Gastevich (by her litigation representative Tombides) v Starwest Investments Pty Ltd

In the matter of H&H Funding Pty Ltd [2022] NSWSC 1354

In the matter of MC XXIV Pty Ltd (in liquidation) [2023] NSWSC 767

K.J. Renfrey Nominees Pty Ltd (Trustee), in the matter of OneSteel Manufacturing Pty Ltd v OneSteel Manufacturing Pty Ltd [2017] FCA 325; 120 ACSR 117

Re Accolade Wines Australia Ltd [2016] NSWSC 1023

Re Appleyard Capital Pty Ltd [2014] NSWSC 782; 101 ACSR 629

Re Barclays Bank PLC [2012] NSWSC 1095; 30 ACLC 12-044

Re Enviro Pallets (NSW) Pty Ltd (in liq) [2013] QSC 220

Re Eticore SD Pty Ltd [2021] NSWSC 110

Re Transurban CCT Pty Ltd [2014] NSWSC 1909

Squadron Resources Pty Ltd v Highlake Resources Pty Ltd [2018] FCA 1292

SONJA GASTEVICH (BY HER LITIGATION REPRESENTATIVE, MARY TOMBIDES)

STARWEST INVESTMENTS PTY LTD (ACN 107 278 642) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE WHITE LION TRUST (ABN 29 233 782 760)

1. Pursuant to s 588FM and for the purpose of s 588FL(2)(b)(iv) of the Corporations Act 2001 (Cth), 11 December 2025 be fixed as the time for the plaintiff to register on the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth) PPSR Registration Number 202512110082173 registered against Starwest Investments Pty Ltd (ACN 107 278 642) as trustee of the White Lion Trust (ABN 292 337 827 60).
2. If any of the events described in s 588FL(1)(a) of the Corporations Act occurs in relation to Starwest Investments Pty Ltd (ACN 107 278 642) within six months after 11 December 2025, there be liberty for any person who is able to demonstrate sufficient interest to apply to set aside or vary paragraph 1 of these orders.
3. There be no order as to the costs of the proceeding.

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

1. The plaintiff is a secured creditor of the defendant (company). The plaintiff applies for an order fixing 11 December 2025 as the later time for the purposes of s 588FL(2)(b)(iv) under s 588FM of the Corporations Act 2001 (Cth) and certain other orders.
2. The company is trustee of the White Lion Trust which conducts a business known as 'Hamptons City Beach' from premises in the City Beach Precinct within the Town of Cambridge. The controllers of the company are the plaintiff's youngest daughter and her husband. In 2018 the plaintiff lent the company, as trustee, $4,550,000. The plaintiff borrowed the funds advanced from Resolve Nominees Pty Ltd, another company of which the plaintiff was a director and the sole shareholder. The other directors of Resolve Nominees are Mr and Mrs Tombides. Mrs Tombides is another daughter of the plaintiff and her litigation representative in this proceeding. Resolve Nominees, in turn, borrowed the funds advanced to the plaintiff from the National Australia Bank Limited. The plaintiff's loan to the company was recorded in a deed of acknowledgement of debt executed on 12 January 2018. The terms for repayment of principal and interest of the loan under the deed reflected the terms of the loan between Resolve Nominees and the NAB. Under the terms of the deed the company granted the plaintiff a security interest in all present and after acquired personal property of the company (whether held in its own right or as trustee).
3. With limited exceptions, the Personal Property Securities Act 2009 (Cth) and Personal Property Securities Regulations 2010 (Cth) apply to all security interests in personal property and make provision for registration of those security interests on the Personal Property Securities Register (PPSR) established under the Act and Regulations. The PPS Act makes provision for certain rules relating to security interests and these rules address priorities between security interests and the circumstances in which a person takes personal property free of security interests. The rules also address transfer and enforcement of security interests. The concept of 'perfection' of a security interest is central to the operation of these provisions. Perfection of a security interest is also important because, if any of certain insolvency events occur with respect to the grantor and the security interest is unperfected at that time, the security interest vests in the grantor immediately before the insolvency event: s 267 of the PPS Act. That is, the secured party (grantee) 'loses' the security interest. A security interest is perfected if the security interest is attached to the collateral, is enforceable against a third party and a registration under the PPS Act is effective with respect to the collateral, or the secured party has possession of the collateral, or, for certain kinds of collateral, the secured party is in control of the collateral: s 21 of the PPS Act. The term 'collateral' means personal property to which a security interest is attached; that is, the secured property: s 10.
4. On 7 May 2018 the plaintiff registered a security interest with respect to the security interest granted under the deed of acknowledgement of debt. However, she contends that the registration was ineffective because of a defect in the manner in which the grantor was described in the registration on the PPSR. As a consequence, the plaintiff registered a security interest with respect to the relevant collateral on 11 December 2025 which she contends correctly describes the grantor and is an effective registration of the security interest under the PPS Act and PPS Regulations. While the plaintiff contends that the security interest has now been perfected by the correct registration, if certain insolvency events were to occur with respect to the company, without an order from the Court under s 588FM fixing the latest date for registration of the security interest at 11 December 2025 (the date it was registered), the security interest would vest in the company by operation of s 588FL(2) and s 588FL(4) of the Corporations Act.
5. In broad terms, the relevant effect of s 588FL(2) is that, if a company is being wound up, an administrator or restructuring practitioner has been appointed, or a deed of company arrangement has been executed or a restructuring plan has been made, a PPSA security interest which was perfected, registered or enforceable against a third party after the latest of six months before the critical time or 20 days after the security agreement came into force or such later time as the Court may fix under s 588FM, vests in the company, for the benefit of creditors generally, and the secured creditor loses the benefit of the security: Re Appleyard Capital Pty Ltd [2014] NSWSC 782; 101 ACSR 629 at [8] (Brereton J). Depending upon the circumstances, the 'critical time' is the day the event occurs by which the winding up is taken to have commenced under s 513A or s 513B, or is the day identified in s 513C for a company under administration or that has executed a deed of company arrangement, or is the day identified in s 513CA for a company that has made a restructuring plan: s 588FL(7).
6. Section 588FM provides (notes omitted):

