Federal Court of Australia

Curo Capital Pty Ltd v Registrar of Personal Property Securities [2020] FCA 1515

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    The decision of the first respondent notified to the applicant on 25 February 2020 not to restore data to the Personal Property Securities Register in respect of the following registrations is set aside:

(a)    registration number 201807130016594, with a registration end time of 13 July 2043 at 11:59:59PM;

(b)    registration number 201807130015883, , with a registration end time of 13 July 2043 at 11:59:59PM; and,

(c)    registration number 201807130015722, with a registration end time of 13 July 2043 at 11:59:59PM.

3.    The application made by letter on 7 January 2020 insofar as it relates to the above registrations is referred to the first respondent for determination according to law.

4.    The solicitors for the applicant and the first respondent must confer about the costs of the application and, if agreement is reached, file a minute of consent orders by Wednesday, 4 November 2020.

5.    If agreement as to costs is not reached, the applicant must, on or before Wednesday, 11 November 2020 file and serve on the first respondent:

(a)    a minute of proposed orders on costs;

(b)    any affidavits in support; and

(c)    an outline of written submissions of no more than three pages in length.

6.    The first respondent must, on or before Wednesday, 25 November 2020 file and serve:

(a)    a minute of proposed orders on costs;

(b)    any affidavits in support or in reply to the applicant's affidavits; and

(c)    an outline of written submissions of no more than three pages in length.

7.    The applicant may file and serve an outline of written submissions that is strictly responsive to the materials referred to in the preceding paragraph, within seven days of service of those materials.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Curo Capital Pty Ltd, seeks judicial review of a decision of the first respondent, the Registrar of Personal Property Securities. The application has been made necessary by an error on the part of Curo's solicitors. As will be explained shortly, Curo mistakenly discharged registrations on the Personal Property Securities Register (PPSR) for certain security interests, when it should have transferred them to an assignee of the interests, the third respondent, Istvan Pty Ltd.

2    A delegate of the Registrar refused an application under s 186 of the Personal Property Securities Act 2009 (Cth) (PPSA) to restore the registrations as if they had never been removed. That section is as follows:

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.

3    Curo applies for review of the Registrar's decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

4    The matter was listed for hearing on 8 September 2020. As will be explained, it was adjourned to 1 October 2020 and heard then. For the reasons that follow, the application will be allowed.

Background

5    The facts are undisputed. In July 2018, Curo lent money to the second respondent, the Melbourne Linh Son Buddhist Society Inc (Society). Two persons who were officers of the Society at the time, Duc Thang Nguyen (Duc) and Tien Hung Nguyen (Tien) stood as guarantors of the Society's liabilities. Pursuant to security agreements, each of the Society, Duc and Tien granted security interests over their respective property to secure their liabilities to Curo. All of these security interests were registered on the PPSR on 13 July 2018.

6    In December 2019, Curo agreed to assign the security interests to Istvan. Istvan paid $4,000,000 in return for the assignments. In order to effect the assignments, Curo should have lodged documents with the Registrar to reflect the transfer of the registrations to Istvan. Instead, documents which notified a discharge of the registrations on the PPSR were lodged. In effect, the registrations were removed from the Register. That was apparently as a result of miscommunication within the office of Curo's solicitors, ERA Legal.

7    The financing change statements notifying the putative discharges were lodged on 7 January 2020. On the same day, after discovering the mistake, Curo applied through ERA Legal for the restoration of the registrations (nine in total) in respect of each of the Society, Duc and Tien which, it said, had been mistakenly discharged. Also on that day, Curo created new registrations in relation to the security interests in respect of which the previous registrations had been removed.

8    On 13 January 2020 an officer of the Registrar emailed ERA Legal asking for written statements from the assignee (Istvan) and the Grantors (the Society, Duc and Tien) confirming that the security interests had not been discharged and that they would not object if the Registrar decided to exercise the discretionary power under s 186 to restore the registrations to the PPSR. The officer also asked for information relating to the identity and rights of third parties who may have been affected by the restoration of data to the PPSR. However ERA Legal had already provided that information in its initial application. Citi Commercial Finance Pty Ltd had registered a security interest with the Society as grantor on 11 December 2018, and Collins Capital Partners Pty Ltd, the fourth respondent, had registered a security interest with the Society as grantor on 14 February 2019. Both of those post-dated Curo's original registrations. The officer also gave ERA Legal information showing ten searches that had been conducted in relation to the grantors in the short time between the discharge of the previous registrations and the adding of the new registrations.

