FEDERAL COURT OF AUSTRALIA

Scottish Pacific (BFS) Pty Ltd v Registrar of Personal Property Securities [2017] FCA 1378

ORDERS

THE COURT ORDERS THAT:

1.    The parties must file and serve any brief submissions they wish to make on the issue of the appropriate orders as to costs by 4 pm on 7 December 2017.

2.    The determination of the appropriate orders as to costs will be made on the papers unless the Court accepts any argument raised in those submissions that it is necessary, for procedural fairness, that the determination be made following an oral hearing.

3.    The application is otherwise dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FARRELL J:

Leave to proceed granted

1    On 3 August 2017, under s 500(2) of the Corporations Act 2001 (Cth), Gleeson J granted Scottish Pacific (BFS) Pty Ltd leave to proceed against Phoenix Shutdown Services Pty Ltd (in liq) (Company) on an application which it filed on 10 July 2017. Scottish Pacific sought orders under ss 186 and 195 of the Personal Property Securities Act 2009 (Cth) (PPS Act) directing the Personal Property Securities Registrar to restore data which had been removed from the Personal Property Securities Register (PPSR or register) and certain declarations.

2    The plaintiff, Scottish Pacific, was formerly known as Bibby Financial Services Australia Pty Ltd and it is referred to as either “Bibby” or “Scottish Pacific” in these reasons. It is not clear as at what date the name changed.

Originating process and proposed short minutes of order

3    At the commencement of the hearing, counsel for Scottish Pacific sought leave to file an amended originating process. Leave was granted, there being no objection. It is notable that neither the originating process lodged on 7 July 2017 nor the amended originating process was made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

4    Counsel for Scottish Pacific also tendered proposed short minutes of order. The proposed short minutes of order were (as amended during the course of the hearing):

1.    Pursuant to section 186 of the Personal Property Securities Act 2009 (Cth) (PPSA), the First Defendant is to:

a.    Register financing change statements on the Personal Property Securities Register (PPSR) to correct the end time of each of the following PPSR Registrations:

i.    201406180061766, with a registration end time of 1 June 2019;

ii.    201406180061778, with a registration end time of 1 June 2019; and

iii.    201407080009823, with a registration end time of 1 July 2019,

    (together, the Registrations); and

b.    Otherwise restore to the PPSR the Registrations in their entirety as though the registration end times had never been changed.

2.    There be no order as to costs.

The Court declares that:

3.    The financing change statements with change numbers 35658617, 35658733 and 35658783 lodged by the Plaintiff with the First Defendant on 13 November 2015 in respect of the security interests granted by the Second Defendant, both in its own capacity and as trustee for the PPS [sic] Trust (ABN 46 425 835 127), incorrectly resulted in a discharge of the Registrations as opposed to a transfer of the Registrations to the Third Defendant.

4.    The Registrations on the Personal Property Securities Register (PPSR) were incorrectly removed from the PPSR upon registration of the financing change statements filed by the Plaintiff on 13 November 2015.

5.    Any orders, declarations, finding and determinations made in these proceedings have no effect on the parties and the liquidator of the Second Defendant in relation to the validity and enforceability of any security interest held or claimed to be held by the Third Defendant or the Plaintiff over the assets of the Second Defendant.

5    In the course of the hearing, it became clear that the Registrar and the Company’s liquidator, Neil Raymond Cribb, would neither consent to nor oppose orders and declarations being made in the form of the proposed short minutes, although the Registrar expressed reservations about proposed order 5. The liquidator pressed for proposed order 5 because he was concerned that any declarations, orders, findings or determinations made in this matter may have an impact on proceedings he intends to commence in relation to security interests which Scottish Pacific and Rush Corporation Pty Ltd claim to have. The parties accepted that these proceedings are an unsuitable vehicle to resolve the issues in the prospective proceedings. At the end of the hearing, Scottish Pacific reserved its position on proposed order 2.

6    These are my reasons for refusing to make first proposed order (Order 1) and the proposed declarations.

Background

7    Section 186 of the PPS Act provides:

186    Incorrectly removed data – restoration

(1)    The Registrar may (at his or her initiative) register a financing change statement to restore data to the register (including an entire registration) if it appears to the Registrar that the data was incorrectly removed from the register under this Act.

(2)    If data is restored to the register under subsection (1), for the purposes of this Act the data is taken never to have been removed from the register.

8    Section 195 of the PPS Act provides:

195    Registrar – functions and powers

(1)    The Registrar has the functions given under this Act or any other Act.

(2)    The Registrar has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.

9    In SFS Projects Australia Pty Ltd v Registrar of Personal Property Securities (2014) 226 FCR 188; FCA 846 (SFS Projects v Registrar), Gleeson J clarified the interpretation of s 186(1) of the PPSA by finding that the Registrar’s power to restore data to the PPSR is enlivened when a registration has been altered as a result of an error in a financing change statement lodged by a secured party as well as when the data is incorrectly removed as a result of mistake by the Registrar. It was common ground that the financing change statement which terminated the registration did not reflect the intention of the secured party to assign the registration. The error was identified an hour after it occurred, an application was made to the Registrar to correct the error the day after and remedies were sought from the Court 16 days after the error occurred. In SFS Projects Australia Pty Ltd v Registrar of Personal Property Securities (No 2) [2014] FCA 987 (SFS Projects (No 2)), Gleeson J made orders of a kind now sought by Scottish Pacific directing the Registrar to correct the PPSR by restoring data. I will refer to these decisions together as the SFS Projects decisions.

10    Following the SFS Projects decisions, the Registrar published Practice Statement No.8 setting out the approach the Registrar will adopt in exercising powers under s 186. Relevantly, the Registrar notes that:

A key responsibility of the Registrar is to ensure that the PPSR provides a high level of certainty to those users who place reliance upon it. This is consistent with the PPS Act’s objective to provide ‘more certain, consistent, simpler and cheaper arrangements for personal property securities for the benefit of all parties’ [citing the Personal Property Securities Bill 2009 (Cth), Replacement Explanatory Memorandum, 11]. At the same time the Registrar recognises that a secured party who has incorrectly removed data from the PPSR, in relation to their security interest, is likely to have an interest in having the removal reversed if possible [citing the SFS Projects decisions].

The Registrar will be likely to exercise the discretion in section 186 to restore the missing data if the likelihood of a third party having relied upon the state of the PPSR after the date it was removed, and thereby being disadvantaged by restoration, is very low.

11    It is common ground that Scottish Pacific’s application and the relief sought in Order 1 is consistent with the SFS Projects decisions. The factual matrix is different in that it is not common ground that the Registrations (as defined in the proposed short minutes of order) were discharged in error and there was a period of approximately nine months between the alleged error and the application to the Registrar to restore the registrations.

12    No submissions were made in relation to the application of s 195. However, in light of other provisions of the PPS Act which deal expressly with the restoration of data to the register, I do not consider that s 195 would be an appropriate basis for the orders now sought by Scottish Pacific.