(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).

(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.

1. Section 588FM(2) confers a broad discretion on the Court to fix a later time for the purposes of s 588FL(2)(b)(iv) informed, at least in part, by what is just and equitable and as such, the provision is to be construed liberally for the purposes for which the power is intended: Squadron Resources Pty Ltd v Highlake Resources Pty Ltd [2018] FCA 1292 at [35(b)] (McKerracher J). Nonetheless, even if the Court is satisfied of the existence of one or more of the grounds in s 588FM(2), it retains a discretion as to whether it should grant relief in the particular circumstances of any given case and may do so on any terms and conditions that seem just and expedient.
2. The plaintiff contends that: (1) failure to register the collateral in this case earlier (perfect the security interest) was due to inadvertence; (2) an extension of the later time to 11 December 2025 will not prejudice the position of creditors or shareholders; and (3) it is just and equitable to grant relief. Thus, the resolution of the application turns on each of these issues as well as whether, ultimately, in the exercise of the discretion, the Court should grant relief and, if so, on what, if any, just and expedient terms and conditions.

Was the failure to register the collateral due to inadvertence?

1. For the purposes of s 588FM(2)(a)(i) 'inadvertence' encompasses human error or oversight, not being properly attentive or failing to understand the requirement to register a security interest within the prescribed period and the consequences of failing to do so, and mistake or omission by a lawyer: Bluewaters Power 1 Pty Ltd v Griffin Coal Mining Company Pty Ltd [2019] WASC 438 at [40]- [41] (Vaughan J); Re Barclays Bank PLC [2012] NSWSC 1095; 30 ACLC 12-044 at [13] (Black J); Re Enviro Pallets (NSW) Pty Ltd (in liq) [2013] QSC 220 at 7 (Philippides J); Re Eticore SD Pty Ltd [2021] NSWSC 110 at [15] (Black J). For the reasons that follow, that the failure to register the collateral in this case was due to inadvertence or some other sufficient cause.
2. As already mentioned, on 7 May 2018 a registration recording the plaintiff as the secured party was made on the PPSR. The registration recorded the company as the grantor and identified the company by its ACN. The collateral was identified as commercial property and the collateral class as 'All present and after-acquired property - No exceptions'. The address for service (of the secured party) provided a contact name, email, facsimile number and mailing address of the legal firm 'Chan Galic'.
3. There was evidence to the effect that the plaintiff instructed Chan Galic in relation to the deed of acknowledgment of debt. Although there was no evidence directly from the lawyer of that firm who had the carriage of the matter on the plaintiff's behalf, Mr Chan was called and gave evidence confirming that the PPSR registration recorded his name as the contact, he was the principal of the firm and the email, facsimile number and mailing address were all those of Chan Galic at the relevant time in 2018.
4. The plaintiff is 88 years of age and suffers from dementia. She has been in cognitive decline since at least March 2022. A medical assessment in January 2025 revealed that she has severe cognitive impairment. In those circumstances it is self-evident that the plaintiff was not able to give any direct evidence regarding the nature of any instructions given to Chan Galic. Mr Chan was also not able to give any direct evidence because he was not the lawyer with the carriage of the matter. Nonetheless, it is to be inferred, and I find that the plaintiff instructed Chan Galic in relation to the deed of acknowledgment of debt and those instructions extended expressly or implicitly to taking the necessary steps to perfect the security interest the company granted to the plaintiff under the deed.
5. The deed is expressed to be between 'SONYA GASTEVICH' (although not her legal name, I accept the evidence of Mrs Tombides that it was a name by which the plaintiff was known) as lender and 'STARWEST INVESTMENTS PTY LTD (ACN 107 278 642) AS TRUSTEE FOR THE WHITE LION TRUST' as borrower. Under the terms of the deed the plaintiff was to advance up to $4,550,000 to the company and provision was made for payment of interest and repayment of principal and interest over the term of the loan.
