Kirkalocka Gold SPV Pty Ltd (Receivers and Managers Appointed) v Zenith Pacific (KLK) Pty Ltd, in the matter of Kirkalocka Gold SPV Pty Ltd [2024] FCA 428

Federal Court of Australia

Kirkalocka Gold SPV Pty Ltd (Receivers and Managers Appointed) v Zenith Pacific (KLK) Pty Ltd, in the matter of Kirkalocka Gold SPV Pty Ltd [2024] FCA 428 File number: WAD 285 of 2023

Judgment of: BESANKO J

Date of judgment: 29 April 2024

Catchwords: INSOLVENCY — application seeking declaration that the applicant is the legal and beneficial owner of the Zenith Power Plant — where Notice of cross-claim seeks declaration that the respondent is the legal and beneficial owner of the Zenith Power Plant — where the parties are parties to a Power Purchase Agreement — where respondent found to have actual possession of the Zenith Power Plant — whether the respondent had a "security interest" in the Zenith Power Plant by reason of s 12(1) of the Personal Property Securities Act 2009 (Cth) (PPSA)— whether there is interest in personal property provided for by a transaction — whether the interest in personal property secures payment or performance of an obligation — whether the respondent had a "security interest" by reasons of s 12(3) of the PPSA — whether, if there is a security interest, it was perfected before the applicant went into administration — consideration of "apparent possession" — held: the cross-claim is upheld

Legislation: Personal Property Securities Act 2009 (Cth) ss 10, 12, 13, 19, 21, 24

Cases cited: Bredenkamp v Gas Sensing Technology Corporation, in the matter of Welldog Pty Ltd (In Liq) (Receivers and Managers Appointed) [2017] FCA 1065 Central Cleaning Supplies (Australia) Pty Ltd v Elkerton (in his capacity as joint and several liquidator of Swan Services Pty Ltd (in liq)) [2015] VSCA 92; (2015) 321 ALR 181 Collector of Customs (NSW) v Southern Shipping Company Ltd [1962] HCA 20; (1962) 107 CLR 279 De Bourbel Pty Ltd (in liq) v Distilleria Pty Ltd [2023] SASC 88 Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2014] VSCA 326; (2014) 49 VR 86 Flown Pty Ltd (Administrators Appointed) v Goldrange Pty Ltd [2016] WASC 419; (2016) 316 FLR 81 Gold Valley Iron Pty Ltd (in liq) v OPS Screening & Crushing Equipment Pty Ltd [2022] WASCA 134 Hobbs v Petersham Transport Co Pty Ltd [1971] HCA 26; (1971) 124 CLR 220 Hocking v Director-General of the National Archives of Australia [2020] HCA 19; (2020) 271 CLR 1 In re Couston, Ex parte Watkins (1873) LR 8 Ch 520 Knauf Plasterboard Pty Ltd v Plasterboard West Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2017] FCA 866; (2017) 254 FCR 559 Management 3 Group Pty Ltd (in Liq) v Lenny's Commercial Kitchens Pty Ltd (No 2) [2011] FCA 663; (2011) 281 ALR 482 Re Arcabi Pty Ltd (in liq); ex parte Theobold [2014] WASC 310; (2014) 288 FLR 236 South Staffordshire Water Company v Sharman [1896] 2 QB 44 Strange Investments (WA) Pty Ltd v Coretrack Ltd [2014] WASC 281; (2014) 107 IPR 102 Palmer N, Palmer on Bailment (3rd ed, Sweet & Maxwell, 2009) Tyler ELG, Young PW and Croft CE, Fisher & Lightwood's Law of Mortgage (3rd Australian ed, LexisNexis Butterworths, 2014)