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

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Antqip Hire Pty Ltd (in liq) [2021] NSWSC 1122 Hearing dates: 28 July 2021 Date of orders: 8 September 2021 Decision date: 08 September 2021 Jurisdiction: Equity - Corporations List Before: Brereton JA Decision: (1) 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. (2) 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). (3) There be no order as to costs, to the intent that all parties bear their own costs. And the Court notes that if registrations 2019-04240002907 and 2019-04240003175 on the Personal Properties Security Register were covered by (CTH) Corporations Act 2001, s 588FL(2), it would have made an order, pursuant to s 588FM, fixing 24 April 2019 as the later time for the purposes of subparagraph 588FL(2)(b)(iv). Catchwords: MORTGAGES AND SECURITIES – Personal Property Securities Act 2009 (Cth) – Vesting – Extension of time – Companies in voluntary administration – Deeds of Company Arrangement entered into – Security interest registered on Personal Property Securities Register – Registration lapsed – Further registrations made eighteen months later – Companies subsequently went into liquidation – Application by secured creditor under Corporations Act 2001 (Cth), s 588FM, to fix later time for the purposes of vesting of security interest under s 588FL(2)(b)(iv) – Identification of "critical time" as date when administration which ended when Deeds of Company Arrangement executed began – Whether s 588FL applicable to security interests granted by security agreement made after critical time – Section 588FL not so applicable – No utility in s 588FM order CORPORATIONS – Voluntary administration – Deed of company arrangement – Effect on vesting of Personal Property Securities Act 2009 (Cth) security interests – Relevance of subsequent voluntary winding up MORTGAGES AND SECURITIES – Personal Property Securities Act 2009 (Cth) – Vesting – Extension of time – Whether just and equitable to fix later time in the alternative that s 588FL applicable – Prejudice to unsecured creditors and Deputy Commissioner of Taxation – Relevance of delay – Avoidance of unintended windfall to unsecured creditors to detriment of secured creditor – Intentions of parties – Inadvertence Legislation Cited: (CTH) Corporations Act 2001, ss 459P, 468, 500, 513A, 513B, 513C, 566(1)(e), 588FL, 588FM; Pts 5.3A, 5.7B (CTH) Personal Property Securities Act 2009, ss 18(3), 19, 20, 21(2)(a), 163(1)(a), 267, 267A (NSW) Supreme Court (Corporations) Rules 2003, r 2.13 Cases Cited: Accolade Wines Australia Ltd, In the matter of [2016] NSWSC 1023 Amotran Pty Ltd, Re [2017] VSC 637 Antqip Hire Pty Ltd (subject to deed of company arrangement) (in liq), In the matter of [2020] NSWSC 487 Appleyard Capital Pty Ltd, Re; 123 Sweden AB v Appleyard Capital Pty Ltd (2014) 101 ACSR 629; [2014] NSWSC 782 Barclays Bank plc, In the matter of [2012] NSWSC 1095 Bellerine Heights Pty Ltd, Re [2020] VSC 874 Campbell Finance Pty Ltd v Vivstan Packaging (Aust) Pty Ltd (in liq) [1998] 2 VR 340; (1996) 22 ACSR 109 Cardinia Nominees Pty Ltd, In the matter of [2013] NSWSC 32 Carpenter International Pty Ltd (admins apptd), Re (2016) 51 VR 190; 111 ACSR 477; [2016] VSC 118 Carter v New Tel Ltd (in liq) (2003) 44 ACSR 661; [2003] NSWSC 128 De Lage Landen Pty Ltd v Blayney Crane Services Pty Ltd, in the matter of Blayney Crane Services Pty Ltd [2020] FCA 1692 Dickerson, in the matter of McWilliam's Wines Group Ltd (admins apptd) (No 2) [2020] FCA 417 Duke Contracting Australia Pty Ltd, In the matter of [2017] NSWSC 767 Freightlines Northern Territory Pty Ltd (in liq), Re [2000] 2 Qd R 384; (1999) 32 ACSR 573; [1999] QSC 209 Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd (2003) 135 FCR 206; 47 ACSR 589; [2003] FCAFC 256 Hill (admin) in the matter of Flow Systems Pty Ltd (admins apptd) [2019] FCA 35 J Leslie Engineers Co Ltd (in liq), In re [1976] 1 WLR 292; 2 All ER 85 Kaizen Global Investments Ltd v Australian New Agribusiness & Chemical Group Ltd (in liq) (2017) 120 ACSR 220; [2017] FCA 431 K J Renfrey Nominees Pty Ltd (atf Renfrey Family Trust) v OneSteel Manufacturing Pty Ltd (subject to deed of company arrangement) (2017) 120 ACSR 117; [2017] FCA 325 Korda, in the matter of Ten Network Holdings Ltd (admins apptd) (recs and mgrs apptd) [2017] FCA 1144 Liverpool Civil Service Association, In re; Ex parte Greenwood (1874) 9 Ch App 511 Leslie Homes (Aust) Pty Ltd, Re (1984) 8 ACLR 1020; 2 ACLC 554 Mentha, in the matter of Arrium Finance Ltd v National Australia Bank Ltd [2017] FCA 818 Mentha, in the matter of Arrium Ltd (admins apptd) [2016] FCA 972 MSI (Holdings) Pty Ltd (rec apptd) (in liq) v Mainstreet International Group Ltd [2013] 2 Qd R 253; QCA 27 Northern Managed Finance Pty Ltd v 4 in 1 Wyoming Pty Ltd (2017) 120 ACSR 167; [2017] NSWSC 407 OneSteel Manufacturing Pty Ltd (admins apptd), In the matter of (2017) 93 NSWLR 611; 118 ACSR 307; [2017] NSWSC 21 Quality Blended Liquor Pty Ltd, Re [2015] 2 Qd R 381; (2014) 102 ACSR 451; [2014] QSC 234 Sanwa Australia Finance Ltd v Ground-Breakers Pty Ltd (in liq) [1991] 2 Qd R 456; (1990) 2 ACSR 692 South Australian Asset Management Corp v Sheahan (1995) 65 SASR 59; 17 ACSR 569 Squadron Resources Pty Ltd v Highlake Resources Pty Ltd, in the matter of Highlake Resources Pty Ltd [2018] FCA 1292 Wiltshire Iron Co, Re; Ex parte Pearson (1868) LR 3 Ch App 443 Category: Principal judgment Parties: National Funding Group Pty Ltd (Plaintiff) Antqip Hire Pty Ltd (First Defendant) Antqip Pty Ltd (Second Defendant) Alan Walker and Ozem Kassem in their capacity as Liquidators of Antqip Hire Pty Ltd and Antqip Pty Ltd (Third Defendant) Deputy Commissioner of Taxation (Intervener) Representation: Counsel: M Cobb-Clark (Plaintiff) J Hidayat, solicitor (Defendants) P Afshar (Intervener)