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University of Technology Sydney Law Research Series |
Last Updated: 24 March 2017
A BROKEN RECORD: AMENDING AND REMOVING REGISTRATIONS ON THE
PPSA
CHRISTOPHER
PEARCE[*]
This article examines a recent decision of the Federal Court in National Australia Bank Ltd v Garrett, which considered the provisions applying to the removal of a registration under Pt 5.6 of the Personal Property Securities Act 2009 (Cth) (the PPSA). This article will outline the relevant facts and the conclusion of Beach J in approving the application for amendment of the relevant registration, before turning to examine the wider issues raised by the decision. This article discusses whether the present civil penalty and enforcement provisions under the PPSA are being appropriately utilized. In addition, this article addresses the current onus of proof under these provisions, and whether it is appropriate to place the evidentiary burden upon an applicant who applies for the Register to be amended rather than the party who has registered the disputed interest. Finally, this article considers whether the process for amending the Register under the PPSA should instead be aligned with that presently applied to the lodgment and removal of caveats under the Torrens title system. This article posits the view that the fundamental inquiries of each statutory test justify such a shift, and would remove considerable strain from parties presently affected by unmeritorious registrations.
INTRODUCTION
The PPSA has had an immense impact upon previously understood personal
property concepts. The introduction of new terms such as ‘security
interest’, ‘attachment’ and ‘perfection’ has
reconfigured the property law landscape for lawyers and
academics alike, and
introduced confusion into some aspects of the law which were previously certain.
Although the consultation process
surrounding the PPSA was lengthy, and
engaged a number of relevant stakeholders so as to preempt problematic issues
from arising, the new system nevertheless
has a number of issues that require
ironing out. One such issue relates to the process for registering upon the
Personal Property
Securities Register (‘PPSR’), and how courts and
other interested parties are able to prevent unmeritorious registrations
from
occurring.
By way of reference to a recent decision of the Federal Court
of Australia in National Australia Bank Ltd v Garrett, this paper
examines the existing rules for the removal of a registration under Pt 5.6 of
the PPSA.[1] To begin, this
paper outlines the relevant provisions of the PPSA which apply to the
registration of security interests and the means by which parties can apply to
have registrations removed. The
paper then turns to outline the conduct of the
purported secured party in the present case, Mr Garrett, whose conduct provides
an
example of the some of the more egregious attempts made by parties to
register an unsubstantiated interest upon the PPSR. Next, this
paper discusses
the conclusions of Beach J, and his Honour’s reasons for ultimately
granting the application for an amendment
of the Register. In addition to issues
arising from Beach J’s decision, this paper considers the wider problems
currently effecting
registrations upon the PPSR. In particular, this paper notes
that no individual has yet fallen foul of the civil penalty provisions
under the
PPSA as a result of registering an unmeritorious interest. In the
absence of any penalty having been enforced, this paper considers whether
the
present powers available to the Registrar are adequate to dissuade such conduct
from occurring in the future. This paper then
examines the current onus of proof
under the provisions, and whether it is appropriate to instead place the
evidentiary burden upon
the applicant. Finally, this paper questions whether the
process for amending the Register under the PPSA should be aligned with
that presently applied to the lodgment and removal of caveats under the Torrens
title system for real property,
positing the view that the fundamental
similarities between each system justify such a shift.
I THE REGISTRATION PROCESS UNDER CHAPTER 5 OF THE PPSA
The process for registering a security interest under the PPSA is
governed by Chapter 5 of the Act. For a party to register on the PPSR they must
register a financing statement with respect to
a relevant ‘security
interest’; with ‘security interest’ defined in accordance with
s 12 of the PPSA.[2] In
contrast to pre-PPSA registers which required the registration of a copy
of the relevant security agreement, the aim of the financing change statement
is
not to communicate the terms of the agreement between the secured party and the
grantor, but is instead registered for the purpose
of alerting other parties
that a secured party may already have an interest in the relevant
collateral.[3] Under s 150(3), the
Registrar is only obligated to register the financing statement or financing
change statement if they are satisfied that the
application is not frivolous or
vexatious, and has not been made in contravention of s 151. Relevantly, s 151(1)
provides that a person must not apply to register a financing statement or
financing change statement unless they believe on reasonable
grounds they are or
will become a secured party in relation to the collateral. Crucially, s 151(1)
is a civil penalty provision, with the consequence being that breach of the
provision will permit an affected party to obtain damages
pursuant to s 271 of
the PPSA.
