1. After he purchased the Ute Mr Pedler behaved like all other purchases of vehicles, he registered the Ute in his name. The evidence before the tribunal[5] was Mr Pedler renewed his registration of the Ute with the Roads and Traffic Authority (Service NSW) on 15 December 2017,14 June 2018, 16 July 2019, 14 June 2020, and 15 June 2023. Based on the details on the Service NSW receipts and the Renewal Notice sent to Mr Pedler on 15 June 2023 it is reasonable for the Tribunal to assume the Ute was registered with Service NSW every year from 2017 until 2024 in the name of Samuel Joseph Pedler at the address stated on the Registration Notice, which is the same address provided to the Tribunal in Mr Pedler's application for review of a decision.
2. On 16 November 2023, a solicitor acting for Mr Pedler lodged a completed Amendment Statement - Application Form with the PPSR seeking removal of the CBA's 4 June 2020 registration identified as 202006040022582 from the PPSR.
3. On 14 March 2024, Mr Pedler was notified that the Delegate had made a decision not to remove Registration 202006040022582 from the PPSR. The notice advised Mr Pedler that as of 14 March 2024, the Registration remains on the PPSR.
4. On the 10 April 2024, Mr Pedler lodged an Application for Review of a Decision in the Administrative Review Tribunal.

1. A great deal occurred with respect to the fortunes of Just Magic Plumbing between the date Mr Pedler purchased the Ute in September 2017 and the date Mr Pedler attempted to sell the Ute in November 2023. The salient facts are set out in in paragraphs [17] - [25] below.
2. On 20 April 2018, Mr Pedler submitted, and it was not disputed, that the CBA made an application to wind up Just Magic Plumbing, presumably on the grounds Just Magic Plumbing was insolvent[6].
3. On 20 September 2018, a Notice of Resolution to Wind Up Just Magic Plumbing was lodged with ASIC notifying ASIC the shareholder (Mr McMillan) had passed a Special Resolution to wind up Just Magic Plumbing. On the same day a Form 205M - Notice of Resolution to Wind Up a Company was filed by Mr Amos of Amos Insolvency, the newly appointed external administrator[7].
4. On the 27 September 2018, a Notice of The Appointment of Mr Amos as an external administrator was filed with ASIC[8].
5. On 3 October 2018, the Federal Court of Australia appointed Mr Nicols as the court appointed Liquidator to Just Magic Plumbing[9].
6. On the 7 November 2018, the CBA was appointed as the Controller of Just Magic Plumbing. In respect of the CBA's appointment as a "Controller (other than a receiver or managing controller)"[10],presumably this appointment was made because the CBA had an enforcement right under the PPSA to enforce its 2015 security interest Registration 201512140060545. The collateral to which the security interest was attached was identified by the Vin number on the Verification Statement provided under s.156 of the PPSA to the PPSR. The relevant Verification Statement was the 2015 Verification Statement 201512140060545.
7. The CBA continued in the role of Controller, other than as a receiver. In that role the CBA had the power to deal with all the secured assets of Just Magic Plumbing the subject of a security interest.
8. Between 20 September 2018, and 1 November 2021, Just Magic Plumbing was externally administered. Importantly from 3 October 2018, Just Magic Plumbing was under the control of a Court appointed Liquidator.
9. On the 28 October 2020, a Form 5603 - End of Administration Return was filed with ASIC. On the 30 October 2020, the Liquidator filed an ASIC Form 578 requesting deregistration of Just Magic Plumbing as all the company's affairs had been fully wound up and the Liquidator was no longer required. On the same day Mr Nicols filed a Form 505 with ASIC to notify ASIC he had ceased to act as the court appointed Liquidator.
10. Just Magic Plumbing was deregistered by ASIC under s.601AB of the CA on 10 January 2021.

1. On 14 December 2015, the CBA made a loan to Just Magic Plumbing the "borrower", Loan Agreement Number Aaux407691. The loan was for the purpose of acquiring a motor vehicle, the Ute the subject of these proceedings. The loan was secured by a "first registered charge over the goods"[11].
2. Under the Loan Agreement the "borrower charged the motor vehicle in favour of the CBA"[12].
3. On 14 December 2015, at 16:27:39 the CBA lodged a "Verification Statement - Financing Statement under s.156 of the PPSA. The registration number is recorded as 201512140060545. The registration is listed as a security interest. The registration end time is stated as 18 December 2020. The security is described as commercial property motor vehicle. Under the heading NEVDIS no details other than the vehicles Vin number are recorded [13].
4. On 19 November 2018, a 504D Notification of the appointment of CBA as Controller was lodged with ASIC.
5. On 13 November 2019, the CBA lodged with the PPSR a Verification Statement - Financing Change Statement - Discharged Registration. The PPSR registration number was 201512140060545. The registration end time was stated as11:54:43. The grantor details given were Just Magic Plumbing; the collateral the security interest attached to was stated as the Ute[14]. (emphasis added)
6. On 13 November 2019, the CBA lodged a Verification Statement - Financing Statement. The registration kind was again listed as a security interest. The PPSR registration number is stated as 201911130023155. The registration start time is sated as 13 November 2019 at 11.56.43. The registration end time is stated as 12 November 2026 at 23:59:59. The grantor is stated as Just Magic Plumbing, without reference to the fact Just Magic Plumbing was in liquidation. The collateral to which the security interest was attached is stated as a commercial vehicle, the Vin number recorded is the Ute's. On this registration additional information about the Ute is set out under the heading additional motor vehicle details - NEVDIS. The motor vehicle is described as light commercial, "tabletop with FITT, silver or chrome colour, registration plate number DBZ18J, make Mazda, model 32, engine number P5AT21222337, State vehicle registered NSW, year /month of compliance 2015-11". The vehicle is not recorded as written off or as stolen. The fact that this detail is recorded in the PPSR registration on 13 November, but not in the registration on 14 December 2015 would ordinarily suggest the Ute remained part of the inventory of Just Magic Plumbing, which was not the case. (emphasis added).
7. On the 15 November 2019, the CBA lodged Verification Statement - Financing Change Statement - Discharged Registration. This statement stated "this PPSR registration is discharged on 15 November 2019 at 06.02:56". The PPSR registration number is stated as 201911130023155. The grantor is listed as Just Magic Plumbing, the collateral is identified as commercial property, the Vin number remained that of the Ute. The additional details listed under the heading NEVDIS remain unaltered. (emphasis added)
8. On the 4 June 2020, the CBA lodged a Verification Statement Financing Statement under s.159 of the PPSA. The registration number for this Financing Statement is 202006040022582. The start time for this financing statement is 4 June 2020 at 11.34.06. The end time is stated 4 June 2027 at 23:59:59. The grantor is listed as Just Magic Plumbing, the collateral to which the security interest purportedly attached was the Ute. The additional Ute details remained unchanged. It is this Financing Statement that is the subject of these proceedings. (emphasis added)
9. On 16 November 2023, the Australian Financial Security Authority (AFSA) notified the CBA that Mr Pedler had lodged an Amendment Statement Application Form requesting removal of registration 202006040022582 from the PPSR by ending the effective registration. AFSA requested the CBA "provide evidence there is a security agreement and an ongoing debt"[15].
10. On 22 November 2023, the CBA responded to AFSA attaching a copy of the Equipment Loan Schedule dated 14 December 2015. That letter stated the goods over which CBA held a security were described as "the motor vehicle". Further the letter from the CBA referred to the borrower as Just Magic Plumbing Pty Ltd and goes on to state "the borrower charged the motor vehicle in favour of the CBA" and "the amounts remain due and payable by the borrower under the loan agreement. These amounts are secured by CBA's security interest in the motor vehicle"[16]. It is notable that these comments were made in a letter from the CBA to the Delegate in November 2023, almost 3 years after the borrower under the loan agreement had been liquidated and deregistered by ASIC (emphasis added).
11. The CBA's letter went on to state "CBA's position is that the security interest in the motor vehicle is valid and that registration 202006040022582 should remain in respect of the motor vehicle". The letter then set down the following timeline of events:

"14 December 2015: the Loan Agreement is entered into and registration 201512140060545 is made by CBA against the Motor Vehicle".

"Around June 2017: Mr Pedler states that he purchased the Motor Vehicle. The CBA did not provide its consent to any sale of the motor vehicle, nor did it provide a discharge of its security interest in respect of the motor vehicle. Mr Pedler has not provided any evidence of a search of the PPSR carried out by him at the time of the purchase. Had a search been conducted, it is the CBA's position that it would have disclosed CBA's security interest in the Motor Vehicle".

"27 September 2018: the Borrower enters into Administration CBA's registration 201512140060545 was listed on the PPSR at this time".

"13 November 2019: CBA's registration 201512140060545 against the Motor Vehicle lapses. CBA's position is that notwithstanding the lapsing of its registration, its security interest in the Motor Vehicle remained as it had not been released or otherwise extinguished". (emphasis added)

"4 June 2020: CBA makes registration 202006040022582 against the Motor Vehicle on the basis of its continuing security interest in the Motor Vehicle pursuant to the terms of the Loan Agreement". (emphasis added)

"10 January 2021: the Borrower is deregistered. Notwithstanding the deregistration of the Borrower, amounts remain due and payable by the Borrower to CBA pursuant to the Loan Agreement, with such amounts secured by CBA's security interest in the Motor Vehicle."[17] (emphasis added).

1. Following receipt of the CBA's letter, between the 22 November 2023 and 15 December 2023, the service officer at AFSA engaged in correspondence with the parties.[18] On 16 November 2023, the Registrar issued an Amendment Notice of an Amendment Demand to the CBA under s 180(1) PPSA (Amendment Notice)
2. On 14 March 2024, the Delegate "after considering the information provided by the [CBA] and other relevant information" made a decision under Subsection 181(1) of the PPSA not to register a Financing Change Statement in accordance with the Amendment Demand lodged by Mr Pedler. On 18 March 2024, Mr Pedler sought a Statement of Reasons in relation to the Delegate's decision. (emphasis added)
3. On 15 April 2024, the Delegate provided a statement of reasons. In essence, for the reasons extracted below at [40] - [47] the Delegate held "decisions to amend registrations in response to amendment demands under Section 181 of the PPSA are not made on the 'balance of probabilities. For the purpose of my decision, the test I applied was whether I suspected on reasonable grounds that the amendment demand was not authorised under Section 178 of the PPSA" [19].
4. The delegate then set out the table in s 178(1) extracted below before stating "any Amendment will not be authorised under section 178 of the PPSA if, among other things, any of the collateral described in the registration secures any obligation (including a payment) owed by a debtor to the secured party"[20]( emphasis added)

No collateral described in the registration secures any obligation (including a payment) owed by a debtor to the secured party.

Amendment to end effective registration (including an amendment to remove the registration).

The particular collateral in which the person has an interest does not secure any obligation (including a payment) owed by a debtor to the secured party.

