IBM Global Financing Australia V Applied Business Technology Pty Ltd

CITATION [2018] NSWSC 1984

Application by IBM under Corporations Act s588FM to fix a later time for registration, and under s293(1)(a) to extend the 15 business day period under s62(3)(b) for PMSI registrations, in respect of multiple registrations that had inadvertently been made using the ABN of IBM (as secured party) instead of its ACN, and 9 registrations that had inadvertently used the grantor’s ABN instead of its ACN.

The court noted that nine months had elapsed since the errors were discovered. This delay was considered acceptable, noting that IBM required time to review around 3000 registrations to locate those affected by the errors and that remained current, and to obtain legal advice.

The court noted that the errors involving use of the secured party’s ABN were less serious than for the grantor’s ABN, as a search by correct grantor identifier would still have identified the registration.

In considering issues of prejudice to other secured parties, the court generally approved and adopted the approach used in Re Accolade Wines Australia Limited [2016] NSWSC 1023. In relation to 19 secured parties holding non- AllPaP securities, which might cover collateral overlapping with IBM’s collateral, the court noted that IBM had used s275 procedures to seek details of the secured party’s security, also offering an opportunity to consent to IBM’s application; and that the secured parties had either consented, confirmed no objection, withdrawn their own registrations, or not replied. The court initially had reservations that this might have imposed an unreasonable forensic burden on the secured parties, but was ultimately satisfied that it did not. The court made the orders, reserving the rights of any other secured party with a perfected security interest who had not already been joined as a defendant to apply to set aside or vary the orders.

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.