6. Clause 5.1 and cl 5.2 of the deed provide:

5.1. Security Interest over Personal Property

(a) As security for the payment of the Monies Secured to the Lender, the Borrower (the Grantor for the purposes of this clause) grants a continuing Security Interest to the Lender in the Personal Property and All Present and After Acquired Properly.

(b) The Grantor acknowledges that this Deed constitutes a Security Agreement pursuant to the PPSA.

5.2. Further Assurance

The Grantor agrees to the following:

(a) The Lender can affect and maintain a Registration (in any manner that the Lender considers appropriate) of its Security Interest on the PPSR in relation to any Security Interest contemplated or constituted by this Deed.

...

1. The expression 'Moneys Secured' is defined in terms that cover the amount the plaintiff advanced plus interest and all other moneys due to or recoverable by the plaintiff under the terms of the deed. The expression 'Personal Property' was defined to mean the plaintiff's 'All Present and After Acquired Property whether held in its own right or as trustee'. The expressions 'Security Interest' and 'All Present and After Acquired Property' were not defined in the deed. However, 'Security' was defined to mean 'the security specified in Item 3 of Schedule 1 and any mortgage, pledge, lien, security interest or other encumbrance or charge now or in the future given by the [company] in favour of the [plaintiff] to secure the obligations of the [company] under this Deed'. The security specified in Item 3 of the Schedule was expressed in terms by which '[t]he [company], as Grantor grants the [plaintiff], as Secured Party, a charge over all the present and future acquired assets of the Grantor which is able to be registered under the Personal Property Securit[ies] Act 2009 (Cth) as security'.
2. Although there are gaps, circuity and ambiguity in the text of the relevant provisions and defined terms in the deed, it is reasonably arguable that the effect of cl 5.1 and cl 5.2 of the deed is that the company in its own right and as trustee of the White Lion Trust granted the plaintiff a 'security interest' in all present and after acquired personal property of the company whether held in its own right or as trustee (collateral) and these provisions comprise a 'security agreement' within the meaning of those expressions in s 12 and s 10 of the PPS Act. It is not necessary to determine conclusively if the plaintiff has a registrable security interest in the personal property of the company or the precise nature of that interest for the purposes of this proceeding. It is sufficient that the Court be satisfied that it is reasonably arguable that the plaintiff has the claimed security interest: Bluewaters Power 1 Pty Ltd at [29].
3. It follows that it is reasonably arguable that the plaintiff has a registrable security interest in the personal property of the company held in its own right and as trustee of the White Lion Trust. However, at the time of registration of the plaintiff's interest in the company's personal property the PPSR registration only identified the grantor as the company by its ACN. The registration did not identify the company as trustee of the White Lion Trust and the ABN associated with the trustee of that trust. The plaintiff submits that, as a consequence, the registration on 7 May 2018 was likely defective by operation of ss 153, 164 and 165 of the PPS Act and cl 1.5 of Sch 1 of the PPS Regulations.
4. Part 5.3 of the PPS Act makes provision for the registration of security interests. The mechanism for doing so is to apply to the Registrar for registration of a financing statement: s 150. A financing statement must contain certain data including any matter prescribed by the PPS Regulations: s 153. Schedule 1 of the PPS Regulations sets out the matters prescribed for the purposes of s 153: reg 5.5(1). Clause 1.5 of Sch 1 provides, relevantly, that if the grantor is a body corporate that is a trustee of a trust that has an ABN and holds or has an interest in collateral in the course of, or for, an enterprise that has been allocated an ABN, then the ABN must be included in the grantor's details in the financing statement. Therefore, as the company as trustee for the White Lion Trust has an ABN, that detail was required to be included in any financing statement for the security interest granted under the deed of acknowledgment of debt.
5. Section 164(1) of the PPS Act provides:

