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[2026] NSWSC 1052
Supreme Court of NSW
2026-09-03
Nixon J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: In the matter of Fernview Environmental Pty Ltd [2026] NSWSC 1052
Hearing dates: 18 August 2026
Date of orders: 3 September 2026
Decision date: 03 September 2026
Jurisdiction: Equity
Before: Nixon J
Decision: 1. The Originating Process filed 17 October 2025 is dismissed. 2. The Plaintiff pay the Second Defendant’s costs of the proceeding, as agreed or assessed.
Original judgment source is linked above.
Catchwords: CORPORATIONS – shares – transfer – application by Plaintiff for orders compelling First Defendant to register transfer of shares – where shares formed part of a parcel of shares in First Defendant owned by a third party – where third party granted Second Defendant a fixed charge over all of the shares – where third party subsequently pledged around 30% of the shares as security for borrower’s obligations under a loan agreement with Plaintiff – where Plaintiff, following default under loan agreement, completed transfer form in respect of shares and lodged transfer with First Defendant for registration – where First Defendant refused to register transfer due to Second Defendant’s competing claim in respect of shares – whether First Defendant’s refusal was without just cause
Legislation Cited: Corporations Act 2001 (Cth) ss 175, 1071F
Personal Property Securities Act 2009 (Cth) ss 19-21, 27
Cases Cited: Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd [2017] NSWSC 1230
Beck v Tuckey (2007) 213 FLR 152; [2007] NSWSC 1065
Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1; [1950] HCA 54
In the matter of Alon Pty Ltd [2021] NSWSC 1021
In the matter of Centura Global Holdings Pty Ltd (2016) 111 ACSR 185; [2016] NSWSC 62
In the matter of Motasea Pty Ltd (2014) 97 ACSR 589; [2014] NSWSC 69
Kirwan v Cresvale Far East Ltd (in liq) (2002) 44 ACSR 21; [2002] NSWCA 395
Leaver v Taxi Combined Services (Launceston) Pty Ltd (2002) 10 Tas R 362; [2002] TASSC 2
Verguier Pty Ltd v Ramelius Resources Limited [2019] FCA 796
Category: Principal judgment
Parties: Begistics Public Company Limited (Plaintiff)
Fernview Environmental Pty Ltd (First Defendant)
DDT Enviro Pty Ltd (Second Defendant)
Representation: Counsel:
A Ali (Solicitor) (Plaintiff)
B Katekar SC and D Breznik (Second Defendant)
Solicitors:
Civic Lawyers Australia (Plaintiff)
Addisons (Second Defendant)
File Number(s): 2025/403389
Publication restriction: Nil
By Originating Process filed 17 October 2025, the Plaintiff, Begistics Public Company Limited, seeks orders compelling the First Defendant, Fernview Environmental Pty Ltd, to register a transfer of 30,000 shares in Fernview from M8 Holding Limited to Begistics (Disputed Shares).
In particular, Begistics seeks:
an order pursuant to s 1071F(2) of the Corporations Act 2001 (Cth) (Act) compelling Fernview to register the transfer of the Disputed Shares, on the basis that Fernview’s refusal or failure to do so was without “just cause”; or
alternatively, an order pursuant to s 175 of the Act compelling Fernview to “correct” its register of members, by recording Begistics as the holder of the Disputed Shares; and
an order pursuant to s 1071H(6) of the Act compelling Fernview to issue a share certificate to Begistics for the Disputed Shares.
The Originating Process also sought, in the alternative, relief under s 233 of the Act. However, Begistics confirmed in opening address that it did not press this claim.
On 29 October 2025, Fernview was served with the Originating Process and supporting affidavit. Fernview has not entered an appearance in this proceeding.
On 1 December 2025, DDT Enviro Pty Ltd was joined as the Second Defendant. DDT opposes the relief sought by Begistics. In particular, DDT contends that M8 Holding has granted to DDT a fixed charge over all of the 99,900 ordinary shares in Fernview which M8 Holding owns (M8 Fernview Shares), including the Disputed Shares, and that DDT’s security interest has priority over any purported right of Begistics to register the transfer.
Fernview is incorporated in Australia. Its registered office is located in Maddington, Western Australia.
Each of Begistics and M8 Holding is incorporated in Thailand.
DDT is an Australian registered company. It forms part of a group of companies known as the “DDT Group”, which operate a commodity trading business.
On 14 February 2023, administrators were appointed to Fernview pursuant to s 436C of the Act.
On 1 June 2023, a Deed of Company Arrangement was executed between Fernview, M8 Holding and other entities (Fernview DOCA).
