Duke Contracting Australia

Citation [2017] NSWSC 767

Application under s293(1)(a) to extend the 15 business day period under s62(3)(b) for PMSI registrations of security interests granted by Duke’s trust to Komatsu Australia Corporate Finance Pty Ltd, where registration was originally made against Duke’s ACN, but not made against its trust’s ABN until more than 15 business days after it had obtained possession of the goods. After registration, Duke went into administration. The administration was more than 6 months after the registration against the ABN, so there was no issue of vesting under Corporations Act s588FL.

The court granted the extension. The court was satisfied the omission was due to inadvertence. Prejudice to unsecured creditors was not an issue (as the security interest would have priority over them in any event). There was one secured creditor (NAB) with all-assets security, but the court considered that all-assets secured creditors would typically only be interested in other AllPAP (or AllPAP except) registrations, and not concerned by PMSI priority for ‘ordinary course of business’ transactions such as Komatsu’s chattel mortgage. Further, NAB had been joined as a defendant but decided not to appear, which reinforced the court’s impression that it did not consider itself prejudiced.

The summary of the pertinent points in this legal case update has been provided by Steve Pemberton, Lawyer and Consultant, as an extract from his digest of PPSA cases.