Research the decision in Maiden Civil (P&E) Pty Ltd (receivers and managers appointed) v Queensland Excavation Services Pty Ltd [2013] NSWSC 852 and explain

The decision in the case ofMaiden Civil (P&E) Pty Ltd; Richard Albarran and Blair Alexander Pleash as receivers and managers of Maiden Civil (P&E) Pty Ltd & Ors v Queensland Excavation Services Pty Ltd & Ors[2013] NSWSC 852provides guidance on the operation of the PPSA and how to resolve priority disputes.

Facts

Queensland Excavation Services Pty Limited (QES) was involved in the leasing of large earthmoving vehicles. QES leased 3 pieces of Caterpillar construction machinery (Equipment) to Maiden Civil (P&E) Pty Ltd (Maiden). QES never registered its interest in the Equipment on the Northern Territory motor vehicle registry (a transitional PPSA register) meaning that it did not obtain the benefit of deemed perfection that is applicable to transitional security interests. QES also failed to register the security interest on the Personal Property Securities Register (PPSR) once it came into operation on 30 January 2012.

Subsequently, Maiden entered into a Loan Agreement secured by a General Security Deed whereby Maiden granted Fast Financial Solutions Pty Ltd (Fast Financial) a security interest in all present and after acquired property of Maiden. Importantly, the security was registered on the PPSR and included the Equipment.

Maiden defaulted under the Loan Agreement and receivers and managers were appointed. The receivers and managers sought to take possession of the Equipment to discharge the debt owed to Fast Financial.

The case would ultimately be determined upon the operation of the PPSA and whether the registered security interest took priority over the first in time unregistered interest.

Decision

The court held that thenemo dat(you cannot give what you don't have) rule no longer applies in Australia where the PPSA operates.

The fact that QES was the owner of the Equipment did not persuade the court to give QES priority over Fast Financial. As Fast Financial had registered its security interest over the Equipment and QES did not, Fast Financial was given priority and the Equipment could be used to discharge Maiden's debt to Fast Financial.

As a result, QES lost all its entitlement to the Equipment when the receivers and managers re-possessed the Equipment.

(a) Which competing security interest had priority and why?

(b) If Queensland Excavation Services Pty Ltd had registered their security arrangements on the Personal Property Security Register, would they have been enforceable against Fast Financial Solutions Pty Ltd? Explain why.

. Using IRAC Method to answer this question ("Issue, Rule, Application, Conclusion" structure of legal analysis)