- BMW Australia Finance Ltd v @Civic Park Medical Centre Pty Ltd as trustee for @Civic Park Medical Centre Trust

Supreme Court of NSW|2021-02-15|Before: Black J

Solicitors: Clayton Utz (Plaintiffs) File Number(s): 2020/347843

Background and affidavit evidence

By Originating Process filed in Court on 8 December 2020, the Plaintiffs, Toyota Finance Australia Ltd ("TFAL") and Australian Alliance Automotive Finance Pty Ltd ("AAAF"), seek an order under s 588FM of the Corporations Act 2001 (Cth) that the dates in respect of a series of registrations set out in Schedules A and B of the Originating Process ("Remedial Registrations") be extended for the purposes of s 588FL(2)(b)(iv) of the Corporations Act; an order under s 293(1)(a) of the Personal Property Securities Act 2009 (Cth) ("PPSA") extending the number of business days for either of the Plaintiffs to have lodged a financing statement on the Personal Property Securities Register ("PPSR") in respect of the Remedial Registrations; and ancillary relief.
By way of background, the Plaintiffs are in the business of providing automotive finance, and AAAF is a wholly-owned subsidiary of TFAL. The Plaintiffs have agreements with automotive dealerships across Australia that allow customers of those dealerships to be offered finance for a motor vehicle they wish to acquire or lease from a finance brand operated by one or other of the Plaintiffs. Although different sets of financing terms and conditions apply, depending on the business line of the Plaintiffs that financed the motor vehicle, they contain the same or substantially similar terms. In particular, cl 7 of the several sets of terms and conditions provides that a borrower grants the relevant Plaintiff a first-ranking security interest over the financed vehicle, any replacement vehicle and any additions or accessories added to the vehicle, any proceeds of the vehicle, and any rebate relating to any insurance or warranty financed under the security agreement.

Affidavit evidence

The Plaintiffs rely on the affidavit of Mr Adam Hopkins sworn 3 December 2020 and its Exhibit AH-1. Mr Hopkins, who is the General Counsel and Company Secretary at TFAL and Company Secretary of AAAF, there describes the nature of the Plaintiffs' business and gives examples of security agreements in relation to security interests over relevant vehicles. He also describes TFAL's and AAAF's process for registering financial statements on the PPSR under a Personal Property Security Policy and the customer and contract management systems which were used for that process. He explains the circumstances in which, from 6 August 2018, an earlier manual process for recording an ABN in respect of trusts and partnerships was intended to be replaced by a computer process, and how the ABN Issue and the PMSI Issue were identified and the remedial steps which were taken in respect of those issues.
By her affidavit dated 4 December 2020, Ms Nicola Zantides, who is the Head of Solution Delivery at TFAL, outlines the steps which were taken to identify the Defendants initially joined to the Originating Process, the investigations undertaken by TFAL when the ABN Issue was identified and the matters which gave rise to that issue. She also refers to the investigation of the PMSI Issue, and the circumstances in which computer code had been inadvertently removed so as to give rise to that issue, and the reinstatement of that computer code so that security interests have been correctly identified as PMSIs on and from 3 September 2020.
By his affidavit dated 11 February 2021, Mr David Casey, who is a Solution Delivery Lead in TFAL's Information Technology Department, refers to the preparation of spreadsheets identifying customers and secured parties in respect of the security interests in issue. By his affidavit dated 11 February 2021, Mr Deepak Pillai, who is the Forensic and Technology Services Director at the solicitors acting for the Plaintiffs, outlines the steps taken to serve the Defendants; the placement of documents relating to the proceedings online so that they were available to Defendants; and identifies several Defendants as to which relief is no longer pursued by the Plaintiffs, because their loans have terminated or for other reasons. An affidavit dated 11 February 2021 of Mr Mitansh Jain also addresses the preparation of the schedules to the Originating Process identifying the Defendants, and the service of proceedings by email in accordance with orders made by the Court.
By her affidavit dated 12 February 2021, Ms McCoy, who is a solicitor acting for the Plaintiffs, also addresses the identification of the Defendants who were joined in the proceedings, the sending of letters to the Defendants in a form previously brought to the Court's attention and communications with several of the Defendants following service, and she also addresses the further steps which were taken to serve Defendants where initial service letters were returned to sender. Ms McCoy also addresses the position in respect of several Defendants against whom proceedings are not pursued, and as to whom orders are sought removing them from the proceedings, generally because their loans have been repaid, and other registrations which are no longer the subject of an application for relief because the loan contract has been terminated or suspended.