9    ERA Legal responded on the same day confirming that the security interests which were the subject of the registrations had not been discharged. They also confirmed that all of the searches which took place in the window between deregistration and re-registration of the securities were conducted by ERA Legal. They pointed out that they had already provided the information about third parties who had registered security interests with the Society as grantor and said that there had been no other registrations after the date on which Curo's original registrations were removed. As a result, it would appear that no third party was misled by the absence of the registrations from the PPSR into believing that Curo did not have security interests over property of the grantors.

10    There is a file note by an officer of the Registrar in evidence showing that on 15 January 2020, the officer said to a solicitor from ERA Legal that ' it would be very unlikely the registrar would exercise his discretion to restore without a statement from the grantor'.

11    It is relevant to note in this regard that the Registrar has published a practice statement in relation to restoration of data to the PPSR: Registrar's Practice Statement No. 8: Restoration of Data to the PPSR, released on 11 February 2016 and updated on 21 December 2017. The statement says 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. It says that the Registrar will be likely to exercise the discretion in s 186 to restore missing data 'if the likelihood of a third party having relied upon the state of the PPSR after the data was removed, and thereby being disadvantaged by its restoration, is very low'.

12    The statement runs through a four stage process for the restoration of data. The first stage, the submission of an application form and supporting documents, says that the form should be accompanied, among other things, by 'a statement from the grantor which confirms that the security interest is still effective and that they have no objection to the restoration of the data'. The next stage is a review of transactions on the PPSR which the Registrar will conduct in order to identify activity on the PPSR after the data was removed. The practice statement says this will take place '[f]ollowing the receipt of a completed request for restoration form and supporting documentation', which would include the statement from the grantor. After that, a letter will be sent from the Registrar which, among other things, will 'require the applicant to provide any information listed in Stage 1 if it was not attached to the initial request'. The statement says that where a grantor is under insolvency administration, the Registrar may write to the insolvency administrator (e.g. liquidator or bankruptcy trustee) 'to provide them with the opportunity to confirm that they [among other things] … on behalf of the creditors of the grantor, do not object to the restoration of the data'.

13    On 16 January 2020, ERA Legal wrote to each of the Grantors and to a lawyer who had acted for the Grantors asking for written confirmation that the Grantors did not object to the restoration of the discharged registrations to the PPSR. Responses were requested by 31 January 2020. On 4 February 2020 ERA Legal told the Registrar that they had not heard back from the Grantors (despite several attempts to follow up with the lawyer). ERA Legal asked the Registrar to waive the requirement for confirmation that the Grantors had no objection to restoration of the registrations.

14    An internal recommendation dated 5 February 2020 from an officer of the Registrar to the delegate who was to exercise the discretion under s 186 is in evidence. The recommendation said that 'it appears that in this case the registration [was/was not] incorrectly removed from the register for the purposes of section 186'. The square bracketed 'was/was not' appears in the recommendation. I infer that this apparent equivocation is the result of failing to choose between two options in a precedent recommendation. The recommendation seemed to accept that all of the searches conducted during the time when the registrations were absent were performed by ERA Legal. It referred to the lack of response from the Grantors for the request for confirmation of their positions. It then said:

Analysis

Based on the above, it appears that no third party's rights would be prejudiced if the Registrar were to exercise their discretion to restore the data to the PPSR.

The main risk in restoring the registration lies in the fact that the grantors have not provided any response to the request from the Applicant to consent to the restoration. Thus they may decide to contest a decision to restore. Based on this risk, you may decide not exercise your discretion to restore.

If the Registrar is willing to accept the above risk, based on the evidence provided to demonstrate the ongoing interest, the deed of assignment showing the intended transfer, and on the genuine attempts made by the Applicant to seek consent from the grantors to restore, then you may wish to exercise your discretion to restore.

Alternatively, the Registrar may wish to attempt direct contact with the Grantor, to ascertain their stance in relation to the requested restorations, prior to deciding whether to exercise the discretion.

Recommendation

In view of the factors outlined above, I recommend that you do not decide to exercise your discretion under section 186 of the PPS Act to restore the 9 Regsitrations [sic] to the PPSR.

(original emphasis)

15    The delegate of the Registrar then said he was happy for the officer to contact the grantors directly 'to test their position'. The officer informed ERA Legal of her intention to do so on 11 February 2020. On 13 February 2020 the officer wrote to the Society, Duc and Tien saying 'I would be interested in hearing from you (as the grantor) about whether the security interest [sic] is still effective and whether you object to it's [sic] registration'. This was done by separate letter to each Grantor. It is necessary to describe each letter further. One was addressed to the Society at a post office box address, but it appears that it was sent by email to two email addresses, and was also marked to the attention of Duc and Tien. The heading to the letter, and the text of the letter, gave the registration number for each of the registrations in respect of the security interests granted by the Society, that is, the registrations which are the subject of the present application for judicial review. A separate letter was sent to Duc which was similar, save that it referred only to the registration numbers of the registrations in respect of the security interest that he had granted, and it was addressed to him at a street address. There was also a separate letter to Tien which gave the different registration numbers for the security interest that he had granted, and was addressed to him at a different street address.