1. "Subsection 32 (1) of the PPSA provides that a security interest in collateral survives any dealings which give rise to proceeds unless the secured party expressly or impliedly authorise the dealing".[21] ( emphasis added)
2. "Section 267 of the PPSA provides that if a security interest is unperfected at the time of the making of an order for the winding up of a grantor company or other prescribed events the security interests will be rendered ineffective and will vest in the grantor immediately prior to the making of the winding up order or other prescribed event"[22].
3. "Part 2.5 of the PPSA provides the framework under which property may be taken free of pre-existing security interests. Part 2.5 of the PPSA does not recognise deception on the part of a grantor towards a purchaser as a criterion by which a person may take property free of pre-existing security interests".[23]
4. "The written loan agreement made between the grantor and the secured party gave the secured party a security interest in the collateral which secured the grantor's obligation to repay monies advanced under the loan agreement."[24] (emphasis added)
5. "Subsection 32 (1) of the PPSA provides that a security interest in collateral survives the sale of the collateral unless the secured party expressly or impliedly authorised the sale. There was no actual evidence before me that the secured party consented to, or even knew of, the sale of the Collateral to the Applicant. Therefore, the Secured Party's security interest survived the sale of the Collateral to the Applicant. The fact that the Registration, which merely perfected an existing security interest, was made after the sale of the collateral to the Applicant is not relevant to whether, the Registration secured an obligation (including a payment) owed by a debtor to the Secured Party."[25] (emphasis added)
6. "Section 267 of the PPSA did not apply in this case to extinguish the Secured Party's security interest in the Collateral. This was because the initial registration was in place at the time of the Grantor's liquidation. This meant that the security interest was perfected at the time and Section 267 of the PPSA did not apply to vest the security interest in the Grantor immediately prior to the Grantors liquidation."[26] (emphasis added)
7. "Additionally, the deregistration and vesting of the property of the Grantor in ASIC did not extinguish any security interest that had been granted prior to deregistration. Therefore, the deregistration of the Grantor did not impact on the validity of the security interest that was granted over the Collateral of the secured party."[27] (emphasis added)

The terms of the CBA's Equipment Loan - Current Terms and Conditions For Business Finance

1. As stated above, the CBA entered into an Equipment Loan (the Loan) on the 14 December 2015. Presumably the borrower was Just Magic Plumbing because the name of the borrower, the description of the security, the authorisation for the CBA to take a direct debit from the borrowers account with the CBA, the signature of the director of the borrower, all details of the guarantee making the guarantor " _legally responsible for the borrowers obligation to the lende_r "(CBA), where heavily redacted in the copy of the Equipment Loan Schedule provided to the Delegate [28]. Suffice it to say the Loan made by the CBA was secured by a first registered charge over the goods. The goods were described as 1 new Mazda bt-50 dual cab vin or chassis number MMOUROYF100510742. Further the loan appears to have been guaranteed, although the details of the guarantor are blank and finally the borrower authorised a direct debit from the borrower's account with the CBA.
2. The schedule setting out the terms and conditions for business finance states, among other things, that by signing this document the borrower agrees to abide by all the terms and conditions in this document, including, the borrower:
   1. Owns the goods or will own them when the CBA advances the loan to the borrower,
   2. Will not part with possession of the goods without the CBA's prior written consent,
   3. Grants the CBA entitlement to terminate the contract and the borrowers right to possession of the goods, to repossess and sell the goods and to sue the borrower for any remaining money the borrower owes the CBA,
   4. Charges the goods to the CBA,
   5. Notifies the CBA if the borrower becomes aware the borrower is in default or about to default, including if there is any material litigation, dispute or claim made against the borrower or the borrower's business,
   6. Must do anything the CBA asks to enable the CBA to obtain effective title to the goods as the CBA reasonably requires exercising the CBA's rights,
   7. Not sell, mortgage, pledge, charge, let hire or otherwise dispose of the goods or the borrower's rights under the contract without the prior written permission of the CBA,
   8. Make all payments due under the loan and perform all obligations including paying money,
   9. Indemnify the CBA for all monies, costs or expenses incurred in preserving the CBA's rights under the contract on a full indemnity basis including any expenses connected with tracing or recovering the goods or attempting to do so,
   10. Must ensure the borrower is not in default under the contract. The Term Default included a large number of events, including, among other things;
       1. if anything happens that in the CBA's reasonable opinion means the borrower will not meet the obligations under the contract,
       2. the borrower proposes to enter into an arrangement for the benefit of the borrowers' creditors generally,
       3. the goods or property used as security are lost, stolen, seized, sold or damaged beyond repair,
       4. the borrower fails to pay an amount owed to the CBA on time,
       5. property used as security is, among other things, sold,
       6. a court order is issued against the security property or any other of the borrower's assets,
       7. the borrower fails to pay an amount owed to the CBA on time,
       8. the borrower takes any action to start a winding up,
       9. an administrator or provisional Liquidator is proposed or approved,
       10. the CBA decides there has been any unacceptable material change in the legal or beneficial ownership, management, or control of the company,
       11. a receiver is appointed over the company or any part of it,
       12. the borrower or a guarantor become insolvent or subject to any form of administration, or a receiver or manager is appointed over any of the borrower's assets. (emphasis added)
3. If the borrower defaults, the terms of the loan give the CBA the power to enforce the contract and sue the borrower for the money owed, to take possession of the secured property, to sell that property, to appoint a receiver to do so, or to appoint a receiver or other controller to do anything the CBA considered to be in its interests. Further, the default provisions impose an obligation on the borrower to pay any reasonable costs, expenses, and losses the CBA incurs in exercising its rights under the contract, including the charging of default interest (emphasis added).
4. Under the heading "General" the CBA had the power to "enforce this contract before or after the CBA enforces its rights under any security".
5. Under the heading Indemnity the borrower agreed to indemnify the CBA "against any and all liability, loss, including consequential or economic, costs or tax we have to pay due to", among other things, the CBA exercising its rights under the contract, or the borrower or any other party giving false or misleading information or false declarations, or the borrower breaching or repudiating the contract. (emphasis added)

"I don't fully understand all of the legal details that are included in the PPSR's document... But they do show me that the Commonwealth Bank let their registration lapse or discharged it in 2019, when I already owned the Ute, and then recommenced it in 2020 without checking if Magic Plumbing still owned it, for reasons which are not clear to me. In 2020 I owned the Ute, and it had been registered to me since 2017". > > "The Commonwealth Bank also did not take action against the company or the person they lent the money to even though they were part of the winding up of that company. Instead, they are using their position to try and recover money from me which they lent to someone else". > > "I think the Commonwealth Bank should be required to explain to the Tribunal why they have not tried to get the money back from Magic Plumbing or from the plumber who sold the car to me I did not know anything about the PPSR, and yet I am the one having to fight this. Instead, the Commonwealth Bank with all its power and money did nothing about trying to get the money from the person they lent it to and are hiding behind the PPSR, despite having let their registration lapse for unknown reasons. They are also guilty of not checking the registration of the car when they took out the second registration with the PPSR, or they would have found out that it had ready been sold". > > "I do not know how much the Commonwealth Bank lent to Magic Plumbing and what they did about getting the money back and whether it is more than what I paid for the car." > > "The Bank let the registration lapse when they should have used it to take back the car, instead of letting it be sold to an innocent party. Or at least they should have checked in 2020 whether the car was still registered to Magic Plumbing, instead of waiting for the person who wanted to buy the car from me to check with the PPSR'. > > "The car is the only asset I have. I do not have business experience or legal experience. I believe most people in my position would not know to check the PPSR when they buy a car. PPSR should not be used to protect large corporate banks who should have protected themselves properly" (emphasis added) > > "The PPSR registrar should also have checked that the car was not owned or registered to Magic Plumbing in 2020 when they accepted a new PPSR registration and should have refuse the registration ...[29]".

1. On the 12 December 2014, the Delegate requested that the CBA consider making an Application to join the proceedings pursuant to Section 22 of the Administrative Review Tribunal Act 2024 (Cth). In that letter the Delegate specifically asked the CBA to clarify the following facts;
   • Why the CBA discharge the Personal Property and Securities Registry (PPSR) registration number 201512140060545 over the collateral described as a motor vehicle with the Vin number MMOUROYF100510742 on 13 November 2019 when it was expected to expire in December 2020.
   • The circumstances which resulted in CBA making the attached second PPSR registration on 4 June 2020, being registration number 202006020022582.
   • Outline what attempts CBA has made to enforce their interest in the collateral to date, and if no attempts have been made, why".
2. On the 19 December 2024, the CBA responded to the Delegate and advised "the Bank made a decision on 14/03/24 that the registration would remain on the asset in question". Further in that email correspondence the CBA advised the Delegate that "Based on the circumstances, the bank is open to review a commercial settlement with the applicant/purchaser in order to remove the security interest in relation to registration 202006040022582".
3. On the 10 January 2025, an Arrears Management Specialist from the Equipment Finance Customer Care Group -Credit Structuring Risk Management at the CBA sent a further email to the Delegate providing the following information:
   • "13 November 2019: CBA's registration 201512140060545 against the Motor Vehicle lapses. CBA's position is that notwithstanding the lapsing of its registration, its security interest in the Motor Vehicle remained as it had not been released or otherwise extinguished."
   • "4 June 2020: the CBA makes registration 202006040022582 against the Motor Vehicle on the basis of its continuing security interest in the Motor Vehicle pursuant to the terms of the Loan Agreement."
   • The Bank to date has attempted to enforce its rights via the engagement of a mercantile agent as a means to recover the Banks security. At present, the Bank has been unsuccessful in locating the asset as well as the Bank's customer." (emphasis added)
4. The Tribunal notes that the email extracted at [56] from the CBA's representative neglected to make mention that on 13 November 2019, the CBA lodged with the PPSR a Verification Statement - Financing Change Statement - Discharged Registration, Discharging Registration 201512140060545, the registration did not lapse it was formally discharged by the CBA . Further no mention was made of a second registration made on the same day several minutes later, Verification Statement - Financing Statement for the same loan, which was given the Registration number 201911130023155, listing a company under the control of the Liquidator as the grantor and the collateral as a vehicle no longer registered with the Roads and Traffic of Authority New South Wales in the name of the company. Finally, it was not disclosed that two days later the CBA lodged with the PPSR a Verification Statement - Financing Change Statement - Discharged Registration, discharging registration 201911130023155. (emphasis added).

