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[2026] NSWCA 192
respondent. Leave to adduce the affidavit evidence filed 29 June 2026 was granted. The extension of time to apply for leave to appeal was refused; the summons for leave to appeal was dismissed; and Procent...
The Court of Appeal held that Procent needed permission to appeal because its request to change ASIC’s register did not itself have a readily measurable value of at least $100,000. The possible transactions Procent said it had lost were not the value of the rectification claim. The Court also considered that the register, read alongside the Corporations Act definitions and the linked forms describing the Kurnell property, was not shown to be misleading. Because the proposed appeal raised no issue of principle or public importance and showed no reasonably clear injustice, the Court refused more time and leave to appeal. It did not decide the broader question of whether a correct but misleading register entry can be rectified under s 1322(4)(b).
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6 cited instruments linked from this judgment.
1,796 words · generated 08/10/2026
Procent Pty Ltd held the Kurnell property as trustee of a trust. A previous trustee, Kurvest Pty Ltd, had granted Judo Bank Ltd a mortgage over the property. In February 2024, Judo appointed receivers and managers over the Kurnell property. The appointment was later validated by court order ([6]–[7]).
ASIC’s register recorded the company as “Externally Administered” and listed the appointees as “Receiver Manager”. It also listed forms under a heading concerning “External Administration and/or Appointment of Controller” ([8]–[14]). The underlying forms were more specific. Form 505B described the appointees as receivers and managers “of the property described in the schedule”, and its schedule identified the Kurnell property. Form 504B likewise recorded an appointment over the property described in its schedule ([12]–[14]).
Procent argued that the register’s terminology, although not incorrect, was misleading because readers could take it to mean that receivers had been appointed to the company itself rather than to its property ([16], [47]–[48]). Before Black J, it sought several forms of rectification, including changing Procent’s status, removing references to the receivers and to external administration, and taking Forms 504B and 505B off the public register ([18]). The primary judge refused the requested orders.
Procent then sought leave to appeal. Its proposed relief changed during the Court of Appeal hearing. Among other things, Procent no longer sought removal of the forms, but proposed inserting “over property” after “Receiver Manager”, changing some headings, and adding identifying details for the property ([42]–[43]). The Court granted leave to adduce an affidavit filed on 29 June 2026, but ultimately refused the application for more time and leave to appeal ([3], [70]).
The Court dealt first with whether Procent needed leave to appeal. Section 101(2)(r)(ii) of the Supreme Court Act 1970 (NSW) provides an exception to the leave requirement for certain matters involving a claim, demand or question respecting property or a civil right worth at least $100,000 ([27]). The Court said the party asserting an appeal as of right bears the onus of showing that success would improve its financial position by at least that amount, with a proper evidentiary basis ([33]).
The challenged order was the dismissal of Procent’s application for register rectification. The Court treated that relief as having no “readily ascertainable monetary value” ([34]). Procent relied on business opportunities and transactions it said had been affected by the register, including refinancing, property sales and a proposed business purchase ([28]–[31]). But the Court regarded those opportunities as activities Procent might pursue after a successful appeal, not as the value of the rectification claim itself ([37]). It also found that Procent would not be prejudiced in a certain amount of $100,000 or more if the appeal were dismissed ([38]). The Court therefore held that leave was required ([41]).
On the central register issue, the Court considered the ordinary meaning of the entries in the context of the statutory definitions. Schedule 2 to the Corporations Act says that a company is not under “external administration” merely because a receiver, receiver and manager or other controller has been appointed in relation to its property. It similarly says that such an appointment alone does not make the appointee an “external administrator” of the company ([51]–[52]). The Act also defines a receiver by reference to property, and provides that a receiver of a body corporate’s property is also a manager in specified circumstances ([53]–[57]).
The Court concluded that a reasonable reader, considering those definitions, would understand that “Receiver Manager” related to property. It considered the linked forms and their document identifiers important: the register allowed an interested reader to inspect the forms and see precisely what property the appointments concerned ([58]–[61]). The Court did not accept that the mere fact that some readers might not purchase or inspect the underlying forms established that they had been misled. The evidence did not reveal why information brokers did or did not obtain the forms, and therefore did not establish that non-interrogators were misled ([62]).
Procent also relied on practical consequences, including a cancelled corporate credit card and unsuccessful refinancing. The Court noted that the card cancellation was consistent with the card terms, and that the refinancing failed for various reasons. It also noted that the refinancing did not proceed even after the potential refinancer was told that the receivers were appointed over the property, not the company ([63]–[64]).
Finally, the Court applied the usual leave threshold: proposed grounds should raise an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something merely arguable ([46]). It found none of those features and refused both the extension of time and leave ([67]).
The judgment describes its leave-to-appeal principles as “well-settled” and restates the monetary threshold approach by drawing on earlier decisions, including Luo, Jabulani, Oertel, Mohareb and Marroun ([33]–[38], [45]–[46]). It applies those principles to a claim for non-monetary relief, namely rectification of a register. The Court’s analysis distinguishes the value of the claim itself from the possible value of transactions that might be pursued if the claim succeeded ([37]–[40]).
On register interpretation, the judgment applies existing definitions in the Corporations Act to ASIC’s terminology. Its reasoning turns on how the terms operate within the Act and the register’s access to source forms. It does not announce a new statutory definition or change the wording of the register ([49]–[61]).
The judgment leaves one question expressly unresolved. Procent’s case raised whether s 1322(4)(b) permits rectification where register information is correct but misleading. The Court said it was unnecessary to determine whether Re Azzuri Group Holdings Pty Ltd stood for that proposition, because it had rejected the contention that the entries in issue were misleading ([66]). Accordingly, the decision should not be read as resolving that broader point.
