Recently, Tim Castle SC of 6 St James Hall and Ingrid King of 10 St James Hall were successful in obtaining orders from Black J, to extend the time to register two PMSIs, over $10m worth of mining machines.
The plaintiff hired two underground mining machines for use in the Dartbrook Coal Mine. A company officer registered the two machines on the PPSR, following a precedent used in a prior transaction. Unbeknown to the company officer, the hire agreements gave rise to ‘PPS Leases’ under s.13 of the Personal Property Securities Act (PPSA) and PMSIs under s.14. A clear case of inadvertence.
When the mine went into administration and receivership, the primary secured creditor claimed priority under its ALLPAP. One of the plaintiff’s registrations took effect as an ordinary security interest. The other had not been registered in time and vested in the administrator. However the primary secured creditor did not show either prejudice or reliance on the plaintiff’s erroneous registrations.
The Court was persuaded to exercise the extension powers under PPSA s.293 to extend the PMSI time, and Corporations Act s.588FM to extend the time to lodge a new, correct registration. Both powers were needed as there is no power in the PPSA to amend an existing registration, and new registrations were required.
Marcus Connor of Connor & Co was the instructing solicitor with assistance from Amanda Johnston and Ena Kennedy Yoshitani. Additional counsel assistance provided by Dana Levi of Ground Floor Wentworth Chambers and Stephanie Erian of 6 St James Hall.
The case will be of interest to all lawyers practicing in the area of finance and PPS securities: In the matter of Dartbrook Commercial Pty Ltd [2025] NSWSC 1075