In the event that a registration has been defective or a
party wishes for the registration to be amended, Pt 5.6 of the PPSA
governs the applicable process. Pursuant to s 178, a person with an interest
may make a demand in writing known as an ‘amendment demand’ to the
secured party for a financing
change statement to be registered to amend the
registration.[4] Upon receipt of an
amendment demand the secured party then has five business days within which to
either register a financing change
statement or commence court proceedings to
challenge the demand.[5] The secured
party may commence court action for an order with respect to the amendment
demand, and the party who issued the demand
may also do so if the five day
period for a response has expired.[6]
If the Court considers the amendment demand to be authorized it may order the
Registrar to register a financing change statement
to amend the
registration.[7] Importantly, s 182
requires the court to have regard to s 178(1), which provides that an amendment
demand will only be authorized if it satisfies the requirements under the
table provided in s 178(1). That table provides two instances where a demand
will be valid: where either no collateral at all, or any particular collateral
described
in the registration secures any obligation owed by a debtor to the
secured party. In an application for an amendment demand brought
before a court,
the applicant will bear the onus of establishing that their demand was
authorized within the meaning of s 178(1).
These provisions, and
particularly the amendment demand procedure, were considered at length by the
Federal Court in the recent decision
of National Australia Bank Ltd v
Garrett, which this paper will now turn to discuss.
II NATIONAL AUSTRALIA BANK LTD V GARRETT
A The Facts
The Respondent, Andrew Garrett, was a vexatious litigant and undischarged
bankrupt who made a number of registrations on the PPSR
against the property of
the Applicant, the National Australia Bank (‘NAB’). On 24 April
2016, the ‘Trustee for
the Andrew Garrett Family Trust No. 4’
registered a financing statement on the PPSR, claiming a security interest in
respect
of collateral described as “All present and after-acquired
property – No exceptions” of NAB. Following the registration,
Mr
Garrett emailed NAB attaching a copy of a Security Deed (titled
“Distributor License Purchase Vendor Finance Performance
Security
Deed”) (‘the Security Deed’) which purported to be a charge
granted by NAB in favour of two parties: OenoViva
and Mr Garrett as trustee
for the Family Trust. The Security Deed relevantly stated that: “This
Charge is registered pursuant
to the undertaking as to lost costs and damage
given by the Chargee in SCI-2004-127; Andrew Garrett Wines Resorts Pty Ltd
& Anor v National Australia Bank Limited”.
The undertaking
as to damages arose in connection with proceedings taken in South Australia by
NAB to enforce its rights under two
registered mortgages granted by Andrew
Garrett Wine Resorts Pty Ltd (Resorts) and Mrs Averil Garrett (Mrs Garrett) in
respect of
three properties (collectively known as Springwood
Park).[8] The parties claimed that
they were entitled to a ‘royalty stream’ from Beringer Blass Wine
Estates Ltd, which they proposed
to sell to pay the interest payments in respect
of the mortgages granted by NAB. NAB then applied for injunctive relief to
prevent
the parties from transferring their rights to the royalties. The
relevant undertaking provided by NAB was described by Besanko J
as requiring
them “to abide by any order a court or a judge may make as to
damages” in connection with the application.
Mr Garrett contended that the
undertaking as to damages in this prior proceeding provided a relevant
foundation for a security interest
to arise, thereby validating his financing
statement.