At [33], the Court adopted the principle that an appellant relying on the monetary threshold must show that success would improve its financial position by at least $100,000. In plain English, it was not enough to identify valuable assets or possible future deals. The evidence had to connect the order being appealed to the required financial difference.
At [34], the Court said the rectification relief had no readily ascertainable monetary value. This framed the question: the Court had to assess the value of the claim for changing the register, not simply the value of the Kurnell property or Procent’s assets.
At [37], the Court treated the commercial opportunities as supplementary to the appeal. In plain English, potential refinancing, sales or purchases that might occur later were not themselves the rectification relief being claimed.
At [49], the Court said it was “not even arguable” that the relevant information was misleading in the way Procent claimed. That was a conclusion about the proposed appeal ground on the material and arguments before the Court, not a general statement that register terminology can never mislead.
At [60], the Court said the register contained enough information for a reasonable person to investigate the nature of the administration. The practical point was that a reader could use the document identifiers to locate forms specifying that the appointment concerned property.
At [66], the Court deliberately left open whether a correct but misleading entry could be rectified under s 1322(4)(b). That paragraph limits the decision’s reach: the Court did not decide the statutory question because it considered the facts did not require it.
The decision is most directly relevant where a party seeks leave to appeal from a refusal to rectify an ASIC register entry and argues that the appeal is as of right because the matter exceeds the statutory monetary threshold. It indicates that the monetary inquiry focuses on the claim or question involved in the order appealed from and the financial prejudice caused by that order. Future commercial possibilities may not establish the value of non-monetary relief, particularly where they depend on further steps after the appeal ([33]–[41]).
It is also relevant where ASIC register terminology is challenged as misleading because it appears to describe a company as externally administered when receivers have instead been appointed over company property. The judgment shows the importance of reading register labels alongside the Act’s definitions, the entries for officeholders, and the identified source documents ([49]–[61]).
The factual features mattered. The forms here expressly referred to receivers and managers of the property described in a schedule, and the schedule identified the Kurnell property ([12], [14]). The register gave document identifiers through which readers could find those forms ([11], [13], [60]–[61]). The Court’s reasoning therefore does not determine how it would assess a register entry that lacks meaningful cross-references, has inaccurate source documents, or conceals what property is affected.
The judgment was delivered on 16 September 2026. The material supplied contains no later judicial decisions discussing or applying Procent, so later treatment cannot be established from this source. It would be speculative to say whether subsequent courts have followed, distinguished or limited it.
The judgment itself relies on and discusses earlier authorities. It cites Luo for the threshold principles governing appeals as of right, draws on Jabulani and Oertel regarding the value of claims, and distinguishes May v Costaras on the facts and the nature of the claim ([33]–[40]). It also restates the general leave criteria from Illawarra Basketball Club, Cheng and Mohareb ([46]). Those authorities are part of the reasoning in Procent; they are not later treatment of Procent.
The principal express open question is whether s 1322(4)(b) permits a rectification order where information on a register is correct but misleading. The Court declined to decide that issue, which had been raised in connection with Re Azzuri Group Holdings Pty Ltd ([66]).
The judgment also does not set a general rule about how much information an ASIC extract must display without requiring a reader to obtain underlying documents. The Court held that the document identifiers and source forms were sufficient on the facts before it ([60]–[62]). It did not decide every possible case involving abbreviated entries, difficult-to-access documents or source forms that fail to clarify the nature of an appointment.
Nor does the decision determine how evidence of lost commercial opportunities should be treated in every monetary-threshold application. The Court concluded that Procent’s claimed opportunities were supplementary to its rectification claim and that the evidence did not establish certain prejudice of $100,000 or more ([37]–[40]). Different relief or evidence could present a different question, but the judgment does not specify the boundaries.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Procent Pty Ltd v Australian Securities and Investments Commission [2026] NSWCA 192
Hearing dates: 1 September 2026
Date of orders: 16 September 2026
Decision date: 16 September 2026
Before: Bell CJ; Mitchelmore JA; Griffiths AJA
Decision: 1. Grant leave pursuant to r 51.51 of the Uniform Civil Procedure Rules 2005 (NSW) for the applicant to adduce evidence as set out in the affidavit of Eric Clayton Herman filed 29 June 2026.
