Federal Court of Australia

Greenleaf Renewables Pty Ltd, in the matter of Greenleaf Renewables Pty Ltd [2025] FCA 763

ORDERS

THE COURT ORDERS THAT:

1.    The time for service of the Originating Process filed on 2 July 2025 be abridged and the Originating Process be heard ex parte.

2.    Pursuant to section 588FM of the Corporations Act 2001 (Cth), the time for the Plaintiff to register the New Registration contained in Schedule A of the Originating Process on the Personal Property Securities Register (PPSR) for the purpose of section 588FL(2)(b)(iv) of the Act be fixed as 20 June 2025.

3.    Liberty be reserved to any liquidator, administrator or deed administrator of the Defendant to apply to discharge or vary order 2 if any winding up of the Defendant occurs, or an administrator is appointed to the Defendant under sections 436A, 436B or 436C of the Act, or the Defendant executes a deed of company arrangement within 6 months of 20 June 2025 (being the date that the New Registration was registered on the PPSR).

4.    The Plaintiff is to provide notice of these orders forthwith to the Defendant.

5.    These orders be entered forthwith.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

CHEESEMAN J:

1    By Originating Process filed on 2 July 2025, the plaintiff, BGTF Moonlight Aggregator LP, applies, amongst other things, for an order under s 588FM of the Corporations Act 2001 (Cth) fixing a “later time” for the registration of a security interest on the Personal Property Securities Register (PPSR) against Greenleaf Renewables Pty Ltd as grantor. The application was heard ex parte in circumstances where Greenleaf was on notice of the application, consents to the relief claimed, and did not appear.

2    The relevant security deed is the “Moonlight Range Wind Farm – Specific Security Deed” dated 4 April 2025. By that security deed, Greenleaf granted to BGTF a “PPS Act Security Interest” (that is, a security interest within the meaning of s 12 of the Personal Property Securities Act 2009 (Cth)) to secure payment of the “Secured Money” (being inter alia Greenleaf’s obligations to repay all money to BGTF under a related Loan Agreement): cl 2.1 of the security deed.

3    The security interest arose on 4 April 2025 and was required to be registered by 7 May 2025 pursuant to s 588FL of the Act, being the period of 20 business days after the security deed came into force, but was not registered until 20 June 2025. The failure to register the security interest by 7 May 2025 was due to an unfortunate combination of an employed solicitor’s inadvertence, the lack of timely partner supervision, the absence of a security completion checklist and that the related loan agreement did not include as a condition precedent a requirement for registration of the security interest before the advance of the loan. This combination of circumstances has been explained in the evidence read on this application.

4    The evidence relied on in this application comprised an affidavit of the supervising partner from King & Wood Mallesons, sworn on 1 July 2025 and an exhibit to that affidavit. The partner is responsible for the supervision of the provision of legal services to BGTF in connection with the relevant loan to Greenleaf and the associated security. BGTF also relied on updated email correspondence between its legal representatives and Greenleaf’s legal representatives in relation to this application. The evidence is collated in a Court Book marked as Exhibit 1 on this application.

5    When BGTF’s solicitors became aware on 19 June 2025 that the security interest was not lodged by the requisite time, they informed BGTF and took immediate steps to rectify the situation. The result being that the relevant security interest (being an all present and after-acquired property for a duration of 7 years – with exceptions) was registered at 6:31 pm the next day. At the time the interest was registered, BGTF was the only entity with a current registration on the PPSR as against Greenleaf as grantor.

6    The applicable principles on an application such as this are well established and need not be rehearsed in detail. Section 588FL of the Act provides that a PPSA security interest vests in the grantor if the grantor is placed into external administration, and the interest has not been registered on the PPSR within specified times. The grantee may apply under s 588FM(1) for an order fixing a “later time” for the purpose of s 588FL(2)(b)(iv). Such an order may be made if the Court is satisfied that the failure to register the collateral earlier:

(1)    was accidental or due to inadvertence or some other sufficient cause (s 588FM(2)(a)(i));

(2)    is not of such a nature as to prejudice the position of creditors or shareholders
(s 588FM(2)(a)(ii)); or

(3)    on other grounds, it is just and equitable to grant relief (s 588FM(2)(b)).

The order may be made on any terms and conditions that seem just and expedient to the Court: s 588FM(3).

7    Relevantly in the present case, “inadvertence” encompasses the notion of human error or oversight: Bluewaters Power 1 Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2019] WASC 438 at [40]-[41]. It includes being “not properly attentive”: Squadron Resources Pty Ltd v Highlake Resources Pty Ltd, in the matter of Highlake Resources Pty Ltd [2018] FCA 1292 at [35(c)].

8    Once the discretion to make an order under s 588FM is enlivened, the Court must exercise its discretion judicially as to whether to make the orders sought, and whether an order should be made on terms and conditions. The question of whether the Court should exercise the discretion will depend on the facts and circumstances of each case.

9    I am satisfied that the delay in registration of the security interest was caused by inadvertence, as the supervising partner has explained. There is no suggestion of any disregard by BGTF of its obligations. Here, the length of the delay prior to registration was just over six weeks and as soon as the error was discovered, the security interest was swiftly registered. I am satisfied for the purpose of s 588FM(2)(a)(ii) that the fixing of the later time is not of such a nature as to prejudice the position of creditors or shareholders: Re Appleyard Capital Proprietary Limited [2014] NSWSC 782; 101 ACSR 626 at [30] to [31]. It is appropriate on an ex parte application such as this, there being no evidence as to Greenleaf’s financial position, to protect the interests of potentially affected parties by granting leave to any relevant external administrator appointed to Greenleaf within six months of 20 June 2025 to apply to discharge or vary the order fixing the later time.

10    Accordingly, for these reasons, I was satisfied that I should make orders substantially as sought by BGTF. I made orders which have the effect of fixing 20 June 2025 as the later time for the purpose of s 588FL(2)(b)(iv) of the Act and its operation.

Associate:

Dated:    10 July 2025