After receiving Mr Garrett’s email of 24 April, NAB
sent an amendment demand to Mr Garrett pursuant to s 178 of the PPSA. The
demand stated that NAB had never granted a security interest in favour of Mr
Garrett, and had not executed the Security Deed relied
upon to found the
security interest. Mr Garrett failed to register a financing change statement,
and on 1 May 2016 sent another email
to NAB, this time with two documents
entitled, “Deed of Appointment of Controller” and “Notice of
Crystallisation
of Charges/Seizure of Assets” within which he purported to
appoint himself as the “managing controller” in respect
of all of
NAB’s property. As Mr Garrett had failed to respond to the amendment
demand within the five-day period provided for
by s 179(1)(b), the Applicant
applied to the Court for an order to remove the registration. In addition, the
Applicant sought an injunction against
Mr Garrett to restrain him from
registering any further financing statements on the PPSR against NAB’s
property, as well a
declaration that his appointment as the Bank’s
‘managing controller’ was invalid.
B Justice Beach’s Decision
There were two key issues before the Court for determination. First, was
the amendment demand issued by NAB authorised as required by s 178(1),
with the consequence that an order could be made by the Court under s 182 of the
PPSA. Secondly, if the amendment demand was authorised, the Court had to
decide if Mr Garrett’s registration had complied with s 151(1), which
would require him to have believed on reasonable grounds that he was the secured
party of the relevant collateral.
In considering NAB’s amendment
demand, Beach J commenced by determining that NAB bore the onus of establishing
that its demand
was authorised in accordance with the requirements of s 178(1)
of the PPSA. It was found that the amendment application had complied, on
the basis that the collateral described in Mr Garrett’s registration
did
not secure any obligation owed by NAB to him as a secured party. As NAB had
established that its amendment demand was authorised,
Beach J was then required
to consider whether an order should be made under s 182 for the removal of Mr
Garrett’s registration.
The primary issue for determination by
Beach J, was whether Mr Garrett had an interest sufficient to meet the statutory
definition
for a ‘security interest’. Section 12 of the PPSA
requires an interest in personal property, provided for by a transaction
that secures payment or performance of an obligation. His
Honour concluded that
an undertaking as to damages cannot be a security interest for the purposes of
the PPSA.[9] In coming to this
conclusion, his Honour noted that the inclusion of the word
‘transaction’ in the definition of a ‘security
interest’
imports a requirement that the relevant transaction be a consensual arrangement.
His Honour noted that the undertaking
was granted to the South Australian
Supreme Court in any case, thereby precluding Mr Garrett from obtaining an
interest. His Honour
also pointed to discussion in Cirillo v Citicorp
Australia Ltd where Gray J commented that an undertaking as to damages
“is given to the court and not to an enjoined party....and does not
found
a cause of action.”[10]
Beach J also noted that the definition of a security interest under the
PPSA does not extend to interests that arise by operation of law, such as
constructive trusts or equitable charges. His Honour considered
the comments
made by Robson J in Sandhurst Golf Estates Pty Ltd v Coppersmith Pty Ltd,
where it was noted that a claim based upon obtaining equitable relief does not
arise from a consensual transaction, and is therefore
not a security interest
for the purposes of the
PPSA.[11] In that case,
Robson J concluded that in such circumstances the court would have the
jurisdiction to restrain a person from registering
a security interest in
another’s personal property in circumstances where that person has been
found to have no such interest.[12]
Justice Beach agreed with this conclusion, and granted NAB the order sought
under s 182(4)(a) to require an financing change statement to be filed. In
addition, his Honour also granted injunctive relief to NAB to prevent Mr
Garrett
from filing similar financing statements. In arriving at his conclusion, his
Honour noted that Mr Garrett could not believe
on reasonable grounds, as
required under s 151(1), that he possessed a valid security interest to support
such an application, and consequently, should be restrained from doing so
in the
future.[13]
III IS THE PENALTY AND ENFORCEMENT REGIME EFFECTIVE?