Factual background to the "ABN Issue"

Turning now to the factual background to the ABN issue, on or about 3 December 2019, a staff member employed by TFAL identified an issue with a registration made by TFAL on the PPSR in that the ACN of a corporate partner was included but the ABN of the partnership was not included. Between December 2019 and January 2020, the issue was raised with TFAL's information technology team which investigated the matter and discovered that it reflected a wider issue with the automated system by which TFAL lodged registrations on the PPSR where the grantor was a trustee of a trust or a partner in a partnership. The issue arose in the course of a transition from an earlier information management system to the current system. The current system automatically inputted data into financing statements to be registered on the PPSR, and was designed to automatically import trust or partnership ABN details from an external reference table into financing statements lodged on the PPSR but had failed to do so, with the result that those details were not included in the registered statements.
Between February 2020 and May 2020, a software solution was prepared and implemented to rectify the ABN Issue for registrations made on the PPSR by TFAL going forward. However, members of TFAL's personal property securities, information technology and solutions delivery teams who were addressing this issue did not recognise the potentially adverse impact of the issue on registrations on the PPSR until July 2020. After that issue was recognised, the Plaintiffs sought legal advice and, in early August 2020, TFAL engaged a third party to assist with the Remedial Registrations which were were completed, in respect of the ABN Issue, on or about 21 August 2020.

Extension of time under s 588FM of the Corporations Act in respect of the ABN Issue

Mr Izzo and Mr Mirzai note that the amended registrations effected to address the ABN Issue were largely made outside the 20 business day period prescribed by s 588FL(2)(b)(ii) of the Corporations Act, and an extension of time under s 588FM is required in that respect. That section relevantly provides that: "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."
Mr Izzo and Mr Mirzai submit that, as a remedial provision, s 588FM of the Corporations Act has been applied liberally. They refer to my decision in Re Cardinia Nominees Pty Ltd [2013] NSWSC 32, where I held that the concept of inadvertence in s 588FM of the Corporations Act goes beyond ignorance of the requirement to register and "may also be established where a party operates under a mistake as to the consequences of failing to register a security interest" . I also there observed (at [15]) that: "The approach adopted in the case law of treating a matter of that kind as amounting to inadvertence is consistent with the emphasis placed in the case law upon the benevolent operation of predecessor sections, at least where an error of a secured creditor in not attending to registration of its security within time is innocent and does not result from any disregard of its statutory obligations." (citations omitted).
They also refer to the consideration of the concept of "inadvertence" in s 588FM of the Corporations Act in Re Appleyard Capital Pty Ltd; 123 Sweden AB v Appleyard Capital Pty Ltd (2014) 101 ACSR 629; [2014] NSWSC 782, where Brereton J observed(at [10]) that: "For the purpose of s 588FM(2)(a)(i), "inadvertence" includes failure to advert to or understand the requirement for registration within the specified period, and innocent error in the sense of failure to register through ignorance of the legal requirement to do so, or of the consequences of not doing so. "
Mr Izzo and Mr Mirzai submit, and I accept, that the ABN Issue is in the nature of an accident or arises from inadvertence. They submit, and I also accept, that the evidence indicates that, in respect of the ABN Issue, trust and partnership ABNs were not included because of the error which occurred in the course of moving from the earlier to the current information management system, which was intended automatically to include trust and partner ABNs in any financing statement registered but failed to do so. They also point out that no grantor of security to the Plaintiffs indicated that it would oppose the application, and no grantor did so, and grantors' agreements with the Plaintiffs relevantly provided that: "If we ask, you must promptly provide any information, sign any document or do anything that we reasonably require to perfect and protect this Security Interest and maintain its priority over all other Security Interests. You must do this in the time that we specify"
Mr Izzo and Mr Mirzai also note that the proposed orders reserve liberty to an external administrator of the grantor of a security to apply to have them set aside in the event that an appointment is made within six months of the relevant registration date, and also submit, and I accept, that the order sought under s 588FM of the Corporations Act does not cause prejudice to secured parties, where that order has no effect on the priority of their security interests. They submit, and I accept, that the discretion ought to be exercised on this basis to grant relief in respect of the ABN Issue under s 588FM of the Corporations Act.

