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The New South Wales Supreme Court has found that a secured party cannot rely on its own mistake when registering on the Personal Property Securities Register (PPSR) to claim that the defective registration “temporarily perfects” its security interest.
In HP Financial Services (Australia) Pty Ltd v Production Printing (Aust) Pty Ltd (in liq)  NSWSC 505 a secured party incorrectly registered against a grantor’s ABN rather than its ACN as required by section 153(1) and the Personal Property Securities Regulations. The grantor was subsequently placed in voluntary administration. The secured party argued that its security interest (being its interest as lessor under a PPS lease of $4 million worth of printing equipment) was temporarily perfected by its defective registration prior to, and on, the day on which the administrators were appointed by virtue of section 166 of the Personal Property Securities Act 2009 (Cth) (PPSA).
In summary, section 166 of the PPSA provides as follows:
then despite sections 164 and 165, the defect does not make the registration ineffective for the period starting at the defect time and ending at the earliest of the following times:
but the registration becomes ineffective under sections 164 and 165 because of the defect immediately after the earliest of those times, unless, at or before that time, the registration is amended to correct the defect.
The secured party’s argument was rejected by the court. The court observed that:
The judgment in the Production Printing case follows on from the recent decision in Re OneSteel Manufacturing Pty Ltd (administrators appointed)1 which found that:
Many insolvency practitioners have been faced with the rather tenuous argument that section 166 of the PPSA saves a secured creditor from the effects of its own defective registration. Production Printing is a common sense interpretation of the relevant provisions which confirms that this argument is indeed misconceived.
1 NSWSC 21
2The grantor in the OneSteel case had an ACN and it was not the trustee of a trust or the responsible entity of a registered scheme; Part 1 of Schedule 1 to the Personal Property Securities Regulations.
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