CBFC Limited v Corporate Consulting

CORPORATIONS - CORPORATE FINANCE - CHARGES - REGISTRATION OF CHARGES - TIME OF REGISTRATION AND ITS EXTENSION - - where s 266(4) empowers the Court to extend the period for lodgement of the notice - whether the Court retains the power to extend time under s 266(4) despite the intervention of a winding up or administration, which has the effect under s 266(3) of rendering the charge void

CORPORATIONS - CORPORATE FINANCE - CHARGES - REGISTRATION OF CHARGES - TIME OF REGISTRATION AND ITS EXTENSION - where there would be some prejudice to the applicant if the extension were not granted - whether it is just and equitable to grant relief by way of an extension

Corporations Act 2001 (Cth)

Sykes and Walker, The Law of Securities, 5th edition, pp 751-2

Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd [2000] HCA 25; (2000) 202 CLR 588

Banque Financiere de la Cite v Parc (Battersea) Ltd [1998] UKHL 7; [1999] 1 AC 221

Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269

Burston Finance Ltd v Speirway Ltd [1974] 1 WLR 1648

Commonwealth of Australia v South East Queensland Aboriginal Corporation for Legal Services [2005] QSC 88; [2006] 1 QdR 12

Craig Mostyn & Co Pty Ltd v Old Valley Pty Ltd [2004] FCA 1083; (2004) 139 FCR 477

Hewitt v Court [1983] HCA 7; (1983) 149 CLR 639

Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256; (2003) 135 FCR 206

Highland v Exception Holdings Pty Ltd (in liq) [2006] NSWCA 318; [2006] 60 ACSR 223

Public Trustee v Octaviar [2009] QSC 202; (2009) 73 ACSR 139

Re Freightlines Northern Territory Pty Ltd (in liq) [1999] QSC 209; [2000] 2 QdR 384

Sanwa Australia Finance Ltd v Groundbreakers Pty Ltd (in liq) [1991] 2 QdR 456

Westdeutsche Landesbank Girozentrale v Islington LBC [1996] UKHL 12; [1996] AC 669

Westpac Banking Corporation v Ollis (2007) NSWSC 956

Crouch & Lyndon for the first and second respondents

[1] By originating application filed 16 September 2010, CBFC Limited ("the applicant") applied for an order under s 266(4) of the Corporations Act 2001 (Cth) ("the Act") to extend the time for lodgement of a notification of a charge on the register of the Australian Securities and Investment Commission ("ASIC") or alternatively, a declaration that it has an equitable lien over property owned by Corporate Consulting (Australia) Pty Ltd (in liquidation) ("the first respondent"). The liquidator of the first respondent is Mark Pearce ("the second respondent").

[2] The application arises from the following circumstances:

(a) On or about 2 December 2008, the applicant and the first respondent entered into a loan agreement relating to the financing of the purchase by the first respondent of a prime mover from Volvo Truck and Bus Brisbane ("Volvo") for an amount of $233,645.40.

(b) Pursuant to the terms of the loan agreement entered into between the applicant and the first respondent, the applicant agreed to lend to the company the purchase price of the vehicle and the first respondent, by signing the loan agreement, charged the vehicle to the applicant.

(c) As part of the documentation relevant to the loan agreement, the first respondent signed an ASIC Form 309 Notification of Details of Charge in respect of the loan agreement and provided same to the applicant.

(d) Notwithstanding provision of the relevant form for registration on the ASIC register, and the requisite fee for notification of that charge, the applicant failed to lodge notification of the charge with ASIC, although it did register the charge on the Queensland Register of Encumbered Vehicles ("REVS") on 8 December 2008.

(e) On 18 June 2010, the first respondent's members resolved that it be wound up and that the second respondent be appointed as liquidator.

(f) On 29 July 2010, after having being notified by the second respondent of his appointment, the applicant lodged notification of the charge and a copy of the loan agreement with ASIC.

(g) On 15 September 2010, the applicant filed this application.