The Court’s decision highlights a key issue presently facing the
PPSR, which is how to best address the issue of improper registrations,
either
through court imposed penalties, or under the Registrar’s own powers of
enforcement. At the outset, it must be noted
that Mr Garrett’s behavior
would not typify the conduct of most parties seeking to register an interest
upon the PPSR. However,
that should not detract from the lessons to be drawn
from Beach J’s conclusions in relation to the registration process and
the
court’s ability to prevent against abuses of the register. Bearing in mind
that a breach of s 151(1) constitutes a civil penalty, Mr Garret’s
conduct, while unusual, would seem to be the perfect candidate for the
application
of a penalty. Beach J’s decision did not consider the
provision, as no civil penalty order was sought against Mr Garrett’s
trustee in bankruptcy, likely owing to his bankruptcy status. Yet, as Mirzai
notes, this continues a trend whereby Australian courts
have yet to apply a
civil penalty to conduct in breach of s
151(1).[14] While the NAB was able
to obtain a court order in the present matter to remove the registration, it is
clear that a more stringent
approach is required.
In the absence of any
form of penalty being imposed by the Court, the only remaining avenue of redress
for parties facing a vexatious
litigant is to hope that the Registrar will
exercise its powers under Pt 5.3 of the Act and refuse the registration.
However, the present powers of the Registrar are ill-equipped to prevent such an
outcome,
and ultimately do little to prevent the accumulation of clutter upon
the Register. This was noted in the Whittaker Review into the
PPSA, which
found that the ease of the registration process made it impracticable for the
Registrar to exercise its powers for refusal
under ss 150(3)(c) and (d),
resulting in the Review recommending that the provisions be
deleted.[15] The ineffectiveness of
these provisions also raises the broader question of whether the
Registrar’s powers under the demand
application regime are worthwhile
inclusions in the Act. The Whittaker Review has noted that the process
presents difficulties for
the Registrar, who is required to act in a
quasi-judicial capacity on such applications, usually with limited
information.[16] Furthermore, the
applications are highly frequent placing tremendous strain upon the Registrar,
who receives more than two requests
per day to issue an amendment
notice.[17] The reforms presented by
the Whittaker Review have suggested a reversal of the onus of proof in the
amendment demand procedure, which
this paper will turn to consider in the next
portion. Given the recent publication of the Review, the recommendation is yet
to be
acted upon by the Federal Parliament, leaving parties little choice but to
remain vigilant in monitoring their registered interests
in relevant collateral,
and following the amendment demand procedure to challenge any questionable
registrations.
IV WHO BEARS THE ONUS?
A key point of discussion raised by Beach J was the question of who
should bear the onus of proof in an amendment demand application.
In reaching
his decision, Beach J commented on the interpretation of the registration
process made in the previous decision of the
New South Wales Supreme Court in
Capital Finance Australia Ltd v
Clough.[18] In that decision,
Rein J adopted the views of the New Zealand High Court in concluding that the
purported secured party bore the
onus of establishing that they had a reasonable
belief for registering their financing statement or financing change
statement.[19] Justice Rein’s
comments reiterated the previous view he had stated in the earlier case of
Macquarie Leasing, where he had similarly found a secured party had
failed to provide sufficient reasons to justify their
registration.[20] However, Beach J
resisted this interpretation of s 182(4). As his Honour noted, this view would
import a reverse onus contrary to the provisions of the Act. Section 182(4)
provides that on an application for judicial review of an amendment demand, the
court may make an order requiring the Registrar to
amend the registration if it
considers the amendment demand to be authorised under s 178. Relevantly,
s 178(1) provides that a person with an interest in the collateral may give a
demand for a financing change statement to be registered and
that such a demand
will be authorised if it satisfies the table provided in s 178(1). That table
provides two instances where a demand will be valid: where either no collateral
at all, or any particular collateral described
in the registration secures any
obligation owed by a debtor to the secured party. In his Honour’s view,
the NAB bore the onus
of establishing that its demand was authorised under the
table in s 178(1), and as it had established that it was authorised it succeeded
in its application.[21]
There are good reasons to favour the approach of Beach J over that of
Rein J. Justice Rein’s view would appear to conflate two
separate issues
under the PPSA. The first question arises under s 151(4), and applies
where a person is seeking to establish that they had reasonable grounds for
their belief that the person described in
the financing change statement was the
secured party. In that situation, the person who has registered the financing
statement bears
the evidential burden of proving that they held such a belief.