On around 6 June 2023, DDT, M8 Holding, Fernview and others entered into a number of agreements in relation to the Fernview DOCA (Transaction Documents), including the following documents.
First, a loan agreement was entered between DDT as Lender, M8 Holding as Borrower and Mr Saithsiri Saksitthisereekul as Guarantor (DDT Loan Agreement). The DDT Loan Agreement relevantly provided that:
DDT would provide a loan of $5m to M8 Holding, at an interest rate of 14% per annum (cl 3);
DDT would advance the loan amount by paying the sum of $5m to the Deed Administrators of the Fernview DOCA in satisfaction of M8 Holding’s obligation to pay a contribution under the Fernview DOCA (cl 4);
immediately after the loan amount was advanced by DDT, M8 Holding would procure that Mr Saksitthisereekul (who was a director of M8 Holding) was appointed as a director of Fernview (cl 5.1(b));
as a condition precedent to the DDT Loan Agreement, M8 Holding would provide DDT with a duly executed counterpart of the Specific Security Agreement (which is described below) (cl 2.1(a)); and
M8 Holding’s obligation to repay the outstanding loan balance was taken to be satisfied on and from the date that the Convertible Note Agreement (described below) was executed and Fernview issued the Convertible Notes and provided a duly executed Convertible Note Certificate to DDT (cl 8.2).
Secondly, an agreement entitled “Secured Convertible Note Subscription Agreement” (Convertible Note Agreement) was entered between Fernview, DDT and M8 Holding. The Convertible Note Agreement relevantly provided that:
DDT would subscribe for, and Fernview would issue, 5 million secured convertible redeemable loan notes on the terms and conditions of the Convertible Note Agreement (with such terms including that interest would accrue at a rate of 14% per annum) (cll 2.1(a), 2.2, 5.1);
the convertible notes would have a M****aturity D****ate of 24 months after the issue date (that is, 6 June 2025), unless written notice was given by DDT extending the Maturity Date by up to 12 months (cl 4);
interest would accrue on the convertible notes at the rate specified in the Convertible Note Agreement, would be capitalised monthly, and would be payable by Fernview quarterly in arrears (cll 5.1-5.3);
in the event that Fernview failed to pay interest as required by the Convertible Note Agreement, interest would be payable at a default interest rate of 16% per annum (cl 5.4);
DDT could, at any time up to the Maturity Date, elect to convert all of its convertible notes into fully-paid ordinary shares in Fernview (cl 8.1);
if, by the Maturity Date, the convertible notes have not been converted into Fernview shares in accordance with cl 8, DDT will be deemed to have given a redemption notice to Fernview in respect of all of the convertible notes, and Fernview will be required to redeem all of the convertible notes for an amount equal to their aggregate face value plus accrued interest (cl 9); and
M8 Holding guaranteed the due and punctual payment of all moneys owed to DDT by Fernview under the Convertible Note Agreement or any other relevant security documents (cl 15.1).
Thirdly, an agreement entitled “Specific Security Agreement (Shares)” was entered between M8 Holding as Grantor and DDT as Secured Party. The Specific Security Agreement relevantly provided that:
M8 Holding granted a security interest in all of the “Collateral” to DDT to secure the due and punctual payment of “Secured Money” and the punctual performance of “Secured Obligations” (cl 2.1(a)), where:
(a) the “Collateral” included all of the 99,900 M8 Fernview Shares (which were stated to comprise 99.9% of the issued share capital of Fernview) (cl 1.1 and sch 1); (b) the “Secured Money” included any amounts that were payable, owing but not currently payable, contingently owing, or that remained unpaid by M8 Holding to DDT under, relevantly, the Convertible Note Agreement (cl 1.1); (c) the “Secured Obligations” included the obligations under the Convertible Note Agreement (cl 1.1);
(a) M8 Holding failed to pay any of the Secured Money as required; (b) M8 Holding failed to perform or comply with any of the Secured Obligations or any other obligation under any Transaction Document to which it was a party (including the Convertible Note Agreement and the Specific Security Agreement); (c) M8 Holding attempted to create a further security interest over the M8 Fernview Shares, or M8 Holding allowed such a security interest to exist, or a security interest came into existence over the M8 Fernview Shares; or (d) a security interest was enforced, or became enforceable over any property of M8 Holding; and
(a) DDT was permitted to date, complete and lodge for stamping and registration the M8 / DDT Transfer Form, together with the M8 Fernview Share Certificate (cl 9.1 and sch 2, cl 2); and (b) at the option of DDT (notwithstanding any delay to exercise that option), the Secured Money would become immediately due and payable and any rights of M8 Holding to deal with the M8 Fernview Shares would immediately cease (cl 13.4).