13    The following affidavits were read and exhibits tendered on the application without objection:

(1)    The affidavits of Gerard Peter Carides sworn on 7 July 2017 and on 7 September 2017 and exhibit GPC1. The affidavit of Steven Davies sworn on 19 September 2017. The affidavits were sworn in support of Scottish Pacific’s application. Mr Carides is a partner in Gillis Delaney Lawyers, who represent Scottish Pacific. Mr Davies is the chief operating officer of Scottish Pacific.

(2)    The affidavit of Peter James Edwards sworn 17 August 2017 and exhibit PJE1. That exhibit includes a copy of a recommendation made to the Registrar by a senior advisor within the Australian Financial Security Authority (AFSA) on 10 July 2017 (Recommendation). Mr Edwards is a Deputy Registrar of Personal Property Securities and he was the acting Registrar from 17 December 2016 to 6 August 2017.

(3)    The affidavit of Neil Raymond Cribb sworn on 31 August 2017. Mr Cribb is the liquidator of the Company.

14    I do not understand chronological matters to be contested. However, in light of my findings as to jurisdiction (see below) and having regard to the concerns expressed by the liquidator, the following material is provided by way of background without any finding being made as to the correctness of the matters asserted.

15    On 18 June 2014, Bibby lodged two financing statements with the Registrar. They were lodged against the Company in its own capacity and as trustee of the PSS Trust (ABN 46 425 835 127) (Grantor). Bibby lodged a further financing statement against the Grantor on 8 July 2014. These are the “Registrations” referred to in the short minutes of order.

16    On or about 23 June 2014, under a deed entitled “Security Deed”, the Company (in its own right and as trustee for the PSS Trust) granted Bibby security interests over all of its present and after-acquired personal property (Bibby Security Deed) in exchange for financial accommodation to be provided by Bibby under a “Partnership Factoring Agreement” also bearing that date.

17    On 10 July 2014, National Australia Bank released all present and future trade receivables (that is, book debts) from its security over the Company. This satisfied a condition of the Partnership Factoring Agreement.

18    On 5 August 2015, Rush entered into a security deed with the Company (Rush Security Deed).

19    On 12 August 2015, Rush registered a security interest on the PPSA against the Company in its own capacity only with a collateral class of “all present and after acquired property – no exceptions” (Assignee Registration).

20    On 23 September 2015, Bibby entered into a “Deed of Assignment” with Rush pursuant to which Bibby agreed to assign to Rush its right and title to the “Assigned Documents” free of encumbrance on the “Commencement Date” in consideration of the receipt of the “Assignment Fee” and Rush assumed the “Assumed Obligations”.

21    On 24 September 2015, there was correspondence between Mark Yorston of Wisewould Mahony Lawyers and Mr Carides concerning an email direction by “Charlie Almenara” directing Bibby to remit all funds to Rush. The email states that Mr Carides has attached the executed Deed of Assignment and that Bibby will “now apply the $25,000.00 First Tranche from its suspense account in reduction of the Exposure”. “In contemplation of payment of Bibby’s Exposure in full and the assignment occurring under the Deed” Mr Carides requested Rush’s bank account details for the payment of any surplus proceeds and debtor receipts and Rush’s secured party group number for the purpose of Bibby “transferring the security interests under clause 7(b) of the Deed”.

22    By an email on 8 October 2015, Robert O’Keefe of Wisewould Mahony Lawyers provided Melissa Barhy of Gillis Delaney with Rush’s secured party group number. In his affidavit sworn on 7 July 2017, Mr Carides deposes that on 12 October 2015, Ms Barhy advised Scottish Pacific of that number, without specifying who the person advised was or providing written evidence of the communication.

23    On 20 October 2015, Rush appointed Liam Bellamy and Malcolm Howell of Jirsch Sutherland as receivers and managers of the Company (Receivers). On 23 October 2015, National Australia Bank appointed Jason Mark Tracy with Imogen Troedson as receivers and managers of the Company.

24    On 13 November 2015, Bibby lodged financing change statements to amend the “end time” of the Registrations with the effect of causing the Registrations to end on that day.

25    Scottish Pacific submitted to the Registrar and to this Court that this was in error and Messrs Davies and Carides gave sworn evidence to that effect. Scottish Pacific says that, as a consequence of the Registrations being discharged from the PPSR, it has been unable to comply with the Deed of Assignment because any new registration on the PPSR by Scottish Pacific to correct the error does not allow the security interests to have been “continuously perfected” within the meaning of s 56 of the PPSA, which may have an adverse effect on the priority of the Registrations and consequently on Rush’s capacity to enforce the underlying security interest.

26    On 30 November 2015, the Company was placed into liquidation and Mr Cribb was appointed as liquidator.

27    On 27 July 2016, Rush discharged the Assignee Registration.

28    On 4 August 2016, Catherine Pulverman of Wisewould Mahony Lawyers (acting for Rush) sent an email to Mr Carides and Ms Barhy in which Ms Pulverman said:

We refer to our email dated 8 October 2015 [referred to at paragraph [22] above] and specifically the Deed of Assignment between our respective clients.

Pursuant to clause 7(b)(ii) [sic] of the Deed of Assignment, your client was obliged to arrange for the PPSR security interests to be transferred to our client within 5 days of the Commencement Date (being when the assignment fee has been paid which was on or before 1 October 2015). A PPSR search undertaken on 22 October 2015 in relation to Phoenix discloses that your client still had its PPSR security interests registered. Please confirm whether your client’s PPSR security interests were transferred to our client as required by the Deed of Assignment. We provided our client’s Secured Party Number which was for the purposes of having the registrations transferred.

We request that you provide immediate confirmation that your client’s PPSR security interests were transferred to our client and provide the relevant verification statements to our office as soon as possible. We also request that you provide an updated PPSR search for Phoenix evidencing that Rush has now been put in place of Bibby’s security interests.

29    Mr Carides deposed that immediately following receipt of the 4 August 2016 email he sought instructions from Scottish Pacific and was advised that the Registrations were released in November 2015 and this was the first occasion on which Scottish Pacific became aware of the error.

30    On 5 August 2016, Scottish Pacific registered two further security interests in the PPSR against the Company in its own right and as trustee of the PSS Trust (Replacement Registrations) covering broadly the same security interests as the Registrations.

31    On 10 August 2016, Scottish Pacific made a request to the Registrar to register a financing change statement to restore the Registrations to the PPSR under s 186 of the PPS Act on the basis that it had accidentally discharged the Registrations instead of assigning them to Rush.

32    On 11 August 2016, Rush also made a request to the Registrar to restore the discharged Assignee Registration under s 186 on the basis that Rush had instructed the removal of another registration but its lawyers had accidentally discharged the Assignee Registration.