This is to be contrasted with the situation where a party has made
an amendment
demand, where the key issue is instead whether the demand itself is authorised,
a question which must be proven by the
applicant for the amendment demand, not
the secured party.
While Rein’s J view may not accord with the
PPSA in its current form, the policy position reflected in Rein J’s
position is not without support. The Whittaker Review has recommended
a reversal
of the onus of proof within the amendment demand provisions to accord with the
approach presently taken under the Personal Property Securities Act 1999
(NZ).[22] In New Zealand, a
person who gives an amendment demand can procure an amendment of the Register in
accordance with the demand, unless
the secured party can produce a court order
within a 15-day period.[23] Such an
approach favours the grantor’s interest to that of the secured party, and
has the potential for grantors to improperly
use the system. However, the
Registrar has noted that, so far, approximately 90% of amendment demands have
resulted in the removal
of the relevant registration, thus, any reversal of the
onus of proof is unlikely to create too great of an
imbalance.[24] As a registration
implies a valid security interest, it should be for the party seeking to protect
that interest to provide sufficient
proof of its existence, and thus, the
validity of the relevant registration. As this paper will go on to discuss in
the next section,
it would be fair to expect a secured party to bear the onus of
proof in establishing the validity of their registration, and would
align with
the process presently applied to the lodgment of caveats under the Torrens title
system.
V FOLLOWING THE TORRENS APPROACH
A further consideration briefly alluded to by the Court, is whether the
PPSA provisions should be interpreted in a similar way to the rules
applying to caveats under the Torrens System. This discussion was first
raised
in the case of Sandhurst, where Robson J had commented that ‘the
statutory procedure that enables a person to register a financing statement
claiming
a security interest over personal property under the PPSR is for
relevant purposes not dissimilar to the statutory procedure for
lodging caveats
over Torrens land.”[25] In
reaching this view, Robson J referred to the comments of Waddell CJ in Halaga
Developments v Grime, where his Honour had noted that lodging a series of
identical caveats amounted to an abuse of the caveat provisions, entitling the
court to exercise its jurisdiction under s 23 of the Supreme Court Act 1970
(NSW) and grant an injunction to restrain the
action.[26] Justice Robson also
referred to similar comments made by Murray J in Milne Feeds v Bride, who
concluded that it was within the jurisdiction of the court “to grant an
injunction restraining a party from conduct which
is lawful...upon the ground
that such a restraint is necessary in the interests of
justice.”[27] However, this
interpretation was resisted by Beach J in the present case, who noted that,
“in my view, caution has to be exercised
in aligning the procedure
under s 182 with the procedure for removing or maintaining a caveat
over real property and the suggestion
of some reverse onus
mechanism.”[28]
It
would be appropriate to equate the position applying to caveats under the
Real Property Act 1900 (NSW) and its interstate equivalents to the
registration of financing statements under the
PPSA.[29] Before turning to
note the similarities between the processes, it must be borne in mind that the
Torrens system, unlike the PPSA, is a system of title by registration
rather than a system of priorities. Further, unlike the Torrens system,
registration under the
PPSA is not the sole or even strongest method for
perfecting an interest and thereby gaining priority under the
PPSA.[30] The mere act of
registering upon the PPSA will not confer a party an interest or even
ensure them priority unless they have also complied with the requirements for
attachment
and enforcement under sections 19 and 20 of the PPSA. However,
those fundamental distinctions aside, the inquiry under both the Real Property
caveat provisions, and the PPSA amendment demand provisions each strike
at a similar question.
Under the Torrens System, it must be noted that
caveats are not in fact ‘registered’ but are instead
‘lodged’,
with the consequence that the lodgment of a caveat will
not constitute registration of the interest claimed by the
caveator.[31] Nevertheless, the
provisions require proof that the relevant party has a ‘caveatable
interest’ in the particular parcel
of land, whether that is a legal or
equitable interest. In seeking to remove a caveat, the caveator bears the onus
of sustaining
the caveat, and the test is substantially equivalent to that which
applies on an application for an interlocutory injunction in that
the caveator
must show two things. First, a seriously arguable claim to a caveatable interest
which would entitle the caveator to
an injunction prohibiting the proposed
dealing, and secondly, that the balance of convenience favours the retention of
the caveat.[32] This inquiry
ultimately results in the caveator needing to establish the foundation for their
relevant interest or estate in the
land, and whether such an interest would be
of the type capable of registration under the Torrens system. This process is
directed
towards examining the genuineness of a caveat that has been lodged, but
in essence, requires the court to consider issues which go
to the very
foundation of the Torrens title register, namely whether the party has a valid
interest or estate in the relevant parcel
in land.
