In the matter of Gelpack Enterprises Pty Ltd (in liquidation) [2015] NSWSC 1558

In the matter of Gelpack Enterprises Pty Ltd (in liquidation) [2015] NSWSC 1558

Primaplas had a perfected security interest in all goods it supplied to Gelpack under the PPSA. The 2007 terms allowed Primaplas to vary contract terms unilaterally; by exercising this right in August 2012, it bound Gelpack to the new terms, including the security interest clause. Acceptance was further evidenced by conduct—Gelpack continued ordering and paying for goods. The operations manager had authority to bind the company to these terms. The appeal from the liquidator's decision was permitted out of time given the arguable and important issue, explained delay, and lack of prejudice.

Parties
Plaintiff: Primaplas Pty Ltd; First Defendant: Gelpack Enterprises Pty Ltd (in liquidation); Second Defendants: Thomas Dawson and Darrin Paine in their capacity as joint and several liquidators of Gelpack Enterprises Pty Ltd (in liquidation)
Jurisdiction
Australia
Judgment Date
03 September 2015
Procedural Posture
Appeal From Liquidator's Decision (corporations Act S 1321) / Hearing and Judgment on Application for Extension of Time, Reversal of Liquidator's Decision, and Declaratory Relief
Outcome
Time for appeal extended; liquidators' decision reversed; declaration of perfected security interest in favour of plaintiff; costs to plaintiff.
Legal Topics
Winding Up, Liquidators, Appeal From Liquidator's Decision, Personal Property Securities, Security Interests, Retention of Title, Variation of Contract Terms, Authority of Company Officer
Corporations Commercial Law Winding Up Liquidators Appeal From Liquidator's Decision Personal Property Securities Security Interests Retention of Title +2 more

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Parties

Primaplas Pty Ltd

Plaintiff

Gelpack Enterprises Pty Ltd (in liquidation)

First Defendant

Thomas Dawson and Darrin Paine in their capacity as joint and several liquidators of Gelpack Enterprises Pty Ltd (in liquidation)

Second Defendants

Procedural Posture

Appeal From Liquidator's Decision (corporations Act S 1321) / Hearing and Judgment on Application for Extension of Time, Reversal of Liquidator's Decision, and Declaratory Relief

Legal Issues

  1. 1 Whether time for instituting appeal should be extended under Corporations Act 2001, s 1321
  2. 2 Whether plaintiff has a perfected security interest under Personal Property Securities Act 2009
  3. 3 Whether amended terms and conditions, including security interest clause, bind first defendant

Ratio Decidendi

Primaplas had a perfected security interest in all goods it supplied to Gelpack under the PPSA. The 2007 terms allowed Primaplas to vary contract terms unilaterally; by exercising this right in August 2012, it bound Gelpack to the new terms, including the security interest clause. Acceptance was further evidenced by conduct—Gelpack continued ordering and paying for goods. The operations manager had authority to bind the company to these terms. The appeal from the liquidator's decision was permitted out of time given the arguable and important issue, explained delay, and lack of prejudice.

Court Disposition

Time for appeal extended; liquidators' decision reversed; declaration of perfected security interest in favour of plaintiff; costs to plaintiff.

Orders

  • Time for plaintiff to institute appeal from the decision of the liquidators made on 4 October 2014 be extended up to and including 19 March 2015.
  • Decision of the liquidators to reject the plaintiff's claim to a security interest in the goods supplied by it to Gelpack is reversed.