Federal Court of Australia

Great Energy WA Pty Ltd v Northern Iron Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed) [2026] FCA 81

ORDERS

THE COURT NOTES THAT:

A.    For the purposes of this order:

The “Assets” and “Registrations” are:

(a)    Scania 500kVA containerized Diesel Generator. Serial #7348788, as recorded in PPS registration numbers 202502270062515 and 202506130055081;

(b)    Scania 500kVA containerized Diesel Generator. Serial #7348884, as recorded in PPS registration numbers 202502270062976 and 202506130055099;

(c)    Scania 500kVA containerized Diesel Generator. Serial #7362141, as recorded in PPS registration numbers 202502270063553 and 202506130055109 and 202506130055121;

(d)    Scania 500kVA containerized Diesel Generator, serial #7389399, as recorded in PPS registration numbers 202502270048392 and 202506130055113;

(e)    20' Dangerous Goods Container (Royal Wolf). Asset #E-04, as recorded in PPS registration numbers 202502270064330 and 202506130055132;

(f)    500kVA Cummins manufacture (11/2007) C550 diesel generator Ser#701070 with Cummins QSX15-G8 engine and Stamford HCI534E1 Alternator, as recorded in PPS registration numbers 202203310059404 and 202506130055145;

(g)    500kVA Cummins manufacture (11/2007) C550 diesel generator Ser#701071 with Cummins QSX15-G8 engine and Stamford HCI534E1 Alternator, as recorded in PPS registration numbers 202203310060340 and 202506130055166;

(h)    30,000L 20' HC Containerised bulk diesel tank in GEWA livery, PFS38 model, Ser# TOSU3003063, as recorded in PPS registration numbers 202204140033883 and 202506130055150.

“PMSI Registrations” are registrations on the Personal Property Securities Register numbered 202506130055081; 202506130055099; 202506130055121; 202506130055113; 202506130055132; 202506130055145; 202506130055166; 202506130055150.

THE COURT ORDERS THAT:

1.    Pursuant to s 588FM of the Corporations Act 2001 (Cth) (Corporations Act), 14 June 2025 is fixed as the time for the Applicant to register each Registration in respect of Assets numbered (a) to (e) on the Personal Property Securities Register for the purposes of s 588FL(2)(b)(iv) of the Corporations Act.

2.    Liberty is reserved to any subsequent liquidator, or deed administrator, who may be appointed to the First Respondent to apply to discharge or vary Order 1 if any winding up of the First Respondent occurs, or the First Respondent executes a deed of company arrangement, within 6 months of the date fixed under Order 1.

3.    Pursuant to s 293(1) of the Personal Properties Securities Act 2009 (Cth) (PPSA) the number of business days set out in PPSA s 62(3)(b) is extended, in respect of each of the PMSI Registrations in respect of the Assets, so that the period prescribed by PPSA s62(3)(b) will expire on 14 June 2025.

4.    Liberty is reserved to any subsequent liquidator, or deed administrator, who may be appointed to the First Respondent to apply to discharge or vary Order 3 if any winding up of the First Respondent occurs, or the First Respondent executes a deed of company arrangement, within 6 months of the date fixed under Order 3.

IT IS DECLARED THAT:

5.    The plaintiff is entitled to the return of, and to retain, the Assets free of any claim by any of the respondents.

IT IS FURTHER ORDERED THAT:

6.    There is no order as to costs of the proceedings.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    In these proceedings, the applicant, Great Energy WA Pty Ltd (Great Energy WA), seeks relief in relation to certain power generation assets in which it claims to hold security interests, and which were at the site, and in the possession, of the first respondent, Northern Iron Pty Ltd (Northern Iron), when it entered administration.

2    It claims that its security interests were “perfected” within the meaning of the Personal Property Securities Act 2009 (Cth) (PPSA), and that the orders which it now seeks will accord it the right to the assets as against Northern Iron’s administrators. It then seeks additional orders for the purpose of obtaining priority for its security interests against other security holders.

3    In general terms, the relief sought is for:

(a)    an order under s 588FM of the Corporations Act 2001 (Cth) (Corporations Act), fixing a later “cut-off date” for the registration of certain security interests on the Personal Property Securities Register (PPS Register), such that, by the operation of s 588FL of the Corporations Act, those interests will be taken not to have vested in Northern Iron as a result of its administration (Cut-Off Date Extension); and

(b)    an extension of time pursuant to s 293 of the PPSA for registration of its interests as purchase money security interests, which, it is said, will have the effect of according Great Energy WA’s interests in the assets priority over that of the fourth respondent, Cargill International Trading Pte Ltd (Cargill), which holds an earlier in time registered security interest in all present and after-acquired property (AllPAP) of Northern Iron as grantor (Priority Date Extension).

4    It is relevant that all persons and entities who might have any interest in the assets which are the subject of this application were served, and none appeared to contest the relief sought. This is important in circumstances where some difficult questions of law arose and there was an absence of any active contradictor or opposing submissions.

Background

5    Great Energy WA is in the business of providing, via rental agreements, the deployment of power generation assets and solutions to power needs.

6    One of its customers was Northern Iron, which operated the Warrego Mine Site in the Northern Territory, and it claims that it entered into a rental agreement with that company pursuant to which it provided a substantial amount of plant, including diesel generators and associated plant and equipment, used for its operation.

7    It is apparent that the origin of the agreement for the rental of such plant and equipment, was an initial meeting in October 2022. That was followed by the issue of commercial terms on 21 February 2024, and then a period of negotiation.

8    Great Energy WA asserts that the rental agreement between it and Northern Iron is recorded in a Power Generation Rental Contract which was executed by it on 15 May 2024 (the Agreement). By its terms, Great Energy WA agreed to hire to Northern Iron the “Equipment” set out in its schedule for the Rental Period, with the Rental Period defined at clause 1.1 to be 36 months, unless terminated earlier.

9    Northern Iron did not formally execute the Agreement, however, it did seek formalisation of it by having Great Energy WA re-initial certain pages over the following seven days to 22 May 2024.

10    Thereafter, certain variations were agreed to via email correspondence, and later the parties retrospectively (a) amended the commencement date of the rental period so as to align it with the date of the delivery of the Equipment, and (b) varied the scope of the assets leased by adding a Starlink communication system.

11    Great Energy WA delivered power generation assets to Northern Iron during the period from about 24 May 2024 to 9 July 2024 as follows (collectively, the Assets):

12    Assets G39, G40 and F36 had been leased to other companies prior to the lease to Northern Iron, and were transported from the site of the former lessees to Northern Iron’s Warrego mine site on or around 7 June 2024. The PPSA registrations in respect of these assets were amended on 6 September 2024 to reflect that they were thereafter leased to Northern Iron.

13    Northern Iron accepted delivery of the Assets from Great Energy WA, and used and operated them to power its mining operations.

14    Great Energy WA makes the submission that these circumstances had the consequence that Northern Iron accepted the Agreement by conduct. That appears to be correct and it is appropriate to proceed on that basis.

15    Northern Iron was placed in administration on 12 April 2025, and receivers were also appointed to some or all of its assets on 14 April 2025.

The relief sought by Great Energy WA

16    Great Energy WA recognises that it is unable to claim relief in relation to all of the plant and equipment which it delivered to Northern Iron, and it abandoned its claims in relation to some items. Those assets are no longer relevant and are not included in those identified above (see supra [11]).

17    The Assets can be broken into two groups, based on the relief sought in respect of them:

(a)    As to assets G39, G40 and F36 (the Returned Assets), both the receivers and administrators have issued notices of intention not to exercise property rights in respect of these, and they have been recovered by the applicant. No Cut-Off Date Extension is required for these assets under 588FM of the Corporations Act, though Great Energy WA seeks Priority Date Extensions pursuant to s 293 of the PPSA to ensure that there is no doubt about its claim to them in the future;

(b)    As to assets G46, G47, G48, G60 and E-04 (the Retained Assets), these remain on site in the possession of the receivers / Northern Iron. Orders are sought, in respect of the Retained Assets, for both Cut-Off Date Extensions and Priority Date Extensions.