On 6 June 2023, DDT registered its security interest over the M8 Fernview Shares on the Personal Property Securities Register (PPSR).
In accordance with cl 2.3 of the Specific Security Agreement, M8 Holding delivered to DDT’s solicitors an executed but undated M8 / DDT Transfer Form in relation to the M8 Fernview Shares with the name of the transferee blank. In the section of the transfer form headed “Consideration”, the following statement appeared: “Pursuant to the Specific Security Agreement entered into between [M8 Holding] and [DDT] on 6 June 2023”. It is not clear on the evidence when this document was delivered to DDT’s solicitors. DDT’s solicitors continue to hold this document.
On 25 December 2023, Begistics as Lender entered into a facility agreement with Beyond Capital Company Limited as Borrower (Begistics Facility Agreement).
Pursuant to the Begistics Facility Agreement, Begistics agreed to make available to Beyond (which is a company registered in Thailand) a term loan facility in an aggregate amount of THB 59,540,000 (cll 1.1, 2).
Beyond agreed to pay interest on the loan amount, which was to be calculated from the date of utilisation (Utilisation Date) until full repayment, at a rate of 15% per annum (cl 6.1). Beyond was required to repay the loan, together with all accrued and outstanding interest, in full on the “Earliest Termination Date”, which was one year after the Utilisation Date (cll 1.1, 4.1).
Pursuant to cl 8.1 of the Begistics Facility Agreement, Beyond agreed to cause M8 Holding to, amongst other things:
pledge 30,000 of the shares in Fernview held by M8 Holding in favour of Begistics to secure all obligations of Beyond under the Begistics Facility Agreement; and
execute, and provide to Begistics on the date of execution of the Begistics Facility Agreement, a share transfer form in respect of the 30,000 pledged shares.
Also on 25 December 2023, M8 Holding and Begistics entered into a Share Pledge Agreement, by which M8 Holding pledged 30,000 ordinary shares in Fernview (being the Disputed Shares) as security for Beyond’s obligations under the Facility Agreement. The Share Pledge Agreement recorded, in the definition of “Pledged Shares”, that the Disputed Shares were “equivalent to 30% (thirty percent) of the total issued shares of Fernview owned by [M8 Holding]”.
M8 Holding did not seek, or obtain, DDT’s consent to M8 Holding’s entry into the Share Pledge Agreement or to its granting of any further security interest over the Disputed Shares, despite those shares forming part of the M8 Fernview Shares which were subject to DDT’s fixed charge.
Clause 3.1 of the Share Pledge Agreement required M8 Holding to deliver to Begistics:
the original share certificates for the Disputed Shares; and
a pre-signed share transfer executed by M8 Holding for the transfer of the Disputed Shares (M8 / Begistics Transfer Form).
The Share Pledge Agreement defined the “Collateral” as comprising the Disputed Shares and the “Ancillary Rights” (being all rights, entitlements, benefits and so forth in respect of the Disputed Shares). Pursuant to cl 6.2 of the Share Pledge Agreement, M8 Holding gave the following representations and warranties in relation to the Collateral:
“6.2 The Collateral
(a) [M8 Holding] is the sole legal and beneficial owner of the Collateral and no other persons:
(i) will hold any of the [Disputed] Shares (or any Ancillary Rights in respect of the [Disputed] Shares) in Fernview; or
(ii) is entitled to acquire, or have issued to it, any [Disputed] Shares (or any Ancillary Rights in respect of the [Disputed] Shares) in [Fernview] and it has not otherwise disposed of the Collateral on the date of this Agreement;
(b) [M8 Holding] is entitled to freely dispose of the Collateral and to freely receive, exercise and dispose of all Ancillary Rights.
(c) The Collateral is not subject to any Security and is free from any other claims, third party rights or competing interests;
…
(f) All information in this Agreement in relation to the Collateral is true and accurate in all material respects.”
One of the directors of M8 Holding who signed the Share Pledge Agreement, by which M8 Holding made these representations, was Mr Saksitthisereekul. He had also executed the Specific Security Agreement on behalf of M8 Holding around six months earlier, by which M8 Holding had granted to DDT a fixed charge in respect of all of the M8 Fernview Shares (including the Disputed Shares).
Clause 8.1 of the Share Pledge Agreement provided as follows:
“8.1 Right of enforcement
(a) [Begistics] shall be entitled to enforce its Security created under this Agreement at any time after an Event of Default has occurred and [Beyond] fails to fully pay the Loan in accordance with the terms and conditions of the Facility Agreement (an ‘Enforcement Event’), the Security created by or pursuant to this Agreement is immediately enforceable and at any time thereafter, [Begistics] shall be entitled to cause the Security constituted under or pursuant to Clause 2 (Pledge) to become immediately enforceable in accordance with the applicable law …”
Pursuant to cl 12(a) of the Share Pledge Agreement, M8 Holding appointed Begistics as its attorney to, relevantly, execute and complete in favour of Begistics any transfers or other documents which Begistics might require to perfect its title over the Collateral.