16    On 20 February 2020, a person named Tinh Dao Thich sent an email to the officer of the Registrar who had signed the letters. The sender's email address was one of the email addresses used to send the letter that was addressed to the Society. The court was informed that Tinh Dao Thich is an alternative name for Duc. Be that as it may, the contents of the email make it clear that it was actually from Tien. The subject field of the email said 'Fw: letter to PPSR'. The text of the email was as follows:

To the registrar of PPRS [sic]

My name is Tien H Nguyen of [address shown on letter].

I write in response to your letter dated 13 February 2020.

I strongly oppose to [sic] the reinstatement of the mentioned PPSR due to the fact that Curo Capital Pty Ltd no longer has any mortgage or security interest granted by myself previously.

Best regards,

Tien h Nguyen

17    There is also in evidence an undated letter which is in identical terms to the email, save that it identified Duc, not Tien, as the sender, gives a different street address, and appears to have been signed by Duc.

18    On 25 February 2020 the delegate of the Registrar wrote to ERA Legal in the following terms:

I refer to your request dated 8 January 2020, regarding the restoration of 9 registrations (as listed at the end of this letter) pursuant to section 186 of the Personal Property Securities Act 2009 (the Act).

On 13 February 2020, one of my delegates wrote to the grantors of the 9 registrations, seeking their comments about whether the security interest is still effective and whether they would object to their restoration.

On 20 February 2020 I received a response from two of the grantors. In the responses, they advised that they would 'strongly oppose the reinstatement of the mentioned PPSR, due to the fact that Curo Capital Pty Ltd no longer has any mortgage or security interest granted by myself previously' (copy attached).

In light of these responses, and after considering the information provided to me to date, I have not decided to register a financing change statement, under s186, to restore data to the Personal Property Securities Register (PPSR) with respect to the 9 registrations. This reflects my concern to exercise my discretionary power under s186 only when it is clear that the data has been incorrectly removed.

I would encourage you to contact the grantor/s if you disagree with their stance and explore any possible options to reach an agreement regarding the proposed restoration.

Should further information become available that directly addresses the concern raised by the grantor, you are welcome to provide it to me and I will give your request further consideration.

Curo now seeks judicial review of the decision as notified in that letter.

Jurisdiction, power and standing - ADJR Act

19    The Federal Court has jurisdiction to determine this application by reason of s 5 and s 8 of the ADJR Act and power to make the orders sought by reason of s 16.

20    There is no dispute that the ADJR Act applies to the decision. For the purposes of the definition of such decisions in s 3, the delegate's decision not to restore data to the PPSR was a decision of an administrative character made under a Commonwealth enactment (the PPSA) which is not the subject of one of the exclusions in Schedule 1 to the ADJR Act: see Scottish Pacific (BFS) Pty Ltd v Registrar of Personal Property Securities [2017] FCA 1378 at [69]-[70] (Farrell J). In the ADJR Act a reference to the making of a decision includes a reference to doing or refusing to do any act or thing: s 3(2)(g).

21    There is also no doubt about Curo's standing to bring the application. If the Registrar's decision stands then Curo will be prejudiced by the loss of the continuous perfection of its security for the purposes of s 56 of the PPSA and will have lost the benefit of the priority time of 13 July 2018 for the purposes of s 55 of the PPSA. It is a person aggrieved by the decision, at least in the sense that its interests are adversely affected by the decision (see ADJR Act s 3(4)(a)(i)), and so s 5 authorises it to make this application.

The positions of the respondents

22    As constituted by Curo's original application, the Registrar was first respondent, the Society the second respondent, Duc and Tien the third and fourth respondents respectively, and Istvan the fifth respondent.

23    The Registrar appeared at the hearing of the application and made submissions mostly confined to the proper construction of the PPSA. Consistently with the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36, the Registrar did not seek to defend the decision under review.

24    After difficulties in serving Duc and Tien, with the leave of the court Curo amended the originating application to remove any relief in respect of the registrations in relation to the security interests granted by each of them. I was satisfied that in those circumstances they would suffer no prejudice from any order made regarding the Registrar's refusal to restore the registrations in relation to the security interest granted by the Society. I therefore ordered at the hearing on 8 September 2020 that they would cease to be parties to the proceeding.