[3] The first respondent provided long distant trucking and transport services. It commenced that business in approximately 1992. By 2008, it had a fleet of trucks, each of which were fully financed through separate equipment loans from a variety of banks and other lenders.

[4] In November 2008, the first respondent wished to acquire a new Volvo prime mover to replace an existing Volvo prime mover financed through Suncorp. Although initially agreeing to fund a replacement prime mover, Suncorp decided to withdraw from the equipment finance market.[1] A broker, Centrepoint Alliance, suggested the first respondent approach the applicant. The applicant had previously financed equipment loans for the first respondent which had been fully repaid and serviced in accordance with the facility documents.[2] Charges had been duly registered with ASIC in respect of each of those loans.

[5] An application for equipment finance was lodged with the applicant on 13 November 2008, and the applicant gave preliminary approval on 17 November 2008.[3] That approval related to a particular Volvo prime mover which was not ultimately available, and the approval was amended on 26 November 2008 so that it related to a different Volvo prime mover. The preliminary approval was conditional upon registration of security and the approval advice specifically provided that, at settlement, a fee of $135 would be required for "ASIC registration fee".[4]

[6] On 27 November 2008, Volvo issued a final invoice to the first respondent for the sale of the relevant new Volvo. On 2 December 2008, the first respondent executed an "Equipment Loan Schedule" and other related documents.[5] Relevantly, these documents provided:

(a) the first respondent offered to borrow $233,645.40 from the applicant to be repaid by monthly repayments over 48 months;

(b) the first respondent authorised and requested the applicant to pay the loan amount to Volvo;

(c) the first respondent offered to "charge" the vehicle "as SECURITY" for payment of the "AMOUNTS OWING under the CONTRACT";

(d) the first respondent offered to pay a security registration fee of $135, which was the ASIC registration fee for notification of charges;

(e) the first respondent provided an irrevocable authority to the applicant whereby it irrevocably authorised and directed the applicant to pay the loan amount to Volvo;

(f) the first respondent provided and executed a Form 309 Notification of Charge, and an undated Form 350 intended to be lodged with the Form 309 and provided a direction that the signed Form 350 be held until the charge had been stamped, and thereafter to lodge it with ASIC. The first respondent acknowledged that the applicant "in acting for me ... does not incur any responsibility for any loss or damage through any cause whatsoever" and indemnified the applicant and its officers and agents "against all risk, losses and damages whatsoever in connection therewith".

[7] On 5 December 2008, the applicant paid the sum of $233,645.40 direct to Volvo in accordance with the first respondent's direction.[6] The first respondent subsequently took delivery of the vehicle and proceeded to make regular monthly payments in accordance with the agreement.

[8] Whilst the applicant was given the necessary documentations to arrange lodgement of the charge on the ASIC register, the Form 309 was not lodged with ASIC, although the charge was registered on REVS on 8 December 2008.[7] The failure to lodge the Form 309 occurred in circumstances where an employee of the applicant failed to input the appropriate code into the applicant's computerised accounting system thereby triggering the necessary lodgement. As a result, the settlements officer, not having been alerted to the need to lodge a charge with ASIC, did not send the appropriate electronic notification to those responsible for paying ASIC and lodging the Form 309.[8]

[9] A company that creates a charge must ensure there is lodged, within 45 days after the creation of the charge, a notice in the prescribed form setting out relevant particulars and, where the charge is created or evidenced by an instrument, a copy of the instrument.[9] "Charge" means "a charge created in any way and includes a mortgage and an agreement to give or execute a charge or mortgage, whether on demand or otherwise".[10]

[10] Where an order is made or resolution is passed for the winding up of a company, a registrable charge on the property of the company is void as a security on that property as against a liquidator unless a notice in respect of the charge was lodged under s 263 of the Act within the relevant period.[11] "Relevant period" means the period of 45 days specified in s 263(1), or that period as extended by the Court under subsection (4).[12]

The Court, if it is satisfied that the failure to lodge a notice in respect of a charge ... as required by a new provision of this part:-

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

(b) is not of a nature to prejudice the position of creditors or shareholders;

or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any person interested and on such terms and conditions as seen to the Court just and expedient, by order, extend the period for such further period as is specified in the order.

