In the matter of Accolade Wines Australia Limited and other companies [2016] NSWSC 1023

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Accolade Wines Australia Limited and other companies [2016] NSWSC 1023 Hearing dates: 28 June and 1 July 2016 Date of orders: 25 July 2016 Decision date: 25 July 2016 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Refer to para 53 Catchwords: CORPORATIONS – charges, debentures and other borrowings – security interests – registration – extension of time – application pursuant to (CTH) Corporations Act 2001, s 588FM – inadvertence – where security interest initially registered against grantor's ABN, not ACN – prejudice – where no apparent prejudice to creditors by delay in obtaining effective registration – where no defendant joined – held, appropriate to exercise discretion under s 588FM to fix later time, but grantors must be joined and afforded opportunity to be heard

COMMERCIAL LAW – Personal Property Securities – (CTH) Personal Property Securities Act 2009 – extension of registration time for PMSIs pursuant to PPSA, s 293 – relevant considerations – where need for extension is due to inadvertence – prejudice – prejudice in s 293(3)(b) differs from s 588FM(2)(a)(ii) – prejudice not conclusive because necessary consequence of remedy is prejudice to other secured parties – prejudice significant where coupled with reliance – reliance – expert evidence that financiers search against ABN as well as ACN – whether other secured parties should be joined before or after orders made – held, their interests are liable to be affected and they must be joined – held, just and equitable to grant extension – order made ex parte, reserving liberty to apply to set aside or vary Legislation Cited: (CTH) Corporations Act 2001, s 588FL, s 588FM (CTH) Personal Property Securities Act 2009, s 12(3), 13, 14, s 55, s 62, s 153, s 164, s 165, s 293 Cases Cited: A Limited Company, Re (1928) 28 SR (NSW) 364 Appleyard Capital Pty Ltd, Re; 123 Sweden AB v Appleyard Capital Pty Ltd (2014) 101 ACSR 629; [2014] NSWSC 782 Bevillesta Pty Ltd v Imagine UN Ltd [2009] VSC 50; 69 ACSR 574 Black Opal IP Pty Limited, In the matter of [2013] NSWSC 1225 Campbell Finance Pty Ltd v Vivstan Packaging (Aust) Pty Ltd (in liq) [1998] 2 VR 340; (1996) 22 ACSR 109 Cardiff Workmen's Cottage Co Ltd, In re [1906] 2 Ch 627 Cardinia Nominees Pty Ltd, In the Matter of [2013] NSWSC 32 Carpenter International Pty Limited, Re (2016) 111 ACSR 477. Cinema Art Films, Re [1930] NZLR 500 Douglas-Brown v Standard Chartered Finance Ltd (1990) 2 ACSR 737 Dudley Engineering Pty Ltd, Re [1968] 1 NSWR 483 Ehrmann Bros Ltd, Re [1906] 2 Ch 697 Flinders Trading Co Pty Ltd, Re (1978) 3 ACLR 218 Freightlines Northern Territory Pty Ltd (1999) 32 ACSR 573 Guardian Securities Ltd, Re [1984] 1 NSWLR 95 Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256; (2003) 135 FCR 206; 47 ACSR 589 Investa Properties Pty Ltd v Westpac Property Funds Management Ltd (2001) 187 ALR 462; 40 ACSR 124; [2001] NSWSC 1089 Joplin Brewery Co Ltd, Re [1902] 1 Ch 79 Kris Cruisers Ltd, Re [1949] 1 Ch 138 L H Charles & Co Ltd, Re [1935] WN 15 National Australia Bank v Davis & Waddell (Vic) Pty Ltd (2003) 44 ACSR 296; (2003) 21 ACLC 1401; [2003] VSC 1 Sanwa Australia Finance Ltd v Ground-Breakers Pty Ltd (in liq) [1991] 2 Qd R 456; (1990) 2 ACSR 692 Southern Engineering Services Pty Ltd (in liquidation) ACN 000 091 716, In the matter of [2014] NSWSC 1882 Transurban CCT Pty Ltd (in its own capacity and as trustee of the Transurban CCT Trust), Re [2014] NSWSC 1909 Texts Cited: Personal Property Securities in Australia (LexisNexis) Annotated Personal Property Securities Act 2009 (CCH) Category: Principal judgment Parties: Alleasing Pty Limited and Alleasing Finance Pty Limited (plaintiffs) Representation: Counsel: B A Coles QC w N Mirzai (plaintiffs)