25    However, it was possible that Citi Commercial Finance Pty Ltd and Collins Capital Partners Pty Ltd had an interest in the orders Curo seeks. They both had security interests registered with the Society as grantor with registrations post-dating the original registrations of Curo's security interests on 13 July 2018 but predating the replacement registrations which Curo lodged on 7 January 2020, the day of the mistaken discharge. As a result, it was likely that the security interests of Citi Commercial Finance and Collins Capital Partners each gained priority over Curo's security interests as contained in the replacement registrations: PPSA s 55. Therefore both of those companies potentially had an interest in the matter and ought to have been joined as parties to the proceeding. So at the hearing on 8 September 2020 they were ordered to be joined. It was subsequently discovered that Citi Commercial Finance Pty Ltd had been deregistered, and so it has been removed as a party. Collins Capital Finance Pty Ltd was served with the application but did not enter any appearance. It was therefore appropriate to proceed at the hearing on 1 October 2020 in its absence. Istvan supports the application and took no active part in the proceeding.

The legislative scheme under the PPSA

26    The PPSA creates a system of notice of security interests by registration, as distinct from a system whereby interests are created by registration. Its purpose is to provide persons searching the system with enough information to know whom to contact to find out more about a security interest: see Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd [2017] NSWSC 1230; (2017) 324 FLR 378 at [64]-[66] (Ward CJ in Eq), quoting Re Lambert (1994) 20 OR (3d) 108 at [32]-[33]. As I have already adverted to, registration of security interests, and the timing of registration, can be important to matters such as competing priorities between different security interests.

27    The Registrar has the functions given under the PPSA or any other Act: s 195(1). He (the present Registrar being male) has power to do all things necessary or convenient to be done for or in connection with the performance of his functions: s 195(2). He may conduct an investigation into any matter for the purpose of performing his functions: s 195A(1).

28    One of the Registrar's key functions is the establishment and maintenance of the PPSR: s 147(1). With presently immaterial exceptions, he must ensure that the PPSR is operational at all times: s 147(4). An application to register an interest (by a 'financing statement') or to amend a registered interest (by a 'financing change statement') must be registered if it is in the approved form, any fee has been paid, the registration is not prohibited by the regulations and the Registrar is not satisfied that the application is frivolous, vexatious or offensive or contrary to the public interest or made in contravention of s 151: s 150(3). So there is no positive obligation on the Registrar to be satisfied of the accuracy of a registration before it is registered.

29    It was common ground that the PPSR is in practice, a computer database which is searchable at all times by members of the public and which any person seeking to make or amend a registration can add to directly. There is no process by which new registrations are regularly checked or vetted by a human being before they are publicly available for search.

30    Section 151 does, however, impose a positive obligation to hold a belief as to certain matters on the person registering the financing statement or financing change statement. Section 151(1) provides:

A person must not apply to register a financing statement, or a financing change statement, that describes collateral, unless the person believes on reasonable grounds that the person described in the statement as the secured party is, or will become, a secured party in relation to the collateral (otherwise than by virtue of the registration itself).

This is a civil penalty provision.

31    There is also a civil penalty provision in s 151(2) requiring a person who has registered a financing statement or financing change statement to remove the registration if the secured party named in the registration has never been a secured party in relation to the collateral (the PPSA's term for the property that is the subject of the security interest) and there are no reasonable grounds or no longer any reasonable grounds for the belief that the person described as the secured party is, or will become, a secured party in relation to the collateral. This may be concerned with relatively unusual cases of misuse of the PPSR; in any event the cumulative requirement that the person has never been a secured party means that it does not apply to the more usual case of a change of circumstances, such as the discharge of a security over collateral when a debt is repaid in full.

32    If a discharge of the underlying security does occur, and the registration is not changed to reflect it, then s 178 provides for a person with an interest in the relevant collateral to give a demand to the secured party for the amendment or ending of the registration in respect of the collateral (as appropriate). Sections 179 to 181 provide for a process by which the Registrar can amend the PPSR administratively after an amendment demand has been given to the secured party and notified to the Registrar. Section 182(4) permits the court to make appropriate orders for amendment.

33    Section 186 must be construed in the above context. It is a context where the apparent intent of the PPSA is to put the primary burden of ensuring that there is a reasonable basis for a registration to be made, or to continue, on the party who has made or is intending to make the registration and, failing that, on other parties who have an interest in the collateral. It does not place any positive obligation on the Registrar to verify any of the information which, in practice, is placed on the PPSR by or on behalf of persons claiming that they have, or will have, security interests.