33    On 29 August 2016, the Registrar undertook a review of the PPSR transactions conducted since the discharge of the Registrations. There were no searches conducted under the Registrations’ numbers. There were 23 searches conducted under the Company’s ACN; the first was conducted on 24 November 2015 (after the Company was placed in receivership on 20 October 2015) and the next three searches were conducted on 1 December 2015 (the day after the Company was placed in liquidation). Fifteen searches were conducted under PSS Trust’s ABN, the first on 27 November 2015 and the next on 1 December 2015. The search on 24 November 2015 was conducted by the liquidator and the search on 27 November 2015 was conducted on behalf of the Receivers. Thirty-six searches were conducted after the Company was placed in liquidation on 30 November 2015 but before registration of the Replacement Registrations on 5 August 2016.

34    On 31 August 2016, the Registrar wrote to Scottish Pacific’s lawyers seeking further information, including evidence relating to the identity and rights of third parties who might be affected by the restoration of the discharged Registrations, including pertaining to the identity of the persons conducting the relevant search activity. The Registrar also sought (1) a written statement from the liquidator of the Company confirming that he did not object to the restoration of the Registrations and that no other security interest holders would be affected by the restoration; and (2) confirmation that the lodgement of a financing statement had not been the subject of any court proceedings, including proceedings under ss 588FL and 588FM of the Corporations Act.

35    On 13 October 2016, Rush’s lawyers provided to Scottish Pacific’s lawyers a statement dated 10 October 2016 from Benjamin Mitchell, stating among other things:

I confirm that:

(a)    the security interests granted by the Company which are the subject of the Registrations and the Deed of Assignment have not been discharged; and

(b)    As sole Director of Rush, I would not object if the Registrar decides to exercise the discretionary power under section 186 of the Personal Property Securities Act 2009 to restore the Registrations to the PPSR.

36    On 12 December 2016, Dentons wrote to Mr Carides on behalf of the liquidator. The letter noted that:

    the Receivers were appointed by Rush pursuant to the Bibby Security Deed and that security did not currently appear on the PPSR;

    the security interest registered after Rush and the Company entered into a security deed on 5 August 2015 did not appear on the PPSR;

    around 30 November 2015, Rush lodged a formal proof of debt with the Receivers for debts to the sum of $1,279,681.02 incurred in the period from 11 August 2015 to 31 October 2015;

    based on the Receivers’ receipts, they realised $823,794.76 in pre-appointment debtors and $122.59 in interest from BankWest. They paid $524,010 to Scottish Pacific Debtor Finance; $119,155.36 to Rush; $55,000 and $3,557.57 respectively in Receivers’ remuneration and expenses; $50,000 in legal fees; $2,706 for computer IT; and $239.60 for bank charges.

Dentons noted that the liquidator was currently investigating these matters and sought information about:

    what debts the Company owed to Bibby and what invoices had been factored to Bibby as at the date of assignment of Bibby’s security to Rush and asked that copies of invoices be provided;

    why “Scottish Pacific” received payment from the Receivers after its security under the Bibby Security Deed was assigned to Rush; and

    which invoices issued by “Bibby” or “Scottish Pacific” had been paid by the Receivers.

37    Correspondence on 1 February 2017 between Mr Carides and Ms Pulverman confirmed that, to the Receivers’ knowledge, no financing statement lodged against the Company had been the subject of court proceedings, including proceedings under ss 588FL and 588FM of the Corporations Act.

38    On 17 February 2017, Scottish Pacific’s lawyers responded to the Registrar’s request for information and (among other things):

(1)    attached a written statement from Rush confirming that the security interest underlying the Registrations had not been discharged and that it did not object to the restoration of the data;

(2)    stated that they had contacted the receivers to seek information requested by the liquidator in the letter of 12 December 2016 (see [36] above);

(3)    confirmed that, as the liquidator was still investigating the interest of Scottish Pacific and Rush, the liquidator was not prepared to support the reinstatement of the Registrations, however, the liquidator did not object to it and had not asserted that there are other security interest holders who would be affected by the restoration;

(4)    confirmed that there were no court proceedings on foot under ss 588FL and 588FM of the Corporations Act; and

(5)    stated that there were no third parties who would be adversely affected by restoration of the Registrations and that, given the timeline of overlapping registrations by Scottish Pacific, no third parties would have been unaware of the existence of the interests.

39    Mr Carides wrote a letter to Dentons dated 12 April 2017. In the first numbered paragraph, Mr Carides said:

1.    In accordance with the Deed of Assignment between Bibby and Rush (Assignment Deed), the Bibby Security was assigned when the Assignment Fee (as defined in the Assignment Deed) was paid in full. This occurred when the Company’s facility balance went into credit on 25 September 2015. Before going into credit balance on 25 September 2015, the debt owing by Bibby to [sic: to Bibby by] the Company was $268,629.25 plus interest, discount charges, legal fees and early termination fees. We are instructed that Bibby did not issue tax invoices for these amounts however, all debits and credits charged are itemised in the Company’s current account report.

Mr Carides said that, based on information from the Receivers, the payment of $524,010 (see [36] above) to Scottish Pacific Debtor Finance on 24 December 2015 was made on behalf of Rush to reduce its liability to Scottish Pacific Debtor Finance with which Rush had its own debtor finance facility. The payments were not made to Bibby.

40    On 8 May 2017, the liquidator’s lawyers wrote to Scottish Pacific’s lawyers stating:

(1)    Searches on the PPSR conducted on 24 November 2015, 6 January and 18 July 2016 were made on behalf of the liquidator.

(2)    The liquidator had examined the Bibby Security Deed and Facility Agreement assigned to Rush and held the view that the security interests were to be discharged once “Secured Money” had been repaid. On 25 September 2015, the Company paid out the Facility Agreement, including exit fees. This was conceded in paragraph 1 of Mr Carides’ letter of 12 April 2017. The Registrations were removed from the PPSR on 13 November 2015 and that should have occurred because the “Security Interest” was discharged. The liquidator did not accept that the Registrations were “incorrectly removed” and the Registrar does not have power to restore the Registrations. The liquidator therefore opposed restoration of the Registrations.

(3)    The liquidator had instituted legal proceedings involving Scottish Pacific that could change his view on the matter.

41    By an email to Ms Pulverman dated 10 May 2017, Mr Carides confirmed that Scottish Pacific would comply with Rush’s request to transfer the Replacement Registrations and sought confirmation of Rush’s secured party group number which he had on file. He confirmed the liquidator’s position in relation to the request to the Registrar to restore the Registrations.