A registration with respect to a security interest that describes particular collateral is ineffective because of a defect in the register if, and only if, there exists:

(a) a seriously misleading defect in any data relating to the registration, other than a defect of a kind prescribed by the regulations; or

(b) a defect mentioned in section 165.

1. Section 165(d) provides that '[f]or the purposes of paragraph 164(1)(b), a defect in a registration that describes particular collateral exists at a particular time if ... circumstances in relation to the data related to the registration that are prescribed by the regulations'. The PPS Regulations do not specifically prescribe any circumstances for the purposes of s 165(d). Nonetheless, the plaintiff submits that s 165(d) means that a defect exists if the registration does not record the data otherwise prescribed by the PPS Regulations. A similar submission was accepted in Amal Trustees Pty Ltd as trustee for the Longreach Direct Lending Fund, in the matter of Top Shelf International Holdings Ltd [2023] FCA 1519 at [18]- [19] (Shariff J). However, that construction of s 165(d) was rejected in AMAL Security Services Pty Ltd v 452HM Pty Ltd [2025] FCA 603 at [20]- [25] (Moore J) on the ground that, as there are no prescribed circumstances, s 165(d) has no present field of operation.
2. In the absence of any real contradictor, I prefer not to express a concluded view on which of these conflicting authorities is correct, but, having regard to the terms of s 164(1)(b) and s 165(d) and the absence of any specific circumstances prescribed in the PPS Regulations, I think it doubtful that s 165(d) has the meaning for which the plaintiff contends. Nonetheless, in the circumstances, I am prepared to accept that it is reasonably arguable that a failure to record the data prescribed by the PPS Regulation is a defect that renders the registration ineffective for the purposes of s 164(1)(b).
3. The plaintiff also submits that the failure to record the ABN of the trustee of the White Lion Trust was also likely 'a seriously misleading defect in ... data relating to the registration ...' for the purposes of s 164(1)(a). Justice Moore also considered the meaning of 'seriously misleading' in AMAL Security Services and accepted that the approach to the construction of s 164 taken by Brereton J in Future Revelation Ltd v Medica Radiology & Nuclear Medicine Pty Ltd [2013] NSWSC 1741; 283 FLR 122 at [6] was appropriate: AMAL Security Services at [26]-[28]. Adopting that approach, a defect will be 'seriously misleading' if it will result in a failure to disclose the registration on a search of the PPSR. Again, in the absence of a real contradictor, I am prepared to accept that it is reasonably arguable that the registration made on 7 May 2018 was 'seriously misleading' in the relevant sense because a search of the register would not have identified the ABN of the trustee of the White Lion Trust, that the grantor was the trustee of that trust, that the relevant collateral was held in trust or that the security interest related to collateral held in trust.
4. In October 2025 Mrs Tombides was appointed the plaintiff's plenary administrator by order of the Western Australian State Administrative Tribunal. In October 2025 Mrs Tombides became aware of the potential error in the registration of the plaintiff's security interest and that an application to a court would be necessary to remedy that error. This proceeding was commenced on 20 November 2025. By order of this Court Mrs Tombides was appointed the plaintiff's litigation representative in this proceeding. As originally framed, the plaintiff sought relief in this proceeding to fix 7 May 2018 as the latest time. However, as the plaintiff correctly registered the security interest on 11 December 2025, the originating process was amended to seek relief fixing 11 December 2025 as the latest time.
5. In circumstances of the plaintiff's cognitive decline and instructions given to Chan Galic in 2018, the absence of any evidence from her about her state of knowledge regarding the status of the registration of her security interest from January 2018 to December 2025 is self-evident and explained. I also infer and find that after instructing Chan Galic in 2018 she would have had no reason to doubt that the security interest had been correctly registered in 2018. Further, once the plaintiff, through her plenary administrator, became aware of the potential error, steps were taken promptly to correct the register and obtain appropriate relief from the Court.
6. Having regard to the somewhat ambiguous terms of the security agreement and that the requirement to include the ABN of the trustee of the White Lion Trust as part of the details of the grantor was buried in a schedule to the PPS Registration, I infer and find that the lawyer with responsibility for undertaking or supervising the plaintiff's application for registration of the plaintiff's security interest overlooked or misunderstood that requirement. That failing was plainly due to inadvertence of the plaintiff's authorised agent. Inadvertence will readily be found where an error of a secured creditor in not attending to the registration of a security within time is innocent and does not result from any disregard of statutory obligations: Re Accolade Wines Australia Ltd [2016] NSWSC 1023 at [14] (Brereton J). Further, a bona fide attempt to register a security interest with deficiencies is capable of meeting the description 'inadvertence or some other sufficient cause': Re Transurban CCT Pty Ltd [2014] NSWSC 1909 at [8] (Brereton J).

