Forge Group Power Pty Limited (in liquidation)(receivers and managers appointed) v General Electric International Inc [2016] NSWSC 52

Supreme Court New South Wales

Medium Neutral Citation: Forge Group Power Pty Limited (in liquidation)(receivers and managers appointed) v General Electric International Inc [2016] NSWSC 52 Hearing dates: 2 and 3 December 2015 Decision date: 11 February 2016 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: Plaintiff entitled to declaratory relief that the lease is a PPS lease. The interests of any of the defendants in the Turbines vested in the Plaintiff immediately before the appointment of voluntary administrators on 11 February 2014. The Plaintiffs right or title to, or interest in the Turbines, is superior to that of the Defendants. Catchwords: PERSONAL PROPERTY SECURITIES LAW: Personal Property Securities Act 2009 (Cth) ss 8(1)(j), 10, 13(2)(a), 267 – whether the lease is a security interest – lease of four mobile gas turbine generator sets – where voluntary administrators appointed to lessee – whether the lease is excluded from being a PPS lease – whether the lessor was regularly engaged in the business of leasing goods within the meaning of s 13(2)(a) – time when requirement to be regularly engaged in such business applies – whether the business activity must be in Australia – s 8(1)(j), whether the equipment is a fixture – whether the security interest of the lessor vested in the lessee HELD: business activity under s 13(2)(a) need not be in Australia – in any event lessor was regularly engaged in such activity in Australia – the test is to be applied at the time the lease is entered into – equipment did not become a fixture – lessor's security interest vested in lessee immediately prior to the appointment of administrators. Legislation Cited: Electricity Corporations Act 2005 (WA) Corporations Act 2001 (Cth) Personal Property Securities Act 2009 (Cth) Acts Interpretation Act 1901 (Cth) Personal Property Security Act 1988 (Alberta) Personal Property Security Act 1993 (Saskatchewan) Personal Property Securities Act 1999 (New Zealand) Cases Cited: Thompson v Goold & Co [1910] AC 409 Bermingham v Corrective Services Commissioner of NSW (1988) 15 NSWLR 292 David Morris Fine Cars Ltd v North Sky Trading Inc [1996] 7 W.W.R. 332; (1996) 11 P.P.S.A.C. (2d) 142 East Central Development Corp v Freighter Truck Sales (Regina) Ltd [1997] 5 W.W.R. 231; (1997) 12 P.P.S.A.C. (2d) 328 Rabobank New Zealand Ltd v McAnulty [2011] 3 NZLR 192 Agripower v Blomfield [2015] NSWCA 30 (2015) 317 ALR 202. National Australia Bank Ltd v Blacker (2000) 104 FCR 288; 179 ALR 97; [2000] FCA 1458 Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 Texts Cited: Review of the Personal Property Securities Act 2009 – Final Report (27 February 2015) Macquarie Concise Dictionary (4th ed 2006, Macquarie Dictionary Publishers Pty Ltd) Category: Principal judgment Parties: Forge Group Power Pty Limited (in liquidation) (receivers and managers appointed) (ACN 103 678 324) - Plaintiff General Electric International, Inc. (ABN 85 002 420 751) - First Defendant Power Rental Op Co Australia LLC (ARBN 167 060 997) - Second Defendant Power Rental Asset Co Two, LLC - Third Defendant Representation: Counsel: J.C. Sheahan QC with J.G. Williams and J.K. Creamer - Plaintiff J.C. Giles SC with N.D. Oreb - First Defendant I. Pike SC with J.A.C. Potts and T.J. Kane - Second and Third Defendants