42    By an email to Mr Carides on 11 May 2017, Ms Pulverman sought to refute the liquidator’s position. She asserted that Mr Mitchell’s statement was correct (see [35] above) and “the Security Interests held by Bibby were paid out by Rush in consequence of the assignment and therefore, the Security Interests were not satisfied by [the Company] nor was the Facility Agreement paid out by [the Company] on 25 September 2015”. Ms Pulverman disputed that the liquidator correctly relied on paragraph 1 of Mr Carides’ letter to Dentons dated 12 April 2017 (see [39] above), pointing out that the Company did not pay out all of the “Secured Money”; rather, the fact that the account went into credit on 25 September 2015 was a result of Rush paying the Assignment Fee to Scottish Pacific and “clause 4.5 of the Security Deed is not applicable in these circumstances”. She said that the Registrations were “incorrectly removed” on 13 November 2015.

43    In reply to Ms Pulverman’s email of 11 May 2017, Mr Carides said:

… I note that your client’s position is that it (rather than [the Company]) paid out the whole of the Assignment Fee.

According to my client’s records, Rush paid $25,000.00 (being the First Tranche) as defined in the Assignment Deed (we have attached a copy of the remittance slip for that payment) while the balance of the Assignment Fee was paid from debtors of [the Company] which had been assigned to [Scottish Pacific].

If your client’s records demonstrate a different position, please provide us as soon as possible with a copy of the relevant banking records.

The attachment is not in evidence.

44    Ms Pulverman responded by letter dated 26 May 2017 as follows:

According to our client’s records, Rush paid the sum of $25,000.00 (being the First Tranche as defined in the Deed of Assignment dated 23 September 2015 (Deed of Assignment) on 23 September 2015 (and which was receipted by Bibby on 25 September 2015). The balance of the Assignment Fee in the sum of $338,605.56 was paid to Bibby, from debtors of [the Company] which had been assigned to Bibby under the Bibby Security Deed, and which debtors were assigned by Bibby to Rush pursuant to the Deed of Assignment. The Commencement Date pursuant to the Deed of Assignment was the date the Assignment Fee (of $363,605.53) was paid in cleared funds to Bibby and this was on 24 September 2015 upon receipt of funds from Newmont NL. The amount was credited against [the Company’s] account but on 30 September 2015, Rush received the sum of $29,845.78 from Bibby which was the over payment of the Assignment Fee as a consequence of the Newmont payment. This supports the position that the assignment had become effective and Rush had taken over all of Bibby rights and interests in respect of the Assigned Documents (including the Secured Monies, the Securities and Debts).

Despite the assertion in Denton’s letter dated 8 May 2017 that pursuant to clause 4.5 of the Bibby Security Deed, the Security Interest had been discharged upon payment of the Secured Money, the Secured Money was not paid in full by [the Company]. The definition of Secured Money under the Security Deed includes, among other things “(d) all money which is or may become payable to Bibby; (e) all money which the Grantor may now or in the future actually or contingently be indebted or liable to Bibby”. The debts were due and payable to Bibby as those debts had been assigned by [the Company] to Bibby under the Bibby Factoring Agreement and it also covered money which is or may become payable to Bibby and there were other debtors which were covered under the definition of Secured Money and assigned to Rush).

The fact that the Company’s account went into credit by receipt of monies from debtors does not support the assertion by the Liquidator that the whole of the Secured Money had been satisfied by [the Company]. Whilst Bibby applied the debtor’s payments to [the Company’s] account, those were amounts which were payable to Rush as part of the Deed of Assignment. We note that Bibby also applied Rush’s payment of $25,000.00 to [the Company’s] account ledger but this was clearly not a payment which was made for the benefit of [the Company].

Accordingly, the Liquidator’s position in relation to the Secured Money and the Security Interest is incorrect because [the Company] did not pay out the Facility and specifically the Secured Money – it was assigned to Rush who took over all of the benefits from Bibby.

We request that you respond to the Liquidator as a matter of urgency and determine whether a Statement will be provided by him to the PPSR Registrar so that the application for restoration can be determined as soon as practicable.

45    On 22 May 2017, Rush’s lawyers wrote to the Registrar asserting that Rush had not authorised the discharge of the Registrations and requested that they be reinstated, repeating the arguments put by the lawyers for Scottish Pacific.

46    On 26 May 2017, Scottish Pacific transferred the Replacement Registrations to Rush.

47    On 22 June 2017, Scottish Pacific’s lawyers wrote to the liquidator’s lawyers refuting the assertion that they did not discharge the Registrations in error. They said that, even if the debts were repaid (which was disputed), the discharge of the Registrations was not automatic. Further, they attached a copy of a letter from the lawyers for the Receivers dated 26 May 2017 which asserted that the Company had not repaid all of the secured monies. Scottish Pacific’s lawyers asked if that would change the liquidator’s position.

48    On 23 June 2017, Scottish Pacific’s lawyers wrote to the liquidator’s lawyers requesting that the liquidator sign a revised statement to the Registrar. The liquidator’s lawyers responded that the Receivers’ lawyer’s letter of 26 May 2017 (see [44] above) “raises more questions than it answers”; the liquidator was “not prepared to rely on bare assertions” made by the Receivers’ lawyers; and the liquidator declined to provide a statement to the Registrar consenting to the restoration of the Registrations.

49    On 23 June 2017, Scottish Pacific’s lawyers wrote to the Registrar attaching information identifying who conducted some of the search activity on the register. They confirmed that the liquidator would not provide a signed statement consenting to the restoration of the data on the basis that the security interests should have been discharged. They maintained that the liquidator’s position was not correct and stated that they would bring court proceedings seeking restoration of the data if the Registrar did not exercise his discretion to restore the data.

50    The Recommendation made to the Registrar was the he should not use his discretion to restore the Registrations. The Recommendation explained (as written):

The basis for my recommendation is as follows:

•    It is clear that a party with an interest in the collateral discharged the Registration.

•    The Liquidator objects to the restoration of the data; this is a very compelling factor against the restoration of the data. The Liquidator is in a better position than the Registrar to be knowledgeable of any obligations owed by the Grantors and therefore, the objection to the restoration of the Registrations gives rise to doubt as to whether to do so.

•    The Registrar can only exercise their discretion to restore the Registrations under s 186 of the PPSA if ‘it appears to the Registrar that the data was incorrectly removed from the register’. Therefore, if it does not appear that the Secured Party discharged the Registrations incorrectly, then the Registrar cannot exercise their discretion to restore them.

Whilst the Secured Party and Assignee claim that the Registrations were accidentally discharged, the Liquidator of the Grantor is of the contrary opinion given the timeline of events leading up to their discharge. It is also worth taking note of the concurrent request of the Assignee requesting restoration of the Assignee Registration where they have also claimed to accidentally discharge their registration almost 8 months later. It raises doubt as to whether the discharge of the Registrations was unintentional.

•    Even if the registrations were accidentally discharged, the Liquidator is also of the opinion that the obligations owed pursuant to the Registrations has been satisfied. This is also contrary to the claims of the Secured Party and the Assignee.

If the obligations owed in respect of the Registrations have been satisfied, it would be contrary to the intention of section 186 to restore them (as they would not be supported by an underlying security interest). As the Liquidator is familiar with the obligations owed by the Grantor, it is prudent to grant some merit to their claim that the obligations underlying the Registrations have been satisfied.

