White V Spiers Earthworks Pty Ltd

CITATION [2014] WASC 139

Spiers sold its business to BEM Equipment Pty Ltd, and hired equipment to BEM under a hire purchase agreement. BEM then granted an all assets charge to NAB. BEM then when into administration, and NAB appointed White as receiver under its charge.

The court held that the hire purchase agreement was an ‘in substance’ security interest, with transfer of title being deferred pending payment of the full value of the equipment by way of rental instalments. It was also a PPS lease, as Spiers regularly engaged in the business of leasing goods.

Spiers’ security interest was not perfected by registration. It was a transitional security interest which could have been, but was not, registered on the transitional register under the Chattel Securities Act 1987 (WA). Therefore it was not temporarily perfected: s322(3). Accordingly, on administration, it vested in BEM under s276. Spiers argued that vesting would result in an acquisition of property on unjust terms, contrary to s51(xxxi) of the Constitution. The court held that it was not as, consistently with cases such as Australian Tape Manufacturers Association Limited v The Commonwealth [1993] HCA 10, the vesting provisions were part of an incidental to a general regulatory scheme aimed at the adjustment of competing rights and liabilities.

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.