The Relevant Security Interests

Creation of interests

18    There is no doubt that the Assets under consideration were constructed by Great Energy WA and, in total, they are of substantial value.

19    Section 12(3) of the PPSA converts the ownership interest of a lessor (here, Great Energy WA) under a “PPS lease” into a “security interest” for the purposes of that Act, and makes that owner a “secured party” as defined in s 10. The security interest is, however, defeasible in certain circumstances.

20    By s 13(1)(a) of the PPSA, a “PPS lease” includes a lease or bailment of goods for a term of more than 2 years. That temporal requirement is satisfied here, where the Agreement was for a period of 36 months.

21    Section 14 of the PPSA deals with a “purchase money security interest” which is defined (at subparagraph 14(1)(c)) to include the interest of a lessor or bailor of goods under a PPS lease. This is important in the present case, as Great Energy WA was entitled to register its security interests in the Assets as purchase money security interests, though initially it did not do so. Rather, it registered them as ordinary security interests. Subsequently, on 13 June 2025, following the appointment of administrators to Northern Iron, it lodged fresh registrations claiming a purchase money security interest in each of the Assets (PMSI Registrations). The Priority Date Extension application seeks to retrospectively perfect the PMSI Registrations so as to accord them priority over Cargill’s prior and all-encompassing security.

22    By s 19(1) of the PPSA, a “security interest” is enforceable against a grantor only if the security interest has “attached” to the collateral; in this case being the Assets.

23    By the operation of ss 19(2)(a) and (5) of the PPSA, in this case Great Energy WA’s security interest attached to the goods when Northern Iron:

(a)    had rights in the collateral which, in this case, was when it obtained possession of the Assets. It is apparent that this occurred progressively on the dates of delivery of the equipment, and was complete by about 9 July 2024; and

(b)    gave value for the security interest. Here, Great Energy WA asserts that this occurred when Northern Iron commenced paying rent. Though there is no direct evidence of that, it can be inferred that such payment occurred by reason of the terms of the Agreement requiring payment, and the fact that the Agreement was not terminated until post-administration. Though questions might arise as to why Great Energy WA was not able to adduce evidence of the lease payments under the Agreement, that was sufficiently explained by the fact that when the affidavits were being prepared there was no issue as between the potential parties that the rental had been paid.

Enforceability

24    The next issue concerns the enforceability of the security interest against third parties.

25    By subparagraphs 20(1)(a) and (1)(b)(iii) of the PPSA, a security interest is enforceable against a third party if it has “attached” (see supra [23]) and, relevantly, there is a security agreement which provides for the security interest in the collateral.

26    Here, though the Agreement was not signed by Northern Iron, it is sufficient to constitute a PPS lease and a security agreement within the meaning of the PPSA. The Act (at s 10) defines a “security agreement” as being:

(a)     an agreement or act by which a security interest is created, arises or is provided for; or

(b)     writing evidencing such an agreement or act.

27    It sufficiently appears that the Agreement satisfies paragraph (b) of the definition.

28    The PPSA further requires, by subparagraph 20(2)(a), that, for a security agreement to cover the collateral, it must be evidenced in writing that is (a) signed by the grantor, or, alternatively, (b) adopted or accepted by the grantor by an act, or omission, that reasonably appears to be done with the intention of adopting or accepting the writing. Further, under subparagraph 20(2)(b), the writing must describe the particular collateral, or provide a statement that a security interest is taken in all of the grantor’s present and after acquired property, with or without exceptions.

29    It can be accepted that, here, the Agreement is in writing and evidences a security agreement. On the available evidence it has been adopted or accepted by Northern Iron as indicated by its acceptance and use of the Assets and the inferred payments made by it pursuant to the Agreement. The Agreement sufficiently describes the “collateral”, being the Assets, by their specification as the “Equipment” which is the subject of the Agreement.

Perfection

30    The next issue is whether Great Energy WA “perfected” its security interests in the Assets.

31    In relation to this issue, subparagraphs 21(1)(b) and (2)(a) of the PPSA relevantly provide that perfection occurs by effective registration with respect to the collateral in circumstances where the security interest has attached and is enforceable against third parties.

32    On the material before the Court, it was shown that security interests in the Assets were registered prior to the administration of Northern Iron. That is, Great Energy WA’s interests in the Returned Assets were registered progressively on 31 March 2022 and 14 April 2022, while its interests in the Retained Assets were registered on 27 February 2025. In all cases, the registration was of an ordinary security interest. Though entitled to do so, Great Energy WA did not register its interests as purchase money security interests. The registration required to perfect a purchase money security interest is dictated by s 62 of the PPSA, which is set out later in these reasons. Importantly for present purposes, perfection by registration of such an interest requires that the registration state that the security interest claimed is a purchase money security interest, and that did not occur.

33    As mentioned previously, on 13 June 2025, after the administration commenced, Great Energy WA lodged the PMSI Registrations, which concerned the Returned Assets and Retained Assets and complied, or purported to comply, with s 62 of the PPSA in that they stated that they were purchase money security interests.

34    That issue aside, as the ordinary security interests in the Assets had attached and were enforceable as a consequence of the initial registrations, Great Energy WA’s security interests in them were perfected to that extent.

The Need for the Relief Sought

35    As mentioned, Great Energy WA seeks a Cut-Off Date Extension under s 588FM of the Corporations Act and a Priority Date Extension under s 293 of the PPSA. In general terms, this relief is sought to ensure (a) the enforceability of its security interests against Northern Iron, and (b) that its security interests take priority over Cargill’s prior registered AllPAP interest.

36    It is important to appreciate the duality of Great Energy WA’s position in this respect. First, it asserts that its interests are enforceable vis-à-vis Northern Iron as a result of its initial registrations of ordinary security interests (made on 31 March 2022, 14 April 2022 and 27 February 2025), provided a Cut-Off Date Extension is granted (which it says is warranted by the circumstances of the case). Secondly, vis-à-vis Cargill, it seeks to rely, with the benefit of a Priority Date Extension, upon the priority afforded to purchase money security interests, as a result of the PMSI Registrations (see supra [21], [33]).

37    Before evaluating whether these orders should be made, it is appropriate to set out the reasons for which they are sought.

Cut-Off Date Extension: Preventing the interests from vesting in Northern Iron

38    Great Energy WA is concerned that, despite the perfection of its security interests in the Retained Assets, the effect of s 588FL(1), (2) and (4) of the Corporations Act is that such interests vested in Northern Iron upon its administration.

39    Section 588FL relevantly provides as follows:

588FL Vesting of PPSA security interests if collateral not registered within time

Scope

(1)         This section applies if:

(a)     any of the following events occurs:

(i)     an order is made, or a resolution is passed, for the winding up of a company;

(ii)     an administrator of a company is appointed under section 436A, 436B or 436C;

…

(b)     a PPSA security interest granted by the company in collateral is covered by subsection (2).

(2)         This subsection covers a PPSA security interest if:

(a)     at the critical time, or, if the security interest arises after the critical time, when the security interest arises:

(i)     the security interest is enforceable against third parties under the law of Australia; and

(ii)     the security interest is perfected by registration, and by no other means; and

(b)     the registration time for the collateral is after the latest of the following times:

(i)     6 months before the critical time;

(ii)     the time that is the end of 20 business days after the security agreement that gave rise to the security interest came into force, or the time that is the critical time, whichever time is earlier;

(iii)     if the security agreement giving rise to the security interest came into force under the law of a foreign jurisdiction, but the security interest first became enforceable against third parties under the law of Australia after the time that is 6 months before the critical time—the time that is the end of 56 days after the security interest became so enforceable, or the time that is the critical time, whichever time is earlier;

(iv)     a later time ordered by the Court under section 588FM.