By 27 December 2023, Beyond had drawn down a total amount of THB 30,000,000 under the Begistics Facility Agreement.
Begistics received from M8 Holding an undated share transfer form in respect of the Disputed Shares. However, Begistics did not receive a share certificate in respect of the Disputed Shares.
On 10 September 2024, Begistics registered its security interest over the Disputed Shares on the PPSR.
On 20 March 2025, Begistics issued a notice to Beyond demanding that the amount of THB 30,000,000 which had been advanced under the Begistics Facility Agreement be repaid in full within 7 business days.
On 1 April 2025, Begistics sent a “Notice of Enforcement” to M8 Holding which stated that, as a result of Beyond’s failure to repay the loan on the due date, an “Enforcement Event” had occurred under the Share Pledge Agreement, and Begistics was entitled to enforce its security over the Disputed Shares “and [would] proceed to do so without further notice to [M8 Holding]”.
On the following day, 2 April 2025, Begistics executed and dated the M8 / Begistics Transfer Form. The completed M8 / Begistics Transfer Form specified the “Date of Purchase” as 2 April 2025, and the “Consideration” as being “Pursuant to Share Pledge Agreement dated 25 December 2023”.
On 16 April 2025, Begistics’ former solicitors sent a letter to the directors of Fernview, enclosing a copy of the Share Pledge Agreement and a copy of the executed M8 / Begistics Transfer Form dated 2 April 2025. The letter:
stated that Begistics did not have a copy of the share certificate for the Disputed Shares, notwithstanding that M8 Holdings was obliged to deliver the share certificate pursuant to cl 3.1(a) of the Share Pledge Agreement;
noted that, according to an ASIC search, M8 Holding was the beneficial owner of 99,900 ordinary shares in Fernview; and
requested Fernview to register the transfer, enter the name of Begistics in Fernview’s register in respect of the Disputed Shares, and to issue a share certificate for the Disputed Shares in the name of Begistics.
On 19 May 2025, Begistics’ former solicitors sent a further letter to Fernview, noting that they had not received a response to the 16 April 2026 letter, and requesting confirmation that Fernview would register the transfer of the Disputed Shares and would issue a share certificate for them. This letter also stated that, failing any satisfactory response, Begistics intended to commence proceedings, without further notice to Fernview, for an order that this transfer be registered.
On 5 September 2025, Begistics’ current solicitors sent a letter to Fernview, enclosing the executed M8 / Begistics Transfer Form, referring to the earlier correspondence, and demanding that Fernview attend to the registration of this transfer by 19 September 2025, failing which Begistics would commence proceedings seeking orders pursuant to s 1071F, or alternatively, s 175 of the Act.
On 23 September 2025, Fernview responded to this correspondence, as follows:
“We refer to your letter dated 5 September 2025, and your other related correspondence.
We note that:
- Fernview Environmental Pty Ltd (Fernview Environmental) has received instructions from M8 Holding Ltd (M8H) not to action the requested share transfer, due to an on-going dispute with respect to the underlying agreement in the matter.
- M8H has entered into a Specific Security Agreement (SSA) with DDT Enviro Pty Ltd (DDT Enviro), in accordance with which M8H has granted a security interest (Security Interest) in respect of all of its shares in Fernview Environmental, in favour of DDT Enviro. It is our understanding that:
a. the SSA and the Security Interest remain in effect in favour of DDT Enviro Pty Ltd; and
b. DDT Enviro has priority over any purported right of Begistics to a transfer of the Fernview Environmental shares.
In the circumstances, it is not appropriate for Fernview Environmental to effect the transfer.”
On 17 October 2025, Begistics commenced this proceeding against Fernview.
Despite the terms of Fernview’s letter, which put Begistics on notice that DDT asserted that it had priority over any purported right of Begistics to a transfer of the Disputed Shares, Begistics did not join DDT as a defendant to this proceeding at the time of its commencement.
On 17 November 2025, a share certificate was issued by Fernview, recording M8 Holding as the registered holder of the M8 Fernview Shares.
At around the same time, the M8 Fernview Share Certificate was provided to Mr Rajeev Saraff, who is a director of DDT. The share certificate continues to be held by Mr Saraff at his residence in Singapore.