2. The application for an extension of time to apply for leave to appeal is refused.
3. The summons seeking leave to appeal filed 22 April 2026 is dismissed.
4. The applicant pay the respondent’s costs.
Catchwords: CORPORATIONS — Rectification of register maintained by ASIC — Where appointment of receivers and managers to property held by company on trust — Whether terminology “externally administered”, “external administrator” and “receiver manager appointed” used in forms and extracts on the register relating to the company was misleading — When regard had to the definitions in the Corporations Act 2001 (Cth) of the terminology used on the register, a reasonable reader would have no doubt that the appointments of receivers and managers related to property of the company and not the company itself — Sufficient information provided on the register to enable a reasonable reader to interrogate the register
APPEALS — Leave to appeal — Whether leave required — Monetary threshold — Where relief sought has no readily ascertainable value — Relief sought by applicant not a claim or question amounting to a value of $100,000 or more — Leave to appeal required — No issue of principle — No issue of public importance — No reasonably clear injustice — Extension of time and leave to appeal refused
Legislation Cited: Corporations Act 2001 (Cth), ss 9, 9AD, 90, 416, 427, 1274, 1322; Schedule 2, ss 5-15, 5-20
Corporations Regulations 2001 (Cth), rr 9.1.01, 9.1.02
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), r 51.51
Cases Cited: Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Gaynor v Attorney General of New South Wales [2020] NSWCA 48
Illawarra Basketball Club Pty Ltd v National Basketball League Pty Ltd [2026] NSWCA 182
In the matter of Procent Pty Ltd (receivers and managers appointed to property held as trustee of the Captain Cook Drive Trust) [2025] NSWSC 1459
Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267
Luo v Health Care Complaints Commission [2026] NSWCA 42
Marroun v State Transport Authority (2017) 96 NSWLR 295; [2017] NSWCA 273
May v Costaras [2025] NSWCA 128
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Oertel v Crocker (1947) 75 CLR 261; [1947] HCA 40
Re Azzuri Group Holdings Pty Ltd [2023] NSWSC 566
Re Dion Investments Pty Ltd [2014] NSWCA 367
Category: Principal judgment
Parties: Procent Pty Ltd (Applicant)
Australian Securities and Investment Commission (Respondent)
Representation: Counsel:
FFF Salama / JB Douglas (Applicant)
M Cairns (Respondent)
Solicitors:
Herman Legal (Applicant)
Australian Securities and Investment Commission (Respondent)
File Number(s): 2025/00493441
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Procent Pty Ltd (Procent), in its capacity as trustee of a trust, owned property in Kurnell (the Kurnell property). A previous trustee of the trust, Kurvest Pty Ltd granted a mortgage over this property to Judo Bank Ltd (Judo). In February 2024, Judo appointed Messrs Lord and Stone as receivers and managers of the Kurnell property. This appointment was subsequently validated by court order. Consequently, various forms (including Forms 504B and 505B) were lodged and entries made in the Current and Historical and Current Extracts on the Australian Securities and Investments Commission (ASIC) register relating to Procent.
Procent argues that whilst not incorrect, the terminology of “externally administered”, “external administrator” and “receiver manager appointed” that is used in the relevant forms and entries on the companies register in relation to Procent is misleading because it does not identify that the appointments are over property of the company and instead would be understood as relating to the company itself. Procent seeks rectification of the register under s 1322(4)(b) of the Corporations Act 2001 (Cth) to, inter alia, remove certain references to “external administrator” and to insert the words “over property” in four form titles and after the words “Receiver Manager”.
Procent now seeks leave to appeal from the trial judge’s refusal to order rectification of the register maintained by ASIC. The two dispositive issues are, (i) whether Procent requires leave to appeal because its appeal does not relate to a judgment or order that involves (directly or indirectly) a question to or respecting any property amounting to or of the value of at least $100,000 (s 101(2)(r)(ii) of the Supreme Court Act 1970 (NSW)), and (ii), if it does, whether leave should be granted.
The Court (Bell CJ, Mitchelmore JA and Griffiths AJA) held, refusing the applicant’s application for an extension of time to apply for leave to appeal and leave to appeal:
Luo v Health Care Complaints Commission [2026] NSWCA 42; Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267; Oertel v Crocker (1947) 75 CLR 261; [1947] HCA 40; Mohareb v Local Court of New South Wales [2024] NSWCA 235; Marroun v State Transport Authority (2017) 96 NSWLR 295; [2017] NSWCA 273; May v Costaras [2025] NSWCA 128 considered.
Illawarra Basketball Club Pty Ltd v National Basketball League Pty Ltd [2026] NSWCA 182; Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118; Mohareb v Local Court of New South Wales [2024] NSWCA 235 considered.
THE COURT: By a summons filed 22 April 2026 Procent Pty Ltd (Procent) seeks leave to appeal from a decision by Black J dated 4 December 2025 sitting in the Equity Division of the Court: In the matter of Procent Pty Ltd (receivers and managers appointed to property held as trustee of the Captain Cook Drive Trust) [2025] NSWSC 1459 (PJ or primary judgment).
Black J refused to order rectification of the register maintained by the Australian Securities and Investments Commission (ASIC), as sought by Procent. In brief, his Honour rejected Procent’s claims that the information on the register relating to Procent was incorrect or misleading.
Following the publication of the primary judgment, there have been some significant developments. In particular, the receivers and managers of Procent have retired. Moreover, the information on ASIC’s register relating to Procent has changed with the consequence that Procent seeks rectification of the register not merely limited to the matters raised before Black J. These developments are reflected in an affidavit of Eric Clayton Herman filed 29 June 2026. At the outset of the hearing before us, the applicant was granted leave pursuant to r 51.51 of the Uniform Civil Procedure Rules 2005 (NSW) to adduce that material.
It should also be noted that, during the course of the hearing before this Court, Procent’s case changed markedly in other respects. In particular:
After multiple exchanges with the Court, Mr FFF Salama (who appeared for Procent together with Mr JB Douglas) provided revised draft short minutes of order which were notably different not only from the relief sought below but also the relief sought in the draft further amended notice of appeal. The revised draft short minutes of order are set out at [42] below and the changes are described at [43] below.
The Court was also provided with annotated extracts of ASIC’s Current and Historical Company Extract (Historical Extract) and Current Company Extract (Current Extract) for Procent (together the Annotated Extracts). Relevant parts of the Annotated Extracts are set out at [44] below.
At the time of the proceedings below, only two of six forms regarding Procent’s receivership had been lodged with ASIC. Procent sought to have those two forms (being Forms 504B and 505B) removed from the register or masked from public view on the basis that they were not required to be lodged under s 427 of the Corporations Act 2001 (Cth). This was because Procent argued that the receivers were not appointed in respect of property of Procent in circumstances where the Kurnell property was merely held by it on trust and not beneficially. This argument was rejected by Black J.