Extension of time under s 293 of the PPSA in respect of the ABN Issue

The Plaintiffs also seek an extension of time under s 293(1)(a) of the PPSA in respect of the ABN Issue since, in most cases, the new or amended registrations effected to address the ABN Issue and the PMSI Issue fall outside the 15 business day period prescribed by s 62(3)(b) of the PPSA. Mr Izzo points out that a failure to lodge a registration on the PPSR in respect of a security interest within 15 business days from the grantor obtaining possession of the relevant goods disentitles the secured party to the "super priority" afforded to a PMSI under the PPSA. Section 62 of the PPSA relevantly provides that: "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."
Mr Izzo and Mr Mirzai point out that that subsection only applies where s 62(3) of the PPSA is complied with, which includes the 15-business day timing requirement, unless that period is extended by an order of the Court under s 293(1)(a) of the PPSA. They point out that, if the Plaintiffs are unable to obtain the benefit of s 62 of the PPSA, they could only seek to rely on s 55 of the PPSA on the question of priorities as against other secured parties who have taken a security interest over the same collateral (in this case, the same motor vehicle), with the result that any other security interest taken over any of the motor vehicles financed by one of the Plaintiffs for the benefit of one of the First Defendants prior to that Plaintiff lodging the Remedial Registrations would take priority over the Plaintiff's interest in those vehicles notwithstanding that the acquisition of that motor vehicle was made with finance provided by one of the Plaintiffs.
Mr Izzo and Mr Mirzai also submit that, when considering whether to grant relief under s 293(1)(a) of the PPSA, the Court is required to have regard to the elements set out at s 293(3) of the PPSA. That subsection provides that: "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."
Mr Izzo and Mr Mirzai submit, and I accept, that the authorities recognise that the concept of accident or inadvertence in s 293(3)(a) of the PPSA is the same as that adopted in 588FM of the Corporations Act. The Plaintiffs rely on the same matters and evidence as in their application under 588FM of the Corporations Act, and I accept that accident or inadvertence are established for the same reason. They also submit, in respect of prejudice to other creditors and reliance by other persons, for the purposes of s 293(3)(b)-(c) of the PPSA, that a PMSI holder ordinarily has the benefit of priority as against competing perfected security interests in the same collateral, in accordance with s 62(1) of the PPSA, irrespective of a competing security interest holder's awareness, consent or otherwise regarding the grant of the PMSI, provided that s 62(2) or 62(3) of the PPSA, as the case may be, has been complied with. They point out that, if the Plaintiffs had correctly lodged a financing statement on the PPSR against the ABN of each relevant trading trust connected with each relevant First Defendant, they would have been able to rely on s 62 of the PPSA to which I referred above, to confer priority over any earlier in time AllPAP or AllPAPe, including any of the interests held by any of the Second Defendants.
They refer to the consideration of "prejudice" in Appleyard Capital above (at [30]), in the context of an application under s 588FM of the Corporations Act, where Brereton J observed that: "… although I accept, as the authorities make clear, that 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 the legislation (see s 588FM(2)(a)(ii), which refers to prejudice from the failure to register earlier, not from making the order), and referred to by Buckley J in Cardiff Workmen's Cottage Co; by Long Innes J in Limited Company (see also Flinders Trading Co at ACLR 225 per Bray CJ; at ACLR 234 per Mitchell J); and by McLelland J in Guardian Securities (at 98)."
Mr Izzo and Mr Mirzai also draw attention to the consideration of that concept in s 293(3)(b) of the PPSA in Accolade Wines above (at [27]), where Brereton J observed that: "As to the prejudice referred to in s 293(3)(b), neither the researches of counsel, nor mine, have revealed any direct authority on s 293. The authorities on CORPA, s 588FM, and its predecessors provide some assistance, but, there is an important distinction. As explained in Appleyard Capital, in s 588FM(2)(a)(ii), the prejudice referred to is prejudice to the position of creditors or shareholders from "the failure to register the collateral earlier" - in other words, prejudice attributable to not making a timely registration. That means that, to evaluate prejudice for the purposes of s 588FM, one compares the position of the creditors if an extension is granted, with their position if there had been an effective timely registration; often there will be no difference. However, the prejudice referred to in s 293(3)(b) is prejudice from "extending the period". This directs attention not to the impact on other secured parties or creditors of the delay in registration, but to the impact of making an order extending the period; to evaluate prejudice for that purpose, one compares the position of creditors if an extension is granted, with their position if no extension is granted, and usually there will be a difference because priorities will be disturbed."