…

Vesting of security interest in company

(4)     The PPSA security interest vests in the company at the following time, unless the security interest is unaffected by this section because of section 588FN:

(a)     if the security interest first becomes enforceable against third parties at or before the critical time—immediately before the event mentioned in paragraph (1)(a);

(b)     if the security interest first becomes enforceable against third parties after the critical time—at the time it first becomes so enforceable.

…

(7)         In this section:

critical time, in relation to a company, means:

(a)     if the company is being wound up—when, on a day, the event occurs by virtue of which the winding up is taken to have begun or commenced on that day under section 513A or 513B; or

(b)     if the company is under administration or is subject to a deed of company arrangement—when, on a day, the event occurs by virtue of which the day is the section 513C day for the company; or

(c)     if the company is under restructuring or is subject to a restructuring plan—when, on a day, the event occurs by virtue of which the day is the section 513CA day for the company.

40    The effect of this section is that on the date upon which a company enters administration (being the “critical time” per s 588FL(7)(b)), any security interests granted by it which are enforceable and perfected by registration only will vest in the company, provided it was registered after the latest of:

(a)    20 business days after the security agreement under which the security interest arose came into force;

(b)    six months before the date of administration; and

(c)    by subparagraph 588FL(2)(b)(iv), “a later time ordered by the Court under s 588FM”.

Existing cut-off date

41    It is necessary to first identify the relevant “cut-off” date imposed by s 588FL(2)(b) – that is, the latest of paragraphs (a) and (b) above – in the instant case. This requires identification of the date at which the unsigned Agreement came into force.

42    In the ordinary course, a security agreement will come into force when it is executed, as distinct from when the security interest attaches or becomes enforceable: In the matter of Antqip Hire Pty Ltd (in liq) [2021] NSWSC 1122 [49]. In this case, in the absence of Northern Iron executing the Agreement, it can be accepted that it “came into force” when that company did an act which can be seen as adopting or accepting its terms and obligations. It may not always be easy to identify that date but, with the benefit of hindsight, it is possible to regard the act of receiving the Assets as being the relevant date. The first date on which any of the Assets were transported to the site of Northern Iron’s mining operations was 24 May 2024. The subsequent fact of paying the rental under the Agreement, which can be inferred from the circumstances, gives credence and support to the act of acceptance of the Assets being evidence of an agreement to be bound by the terms of the Agreement.

43    Thus, it sufficiently appears that the Agreement came into force on 24 May 2024, such that the time for subparagraph 588FL(2)(b)(ii) is around 13 June 2024.

44    Given Northern Iron entered administration on 12 April 2025, the Agreement therefore came into force more than six months before that time, and as such it is irrelevant for present purposes. Accordingly, the relevant cut-off date for registration in this case under s 588FL(2)(b) is six months before the date of administration, being 12 October 2024.

Application to the Returned Assets

45    As noted (see supra [12]), the Returned Assets were initially the subject of PPSA registrations in respect of former leases to companies associated with the nearby Peko Mine. They were transported directly from the Peko Mine site to Northern Iron’s Warrego mine site. To reflect this, the PPSA registrations were amended on 6 September 2024 to add Northern Iron as grantor, and further on 20 November 2024 to remove the Peko-related grantors.

46    In the result, the date of perfection by registration in respect of the Returned Assets was 6 September 2024. This was before the relevant cut-off date – that is, 12 October 2024 – and as such s 588FL did not operate to vest them in Northern Iron upon its administration. It follows that no order under s 588FM is required in respect of the Returned Assets.

Application to the Retained Assets

47    Great Energy WA registered its security interests in the Retained Assets, recording Northern Iron as grantor, on 27 February 2025, being after the 12 October 2024 cut-off date. As such, by virtue of s 588FL(4), Great Energy WA’s interests in the Retained Assets vested in Northern Iron on 12 April 2025. In order to avoid that consequence, Great Energy WA seeks the order under s 588FM (as is referred to in subparagraph 588FL(2)(b)(iv)) fixing a later cut-off date, such that s 588FL(4) will not operate in respect of the Retained Assets.

Priority Date Extension: Gaining priority over Cargill’s prior registered interest

48    As mentioned, Cargill has an AllPAP security interest against Northern Iron which was registered on 19 June 2023, prior to Great Energy WA’s initial registrations. As such, pursuant to the default conflict rules in the PPSA, Cargill’s prior registered interest takes priority over Great Energy WA’s later interests: PPSA ss 55(4), (5).

49    However, Great Energy WA seeks to circumvent this outcome by relying upon its 13 June 2025 PMSI Registrations (see supra [21], [33]). In so doing, it seeks the benefit of the “super priority” afforded to purchase money security interests under the PPSA: see, for example, Commonwealth Bank of Australia v HM Aircraft Holdings Pty Ltd (2021) 152 ACSR 63, 74 [72]; Toll Energy and Marine Logistics Pty Ltd v Conlon Murphy Pty Ltd (2019) 137 ACSR 328, 331 [29].

50    However, the ordinary operation of the priority rules contained in Ch 2, Pt 2.6 of the PPSA prevents Great Energy WA from taking such an approach. Relevantly, s 62(3)(b) of the PPSA provides that a purchase money security interest takes priority over earlier security interests if, where the collateral is not inventory (as here), “the purchase money security interest is perfected by registration before the end of 15 business days” after the grantor takes possession of the goods. Here, it is axiomatic that the fresh registrations did not occur within 15 business days of Northern Iron taking possession of the Assets.

51    Great Energy WA seeks to circumvent this by obtaining an order under s 293(1)(a) of the PPSA which permits the Court to extend the number of business days in which a purchase money security interest must be registered under s 62(3)(b). If an order is made to that effect, it will, inter alia, accord priority to Great Energy WA’s interests in the Assets over Cargill’s earlier AllPAP security interest.

52    As mentioned, no party, including Cargill, opposes the granting of this relief. Nevertheless, the application raises the issue of whether the Priority Date Extension can and should be granted where the PMSI Registrations occurred after the company was put into administration. This issue is addressed subsequently in these reasons.

The Cut-Off Date Extension

Principles relevant to the granting of relief under s 588FM

53    Section 588FM of the Corporations Act provides as follows:

588FM Extension of time for registration

(1)    A company, or any person interested, may apply to the Court (within the meaning of section 58AA) for an order fixing a later time for the purposes of subparagraph 588FL(2)(b)(iv).

Note: If an insolvency‑related event occurs in relation to a company, paragraph 588FL(2)(b) fixes a time by which a PPSA security interest granted by the company must be registered under the Personal Property Securities Act 2009, failing which the security interest may vest in the company.

(2)     On an application under this section, the Court may make the order sought if it is satisfied that:

(a)    the failure to register the collateral earlier:

(i)     was accidental or due to inadvertence or some other sufficient cause; or

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

(b)     on other grounds, it is just and equitable to grant relief.

(3)     The Court may make the order sought on any terms and conditions that seem just and expedient to the Court.

54    The principles on which this section operates are not in doubt.

55    Under s 588FM, this Court may exercise its discretion to fix a later cut-off date, for the purposes of s 588FL(2), before which an applicant may register its security interests in respect of assets, thereby preventing such interests from vesting in the grantor. That is because s 588FL(2) provides that security interests will vest in a grantor only if such interests were registered after the relevant cut-off date mentioned therein, one such date being that fixed by the Court (see supra [39]). Therefore, the practical effect of the Court specifying, for the purposes of s 588FL(2)(b), a date after registration has in fact occurred, is that it will alter the operation of s 588FL in relation to the applicant.