[12] There is no dispute the charge granted by the first respondent to the applicant falls within the provisions of s 263 of the Act. There is also no dispute that that charge is void as against the second respondent unless the Court grants an extension of time within which to register that charge pursuant to s 266(4) of the Act. The issues in contention are:

(a) whether there is power to grant such an extension where the application for extension is made after the company has been placed in liquidation ("First Issue"); and

(b) if there is such power, whether the applicant has satisfied the requirements of s 266(4) of the Act ("Second Issue").

[13] The respondents contend the terms of s 266(4) of the Act do not contemplate an extension of the relevant period where application is made after a resolution has been passed for the winding up of the company. In support of this contention, the respondents rely on the reasoning in each of the judgments in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd.[13] However, in making this submission, the respondents acknowledge that the majority in Hewlett ultimately regarded themselves as obliged to follow earlier decisions to the contrary and left this question of construction to be a matter for determination by the High Court.[14] A similar conclusion was reached by P McMurdo J in Public Trustee v Octaviar.[15]

[14] Whilst acknowledging there is much force in the views expressed in Hewlett, on the present authorities, s 266 is properly to be construed as giving the Court power to extend the period for lodgement beyond 45 days, notwithstanding the company has been placed in liquidation, if the Court, in the exercise of its discretion, is satisfied the requirements of s 266(4) of the Act are met.

[15] The evidence establishes the applicant and first respondent agreed that the charge was to be registered with ASIC, and that a registration charge was provided by the first respondent for that purpose at the time of settlement. Both charges for the earlier equipment loans advanced by the applicant were registered with ASIC.[16] The failure to register this charge was due to administration errors in the input of information into the applicant's computer system. The applicant was unaware of that failure until the notification of the appointment of the second respondent caused it to review its file.

[16] The delay in making an application for an extension of time, whilst significant between the expiry of the 45 day period and the ultimate lodgement of the application, must be viewed in that context. Until the applicant received notification, on 28 June 2010, of the appointment of the second respondent,[17] it had no reason to revisit whether its officers had lodged notification of the charge in accordance with its intention at the time of receipt of the charge. The first respondent was meeting the payments as required until May 2010.[18]

[17] Once the applicant was notified of the appointment of the second respondent, the applicant proceeded to promptly send a copy of the equipment loan to the second respondent. Upon being advised that as the applicant had failed to register the charge it was void as against the second respondent, the applicant promptly lodged the notification of charge for registration, and brought the application for an extension of time.[19]

[18] Having regard to the evidence relied upon by the applicant and, in particular, the affidavit of Angela Cini, which I accept, I am satisfied the applicant's failure to register the charge within the initial 45 day period was due to inadvertence on its part. The applicant has established the ground referred to in s 266(4)(a) of the Act.

[19] As to s 266(4)(b), there is no evidence any creditor extended credit or advanced money to the first respondent after searching the register at any relevant time. This is a relevant factor in the exercise of the discretion under s 266(4).[20] As the shareholders signed the relevant equipment loan documentation, no prejudice flows to them from the failure to register the charge.

[20] The remaining issue is whether it is just and equitable to grant relief by way of an extension of time. This involves the exercise of a discretionary power having regard to a consideration of the prejudice to creditors if the order is made, and the prejudice to the applicant if it is not made.

[21] The exercise of the discretionary power under the predecessor of s 266(4) was considered by the Full Court of this Court in Sanwa Australia Finance Ltd v Groundbreakers Pty Ltd (in liq).[21] In that case, which was brought under s 205(3) of the Companies (Queensland) Code, the application to extend time was made after the company went into liquidation. Kelly SPJ, with whom Macrossan CJ and Connolly J agreed, considered a number of authorities relevant to the question of the significance or otherwise of the fact that the company was in liquidation when exercising the discretion whether to extend time, and considered the following principles emerged from those authorities:

"(a) The fact of winding up is relevant to the exercise of the discretion, but does not require that the discretion be exercised in one way.