Since July 2023, Fernview has been in default of its obligation under the Convertible Note Agreement to pay interest to DDT on the amounts owing on the convertible notes.
As at 31 January 2026, the total interest payable by Fernview, and guaranteed by M8 Holding, under the Convertible Note Agreement was $1,670,415.
On 20 February 2026, DDT issued a demand to M8 Holding for payment of this sum. That amount remains unpaid.
(1) If a relevant authority in relation to a company:
(a) refuses or fails to register; …
a transfer … of securities of the company, the transferee … may apply to the Court for an order under this section.
(2) If the Court is satisfied on the application that the refusal or failure was without just cause, the Court may:
(a) order that the transfer … be registered; …
In Beck v Tuckey (2007) 213 FLR 152; [2007] NSWSC 1065 at [9], Brereton J observed that the purpose of s 1071F was to provide an easier remedy than rectification of a company’s share register and to widen the Court’s power to do justice to the parties in a dispute concerning the registration of a transfer.
The company and its directors do not bear any onus of establishing that there is “just cause” for refusing to register the transfer. Instead, the onus is on the applicant for registration to show an absence of “just cause” for the purposes of s 1071F: Beck at [9]; see also Leaver v Taxi Combined Services (Launceston) Pty Ltd (2002) 10 Tas R 362; [2002] TASSC 2 at [7] (Crawford J).
Nevertheless, where the applicant demonstrates that, objectively, there appears to be no “just cause” for the denial of the share transfer, the evidentiary onus may shift to the company and its directors to establish the existence of some “just cause”: Beck at [9].
In Beck at [9], Brereton J observed that:
“… while failure to give reasons does not of itself vitiate the decision or prove there is no just cause, at least where reasons are not required to be given, nonetheless, the failure to provide reasons may, in the context of the whole of the evidence, assist in the drawing of an inference that there is no good reason.”
In Verguier Pty Ltd v Ramelius Resources Limited [2019] FCA 796 at [66], White J suggested that the use of the adjective “just” in s 1071F may connote “elements of legitimacy and not just reasonableness or sufficiency”. However, his Honour did not find it necessary to explore this issue further in the circumstances of that case.
Where an applicant for registration establishes an absence of “just cause”, the Court has a discretion as to whether or not an order should be made: Leaver at [7]; In the matter of Alon Pty Ltd [2021] NSWSC 1021 at [53] (Rees J).
Begistics advanced three main submissions as to why Fernview did not have “just cause” for refusing or failing to register the transfer of the Disputed Shares, as follows:
first, Fernview did not have a valid reason for refusing to register the transfer because DDT “did not have a perfected security interest over the [Disputed] Shares”;
secondly, Fernview, DDT and their directors had “colluded and acted in breach of their directors’ duties [in] seeking to defeat [Begistics’] interests in the [Disputed] Shares”; and
thirdly, if DDT has a valid and enforceable security interest over the Disputed Shares, “the registration of the Transfer does not affect its security interest over the [Disputed] Shares”.
I address each of these contentions below.
Begistics’ submission proceeds on the basis that, if DDT’s security interest was not perfected, then Fernview could not have had “just cause” for refusing to register the transfer of the Disputed Shares.
However, it is difficult to see why this conclusion necessarily follows.
Fernview provided its reasons for refusing to register the transfer by way of its letter dated 23 September 2025 (see paragraph [37] above). In particular, Fernview stated the following matters:
M8 Holding had instructed Fernview not to “action” the transfer “due to an on-going dispute with respect to the underlying agreement in the matter”;
M8 Holding had entered into a Specific Security Agreement with DDT, pursuant to which M8 Holding had granted a security interest in respect of all of the M8 Fernview Shares in favour of DDT;
it was Fernview’s “understanding” that:
(a) the Specific Security Agreement and DDT’s security interest over the M8 Fernview Shares remained in effect; and (b) DDT had “priority over any purported right of Begistics to a transfer of the Fernview … shares”; and
in those circumstances, it was not appropriate for Fernview to effect the Transfer.
It was plainly a significant matter that the registered owner of the Disputed Shares (being M8 Holding) had expressly instructed Fernview that it should not “action” the transfer due to an on-going dispute concerning the underlying agreement pursuant to which the transfer was purportedly effected. If Fernview had proceeded to register the transfer, having been put on notice of this dispute by M8 Holding, Fernview would have been exposed to the risk of legal action in the event that it was subsequently established that, by reason of this dispute, the transfer should not have been registered.