56    It is not in doubt that the Court may make an order under s 588FM after the critical time and what would otherwise be a vesting event, such as administration or liquidation: Northern Managed Finance Pty Ltd v 4 in 1 Wyoming Pty Ltd (2017) 120 ACSR 167, 181 [55] (Northern Managed Finance). In Pit N Portal Mining Services Pty Ltd v Aurora Metals Ltd (admins apptd) [2023] FCA 762 (Pit N Portal Mining Services), Feutrill J observed (at [12]):

The Court may make an order under s 588FM after the critical time and the ‘vesting event’: K.J. Renfrey Nominees Pty Ltd v OneSteel Manufacturing Pty Ltd [2017] FCA 325; (2017) 120 ACSR 117 at [27] (although K.J. Renfrey, as authority for the proposition that s 588FL applies to security interests granted after the critical time and the reasoning supporting that proposition is doubtful in light of more recent authorities, see, e.g., Cathro, in the matter of Cubic Interiors NSW Pty Ltd (in liq) [2023] FCA 694 at [10]-[12], [41]-[84] (Cheeseman J), that doubt does not affect this point). Also, orders under s 588FM have regularly been made after an administrator (or liquidator or provisional liquidator) has been appointed to a company: Northern Managed Finance Pty Ltd v 4 in 1 Wyoming Pty Ltd [2017] NSWSC 407; (2017) 120 ACSR 167 at [55]; Re Quality Blended Liquor Pty Ltd [2014] QSC 234; [2015] 2 Qd R 381 at [83]; Re Carpenter International Pty Ltd [2016] VSC 118; (2016) 51 VR 190 at [217]; Re Enviro Pallets (NSW) Pty Ltd (in liq) [2013] QSC 220; Re Southern Engineering Services Pty Ltd (in liq) [2014] NSWSC 1882. Therefore, the Court may make orders that have the effect of preventing a PPSA security interest from vesting in a company even if, by operation of s 588FL before the order is made, the PPSA security interest would, otherwise, be taken to have vested in the company in administration.

(Emphasis in original).

57    Importantly, the granting of relief under s 588FM does not affect the priority of security interests: Gemi 143 Pty Ltd v The Gosford Pty Ltd (Receivers and Managers Appointed) (2023) 169 ACSR 516, 521 [36] (Gemi 143 Pty Ltd); Von Arx v Todae Solar Pty Ltd, in the matter of Todae Solar Pty Ltd (Administrators Appointed) [2020] FCA 1071 [10]. As such, the only impact of such an order will be as between the security holder and the company in administration. It follows that since the interests of other secured creditors are not affected by a s 588FM order, their concerns are not directly relevant to the exercise of the Court’s discretion: Pit N Portal Mining Services [19].

58    Under s 588FM, the Court may exercise its discretion when it is satisfied that one of the identified grounds is made out. That is, whether the failure to register the collateral earlier was accidental, due to inadvertence or some other sufficient cause, or is not of such a nature as to prejudice the position of creditors or shareholders. These grounds are wide, though have as their fulcrum, the failure to register the security interest in a timely manner. Otherwise, a broad and flexible discretion is given to grant relief where the Court is satisfied “on other grounds it is just and equitable to grant relief”. That provision may have greater relevance where the registration was effected in a timely manner, but after six months before the administration commenced, and where the taking of the security was bona fide and commercially appropriate.

59    It is important to point out that, although s 588FM provides several alternative bases for enlivening the Court’s discretion, it is well accepted that where one ground is made out and the discretion is enlivened, the substance of the other grounds are still relevant and inform the exercise of that discretion: Realtek Semiconductor Corporation v Jones (Admins apptd) [2024] FCA 1321 [33] (Realtek). Thus, once the discretion is enlivened, several factors will be relevant to its exercise, including whether in the circumstances it is “just and equitable” to grant relief. The specific inclusion of that factor tends to indicate that the provision is intended to have a liberal application: Squadron Resources Pty Ltd v Highlake Resources Pty Ltd [2018] FCA 1292 [35(b)]; Realtek [41].

60    As to the first ground under subparagraph 588FM(2)(a)(i), it cannot be doubted that the concept of “inadvertence” is wide and covers a multiplicity of oversights and omissions. In Gemi 143 Pty Ltd at 519 [17], Halley J observed in the context of s 588FM:

The reference to “inadvertence” in s 588FM(2)(a)(i) can include a failure to advert to or understand the legal requirements for registration: Elimatta Pty Ltd v NT Bullion Pty Ltd, Re NT Bullion Pty Ltd [2021] FCA 1416 at [5] … (Yates J). The concept of “inadvertence” encompasses innocent human error, lack of oversight, an active but incorrect consideration of a requirement, a failure to turn one’s mind to the requirement or a failure to appreciate the true significance of non-compliance with a requirement, so long as such a failure is not intended to flout, or is recklessly indifferent to proper compliance: Bluewaters Power 1 Pty Ltd v Griffin Coal Mining Company Pty Ltd [2019] WASC 438 at [40] (Vaughan J), citing National Australia Bank Ltd v Davis & Waddell (Vic) Pty Ltd (2003) 44 ACSR 296; [2003] VSC 1 at [65] (Hansen J); Re ACE Funding Ltd (2003) 44 ACSR 363; [2003] FCA 59 at [8] (Conti J); Commonwealth Bank of Australia v HM Aircraft Holdings Pty Ltd (2021) 152 ACSR 63; [2021] FCA 447 at [64] (Beach J).

61    As to the second ground under subparagraph 588FM(2)(a)(ii), an applicant’s delay in registering their interest in a timely manner can, in some circumstances, be of such a nature as to cause prejudice to other creditors or shareholders. In Re Appleyard Capital Pty Ltd; 123 Sweden AB v Appleyard Capital Pty Ltd (2014) 101 ACSR 629, 640 [30] (Re Appleyard Capital), Brereton J observed:

… the presence or absence of prejudice to unsecured creditors is a relevant discretionary consideration, relevant prejudice is not necessarily established merely by showing that the dividend to unsecured creditors will be less if the security interest does not vest in the company; the unsecured creditors may well have been in no different a position had the security interest been timely registered. The type of prejudice that is of particular relevance is prejudice attributable to the delay in registration, rather than prejudice from making the order (which is inevitable). This is the type of prejudice contemplated by the legislation (see s 588FM(2)(a)(ii), which refers to prejudice from the failure to register earlier, not from making the order) …

(See also Re Transurban CCT Pty Ltd [2014] NSWSC 1909 [13]).

62    It follows that the relevance of the passing of time following the applicant’s failure to register its security interest relates to the potential that others will have dealt with the company on the basis that the assets of which it was in possession were not encumbered: Realtek [36]. Hence, an unsecured creditor may be detrimentally affected by any delay in registration if they traded with the company on the faith of a register that disclosed no security interest: Re Appleyard Capital Pty Ltd 640 [31]; Bluewaters Power 1 Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2019] WASC 438 [53] (Bluewaters Power 1 Pty Ltd v The Griffin Coal Mining Company Pty Ltd). However, it necessarily follows that, where the PPS Register discloses a perfected AllPAP security interest (which would have been apparent to anyone searching it), it is unlikely that an unsecured creditor could have dealt with the company on the basis that the relevant assets (being the subject collateral) were unencumbered: Bluewaters Power 1 Pty Ltd v The Griffin Coal Mining Company [61]; Adia Venture Ltd v Traffic Technologies Ltd [2025] FCA 564 [30]. In those circumstances, there is unlikely to be any relevant prejudice flowing to unsecured creditors or shareholders from an applicant’s delay in registering their security interest.

63    When an application is made under s 588FM at a time where the subject company may be approaching insolvency, such that liquidation or administration is imminent, any order extending the cut-off date is usually subject to a condition reserving leave to any liquidator or administrator appointed within six months to apply to set the order aside: Re Appleyard Capital Pty Ltd 639 [28] per Brereton J; Bluewaters Power 1 Pty Ltd v The Griffin Coal Mining Company [58]. That is not particularly necessary in the present case where all relevant persons, including the administrators, are aware of the application, and none oppose the relief sought.