34    Section 186 appears in Part 5.7 of the PPSA, which concerns removal of data and correction of registration errors. Section 184 empowers the Registrar to remove data, including an entire registration, from the PPSR on various grounds, including where he is satisfied that the application to register it was frivolous or vexatious or retaining it on the PPSR is contrary to the public interest. Section 185, in broad terms, permits the Registrar to remove registrations that have expired. Section 186, to recap, permits the Registrar, at his initiative to 'restore data to the register (including an entire registration) if it appears to the Registrar that the data was incorrectly removed' from the PPSR. Section 188 permits the Registrar to correct errors or omission which he has made.

35    There is little authority on the construction of s 186. There are only two cases: SFS Projects Australia Pty Ltd v Registrar of Personal Property Securities [2014] FCA 846; (2014) 226 FCR 188; and Scottish Pacific (BFS) Pty Ltd v Registrar of Personal Property Securities [2017] FCA 1378.

36    The circumstances in the first of these cases were similar to those of the present case, in that a mistake in the course of an assignment of securities led to the removal of security interests from the PPSR rather than their transfer. The assignees applied for the restoration of the data under s 186 but the Registrar contended that he did not have power to do that. He argued that s 186 only addressed an incorrect exercise of the Registrar's powers to remove data, and if all the Registrar had done was register a financing change statement in accordance with his obligation to do so under s 150(3), then the data could not be said to have been incorrectly removed. Gleeson J rejected those arguments. Her Honour held that all that is required to activate the discretion under s 186 is for data to have been removed from the PPSR which ought correctly to be included in the PPSR: SFS Projects Australia at [69]. That could include removal by reason of error on the part of a person applying for the registration of a financing change statement under s 150(3): at [70]. Her Honour characterised s 186 as a remedial or beneficial provision which should be construed beneficially in the event of any ambiguity: at [71]. Data may be 'incorrectly removed' from the PPSR if its removal results from lodgement of an application which did not correctly reflect the intentions of the person making the application: at [74]. So the Registrar did have power to restore data to the PPSR which had been removed as a result of an error by the person who submitted a financing change statement: at [76]-[77]. In this proceeding the Registrar did not seek to challenge the correctness of SFS Projects Australia.

37    The facts in Scottish Pacific (BFS) were different to those in SFS Projects Australia. In Scottish Pacific (BFS) there was a dispute about whether the registrations in question had in fact been discharged accidentally, and about whether the secured obligations had been satisfied. Also, the application to restore the data was made nine months after it was removed, and there had been a significant amount of search and registration activity in the meantime. Farrell J accepted Gleeson J's construction of the PPSA in SFS Projects Australia: Scottish Pacific (BFS) at [65]. But Farrell J refused to grant the relief sought because the way that the matter had come before her did not attract the jurisdiction of the court: see [73], [78]. Unlike the present application, the application in Scottish Pacific was not brought under the ADJR Act.

38    Justice Farrell did say, however (at [81]), that she was not convinced that s 186 reveals the same bias towards restoring data as is evidenced by s 150(3), under which the Registrar must register a financing change statement unless he is satisfied as to the matters I have already mentioned. Her Honour went on to say:

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 satisfy 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.

39    Justice Farrell was, with respect, correct to say that the requirement that it 'appears to the Registrar' that the data was incorrectly removed does not require certainty. In a different context it has been held that a requirement that something 'appear to' a decision-maker requires only that the decision-maker form 'a prima facie opinion': Cornall as Secretary of the Law Institute of Victoria v AB [1995] 1 VR 372 at 389. That is not necessarily the same as a prima facie case; the point of requiring a fact 'to appear to' a person is to make the person the judge of that fact, not to require proof of that fact, let alone certainty: see Robinson v Sunderland Corporation [1899] 1 QB 751 at 757. It is consistent with these authorities and with the beneficial interpretation to be placed on s 186 that all that is required to activate the Registrar's discretion is that there be information before him which leads him to form the view that, on the face of that information, data was incorrectly removed from the PPSR.

40    That view must concern incorrect removal in the wider sense endorsed in SFS Projects Australia. So if the circumstances suggest it, the Registrar must form a view about whether the data was removed due to lodgement of an application which did not correctly reflect the intentions of the person making the application. The registrar need not look into the question to the extent required for him to reach the view with certainty, or beyond reasonable doubt, or on the balance of probabilities, or to any other definite standard. That is consistent with the overall scheme of the PPSA as principally relying on the parties lodging financing statements and financing change statements, and on parties with an interest in collateral, to ensure the accuracy of the PPSR. But the Registrar does need to apply his mind to the question of whether it appears, at least on the face of information before him, that the data was incorrectly removed.