Procent, in its capacity as trustee of a trust, owned property in Kurnell (the Kurnell property). A previous trustee of the trust, Kurvest Pty Ltd granted a mortgage over this property to Judo Bank Ltd (Judo).
In February 2024, Judo appointed Mr Brett Stephen Lord and Mr Richard Stone as receivers and managers of the Kurnell property. This appointment was subsequently validated by court order: PJ [4]-[5], [15].
Under s 1274 of the Corporations Act, ASIC is required to keep such registers as it considers necessary in such form as it thinks fit. Between 5 September 2024 and 11 May 2026, the entry for Procent on the ASIC register relevantly read as follows:
Current Organisation Details
Name: PROCENT PTY LTD
…
Status: Externally Administered
Note: For information about this status refer to the documents listed under the heading ‘External Administration and/or appointment of Controller’, below.
…
Later in the extract, beneath the heading “Officeholders and Other Roles” and under the subheading “External Administrator”, each of the two receivers and managers was listed as “Receiver Manager”.
These entries were presumably made in accordance with the legislative requirement that the entry for a corporation in the register of companies must include any “receiver, or receiver and manager, of the property of the corporation”: see rr 9.1.01, 9.1.02 of the Corporations Regulations 2001 (Cth) and s 9AD(1)(c) of the Corporations Act.
The extract relating to Procent then recorded two documents under the heading “Documents Relating to External Administration and/or Appointment of Controller”.
The first document was a Form 505B lodged electronically on 4 October 2024 by Mr Lord. Under the heading “Form type”, the document was given the title “Notice by External Administrator/controller-Appoint/cease Appointment Of Receiver And Manager”. A document number (7ECZ44018) was given in the sixth column of the extract which identifies the particular Form 505B.
The actual Form 505B itself was entitled “External Administration or Controllership” and had a subheading “Appointment of an administrator or controller”. It relevantly read as follows (emphasis in original):
Appointment Details
…
Type of administrator: Receiver and Manager of the property described in the schedule of property
…
Schedule of property: The Property described in Annexure A.
Annexure A to the Form 505B (which had a sub-heading “Schedule of Property”) then read (emphasis in original):
1. The property comprised and described in folio identifier [XXXXXX] known as XXXX Captain Cook Drive, Kurnell NSW 2231 (Property), being part of the “Secured Property” secured by, or as defined in, the General Security Agreement dated on or around 20 December 2021 between Kurvest … and Judo … (as secured party).
2. The “Secured Assets” as defined in the real property mortgage … (Mortgage) granted by Kurvest in favour of Judo … including (without limitation) the Property transferred on or around 5 September 2024 from Kurvest to Procent … pursuant to Transfer Without Monetary Consideration bearing registered dealing number AU182475 (Transfer).
The Mortgage remains registered against the Property despite the Transfer and therefore confirms the Receivers’ appointment by virtue of the Transfer.
The second document was a Form 504B lodged electronically on 7 October 2024 by Judo. It was given the title “Notification Of Appointment Of A Receiver And Manager” in the register and was identified by a document number (032100415) in the sixth column of the extract.
The actual Form 504B was entitled “Notification that a person has been appointed controller/ entered into possession etc.”. Under the heading “Details of the appointment/entry into possession etc.”, the box next to “Receiver and manager of the property described in the Schedule to this form” was ticked. That schedule described the Kurnell property in substantially the same terms to those described in the Form 505B extracted at [12] above.
On 2 October 2025, the Kurnell property was sold. The entry on the register of companies for Procent still showed receivers and managers as appointed at that time.
Procent contended below that the information in its entry on the register was incorrect and/or misleading. That was said to be so because the register implied that a receiver and manager had been appointed to Procent, not to the Kurnell property.
Procent sought orders below directing the rectification of the register under s 1322 of the Corporations Act, which relevantly provides:
1322 Irregularities
…
(4) Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:
…
(b) an order directing the rectification of any register kept by ASIC under this Act;
…
and may make such consequential or ancillary orders as the Court thinks fit.
…
(6) The Court must not make an order under this section unless it is satisfied:
…
(c) in every case—that no substantial injustice has been or is likely to be caused to any person.
The particular orders sought by Procent in the originating process filed 22 August 2025 required ASIC to:
record the status of Procent on the register as “registered”;
remove from the register any reference to a “receiver manager” relating to Procent;
remove from the register and from public view the Forms 504B and 505B;
remove from the register all information derived from, and references to, the Forms 504B and 505B; and
remove from the register any reference to Procent being “under external administration and/or controller appointed”: PJ [1].
The primary judge promptly delivered judgment and explained in clear and succinct terms why he refused to make the orders sought by Procent. His Honour gave the following reasons for finding that the relevant information on the companies register relating to Procent was not incorrect or misleading: PJ [32], [40].
First, the following findings by the primary judge should be noted:
The parties were agreed (and the primary judge accepted), that “the concept of external administration of a company is different, in character, from the appointment of a controller to property of a company”: PJ [20].
The Form 504B was not misleading. Judo accurately recorded that it had appointed a receiver and manager only to the Kurnell property: PJ [13] and [17].
The Form 505B was not misleading. The Form made clear that it concerned the appointment of a receiver and manager of the property which was identified as the Kurnell property: PJ [14] and [17].
Secondly, no other basis for directing the rectification of the register under s 1322(4)(b) of the Corporations Act had been established: PJ [40].