Consideration

64    It is plain that, in this case, the registration of the collateral under the PPSA did not occur in a timely manner:

(a)    in relation to Assets G46, G47 and G48 – being the three diesel generators which were transported to the site of Northern Iron’s mining operations on or about 24 May 2024 – the registrations occurred on 27 February 2025;

(b)    in relation to Assets G39, G40 and F36 – being the two generators and bulk diesel tank that were delivered to the site on or about 7 June 2024 – the registrations occurred by amendment to the existing registration on 6 September 2024; and

(c)    in relation to Assets G60 and E-04 – being the generator and dangerous goods container delivered to the site on 9 July 2024 – the registrations occurred on 27 February 2025.

65    As set out above (see supra [44], [47]), since Northern Iron was placed in administration on 12 April 2025, the registrations in relation to the Retained Assets, being those in paragraphs (a) and (c) above, occurred after the relevant cut-off date under s 588FL(2) such that, prima facie, s 588FL(4) would operate to vest Great Energy WA’s interests in those assets in Northern Iron.

66    On the current application, Great Energy WA seeks to enliven the discretion in s 588FM by reference to inadvertence on its part or for other sufficient cause.

Inadvertence

67    Mr Ladbrook, the director of Great Energy WA, deposed that he had the corporate responsibility for registering security interests under the PPSA. His knowledge of such procedures was derived from his experience over time and not through any formal training. This resulted in him being unaware of (a) the need for timely registration, and (b) the right to register interests, which arose out of leasing equipment to others, as purchase money security interests. His understandable lack of awareness of the technicalities of the PPSA also resulted in an inadequate supervision of those working under him.

68    Of particular relevance is the fact that Mr Ladbrook, owing to his lack of understanding of the PPSA and PPS Register, generally attended to registering security interests when Great Energy WA received a fully executed contract from a lessee. Here, no such contract was received, and the Agreement was one where acceptance occurred by Northern Iron’s conduct. It follows that there was no prompt for Mr Ladbrook to begin the registration process.

69    Mr Ladbrook further deposes that Great Energy WA has encountered no other PPS issues during its operation. This is significant in circumstances where its previous lessees – namely, the operators of the Peko mine – had entered administration, but on that occasion no issue arose under the PPSA, and the leased assets were returned. The import of this is that Mr Ladbrook remained unaware of (a) the importance of registration and (b) the appropriate type of interest which should be registered vis-à-vis the Assets.

70    The foregoing is sufficient to establish that the lack of timely registration arose as a result of inadvertence. In particular, Mr Ladbrook had not previously encountered circumstances of the type which confronted him in relation to the leasing of assets to Northern Iron, and by virtue of his lack of knowledge of the PPSA, he was unaware of the need to effect registration.

71    Additional evidence supporting a conclusion that the delay in registration arose from inadvertence was that Great Energy WA had previously obtained assistance in relation to PPSA registrations from a related entity, which held 50% of its shares. Unfortunately, there occurred a substantial breakdown in relations between the staff members that had previously assisted Great Energy WA, resulting in staff absences, role changes and replacements. This disruption, at least in part, prevented Great Energy WA from registering its security interests in a timely manner.

Prejudice

72    In relation to the issue of prejudice, it is relevant that Northern Iron is in administration and its assets are under the control of receivers. However, neither the administrators nor the receivers assert any prejudice by reason of the delayed registration, nor have they raised any objection to the relief sought.

73    The administrators have previously circulated notice of this application to Northern Iron’s creditors, and it is relevant that none have filed evidence or sought to become a party to the proceedings.

74    Further, as Cargill has a registered AllPAP security interest against Northern Iron, which was in place prior to Northern Iron’s entry into the Agreement with Great Energy WA, there can be no relevant prejudice to the unsecured creditors. That security would have been apparent to any who had searched the PPS Register prior to dealing with Northern Iron, and it would have shown that all of Northern Iron’s assets were subject to that existing security. In these circumstances, no creditor could have acted to their detriment by reason of the delay in the registration of the interests of Great Energy WA.

75    It follows that the discretion under s 588FM has been enlivened.

The exercise of the discretion

76    In the exercise of the discretion, it is appropriate to take into account the following matters:

(a)    the delay in registering the interests was caused by inadvertence, and the evidence shows that there was no apparent lack of honesty or any attempt to gain an advantage from the delay;

(b)    had Great Energy WA been more vigilant in the protection of its rights and registered its interests in a timely manner, it would have been unaffected by the operation of s 588FL. That is, this is not a case of the security being granted late and at a time shortly prior to the administration of Northern Iron, and as such, granting relief would not frustrate one of the main objects of s 588FL to negate security interests over the assets of a company which are created proximate to that company’s impending insolvency;

(c)    as discussed (see supra [72] – [74]), no party was apparently prejudiced by the delay in registration;

(d)    Northern Iron’s creditors have been informed of these proceedings, yet none have come forward to be heard on it; and

(e)    Northern Iron’s administrators do not oppose the granting of relief, and can therefore be assumed to have considered the circumstances of the delay, and formed an opinion as to the likely outcome of the present application.

77    It follows that it is appropriate to exercise the discretion in favour of fixing a cut-off date, for the purposes of subparagraph 588FL(2)(b)(iv), which is after the date on which Great Energy WA registered its interests in the Retained Assets. In this case, that should be 14 June 2025.

The result of the exercise of power

78    The consequence of making such an order is that Great Energy WA is taken to have registered its interests in the Retained Assets before the latest of the occasions listed in s 588FL(2)(b), such that those interests do not vest in Northern Iron. As discussed, (see supra [46] – [47]), that order need only apply in relation to the Retained Assets, being those in respect of which the security interests were first registered on 27 February 2025. Great Energy WA registered its interests in the Returned Assets before the original cut-off date, and as such in respect of those assets an order under s 588FM need not be made.

79    For the purposes of the following discussion, it is relevant that the making of the order under s 588FM did not require, and does not involve, any order in relation to the PMSI Registrations. Nor does it involve any order pursuant to s 293(1)(a) of the PPSA extending the time for registration of any security interest. On the other hand, it should be noted that any further order will not detrimentally impact Northern Iron. The existence of Great Energy WA’s efficacious ordinary security interests in the Assets, negates any interest in them that Northern Iron may have (though note the discussion at infra [126] – [134]).

The Priority Date Extension

80    The remainder of the application concerns the Priority Date Extension by which Great Energy WA seeks to upgrade its ordinary security interests in the Assets to purchase money security interests and thereby usurp Cargill’s earlier registered AllPAP interest.

81    To secure this outcome, orders are sought under s 293 of the PPSA extending the time period within which perfection of its purchase money security interests by registration can be effective. As mentioned earlier, it made the PMSI Registrations on 13 June 2025, being (a) some two months after the commencement of Northern Iron’s administration, and (b) more than 12 months after Northern Iron received the first delivery of the Assets.

82    It is worth noting that if the Priority Date Extension is granted, it follows that Great Energy WA will hold separate registrations in respect of the security interests held over the Assets. The evidence before the Court revealed that, at least outside of the insolvency context, it is not uncommon for the one entity to hold separate security registrations over the same assets: see, for example, Liebherr-Australia Pty Ltd v LEQ2 Pty Ltd, in the matter of LEQ2 Pty Ltd [2024] FCA 1484 [19].

83    It should also be noted that Great Energy WA also sought, in the alternative, to amend the registrations of the ordinary security interests to “upgrade” them to purchase money security interests, though that was not seriously advanced.

Sections 55 and 62 of the PPSA

84    It is to be recalled that s 55 of the PPSA establishes the default priority rule that, as between two or more perfected security interests, priority is to be determined by the order in which those interests were perfected. If this section applied in the present case, Cargill, which had a prior registered AllPAP security interest against Northern Iron, would have priority over Great Energy WA’s ordinary security interest in the Assets.

