Federal Court of Australia

Amal Security Services Pty Limited (Trustee) v The APF Custody Company Pty Ltd, in the matter of The APF Custody Company Pty Ltd [2026] FCA 1486

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 588FM(1) of the Corporations Act 2001 (Cth) (Corporations Act) 25 June 2026 is fixed as the later time for the purposes of section 588FL(2)(b)(iv) by which the plaintiff is to register any security interest granted to it by the defendant in respect of collateral (being all present and after-acquired property of the defendant as referred to in PPSR registration numbers 202606250050620 and 202606250051454 respectively).

2.    Liberty is reserved to any liquidator, administrator or deed administrator who may be appointed to the defendant to apply to discharge or vary Order 1 if any winding up of the defendant occurs, or an administrator is appointed to the defendant under sections 436A, 436B or 436C of the Corporations Act, or the defendant executes a deed of company arrangement, within 6 months of 25 June 2026.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

JACKMAN J:

Introduction

1    By Originating Process filed on 17 September 2026, the plaintiff (AMAL Security Services Pty Ltd as trustee of the Grand Liverpool Security Trust) applies for an order under s 588FM of the Corporations Act 2001 (Cth) (Corporations Act) fixing a “later time” for the registration of a financing statement in respect of two security interests as against The APF Custody Company Pty Ltd in its capacity as trustee of the Grand Liverpool Trust, as grantor, on the Personal Property Securities Register (PPSR). The security interest arose on 4 August 2025 and was required to be registered within 20 business days, but was registered on 25 June 2026 in circumstances addressed below.

Factual background

2    AMAL acts as a specialised security trustee and custodian for financial transactions, securitisation trusts and debt financing in the Australian financial markets.

3    On or about 4 August 2025, APF issued certain notes to Fixed Income Solutions Pty Ltd as Noteholder. APF was to utilise the proceeds of those notes to make a loan to The Grand Liverpool Pty Ltd as trustee for the Grand IM Unit Trust with security over the property located at 402 Macquarie Street, Liverpool NSW 2170 (the Underlying Loan).

4    AMAL was appointed as Security Trustee to hold the security granted by APF for the benefit of noteholders from time to time (initially being Fixed Income Solutions). The appointment as Security Trustee of the Grand Liverpool Trust Security Trust was made by a Security Trust Deed dated on or about 29 July 2025 between APF (as Security Provider), Australian Loans and Finance Pty Ltd (as Manager), and AMAL (as Security Trustee).

5    Pursuant to the Security Trust Deed, AMAL declared that it held the “Security Trust Fund” on trust for itself and for the Beneficiaries: cl 2.1. “Security Trust Fund” means, inter alia, “any other property which [AMAL] receives, has vested in it or otherwise acquires to hold in respect of the Security Trust, including the Secured Property”. “Secured Property” means all assets, rights and undertakings of APF which are subject to a Security Interest under any Security Document (including the General Security Deed).

6    The relevant security interest arises under a General Security Deed made between APF (as Security Provider), Australian Loans and Finance Pty Ltd (as Manager), and AMAL (as Security Trustee) on or about 29 July 2025.

7    Clause 2.1 of the General Security Deed provides, in part, that:

(a)    The Security Provider grants a security interest in the Secured Property to the Security Trustee to secure the payment of the Secured Money. The Security Provider grants this security interest as trustee of the Trust.

(b)    This security interest is a charge. If for any reason it is necessary to determine the nature of this charge, it is a floating charge over Revolving Assets and a fixed charge over all other Secured Property.

8    Clause 2.2 of the General Security Deed provides that the Security Interests granted in clause 2.1 “are intended to take effect as a first ranking security having priority over all other interests in the Secured Property”.

9    Clause 4.2 of the General Security Deed provides that;

The Manager on behalf of the Security Provider must ensure that:

(a)    the security interest under this document is perfected in relation to all the Secured Property in all jurisdictions; and

(b)    this document is registered and filed in all registers in all jurisdictions,

in which it must be registered and filed to ensure enforceability, validity and priority against all persons and to be effective as a security with the priority contemplated by this document.