41    The section and the context provide little guidance as to how the discretion is to be exercised if that threshold has been reached. But I do consider that it would be inconsistent with a beneficial interpretation of the section, and with the unexacting nature of that threshold, to fetter it by any requirement that it only be exercised when it is clear that the data has been incorrectly removed.

42    There are two further things to say about the discretion. One is that the strength of the view that the Registrar forms as to whether data has been incorrectly removed can be relevant to the exercise of the discretion. It is obvious that the greater the certainty, the more likely it is that the PPSR should restore the data; the greater the doubt, the more supportable would be any decision not to restore it.

43    The other point to be made is that none of the considerations above mean that it is irrelevant to the discretion to consider whether the security interest underlying the removed data still exists (or ever existed). Counsel for Curo submitted that it was irrelevant. His submission was that since the scheme of the PPSA effectively places responsibility for the accuracy of the PPSR on the holders of security interests and interests in collateral, it is not for the Registrar to inquire into whether the security interest still exists. It will already be apparent that I accept the premise to that argument. But I do not accept the conclusion. The relatively broad, plain English meaning of 'incorrectly removed from the register' in s 186, as recognised in SFS Projects Australia, means that in appropriate circumstances the continued existence (or not) of a security interest will be relevant to both the existence of the discretion and to its exercise. That is simply because, if a security interest no longer exists (or never existed), that makes it less likely that a registration in relation to the security interest has been incorrectly removed. To the extent that opposition to the restoration of data by a grantor is based on an allegation that the security interest does not exist, that opposition may be relevant for the same reason.

The delegate's reasons for the decision here

44    Curo did not make any request under s 13 of the ADJR Act for written reasons for the decision. The reasons for decision of the delegate as notified to Curo are therefore confined to those expressed in the letter of 25 February 2020.

45    Since ascertaining the reasons on which the decision-maker has made the decision is a question of fact, evidence such as the recommendation of 5 February 2020, which may go to show the reasons on which the decision-maker acted may also be admissible for that purpose: see Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2003] FCA 1263; (2003) 133 FCR 190 at [37], [39] (French J). A document of that kind may be used to support an inference that the decision-maker has committed an error such as an erroneous application of law informed by a misconstruction of a relevant provision: see Nezovic at [45].

46    What, then, were the delegate's reasons for decision here? The letter of 25 February 2020, construed in the context of the material that was before the delegate, indicates that the delegate was concerned that the discretion under s 186 of the PPSA should only be exercised in favour of restoration of data to the PPSR when it is clear that the data has been incorrectly removed. It is implicit in that statement that the delegate considered that it was not clear, in the case before him, that the data which was the subject of the application for restoration had been incorrectly removed. That is the only express reason given by the delegate as to why he declined to exercise the discretion.

47    It is possible that there were other reasons, not adverted to in the letter, why the delegate declined to exercise the discretion. He said he had decided not to exercise the discretion on the basis of 'the information provided to me to date' and the response from two of the grantors to which he referred. So there could have been unexpressed reasons emerging from the 'information provided to me to date' or Tien's and Duc's responses which were also reasons for the decision. But I do not consider that is likely. The information provided to the delegate 'to date' could only have been a reference to those responses, the other information provided by ERA Legal which is summarised above, and the Registrar's own interrogation of the database. There is no other source of information.

48    Apart from the representations from Duc and Tien, and with one possible further qualification, all the material before the delegate supported the view that the data had been incorrectly removed and supported a favourable exercise of the discretion. The information was that the removal of the registrations was unintentional and the result of miscommunication within the office of ERA Legal. It said, as was clearly the fact, that the application for restoration had been prepared without delay. It confirmed that new registrations had been created to ensure that third parties searching the PPSR would have notice of Curo's securities. It confirmed that the only searches conducted between the removal of the previous registrations and the creation of the new ones had been performed by ERA Legal. ERA Legal provided the security agreements, stated that they were continuing securities, and provided the deed of assignment to Istvan to confirm what the actual intention of the transaction was (as well as to provide implicit further confirmation that Curo's security interest remained in effect). It provided a letter from Istvan's lawyers confirming that the registrations were discharged in error and stating Istvan's support for the restoration of the data. ERA Legal said that efforts to ascertain the grantors' views had received no response.

49    The possible further qualification is that the information also referred to the positions of Citi Commercial Finance and Collins Partners Capital, which I have already described. It would be possible for the delegate to consider that their interests militated against a favourable exercise of the discretion. But there is no hint of this in the letter of 25 February 2020 or the other material which the Registrar has put before the court, and it would be odd if the delegate considered those parties' interests to be material without mentioning that at all. I therefore infer that the delegate did not in fact consider that the information provided, other than the email from Tien and the letter from Duc, gave any reason not to exercise the discretion in Curo's favour.