85    Section 55 is, however, subject to the operation of s 62, which accords a registered purchase money security interest priority over all ordinary security interests, even those registered earlier in time. Relevantly, it provides:

62    When purchase money security interests take priority over other security interests

Scope

(1)     This section sets out when a perfected purchase money security interest that is granted by a grantor in collateral or its proceeds has priority over a perfected security interest that is granted by the same grantor in the same collateral, but that is not a purchase money security interest.

Note: This section is subject to section 57 (perfection by control).

…

Personal property other than inventory

(3)     The purchase money security interest has priority if:

(a)     the interest is in personal property, or its proceeds, other than inventory; and

(b)     the purchase money security interest is perfected by registration before the end of 15 business days after whichever of the following days applies:

(i)     for goods—the day the grantor, or another person at the request of the grantor, obtains possession of the property;

(ii)     for any other property—the day the interest attaches to the property; and

(c)     the registration that perfects the purchase money security interest states, in accordance with item 7 of the table in section 153, that the interest is a purchase money security interest.

Note: The period mentioned in paragraph (b) may be extended by a court under section 293.

86    Here, the security interests referred to in the PMSI Registrations are not over inventory and so subparagraph (a) is satisfied. Further, the PMSI Registrations stated that the interest was a purchase money security interest, thereby satisfying subparagraph (c).

87    However, the difficulty for Great Energy WA is that the goods were delivered to Northern Iron in the period between 24 May 2024 and 9 July 2024, such that subparagraph (b) was not satisfied when the PMSI Registrations were made on 13 June 2025.

88    In these circumstances, Great Energy WA seeks the exercise of the Court’s discretion under s 293 of the PPSA extending the time for effective registration of its purchase money security interests.

Section 293 of the PPSA

89    For present purposes, s 293 of the PPSA provides:

293 Timing—applications for extension of time

(1)     On application, a court may make an order extending the number of business days in a period specified in the following provisions if the court is satisfied that it is just and equitable to do so:

(a)     paragraphs 62(3)(b) (perfection of purchase money security interests);

…

(2)     The court may make the order even if the period has ended.

(3)     In making an order to extend a period under subsection (1), the court must take into account the following:

(a)     whether the need to extend the period arises as a result of an accident, inadvertence or some other sufficient cause;

(b)     whether extending the period would prejudice the position of any other secured parties or other creditors;

(c)     whether any person has acted, or not acted, in reliance on the period having ended.

Principles for relief under s 293 of the PPSA

90    Subparagraph 293(1)(a) is directed to the extension of the period within which a purchase money security interest registration is made to perfect that security interest, and it is clear that the Court can make an order despite the period in which registration was to occur having expired.

91    Here, if time is extended under s 293 of the PPSA to a date after the PMSI Registrations occurred, the “super priority” granted to purchase money security interests by s 62 of the PPSA will apply to such registrations. Absent the granting of relief, Cargill’s security interest, which was registered on 19 June 2023, will retain priority (by virtue of s 55 of the PPSA).

92    It might initially appear, on the face of s 293(1) and (3), that the discretionary power contained therein is conditioned upon the Court’s satisfaction that it is just and equitable to make the order sought – that is, the discretion only enlivens if and when the Court is so satisfied. However, the preferable construction of s 293 is that it provides for a general power, by which the Court will (as opposed to may) make an order extending time if satisfied that it is just and equitable to do so, taking into account the considerations enumerated in subsection (3).

93    In relation to the first of those considerations, it is sufficiently apparent that the concepts of “accident” and “inadvertence” are the same here as for s 588FM of the Corporations Act: Toll Energy and Marine Logistics Pty Ltd v Conlon Murphy Pty Ltd (2019) 137 ACSR 328, 335 [50]; In Re Accolade Wines Australia Ltd [2016] NSWSC 1023 [26] (Re Accolade Wines Australia); Northern Managed Finance 182 [63].

94    Thus, for the reasons given earlier (see supra [67] – [71]), it is apparent that Mr Ladbrook’s failure to register the security interests of Great Energy WA as purchase money security interests arose from inadvertence. Both he and others in the organisation were unaware of the entitlement to register the interests as such, and that is sufficient.

95    As for the second and third considerations under subparagraphs 293(3)(b) and (c), Brereton J in Re Accolade Wines Australia observed at [30] that:

… prejudice will be of significance chiefly where it is coupled with reliance under s 293(3)(c); the kind of ‘reliance’ contemplated is where a third party has dealt with the grantor – in particular, by taking a security interest over property that includes the PMSI – in the belief that there was no perfected PMSI that would trump its interest.

96    Re Accolade Wines Australia involved circumstances comparable to the present case. There, the plaintiff lessors inadvertently failed to register purchase money security interests over leased goods. They sought orders under s 293 of the PPSA retrospectively extending the time for registration. However, some of the grantors had granted AllPAP securities to other secured parties, both before and after the plaintiffs’ interests came into effect, which took priority over the plaintiffs’ interests. As such, in deciding the plaintiffs’ application, Brereton J was required to consider the prejudice, if any, caused to the holders of those AllPAP securities.

97    To that end, Brereton J observed at [31]:

At the time when any Earlier AllPAP holder took security from the relevant Grantors, the property the subject of the Plaintiffs’ security interests was not property of the relevant Grantor. An AllPAP secured party whose security interest was registered prior to the Plaintiffs’ initial registrations could not have “acted, or not acted, in reliance on the period having ended”…

98    On that basis, his Honour concluded (at [44]) that, “to the extent that an Earlier AllPAP holder will be prejudiced, it is only by losing a windfall arising from inadvertence”.

99    A similar approach can be taken here. As was the case for the Earlier AllPAPs in Re Accolade Wines Australia, Northern Iron did not own the Assets at the time Cargill acquired its AllPAP interest. Thus, to adopt the language of Brereton J, if no order is made extending the time for registration of Great Energy WA’s purchase money security interests, Cargill will obtain a “windfall” benefit consequent upon the inadvertence of Great Energy WA’s officers and agents. Had Great Energy WA correctly effected the registration of its interests within the 15-day period provided by s 62(3)(b), it would have secured priority over Cargill’s interests. That is a not unimportant consideration which, here, weighs in favour of a conclusion that it is just and equitable to make the orders.

100    Moreover, Cargill’s conduct in these proceedings is a significant consideration in favour of making the orders sought, particularly given it is the only other secured party that could be adversely affected by them. To that end, two matters should be identified. First, Cargill did not seek to adduce any relevant evidence to the effect that it suffered prejudice by acting or refraining from acting in a certain manner on the faith of the PPS Register. Given it is represented in these proceedings, it is appropriate to infer that there is no such evidence. Secondly, Cargill did not oppose Great Energy WA’s application, and has indicated that it does not seek to set up its prior interest against the claims of Great Energy WA in respect of the Assets. It can therefore be assumed that it is knowingly disclaiming any priority that it might otherwise have.

101    It follows that, prima facie, Great Energy WA has established that it is entitled to an order under s 293 extending the time by which it was required to register its purchase money security interests under s 62(3) of the PPSA, such that the PMSI Registrations are effective in perfecting those interests.

The issue of the PMSI Registrations occurring after Northern Iron entered administration

102    Though a prima facie case has been made out, the exercise of discretion under s 293 is complicated in this case by the fact that the PMSI Registrations occurred after the “critical time” (here, the administration of Northern Iron), and thus the relevant cut-off date, for the purposes of s 588FL of the Corporations Act. While there is nothing in the PPSA, nor the Corporations Act, which expressly prevents an order from being made in these circumstances, whether the Court should exercise its discretion to do so is not free from doubt.

103    In this respect, Mr Taylor of Counsel for Great Energy WA drew the Court’s attention to the decision of Brereton J in Re OneSteel Manufacturing Pty Ltd (admins apptd) (2017) 93 NSWLR 611 (OneSteel), and it is necessary to consider his Honour’s decision in some detail.

