Macquarie Leasing Pty Ltd v The Registrar of the Personal Property Securities Register [2014] NSWSC 1677

Supreme Court New South Wales

Medium Neutral Citation: Macquarie Leasing Pty Ltd v The Registrar of the Personal Property Securities Register [2014] NSWSC 1677 Hearing dates: 21 November 2014 Decision date: 25 November 2014 Jurisdiction: Equity Division - Duty List Before: Stevenson J Decision: Security interests set aside Catchwords: SECURITIES - Personal Property Securities Act - application to register financing change statement to remove registration of second and third defendants - application to restrain second and third defendants from the registration of security interests Legislation Cited: Personal Property Securities Act 2009 (Cth) Cases Cited: Macquarie Leasing Pty Limited v DEQMO Pty Limited, 17 October 2014 (unreported) Category: Principal judgment Parties: Macquarie Leasing Pty Ltd (Plaintiff) The Registrar of the Personal Property Securities Register (First Defendant) Australian Keg Company Pty Ltd (Second Defendant) Pro-Act Australia Pty Ltd (Third Defendant) Representation: Counsel: E Glover (Plaintiff) Solicitors: Douros Jackson Lawyers File Number(s): SC 2014/335243

ex tempore Judgment (revised) 1This matter was before me in the duty list on 21 November 2014. 2The background to the matter is set out in a judgment delivered by Rein J in proceedings 2014/249407: Macquarie Leasing Pty Limited v DEQMO Pty Limited: unreported 17 October 2014. I will not restate that background and will use the same abbreviations as those adopted by his Honour. 3On 17 October 2014, Rein J declared that the security interest in favour of DEQMO over the truck was void and of no effect and should be set aside. 4His Honour also ordered that, (1) The Registrar of the Personal Property Securities Register forthwith register a financing change statement amending the register to remove the DEQMO security interest, and (2) that DEQMO and Mr Culleton, whether by themselves, by their agents or on behalf of any other person or corporate entity, be restrained from registering or causing to be registered on the PPSR, any financing statement claiming an interest in the truck, without further order of the Court. 5Searches conducted on Macquarie's behalf, on 20 October 2014 - that is three days after Rein J made those orders - revealed that on 17 October 2014 (as it turns out, minutes before his Honour delivered his ex tempore judgment) the second defendant, Australian Keg Company, registered a security interest over the truck. That search also revealed that, on 20 October 2014, the third defendant, Pro-Act Australia, also registered a security interest over the truck on the PPSR. 6Both the second and third defendants are companies associated with Mr Culleton. The grantor of the second defendant's asserted interest in the truck is said to be the second defendant itself. The grantor of the third defendant's asserted interest in the truck is said to be DEQMO. 7A sequestration order was made in relation to Mr Culleton's estate on 31 October 2014. 8Macquarie commenced these proceedings on 13 November 2014. On that day, as duty judge, I abridged the time of the service of the summons and fixed the matter for hearing on 21 November 2014. Macquarie has proved service on the defendants. The defendants were called outside court on 21 November 2014. There was no appearance. The first defendant, the Registrar of the PPSR, has entered a submitting appearance. 9I am satisfied that neither the second defendant, nor the third defendant, has a security interest in the truck. 10Under s 151(1) of the Personal Property Securities Act 2009 (Cth): "A person must not apply to register a financing statement...that describes collateral, unless the person believes, on reasonable grounds that the person described in the statement as a secured party is, or will become, a secured party in relation to the collateral...". 11I am satisfied that Mr Culleton does not believe, on reasonable grounds, that either the second or third defendants is, or will have, a security interest over the truck. 12Under those circumstances, I make the declarations referred to in paragraphs 4 and 6(1) of the summons, filed on 13 November 2014. I make the orders in paragraphs 5, 6(2), 7 and 8 of the summons: 4. A declaration that the security interest in favour of the Second Defendant registered over the property described in the Personal Property Securities Register as a Kenworth Prime Mover, VIN number 6F50000005A429904, registration plate number 97WL, engine number 6NZ98709, being security interest registration number 201410170047444, is void and of no effect and be set aside. 5. That the Registrar of the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth) forthwith register a financing change statement amending the registration to remove the registration of the security interest registration number 201410170047444 and any record thereof pursuant to s 182(4)(a) and 184(1)(e)(ii) of the Act and Regulation 5.10(2) thereto. 6(1). A declaration that the security interest in favour of the Third Defendant registered over the property described in the Personal Property Securities Register as a Kenworth Prime Mover, VIN number 6F50000005A429904, registration plate number 97WL, engine number 6NZ98709, being security interest registration number 201410200009135, is void and of no effect and be set aside. 6(2). That the Registrar of the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth) forthwith register a financing change statement amending the registration to remove the registration of the security interest registration number 201410200009135 and any record thereof pursuant to s 182(4)(a) and 184(1)(e)(ii) of the Act and Regulation 5.10(2) thereto. 7. Pursuant to s 182(4)(b)(i) and (c) of the Act, each of the Second and Third Defendants, whether by themselves, by their agents or on behalf of any other person or corporate entity be restrained from registering or causing to be registered on the Personal Property Securities Register any financing statement claiming an interest in the property described as a Kenworth Prime Mover, VIN number 6F50000005A429904, registration plate number 97WL, engine number 6NZ98709 without further order of the Court. 8. The Second and Third Defendants pay the Plaintiff's costs of and incidental to these proceedings.