His Honour also there observed (at [29]) that: "… Appleyard Capital explained that in the context of s 588FM, prejudice to other creditors could not be conclusive because otherwise an order would never be made in any case in which it mattered: in any case where an extension was of utility, there would inevitably be prejudice by removing the collateral from the pool available to satisfy unsecured creditors generally, and enabling that result was the fundamental purpose of the provision. The same applies here: the essential purpose of granting an extension is to reinstate the priority to which a PMSI would otherwise be entitled over prior AllPAPs (as it will in any event have priority over later AllPAPs), and thus in any case in which the remedy is of any practical utility, there will be prejudice to a prior AllPAP holder."
Mr Izzo and Mr Mirzai also submit that, to obtain relief under s 293 of the PPSA, it is neither necessary, nor would it be possible in most cases, for the Plaintiffs to demonstrate that there is no prejudice to other secured parties at all as a consequence of the grant of the relief sought. They submit that, instead, an AllPAP or AllPAPe holder bears a forensic burden of demonstrating why they would be unfairly prejudiced (in the relevant sense) due to their reliance on what appeared on the PPSR at the time they took their relevant security interest. They again refer to Accolade Wines above, where Brereton J observed (at [52]) that: "In circumstances where: (1) there was a registration, which was recorded on the PPSR, albeit a defective one because it was against the Grantors' ABN, not ACN; (2) the PMSIs are each in respect only of the specific collateral to which the relevant lease relates; (3) an AllPAP is always liable to be trumped, in respect of specific after-acquired collateral, by a PMSI in respect of that collateral; (4) to the extent that an Earlier AllPAP holder will be prejudiced, it is only by losing a windfall arising from inadvertence; (5) it is very likely that any Later AllPAP holder in fact had notice of the Plaintiffs' PMSI when acquiring its security interest; and in any event, notice that there was an earlier PMSI in respect of specific collateral is unlikely to have been material to its decision to provide financial accommodation and take the AllPAP security. I am satisfied, on the material now before the Court, that it is just and equitable to make an order extending the number of business days in the period specified in paragraph 62(3)(b) for the perfection by registration of the Plaintiffs' PMSIs. Moreover, the case for an extension is sufficiently compelling that it is not unreasonable that the forensic burden of moving the Court to vary or set aside the extension be cast upon any of the AllPAP holders who might wish to contend that they will be unacceptably prejudiced by the extension."
They rightly note that this approach has been adopted in subsequent cases; they also submit, and I accept, that points (1) to (4) above are equally applicable in this case; and they submit that, as in IBM Global Financing Australia v Applied Business Technology Pty Ltd [2018] NSWSC 1984, an inference to the effect of point (5) can be drawn where no one had appeared to contradict it and the decision in Accolade Wines could be expected to be well known in the finance industry. They also point out that, here, the Second Defendants have been joined to the Proceedings and have had the opportunity to take a position in the Proceedings, and that no Second Defendant has contested the relief sought by the Plaintiffs or sought to discharge the forensic burden of establishing relevant prejudice or reliance which might otherwise prevent the grant of the relief sought by the Plaintiffs.
Mr Izzo and Mr Mirzai submit, and I accept, that these matters are sufficient to allow the Court to satisfy itself that there is no relevant reliance or prejudice that any of the Second Defendants could point to (or, I interpolate, have sought to point to) which would otherwise prevent the making of the orders sought in respect of the ABN Issue. I note that a corresponding order was made by Jagot J in substantially similar circumstances in BMW Australia Finance Ltd v @Civic Park Medical Centre Pty Ltd as trustee for @Civic Park Medical Centre Trust [2019] FCA 999. For completeness, I note that the orders sought by the Plaintiffs reserve the ability of any secured party who has not been joined (for example, because it holds a fixed interest in any of the motor vehicles rather than an AllPAP) to apply to discharge the orders. I accept that this reservation sufficiently protects the position of persons who are not parties to the proceedings.