While the process
outlined under s 182 of the PPSA is not seeking to determine whether
somebody has a perfected security interest, title to the relevant goods or even
priority over
other parties, it nevertheless entails an examination of the
underlying interest itself. Although s 182 is primarily directed towards
determining whether the request to amend the relevant registration was carried
out in accordance with the relevant provisions, that
inquiry necessitates a
Court to consider whether the party named as a ‘secured party’ upon
the registration is in fact
a secured party within the meaning of s 10.
Relevantly, s 10 defines a ‘secured party’ as a “person who
holds a
security interest for the person’s own benefit or for the benefit
of another”.[33] The question
of whether a party is secured, and therefore whether they hold a security
interest, goes to the very heart of the PPSA. Without a valid security
interest within the terms of s 12, a party is incapable of satisfying the other
requirements under the PPSA for obtaining a perfected interest, and
therefore priority under the priority regime in Pt 2.6 of the PPSA.
Accordingly, although each system operates upon with a different
functional basis, one for the purposes of title and the other for
determining
priority, each statutory process will require a court to examine the
party’s fundamental interest in the relevant
property. Thus, it would be
only logical that an inquiry which requires a Court to determine whether a party
does in fact have a
relevant interest capable of registration under the Act
should place the burden upon the party seeking to maintain that registration.
Consequently, the views posited in the Whittaker Review and by Robson J in
Sandhurst can be seen as more persuasive, and a reversal in the onus of
proof in line with the position presently applicable to caveats over
Torrens
title land has much to commend it.
CONCLUSION
The decision in National Australia Bank Ltd v
Garrett provides a timely reminder of some of the issues which
presently affect the PPSA register. Justice Beach’s examination of
the amendment demand process under Pt 5.6 of the PPSA presents yet a
further illustration of the types of considerations that the court must take
into account when deciding to remove a
registration from the Register. Although
Mr Garrett ultimately escaped from a civil penalty, his actions provide a
perfect example
of the types of conduct the penalties scheme was designed to
prevent. While a civil penalty was not sought by the NAB, future actions
of a
similar type are likely to attract an appropriate penalty. As this article
notes, although the Registrar is empowered to amend
or remove registrations
pursuant to s 150(3) of the PPSA, the sheer volume of such applications
has meant that such a power is not as effective as a tool for parties as it
would have appeared
at first glance. Furthermore, the provisions in Pt 5.6
relating to amendment demands presently place the onus of proof upon the party
seeking to alter the registration. That onus would be more appropriately borne
by the party seeking to retain the registration. As
this paper notes, much like
the Torrens Title system of registering caveats, amendment demands require a
court to examine the underlying
nature of a secured party’s interest,
namely, whether they do in fact possess a security interest as defined by the
PPSA. Such a requirement should necessarily place the burden of proof
upon the secured party seeking to prioritise their interest, rather
than the
purported grantor who may not be as well placed to disprove the relevant
interest. Yet, in the absence of an amendment to
such provisions, this decision
serves to reinforce that parties will need to be as proactive as possible in
monitoring any registrations
made against them either as grantor, or against any
collateral over which they hold a relevant security interest.
[*] BA, LLB (Hons I), LLM (Syd).
PhD candidate and Tutor at the University of
Sydney.
[1]
Ibid.
[2] Personal Property
Securities Act 2009 (Cth), s
150(1)(a).
[3] Personal Property
Securities Act 2009 (Cth), s 153(1) prescribes the details to be included on
a financing change statement, including details of the grantor, the secured
party and a
brief description of the relevant collateral.