Contrary to Begistics’ submission, this was not a case of a company refusing to register a transfer simply because a third party told it not to do so. It is tolerably clear, from the text of Fernview’s letter, that Fernview had ascertained from M8 Holding the nature of the on-going dispute concerning the transfer of the shares to Begistics and, in particular, that there was an issue as to whether DDT’s security interest had priority over any purported right of Begistics to register the transfer. In circumstances where this issue remained unresolved, Fernview formed the view that it was inappropriate to register the transfer and explained to Begistics that this was the case.
I do not read the statement that it was Fernview’s “understanding” that DDT had priority over any purported right of Begistics as Fernview expressing any concluded view on this issue. Instead, the statement is more naturally read, in the context in which it appears, as Fernview’s understanding of the reason given by M8 Holding as to why Fernview should not register the transfer.
Begistics appeared to suggest that, on being informed by M8 Holding that there was a dispute about Begistics’ entitlement to a transfer of the Disputed Shares, Fernview should have made its own assessment of the competing claims to the Disputed Shares. In its reply submissions, Begistics contended that:
“A refusal is not supported by ‘just cause’ merely because a third party told [the company] not to, or because a third party asserts a claim over the Shares. Fernview must only refuse registration with a proper basis, not merely adopting a third party’s position or request. Fernview’s refusal was not premised on any alleged defect or issue with the Transfer”.
I do not accept the contention that Fernview was, by its response, “merely adopting a third party’s position”. As explained above, in its response of 23 September 2025, Fernview was not expressing any position on the priority dispute, let alone “adopting” DDT’s position on that dispute. Instead, the letter explained that, in circumstances where there was an on-going dispute as to priority, Fernview did not consider it “appropriate” to effect the transfer.
Further, I do not accept Begistics’ contention that, in order to have a “proper basis” to refuse to register the transfer of the Disputed Shares, Fernview needed to have reached the view that there was some “defect” with the transfer.
Irrespective of whether or not DDT’s claim as to priority was correct, the fact that this claim, and the basis for it, had been relayed to Fernview, coupled with the fact that the registered owner of the Disputed Shares had expressly instructed Fernview not to register the transfer by reason of this “on-going dispute”, provided a reasonable, sufficient and legitimate basis for Fernview to decline to register the transfer while this priority dispute remained unresolved between the relevant parties.
There was no need for Fernview to resolve the priority dispute itself, let alone resolve it correctly, before it could have “just cause” for refusing to register the transfer.
The position might have been different if Fernview ought to have realised that DDT’s assertion of priority was obviously untenable, but Begistics did not, in its submissions, identify why that was the case.
Begistics did not dispute the first two matters outlined in Fernview’s letter of 23 September 2025, namely, that M8 Holding and DDT had entered into the Specific Security Agreement, pursuant to which M8 Holding had granted a security interest in respect of all of the M8 Fernview Shares in favour of DDT; and that the Specific Security Agreement and the security interest over all of the M8 Fernview Shares remained in effect in favour of DDT.
However, Begistics did dispute the third matter outlined in Fernview’s letter, namely, that DDT had priority over any right of Begistics to a transfer of the Disputed Shares. In particular, Begistics contended that DDT’s security was “not perfected”.
In response, DDT referred to s 21(1)(b) of the Personal Property Securities Act 2009 (Cth) (PPSA), which provides that a security interest in collateral is “perfected” where all of the following apply:
first, the security interest is attached to the collateral;
secondly, the security interest is enforceable against a third party; and
thirdly, subsection 21(2) of the PPSA applies.
As regards the first requirement, s 19(2) of the PPSA provides, relevantly, that a security interest “attaches to collateral” when the grantor has rights in the collateral, and either value is given for the security interest, or the grantor does an act by which the security interest arises.
In the present case, M8 Holding was the beneficial owner of the M8 Fernview Shares at the time of entry into the Specific Security Agreement (and therefore had rights in the collateral); and DDT, by entering into the DDT Loan Agreement, gave value for its security interest over the M8 Fernview Shares.
As regards the second requirement, s 20(1) of the PPSA provides that a security interest is “enforceable against a third party” in respect of particular collateral only if the security interest is attached to the collateral (which has already been addressed above) and, relevantly, “the secured party has perfected the security interest by control”. Section 27 of the PPSA deals with the control of “investment instruments” (which includes shares in a body). Section 27(3) provides as follows:
Control of investment instruments evidenced by certificates
(3) A person (the controller) has control of an investment instrument that is evidenced by a certificate if:
(a) the controller has possession of the instrument; and
(b) the controller (or a person who has agreed to act on the instructions of the controller) is able to:
(i) transfer the instrument to the controller, or to another person; or
(ii) otherwise deal with the instrument.