•    There has been a significant amount of search and registration activity since the accidental discharge of the Registration. Whilst there has been some overlap of Registrations made by the Secured Party and the Assignee in respect of the Grantor Company, this is not the case for both Grantors. Of these searches, 22 remain unidentified. The Applicant and Assignee claimed that no third-parties would be affected by the restoration of the Registrations, however the Liquidator cannot support this assertion.

•    Based on this, I do not believe the Registrar can be satisfied that:

•    the Registrations were incorrectly discharged

•    there is still an underlying obligation giving rise to a Security Interest relevant to the Registrations

•    no third parties would be affected by the restoration of the Registrations.

51    On 12 July 2017, the Registrar declined to exercise his discretion to restore the Registrations. Peter James Edwards, Acting Registrar of Personal Property Securities, advised Scottish Pacific’s lawyers that the decision “reflects my concern to exercise my discretionary power under s 186 in such a way that the rights of third parties are protected”. Mr Edwards indicated that he would give the request further consideration should “further information become available that directly addresses the above concern”.

52    By an affidavit sworn on 1 August 2017, Stephen Wilken, a process server, deposed to service of a sealed copy of the originating process and Mr Carides’ affidavit sworn on 7 July 2017 on the National Australia Bank. Although this affidavit was not formally read, the substance of its content was relied on in submissions made by counsel for Scottish Pacific.

53    By his affidavit sworn on 31 August 2017, Mr Cribb, deposed to his solicitors’ communications with Gillis Delaney and Wisewould Mahony and to the facts that he has reviewed the Company’s books and emails, reviewed books produced by Scottish Pacific and Rush in response to directions to produce them from the Supreme Court of Western Australia, interviewed Charlie Almenara, a director of the Company between 9 June 2004 and 2 December 2015 and his solicitors had conducted examinations of Gregory Ian Mitchell and Mr Bellamy. Mr Cribb also deposed to (1) the basis for his views concerning the possibility that “exit fees” had been paid, including a “Minimum Annual Fee”, which would need to be paid if the Partnership Factoring Agreement was terminated before 24 June 2016; and (2) neither he nor any of his team had seen a notice of assignment in the form set out in in item 5 of the Deed of Assignment on their review of the Company’s books and Mr Almenara had advised that he did not recall seeing or receiving such a notice.

54    Mr Cribb made reference to a proof of debt for an amount of $1,279,681.02 and a payment history which he received from Rush. The Court was not taken to these documents during the hearing. Mr Cribb also deposed to his concern that declarations sought by Scottish Pacific will impact on legal proceedings which he intends to commence in relation to the Partnership Factoring Agreement, the Deed of Assignment and what I take to be the Bibby Security Deed.

55    By his affidavit sworn on 19 September 2017, Mr Davies deposed that (as written):

Registrations Discharged in Error

6.    From time to time, for any number of commercial reasons, the Plaintiff would sell or assign its interests in a particular client to a third party.

7.    In such circumstances, it is the Plaintiff’s usual course of business to assign or transfer any security interests the Plaintiff held over its customer to the third party assignee rather than releasing those security interests.

8.    The Plaintiff intended to follow the practice referred to in paragraph 7 when its facility with Phoenix concluded in late September 2015.

9.    The Plaintiff entered into the Deed of Assignment with Rush Corporation Pty Ltd (ACN 600 031 963) (“Rush”) which is referred to in paragraph 16 of the Carides Affidavit (the “Deed of Assignment”).

10.    On 13 November 2015, due to an administrative oversight, the Plaintiff made an error when it discharged the registrations which it had registered in the Personal Property Securities Register in respect of Phoenix and the Trust and which are referred to in paragraph 11 of the Carides Affidavit (the “Registrations”).

11.    At the time of discharging the Registrations referred to in the proceeding paragraph, the Plaintiff intended to comply with the Deed of Assignment to transfer the Registrations to Rush.

Jurisdiction

56    The first duty of a court is to be satisfied of its jurisdiction: see Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174; FCAFC 70 at [32].

57    At the hearing on 20 September 2017, I raised with the parties the question of the Court’s jurisdiction to make Order 1. Although none of the parties oppose the making of Order 1, that fact alone cannot confer jurisdiction on the Court to do so.

58    On 25 September 2017, my Associate sent an email to the parties advising, in summary, that my preliminary view was that I was not in a position to make Order 1 as no application has been made under the ADJR Act and one is necessary; and the discretion whether to restore information resides in the Registrar such that Order 1 is inappropriate. Had an application been made under the ADJR Act, the appropriate order would have been to remit the matter back to the Registrar to make the decision according to law, if the Court were satisfied that one of the grounds set out in the ADJR Act had been made out.

59    The email set out the reasoning for that conclusion and invited the parties to make brief supplementary submissions as to that reasoning.

SFS Projects v Registrar

60    Before discussing the parties’ submissions, it is useful to set out relevant background derived from SFS Projects v Registrar at [1]-[12] and [69]-[77]:

1    The applicants are the assignees of three security interests (“the security interests”) within the meaning of the Personal Property Securities Act 2009 (Cth) (“PPS Act”). At least up until 22 July 2014, the Personal Property Securities Register (“register”) established and maintained under the PPS Act contained data with respect to the security interests.

2    On 22 July 2014, as a result of a mistake made by an officer of the assignor, the assignor applied to the respondent (“Registrar”) to register “financing change statements” which sought to amend “registered financing statements” for the security interests in a manner inconsistent with the intentions of the assignor and the asserted rights of the applicants. In essence, instead of seeking to amend the registered financing statements to reflect the transfer of the security interests from the assignor to the second applicant, the assignor applied to amend the register to record that the security interests were released.

3    The Registrar registered the financing change statements in accordance with the applications, as required by s 150(3) of the PPS Act. According to the Registrar, the effect of registering the financing change statements is that the registrations for the security interests are no longer “effective” within the meaning of the PPS Act. This result, unintended by the assignor, may have caused substantial prejudice to the applicants because, if uncorrected, they may have been deprived of perfected security interests or security interests that have been continuously perfected within the meaning of the PPS Act.

4    The applicants contend that the registrations have been “removed” from the register. They seek orders under s 186 of the PPS Act to compel the Registrar to “restore” the registrations to the register.

5    Both the assignor and the grantor of the security interests consent to the proposed orders.

6    The Registrar contends that he does not have power to do what is sought.

Jurisdiction

7    There is a threshold issue as to whether the court has jurisdiction to deal with the matter.

8    By s 207 of the PPS Act, jurisdiction is conferred on the Federal Court of Australia with respect to a “PPS matter”.

9    Section 206 of the Act provides:

(1)    This Part deals with the jurisdiction of a court with respect to a matter (a PPS matter):

(a)    arising under a provision of this Act authorising an application to be made to a court; or

(b)    otherwise arising in relation to this Act, other than a matter in respect of which the Federal Court or the Federal Circuit Court has jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 [“ADJR Act”]; or

(c)    otherwise arising in relation to a security agreement or a security interest.