Thirdly, the primary judge reasoned that the mere fact that the relevant information in the entry for Procent had caused “commercial prejudice” to it did not support the rectification of the register in the manner sought: PJ [32]. This was because his Honour accepted that:
“the appointment of the receivers to the Kurnell Property and the public notice of that matter on the ASIC register [has] had significant adverse impacts for Procent”: PJ [6]; but
“the existence of that prejudice does not indicate information in the register is either incorrect or misleading. It seems to me that it is plainly not, for the reasons noted above”: PJ [31].
Fourthly, the primary judge also found that the consequences of including the relevant information on the register were not “plainly unfair and unjust”: PJ [33].
Fifthly, his Honour concluded that, in any event, he was bound to refuse to make the orders sought because they would cause substantial injustice to users of the register: PJ [40]. Section 1322(6)(c) of the Corporations Act provides that the Court cannot make orders under s 1322(4)(b) unless satisfied that no substantial injustice would likely be caused to any person by the making of the orders. His Honour found that the orders would cause substantial injustice to users of the register by depriving them of relevant information that was presently contained in the register.
(a) is leave to appeal required; and (b) if it is, should time be extended and leave to appeal be granted?
101 Appeal in proceedings before the Court
(1) Subject to this and any other Act and subject to the rules, an appeal shall lie to the Court of Appeal from—
(a) any judgment or order of the Court in a Division …
…
(2) An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from—
…
(r) a final judgment or order in proceedings of the Court, other than an appeal—
(i) that involves a matter at issue amounting to or of the value of $100,000 or more, or
(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.
…
Procent’s primary position was that it did not require leave to appeal because it says an appeal lies as of right under s 101(1)(a) of the Supreme Court Act. This is because it claims that the appeal relates to a judgment or order that involves (directly or indirectly) a question to or respecting any property amounting to or of the value of at least $100,000 (see s 101(2)(r)(ii)). Relying on cases such as Gaynor v Attorney General of New South Wales [2020] NSWCA 48 at [13]-[19], Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80] and Re Dion Investments Pty Ltd [2014] NSWCA 367 at [5], Procent submitted that the issue between the parties is capable of an estimate of value well in excess of $100,000 when account is taken of matters such as Procent’s net assets (which were in excess of $4.1 million for the year ended 30 June 2024, as noted at PJ [19] and were estimated at $6.5 million as at 30 June 2025).
Procent also relied on its attempts to refinance the Kurnell property for sums well in excess of $100,000 but failed to do so because, it says, the information on the register stymied the refinancing.
Procent also claimed that it had tried to sell other properties owned by it in Jannali and Austral for amounts well in excess of $100,000, but failed to do so, it says, for the same reason.
Finally, Procent pointed to its unsuccessful attempt to purchase a business named Dough’d Up for $150,000, but failed to do so, it says, because the vendor’s lawyer raised insolvency concerns over Procent’s status listed on the register as under “external administration”.
For the following reasons, we do not consider that s 101(2)(r)(ii) of the Supreme Court Act applies to Procent so as to avoid the need for it to obtain leave to appeal.
Many of the relevant principles were helpfully summarised by Free JA recently in Luo v Health Care Complaints Commission [2026] NSWCA 42 at [17] (emphasis added):
(1) the onus lies on the party asserting that it may bring its appeal as of right to demonstrate that the amount in issue meets the $100,000 threshold;
(2) this involves showing that a successful appeal would improve the party’s financial position by at least that amount; and
(3) this requires demonstration of a realistic prospect on appeal of lessening the prejudice that the party would otherwise suffer by reason of the order appealed against. There must be a proper evidentiary basis for the party’s contentions in this regard.
The relevant order challenged by Procent is the order below dismissing the originating process dated 22 August 2025, in which orders were sought directing ASIC to rectify the register. This relief has no “readily ascertainable monetary value”, a concept which is referred to in cases such as Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [24] and Marroun v State Transport Authority (2017) 96 NSWLR 295; [2017] NSWCA 273 at [12].
In Jabulani, the Court said at [80(7)] (emphasis added):
Section 101(2)(r)(ii) involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more. Illustrations of the sort of cases caught by that provision [s 101(2)(r)(ii)] are a judgment for an injunction, for specific performance of a contract, for administration of a trust, for a declaration of right, or for the issue of a prerogative writ in which a judgment is not given for a sum or matter at issue between the parties but nevertheless the issue between the parties - described as a claim, statement or question - may be capable of an estimate of value: Nanschild v Pratt [2011] NSWCA 85 at [27].
If the appellant can show that if his appeal succeeds the alteration consequentially made in a judgment… will make him better off by at least £300, then the judgment appealed against is a judgment involving a claim… amounting to the value of £300.
Notwithstanding the difference in the language used in subsections (i) and (ii) of s 101(2)(r), the question whether an appeal lies as of right turns on whether the right claimed by the appellant, but denied by the judgment, prejudices the appellant to the amount of $100,000: Nanschild v Pratt at [28].
Applying that approach here, Procent will not be prejudiced in a certain amount of $100,000 or more if the appeal is dismissed.
We do not accept Procent’s claim that the evidence of its lost business opportunities is similar to evidence of the reserve price of property in excess of $100,000 in May v Costaras [2025] NSWCA 128 at [8] (which meant that leave to appeal was not required in that case).
May does not assist because, as ASIC correctly points out:
The relevant issue in May was “the value of the claim” (at [8]), rather than the value of the property to which the claim related.
The issue was whether in circumstances where a property was held on trust two-thirds for the appellant and one-third for the respondent, the value of the claim the subject of the appeal was “readily ascertainable” as one-third of the value of the subject property if the respondent’s one-third was subject to a resulting trust in favour of the appellant.