1. The Delegate's counsel submitted that the central question for the Tribunal was "whether there is a basis for a reasonable suspicion that the amendment was not authorised under Section 178 or, more specifically, that collateral described in Registration 2 (the vehicle)" (referring to the 2020 registration) "does in fact secure an obligation owed by a debtor to the secured party."[30]( emphasis added)
2. Counsel for the delegate correctly submitted "the delegate's power to refuse an amendment is conditional on a subjective jurisdictional fact namely, the formation of suspicion on reasonable grounds that the amendment is not authorised"[31], citing the decisions in George v Rocket [1990] HCA 26; (1990) 170 CLR 104, Correa v Whittingham [2013] NSWCA 263,[159]at [159], and Thoms v Commonwealth of Australia [2022] HCA 20; (2022) 401 ALR 529 at [58].
3. Counsel referred to the requirements of s.181(1) PPSA that provides that after the end of the notice period (s.180(3)) the Statute imposes a mandatory obligation on the Registrar to register a Financing Change Statement amending or removing the registration in accordance with the amendment demand. The only reason the statue allows for the Registrar not amending an amendment demand is "the Registrar suspects on reasonable grounds that the amendment is not authorised under s.178". Counsel for the Delegate acknowledged that reasonable suspicion for the purposes of s 181(1) PPSA "at least requires 'some factual basis for the suspicion must be shown' " ..."when a statute prescribes there must be 'reasonable grounds' for a state of mind - including suspicion - 'it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person' " citing Nafady v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1434 [45[32]], but went on to argue the threshold of evidence necessary to ground a reasonable suspicion for the purposes of the PPSR was low.
4. Counsel for the Delegate further submitted that the effect of the transfer "was to change the grantor from the Company to the applicant"[33]. This submission relied on the definition of 'grantor' which encompasses ' a person who has an interest in personal property to which a security interest is attached (whether or not the person owes payment or performance of an obligation secured by the security interest )': Also within the definition of grantor is a transferee of an interest of such a person; citing PPSA s. 10."[34]
5. It was further submitted on behalf of the Delegate that as the "change in grantor from the Company to the applicant has never been reflected on the Registry (either by Registration 1 (referring to the 2015 Financing statement) or 2 (referring to the 2020 Financing Statement),save for the operation of Section 34 of the PPSA, failure by the Bank to reflect the change in grantor on the Register made registration ineffective from the time of the transfer"
6. Counsel for the Delegate then submitted a defect may arise because of a transfer_[35]_of the type mentioned in Section 165(c) (presumably counsel was referring to s.165(b)). Counsel then referred to the note to Section 34(1) and Section 166(1)(a)(ii), in the context of a transfer, and submitted that unless a new grantor's details are registered, the original secured party's registration may be ineffective under Section 165.
7. The argument advanced by the Delegate was that essentially after the transfer the grantor was the applicant, Mr Pedler, not the company borrower (Just Magic Plumbing) who had executed the Loan Agreement with the CBA. The argument put to the Tribunal was "Registration 1 (2015) and 2 (2020) had incorrectly registered the Company as the grantor. Thus, from the time of the transfer (2017), at no time would a search of the Registry using only the applicant's details (as the new grantor,) have revealed the registration. Ultimately, it appears that, from the time of the transfer, Registration 1 had the defect described by s. 165 (b) and was thus ineffective from that point. On account of the same defect, Registration 2 has always been ineffective"[36]
8. It was then submitted on behalf of the Delegate that as the CBA's security interest was perfected by Registration from 14 December 2015 the "effect of section 21(1) (b) (iii) and (2) (a) was that, to the extent they were ineffective, Registrations 1 and 2 did not have the effect of perfecting the security interest". However, counsel went on to submit section 34 operated to temporarily perfect security interests where collateral was transferred[37].
9. The argument went, if collateral is transferred and at the time of the transfer a secured party held a perfected interest in the collateral the security interest would be temporarily perfected for a period of 24 months after the transfer (34(1)(a)). The result was from 14 November 2015 until 15 June 2017 the CBA's security interest was perfected by registration and from 15 June 2017 until 15 June 2019 the CBA's security interest was temporarily perfected pursuant to Section 34 (1). Counsel for the delegate conceded that since 15 June 2019 the security interest had been unperfected, however because the CBA asserted "amounts remain due and payable by the borrower under the loan agreement_"_ the Delegate was correct to infer "the security agreement remained in force and the loan had not been discharged"[38]. (emphasis added)
10. In respect of s 43 which provides: "a buyer or lessee of personal property, for value, takes the personal property free of an unperfected security interest in the property", counsel for the Delegate submitted that as the security interest was perfected at the time of the transfer, s. 43 did not operate to extinguish a security interest that became unperfected after the time of sale because the purpose of s.43 was "to incentivise buyers to check the register". It was further argued that s.34(2) would have limited work to do if s.43 operated to extinguish any security interest sold or leased for value that later became unperfected.[39] The result was the unperfected security interest continued to exist as security for "the loan between the bank and the company". "The effect of the transfer was merely to render the applicant the new grantor of the security interest. This is so regardless of whether the bank complied with its obligation to ensure that it was properly perfected as against the new grantor by effective registration."[40]( emphasis added)
11. The provisions of the CA that deal with the winding up of a company or the appointment of an administrator under insolvency notably s 588FL and the interaction of s 588FL with the PPSA were addressed as follows: "However s.588FL only applies where, at the commencement of a winding up or at certain later times, a security interest is perfected by registration and by no other means. Here, it appears the winding up commenced in or around September 2018. At that time, the security interest was perfected by means other than registration. Specifically, since the transfer in June 2017, the interest had been temporarily perfected by force of Section 34 of the PPSA. Thus, Section 588FL did not operate to vest the security interest in the company". ( emphasis added)
12. Counsel for the delegate then addressed s.267 of the PPSA stating "that provision has no application in this case because the security interest was perfected at the critical time, albeit by force of Section 34" [41].
13. In conclusion the Delegate submitted the better view was "the vehicle secures an obligation owned by the company to the bank. Thus, there is a clear basis for a reasonable suspicion that the amendment was not authorised under s. 178. For the above reasons, the Delegate's decision should be affirmed".[42]( emphasis added)

1. The PPSA is no more than a statutory regime designed to resolve priority disputes between parties who take security interests over personal property in Australia. As Jackson J stated in Curo Capital Pty Ltd v Registrar of Personal Property Securities[43]:
   1. "[26] The PPSA creates a system of notice of security interests by registration, as distinct from a system whereby interests are created by registration. Its purpose is to provide persons searching the system with enough information to know whom to contact to find out more about a security interest" ( emphasis added)
2. While there are some changes to existing commercial law principles, the PPSA builds on well understood common law and commercial practices, it does not destroy them. Importantly, the act is only concerned with consensual security arrangements.
3. "The PPSA is founded on several core principles and rationales which are seminal to the understanding of how it operates and functions....... The principles can largely be dealt with in a piecemeal fashion as follows:
   1. "irrelevance of title";
   2. substance as opposed to form;
   3. preservation of commercial realities;
   4. primacy and predictability of the register;
   5. consumer protection; and
   6. preservation of the existing law where the Act does not apply[44]" ( emphasis added)

1. The law of contract still prevails. In general, a necessary condition of a valid contract is an offer made by one of the parties is accepted by the other. "For the better part of two centuries this analysis by reference to offer (or counteroffer) and acceptance has been a common technique by which the dealing of the parties are scrutinised in order to assess whether a contract has been made. Indeed, it is not only common,it has been called normal and conventional. It has frequently been adopted in the High Court of Australia,. Griffiths CJ went to so far as to say: 'all agreements consist, in substance, of an offer made by one party and accepted by the other"[45].
2. It is trite to say that an offer is only open to acceptance by the person to whom it is addressed. Acceptance of an offer is conduct which to a reasonable person in the position of the offeror is a final and unqualified expression of assent to the terms of the offer. "Acceptance must correspond with the offer and must be clear and unqualified, and it will fail to take effect if it attempts to vary the offer or add new terms".[46]
3. The offer made by the CBA to Just Magic Plumbing was a written Equipment Loan and an Equipment Loan Schedule (the Loan Documents). The CBA made finance available to Just Magic Plumbing on the terms set out in the Loan Documents. The terms on which the money was advanced were accepted by both parties to the contract. Mr Pedler was never a party to the Loan Documents.
4. The Loan Documents contained express termination clauses. Specifically

"grants the CBA entitlement to terminate the contract and the borrowers right to possession of the goods, to repossess and sell the goods and to sue the borrower for any remaining money the borrower owes the CBA",

5. Just Magic Plumbing clearly breached more than one condition stipulated in the Loan Documents. Relevantly, when it sold the Ute the subject of a security interest held by the CBA to Mr Pedler, Just Magic Plumbing knowingly breached the following condition set out in the terms and conditions- "not sell, mortgage, pledge, charge, let hire or otherwise dispose of the goods or the borrower's rights under the contract without the prior written permission of the CBA" . This resulted in Just Magic Plumbing being in default.
6. Under the Loan Documents as soon as a borrower defaulted the CBA had an immediate power to enforce the contract and sue the borrower for the money owed, or take possession of the security property, or sell it, or appoint a receiver to do so, or "appoint a receiver or other controller to do anything the CBA thinks is in the CBA's interest". Further, the default provisions imposed an obligation on Just Magic Plumbing to pay any and all reasonable costs and expenses and losses the CBA incurred in exercising its right under the contract, including the ability to charge default interest. The contract also gave the CBA a power to enforce the contract "before or after the CBA enforces its right under the security". ((emphasis added)
7. The Loan Documents included an indemnity clause under which Just Magic Plumbing indemnified the CBA "against any and all liability, loss, including consequential or economic, costs or tax the CBA had to pay due to the CBA exercising its rights under the contract or any other part". (emphasis added)
8. In addition to the selling the Ute Just Magic Plumbing was apparently in default for failing to make payments under the Loan when due, if indeed it made any repayments, which is presumably why the CBA commenced proceedings to wind up Just Magic Plumbing. Relevantly, a Notice of Application to Wind Up Just Magic Plumbing was filed with ASIC on 20 April 2018. On 20 September 2018 a Notice of Resolution to Wind up Just Magic Plumbing was filed with ASIC and an external administrator was appointed on the same day, Mr Amos of Amos Insolvency. On 3 October 2018, Mr Amos was replaced by a Court appointed Liquidator Mr Nicols. On 9 October 2018, the Federal Court of Australia (Federal Court) made an order to wind up Just Magic Plumbing[47]. On the 11 November 2018 a 504D notification of appointment of a Controller (other than as Receiver) was filed with ASIC. In Mr Pedler's Statement of Facts Issues and Contentions Mr Pedler stated, and it was not disputed, that the CBA had commenced the proceedings to wind up Just Magic Plumbing and the CBA remained in the position of Controller of Just Magic Plumbing for six months from November 2018[48]. The dates are relevant because at least one arm of the CBA had actual knowledge that Just Magic Plumbing was in liquidation and as Controller the CBA was in the position to repossess the Ute and sell it to realise its security interest in 2018.
9. There was no information before the Tribunal to explain why the CBA had failed to enforce its perfected security interest during the three years Just Magic Plumbing was under the control of a Court appointed Liquidator. Further, how the External Administrator, the Liquidator and the CBA, in its role as Controller, failed to notice that the Ute was no longer listed as an asset of the company is inexplicable. Had the CBA bothered to search the Service New South Wales registry the CBA would have seen the Ute was no longer registered in the name of Just Magic Plumbing but was registered in the name of Mr Pedler at the same address where Mr Pedler currently resides. This is particularly so given the evidence before the Tribunal was Mr Pedler purchased the Ute on 7 and 8 September 2017 and paid for the purchase by depositing the purchase price into a bank account opened in the name of Magic Plumbing. One of the first duties of a Liquidator is to call for all the books and records of the company. Books and Records include financial statements, bank statements, loan documents, and sales and debtor records. It must be kept in mind the Liquidator and the CBA were not dealing with a large industrial corporation with a vast inventory or asset register. Just Magic Plumbing was a small proprietary company with issued share capital of two ordinary shares, a paid-up capital of $2.00, and the only member of the company was Mr McMillan. How the CBA in its role as Controller, failed to notice the Ute was no longer an asset of Just Magic Plumbing, or the Liquidator when examining financial statements that were just over a year old failed to take account of the proceeds of the sale of the Ute, beggars belief. It is open to argument that by its conduct, doing nothing to enforce its security during the 3 years Just Magic Plumbing was in liquidation, the CBA consented to the disposal or received a distribution from the Liquidator in November 2019.

