Cathro, in the matter of Cubic Interiors NSW Pty Ltd (in liq)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 26 June 2023
• Neutral Citation: [2023] FCA 694
• Date: 26 June 2023

Federal Court of Australia

Cathro, in the matter of Cubic Interiors NSW Pty Ltd (in liq) [2023] FCA 694

File number:	NSD 133 of 2022
Judgment of:	CHEESEMAN J
Date of judgment:	26 June 2023
Catchwords:	BANKRUPTCY AND INSOLVENCY — application in respect of a PPSA security interest granted by company in liquidation after appointment of liquidators and registered on the Personal Property Securities Register (PPSR) thereafter — where declaration is sought as to the liquidator being justified in not seeking an extension of time for registration on the PPSR — where s 588FL of the Corporations Act 2001 (Cth) applies to PPSA security interests granted after the “critical time” in s 588FL(7) — Held: Application granted.
Legislation:	Corporations Act 2001 (Cth) ss 588FL, 588FM
Cases cited:	Birch, in the matter of Geelong Fire Services Pty Ltd (Administrators Appointed) [2022] FCA 963 Carrafa, Gountzos & Lofthouse (as liquidators of Relux Commercial Pty Ltd (in liq)) & Anor v Doka Formwork Pty Ltd [2014] VSC 570 Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2020) 282 FCR 1; [2020] FCAFC 192 Dickerson, in the matter of McWilliam’s Wines Group Ltd (admins apptd) (No 2) [2020] FCA 417 Hill (admin) in the matter of Flow Systems Pty Ltd (admins apptd) [2019] FCA 35 In the matter of OneSteel Manufacturing Pty Ltd (admins apptd) (2017) 93 NSWLR 611 In the matters of 4 in 1 Wyoming Pty Ltd & the companies listed in Schedule A to the Originating Process [2017] NSWSC 407; 120 ACSR 167 K.J. Renfrey Nominees Pty Ltd (Trustee), in the matter of OneSteel Manufacturing Pty Ltd v OneSteel Manufacturing Pty Ltd [2017] FCA 325; 120 ACSR 117 Korda, in the matter of Ten Network Holdings Ltd (admins apptd)(recs and mgrs apptd) [2017] FCA 1144; 35 ACLC 17-044 Krejci, Re Union Standard International Group Pty Ltd (admins apptd) (No 2) [2020] FCA 1111 La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201 Mentha, in the matter of Arrium Finance Limited v National Australia Bank Limited [2017] FCA 818 Pozzebon (Trustee) v Australian Gaming and Entertainment Ltd (in liq) [2014] FCA 1034 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Antqip: Park (Administrator), in the matter of Ellume Limited (Administrators Appointed) v Evangayle Pty Ltd (Trustee) [2022] FCA 1102 Re Antqip Pty Ltd (in liq) [2021] NSWSC 1122 Re Brashs Pty Ltd (1994) 15 ACSR 477 Re York Street Mazzanine Pty Ltd (in liq) [2007] FCA 922 Revroof Pty Ltd (receivers and managers appointed) (administrators appointed) v Taminga Street Investments Pty Ltd [2023] FCA 543 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Toll Energy and Marine Logistics Pty Ltd v Conlon Murphy Pty Ltd [2019] FCA 532; 137 ACSR 328 Valentine v Eid (1992) 27 NSWLR 615
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	87
Date of hearing:	13 May 2022
Solicitors for the plaintiff	Mr J Scarcella and Ms E Barrett of Johnson Winter Slattery
Counsel for the contradictor	Mr J Hynes

ORDERS

		NSD 133 of 2022
IN THE MATTER OF CUBIC INTERIORS NSW PTY LTD (IN LIQUIDATION) ACN 099 127 330
	SIMON CATHRO IN HIS CAPACITY AS LIQUIDATOR OF CUBIC INTERIORS NSW PTY LTD (IN LIQUIDATION) ACN 099 127 330 AND OTHERS Plaintiff

order made by:	CHEESEMAN J
DATE OF ORDER:	26 June 2023

THE COURT DECLARES THAT:

1. Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) 2016 that Simon Cathro, in his capacity as the Liquidator of Cubic Interiors NSW Pty Ltd (In Liquidation) ACN 099 127 330, Bigmig Pty Limited (In Liquidation) ACN 142 135 966; Cubic Interiors Sydney Pty Ltd (In Liquidation) ACN 623 496 391, and Cubic Contracting NSW Pty Ltd (In Liquidation) ACN 141 502 178 is justified in not seeking relief under s 588FM of the Corporations Act 2001 (Cth) in respect of the time for registration of the security registered on the Personal Property Securities Register with the registration number 202112090008705 (the Security Interest).

THE COURT ORDERS THAT:

2. To the extent necessary, pursuant to s 588FM(1) of the Act that the registration time in respect of the Security Interest be fixed as 9 December 2021 for the purposes of s 588FL(2)(b)(iv) of the Act.

3. The plaintiff’s costs of and incidental to this application be paid out of the assets of Cubic Interiors NSW Pty Ltd (in liquidation) ACN 099 127 330, Bigmig Pty Limited (In Liquidation) ACN 142 135 966; Cubic Interiors Sydney Pty Ltd (In Liquidation) ACN 623 496 391, and Cubic Contracting NSW Pty Ltd (In Liquidation) ACN 141 502 178.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1. The plaintiff, Simon Cathro, is the liquidator of Cubic Interiors NSW Pty Ltd (in liquidation) (CINSW), Bigmig Pty Limited (In Liquidation); Cubic Interiors Sydney Pty Ltd (In Liquidation) (CIS); and Cubic Contracting NSW Pty Ltd (In Liquidation) (CCNSW) (collectively, the Companies).

2. I have previously made orders pursuant to s 477(2B) of the Corporations Act 2001 (Cth) approving the liquidator’s entry, in his capacity as liquidator of the Companies, into a Loan Agreement and general security deed (GSD) with 33-37 Egerton Street Pty Ltd as trustee of the Egerton Street Trust (the Agreements). I made those orders when sitting as Commercial and Corporations Duty Judge having regard to the liquidator’s affidavit and exhibit SC-1. On the basis of the evidence led by the liquidator, I was satisfied that it was appropriate to do so on the basis of the matters put forward in [2] to [27] of the plaintiff’s written submissions, a copy of which is on the electronic court file.

3. These reasons address the remaining relief sought by the liquidator that has not yet been determined. The liquidator seeks:

….

3 A direction pursuant to section 90-15 of the Insolvency Practice Schedule (Corporations) 2016 that the Liquidator is justified in entering into the Loan Agreement and the General Security Deed and is authorised to carry its terms into effect. (Loan Agreement and GSD Declaration)

4 A direction pursuant to section 90-15 of the IPS that the Liquidator is justified in not seeking relief under section 588FM of the Act as registration no. 202112090008705 on the Personal Properties Security Register, which is in respect of securities granted after the critical time referred to in section 588FL(7)(a), is not covered by section 588FL(2). (Registration Declaration)

5 Alternatively, an order under section 588FM of the Act, in respect of registration...