104    There, the plaintiff, Alleasing Pty Ltd (Alleasing), was in the business of asset financing and leasing. OneSteel Manufacturing Pty Ltd (OneSteel), operated the Iron Knob mine in South Australia. On 16 October 2014, those parties entered into a master lease agreement, the effect of which was that, upon entry of an asset into a rental schedule, the terms of the master lease would apply to that asset. Pursuant to that arrangement, from 1 May 2015, OneSteel commenced renting from Alleasing a Striker crushing and screening plant (the crusher). From 1 July 2015, pursuant to the same arrangement, OneSteel also commenced renting spare parts for the crusher from Alleasing (the spare parts).

105    It was not disputed that the respective leases of the crusher and spare parts were PPS leases within the meaning of s 13 of the PPSA. It was also common ground that Alleasing registered a financing statement in respect of the crusher pursuant to the PPSA on 17 October 2014, and did the same in respect of the spare parts on 7 July 2015. These are referred to as the “Original Registrations”.

106    The third defendant in the proceedings, BGC Contracting Pty Ltd (BGC), which was a mining contractor, held an AllPAP security interest against OneSteel, which was registered under the PPSA on 11 July 2014.

107    It was (and remains) a requirement of s 153 of the PPSA that a financing statement include, inter alia, the grantor’s details as prescribed by the regulations, which included (and still include) the grantor’s Australian Company Number (ACN). That requirement was not understood by the employee of Alleasing who was responsible for making registrations, and who caused OneSteel’s Australian Business Number (ABN) to be recorded instead. For the reasons given by Brereton J, this error resulted in Alleasing’s Original Registrations being ineffective.

108    On 7 April 2016, OneSteel appointed administrators. On 10 June 2016, the administrators informed Alleasing that they regarded the registrations of the lease interests to be defective and ineffective, such that Alleasing’s interests in the leased goods had vested in OneSteel upon it entering administration under s 267 of the PPSA (see infra [122]).

109    On 14 June 2016, Alleasing lodged fresh financing statements in respect of the crusher and the spare parts, which correctly recorded OneSteel’s ACN as the grantor identifier. On 17 June 2016, it amended its original registrations to include OneSteel’s ACN.

110    By an action in the New South Wales Supreme Court, Alleasing sought relief which included orders pursuant to s 588FM of the Corporations Act, fixing as the registration time for its security interests the date on which the second registrations were made, and pursuant to s 293(1)(a) of the PPSA, extending to that date the period for registration referred to in s 62(3)(b).

111    It is important that, unlike the circumstances of the present case, Alleasing’s Original Registrations were defective such that it held no security interest in the assets at all. Conversely, here, Great Energy WA’s initial registrations of its financial statements did perfect ordinary security interests in the Assets.

112    In relation to the relief sought under s 588FM, Alleasing claimed that the time for registration should be extended so that, despite the operation of s 588FL, the fresh registrations would be within time. It is important to keep steadily in mind that his Honour was addressing here the later registrations, being those that occurred on 14 June 2016. Though they corrected the error in relation to the ACN of OneSteel, they were lodged after the appointment of the administrators and, as such, after the critical time.

113    OneSteel’s administrators submitted that the power to extend time under s 588FM was not enlivened, because for the purposes of s 588FL(2)(a), at the time of the administrators’ appointment, being the critical time, the security had not been perfected by registration. His Honour agreed with that submission, and made the following observations (at 634 [69]):

An order under s 588FM provides relief from the consequences of failure to
register a security interest within time, with the consequences that a security
interest is no longer in jeopardy of being vested in the grantor, in case of an
insolvency event, on account of its belated registration. The effect of such
relief is that should an insolvency event occur within six months of actual
registration, although the security interest would otherwise vest in the grantor
under s 588FL(4) because of its belated registration, it will not vest under that
provision. However, an order under s 588FM fixes a later time only “for the
purposes of subparagraph 588FL(2)(b)(iv)”. An order under s 588FM does not
resurrect a security interest which has vested in the grantor for a reason other
than late registration. In other words, it serves to immunise the relevant
security interest only against the consequences of what would otherwise be late
registration.

114    On that basis, his Honour found (at 634 [70]) that, by virtue of s 588FL(1) and (2), the section only applies in respect of a security interest that, as at the critical time, has been perfected and is, therefore, enforceable against third parties. It follows that, given Alleasing’s interests were unregistered at the critical time, s 588FL did not apply; instead, those interests vested in OneSteel upon its administration by the operation of s 267 of the PPSA, which applies to all unregistered security interests.

115    As to the relationship between s 588FM of the Corporations Act and s 267 of the PPSA, his Honour observed (at 635 [73]):

Section 588FM provides a means for obtaining relief from the consequences
of belated registration of security interests granted by companies. Notably, it
applies only to interests granted by companies. However, s 267, which vests
unperfected security interests, applies to interests granted by individuals as
well as those granted by companies. It would be discordant if a vesting under
s 267 were amenable to cure by relief under s 588FM where the grantor was a
company, but not otherwise.

116    Thus, his Honour concluded (at 635 [74]):

Accordingly, an order under s 588FM does not immunise an unperfected security interest from vesting under s 267(2), but only a perfected security interest from vesting under s 588FL(4). It follows that, the relevant security interest being unperfected at the “critical time”, relief under s 588FM is not available.

117    In sum, on the facts of the matter before his Honour:

(a)    the initial registrations had omitted the ACN of the grantor, rendering them ineffective and the security interests unperfected;

(b)    the interests under the fresh registrations were not, as at the critical time, enforceable against third persons and had not been perfected by registration;

(c)    the relevant security interests therefore did not vest under s 588FL, which applies only to interests which are registered at the critical time; and

(d)    accordingly, s 588FM, which relates only to fixing time for the purposes of subparagraph 588FL(2)(b)(iv), had no application.

118    The consequence of his Honour’s conclusion was that s 588FM of the Corporations Act cannot operate to divest an unperfected security interest that had already vested under s 267 of the PPSA, as a result of the fact that, at the critical time, it was not perfected: OneSteel 635 [75].

119    His Honour then turned to the relief sought under s 293 of the PPSA, by which Alleasing sought an extension of the period for registration provided by s 62(3)(b) of the PPSA, in respect of its fresh registrations. Alleasing sought such relief so that it could retain the benefit of the priority afforded to purchase money security interests.

120    In this respect, his Honour commented (at 636 [77]) that s 62 of the PPSA was concerned with the circumstances in which a perfected purchase money security interest has priority over a perfected security interest of another type. He later observed (at 636 [78]) that s 62 is “concerned with the priority of security interests, not their perfection”.

121    On this basis, he concluded (at 636 [78]) that an extension of the period referred to in s 62(3)(b) would not operate to reverse the vesting that had occurred under s 267, because it would not affect the fact that, on the “s 513C day” (being the critical time), Alleasing’s security interest was unperfected. Accordingly, in those circumstances, an order under s 293 could not have circumvented the effect of s 267.

122    In light of Brereton J’s findings, it is useful to set out s 267 of the PPSA which provides:

267    Vesting of unperfected security interests in the grantor upon the grantor’s winding up or bankruptcy etc

Scope

(1)     This section applies if:

(a)     any of the following events occurs:

(i)     an order is made, or a resolution is passed, for the winding up of a company or a body corporate;

(ii)     an administrator of a company or a body corporate is appointed (whether under section 436A, 436B or 436C of the Corporations Act 2001, under that section as it is applied by force of a law of a State or Territory, or otherwise);

…

(iv)     a sequestration order is made against a person (the bankrupt) under the Bankruptcy Act 1966;

(v)     a person (the bankrupt) becomes a bankrupt by force of section 55, 56E or 57 of the Bankruptcy Act 1966; and

(b)     a security interest granted by the body corporate, company or bankrupt is unperfected at whichever of the following times applies:

(i)     in the case of a company or body corporate that is being wound up—when, on a day, the event occurs by virtue of which the winding up is taken to have begun or commenced on that day (whether under section 513A or 513B of the Corporations Act 2001, under either section as applied by force of a law of a State or Territory, or otherwise);

(ii)     in the case of a company or a body corporate to which subparagraph (a)(ii) or (iii) applies—when, on a day, the event occurs by virtue of which the day is the section 513C day for the company or body, within the meaning of the Corporations Act 2001 (including that Act as it is applied by force of a law of a State or Territory, or otherwise);

…

(iii)    in the case of a bankrupt—when a sequestration order is made against the bankrupt under the Bankruptcy Act 1966, or when he or she becomes a bankrupt by force of section 55, 56E or 57 of that Act.