50    It follows that the delegate declined to restore the data because of a combination of his concern that the discretion should not be exercised in favour of restoration unless it was clear that the data had been incorrectly removed, and the strong opposition expressed in the written communications from Tien and Duc. This was a refusal to exercise the discretion, rather than a view that the discretion had not been enlivened in the first place. There is no suggestion in any of the material that the delegate made a determination that it did not appear to him that the registrations had been incorrectly removed.

51    It is necessary to consider further the place of Tien's and Duc's representations in the delegate's reasons. I have already indicated that representations from a relevant person, such as a grantor, that the security interest no longer exists can be taken into account under s 186. But here, whose positions did the relevant communications convey? There was no real ambiguity about that. It is true that Tien's email came from an email address which the officer of the Registrar appeared to have used to address the letter to the society. But in the text of the email it was identified as coming from Tien, and Tien only. The letter is similarly identified as coming from Duc, and Duc only. Each communication gave a street address different to the post office box which the Registrar had used to address the letter to the Society. Each was expressed to be in response to the Registrar's letter (singular) of 13 February 2020. The fact that there were separate communications from each individual confirms that in context the 'letter dated 13 February' refers to the letter to each individual, about the registrations showing the individual as grantor.

52    Further, by using the pronoun 'I', each said that the apparent author (Tien or Duc) personally opposed the reinstatement of 'the mentioned PPSR'. That could only be a reference to the registrations referred to in the letter. And it gave the reason for the opposition as being that Curo no longer has any mortgage or security interest granted 'by myself'. This refers only to the security granted by the individual.

53    There is no mention of the Society in either communication, or mention of any position that Tien or Duc might hold or might have held in the Society. Tien and Duc wrote separately. There is no use of the collective noun, 'we'. Neither Tien nor Duc purport to be speaking on behalf of the Society. In fact, there was an 'association extract' (similar to a company search) of the Society before the Registrar at the time which indicated that Tien and Duc were no longer officers.

54    In my view the only understanding of the email from Tien and the letter from Duc which was reasonably open was that they were saying that each individual strongly opposed the reinstatement of the registrations referred to in the letter to him personally, because there was no longer any mortgage or other security granted by the individual to Curo.

55    None of this is to suggest that the delegate misunderstood the responses as being made on behalf of the Society. His letter to Curo of 25 February only refers to having received a response from two of the three grantors, and it accurately quotes the references to 'any mortgage or security interest granted by myself'. There is no reason to think that he misconstrued the email from Duc or the letter from Tien as being sent on behalf of the Society.

56    So, the delegate must have been putting two matters together to reach his decision not to exercise the discretion to restore any of the nine registrations that were the subject of Curo's application. The first was that he should not do so unless it was clear that the registrations had been incorrectly removed. The second was that two of the grantors, who were named as grantors in six of the nine registrations, opposed the restoration of the data in respect of the registrations that related to them respectively because, they asserted, there was no longer a mortgage or security interest.

Has Curo made out any of the grounds of review in s 5 of the ADJR Act?

57    In a judicial review of an administrative decision on statutory grounds such as those afforded by the ADJR Act it is necessary for the court to express its conclusions in a way that brings them within the statutory rubric: Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222 a [16] (Gleeson CJ). Here the rubric is found in s 5 of the ADJR Act, which permits an application to the court for review on any one or more of the grounds enumerated in that sub-section.

58    Curo relied on several grounds but it is not necessary to go through all of them. In my view s 5(1)(e) read together with s 5(2)(f) describe what the Registrar did here. Section 5(1)(e) authorises review of a decision on the ground that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. Section 5(2)(f) provides that this shall be construed as including a reference to an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case. In NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 at [24] Gleeson CJ summarised the effect of s 5(2)(f) as follows:

There is nothing inherently wrong in an administrative decision-maker pursuing a policy, provided the policy is consistent with the statute under which the relevant power is conferred, and provided also that the policy is not, either in its nature or in its application, such as to preclude the decision-maker from taking into account relevant considerations, or such as to involve the decision-maker in taking into account irrelevant considerations. The policy, and its application, must be measured against those requirements, having regard to the matter presented for decision, and the information and arguments, if any, advanced for or against a particular outcome.

