The decision in RPPS v Brookfield is the first recorded instance of s 151 of the PPSA being enforced (with a $30,000 penalty imposed for an improper registration). It serves as a caution to those making spurious registrations, but reasonably diligent and responsible parties should have no cause for alarm.
Overview of section 151 of the Personal Property Securities Act 2009
Under section 151(1) of the Personal Property Securities Act 2009 (Cth) (PPS Act) a person must not apply to register a financing statement on the Personal Property Securities Register (PPSR), that describes collateral, unless the person believes on reasonable grounds that they are or will be a secured party in relation to the described collateral. Section 151(2) of the PPS Act requires a person to apply to remove a registration within 5 business days where the person described as a secured party was never actually a secured party, or they no longer hold a reasonable belief that they will become a secured party in respect of the collateral. Both subsections attract a civil penalty under the PPS Act.
In the recent decision of Registrar of Personal Property Securities v Brookfield [2024] FCA 29 (RPPS v Brookfield) a civil penalty of $30,000 was imposed on the respondent, Mr Brookfield, for contravening sections 151(1) and (2) of the PPS Act - the first imposition of a civil penalty under s 151 since the inception of the PPS Act.
Background
In July 2015, Blueprop Pty Ltd (Blueprop), as a vendor, entered into a “Rent Roll Sale and Purchase Agreement” (Agreement) with Real Estate Now Pty Ltd (Real Estate Now), as purchaser, with Mr Mark Mergard as a warrantor. Clause 3.1 of the Agreement stipulated that:
Subject to the terms and conditions of this Agreement and satisfaction or waiver of the Conditions Precedent the Vendor will sell and the Purchaser will buy the Rent Roll free from any Security Interest for the Purchase Price and calculated and adjusted in accordance with this Agreement.
In October 2016, Blueprop purported to assign the debt rising under the Agreement to Mr Ian Brookfield.
Between March 2016 and March 2019, Mr Brookfield made several applications to register financing statements in respect of a “security interest” allegedly granted by Real Estate Now to Mr Brookfield, as a secured party in collateral (Previous Registrations).
By 4 February 2020, the Registrar had served Mr Brookfield with six amendment notices (issued under Part 5.6 of the PPSA) in relation to those registrations. In respect of each amendment notice Mr Brookfield had been informed of the reason for the amendment notice, being that none of the collateral referred to in the registrations secured any obligation evident on the documents lodged. Accompanying four of the amendment notices were invitations by the Registrar to appeal to the Administrative Appeals Tribunal (AAT) in relation to Mr Brookfield’s registration attempts. Mr Brookfield did not respond to those invitations.
On 4 February 2020, Mr Brookfield attempted to register another financing statement in respect of the security interest allegedly granted by Real Estate Now under the Agreement. This registration was again removed by the Registrar, with the Registrar explaining to Mr Brookfield that he had not been able to provide evidence of any security interest being granted to him under the Agreement. On 2 March 2020, the Registrar further drew Mr Brookfield’s attention, in writing, to the prohibition under s 151 of the PPS Act, cautioning Mr Brookfield:
You should consider this information carefully before considering whether to apply to register any further financing statements on the PPSR, as based on the evidence you have provided to date, you do not hold a registrable security interest.
On 25 May 2022, Mr Brookfield again sought to apply for the registration of a security interest, with an application essentially identical to that which he sought to file on 4 February 2020.
The Registrar subsequently brought proceedings in May 2023 regarding the 2020 and 2022 registrations, invoking s 151 of the PPS Act.
Judgment in the RPPS v Brookfield case
Justice Sarah C. Derrington held, primarily on the basis of the protracted attempts to register a security interest despite clear correspondence from the Registrar in respect of the Previous Registrations, that Mr Brookfield’s persistent belief that he held a security interest that was registrable on the PPSR was not reasonable. Her Honour held that Mr Brookfield had breached s 151(1) of the PPS Act in relation to the 2020 and 2022 registrations. Having also failed to apply to withdraw the registrations within five business days, Her Honour correspondingly held that Mr Brookfield had breached s 151(2) of the PPS Act.