(2)    The security interest held by the secured party vests in the grantor immediately before the event mentioned in paragraph (1)(a) occurs.

123    As is apparent, s 267 of the PPSA applies in relation to security interests which are unperfected at the time of the insolvency event; in this case the s 513C day, being the commencement of Northern Iron’s administration. Therefore, by that section, on that day and immediately before the event, any unperfected security interests vest in the grantor. This might be contrasted with s 588FL of the Corporations Act, which alters time for the defeasibility of a registered security interest. The effect of that latter section is, or can be, ameliorated by an exercise of power under s 588FM. Conversely, there is no power granted in the PPSA which expressly operates to divest security interests which have vested under s 267.

124    It should be recognised that in OneSteel, it was a matter of concern for Brereton J that s 267 applies to both companies and individuals who are insolvent. For that reason, his Honour was of the opinion (at 635 [73], see supra [115])) that it would be discordant if, after vesting had occurred under s 267, relief in the form of retrospective perfection would be available under s 588FM for interests granted by companies, but not for interests granted by natural persons. That said, it should be understood that the primary basis of his Honour’s decision was that an order under s 588FM would not have the effect of undoing the vesting effected by s 267 of the PPSA (at 636 [78]).

125    In the result, in OneSteel it was held that s 267 of the PPSA is absolute and, if the security is unperfected at the relevant date, it vests and there is nothing that might remediate that consequence. In substance, the effect of his Honour’s conclusion was that s 588FM of the Corporations Act could not be applied to the registration of an unperfected security interest after the date of administration, because the effect of s 267 of the PPSA is that vesting had already occurred, such that the grantor had become the owner of the security interest.

Application to the present case

126    The issue which arises in this case is somewhat novel. On granting the Cut-Off Date Extension under s 588FM of the Corporations Act in relation to Great Energy WA’s ordinary security interests, they will be taken not to have vested in Northern Iron under s 588FL(4) immediately prior to its administration. However, Great Energy WA seeks to improve the enforceability of its rights by seeking the Priority Date Extension under s 293 of the PPSA to make effective its PMSI Registrations, thereby elevating its ordinary interests to purchase money security interests.

127    In light of the reasons in OneSteel, the central difficulty here is that Great Energy WA had not lodged registrations in respect of its purchase money security interests in the Assets – and as such they were not perfected – prior to the commencement of Northern Iron’s administration. It follows that the question is whether an order under s 293 would be frustrated by the unperfected purchase money security interests having vested in Northern Iron pursuant to s 267 of the PPSA.

128    To that, the answer may be relatively simple, in accordance with the observations of Brereton J in OneSteel at 636 [78]:

Thus s 62(3) is concerned with the priority of security interests, not their perfection. An extension of the period referred to in s 62(3)(b) would not affect the vesting that has taken place under s 267, because it would not alter the fact that, for the purpose of s 267(1)(b)(ii), on “the s 513C day”, Alleasing’s security interest was unperfected.

129    Applying that here, it might be concluded that granting the Priority Date Extension would be ineffective, because the purchase money security interest will remain vested in Northern Iron.

130    However, in the present case:

(a)    the security interests in the Assets were granted to Great Energy WA prior to the commencement of the administration; and

(b)    upon granting the Cut-Off Date Extension under s 588FM, the ordinary security interests of Great Energy WA “ceased” to be vested in Northern Iron, such that any order under s 293 will not interfere with the insolvency processes affecting Northern Iron.

131    The presence of those facts gives rise to some conceptual difficulty in the application of s 267 of the PPSA. It is that, if s 267 did operate to vest the unregistered purchase money security interests in Northern Iron, this would lead to a curious outcome, where on the one hand, Northern Iron holds purchase money security interests in the Assets, but on the other, Great Energy WA holds perfected ordinary security interests in the very same Assets, to the exclusion of Northern Iron. Such a conclusion presupposes that the rights of the holder of a purchase money security interest are separate and distinct from the underlying ordinary security interests that the holder might have.

132    That conclusion cannot be correct, as it proceeds on the erroneous assumption that the right to deal with assets as security (such as disposing of them by sale) are divisible. In the context of the artifice created by the PPSA, including the deemed security interest arising from lease agreements, all that registration of a purchase money security interest does is attach to that security interest the characteristic of priority. That priority is a creation of the PPSA, bearing in mind that the erstwhile concepts of property and proprietary interests in goods were jettisoned for the purposes of the new legislative regime.

133    The apparent inconsistency in relation to the operation of s 293 on the one hand and s 267 on the other, as revealed by the facts of this case, can be resolved by reference to the nature of the priority granted to a purchase money security interest. Here, Great Energy WA was granted ordinary security interests in the Assets, which were “perfected” by registration prior to the s 513C day (referred to in s 267 of the PPSA), and any lateness in their registration, vis-à-vis an insolvency event, was cured by the Cut-Off Date Extension under s 588FM. Those ordinary security interests are unaffected by the operation of s 267(2) on Northern Iron’s administration and operate to prevent the administrators asserting any right to the Assets at all. Importantly, there is no severable or separate purchase money security interest in the Assets which can vest in the company in administration. That so-called security interest is but an enhanced characteristic added to the ordinary security interest and achieved by registration of the necessary details in accordance with the Act. Where a lessor registers a purchase money security interest in goods which it has leased, it is, in effect, registering both the ordinary security interests and the priority enhancing interests which attach to the ordinary security interests in a compendious manner. Whilst it is possible to have an ordinary security interest in assets without the enhanced rights accorded by a purchase money security interest, it is not possible to hold the latter in the absence of the former.

134    It follows that in the circumstances of the present case, s 267(2) of the PPSA cannot operate upon the purchase money security interests as if they are separate and distinct from the underlying ordinary security interests which remain vested in Great Energy WA. They were, therefore, unable to vest in Northern Iron immediately prior to its administration.

135    Thus, there remains an ability under s 293(1)(a) of the PPSA to extend the time mentioned in s 62(3)(b) of that Act. So much is supported by the observations of Brereton J in Re Duke Contracting Australia Pty [2017] NSWSC 767 [10], where his Honour addressed the issue of the timing of an extension of time application in circumstances where the grantor company was in administration. He observed:

External administration does not foreclose an order extending time for registration under Corporations Act s 588FL, so long as the security interest has been perfected before the relevant insolvency event … There is even less reason why it should preclude an order under PPSA s 293(1)(a) for an extension of the period referred to in s 62(3), since such an order only affects priorities between secured creditors and does not impact on the position of unsecured creditors.

136    There, of course, his Honour was dealing with an interest that had been perfected by registration sufficiently prior to the insolvency event. Here, only the ordinary security interest was perfected prior to the relevant event, and the purchase money security interest was not.

137    Nevertheless, in the unusual circumstances of this case, and for the reasons referred to previously – in particular, (a) that there is no opposition from any affected party to the making of the orders, and (b) no other party will suffer any prejudice – the Priority Date Extension sought by the applicant should be granted.

Relief

138    The applicant has established its entitlement to orders under s 588FM of the Corporations Act and s 293(1) of the PPSA, and appropriate orders should be made pursuant to those sections. It also seeks orders in relation to its entitlement to recover the Assets, and a declaration in relation to that should be made accordingly.

139    Though other relief was sought as to the effect of the orders on third parties, it is not appropriate to make any such orders in the absence of sufficient material identifying the existence of some potential liability.

Associate:    

Dated:    13 February 2026

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