There was a document in evidence in May which showed that the reserve price of the property was $330,000, thus one-third of that amount (representing the appellant’s claim) exceeded the minimum cap of $100,000.
The position is different here because Procent’s claim is for rectification of the register which itself has no monetary value.
For these reasons, we consider that s 101(2)(r)(ii) does not apply and Procent requires leave to appeal.
1 ORDER that the appeal is allowed.
2 ORDER that Judgment of the Court below be set aside.
3 ORDER pursuant to s1322(4)(b) of the Corporations Act, that the Respondent rectify the register of companies that is kept by the Respondent under the Corporations Act (the Companies Register) in relation to the Appellant:
a. so as to remove from the public view on the Companies Register with respect to the Appellant:
i. all information derived from Document No. 032100415 being a Form 504 Notification of Appointment of a Receiver and Manager lodged with the Respondent on or around 7 October 2024; and
ii. all references to that document;
b. so as to remove from the public view on the Companies Register with respect to the Appellant:
i. all information derived from Document No. 7ECZ44018 being a Form 505 Notice by External Administration/Controller-Appoint/Cease Appointment of Receiver and Manager lodged with the Respondent on or around 4 October 2024; and
ii. all references to that document;
c. so as to remove any reference from the public view on the Companies Register with respect to the Appellant to “Externally Administered” or “Under External Administration And/Or Controller Appointed”; and
d. so as to remove any reference from the public view on the Companies Register with respect to the Appellant to “Receiver Manager” including Mr Brett Stephen Lord and Mr Richard Stone appointed from 5 September 2024 to 12 May 2026.
4 ORDER pursuant to s1322(4)(b) of the Corporations Act, that:
a. Form 505 Notice by External Administration/Controller-Appoint/Cease Appointment of Receiver and Manager (Document No. 7ECZ44018) lodged with the Respondent on or around 4 October 2024;
b. Form 504 Notification of Appointment of a Receiver and Manager (Document No. 032100415) lodged with the Respondent on or around 7 October 2024;
c. Form 506L Notification of Charge of Address of an External Administrator or Controller or Scheme Administrator (Document No. 7EDV60345) lodged with the Respondent on or around 27 January 2026;
d. Form 506L Notification of Charge of Address of an External Administrator or Controller or Scheme Administrator (Document No. 7EDV65863) lodged with the Respondent on or around 28 January 2026;
e. Form 5602F Annual Administration Return of Receiver and Manager (Document No. 7EDY22791) lodged with the Respondent on or around 30 March 2026; and
f. Form 505L Notice by External Administrator/controller-Appoint/cease Receiver Manager Ceasing to Act (Document No.7EEA08667) lodged with the Respondent on or around 12 May 2026,
be withdrawn or removed by the Respondent from public view on the Companies Register.
53 An ORDER , in the alternative to ORDERS 3a, 3b, 3c and 4, that the Respondent rectify the Companies Register:
a. so as to remove on the public view in the Companies Register the former historical status of the Appellant (from 05/09/2024 to 11/05/2026) in the historical company extract as “Externally Administered”;
a. so as to remove any reference on the public view in the Companies Register with respect to the Appellant to “Externally Administered”;
b. so as to record on the public view in the Companies Register the former historical status of the Appellant (from 05/09/2024 to 11/05/2026) in the historical company extract as “appointment of Controller” or “appointment of Receiver Manager over property”;
c. so as to record on the public view in the Companies Register any historical reference to “Receiver Manager” (from 05/09/2024 to 11/05/2026) in the historical company extract to “Receiver Manager over property”;
d. so as to record on the public view in the Companies Register any reference to “Receiver Manager” in any headings of any forms lodged with ASIC in the Documents section of the historical company extract retained from the Respondent’s register to “Receiver Manager over property”;
e. so as to record on the public view in the Companies Register any reference to “Receiver Manager” in any headings of any forms lodged with ASIC in the Documents section of the current company extract retained from the Respondent’s register to “Receiver Manager over property”;
f. so as to remove any current or historical reference on the public view in the Companies Register with respect to the Appellant to “Externally Administered” or “External Administrator” including:
i. in the Previous External Administrator section of the historical company extract retained from the Respondent’s register and to be replaced with “Previous Controller” or “Previous Receiver Manager over property”; and
ii. including inon any headings of any forms lodged with ASIC in the Documents section of the historical company extract retained from the Respondent’s register;
iii. in any headings of any forms lodged with ASIC in the Documents section of the current company extract retained from the Respondent’s register;
b.
c.g. to include in the Companies Register information derived from:
i. Document No. 032100415 being a Form 504 Notification of Appointment of a Receiver and Manager lodged with the Respondent on or around 7 October 2024; and
ii. Document No. 7ECZ44018 being a Form 505 Notice by External Administration/Controller-Appoint/Cease Appointment of Receiver and Manager lodged with the Respondent on or around 4 October 2024,
that expressly identifies on the public view historical company extract retained from the Respondent’s register the specific trust property in respect of which the receivers were appointed over property being XXX Captain Cook Drive, Kurnell NSW 2231 (folio identifier XX/XXXXXX).
64 ORDER that the Respondent pay the Appellant's costs of the proceedings below and of the appeal.
75 ORDER such further or other orders as the Court thinks fit.
The revised draft short minutes of order highlight the following significant changes to the orders now sought by Procent. Procent:
now wishes to have the title “Controller Appointed” included on the Historical Extract;
no longer seeks to remove references to “Receiver Manager” and instead seeks to insert the words “over property” after the words “Receiver Manager”;
seeks that a new field called “Property” be inserted in the Historical Extract after each of the two Receiver and Managers’ details and that the address and folio identifier of the Kurnell property be included;
seeks that the heading “Previous External Administrator” be replaced with “Controller or Receiver Manager over property”; and
no longer seeks to remove forms lodged with ASIC from public view and instead seeks to amend the title of six forms to remove four references to “External Administrator” and to add the words “over property” in four of the six form titles.
