(2)
upon discovery of the need to register, the applicants acted promptly. Following the
discovery of the need to register the security interests in May 2022, solicitors were
consulted in June 2022 and this proceeding was commenced on 1 July 2022;
(
3)
4)
the affected Grantor Respondents and the AllPAP Respondents did not oppose the
making of the order sought;
(
there is no evidence of the financial position of the Grantor Respondents but the
interests of unsecured creditors will be adequately protected by the imposition of the
condition proposed by the applicants in paragraph 3 of its proposed further amended
originating process, with modifications including to remove the reference to the order
sought pursuant to s 293(1)(a) of the PPSA (being something which was done in the
draft order provided by the applicants). That is, the applicants seek to include what
has been described in the authorities as a Guardian Securities condition as follows:
Any liquidator, administrator or deed administrator of any of the first to
seventh, tenth to twelfth, fourteenth and sixteenth respondents has liberty to
apply to discharge or vary [the order made under s 588FM Corporations Act]
if any winding up of any such respondent occurs, or an administrator is
appointed to such respondent under ss 436A, 436B or 436C of the
Corporations Act, or any such respondent executes a deed of company
arrangement, within six months of 21 June 2022.
26
As to the imposition of such a condition, it was explained by Brereton J in In the matter of
Appleyard Capital Pty Limited; 123 Sweden AB v Appleyard Capital Pty Limited (2014) 101
ACSR 629; [2014] NSWSC 782 at [25]:
The Australian authorities establish that the interests of the unsecured creditors are a
relevant consideration, so that the court must have regard to the financial position of
the company as at the time of the application for extension. If the company is shown
to be financially secure, then it is unlikely that a “critical day” will arise in the
foreseeable future and the grant of relief will not likely affect any person adversely
(
Hewlett Packard at [29]); indeed, if solvency is established that is likely to be the
end of the matter (Investa Properties Pty Ltd v Westpac Property Funds Management
Ltd (2001) 187 ALR 462; 40 ACSR 124; [2001] NSWSC 1089 at [31]). But
otherwise, where the court is not satisfied that there is no risk that unsecured
creditors could be adversely affected, the unsecured creditors (or their representative)
are entitled to be heard against the making of an order, though this may sufficiently
be achieved by suspending the operation of the order, or by imposing a term
reserving leave to apply to set it aside in the event of a liquidation or administration
(
a Guardian Securities condition): [Re Guardian Securities Ltd [1984] 1 NSWLR 95]
at 97; see also Re Cinema Art Films [1930] NZLR 500 at 502–3 (Cinema Art Films);
Re L H Charles & Co Ltd (1935) WN(Eng) 15 (L H Charles & Co); Bevillesta, 58.
27
In all of the circumstances, I am satisfied that the order sought by the applicants should be
made with the date to be fixed as 21 June 2022, being the last date referred to in the
Evolution Fleet Services Pty Ltd v Allroads Plant Pty Ltd [2022] FCA 1084
6