Has the failure to register the collateral earlier prejudiced creditors or shareholders?

1. As the failure to register the collateral earlier was due to inadvertence or some other sufficient cause, it is not necessary to consider if the failure to register the collateral earlier is not of such a nature as to prejudice the position of creditors or shareholders as a ground for exercising power under s 588FM(2)(a)(ii) of the Corporations Act. However, prejudice or potential prejudice to creditors is nevertheless a relevant consideration in the exercise of the Court's discretion to grant relief on the ground in s 588FM(2)(a)(i).
2. In general, secured creditors will not be affected by an order under s 588FM: Adia Venture Ltd v Traffic Technologies Ltd [2025] FCA 564 at [29] (O'Callaghan J). In the case of unsecured creditors, prejudice is not established by merely demonstrating that the return to them in an administration or liquidation of the company would be diminished if the security interest does not vest in the company. The position of the unsecured creditors may have been the same if there had been timely registration. '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).' Put another way, the relevant prejudice is that which flows from the failure to register earlier, not from making the order: Re Appleyard Capital at [30]. 'The period of delay in effecting registration is relevant, primarily because the shorter the delay the less likely that 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. The mere fact that if the extension is granted unsecured creditors will be deprived of the benefit of the security interest vesting in the company and thus receive less dividends is no objection to making an order': Re Transurban CCT at [13].
3. The plaintiff submits that there is no evidence that the delay in registration will affect any particular unsecured creditor because that creditor searched the PPSR before choosing to transact with the company, as trustee. While it is correct that there is no such evidence, the only unsecured creditor provided with notice of the proceeding and the relief sought was the Australian Taxation Office.
4. Although afforded the opportunity to do so, the ATO did not appear or make submissions on the application. However, as the plaintiff submits, the ATO is, in substance, an involuntary unsecured creditor. It became a creditor merely by reason of the company, as trustee, engaging in its business. Therefore, the ATO could not have been prejudiced, in the relevant sense, as a consequence of the plaintiff's delay registering its security interest on the PPSR: In the matter of MC XXIV Pty Ltd (in liquidation) [2023] NSWSC 767 at [32] (Williams J); In the matter of H&H Funding Pty Ltd [2022] NSWSC 1354 at [8] (Black J). Accordingly, the absence of submissions from the ATO does not demonstrate that no unsecured creditors were relevantly prejudiced.
5. I infer from the fact the company, as trustee, carries on business in premises that are leased from the Town of Cambridge that the company, as trustee, will have unsecured 'voluntary' trade and other creditors. While any unsecured creditor which made a decision to extend credit to the company, as trustee, after January 2018 and which had searched the PPSR would have become aware of numerous registered security interests of other secured creditors, a search of the trustee's ABN would not have identified the plaintiff's security interest. Thus, on the information available, the Court is not able to exclude the possibility of prejudice to unsecured creditors arising to some degree from the delay in registration of the correct security interest. Nonetheless, I take into account that the possibility of such a creditor emerging is somewhat unlikely in the circumstances of this case.
6. The solvency, or otherwise, of the grantor is also a relevant consideration to potential prejudice to creditors. Where the grantor is clearly solvent the risk of prejudice to unsecured creditors may be so low as to be effectively not a consideration at all. As Vaughan J put it in Bluewaters Power 1 Pty Ltd (at [54]): 'If solvent that may be the end of the matter.' But, if the Court cannot be satisfied that there is no risk of prejudice to unsecured creditors, an order may be made reserving leave to apply to set it aside in the event of a relevant insolvency event.
7. In Re Appleyard Capital Brereton J observed:

[28] In practice, ... it has been commonplace, even when it appears that the company may be insolvent and liquidation or administration is imminent, to extend time subject to a "Guardian Securities condition" reserving leave to any liquidator or administrator appointed within 6 months to apply to set the order aside. This course, or one similar to it, was taken in Limited Company per Long Innes J, where solvency was dubious; in L H Charles & Co per Clauson J, where liquidation was in contemplation; in Cinema Art Films per Myers CJ; in Guardian Securities per McLelland J, where there was "no evidence whatsoever as to the solvency or otherwise of the company creating the charge" (at 98); and in Bevillesta per Robson J, where the evidence of solvency was inconclusive. In recent times in this court, such orders have been made in Cardinia Nominees per Black J, where again the evidence of solvency was inconclusive; in Re Apex Gold Pty Ltd [2013] NSWSC 881 per Hammerschlag J, where administration was imminent; and in Black Opal IP per Brereton J, where there was some but less than comprehensive evidence of solvency.

1. The evidence in this case indicates that the company is in financial difficulty. It is indebted to the ATO to a very significant extent. The ATO served a statutory demand on the company that went unpaid. However, at this time, the ATO has not taken steps to obtain an order that the company be wound up in insolvency and the directors have not appointed an administrator. The company, as trustee, was also recently in default of payment of rent and outgoings under the lease of the premises. That default was remedied after a loan was advanced to the company from Resolve Nominees.
2. The insolvency risk is not negligible or even low. Thus, the potential prejudice to unsecured creditors which have dealt with the company since January 2018 is a relevant consideration. Moreover, I am not positively satisfied that an extension of the later time to 11 December 2025 will not prejudice any unsecured creditors.

Are there grounds upon which it is just and equitable to grant relief?

1. The extent to which it would be just and equitable to make an order under s 588FM(2)(b) depends upon the circumstances of each particular case. While I am satisfied that the failure to register the security interest earlier was due to inadvertence and, therefore, the discretion to grant a remedy under s 588FM(2)(a)(i) is enlivened, even if the facts earlier described were not to amount to 'inadvertence' or 'other sufficient cause', the circumstances of the defective earlier registration of the plaintiff's legal representative and prompt steps taken to correct the error when the plaintiff's plenary administrator became aware of the error, are factors that favour granting relief on just and equitable grounds.
2. However, as a purpose of s 588FL(2) is to avoid the vesting of a security interest in the company and preserve the secured creditor's security and interests of other creditors is also an important factor for consideration in determining if an order is just and equitable. In this respect, the observations already made regarding the interests of other secured and unsecured creditors are equally pertinent to the question of whether it would be just and equitable to grant relief: K.J. Renfrey Nominees Pty Ltd (Trustee), in the matter of OneSteel Manufacturing Pty Ltd v OneSteel Manufacturing Pty Ltd [2017] FCA 325; 120 ACSR 117 at [28] (Davies J).
3. I also consider it relevant that loss of the plaintiff's security interest would result in a significant adverse consequence for a secured creditor who, through no fault of her own, failed to register the collateral earlier. It is also relevant that the company, who had notice of the proceeding and appeared on the hearing of the application, adopted a neutral stance to the orders sought. These are additional factors that favour granting relief on just and equitable grounds.

1. On balance and having regard to all the matters to which reference has been made, I am satisfied that an order should be made fixing the time for registration of the collateral at 11 December 2025. I am satisfied that the Court has power to do so because the failure to register the collateral earlier was 'inadvertent' or 'for some other sufficient cause' and, in any event, it is just and equitable in the circumstances to grant relief. However, due to the company's financial position and the remaining potential prejudice to unsecured creditors, the order fixing a later time should be subject to a Guardian Securities condition.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.