(b) The probable detrimental effect of the making of the order on unsecured creditors is a relevant but not overriding consideration.

(c) The discretion is sparingly exercised and if a company is obviously insolvent or already in liquidation, it will be exercised only in circumstances which may properly be regarded as exceptional."[22]

[22] In ultimately determining that the exercise of the discretion in that case favoured an extension of time, his Honour said:

"Relevant factors which would appear to me to be in favour of the exercise of the discretion are these:

(a) The charges were in each case registered and notices lodged prior to the commencement of the winding up.

(b) The time which in the respective cases elapsed between the dates on which the notices should have been lodged and when they were in fact lodged, although particularly in the case of the first and fourth charges, certainly significant, was such that it could be said that the appellant remedied its default within a reasonable time.

(c) None of the charges was over the whole of the respondent's assets.

(d) If an order were not made the appellant which had given value for its securities, although admittedly in default by reason of the inadvertence of its servants or agents (as I consider to be the case), would be deprived of the benefit of those securities.

(e) There is no evidence that any unsecured creditor extended credit or advanced money to the respondent after searching the register at a time when it did not but should have disclosed the existence of the charges.

(f) The appellant when entering into the transactions had no reason to have any concern about the solvency of the respondent.

Relevant factors which would operate against the exercise of the discretion would appear to be these:

(a) It was the appellant as grantee by its then solicitors which was responsible for the failure to lodge the respective notices within due time.

(b) There was a delay of some three months after the appointment of the provisional liquidator before the application for extension of time was filed.

(c) The rights and interests acquired by the unsecured creditors upon the liquidation of the respondent would be displaced.

(d) The reluctance of the Courts to make such an order when a company is in liquidation."[23]

[23] The principles relevant to the exercise of the discretion under s 266(4) where the application is made after the company has been placed in liquidation were the subject of a detailed analysis in Hewlett. That analysis reveals that while an extension, in the case of a company in liquidation, should be granted only in "exceptional circumstances", that term, properly understood, does not involve the implication of an impermissible limitation onto s 266(4).[24] In Hewlett, Branson J considered the requirement for "exceptional circumstances" to indicate "circumstances sufficient to render it just and equitable to grant relief, notwithstanding that the grant for relief will defeat rights of unsecured creditors".[25]

[24] In the present case, factors favouring the granting of an extension are:

(a) The charge was for a particular asset and not a general charge over the first respondent's assets.

(b) The charge related to the very asset which was acquired by the loan funds advanced by the applicant, and in respect of which the charge was granted.

(c) The first respondent has had the use of the vehicle obtained pursuant to the advance of those funds.

(d) A condition of the provision of the loan funds was the granting of a charge, and the first respondent agreed to that condition.

(e) If an extension of time is not granted, the applicant will be deprived of the benefit of security for which it had given value and which the first respondent had consented to the applicant having the benefit of.

(f) The charge was registered on REVS on 8 December 2008. A search of that register by any creditor would have revealed the existence of the charge.[26]

(g) At the time the appellant entered into the transaction, it had no real reason for concern as to the solvency of the first respondent. The respondents contend the applicant had available to it, at the time of making the advance, information which should have caused it to question the capability of the first respondent to meet its commitments. I do not accept that contention. Mr Aspinall sets out the information at the applicant's disposal at the time of approval of the advance. I accept that that information evidenced a capacity to meet this commitment. Regard must also be had to the fact that at the time of making the advance, the applicant had information that the first respondent had satisfactorily met previous loans advanced by the applicant, and Suncorp. That information, when considered in the context of the financial information provided by the first respondent, gave the applicant no real cause to be concerned as to the solvency of the first respondent.

[25] Factors which favour against the exercise of the discretion to extend the time are:

(a) the application was only made after the first respondent had been placed in liquidation;

(b) the failure to lodge the respective notice in time was the applicant's. It had assumed responsibility for undertaking that step;

(c) the rights and interests acquired by priority unsecured creditors upon the liquidation will be affected, as may, potentially, any rights available to unsecured creditors (although this appears to be an unlikely outcome);[27] and

(d) the general reluctance of the Courts to make such an order when the company is in liquidation.