Consequences of Just Magic Plumbing's breach of the Loan Documents

1. Construction of the Loan Documents clearly imposed obligations on Just Magic Plumbing to repay the debt to the CBA, and not to sell or otherwise deal with the Ute. These were conditions or warranties for the CBA making the loan to Just Magic Plumbing. Non-performance of these conditions gave rise to a fundamental breach or sufficiently serious breach of the Loan and CBA had a right to immediately terminate the Loan contract.
2. On termination of a loan contract for fundamental breach both parties are discharged from their obligations to perform their unperformed contractual obligations. The loan documents between the parties remained on foot for the sole purpose of regulating the parties' rights so far as those rights had already been acquired, including CBA's rights to damages for the breach and the right to enforce the CBA's security interest over the Ute. The CBA had a right to seize the asset and to damages that existed at the time the contract was terminated. Damages flow from a loss caused by a breach of contract.
3. Under the doctrine of privity of contract, no person can be subject to a contractual obligation unless that person was a party to contract creating that obligation. Once the Federal Court appointed a Liquidator to Just Magic Plumbing the contact between the CBA and Just Magic Plumbing would have been terminated, if it had not been already for fundamental breach. A stranger to the contract, as clearly Mr Pedler was, cannot be bound by its terms. The debt Just Magic Plumbing owed to the CBA, to the extent any debt remained after the Liquidator had wound up the affairs of the company was a right in personam against Just Magic Plumbing, or the director and shareholder of that company Mr McMillian or any guarantor under the Financing Equipment Loan.
4. The Delegates submission that the transfer of the Ute, the security given by Just Magic Plumbing to the CBA, resulted in Mr Pedler being bound by the terms of the Loan Documents executed by between the CBA and Just Magic Plumbing, is fundamentally flawed. The rights under a contract are rights in personam to enforce the obligations that arise under contract against the parties to that contract. It is non_-sequitur_ to suggest the transfer of the Ute to Mr Pedler resulted in Mr Pedler being bound by the terms of a loan contract to which he was never a party. This is so notwithstanding that for the purposes of the PPSA the definition of grantor for the purposes of the attachment of a security interest in the Ute would include Mr Pedler while the security interest remained perfected.
5. Furthermore, under various provisions of the CA contained in Chapter 5 when a company is placed in liquidation, subject to the provisions of the CA as to preferential payments, the property of the company must be applied pari - passu in satisfaction of its liabilities. Typically, the Liquidator will sell off any assets that are not subject to a specific security interest to pay off the company's debts. The funds raised from disposing of the company's assets are then used in the following order:
   • payment of the Liquidator's fees costs and expenses
   • payment of the secured creditors. The CBA would have ranked in this category, if Just Magic Plumbing still owned the Ute, as it held a security interest that at the time the Liquidator was appointed that had been perfected,
   • priority unsecured creditors this group includes employees and covers outstanding wages and entitlements to superannuation and leave,
   • unsecured creditors typically, contractor's, suppliers and customers
   • shareholders.
6. With respect to secured creditors like the CBA, they maintain their normal rights to repossess and sell the asset over which they hold a security. This is typically achieved by appointing a receiver or controller separate to the liquidation proceedings. The Current and Historical Company Extract indicates the CBA was appointed a Controller of Just Magic Plumbing in November 2018. The CBA could have also asked the Liquidator to deal with the secured assets which would have required the Liquidator to look for the Ute amongst Just Magic Plumbing's inventory.
7. Had the Ute remained an asset of Just Magic Plumbing and the sale of the Ute, either by the CBA as Controller or the Liquidator, recovered more than the amount owing to the CBA at the time of liquidation, the surplus would have been paid to the Liquidator to distribute to unsecured creditors as a dividend. If the sale of the Ute recovered less than the outstanding debt the CBA would have been entitled to list the shortfall as a company debt and received a dividend along with the other unsecured creditors.
8. After the Liquidator distributes all money realised from the sale of a company's assets, any debts left unpaid are written off, they do not survive liquidation regardless of whether the debt is secured by a security interest.
9. The Liquidator then files an End Return of Winding Up by a Court and shortly afterwards a Deregistration Request, as the affairs of the company are fully wound up and the Liquidator is no longer acting. ASIC then removes the company from the Register and the company ceases to exist.
10. Unless the Liquidator formally admits and reports the debt as unpaid a debt does not survive liquidation. Under the CA after the liquidation is finalised all debts are extinguished, all secured claims are finalised, all rights in rem have either been exercised or lost and no proceedings against the company can be maintained. Once a company ceases to exist it cannot be pursued for unpaid debts. It is a nonsense for the CBA to insist the debt owed by Just Magic Plumbing was not extinguished when the Liquidator filed the form 5603B with ASIC. Further, given the CBA is the nation's largest financial institution with a legal department the size of most medium-sized law firms, it is not only misleading but borders on unconscionable conduct for the CBA to inform the Delegate in their email of on 22 November 2023 that "the amounts remain due and payable by the borrower under the loan agreement. These amounts are secured by CBA security interest in the motor vehicle". (emphasis added). On 22 November 2023, the borrower had been deregistered and no loan contact remained on foot let alone an enforceable one. No amounts remained due and payable, and no security interest existed in November 2023.
11. The only avenue open for the CBA as a "aggrieved person" is to apply to the Federal Court for reinstatement Just Magic Plumbing under s 601AH (2) CA. However, given the asset in question was not owned by Just Magic Plumbing before the Liquidator filed the deregistration request on 30 October 2020, it is highly unlikely, given the circumstances, a Court would exercise its discretion to reinstate Just Magic Plumbing.
12. Given the CBA's role in appointing the Liquidator and being the author of the Loan Documents it is inconceivable that no one in the CBA's legal team was fully appraised of the requirements imposed under s.12 PPSA before a security interest can exist, or the consequences under s. 43 when a perfected security interest becomes unperfected, or the consequences of a corporate debtor being wound up and deregistered. These issues are addressed in more detail below.

1. A relationship between the obligation to repay debt and a right against personal property must exist to generate a security interest for the purposes of the PPSA. The meaning of Security Interest for the purposes of the PPSA is set out in section 12 (1), the section is in the following terms:

"A security interest means an interest in personal property provided for by a transaction that, in substance, secures payment or performance of an obligation (without regard to the form of the transaction or the identity of the person who has title to the property)" (emphasis added).

1. Importantly, "A security interest is not a promise to pay a debt; it is an interest in some collateral that a lender can take if a debtor does not fulfil a payment obligation" [49]
2. In respect of CBA's security interest in the Ute (a right in rem acquired by the CBA prior to the termination of the contract for breach) "there is little difference between the underlying concept of security at common law and the approach taken by the PPSA. At common law a security has been described as [50] 'a transaction whereby a person to whom an obligation is owed by another person called the debtor is afforded, in addition to the personal promise of the debtor to discharge the obligation, rights exercisable against some property of the debtor in order to enforce discharge of the obligation'".[51]
3. Although section 12(1) requires the parties look to the substance of the transaction rather than its form "for the PPSA to apply, the 'interest' must be a 'security interest' as described by s.12, it must be 'personal property' under s.10 and must not be excluded by s 8" [52].
4. Importantly, section 8 (1) is in the following terms:

"This Act does not apply to any of the following interests (except as provided by subsection (2) or (3) )......

(b) "a lien, charge, or any other interest in personal property, that is created, arises or is provided for under a law of the Commonwealth (other than this Act), a State or a Territory, unless the person who owns the property in which the interest is granted agrees to the interest".( emphasis added)

1. A security interest will not arise under the PPSA unless the grantor consensually provides for or grants it in favour of the secured party. (emphasis added). The relevant consent is that of the grantor not the consent of the debtor. Registration of a security interest on the PPSR requires the security interest to be included in a security agreement. (emphasis added). The consent requirement for the creation of a security interest is focused on the circumstances giving rise to the dealing. It has been held that the use of the word 'transaction 'in section 12(1);

"is confined to consensual transactions inter partes [noting that: the suggestion appears to be reinforced by the proviso in s.8 (1) (b): 'unless the person who owns the property in which the interest is granted agrees to the interest']... > > "Authority from other jurisdictions also supports the proposition that the 'transaction' giving rise to such an interest has to be 'consensual..."[53]. (emphasis added)

2. The grantor is the party who bestows upon the secured party a security interest over particular personal property to secure the debtors payment or performance of the obligation being secured. The grantor and the debtor are not necessarily the same party. A security interest will not arise under the PPSA unless the grantor consensually provides for or grants it in favour of the secured party. Importantly, where a secured party seeks to perfect their security interest by registration on the PPSR the security interest must be included in a security agreement: s20 PPSA. (emphasis added)

"19 (1) a security interest is enforceable against a grantor in respect of a particular collateral only if the security interest has attached to the collateral. (emphasis added)

Attachment rule

19(2) a security interest attaches to collateral when**:**

(a) the grantor has rights in the collateral, or the power to transfer rights in the collateral to the secured party; and

(b) either:

(i) value is given for the security interest; or

(ii) the grantor does an act by which the security interest arises. (emphasis added)

Essentially, section 19(1) imposes a requirement that a security interest attaches to property before it can be enforced. Where no security interest has attached to personal property there is fundamentally no security interest. An ineffective contract will not confer any rights in personal property rendering the purported security interest unenforceable and the PPSA provisions have no application.

"(20) (1) a security interest is enforceable against a third party in respect of particular collateral only if:

(a) the security interest is attached to the collateral; and

(ii) the secured party has perfected the security interest by control;

(iii) a security agreement that provides for the security interest covers the collateral in accordance with subsection (2). (emphasis added)

"20 (2) A security agreement covers collateral in accordance with the subsection if:

(a) the security agreement is evidenced by writing that is:

(a) (i) signed by the grantor (see subsection (3)): or

(a) (ii) adopted or accepted by the grantor by an act, or omission, that reasonably appears to be done with the intention of adopting or accepting the writing; and

(b) the writing evidencing the agreement contains:

(b) (i) a description of the particular collateral, subject to subsections (4) and (5); or

(b) (ii) a statement that a security interest is taken in all the grantor's present and after acquired property; or

(b) (iii) a statement that a security interest is taken in all the grantor's present and after acquired property except specified items or classes of personal property" (emphasis added)

1. A security interest arises from a Security Agreement, which must be a consensual transaction[54]. Security over a grantor's collateral in a valid and enforceable security agreement creates rights in the collateral. A legal owner of personal property clearly has rights in the collateral and may grant a security interest that attaches to that collateral. In iTrade Finance Inc v Bank of Montréal [55] the Supreme Court of Canada held without rights in the collateral the nemo dat quad non habet rule continues to apply and no security interest could be granted that would be enforceable against third parties. ( emphasis added)
2. Under the nemo dat quad non habet rule a security interest can only be granted over the rights that are available to the relevant grantor. If the grantor does not have any rights with respect to the personal property in question any security interest purportedly granted could never attach to the personal property."[5] In the present case, even if the Liquidator had not been appointed to Just Magic Plumbing, Just Magic Plumbing could not grant a security interest in the Ute on 4 June 2020 to the CBA as the Ute was then the unencumbered property of Mr Pedler, a stranger to the Loan Document, and Just Magic Plumbing had no rights in that property to grant to the CBA. The PPSA does not operate to grant a security interest in the property of a stranger and thereby bind a stranger to a contract the stranger was never a party to. In short, if the grantor does not have the necessary rights in the relevant collateral under the PPSA, then irrespective of what is stated in the security agreement, attachment will not occur, and a security interest will not arise. ( emphasis added)
3. Section 20 requires a security agreement to be in writing if the secured party intends to perfect its security interest by registration. The security agreement must be signed by the grantor and must demonstrate a consensual adoption or acceptance by the grantor of the security agreement and the writing must contain a description of the collateral. In Citadel Financial Corporation Pty Limited v Elite High-Rise Services Proprietary Limited[56], Brereton J, as His Honour then was, held in respect of section 20 (2) of the PPSA :