(2)    This Part operates to the exclusion of:

(a)    the Jurisdiction of Courts (Cross-vesting) Act 1987; and

(b)    section 39B of the Judiciary Act 1903.

(3)    This Part does not limit the operation of the provisions of the Judiciary Act 1903 other than section 39B.

(4)    Without limiting subsection (3), this Part does not limit the operation of subsection 39(2) of the Judiciary Act 1903 in relation to matters arising under this Act.

(5)    Nothing in this Part affects any other jurisdiction of any court.

(6)    This Part does not apply to matters arising under Part 6.3 (civil penalty proceedings).

10    The applicants contend that this is a PPS matter falling within either s 206(1)(b) or (c). It is clear that the matter is a matter “arising in relation to” the PPS Act. The ultimate issue is whether the Registrar has power under s 186 of the Act to restore data to the register that was incorrectly removed as a result of an error on the part of the person who made an application for its removal.

11    The Registrar submitted that, if the court has jurisdiction under the ADJR Act, then the Court may not have jurisdiction “otherwise arising in relation to [the PPS Act]” within s 206(1)(b). The solicitor for the Registrar, Mr Markus, did not put a positive submission that the court has jurisdiction under the ADJR Act in this case. However, he submitted that, if the court finds in favour of the applicants, then it will be necessary to determine whether the Court’s jurisdiction is derived from the ADJR Act or the PPS Act, in order to identify the relief available to be granted.

12    In the absence of an application under the ADJR Act, my provisional view is that the matter is a “PPS matter” within s 206 and, accordingly, that this court has jurisdiction to determine the matter under s 207.

…

Registrar’s power under s 186 PPS Act

…

69    In my opinion, the word “incorrectly” does not require the identification of an error on the part of the Registrar in removing data from the register. What is required is that data has been removed from the register which ought correctly to be included in the register. This interpretation reflects the difference in language between ss 186 and 188, which concerns the correction of errors and omissions by the Registrar.

70    Further, an ordinary English interpretation of the words “incorrectly removed from the register” includes an act of removal which occurs as a result of error on the part of a person making an application under s 150. This result is consistent with the kinds of circumstances in which data may be incorrectly removed under ss 181 and 182.

71    The evident purpose of s 186 is to ensure that data which should be included in the register, but which has been incorrectly removed, may be restored to the register. It is plainly a “remedial or beneficial provision”: cf Nilant v Macchia (2000) 104 FCR 238 at [39] (Weinberg J). In that case, his Honour said, concerning s 306(1) of the Bankruptcy Act 1966 (Cth) which deals with formal defects and irregularities in proceedings under that Act:

[40]    The orthodox view of the approach to be adopted in relation to the interpretation of remedial legislation is that reflected in the dissenting judgment of Issacs J in Bull v Attorney-General (NSW) (1913) 17 CLR 370. His Honour said at 384:

In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially … This means, of course, not that the true signification of the provisions should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow. (Emphasis added.)

[41]    In D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed, 1996) the learned authors observe at par 9.3:

If an Act is intended to benefit a particular person or class of persons, it is preferable for any ambiguity to be resolved in favour of the intended beneficiary. However, it must be clear that the provision is intended to achieve the beneficial purpose claimed.

[42]    A provision such as s 306(1) of the Act should be construed beneficially, and as generously as the language of the section allows. It should certainly not be construed in a narrow or pedantic manner.

72    The PPS Act is plainly intended to benefit, among others, security holders by providing for the perfection of security interests in order to establish priority among security holders.

73    In this case, the removal of the data was only correct in the narrow sense that it conformed to the financing change statement that the Registrar was obliged to register.

74    However, the data was “incorrectly removed” from the register in the sense that the removal resulted from the lodgement of an application which did not correctly reflect the intentions of the person making the application. In my view, the language of s 186, read in the context of the whole of the PPS Act does not require the narrow construction contended for by the Registrar. To the contrary, having particular regard to the provision in s 188 for the correction of errors and omissions and the beneficial nature of the provision, s 186 should be construed to permit the restoration of data incorrectly removed in this wider sense.

75    Of course, the Registrar must be satisfied that data has been incorrectly removed before the power under s 186 may be exercised. But the mere fact that the data has been removed in conformity with a financing change statement will not necessarily mean that the data has been correctly removed. If the application to register a financing change statement is found to have been submitted in error or found to have contained data different from that which was intended to be included by the person making the application, then the Registrar may be satisfied that relevant data has been incorrectly removed from the register.

Conclusion

76    The Registrar has power to register a financing change statement to restore data comprising the original end times to the register if it appears to the Registrar that the data was incorrectly removed from the register under the PPS Act.

77    Data may be incorrectly removed from the register under the PPS Act if it is removed for the purpose of including amended data in accordance with s 150(3) where the financing change statement contains an error as a result of a mistake by a person submitting the application to register financing change statement.

61    As the text of s 206 is set out in the extract from SFS Projects v Registrar, I note that s 207 of the PPS Act provides as follows:

207    Jurisdiction of courts

Jurisdiction is conferred on a court mentioned in an item in the following table with respect to a PPS matter, subject to the limits on the court’s jurisdiction (if any) specified in the item:

Submissions

62    In response to my Associate’s email, the Registrar said that as Scottish Pacific’s application and the orders sought were consistent with the SFS Projects decisions, he did not seek to challenge Scottish Pacific’s entitlement to bring its application nor the relief contemplated in Order 1. However, to the extent that the Court is minded to depart from those decisions, the indicative reasoning in the email is correct. The Registrar would not oppose an opportunity being given to Scottish Pacific to bring its application in line with that reasoning.

63    Scottish Pacific and Rush submitted that the Court is required to follow the reasoning in the SFS Projects decisions unless the Court considers that the reasoning is “plainly wrong”, having regard to the principles of comity espoused by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; HCA 22 at [135] in relation to intermediate courts of appeal. That proposition must be accepted.

64    Scottish Pacific and Rush submitted that SFS Projects v Registrar at [10]-[12] and the relief granted in SFS Projects (No 2) are authority for the proposition that, where no application has been made under the ADJR Act, the Court has jurisdiction to make orders compelling the Registrar to restore data to the register under s 186(1) if it appears to the Registrar that the data has been incorrectly removed. They say that the Court’s jurisdiction derives from s 206(1)(b) because an application of this kind is a matter “arising in relation to” the PPS Act and the Court does not otherwise have jurisdiction under the ADJR Act because no application has been made under the ADJR Act: see SFS Projects v Registrar at [12]. This argument is based on s 8 of the ADJR Act, which provides:

8    Jurisdiction of Federal Court and Federal Circuit Court

(1)    The Federal Court has jurisdiction to hear and determine applications made to the Federal Court under this Act.

