not to register, and the identified unsecured creditors had not been shown to have provided credit in reliance on the absence of secured borrowings. It was therefore just and equitable to grant relief, while reserving liberty to the liquidator to apply if further information about creditors later emerged.

Jurisdiction
Australia
Judgment Date
14 September 2022
Procedural Posture
Application Under S 588 FM of the Corporations Act 2001 (cth) for an Extension of Time to Lodge a Registration Under the Personal Property Securities Act 2009 (cth) for the Purposes of S 588 Fl(2)(b)(iv) of the Corporations Act / Originating Process; Principal Judgment
Outcome
Application granted, with liberty reserved to the liquidator to apply to discharge or vary the order.
Legal Topics
['extension of Time for Registration' 'personal Property Securities Register' 'vesting of Security Interests on Liquidation' 'inadvertence' 'prejudice to Creditors']
['corporations' 'personal Property Securities'] ['extension of Time for Registration' 'personal Property Securities Register' 'vesting of Security Interests on Liquidation' 'inadvertence' 'prejudice to Creditors']

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Procedural Posture

Application Under S 588 FM of the Corporations Act 2001 (cth) for an Extension of Time to Lodge a Registration Under the Personal Property Securities Act 2009 (cth) for the Purposes of S 588 Fl(2)(b)(iv) of the Corporations Act / Originating Process; Principal Judgment

Legal Issues

  1. 1 ['Whether 20 April 2022 should be fixed as the time for Noda Development Ltd to lodge personal property securities registration number 2022/04200064354 for the purposes of s 588FL(2)(b)(iv) of the Corporations Act 2001 (Cth).' 'Whether the failure to register the security interest earlier was accidental or due to inadvertence or some other sufficient cause.' 'Whether it was just and equitable to grant relief after the appointment of a liquidator, notwithstanding potential prejudice to unsecured creditors.']

Ratio Decidendi

The Court fixed 20 April 2022 as the registration time because the failure to register was established to be inadvertent, there was no plausible explanation that Noda deliberately chose not to register, and the identified unsecured creditors had not been shown to have provided credit in reliance on the absence of secured borrowings. It was therefore just and equitable to grant relief, while reserving liberty to the liquidator to apply if further information about creditors later emerged.

Court Disposition

Application granted, with liberty reserved to the liquidator to apply to discharge or vary the order.

Orders

  • ['Pursuant to s 588FM of the Corporations Act 2001 (Cth), fix 20 April 2022 as the time for the Plaintiff, Noda Development, to lodge personal property securities registration number 2022/04200064354 for the purposes of s 588FL(2)(b)(iv) of the Corporations Act.' 'Reserve liberty to the liquidator of H&H Funding Pty...