In the present case, DDT has possession of the M8 Fernview Share Certificate (being the share certificate issued on 17 November 2025 in respect of all 99,900 of the M8 Fernview Shares) and also has possession of the M8 / DDT Transfer Form (which has been executed by M8 Holding in respect of all of the M8 Fernview Shares). As explained at paragraph [14(7)] above, the Specific Security Agreement permitted DDT, on the occurrence of an event of default, to execute and lodge this transfer. DDT relied, in its submissions, on several events of default, including that M8 Holding had, in breach of the Specific Security Agreement, purported to pledge 30,000 of the M8 Fernview Shares to Begistics.
As regards the third requirement, s 21(2) of the PPSA applies either because DDT’s security interest with respect to the M8 Fernview Shares is the subject of an effective registration on the PPSR (see s 21(2)(a)), or because DDT has control of those shares (see s 21(2)(c)(iii)).
DDT’s security interest was registered on the PPSR on 6 June 2023. The relevant registration identifies M8 Holding as the grantor and identifies the collateral as being all of the shares held by M8 Holding in Fernview.
Begistics’ security interest in the Disputed Shares was not registered on the PPSR until 10 September 2024.
In Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd [2017] NSWSC 1230 at [64], Ward CJ in Eq (as her Honour then was) observed that it is “important to recognise that the PPSA (unlike the Torrens system in relation to land) is a ‘notice-based’ system”. The purpose of registration is to enable the existence of the security interest in the collateral to be searched and ascertained. Thus, “registration of a claimed security interest on the PPSR puts someone searching the register on notice of potential encumbrances”: Auburn Shopping Village at [66].
The only matters to which Begistics referred in its written submissions as raising doubt about the “perfection” of DDT’s security interest were as follows.
First, Begistics submitted that DDT had “failed to evidence the value said to be given for the security”. This submission ignores that the Specific Security Agreement expressly states (in its Recitals and cl 2.2) that the security over the M8 Fernview Shares was given in consideration for DDT entering into the Transaction Documents (including the DDT Loan Agreement) at M8 Holding’s request.
Secondly, Begistics contended that while DDT had asserted that the Transaction Documents, including the Specific Security Agreement, were entered on around 6 June 2023, it had failed to provide “objective evidence” that this was the case (in circumstances where those agreements were undated). However, the fact that DDT’s security interest in respect of the M8 Fernview Shares was registered on the PPSR on 6 June 2023 provides objective support for the contention that the Specific Security Agreement was entered on that date.
Thirdly, Begistics submitted that, although DDT has possession of both the M8 Fernview Share Certificate and the M8 / DDT Transfer Form, the M8 Fernview Share Certificate was only issued, and provided to DDT, in November 2025, and it is unclear when the M8 / DDT Transfer Form was provided to DDT. It is difficult to see why the timing of the provision of those documents matters, in circumstances where there is no dispute that DDT has possession of each of these documents, and where DDT’s security interest was registered before Begistics’ security interest. As DDT submitted, the fact that its security interest was perfected by control some time after its registration does not affect the validity of its earlier registration.
In any case, it is unnecessary to make any determination of the priority dispute on this application.
It is sufficient for present purposes that Fernview had a reasonable and legitimate basis for concluding, as outlined in its letter of 23 September 2025, that there was an ongoing and genuine dispute about whether DDT’s security interest had priority over any purported right of Begistics to a transfer of the Disputed Shares.
In those circumstances, I am satisfied that Fernview had “just cause” for refusing to register the transfer of the Disputed Shares.
In its written submissions in chief, Begistics contended that Fernview, DDT and their directors had “colluded and acted in breach of their directors’ duties [in] seeking to defeat [Begistics’] interests in the [Disputed] Shares”.
This contention can be dealt with briefly.
Begistics did not lead any evidence in support of the contention. Its written and oral submissions on the issue were pitched at a high-level and devoid of the specificity that is necessary for any such allegation. For example, there was no identification of the duty that was said to have been breached, let alone the person(s) who breached it, or the conduct which amounted to a breach.
DDT led evidence from its director, Mr Saraff. Begistics elected not to cross-examine him, and therefore did not put to him, or give him an opportunity to respond to, any allegation of collusion or breach of duty. In those circumstances, I do not consider that, as a matter of fairness, it is open to Begistics to advance this contention.
In any case, the only matters referred to in Begistics’ written submissions in relation to this contention were of little consequence. For example, Begistics pointed out that DDT did not appear to have taken, prior to applying to be joined to this proceeding, any steps to obtain the M8 Fernview Share Certificate. However, it is difficult to see why that is a significant matter, in circumstances where M8 Holding was, from the time of entry into the Specific Security Agreement, obliged to provide the M8 Fernview Share Certificate to DDT. Further, the solicitor for Begistics stated in opening address that he did not “ask the Court to draw adverse findings” regarding the late provision of the M8 Fernview Share Certificate to DDT.