The Court found that Mr Brookfield clearly had reasonable grounds for believing he was owed a debt by Real Estate Now. However, he had been informed on multiple occasions following the Previous Registrations, that no collateral in which he had a security interest had been identified relating to the debt owed by Real Estate Now. Mr Brookfield attempted to assert in his correspondence with the Registrar that the original Agreement contained evidence of his “security interest”, referring to various provisions of the Agreement. Her Honour cited those assertions among other examples to demonstrate that Mr Brookfield laboured under a misapprehension as to the nature of a security interest generally, and the absence of any security interest under the Agreement.
In any event, Derrington J held that by 31 May 2019, Mr Brookfield had to be aware that in the opinion of the Deputy Registrar, the Agreement did not support his belief that he held a security interest by way of the Agreement and that, despite the invitations to appeal that decision at the AAT he had failed to do so. When he eventually sought a stay of the Registrar’s proceedings and applied to challenge the Registrar’s amendment notices on 31 October 2023, the application was made outside the time limit prescribed for a review application and after the matter had already been listed for trial.
Ultimately, in continuing to attempt to erroneously register a “security interest” on the PPSR, Derrington J found that Mr Brookfield’s grounds for reasonably believing he was doing so as the holder of a security interest had eroded entirely by 4 February 2020. By 25 May 2022, when Mr Brookfield submitted an identical registration to the removed registration submitted on 4 February 2020, he could point to no objective basis for any of the circumstances having changed in the interim.
The Court did not impose the maximum penalty under the civil penalty provisions, but did impose a penalty of $30,000, double the $15,000 the Registrar had sought. In determining the quantum, Her Honour recognised that no clear loss or damage was suffered as a result of the erroneous registrations, but that Mr Brookfield’s “deliberately obtuse” conduct and the significance of the PPSR required that penalties for such serious contraventions be “significant enough to pose a real deterrent to those who may seek to use the PPSR for inappropriate purposes”.
Her Honour noted that despite 12 years having passed since the inception of the PPS Act, this appeared to be the first occasion on which the Registrar commenced civil penalty proceedings pursuant to s 151 of the PPS Act. Derrington J reiterated the Registrar’s duty to maintain the integrity of the Register and to protect the public from obvious abuses of the PPSR, and observed that the exceptional circumstances of this case suggest it is unlikely this is the first of many cases brought before the Court by the Registrar seeking application of s 151.
Key Takeaways
This case is a salutary reminder to those who make registrations without a reasonable belief that they have, or will have, a security interest in the relevant collateral, of the risk of civil penalties. For those encountering resistance with making registrations, it underscores the importance of engaging with the Registrar, and promptly applying to the AAT for an appeal of the Registrar’s decision if unsatisfied with the Registrar’s determination.
For those aggrieved by vexatious or improper registrations, there are procedures under the PPS Act to remedy the situation. Where our asset financier clients have encountered such registrations (which interfere with their valid security interest in the collateral), we assisted with the amendment demand process under Parts 5.6 and 5.7 of the PPS Act. Part 5.6 allows for a person to make an amendment demand in writing where the obligation owed by a debtor is not secured by the collateral described in a registration or if the particular collateral in which that person has an interest does not secure any obligation owed to the secured party. An amendment demand not voluntarily complied with may be pursued by an administrative process activated by the Registrar, or by an application to the Court. Our clients have had some success with this process and, in our observation, good engagement with the Registrar. Faithful adherence to the process in Parts 5.6 and 5.7 of the PPS Act is imperative.
Conclusion
While a caution for the cavalier, the sanctions under s 151 are readily avoidable by a diligent party. The facts in RPPS v Brookfield are rather exceptional. In the ordinary course, should a registration error be made, a reasonably diligent party would either identify and remove the erroneous registration within the 5-day time limit to not fall foul of s 151(2) of the PPS Act or, at worst, would heed a warning from the Registrar upon the Registrar rejecting their application for registration. Further, absent a similarly drawn-out impasse over several years, it is highly unlikely that a lack of reasonable grounds for a party believing it has a registrable security interest would be made out.