In the matter of Maiden Civil (P&E) Pty Ltd; Richard Albarran and Blair Alexander Pleash as receivers and managers of Maiden Civil (P&E) Pty Ltd & Ors v Queensland Excavation Services Pty Ltd & Ors [2013] NSWSC 852

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Maiden Civil (P&E) Pty Ltd; Richard Albarran and Blair Alexander Pleash as receivers and managers of Maiden Civil (P&E) Pty Ltd & Ors v Queensland Excavation Services Pty Ltd & Ors [2013] NSWSC 852 Hearing dates: 30, 31 October 2012 Decision date: 27 June 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: (1) Judgment that the first defendant deliver up to the first plaintiffs: (a) Caterpillar Wheel Loader VIN number CAT0930HLDHC00407; and (b) Caterpillar Excavator VIN CAT0330DTFFK00181. (2) Judgment that the second and sixth defendants deliver up to the first plaintiffs Caterpillar 320D Excavator VIN CAT0320DTDH01035. (3) Order that the first, second and sixth defendants pay the plaintiffs' costs. Catchwords: COMMERCIAL LAW - Personal Property - Goods - title - competing claims of ownership - no question of principle

COMMERCIAL LAW - Personal property securities - (CTH) Personal Property Securities Act 2009 - competing security interests - lease entered into prior to commencement of Act - interest of lessor unregistered - lessee grants security interest to third party financier which registers its interest - secured creditor appoints receiver - whether rights of lessee sufficient to permit secured creditor to acquire rights in priority to lessor - where lessor has unperfected security interest and secured creditor has perfected security interest - where lessor's interest is a transitional security interest - whether transitional security interest was registrable on a transitional register - where secured creditor seeks to enforce right to possession under security instrument - where plaintiff not exercising rights and remedies under chapter 4 - whether secured creditor's rights limited to rights of lessee under lease - whether lessor's unperfected security interest vests in lessee on liquidation Legislation Cited: (British Columbia) Personal Property Security Act 1989, s 12 (CTH) Corporations Act 2001, s 51F (CTH) Personal Property Securities Act 2009, s10, s 12, s 13, s 19, s 21, s 40, s 55, s 112, s 233, s 235, s 238, s 267 s 308, s 311, s308, s 322, s 330 (CTH) Personal Property Securities Regulations 2010, regulation 9.2 (NSW) Civil Procedure Act 2005, s 93 (NT) Northern Territory of Australia Registration of Interests in Motor Vehicles and Other Goods Act 2008, s 3 (NT) Personal Property Security (National Uniform Legislation) Implementation Act 2010 (NZ) Personal Property Securities Act 1999, s 40 (QLD) Bills of Sale and Other Instruments Act 1955 (QLD) Motor Vehicles and Boats Securities Act 1986, s 2, s 3 Cases Cited: Douglas Financial Consultants Pty Ltd v Price [1992] 1 Qd R 243 Graham v Portacom New Zealand Ltd [2004] 2 NZLR 528 International Harvester Credit Corp of Canada v Touche Ross Ltd (1986) 30 DLR (4TH) 387 Re Giffen [1998] 1 SCR 91; (1998) 155 DLR (4th) 332 Waller v New Zealand Bloodstock Ltd [2006] 3 NZLR 629 Category: Principal judgment Parties: Richard Albarran and Blair Pleash as Receivers and Managers of Maiden Civil (P&E) Pty Ltd - first plaintiffs Fast Financial Solutions Pty Ltd - second plaintiff Queensland Excavation Services Pty Ltd - first defendant Central Plant Hire (NT) Pty Ltd - second defendant Sitzler Pty Ltd - third defendant Laing O'Rourke Australia Construction Pty Ltd - fourth defendant McMahon Services Australia Pty Ltd - fifth defendant Wayne Cullenane - sixth defendant Representation: Counsel: H N Newton - plaintiffs A H Sinclair (QLD) - first defendant W Cullenane - sixth defendant (in person) Solicitors: Thomsons Lawyers - plaintiffs The M Kent Law Firm - first defendant File Number(s): 2012/ 244768