A SHORT HISTORY OF LIBERTY'S PROGREE THROUGH HE EIGHTEENTH CENTURY
Administrator retains plant and equipment - 15 May 2017
1. GOLD COAST REAL ESTATE TEAM CONTACTS
Bryce Melville Rebecca Sheppard Yvette Mason Marieanne Golubinsky Meaghan Brodie
PARTNER SENIOR ASSOCIATE ASSOCIATE GRADUATE PARALEGAL
T: +61 7 5553 9424 T: +61 7 5553 9490 T: +61 7 5553 9530 T: +61 7 5553 9539 T: +61 7 5553 9411
bryce.melville@minterellison.com rebecca.sheppard@minterellison.com yvette.mason@minterellison.com marieanne.golubinsky@minterellison.com meaghan.brodie@minterellison.com
Property Developments
15 May 2017
Administrator retains Tenant’s plant and equipment
A Tenant’s administrator was allowed to
retain plant and equipment when the
Landlord had an unperfected security interest
in the recent decision of Flown Pty Ltd v
Goldrange Pty Ltd [2016] WASC 419.
Background
Goldrange Pty Ltd (Landlord) loaned Flown Pty Ltd
(Tenant) $460,000 to purchase plant and
equipment to be used in the leased premises.
The Landlord failed to register its security interest
in the plant and equipment under the Personal
Property Securities Act 2009 (Cth) (PPSA).
When the Tenant was placed into administration,
the administrator claimed the plant and
equipment on the basis that the Landlord’s
security interest was unperfected.
The Landlord gave notice terminating the lease
before the Tenant was placed into administration,
but the notice was not validly served.
The Landlord also tried to re-enter the property at
11:30am on the day the Tenant was placed into
administration, but the Tenant denied access. The
Landlord attached a notice of re-entry to the
premises stating that the Landlord had re-entered
the premises and retaken possession.
At about 1pm on the same day, the Tenant was
put into administration. The Landlord cut the
locks and re-entered the premises the next day.
The PPSA provides that a secured party cannot
have possession of personal property if another
person has actual or apparent possession of it.
The Landlord claimed it had a perfected security
interest by having constructive possession of the
plant and equipment from 11:30am (when it
attempted re-entry) on the day the Tenant went
into administration.
Decision
The Court held that the Landlord did not have both
apparent and actual physical possession of the plant
and equipment. While the invalidly given notice of
termination was not determinative, the notice of re-
entry was not enough to take physical possession of
the premises.
The Landlord’s unperfected security interest
passed to the administrator as a result of the
Landlord’s failure to register its interest.
*Disclaimer
The information contained in this update is intended as a guide only.
Professional advice should be sought before applying any of the
information to particular circumstances. While every reasonable care has
been taken in the preparation of this update, MinterEllison does not
accept liability for any errors it may contain.
![GOLD COAST REAL ESTATE TEAM CONTACTS
Bryce Melville Rebecca Sheppard Yvette Mason Marieanne Golubinsky Meaghan Brodie
PARTNER SENIOR ASSOCIATE ASSOCIATE GRADUATE PARALEGAL
T: +61 7 5553 9424 T: +61 7 5553 9490 T: +61 7 5553 9530 T: +61 7 5553 9539 T: +61 7 5553 9411
bryce.melville@minterellison.com rebecca.sheppard@minterellison.com yvette.mason@minterellison.com marieanne.golubinsky@minterellison.com meaghan.brodie@minterellison.com
Property Developments
15 May 2017
Administrator retains Tenant’s plant and equipment
A Tenant’s administrator was allowed to
retain plant and equipment when the
Landlord had an unperfected security interest
in the recent decision of Flown Pty Ltd v
Goldrange Pty Ltd [2016] WASC 419.
Background
Goldrange Pty Ltd (Landlord) loaned Flown Pty Ltd
(Tenant) $460,000 to purchase plant and
equipment to be used in the leased premises.
The Landlord failed to register its security interest
in the plant and equipment under the Personal
Property Securities Act 2009 (Cth) (PPSA).
When the Tenant was placed into administration,
the administrator claimed the plant and
equipment on the basis that the Landlord’s
security interest was unperfected.
The Landlord gave notice terminating the lease
before the Tenant was placed into administration,
but the notice was not validly served.
The Landlord also tried to re-enter the property at
11:30am on the day the Tenant was placed into
administration, but the Tenant denied access. The
Landlord attached a notice of re-entry to the
premises stating that the Landlord had re-entered
the premises and retaken possession.
At about 1pm on the same day, the Tenant was
put into administration. The Landlord cut the
locks and re-entered the premises the next day.
The PPSA provides that a secured party cannot
have possession of personal property if another
person has actual or apparent possession of it.
The Landlord claimed it had a perfected security
interest by having constructive possession of the
plant and equipment from 11:30am (when it
attempted re-entry) on the day the Tenant went
into administration.
Decision
The Court held that the Landlord did not have both
apparent and actual physical possession of the plant
and equipment. While the invalidly given notice of
termination was not determinative, the notice of re-
entry was not enough to take physical possession of
the premises.
The Landlord’s unperfected security interest
passed to the administrator as a result of the
Landlord’s failure to register its interest.
*Disclaimer
The information contained in this update is intended as a guide only.
Professional advice should be sought before applying any of the
information to particular circumstances. While every reasonable care has
been taken in the preparation of this update, MinterEllison does not
accept liability for any errors it may contain.](https://image.slidesharecdn.com/administratorretainsplantandequipment15-170604231429/85/Administrator-retains-plant-and-equipment-15-May-2017-1-320.jpg)