10    On 26 June 2026, Ms Gowing was informed by Mr Tucker of Clayton Utz (solicitors for AMAL) that the requisite PPSR registration had not been effected. That was the first occasion when Ms Gowing learned that the Manager had failed to register the security interest. Ms Gowing immediately gave instructions to register financing statements on the PPSR to protect the security interests. The registrations were made that day.

11    No other security interests have been registered against APF as grantor.

The applicable principles and their application

12    Section 588FM(1) of the Corporations Act provides that a company, or any person interested, may apply for an order fixing a “later time” for the purposes of sub-section 588FL(2)(b)(iv). Section 588FM(2) provides that such an order may be made if the Court is satisfied that:

(a) the failure to register the collateral earlier:

(i)    was accidental or due to inadvertence of 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.

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

14    “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] (Vaughan J); Re Greenleaf Renewables Pty Ltd [2025] FCA 763 at [7] (Cheeseman J). 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)] (McKerracher J); Greenleaf at [7].

15    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: Greenleaf at [8].

16    The obligation to make the necessary registrations on the PPSR rested with the Manager under cl 4.2 of the General Security Deed. Ms Gowing explains that the allocation of responsibility in that way is orthodox and reflects her experience of standard industry practice. Ms Gowing’s evidence is that she assumed that the Manager (or its representatives) would make all necessary registrations. Ms Gowing gives candid evidence that she did not verify whether the Manager had done so and that it is not part of AMAL’s usual procedures to independently check whether parties in the position of the Manager had attended to making registrations.

17    The plaintiff submits, and I accept, that the delay in registration of the security interests was caused by inadvertence or accident, in the sense that it was the product of innocent error or oversight of the Manager who was responsible for effecting the registrations. By analogy, the oversight of solicitors charged with responsibility for effecting registrations is recognised as a proper basis for the application of s 588FM(2)(b)(i): Re Barclays Bank Plc [2012] NSWSC 1095 at [9]–[10] (Black J); Re David Brown Gear Industries Pty Ltd [2017] NSWSC 907 at [4] (Black J); Re Amotran Pty Ltd [2017] VSC 637 at [13]–[15] (Judd J).

18    The length of the delay prior to registration is a relevant factor: Re Cardinia Nominees Pty Ltd [2013] NSWSC 32 at [18] (Black J). The delay in registering was approximately ten months. While that is a substantial delay, the registration was made almost immediately by AMAL upon Ms Gowing being notified of the failure to register.

19    The interests of potentially affected parties, including in light of the delay raised in the preceding paragraph, are amply protected by the liberty to apply by any external administrator of APF, modelled on Re Guardian Securities Ltd [1984] 1 NSWLR 95 at 97–98 (McLelland J), as AMAL seeks: see, for example, Re Psyche Holdings Pty Limited [2018] NSWSC 1254 at [41]–[42] (Ward CJ in Eq). Such an order is appropriate where, as here, there is no evidence of the grantor’s financial position: Panadell Architectural Cladding Systems Pty Ltd v Panadell Industries Pty Ltd [2010] FCA 511 at [14]–[16] (Emmett J); Metcash Trading Ltd v 8 Nai Investments Pty Ltd [2011] FCA 1400 at [12]–[13] (Jacobson J); Re Cardinia Nominees Pty Ltd [2013] NSWSC 32 at [24] (Black J); Bluewaters at [54].

20    Ms Gowing’s evidence properly draws attention to the borrower under the Underlying Loan not having discharged its obligations, and the appointment of receivers to that borrower. That matter is raised by way of disclosure in circumstances where this application is proceeding ex parte. I note, however, that APF has been served with the relevant documents. APF, through its solicitors (Murfett Legal), has informed AMAL that it does not intend to enter an appearance and does not object to the relief sought. It did not appear at today’s hearing. That is a relevant factor which supports AMAL’s application: Re Black Opal IP Pty Ltd (subject to Deed of Company Arrangement) [2013] NSWSC 1225 at [9] (Brereton J).

21    Accordingly, it is appropriate to grant the relief sought by the plaintiff.

Associate:

Dated:    8 October 2026