For those reasons, I reject Begistics’ contentions of collusion and breach of directors’ duties (insofar as they were pressed).
Begistics submitted that the priority dispute to which Fernview referred in its letter of 23 September 2025 did not provide “just cause” for refusing to register the transfer of the Disputed Shares, because, if DDT had a valid security interest over those shares, the registration of the transfer would not affect or defeat its rights.
This submission ignores that it is DDT’s contention that M8 Holding is in default of the Specific Security Agreement, including by reason of having pledged the Disputed Shares to Begistics, such that DDT is entitled to enforce its charge over all of the M8 Fernview Shares (including the Disputed Shares) and to lodge with Fernview the M8 / DDT Transfer Form which has been executed by M8 Holding. DDT submitted that the registration of the transfer of the Disputed Shares to Begistics would interfere with DDT’s exercise of those rights.
Again, it is unnecessary to resolve this dispute. The important point for the present application is that the existence of this dispute – to which Fernview averted in its letter of 23 September 2025 – supports the conclusion that Fernview had “just cause” for refusing to register the transfer of the Disputed Shares to Begistics while the dispute was “on-going” and unresolved.
Correction of registers
(1) A company or registered scheme or a person aggrieved may apply to the Court to have a register kept by the company or scheme under this Part corrected.
…
(3) If:
(a) the Court orders a company or scheme to correct its register of members; and
(b) the company or scheme has lodged a list of its members with ASIC;
the company or scheme must lodge notice of the correction with ASIC.
Although this provision gives statutory authority for the correction of a company’s register by the Court, the correction is ordered applying the principles of equity: Alon at [57]. As such, the relief is equitable in nature and an order seeking rectification under s 175 of the Act is discretionary: Alon at [57] citing Kirwan v Cresvale Far East Ltd (in liq) (2002) 44 ACSR 21; [2002] NSWCA 395 at [335] (Young CJ in Eq); In the matter of Motasea Pty Ltd (2014) 97 ACSR 589; [2014] NSWSC 69 at [47] (Black J); and In the matter of Centura Global Holdings Pty Ltd (2016) 111 ACSR 185; [2016] NSWSC 62 at [53] (Black J).
An applicant for an order correcting a company’s share register must ordinarily establish some personal equity that the Court will protect: Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1 at 51 per Fullagar J; [1950] HCA 54. A member of a company shows, at least prima facie, such an equity by establishing that a name is wrongly included in, or wrongly omitted from, the company’s register: ibid. and Beck at [7].
Begistics did not, in its written submissions, address the basis for its application for relief under s 175 of the Act.
Similarly, Begistics’ solicitor did not refer to the s 175 application in oral address, until he was asked, at the end of his submissions, to explain the basis for the application. His response was to the effect that “[Fernview’s] register is presently incorrect” because Begistics has a “validly executed transfer”, and therefore, has the right to be the “holder of the Disputed Shares”.
However, this submission does not grapple with the issue whether DDT’s security interest has priority over Begistics’ asserted right to a transfer of the Disputed Shares. Nor did Begistics seek to have that question resolved in this proceeding. Instead, the solicitor for Begistics stated as follows in opening address:
“The plaintiff does not ask the Court to determine priority as between two security interests, and if that question needs to be litigated at all, it can be litigated separately without affecting the answer to the question that is before the Court today.”
I accept DDT’s submission that any determination of whether Begistics has an equity to have the register of Fernview “corrected” requires determination of this priority dispute. Further, in order to determine this dispute, M8 Holding would be a necessary party, particularly given that:
the Disputed Shares are currently registered in the name of M8 Holding; and
the resolution of this dispute depends on, among other things, the interpretation of agreements which M8 Holding entered with, respectively, DDT and Begistics, and on the existence of any event of default under such agreements.
For those reasons, I am not satisfied that Begistics has established, on this application, any entitlement to relief under s 175 of the Act.
For the reasons set out above, I have determined that Begistics’ claim for relief pursuant to s 1071F(2), or alternatively s 175, of the Act must be dismissed. It follows that the application for an order under s 1071H of the Act, compelling Fernview to issue a share certificate to Begistics in respect of the Disputed Shares, must also be dismissed.
Costs will follow the event.
Accordingly, I make the following orders:
The Originating Process filed 17 October 2025 is dismissed.
The Plaintiff pay the Second Defendant’s costs of the proceeding, as agreed or assessed.
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(2007) 213 FLR 152
(1950) 82 CLR 1
(2002) 10 Tas R 362