"What s. 20 (2) requires, in respect of the evidence by writing of the security agreement, is that the writing be adopted or accepted by the grantor, not that this security agreement be adopted or accepted by the grantor. (emphasis added)

4. Section 20 (2)(a) imposes the requirement of a formal signature to indicate consent to the security agreement. The signature must be a properly authorised signature. The person signing the security agreement must be alerted to the fact that they are signing a security agreement or a document that is incorporated in the security agreement. If the parties have not entered into a formal agreement or particulars of the agreement are missing, particularly the signature, the principles of contract law are applicable. What is relevant is the true intention of the parties on the face of the contract.( emphasis added)
5. Under the PPSA registration does not of itself create a security interest nor does registration constitute an encumbrance. "Whether personal property is in fact encumbered by a claimed security interest as registered on the PPSR must be determined by reference to the underlying transaction claimed to have given rise to the security interest in question"[57].
6. Further, perfection of a security interest is only relevant for determining priority contests between competing interests in collateral. "Perfection does not, however affect the nature or validity of the underlying security interest"[58].
7. Section 21 of the PPSA sets out the methods of perfecting a security:

"21(1) A security interest in particular collateral is perfected if:

(a) the security interest is temporarily perfected or otherwise perfected by force of this act; or

(b) all of the following apply:

(i) the security interest is attached to the collateral;

(ii) the security interest is enforceable against a third party;

(iii) subsection (2) applies.

21(2) This subsection applies if:

(a) for any collateral, a registration is effective with respect to the collateral; or

(b) for any collateral, the secured party has possession of the collateral (other than possession as a result of seizure or repossession); or

(c) for the following kinds of collateral, the secured party has control of the collateral;

........" ( emphasis added)

1. In Future Revelation v Medicare Radiology & Nuclear Medicine Pty Ltd[59] the Court described the purpose of registration as:

""to enable the existence of the security interest in the collateral to be searched and ascertained thus, as Auburn Village accepts, registration of a claimed security interest on the PPSA put someone searching the register on notice of potential encumbrances. However, as Nelmeer[60] correctly points out, under the PPSR registration does not of itself create a security interest nor does registration constitute an encumbrance. Whether personal property is in fact encumbered by a claim security interest as registered on the PPSR must be governed by reference to the underlying transaction claimed to have given rise to the security interest in question".( emphasis added)

1. In other words, the PPSA legislation is only concerned with priority contests between security interests it is not concerned with determining who is the ultimate owner of collateral and it can only be enforceable under the Act against third parties when it is perfected.
2. If the perfection pre-requisites are complied with, that is, the security interest attaches to the relevant collateral then that interest is enforceable against third parties. It is common ground the CBA perfected its security interest when it registered a Financing Statement on the PPSR on 14 December 2015 at 16:27:39.
3. What s. 21(1) (a) provides is that where the PPSA grants temporary perfection to a secured party, the party is deemed to be perfected until the end of the temporary perfection. Temporary perfection has a finite duration. Personal property that is transferred is dealt with under s 34 and 52 PPSA.
4. It was not disputed that when the Equipment Loan was executed by Just Magic Plumbing in December 2014, the director of the company Mr McMillan consented to the creation of a security interest over the Ute. At that time Just Magic Plumbing was the legal owner of the Ute and clearly had rights in the collateral and could grant a security interest that attached to that collateral at the time the Loan Documents were executed. Self-evidently there was a written agreement executed by Mr McMillan on behalf of Just Magic Plumbing. Further the Equipment Loan Schedule described the collateral as "NSW 2015 One (1) only new Mazda BT-50 dual cab c\w Vin number or chassis number as MM0UROY100510742.
5. On the 14 December 2015, the CBA had an enforceable security interest. On the same day the CBA perfected that security interest by registering a Financing Statement on the PPSR. The financing charge registered in respect of the Loan Document was PPSR registration number 201512140060545. Importantly, although this registration end time was stated as 18 December 2020 at 23:59:59, for reasons that were not apparent, on the 13 November 2019 at 11:54:43 the CBA discharged PPSR registration 201512140060545, formally ending the CBA's registered security interest in the Ute. The question of whether the CBA's temporarily perfected interest ended earlier than 13 November is dealt with below.

Financing Statement PPSR 202006040022582 : 4 June 2020 Registration.

6. The facts that existed on 14 December 2015 did not exist on 4 June 2020 when the CBA registered a new Financing Statement PPSR 202006040022582. It is well settled that the ordinary principles pertaining to the proper construction of contracts apply to security interests perfected under the PPSA.
7. For the purposes of s.19 and 20 at no stage was there a transaction between Mr Pedler and the CBA that gave rise to a security interest in the Ute to secure the payment or performance of any obligation. On examining the objective intentions of Mr Pedler no reasonable person would conclude that Mr Pedler had consented to grant a security interest that attached to the Ute in 2020 as collateral for a loan made to an unrelated third party in December 2015. There was no written agreement, let alone a signed one, between Mr Pedler and the CBA that would constitute a contract that bound Mr Pedler to repay an outstanding debt of an unrelated third party. As the requirements of s. 19 and 20 were not satisfied, there was no dealing that fell within the scope of the PPSA in June 2020.
8. Importantly, contrary to the Delegates submissions, with respect to the operation of s 21 the transfer of the Ute to Mr Pedler in 2017 was not a transfer of a perfected security interest for an indefinite duration from one grantor to another grantor. Temporary perfection of the CBA's security interest under s21 is curtailed by the operation of s 34 (1). Section 34(1) is in the following terms:

"34(1) if collateral is transferred, and at the time of the transfer a secured party held a perfected security interest in the collateral, the security interest is temporarily perfected for the period starting at the time of the transfer and ending at the earliest of the following times...:"

9. Section 34 PPSA operates to grant a secured party, the CBA, a grace period to amend its registration by substituting Mr Pedler's details for Just Magic Plumbing's. In the present case the grace period under s 34(1)(a) was "the end of the month that is 24 months after the time of the Transfer".
10. The CBA informed the Delegate the Ute was transferred to Mr Pedler on 15 June 2017. It was not disputed that Just Magic Plumbing transferred the security interest in the Ute, without CBA's authorisation. Under s. 34(1)(a) the CBA's security interest continued in the Ute until 15 June 2019, unless one of the cut-off provisions contained in Part 2.5 applied. Apart from s 43, the taking free provisions contained in ss 44,45 and 46 did not apply.
11. Relevantly, s 45 deals specifically with the sale of Motor Vehicles. Unfortunately, for Mr Pedler the taking free provisions contained in s 45 did not apply. Section 45 (1) provides a buyer of a motor vehicle for new value takes the motor vehicle free of a security interest if 'there is a time during the period of the start of the previous day and the time of the sale by reference to which a search of the register by serial number would not disclose the registration". It was not disputed by Mr Pedler that he did not search the PPSR at any time because when he purchased the Ute from Just Magic Plumbing, he was a 23-year-old carpenter and understandably in 2017 he, like many others, was unaware of the PPSR's existence.
12. Section 43 however did apply. Section 43 is expressed in clear and unambiguous terms. It is headed "Taking Personal Property Free of Unperfected Security Interest". The operative provision 43(1) is in the following terms"

"A buyer or lessee of personal property, for value, takes the personal property free of an unperfected Security interest in the property."

13. Section 43 operates to allow a buyer of collateral to take free from a pre-existing security interest if that interest becomes unperfected. The evidence before the Tribunal was that Mr Pedler was a buyer of the Ute, the purchase price was fully paid on 8 September 2017. It was not in dispute that temporary perfection of the Ute lapsed. Unfortunately, there was no evidence before the Tribunal to confirm the date of the transfer was 15 June 2017, but there was evidence that Mr Pedler purchased the Ute on 7 September 2017, when Mr Pedler made the first payment of the purchase price. Accordingly, on the facts before the Tribunal the Tribunal finds that from 14 December 2015 until 7 September 2019 the CBA held a perfected security interest in the Ute. On 7 September 2019 the CBA's temporary perfection became unperfected. Once the CBA's temporary perfection lapsed, and no other form of perfection, for example taking possession or control of the Ute had been obtained by the CBA, the CBA immediately lost is secured interest and Mr Pedler took the Ute free of the CBA's encumbrance.
14. As canvased above, the unauthorised transfer from Just Magic Plumbing to Mr Pedler triggered a breach of the Loan Documents executed between Just Magic Plumbing and the CBA. The breach gave the CBA the right to immediately seize the Ute to enforce its security interest. As the CBA elected to do nothing to reclaim the Ute at the time Just Magic Plumbing breached the Loan for nonpayment of the Loan, s. 34 operated to provide the CBA's security interest with temporary perfection for 24 months from the date of the transfer. Temporary Perfection is subject to the qualification that if another secured interest attached to the collateral at or after the time of the transfer, the CBA's grace period reduces to 5 business days after the CBA acquired actual or constructive knowledge of the transfer and its details. Given CBA role as Controller of Just Magic Plumbing, and in the appointment by the Court of a Liquidator, it is extremely difficult to believe the CBA did not have actual or at least constructive knowledge the Ute had been transferred shortly after the Liquidator was appointed in October 2018, or at the very latest before September 2019, when its perfected interest lapsed and the CBA was in a position to registered a financing change statement to protect its security interest : Canadian Imperial Bank of Commerce v Tux & Tails Ltd62.
15. Fortunately for the CBA as no other security interest attached to the Ute, the CBA's security interest was continuously perfected for 24 months. As a general rule, if a security interest is perfected and the secured party did not expressly or impliedly authorise the grantor to sell the collateral, the buyer takes the collateral subject to the security interest.
16. Although Mr Pedler acquired the Ute subject to the CBA's existing security interest in either June or September 2017, he did not acquire the Ute the subject of any security interest in 2020 when the CBA registered a new security interest over the Ute. Once the CBA's temporary perfection became unperfected the CBA immediately lost its security interest for the purposes of the PPSA. The PPSA does not operate to magically transfer the 'grantor' of the security interest from Just Magic Plumbing to Mr Pedler, resulting in Mr Pedler being liable to repay Just Magic Plumbing's debt. A security interest can only bestow interests over rights available to the grantor. In 2020 Just Magic Plumbing had no rights over the collateral and the security interest purportedly granted over the Ute could never conceivably attach.
17. In any event, on 13 November 2019 at 11:53:34 the CBA lodged Verification Statement - Financing Change Statement - Discharge Registration for the security interest PPSR registration number 201512140060545 that bought the CBA's security interest formally to an end for the purposes of the PPSA.
18. The Verification Statement- Financing Statement, PPSR registration number 201911130023155 lodged by the CBA on 13 November 2019, could never give rise to a security interest for the purposes of the PPSA for the following reasons:

Firstly, PPSR registration number 201911130023155 stated the grantor of the security interest was Just Magic Plumbing, a company then in liquidation.