Factual background, submissions and determination as to the "PMSI Issue"

Turning now to the factual background to the "PMSI Issue", between 17 August 2020 and 20 August 2020 and in the course of addressing the ABN Issue, the Plaintiffs identified a second issue, that the PMSI field of the PPSR registration was incorrectly set to "No" instead of to "Yes" for all security interests granted under security agreements entered in TFAL's systems since 9 May 2020. The cause of this error was an inadvertent modification to the computer code responsible for lodging financing statements on the PPSR made in the course of addressing the ABN Issue. Since 3 September 2020, the Plaintiffs have reinstated the appropriate computer code to ensure that all registrations made on the PPSR from that date forward would correctly identify the underlying security interest as a "purchase money security interest". Remedial Registrations in respect of this issue were made from 3 September 2020 and, involving a large number of registrations, were not completed until 23 November 2020.
The Plaintiffs note that an extension of time has also been sought under s 588M of the Corporations Act (to which I referred above) in respect of the PMSI Issue. Mr Izzo and Mr Mirzai submit, and I accept, that the PMSI Issue is in the nature of an accident or arises from inadvertence. They submit, and I also accept, that the error giving rise to this issue occurred because of the inadvertent modification to a computer code. An order under this section should be made in respect of the PMSI Issue on the same basis as it was granted in respect of the ABN Issue. The Plaintiffs also seek an extension of time under s 293(1)(a) of the PPSA in respect of the PMSI Issue since, in most cases, the new or amended registrations effected to address the PMSI Issue fall outside the 15-business day period prescribed by s 62(3)(b) of the PPSA. I am satisfied that order should be made on the same basis as the order sought by the Plaintiffs under that section in respect of the ABN Issue.

Delay

I have not neglected the question of any delay by the Plaintiffs in bringing this application, which was also addressed by Mr Izzo and Mr Mirzai in submissions. They point out that delay is a relevant but not determinative consideration in the exercise of the Court's discretion on applications of this kind. They again refer to Appleyard Capital above (at [30]), where Brereton J observed that: "The period of delay in effecting registration is relevant, because the shorter the delay the less likely that the failure to register within time will have had any impact. The significance of the passage of time is mainly related to the possibility of competing interests having arisen, in particular through others having dealt with the company on the footing that the collateral was unencumbered."
Mr Izzo and Mr Mirzai submit, and I accept, that the number of affected security interests in this case was the primary source of any delay between identification of the errors and the commencement of the application and point out that some 14,790 contracts were affected by the ABN Issue and 12,938 affected by the PMSI Issue, although the Plaintiffs have helpfully narrowed the number of security interests which are the subject of this application. They submit that this application was promptly commenced after rectification of the PMSI Issue was completed by lodging new financing statements by 23 November 2020. They also point out that notice of the security interests appeared on the PPSR at all relevant times, albeit, in respect of the ABN Issue, the Plaintiffs initially maintained (and continue to maintain) the registrations as against the ACN of the corporate trustees or partners concerned and also as against vehicle identification numbers or "VINs" and, in respect of the PMSI Issue, the Plaintiffs maintained (and continue to maintain) their earlier registrations on the PPSR, made within time against the correct grantor and VIN although incorrectly marking the PMSI field "No". It does not seem to me that there was any delay in bringing this application that would warrant withholding the relief sought by the Plaintiffs.

Orders

For these reasons, I made the orders sought by the Plaintiffs at the completion of the hearing on 15 February 2021. Those orders exclude several registrations where relief is no longer sought because the underlying security interest no longer exists or has otherwise been dealt with.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2021

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