[26] Balancing all of those factors, I am satisfied the factors favouring the grant of an extension of time far outweigh those favouring its refusal such that it is just and equitable to grant relief, notwithstanding that it will adversely affect the rights of the priority unsecured creditors. In reaching this conclusion, it is of particular significance that the charge the subject of the application relates solely to the vehicle obtained by reason of the applicant's loan advance. The Volvo truck the subject of the charge is only an asset of the first respondent by reason of the loan advanced by the applicant. That loan was only provided after the first respondent agreed to provide security for that loan. If an extension of time is not granted, the creditors of the first respondent will receive a windfall.[28]

[27] I am satisfied it is just and equitable in all of the circumstances to grant the relief sought, and to extend the time for lodgement of the relevant notice to 29 July 2010.

[28] Although it is unnecessary to determine this claim, having regard to my finding on the first ground, I shall briefly set out my conclusion on this claim.

[29] The applicant claims an entitlement to an equitable lien on the basis the Act does not apply to a lien over property arising by operation of law,[29] and equitable liens, like mortgages or charges, confer a security interest that enjoys priority over unsecured creditors of an insolvent company.[30] The applicant submits it is entitled to an equitable lien over the vehicle in that, but for the payment of the purchase price, Volvo would have had a vendor's lien and a lender who has advanced the purchase price is entitled to a lien by subrogation.[31]

[30] In support of its claim to be entitled to an equitable lien, the applicant relies on:

(a) the first respondent requested and directed it to pay the purchase price for the vehicle directly to Volvo;

(b) it was agreed between the first respondent and the applicant that the applicant would be a secured creditor. Payment was made on that basis;

(c) the terms and conditions in the loan agreement documents expressly preserve other rights and remedies independently available to it, and that other security rights do not merge in the equipment loan contract. Security is defined in that document to include a lien;

(d) its right of subrogation is not defeated by reason of the fact that it initially obtained a valid charge but through negligence failed to register it;[32]

(e) the applicant's mistake has conferred on the first respondent a windfall gain, and any continued insistence on the retention of the vehicle without seeing the applicant paid first is unconscientious;[33]

(f) its entitlement to an equitable lien is not precluded by the provisions of the Sales of Goods Act as it does not constitute a comprehensive code.[34]

[31] The first respondent (the second respondent makes no submissions on the point[35]) asserts that the applicant is not entitled to an equitable lien by way of subrogation as the fundamental basis of subrogation is equity's concern to prevent one party obtaining an advantage at the expense of another which, in the circumstances of the case, is unconscionable and there is no occasion for equity to intervene by way of subrogation where there is available to the third party a remedy at law or an equity sufficient to avoid an unconscionable result.[36]

[32] The first respondent further submits that the circumstances in which a lender will be subrogated are not unlimited and a lender cannot claim subrogation if it obtains all the security it bargained for.[37] Where, as here, a party takes as a security for his money a security which is for the full amount of the outstanding purchase price, which extends to the whole of the property conveyed, which reserves a much higher rate of interest than would be covered by the ordinary unpaid vendor's lien and which comprises all the remedies afforded by that lien, that party intends to abandon any entitlement to a lien and to rely upon the security selected.[38]

[33] In my view, there is much force to the first respondent's submissions. Whilst the security documents contained a provision reserving rights in relation to reliance upon other security, the applicant obtained valid legal security for its loan and only lost that security by reason of its own failure to lodge the security for registration as required by the relevant Act. To resort to a claim in equity to overcome its own failures would render nugatory the reason for the statutory scheme.

[34] The applicant is not entitled to rely upon an equitable lien by way of subrogation.

[35] The applicant has established it is just and equitable in the circumstances to grant an extension of time for the registration of its charge.