Secondly, the collateral was identified as commercial property - the Ute- serial number MM0UR0YF100510742 that Just Magic Plumbing was no longer the registered owner of and had no rights over, Mr Pedler was the unencumbered owner at that time.

Thirdly, the registration suffered from seriously misleading defects with respect to the grantor's details and the collateral details.

Fourthly, a court appointed Liquidator Mr Nicols was in control of Just Magic Plumbing and had Just Magic Plumbing retained title to the Ute, any attempt to give the CBA priority over the unsecured creditors would have been void as a preference (s. 588 FL CA) and set aside by the Liquidator (ss 588FA, 588 FC and 588FE CA)

1. The above problems with Registration 201911130023155 might explain why two days later on the 15 November 2019, the CBA lodged Verification Statement - Financing Change Statement - Discharged Registration. That statement provided "this PPSR registration (201911130023155) is discharged on 15 November 2019 at 06:02:56. A more plausible explanation for the CBA discharging a Financing Statement only 2 days after it bothered to register it on the PPSR is the CBA received payment of the outstanding debt or agreed to compromise the debt. The Tribunal will never know the reason why the CBA formally discharged registration 201911130023155 but once discharged the CBA could not revive its security interest by lodging a new Financing Statement PPSR Registration number: 202006040022582 on 4 June 2020 listing the grantors details as Just Magic Plumbing and the collateral as the Ute with the serial number MM0UR0YF100510742.
2. Perfection of CBA's temporarily perfected security interest ended in either in June or September 2019 and Mr Pedler took the Ute free of any encumbrance. The CBA then formally discharged its security interest twice on 13 and 15 of November 2019. In June 2020 the only grantor of a security interest in the Ute could have been the registered owner Mr Pedler. At that time Mr Pedler clearly held rights in the collateral but obviously did not grant a security interest that attached to that collateral in favour of the CBA.
3. In June 2020, the prerequisites set out in ss.19 and 20 before a security interest can attached to collateral (the Ute) were never satisfied. Agreements for the purposes of the PPSA, are no different from any other contract, obligations created by the underlying Loan Documents remain the obligations of the parties who executed the document, those rights are not altered by the PPSA. The PPSA does not operate to distort existing rights at law or in equity. Mr Pedler held legal tile to the Ute subject to the priority of the CBA only while the CBA's security interest remained perfected. The PPSA does not operate to transfer ownership or affect title in any way.

1. The PPSA does not operate to limit the scope of Chapter 5 of the CA.
2. Section 588FL CA provides that if a security interest is given by a company and perfection is by registration, the security interest is ineffective in the grantors insolvency proceedings unless it is registered no later than 20 business days after the date of the security agreement or six months prior to the commencement of the insolvency proceedings. For the purposes of the CA s.513C Item (3), proceedings are taken to have commenced at the time an administrator is appointed or the commencement of a winding up. (emphasis added).
3. Contrary to the Delegate's submission that the CBA's 2015 security interest was perfected "other than by registration at the critical time", when section 588FL(2)(a)(ii) refers to a security interest being perfected by registration and by no other means, it is referring to perfection by possession or control (s.21(2)(b) and s. 21(3)(c)). Section 34 provides for temporary perfection; in this case it extended the CBA's perfected interest for another 24 months, s.34 did not change the nature of the perfection to possession or control.
4. Temporary perfection operates by way of statute and the security interest is treated as perfected. As the CBA's 2015 security interest was perfected more than six months prior to the critical time s 588FL(4) did not operate to vest the 2015 security interest in Just Magic Plumbing. The critical time in relation to a company, means the day the event occurs by virtue of which the winding up is taken to have begun or commenced under section 513A or 513B CA.
5. The same factual situation did not arise in relation to the CBA's purported security interest supposedly perfected by Registration of a Financing Statement on 4 June 2020. On 3 October 2018, Mr Nicols, the court appointed Liquidator was in charge of the affairs of the company. On 7 November 2018, the CBA, as Controller, was in control of the secured assets of Just Magic Plumbing, at least in respect of the Ute. As the Controller the CBA had a duty to properly investigate the assets whereabouts, not delay unreasonably in dealing with the secured asset, obtain a correct valuation for the asset and act prudently in selling the asset (s.420A(1)CA).
6. On the facts before the Tribunal, it would appear the CBA failed to identify the Ute was no longer registered as an asset of Just Magic Plumbing, or it would seem take any steps to locate the asset shortly after its appointment in November 2018, when the CBA's security interest remained temporarily perfected. By doing nothing to recover the Ute, the CBA was possibly in breach of s 420A CA. Particularly as section 431(1) CA imposes duties on the Controller to provide written reports to the Liquidator identifying the assets, confirming proper realisation of the assets, and ensuring no misapplication of funds. Failure of the CBA to locate the Ute, take possession of the Ute and realise that asset affects the security itself. The CBA was negligent in failing to locate the Ute, recover it and realise the asset during the period of temporary perfection. It is estopped from now asserting rights to the Ute as security for a debt that no longer exists. The CBA cannot lawfully maintain a PPSR registration after the debt and the company cease to exist.
7. The CBA had no authority after the winding up commenced to revive extinguished interests, or reattach or recreate a new security interest, or indeed attempt to take control of property not subject to a valid security interest, or claim an interest in an asset Just Magic Pluming did not own at the date of the appointment of the Liquidator. The CBA's attempt to reregister a new PPSR interests on 4 June 2020, after discharging their security interest twice in November 2019, is nothing more than an attempt to interfere with third-party property.
8. Once liquidation is completed and the company is deregistered all debts of the company are extinguished: ss.500, 601AB CA, and Just Magic Plumbing ceased legal existence. No security interest can attach to secure a debt that no longer exists.
9. Further, the CBA formally Discharged its 2015 Registration on 13 November 2019 and its 13 November 2019 Financing Statement on 15 November 2019 ending perfection of the 2015, and if the 2019 Financing Charge was ever validly created, which is highly unlikely, ending that security interest 48 hours later.
10. Hypothetically, if Just Magic Plumbing was able to grant a new security interest while it was under the control of a Liquidator, such a security interest would take effect from the time of the subsequent perfection, in this case registration of a Financing Statement on 4 June 2020. The CBA could not regain its 2015 perfected security interest by registering a new financing statement in June 2020.
11. For the above reasons had a valid security interest been created and able to be registered on the PPSR on 4 June 2020, that security interest would have come into force two years after the critical time and vested in Just Magic Plumbing. The Tribunal notes it is commercially extremely unlikely for any security interest to be enforceable after the critical time.
12. The registration of a security interest by the CBA on 4 June 2020 (PPSR registration 202006040022582), 4 months before the Liquidator filed a form 5603 - End Of Administration Return Notice with ASIC (20 October 2020), and 7 months before Just Magic Plumbing was deregistered by ASIC (10 January 2021), that listed Just Magic Plumbing as the grantor and the collateral as the Ute was invalid and of no force or effect.
13. There was no security interest to support a PPSR registration for the reasons elaborated above. , Even if Just Magic Plumbing had retained the Ute the company was in liquidation and legally incapable of granting new rights[61]. No security interest could attach to the Ute in June 2020. Section 12 of the PPSA does not completely negate the operation of the nemo dat principal, a grantor, allegedly Just Magic Plumbing, cannot confer rights it does not have.
14. Finally, given the CBA's inaction specifically its failure to enforce its security interest by taking possession of the Ute when it was in the position to do so as the Controller of Just Magic Plumbing, coupled with the CBA's failure to check the vehicle registration at any stage during the three years Just Magic Plumbing was in the control of the Liquidator, and formally Discharging its PPSR Registration twice in November 2019, is sufficient for the Tribunal to infer that by its actions, the CBA consented to the disposal of the Ute, or it was negligent in the performance of its duties as the Controller.

"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 the kind described by the regulations; or

(b) a defect mentioned in section 165. (emphasis added)

" In order to establish that a defect is seriously misleading, it is not necessary to prove that any person was actually misled by it."

"For the purposes of paragraph 164 (1) (b) a defect in a registration that describes particular collateral exists at a particular time if any of the following circumstances exist: > > (a)..... > > (b) in the case in which the collateral is not required by regulations to be described by serial number in the register - no search of the register by reference to that time, and by reference only to the grantors details ......" ( emphasis added)

2. The effect of the ss. 164 and 165 in relation to commercial property is that errors in the naming of the grantor will render the registration ineffective. In the present case the mistake in CBA's Financing Statement created on 4 June 2020 was in respect of the grantor's details. The grantor was in liquidation and furthermore it no longer had held rights in the Ute over which to grant a security interest to the CBA. As Brereton J., as His Honour then was, held in Re Onesteel Manufacturing Pty Ltd (admin appted)[62]

"it does not avail Allleasing that the administrators, apparently using a B2G interface, discovered the original registration; it is unnecessary, for a defect to be misleading, to establish that anyone was in fact actually misled. It is the capacity or potential to mislead that is crucial...." (emphasis added)

3. Section 165 deals with specific categories of defects which, even if they are not "seriously misleading" within the meaning of s.164(1)(a) nevertheless render registration ineffective by force of s164(1)(b).
4. In the present case, in respect of the purported registration of a Financing Statement on 13 November 2019 and 4 June 2020 the CBA as the 'secured party' failed to note on the Financing Statement that Just Magic Plumbing was in liquidation. Consequently, the PPSR did not accurately and transparently reflected the true position of Just Magic Plumbing. Further, as the Financing statements registered on 13 November 2019 and 4 June 2020 listed the serial number of the alleged collateral, the Ute, a third-party searcher for example the car dealer interesting in purchasing the Ute in 2023, or a bank or credit provider undertaking a credit check for Mr Pedler, would have concerns about an undisclosed security interest in the Ute in 2023 As it transpired, the CBA's defective Financing Statement of 4 June 2020, that listed the vin number of the Ute to identify the Ute as collateral charged to the CBA, prevented a car dealer purchasing the Ute from Mr Pedler in November 2023 for $20,000 and Mr Pedler clearly suffered loss as a result of the defect in the 4 June 2020 registration.
5. The commercial reality of the PPSR is Banks and Credit Assessment Agencies do search the PPSR when assessing an individual's capacity to service consumer credit. Section 164 is drafted in broad terms, "a registration is defective under s 164(1) (a) if it contains a seriously misleading defect in any data relating to the registration.
6. The Tribunal finds that even though for other reasons there was no underlying security agreement that gave rise to a valid security interest on the 4 June 2020, the Financing Statement registered on 4 June 2020 was seriously misleading for the purposes of s 164. The PPSA imposes obligations to exercise powers, comply with duties and fulfil obligations in a manner that is honest and commercially reasonable, "It demands a standard of conduct that arises above the mere absence of fraud or lack of wilful or reckless conduct." [63]
7. Considering its obligations the CBA should never have registered a Financing Statement on 4 June 2020 and should have removed it immediately upon receipt of Mr Pedler's Amendment Demand on 7 November 2023. The effect of the CBA's seriously misleading data contained on the 4 June 2020 Financing Statement caused Mr Pedler loss in 2023, and it was reasonably foreseeable that further loss or damage was likely to result from the CBA's failure to discharge the invalid 4 June 2020 financing statement when contacted by the Registrar.
8. Part 4 of the PSA deals with enforcement of security interests. Section 111 imposes an obligation to exercise powers, comply with duties and fulfil obligations in a manner that is honest and commercially reasonable. When considering requirements to act honestly Australian courts have applied the test of whether a reasonable observer would believe that the party was acting honestly. There is no need to establish that the party acted in a deliberately dishonest or misleading way. Even though the CBA might have acted honestly it is difficult, in the circumstances, to find that the CBA behaved in a commercially reasonable way when it insisted that the bank maintained a valid security interest in the Ute. In making the above comments, the Tribunal refers to the CBA's email to the Delegate on 15 December 2023. In that email an Arrears Management Specialist at the CBA advised the delegate

"CBA has not made any demand for payment from the applicant. CBA has only sought to maintain its registration in respect of the vehicle in connection with its existing security interest in the vehicle".( emphasis added) .