(2)    The Federal Circuit Court has jurisdiction to hear and determine applications made to the Federal Circuit Court under this Act.

65    I accept that SFS Projects v Registrar should be followed insofar as Gleeson J found that the word “incorrectly”, when used in s 186, encompasses the removal of data from the register as a result of error by either of the Registrar or a secured party. I accept that that is true both on a reading of s 186 in the context in which it occurs and having regard to the fact that it is a remedial provision as discussed by Gleeson J in SFS Projects v Registrar at [69]-[74].

66    However, and with great respect, I disagree with the provisional view expressed in SFS Projects v Registrar at [12]. Having regard to ss 191, 206 (as a whole) and 207 of the PPS Act and the Personal Property Securities Bill 2009 (Cth) Replacement Explanatory Memorandum at [5.142]-[5.143] and [6.1], I consider that the better view is that decisions of an administrative character made by the Registrar must be dealt with either under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (in relation to merits review of the decisions identified in s 191) or by judicial review of the Registrar’s decisions by the Federal Court or the Federal Circuit Court of Australia under the ADJR Act (to the exclusion of jurisdiction derived from s 39B of the Judiciary Act 1903 (Cth)) or by an appeal to the Federal Court from a decision of the Administrative Appeals Tribunal (AAT) on a matter of law under the AAT Act.

67    The Replacement Explanatory Memorandum at [5.142]-[5.143] states that (as written):

5.142    A person could apply to the AAT for review of any of the following decisions by the Registrar:

•    refusing to register a financing statement (clause 150(1);

•    refusing to register a financing change statement (clause 150(2));

•    amending the PPS Register to end the effect of the registration (clause 150 (2));

•    refusing to give a person access to the PPS Register to search for data (clause 170);

•    refusing to give a person a copy of a registered financing statement or a verification statement (clause 175);

•    refusing to give a person a report (clause 176(1));

•    registering, or refusing to register, an amended demand (clause 181(1));

•    removing data from the PPS Register (clause 184(1)(a)-(c));

•    not making data removed from the PPS Register available for searching on the PPS Register (clause 178(2), clause 181(5) or clause 184(2)(a));

•    restoring incorrectly removed data from the PPS Register (clause 186);

•    correcting an error or omission made by the Registrar (clause 188); and

•    removing migrated data from the PPS Register (clause 334(2)).

5.143    Under the Administrative Appeals Tribunal Act 1975, a party to Administrative Appeals Tribunal (AAT) proceedings may appeal a decision by the Tribunal to the Federal Court of Australia on a question of law.

68    The Replacement Explanatory Memorandum then goes on to explain at [6.1]-[6 2]:

Judicial proceedings generally

6.1    The Bill would confer jurisdiction on various Australian courts over ‘PPS matters’, that is matters arising under the Bill or otherwise arising in relation to security agreements or security interests (clause 206(1)). The conferred jurisdiction would not include matters over which the Federal Court or the Federal [Circuit] Court has jurisdiction under the Administrative Decisions (Judicial Review) Act 1977. (Clause 206(1)).

6.2    Chapter 6 would establish specific requirements and procedures for transferring PPS matters between courts, including cross-jurisdictional transfers. The Bill would therefore exclude the operation of the Jurisdiction of Courts (Cross-vesting) Act 1987 and section 39B of the Judiciary Act 1903 (clause 206(2)) but no other provisions of the Judiciary Act (clause 206(3)).

69    The decision whether to restore data to the register under s 186(1) is a decision of an administrative character under the PPS Act, which is a Commonwealth Act. The Federal Court’s jurisdiction to review decisions of an administrative character made under a Commonwealth Act is attracted in this case having regard to the definition of “decision[s] to which this Act applies” and “enactment” in s 3 of the ADJR Act and s 38(1) of the Acts Interpretation Act 1901 (Cth), which states that an Act passed by the Parliament of the Commonwealth may be referred to as an “Act”. Section 3 of the ADJR Act relevantly provides as follows:

(1)    In s 3(1):

decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of discretion or not and whether before or after the commencement of this definition):

(a)    under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or

(b)    …;

other than

(c)    … ; or

(d)    a decision included in any of the classes of decisions are set out in Schedule 1

enactment means:

(a)    an Act, other than:

(i)    the Commonwealth Places (Application of Laws) Act 1970; or

(ii)    the Northern Territory (Self-Government) Act 1978; or

(iii)    an Act or part of an Act that is not an enactment because of section 3A (certain legislation relating to the ACT); or

…

and, for the purposes of paragraph (a)…, includes a part of an enactment.

[Emphasis added].

(2)    In s 3(2):

In this Act, a reference to the making of a decision includes a reference to:

(a)    making, suspending, revoking or refusing to make an order, award or determination;

(b)    giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)    issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)    imposing a conditional restriction;

(e)    making a declaration, demand or requirement;

(f)    retaining, or refusing to deliver up, an article; or

(g)    doing or refusing to do any other act or thing;

and a reference to a failure to make a decision shall be construed accordingly.

[Emphasis added].

70    There is no reference in Schedule 1 of the ADJR Act to decisions made under the PPS Act so that decisions of the Registrar of an administrative character are not excluded from the definition of “decision[s] to which this Act applies”. In my view, it is that jurisdiction to which s 206(1)(b) refers; it is not dependent on whether an application under the ADJR Act has been made despite the language employed in s 8 of the ADJR Act. While the Federal Court can have jurisdiction to address the Registrar’s decision under s 186(1) on any interpretation of s 206(1)(b), it is not Parliament’s intention that reviews of decisions of an administrative character under the PPS Act fall within the jurisdiction of the Family Court (except by transfer from this Court as provided by s 18A of the ADJR Act) or a court of a State or Territory. That such courts would have jurisdiction is the necessary consequence if Scottish Pacific v Registrar at [12] is correct and review of such decisions is a “PPS matter” founding this Court’s jurisdiction simply because an applicant for relief did not apply for review under the ADJR Act. Further, there is nothing in the text of s 206(1)(b) or in the Replacement Explanatory Memorandum which would support Scottish Pacific’s contention that the reason for the way that s 206(1)(b) is drafted is to prevent overlap of proceedings which occur (for instance) where an application is made both to the AAT and this Court.

71    For completeness, I also do not accept Rush’s submission that the Court has jurisdiction to make the orders sought under s 206(1)(c) as the matter is “otherwise arising in relation to a security agreement or a security interest” on the basis that it relates to the registration of a security interest and the paragraphs of s 206(1)(c) are disjunctive, having regard to the word “or” which appears after paragraphs (a) and (b). It is the position of all parties that it is not necessary for Scottish Pacific to demonstrate that there is a valid and enforceable security interest on this application, a matter which would plainly be within the purview of s 206(1)(c). I do not accept that the relevant question is properly characterised as relating to the registration of a security interest: the question relates to the exercise of the Registrar’s discretion to restore data, turning on whether it appears to the Registrar that the data was incorrectly removed. Having regard to s 206 as a whole, the terms of the Replacement Explanatory Memorandum at [6.1] and the nature of the decision to be made under s 186, I do not accept that s 206(1)(c) grounds jurisdiction of courts with respect to review of such decisions of the Registrar.