59    Five matters lead me to conclude that, here, the Registrar applied a policy in such a way as to fail to have regard to the matter presented for decision and all the information and arguments before him. The first is the file note of 15 January 2020 I have mentioned above, in which an officer of the Registrar advised a solicitor for Curo that it would be very unlikely the Registrar would exercise his discretion to restore the data without a statement from the grantor; presumably a statement indicating that there was no opposition.

60    The second matter is the way in which the recommendation of 5 February 2020 said the main risk in restoring the registration lay in the fact that the grantors have not provided any response to the request from the applicant to consent to the restoration, so they may decide to contest a decision to restore. The recommendation said that based on that risk, the delegate may decide not exercise the discretion to restore. And it concluded with a recommendation that the data not be restored. This by itself does not bespeak error, but it tends to support an inference that the Registrar and its officers had a policy of refusing to exercise the discretion if there was a risk of opposition from a grantor.

61    The third matter is the statement that the delegate made in the letter of 25 February 2020 that he was concerned to exercise his discretionary power under s 186 'only when it is clear that the data has been incorrectly removed'.

62    The fourth matter is that the material which, it appears, the delegate considered gave rise to that lack of clarity was in the case of Tien and Duc as grantors, nothing more than a bare assertion, and for the registrations where the Society was grantor, not even that. The inadequacy of material on which a decision-maker acts can support an inference that the decision-maker applied the wrong test or was not in reality satisfied of the requisite matters: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co (1953) 88 CLR 100 at 120. By extension, here, the inadequacy of the material which supported a refusal to act, when compared with the strength of the material that was in favour of acting, supports an inference that the Registrar did not give proper consideration to the exercise of the discretion.

63    The fifth matter is the Registrar's practice statement which I have mentioned above. It requires an applicant for restoration of data to provide a statement from the grantor, and it says that the Registrar will follow up on that requirement (along with any other missing information) if it is not provided. To that extent, there was a published policy. But while the cases on s 5(2)(f) tend to deal with policies that have been published or promulgated in some way, in my view that is not necessary in order for the provision to apply. In a different context it has been held that in the absence of statutory definition the word 'policy' must be given its ordinary English meaning, and that meaning is imprecise: Leppington Pastoral Co Pty Ltd v Department of Administrative Services (1990) 23 FCR 148 at 156. That meaning includes a course of action adopted by a government body: see the dictionary definitions quoted in Leppington at 156. There is no reason apparent from s 5(2)(f) in its context in the ADJR Act to depart from that ordinary meaning. It is a question of fact as to whether an administrative decision-maker has adopted a policy in that sense.

64    Here, on the basis of the five matters I have set out, I find that the Registrar had adopted a policy of not exercising his discretionary power to restore data to the PPSR under s 186 of the PPSA if any of the grantors expressed opposition.

65    I consider that in refusing the application on the basis of expressed opposition by two of the three grantors, the Registrar applied that policy inflexibly and without regard to the merits of the case. Apart from the opposition expressed by Duc and Tien, the merits were all in favour of restoring the data. Even that opposition did not touch on the three registrations where the Society was grantor. And yet the Registrar refused to exercise the discretion in respect of all nine registrations. That was a failure to give proper, genuine and realistic consideration to the merits of the case: see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 (Gummow J).

66    An alternative way of characterising the error is that the discretionary power was exercised in an improper manner because the Registrar made his decision in a manner so devoid of plausible justification that no reasonable person could have taken that course. That is an error of the kind identified in s 5(1)(e) of the ADJR Act read together with s 5(2)(g), namely an exercise of power that is so unreasonable that no reasonable person could have so exercised the power: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290; and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [19].

Orders

67    The Registrar has fallen into error in the ways that have been identified, and there is no apparent discretionary reason why the court should deny Curo relief. There will be orders under s 16(1) of the ADJR Act setting the decision aside, to the extent that it relates to the registrations where the Society was grantor, and referring the matter back to the Registrar for further consideration according to law.

68    There is no need to make any direction under s 16(1)(b). These reasons indicate that the Registrar will need to consider the possible exercise of the discretion on the basis of the circumstances of the particular case, including that neither the Society nor any person on its behalf has expressed any opposition to the restoration to the PPSR of the registrations where the Society was grantor, despite having been given the opportunity to do so.

Costs

69    The second, third and fourth respondents did not take part in the proceeding and there will be no order as to costs in respect of them.

70    At the hearing on 1 October 2020 counsel for Curo and counsel for the Registrar indicated that there had been correspondence which was sent without prejudice as to costs, on which at least one of their clients would seek to rely, depending on the result. So it is not appropriate for me to make any costs order at the time of this judgment. I will make directions for conferral, and if necessary, for the question of costs to be determined on the papers.

Associate:

Dated:    21 October 2020