[36] The period for the applicant to lodge with ASIC a notice of a fixed charge given by the first respondent to the applicant, over a 2008 Volvo FH16580HP 6 x 4 prime mover registered number 990 KSD and VIN number YV5AUFOD87D130229, and dated 5 December 2008, is extended to 29 July 2010 pursuant to s 266(4) of the Corporations Act 2001 (Cth).

[37] The applicant pay the respondent's costs of and incidental to the application to be agreed, or failing agreement, to be assessed on a standard basis.

[38] In respect of the reserved costs, each party is to pay their own costs of and incidental to the adjournment on 22 September 2010.

[1] Affidavit of Gregory Aspinall filed 16 September 2010, para 11(b).

[2] Affidavit of Gregory Aspinall filed 16 September 2010, para 11(a)(i).

[3] Affidavit of Gregory Aspinall filed 16 September 2010, paras 4-5.

[4] Affidavit of Gregory Aspinall filed 16 September 2010, Exhibit GA-2.

[5] Affidavit of Nicole Jane Adamson filed 16 September 2010, Exhibit NJA-2.

[6] Affidavit of Nicole Jane Adamson filed 16 September 2010, para 11.

[7] Affidavit of Nicole Jane Adamson filed 16 September 2010, para 12.

[8] Affidavit of Angela Cini filed 17 September 2010, paras 4-5.

[9] Corporations Act 2001, s 263(1).

[10] Corporations Act 2001, s 9.

[11] Corporations Act 2001, s 266(1)(c).

[12] Corporations Act 2001, s 266(2).

[13] [2003] FCAFC 256; (2003) 135 FCR 206 per Whitlam J at [7] and Branson J at [24] and per Allsop J at [58], [63]-[172].

[14] Hewlett per Branson J at [24] and Allsop J at [173], [175].

[15] [2009] QSC 202; (2009) 73 ACSR 139 at [196]- [197].

[16] Affidavit of Mark William Pearce filed 21 September 2010, para 11.

[17] Affidavit of Nicole Jane Adamson filed 16 September 2010, para 15.

[18] Affidavit of Nicole Jane Adamson filed 16 September 2010, para 14.

[19] Affidavit of Nicole Jane Adamson filed 16 September 2010, paras 16-22.

[20] Public Trustee v Octaviar [2009] QSC 202; (2009) 73 ACSR 139 at [199].

[21] [1991] 2 QdR 456.

[26] cf Re Freightlines Northern Territory Pty Ltd (in liq) [1999] QSC 209; [2000] 2 QdR 384 at 385.

[27] Affidavit of Mark William Pearce filed 21 September 2010, paras 44-49.

[28] cf Craig Mostyn & Co Pty Ltd v Old Valley Pty Ltd [2004] FCA 1083; (2004) 139 FCR 477 at [52]- [58].

[29] Corporations Act 2001, s 262(2)(a).

[30] Hewitt v Court [1983] HCA 7; (1983) 149 CLR 639 at 645, 663; Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd [2000] HCA 25; (2000) 202 CLR 588.

[31] Commonwealth of Australia v South East Queensland Aboriginal Corporation for Legal Services [2005] QSC 88; [2006] 1 QdR 12 at [30].

[32] Banque Financiere de la Cite v Parc (Battersea) Ltd [1998] UKHL 7; [1999] 1 AC 221 at 235E-G.

[33] Westdeutsche Landesbank Girozentrale v Islington LBC [1996] UKHL 12; [1996] AC 669 at 714-5 applied in Wambo Coal Pty Ltd v Ariff (2007) NSWSC 589 at [38]- [44]; Westpac Banking Corporation v Ollis (2007) NSWSC 956 at [20], [23]-[25].

[34] Hewitt at 639; see generally Sykes and Walker, The Law of Securities, 5th edition, pp 751-2.

[35] Outline of submissions of the respondents, para 9.

[36] Highland v Exception Holdings Pty Ltd (in liq) [2006] NSWCA 318; [2006] 60 ACSR 223 at [102]; see also Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269 at [83], [88]-[89].

[38] cf Burston Finance Ltd v Speirway Ltd [1974] 1 WLR 1648 at 1653.