Conclusion

72    While acknowledging that there is ambiguity in the language of s 8 of the ADJR Act, with respect, I find that SFS Projects v Registrar at [12] is “plainly wrong”, since that interpretation would give jurisdiction to courts other than the Federal Court and the Federal Circuit Court to review decisions of an administrative character made under an Act of the Commonwealth Parliament contrary to the stated intention of that Parliament.

73    I therefore find that the Court does not have jurisdiction to make Order 1. While counsel for Scottish Pacific asserted that the application was not for review of the Registrar’s decision, the substance of the application and the orders sought by Scottish Pacific was for reiew of the Registrar’s decision. To bring such an application under this Court’s jurisdiction, it should have been made under the ADJR Act.

Should the proposed declarations be made?

74    Scottish Pacific urged the Court to make the declarations sought in the short minutes of order, even if the Court finds that it does not have jurisdiction to make Order 1 or otherwise declines to do so. It submitted that the declarations have utility in persuading the Registrar to depart from its “agnostic” position.

75    The short minutes include three declarations to the following effect:

    that financing change statements lodged on 13 November 2015 “incorrectly resulted in a discharge of the Registrations as opposed to transfer of the Registrations” to Rush;

    that the Registrations were “incorrectly removed” from the register upon registration of the financing change statements filed on 13 November 2015; and

    that any orders, declarations, findings and determinations made have no effect on the parties and the liquidator in relation to the validity of any security interest held or claimed to be held by Rush or Scottish Pacific over the Company’s assets.

76    Scottish Pacific also seeks leave to further amend the Amended Originating Process to seek a further declaration that:

On the facts and circumstances before the Court, no third party would be prejudiced if the Registrations were restored to the PPSR in accordance with s 186 of the PPS Act.

[Amended for consistency with terms defined in these reasons].

77    Section 21 of the Federal Court of Australia Act 1976 (Cth) provides that:

21    Declarations of right

(1)    The Court may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

(2)    A suit is not open to objection on the ground that a declaratory order only is sought.

78    Despite the Registrar’s indication that he would not oppose an application now being brought under the ADJR Act, Scottish Pacific has declined to do so. For the reasons previously expressed, the action brought by Scottish Pacific is properly brought under the ADJR Act as a result of which this is not a PPS matter; and the Court does not have jurisdiction to entertain the application under s 206(1)(b) of the PPS Act. There are cases where the source of the power in s 21 of the Federal Court of Australia Act 1976 (Cth) is s 39B(1A)(c) of the Judiciary Act 1903 (Cth): see Australian Institute of Private Detectives Ltd v Privacy Commissioner (2004) 139 FCR 394; FCA 1440. However, recourse to powers conferred by or under s 39B of the Judiciary Act Act 1903 (Cth) is prohibited under s 206(2)(b) of the PPS Act. In my view, there is no jurisdiction to grant the declarations sought by Scottish Pacific and I decline to grant leave to further amend the Amended Originating Process in the manner suggested in paragraph [76] above.

79    Further, unlike the application in SFS Projects v Registrar, it is not an agreed fact that Scottish Pacific lodged financing change statements which did not correctly reflect the intention of the parties on 13 November 2015 resulting in the Registrations being “incorrectly removed” the PPSR.

80    Counsel for Scottish Pacific made many submissions concerning whether or not Scottish Pacific reasonably had a belief that it had a security interest such that it was entitled to have the Registrations recorded as at 13 November 2015 and to have the Registrations restored now based on the evidence of Mr Carides and Mr Davies. I accept that the Registrar must register a financing statement or a financing change statement under s 150(3) unless he is satisified that the person making the application does not have the belief required under s 151(1) that he is or will become a secured party in relation to collateral.

81    I am not convinced that the same bias towards restoring data is revealed in s 186(1). The Registrar has a discretion to restore data if “it appears to the Registrar” that the data was incorrectly removed. I accept that the decision to restore data does not require certainty that the data was incorrectly removed. In the absence of evidence that a former secured party seeking restoration does not have a belief satisfying s 151 or relevant prejudice to third parties, the Registrar would be free to exercise his discretion to restore data upon an application by a former secured party asserting that the data had been removed in error. However, where there is evidence which casts doubt on whether a person could satify s 151, the Registrar may not be satisfied that the data was “incorrectly removed” so that the precondition to the exercise of discretion is not met.

82    Whatever the position with respect to the Registrar, Scottish Pacific has sought declarations to the effect that that the Registrations were “incorrectly removed”. To make declarations of the kind sought in proposed orders 3 and 4, the Court must have evidence which satisfies it that that is the case. That is different to the threshold set by s 186(1) that it “appears to the Registrar” that data was “incorrectly removed”.

83    It can be said that most actions of Scottish Pacific and Rush and their advisors are consistent with the belief that Scottish Pacific had an obligation to transfer rather than discharge the Registrations. However, it is the common position of the parties that this application is not the appropriate vehicle for determining the contested questions of validity or enforceability of the Bibby Security Deed or the Deed of Assignment. As a result, the parties have not sought to put before the Court all evidence necessary to form a view that the Registrations were “incorrectly removed” on 13 November 2015 and evidence such as that provided by the liquidator requires the Court to venture into the very issues which the parties are at one that it should not.

84    Further, declarations under s 21 are binding declarations of right. It would be inconsistent with principle that the Court should make the declaration in proposed order 5 designed to negate the effect of the declarations in proposed orders 3 and 4 if those declarations could properly be made.

85    It is inappropriate to comment too much further. However, I note that in communicating his decision, the Registrar indicated his willingness to further consider the application to restore the Registrations should “further information become available that directly addresses the above concern”. Since that time:

(1)    The liquidator has changed his position in relation to the registration of financing change statements to restore the Registrations.

(2)    The Registrar has also had access to the evidence submitted on this application.

(3)    No evidence has been presented which contradicts the position that the liquidator and Receivers were the only people who made searches of the PPSR after 13 November 2015 and before the appointment of the liquidator on 30 November 2015 and no actions have been taken under ss 588FL and 588FM of the Corporations Act.

(4)    The National Australia Bank received notice of these proceedings and elected not to appear.

86    The Registrar may wish to reconsider his position in light of these matters.

Conclusion and disposition

87    For these reasons I decline to make the orders set out in the short minutes of order. I will allow the parties 14 days in which to make brief written submissions concerning the appropriate order as to costs which I will determine on the papers if no party seeks the opportunity to make oral arguments.

Associate:

Dated:    24 November 2017

SCHEDULE OF PARTIES