[4] Personal Property
Securities Act 2009 (Cth), s
178(1).
[5] Personal Property
Securities Act 2009 (Cth), ss
179(1)(b)-(c).
[6] Personal
Property Securities Act 2009 (Cth), ss 182(1)-(2).
[7] Personal Property
Securities Act 2009 (Cth), s
182(4)(a).
[8] Issued in connection
with the Court’s decisions in Andrew Garrett Wine Resorts Pty Ltd &
Anor v National Australia Bank Ltd [2004] SASC 60, and Andrew Garrett
Wine Resorts Pty Ltd & Anor v National Australia Bank Ltd (No 2) [2004]
SASC 229.
[9] National
Australia Bank Ltd v Garrett [2016] FCA 714 at [42] per Beach
J.
[10] Cirillo v Citicorp
Australia Ltd [2004] SASC 293 at [72]- [74] per Gray
J.
[11] Sandhurst Golf Estates
Pty Ltd v Coppersmith Pty Ltd [2014] VSC 217; (2014) 285 FLR 267 at [98]- [99].
[12] Sandhurst Golf Estates
Pty Ltd v Coppersmith Pty Ltd [2014] VSC 217; (2014) 285 FLR 267 at
[117].
[13] National Australia
Bank Ltd v Garrett [2016] FCA 714 at [50] per Beach
J.
[14] Nicholas Mirzai,
‘Pollution on the PPSR – and what to do about it’, (2015) 33
Company and Securities Law Journal 30 at 34.
[15] Bruce Whittaker,
‘Review of the Personal Property Securities Act 2009 – Final
Report’, 249, Recommendation
163.
[16] Bruce Whittaker,
‘Review of the Personal Property Securities Act 2009 – Final
Report’, 227.
[17] Ibid.
[18] Capital Finance
Australia Ltd v Clough [2015] NSWSC 1327, per Rein
J.
[19] Toyota Finance New
Zealand Ltd v Christie [2009] NZHC 827 at [16]- [19] per Asher
J.
[20] Macquarie Leasing Pty
Ltd v DEQMO Pty Ltd [2014] NSWSC 1466 at [27] per Rein
J.
[21] National Australia
Bank Ltd v Garrett [2016] FCA 714 at [33] per Beach
J.
[22] Bruce Whittaker,
‘Review of the Personal Property Securities Act 2009 – Final
Report’, 229, Recommendation
139.
[23] Personal Property
Securities Act 1999 (NZ), s 165.
[24] Bruce Whittaker,
‘Review of the Personal Property Securities Act 2009 – Final
Report’, 227.
[25]
Sandhurst Golf Estates Pty Ltd v Coppersmith Pty Ltd [2014] VSC 217; (2014) 285 FLR
267 at [115].
[26] Halaga
Developments Pty Ltd v Grime (1986) 5 NSWLR
740.
[27] Milne Feeds Pty Ltd
v Bride (unreported, Supreme Court, WA, Murray J, No Civ 1076 of 1996, 7 May
1996).
[28] National Australia
Bank Ltd v Garrett [2016] FCA 714 at [33] per Beach
J.
[29] Transfer of Land Act
1958 (Vic), Property Law Act 1969 (WA), Real Property
Act 1886 (SA), Property Law Act 1974 (Qld), Land Titles
Act 1980 (Tas).
[30]
Personal Property Securities Act 2009 (Cth), s
21.
[31] Peter Butt, Land Law,
(Lawbook Co, 2010, 6th ed), 763, referring to Crown Developments
Australia Pty Ltd v Ginger Development Enterprises Pty Ltd [2003] NSWSC 593
at [46] and Finlayson v Finlayson [2002] FamCA 898; (2002) 29 Fam LR 460 at 526-532.
[32] Eng Mee Yong v
Letchumanan [1980] AC 331 at 337-338; Ridge v Incentive Programmes Ltd
(1987) Q ConvR 54-172 at 57-163; Re Clement’s Caveat [1981] Qd
R 341.
[33] Personal Property
Securities Act 2009 (Cth), s 10, ‘secured party’ (a).
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