1. That of itself is not a commercially reasonable position for the CBA to adopt. On the one hand the CBA is not attempting to recover money owing to it by a deregistered company, Just Magic Plumbing, from Mr Pedler. On the other hand, by insisting the invalid and defective registration is maintained on the PPSR, in doing so the CBA is knowingly preventing Mr Pedler from realising an asset that he is the unencumbered owner of. Such conduct is unconscionable if not dishonest.

Right to recover damages for breach of duties or obligations

1. The purported registration of a new security interest in June 2020 was invalid, and misleading in nature: the grantor remained Just Magic Plumbing a company in liquidation, the collateral over which the security interest was purportedly registered was no longer owned by the grantor, there was no consensual supporting loan document between Mr Pedler and the CBA creating a security agreement, and the CBA had no ability to revive a security interest that had become unperfected in June or September 2019, especially as the CBA formally discharged that registration on 13 November 2019. Further, the CBA having done nothing to enforce its temporarily perfected security interest while it was in the position of Controller of Just Magic Plumbing by its conduct is estopped from subsequently asserting rights it no longer possessed.[64]
2. The invalid security interest also contained seriously misleading data. That data prevented Mr Pedler from realising his "only asset" in 2023 for $20,000[65]. Further, it possibly hampered Mr Pedler's ability to borrow money because a search of the PPSR using the Ute Vin number by a credit agency would find an undischarged security interest that Mr Pedler had not declared. The consequences of allowing an invalid registration to remain on the registry are significant and are not to be treated lightly.
3. Section 151 (1) is in the following terms:

"151(1) A person must not apply to register a financing statement, or a financing change statement, that describes collateral, unless the person believes on reasonable grounds that the person described in the statement as the secured party is, or will become, a secured party in relation to the collateral (otherwise than by virtue of the registration itself). (emphasis added)

4. Section 151 has important work to do, it operates to prohibit a person from applying for registration of a financing statement unless the person reasonably believes that they are a secured party in relation to the collateral. In the present circumstances the Tribunal finds the 4 June 2020 Financing Statement failed to meet the threshold requirement of a belief on reasonable grounds that a security interest had arisen on 4 June 2020.
5. The Australian courts have made orders pursuant to section 151(1) for the removal of registrations and granting injunctive relief restraining the purported secured party from lodging a new registration on the same grounds[66]. Section 151 is a civil penalty provision. Civil penalties are dealt with under part 6.3 PPSA but they can only be pursued by the Registrar of Personal Property Securities on application to the Federal Court of Australia.
6. Section 195 is in the following terms:

(i) "195 (1) The Registrar has the functions given under this Act or any other Act. > > (i) (2) The Registrar has power to do all things necessary or convenient to be done for in connection with performance of his or her functions"

7. Chapter 8 PPSA is headed "Miscellaneous". Part 8.3 is headed "Exercise and Discharge of Rights, Duties and Obligations". Section 270 provides a Guide to this Part, that section is in the following terms:
   1. "270 -This Part provides a right to recover damages for a failure to discharge a duty or obligation imposed by this Act"
8. Section 271 follows and is in the following terms:

" 271 (1) If a person fails to discharge any duty or obligation imposed on the person by this Act: > > (a) the person to whom the duty or obligation is owed; and > > (b) any other person who can reasonably be expected to rely on the performance of the duty or obligation; > > has a right to recover damages for any loss or damage that was reasonably foreseeable as likely to result from the failure. > > 271 (2) Nothing in subsection (1) limits or affects any liability that a person may incur under any of the following:

(a) a law of the Commonwealth, a State or a Territory;

(b) the general law. (emphasis added)

1. Section 271 has broad application. An obligation to comply with an amendment notice to amend the registration of a Financing Statement is one of those obligations. Mr Pedler had the right to pursue administrative action through the Registrar to remove the registered Financing Statement. The issue of causation of harm in the present case was the CBA's failure to act in a commercially reasonable manner. Having sought a review by the Tribunal of the Delegates decision the question for the Tribunal is what, if any, power does it have to award damages?
2. In Davidson v Registrar of Personal Property Securities[67] the Tribunal held that an application for review of the decision by the registrar not to register a registration amendment was a proceeding under the Administrative Appeals Tribunal Act 1975 (Cth) not the PPSA, therefore PPSA s.296 did not apply. Instead, the Tribunal in reviewing the Registrar's decision, was required to ask itself the same question as the one confronting the Registrar.
3. In Davidson that question was whether there were reasonable grounds for suspicion that the amendment was not authorised under section 178. The end result was the Tribunal held;

"Parliament has not imposed an onus on the person seeking rectification to establish the payment has been made or the obligation performed. It has not left the matter to be decided on the balance of probabilities. Instead, it has weighted the scales in favour of rectification as sought by the person who gave the secured party the Amendment Notice under s180. That weighting, however, can be overcome not by the secured parties having to establish on the balance of probabilities that the amendment is not authorised but by their being material that leads the Registrar, and this Tribunal in turn, to suspect on reasonable grounds that the amendment is not authorised by s.178... On an application to it, a Court must consider whether the Amendment demand is, or is not, authorised by s.178. It would do so on the balance of probabilities for no mention is made of any other standard of proof.

4. The question for the Tribunal, in the present case is given general law remedies are able to operate concurrently, does the Tribunal have the ability to make an order that the CBA is liable for damages for a breach of its statutory obligation to comply with Mr Pedler's Amendment Demand? Mr Pedler has pursued administrative action through the Registrar and sought review of the Registrar's decision by the Tribunal. The Tribunal has made an order that the Registrar is to rectify the registered Financing Statement by removing it from the PPSR.
5. The evidence before the Tribunal which the Tribunal accepts is that Mr Pedler suffered financial loss, caused by the CBA's invalid 4 June 2020 registration on the PPSR. It is reasonable to assume Mr Pedler's loss was exacerbated when the CBA refused to comply with the Amendment Notice to amend the Registration of the 2020 Financing Statement. Any further loss was reasonably foreseeable as a result of the CBA's failure to comply with the Amendment Notice
6. Section 12 of the Administrative Review Tribunal Act 2024 (ARTA) provides as follows:

12 Reviewable decisions > > (1) A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of a decision. > > (2) ...

54 Tribunal can exercise powers of decision-maker

For the purpose of reviewing a reviewable decision, the Tribunal may exercise all the powers and discretions that are conferred on the decision-maker by an Act or an instrument made under an Act.

1. In determining an application, the Tribunal is charged with deciding what is the correct and preferable decision. Further, the Tribunal is given the power under s 105 ART Act to affirm, vary, or set aside the administrative or reviewable decision and make a decision in substitution or remit the matter to the Registrar.
2. The Full Court of the High Court recently held in State of New South Wales and Paulina Wojciechowska, when dealing with an order under s. 55(22) (a) of the Privacy and Personal Information Protection Act 1998 (NSW) and the question of whether the New South Wales Civil and Administrative Tribunal exercised judicial power when the Civil and Administrative Tribunal made an order making an award for damages stated:

"In making the correct and preferable decision based on the material then before it, the Tribunal is exercising a broad and evaluative power which must give effect to any relevant government policy in force at the time the "administrative reviewable decision" of the public sector agency alleged to have contravened the PPIP Act was made."

1. High Court when considering the operation of the PPIP Act and the Administrative Decision Review Act 1997 (NSW) held s 53(7) of the PPIP Act empowered the public sector agency to pay "monetary compensation" to an applicant for internal review, but there was no "generally enforceable right to such compensation available to any person who has suffered loss or damage because of a public sector agency contravening an information protection principle or a privacy code of conduct". "A finding of contravening conduct and a finding that the applicant has suffered loss or damage because of such conduct does not give the applicant any right to damages. Rather, it enlivens the Tribunal's discretion across a full range of options in section 55 (2) of the PPIP Act and s.63( 2) of the ADR Act".[68]
2. Importantly, the High Court held that in making an award for damages by the New South Wales Administrative Tribunal did not involve a purported exercise of judicial power by the Tribunal.
3. Section 271 PPSA gives Mr Pedler the right to recover damages, but unfortunately for Mr Pedler, unlike s53(7) of the PPIP Ac,s.271 PPSA does not appear to enliven the Registrar's power under s195 and consequently the Tribunal's discretion to make an order that the CBA pay damages to Mr Pedler. In the present circumstances the power to award damages for the financial loss suffered by Mr Pedler because of the CBA's conduct is left to the courts. Regrettably, unless a commercial arrangement between Mr Pedler and the CBA can be negotiated Mr Pedler, if he wishes to peruse damages will need commence proceedings in the either the Federal Court, the Federal Circuit and Family Court of Australia, or one of the superior courts or lower courts in NSW pursuant to. s 207 PPSA.

1. In Curo Capital Pty Ltd v Registrar of Personal Property Securities Jackson J stated:

"[29] It was common ground that the PPSR is in practice, a computer database which is searchable at all times by members of the public and which any person seeking to make or amend a registration can add to directly. There is no process by which new registrations are regularly checked or vetted by a human being before they are publicly available for search."