As also noted above, at the Court’s request, Procent provided marked up copies of the Annotated Extracts to demonstrate the matters it sought to have rectified. The relevant parts of the Annotated Extracts are now set out (with certain address details redacted by us).
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It is desirable to restate the now well-settled principles which guide the Court’s power to grant leave to appeal.
The Court will generally grant leave to appeal only where the proposed grounds raise an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: Illawarra Basketball Club Pty Ltd v National Basketball League Pty Ltd [2026] NSWCA 182 at [52] per Bell CJ, Leeming JA and Griffiths AJA agreeing; Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15] per Bell CJ, Ward P and Basten AJA agreeing. See also Mohareb at [25]-[36] per Kirk and McHugh JJA.
At the heart of Procent’s complaint that some parts of the register are misleading is its claim that the terminology of “externally administered”, “external administrator” and “receiver manager appointed” does not identify that the appointments are over property of the company and would be understood as relating to the company itself.
Mr Salama confirmed that Procent did not contend that the terminology was incorrect; rather, it was said to be misleading. He submitted that this was the “nub of th[e] appeal”.
We do not accept that it is even arguable that the relevant information is misleading in the manner claimed by Procent. We consider that the definitions in s 9 of the Corporations Act of the terminology used by ASIC in the Historical and Current Extracts would leave a reasonable reader of the register in no doubt that the appointments related to property of Procent and not the company itself.
The relevant definitions relate to the following terminology which appears on the register: “external administrator”, “receiver”, “receiver and manager” and “controller”. Those definitions are respectively as follows. In s 9 of the Corporations Act, “external administrator” is defined as:
external administrator***:***
(a) other than in Chapter 5 and Part 7.3B—has the same meaning as in Schedule 2; and
(b) in Part 7.3B:
(i) subject to subparagraph (ii)—means an external administrator (within the meaning of Schedule 2 to this Act), a receiver, manager, managing controller, receiver and manager or other controller; and
(ii) does not include a statutory manager (within the meaning of this Act) or a Banking Act statutory manager (within the meaning of the Banking Act 1959).
5**‑15 Meaning of** external administration of a company
A company is taken to be under external administration if:
(a) the company is under administration; or
(b) a deed of company arrangement has been entered into in relation to the company; or
(ba) the company is under restructuring; or
(bb) a restructuring plan has been made in relation to the company; or
(c) a liquidator has been appointed in relation to the company; or
(d) a provisional liquidator has been appointed in relation to the company.
Note: A company is not under external administration for the purposes of this Schedule merely because a receiver, receiver and manager, or other controller has been appointed in relation to property of the company.
5**‑20 Meaning of** external administrator of a company
A person is an external administrator of a company if the person is:
(a) the administrator of the company; or
(b) the administrator under a deed of company arrangement that has been entered into in relation to the company; or
(ba) the restructuring practitioner for the company; or
(bb) the restructuring practitioner for a restructuring plan that has been made in relation to the company; or
(c) the liquidator of the company; or
(d) the provisional liquidator of the company.
Note: A person is not an external administrator of a company for the purposes of this Schedule merely because the person has been appointed as a receiver, receiver and manager, or controller in relation to property of the company.
The Notes to both ss 5-15 and 5-20 make clear that merely because a person has been appointed as a receiver and manager or controller in relation to property of a company does not mean that the person is an external administrator of the company or that the company itself is under external administration.
A “receiver” is defined as:
receiver has a meaning affected by paragraph 434D(b) (which deals with 2 or more persons appointed as receivers) and:
(a) in Part 5.2 (receivers, and other controllers, of property)—has a meaning affected by section 416; and
(b) in Part 5.3A (deeds of company arrangement)—has a meaning affected by section 435B; and
(c) in Part 8B.6 (external administration and deregistration of CCIVs)—has a meaning affected by section 1236A.
Section 416 (which is referred to in paragraph (a) of the definition of “receiver”) defines the meaning of “property” and “receiver” for the purposes of Pt 5.2 (which is headed “Receivers, and other controllers, of property of corporations”) as meaning property (in the case of a company) in Australia or outside Australia. Section 416 also defines “receiver” in relation to property of a corporation as including a receiver and manager.
“Receiver and manager” is defined in s 9 as follows:
receiver and manager has a meaning affected by section 90 and has a meaning affected by paragraph 434E(b) (which deals with 2 or more persons appointed as receivers and managers).
90 Receivers and managers
A receiver of property of a body corporate is also a manager if the receiver manages, or has under the terms of the receiver’s appointment power to manage, affairs of the body.
controller, in relation to property of a corporation, means:
(a) a receiver, or receiver and manager, of that property; or
(b) anyone else who (whether or not as agent for the corporation) is in possession, or has control, of that property for the purpose of enforcing a security interest;
and has a meaning affected by paragraph 434F(b) (which deals with 2 or more persons appointed as controllers).
We accept ASIC’s submission that the use of the terminology “receiver and manager” in the register cannot be misleading when it is only possible to have a receiver and manager of property as opposed to a company. Similarly, it cannot be misleading for the register to use the terminology of “external administrator” when the Notes to ss 5-15 and 5-20 explicitly state that a person is not an external administrator of a company for the purposes of Sch 2 merely because the person has been appointed as inter alia “receiver and manager” in relation to property of the company.