2. The role of the Registrar and the Registry staff is not check or vet the details of a new registration before it is entered on the Register. Further, it is not the job of the Registrar to determine complex underlying factual disputes between the parties. Factual disputes dealing with contractual matters and the existence or not of a security agreement are the domain of the courts.
3. However, it is the function and duty of the Registrar to competently administer the PPSA and the regulations made under that Act . To do that the Registrar and the Registrars staff must have a thorough working knowledge of the Act the Registrar has a statutory obligation to administer , as well as the relevant provisions of the Corporations Act, which were amended to accommodate the PPSA. The PPSA operates in conjunction with the CA specifically ss 51, 51A, 51B,51C,51D,51E, Chapter5-Part 5.7B ss.588FL,588FM, 588FL,588FM,588FN,588FO,588FO.
4. At the time of making the Decision that the Amendment Demand was not authorised under s.178 PPSA the Registrar was in possession of an ASIC company search of Just Magic Plumbing dated 8 November 2023, that showed from 20 September 2018, Just Magic Plumbing was in external Administration and was deregistered on 10 January 2021. It had also been supplied with the Loan Documents executed between the CBA and Just Magic Plumbing that clearly identified the Borrower as Just Magic Plumbing. Further, the Registrar had access to its own records which showed the CBA Discharged the Financing Statement registered on 14 December 2015 on 13 December 2019 and Discharged the Financing Statement registered on 13 November 2019 on 15 November 2019. If for no other reason that should have raised serious questions, at least in relation to date the CBA's 4 June 2020 interest was perfected.
5. Importantly, in respect of the question of when the CBA's security interest became unperfected, putting to one side the date of the transfer of ownership to Mr Pedler, the purpose of the PPSR recording start dates and end dates in hours minutes and seconds is not for decoration. The PPSA establishes a priority system between competing security interests. Resolution of these disputes often comes down to seconds between the time respective competing security interests were registered on the PPSR. In the present case, the Registrar's own records show the CBA's 2015 security interest 201512140060545 was discharged on 13 November 2019 at 11:54:43 am. The registration discharge time should have been sufficient information for the Registrar to question whether there was some factual basis for the CBA's position. Further the Registrar should have realised that from 11.54:43 on 13 November 2019 the CBA held an unperfected security interest and Mr Pedler took the Ute free of any encumbrance.
6. The fact that the CBA registered a new security interest 201911130023155 2 minutes later at 11.56.43 does not save the 2015 perfection. Subsequent perfection takes priority only from the time the new perfection is achieved it does not benefit from the original time. As the new security interest was registered a little over a year after Just Magic Plumbing was in external administration and 2 minutes after Mr Pedler took the Ute free of the CBA's encumbrance it was an invalid security interest.
7. Given the glib, inaccurate, and inconsistent comments the CBA made to the Registrar in the CBA's emails of 15 December 2023 [69] and 1O January 2025:

"CBA's security interest in the vehicle has remained at all times. The security interest has not been released or extinguished nor has it vested. None of the taking free provisions apply in the present circumstances" .... > > "CBA has not made any demand for payment from the applicant. CBA has only sought to maintain its registration in respect of the vehicle in connection with its existing security interest in the vehicle" ... " CBA denies any alleged unconscionability or wrongdoing.". > > 10 January 2025. > > **"**CBA's position is that notwithstanding the lapsing of its registration, its security interest in the Motor Vehicle remained as it had not been released or otherwise extinguished" (referring to 13 November 2019 Discharge of the 2015 security interest). > > "The CBA makes registration 202006040022582 against the motor vehicle on the basis of its continuing security interest in the motor vehicle pursuant to the terms of the loan agreement" ( emphasis added) > > Coupled with the CBA's unwillingness to be joined as a party to assist the Registrar should have been enough for an enquiring mind with a working knowledge of the PPSA to closely examine whether the Registrar's position was "justifiable upon objective examination of relevant material"

8. This is particularly so given s 297 PPSA contains a definition of constructive knowledge. Section 297 is in the following terms:

"297 For the purposes of this Act, a person [the first person] has constructive knowledge of a circumstance if the first person would have actual knowledge of the circumstance if the first person had:

(a) made the inquiries that would ordinarily have been made by an honest and prudent person in the first person's position; or

(b) made the inquiries that would be made by an honest and prudent person with the first person's actual knowledge in the first person's situation."

1. Actual knowledge refers to the existence of knowledge subjectively in the mind of the relevant party on the facts, the relevant party knew (not ought to have known but actually knew) of the circumstances in issue. The Tribunal acknowledges that the CBA is a large organisation and one department within the CBA may not know what the other department is doing or has done about a particular situation. Having said that given the CBA discharged the 2015 registration in November 2019, and the Registrar had a record of that discharge it is inconceivable that neither the CBA nor the Registrar had actual knowledge that the CBA's perfected interest became unperfected on the 13 November 2019.
2. Even if the relevant division of the CBA was not aware the bank had discharged it's 2015 perfected interest it is difficult to believe , given the circumstances of Just Magic Plumbing's winding up, that the CBA did not have constructive knowledge, which is a relatively lower requirement than proving actual knowledge of the facts, that its perfected interest had become unperfected at least in November 2019 when it Discharged both the 2015 and the 2019 registrations on the PPSR.
3. With respect to constructive knowledge s.300 explicitly removes knowledge of the Register from consideration of constructive knowledge, only actual knowledge can apply. In the present case it is impossible to believe neither the CBA or the Registrar had actual knowledge of the information on the PPSR. The Registrar's actual knowledge is also relevant in determining the consequences of defective registration under the PPSA.
4. Given the Tribunal's observations with respect to the Delegate's Statement of Reasons for a Decision of the Registrar and the various submissions made to the Tribunal on behalf of the Delegate, the Tribunal finds it incomprehensible that the Delegate was satisfied facts sufficient to induce a state of mind in a reasonable person existed and the Amendment Demand was not authorised under section 178(1). The evidentiary burden may be "low" but the Registrar still has a statutory obligation to objectively assess the material before it. The Registrar cannot abrogate that responsibility by simply accepting a statement from the CBA that in their opinion the bank held a continuing security in the Ute, particularly in light of the inconsistent statements given by the CBA in the two emails referred to at [184] above and the Registrar's own records
5. The Tribunal acknowledges the Registrar acted honestly, but finds the Registrar was negligent when making his own enquires to satisfy himself the obligations of Mr Pedler were real. Section 181(1) imposes a statutory obligation on the Registrar to suspect on reasonable grounds that the amendment is not authorised under section 178. That statutory test is not satisfied by relying upon, an unexamined statement by the secured party that a debt still exists.

1. Although Mr Pedler cannot seek damages from, among others, the Registrar, or a Delegate of the Registrar; or a Deputy Registrar, or a member of the Registrar's staff, or a person who is authorised to perform or exercise a function or power on behalf of the Registrar pursuant to s 271, for the reasons elaborated above there is evidence of administrative error on the part of the Registrar. The Scheme for Compensation for Detriment caused by Defective Administration (CDDA Scheme) is available on the Department of Finance website.

1. The Tribunal does not review matters under the CDDA Scheme. If Mr Pedler wishes to make a claim under the CDDA Scheme he should approach the Registrar of the PPSR and request that a claim be assessed. The Tribunal emphasises that any payment under the CDDA Scheme is necessarily determined between the Registrar of the PPSR and Mr Pedler, the applicant in these proceedings. The Tribunal plays no role in the CDDA process.

The application of Equitable Principles to Administrative Law and Review of an Administrators decision

1. Although there is some debate as to whether equitable principles can apply to administrative law, asserting a right to a security the CBA's legal department should have realised was extinguished during the liquidation process is unconscionable conduct. In any event the CBA Discharged its security interest twice in November 2019, which constituted an express waiver of rights.
2. During the period it was the Controller of Just Magic Plumbing the CBA did nothing to call in its security interest, or check the collateral was still registered in the company's name. When the CBA purportedly registered a new security interest on 4 June 2020 it would have done so knowing Just Magic Plumbing was in liquidation. By its past conduct the CBA is estopped from claiming a security interest in Ute.
3. Administrative decision-makers are still bound to apply equitable principles to ensure a just and fair outcome of their decisions. Public law fairness requires the Registry avoid maintaining misleading data, it must make reasonable enquiries before it is satisfied there are grounds to conclude a registration should be maintained on the PPSR, to do otherwise is to allow misleading data to be maintained. [70]
4. In short, the CBA's conduct is unconscionable its actions have prevented Mr Pedler from realising his only asset for more than two years. Furthermore, it may possibly have damaged Mr Pedler's credit rating without Mr Pedler knowing because the invalidly registered security interest would appear in any search of the PPSR conducted by a potential lender to Mr Pedler.

1. The Tribunal finds there was no security interest to support PPSR 202006040022582. That registration was invalid, and seriously misleading. From at least September 2019, Mr Pedler held an unencumbered title to the Ute. The Delegate is to immediately remove Registration 202006040022582 from the PPSR.

[1] Maiden Civil (P & E) Pty Ltd v QES [2013] NSWSC 852.

[2] The photocopy of the loan document that appears in the Joint Tender Bundle Tribunal Book at p.123 is extremely poor

[5] Joint Tender Bundle T3.3 p 14, 15,16, 17, 18, and T1 p 1.

[6] Joint Tender Bundle T6 p 32 : 519G Notification of Application to wind up Company Under s 459p , 462 or 464.

[7] Joint Tender Bundle T6 p 32: 505J Notice by External Administrator pf appointment.

[14] The collateral is identified by VIN MMOURYF100510742.

[16] Joint Tender Bundle T10.1 p 46 - 47.

[17] Joint Tender Bundle T10.1 commenting that ".

[18] Joint Tender Bundle T11- T12 p85- 90.

[19] Joint Tender Bundle T13 -p 95[12].

[20] Joint Tender bundle T13- p95 [14].

[28] Joint Tende Bundle T10.2 pp 49 - 55.

[35] Joint Tender Bundle p 181at [16].

[41] Joint Tender Bundle Respondents outline of submissions p.185 [29].

[43] [2020] FCA 1515.

[44] the annotated Personal Property Securities Act 2009 (Cth) Nicholas Mirzai, Jason Harris, Wolters Kluwer fourth edition 2020.

[45]"Heydon on Contract" JD Heydon, Thomson Reuters, Lawbook Co 2019 p 27 [2.10].

[46] Lark v Outhwaite [1991] 2 Lloyd's Rep 132 at 129 per Hirst J.

[49] _Reese v Ellis Printer, Ratterre & Adams LLP (2012) 678 F.ed1211 (USCA 11th Circ) see T_he Annotated personal Property Securities Act 2009 Nicholas Mirzai, Jason Harris Wolters Kluwer 4Th edition at 1-065.

[50] Ibid at say The Annotated Personal Property Securities Act 2009 Nicholas Mirzai, Jason Harris Wolters Kluwer 4Th edition.

[51] Edward I Sykes and Sally Walker, The law of Securities ( 5th ed, 1993) 3.

[52] Gas Sensing Technology Corp v Pro X Pty Ltd [2019] WASC 10 at [ 265].

[53] Dura (Aust) Constructions Pty Ltd (in Liq) (recs and mgrs. apptd) v Hue Boutique living Pty Ltd ( formerly SC land Richmond Pty Ltd) [2014] VSCA 326, per Santamaria JA ( with whom Maxwell P and Whelan JA agreed) at [I15] - [121]; National Australia Bank Ltd v Garrett [2016] FCA 714 [ 28] - [33] per Beach J as His Honour then was.

[54] Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2014] VSCA 326.

[55] [2011] 2 SCR 360 at [44].

[56] [2014] NSWSC 1926 at [4].

[57] Future Revelation v Medic Radiology and Nuclear Medicine Pty Ltd [2013] NSWSC 174 at [6]

[58] Bank of Montréal v Innovation Credit Union [2010] SCC47 at [49]

[59] [2013] NSWSC 1741 at [6]

[60] Auburn Shopping Village Pty Ltd v Nelmeer Hotiliers Pty Ltd[ 2017] NSWSC1230

[61] Maiden Civil (P&E) Pty Ltd; Re Albarran v Queensland Evacuation Services Pty Ltd [2013] NSWSC 852.

[62] [2017] NSWCA 21.

[63] Cuming R and Wood R, Saskatchewan and Manitoba Personal Property Security Acts Handbook, 1994 Carswell at p,227.

[64] SFS Projects Australia Pty Ltd v registrar of PPS [2014] FCA 987.

[65] Joint tender bundle p 115 at [4] ; Mr Pedlers submissions at 186 at [5]

[66] Macquarie Leasing Pty Ltd v The Registrar of Personal Property and Securities Register [2014] NSWSC 1677, National Australia Bank Ltd v Garrett [ 2016] FCA 714.

[67] [2015] AATA 459 at [60]

[68] State of New South Wales and Paulina Wojciechowska [2025] HCA 27 at 15

[70] Minister for immigration v Li [2012] HCA 61; (2013) 249 CLR 332.