The Chief Justice pointed out during the course of the hearing that the terminology “external administrator” was not misleading when regard was had to the relevant definitions in the Corporations Act. Mr Salama responded:
SALAMA: Your Honour, it’s the fact that it does not clarify ‑ I accept that the definition of “external administrator” has multiple subheadings: controllers, receivers, managers, liquidators and perhaps everything else in between. It’s the failure of the notification on the ASIC searches, the extracts, to identify precisely that it is over property.
This response is not accepted. It fails to take into account the definitions referred to above, as well as information which appears in both the Historical and Current Extracts which enables an interested reader to interrogate the forms which are the source of the information in the register and ascertain the precise nature of an external administration affecting a company.
This was pointed out in oral argument by Mitchelmore JA, as is reflected in the following exchanges:
MITCHELMORE JA: Mr Salama, there is disclosure because what is disclosed is the specific document identification number for the particular forms, so they disclose the doc ID that you can then interrogate and see precisely what the nature of the administration is. I’m just struggling to understand how it's misleading in circumstances where the form might identify a number of different officeholders, but it's disclosing the document, and if people don't go to the document that's a matter for them, but how does that make the register misleading?
SALAMA: Perhaps one submission I can make to your Honour and that is this: the fact that the forms are named with multiple different types that would fall, as your Honour the chief justice has said ‑ externally administered. I mean, for example, if your Honour looks at page orange 223, they've got language at, for example, D, “Administrator, controller, scheme administrator”.
MITCHELMORE JA: Sure, but it's also got in the fourth column the document, so if there's any confusion you go to the actual document and you can see precisely what the office is in the present case.
SALAMA: Your Honour is correct, and I think, as I was‑‑
MITCHELMORE JA: That's how the register works.
Procent submitted that the capacity of third parties to interrogate the register by, for example, paying ASIC to access the relevant Forms 504B and 505B was not an answer to its complaint that the register was misleading. It pointed to ASIC’s own evidence below which was to the effect that, of 43 Extracts relating to Procent purchased by information brokers in the period 18 August 2024 to 25 September 2025, only eight Forms 504B and eight Forms 505B were purchased. This submission carries little if any weight, however, because the data and evidence does not disclose the reasons why the relevant persons did or did not seek further to interrogate the register. The evidence cannot support a finding that the non-interrogators were misled.
For completeness, we also reject any submission by Procent that the information on the register was misleading because Procent’s corporate American Express credit card was cancelled and Procent also failed in its attempts to refinance the Kurnell property. As to the first matter, Mr Salama ultimately acknowledged that the cancellation of the American Express card was consistent with the relevant terms and conditions pertaining to the card. Moreover, American Express declined to restore the card even when it was pointed out by Procent that the receivers and managers had been appointed to the Kurnell property and not to the company itself.
Similarly, as to the unsuccessful refinancing, Mr Salama ultimately agreed that the refinancing was unsuccessful for “various different reasons”, not confined to the information regarding Procent on the register. It is also telling that, even when Procent’s solicitors pointed out to the potential refinancer that the receivers and managers were appointed to the Kurnell property and not to Procent itself, the refinancing still did not proceed.
For all these reasons, we reject Procent’s contention that entries on the Historical and Current Extracts, which Mr Salama agreed were the “two key documents”, are misleading. The same reasoning applies to the other documents the subject of Procent’s complaint.
In these circumstances, it is unnecessary for us to resolve a question raised by the parties as to whether Williams J’s decision in Re Azzuri Group Holdings Pty Ltd [2023] NSWSC 566 stands for the proposition that there is a power under s 1322(4)(b) to make a rectification order where the register is correct but is also misleading.
For all these reasons, not only does the proposed appeal not raise any issue of principle or question of public importance, but there is also no reasonably clear injustice going beyond something that is merely arguable. Accordingly, time will not be extended for Procent to apply for leave to appeal and leave to appeal will also be refused.
In these circumstances, it is unnecessary to address the issue raised by ASIC as to whether Procent should have leave to rely on the amended relief because of the prejudice created for ASIC as outlined above.
Procent properly acknowledged that, if leave to appeal was refused, an order for costs should be made in ASIC’s favour.
Accordingly, the orders of the Court are:
Grant leave pursuant to r 51.51 of the Uniform Civil Procedure Rules 2005 (NSW) for the applicant to adduce evidence as set out in the affidavit of Eric Clayton Herman filed 29 June 2026.
The application for an extension of time to apply for leave to appeal is refused.
The summons seeking leave to appeal filed 22 April 2026 is dismissed.
The applicant pay the respondent’s costs.
**********
Addresses in images at [44] redacted to reflect reasons for judgment provided to parties
Procent Pty Ltd
Australian Securities and Investments Commission
[2026] NSWCA 182
(2022) 108 NSWLR 342
(2017) 96 NSWLR 295
(1947) 75 CLR 261
Leave to adduce the affidavit evidence filed 29 June 2026 was granted. The extension of time to apply for leave to appeal was refused; the summons for leave to appeal was dismissed; and Procent was ordered to pay ASIC’s costs.
Procent now seeks rectification not only in respect of these two forms, but also in respect of other forms and the Annotated Extracts. However, it no longer seeks to have any forms removed from the register.
For reasons which will be explained, we are not satisfied that Procent has established that any of the information identified in its revised draft short minutes of order or Annotated Extracts is misleading so as to warrant consideration of whether the rectification power under s 1322(4)(b) of the Corporations Act should be exercised in Procent’s favour. Necessarily, therefore, as we consider that leave to appeal is required, it will be refused (together with the extension of time sought by Procent).