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Personal Property Securities Act 2009 (Cth) A new regime.

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Presentation on theme: "Personal Property Securities Act 2009 (Cth) A new regime."— Presentation transcript:

1 Personal Property Securities Act 2009 (Cth) A new regime

2 Disclaimer This document and presentation has been prepared only as an industry guide and is based on policies of redchip lawyers Pty Ltd which may or may not be relevant to you or to your transaction. It can be used as a starting point for discussions or negotiations. No warranties or assurances can be given about the suitability of this document or any of its provisions for any specific transaction. You should seek legal advice on the form and content of documents, negotiations and decisions which are ultimately selected or made by you. redchip lawyers Pty Ltd and its officers, employees, agents and professional advisors exclude all liability (including liability for negligence) in relation to your use of this document and any advice given during this presentation. You should rely on your own independent professional advice.

3 New Regime The 6 elements of the new regime: 1.Security Interest 2.Collateral 3.Attachment 4.Enforceability 5.Perfection 6.Enforcement

4 Security Interest A “Security Interest” is:  an interest  in relation to personal property  provided for by a transaction  that secures the payment or performance of an obligation

5 Deemed Security Interests  The interest of a transferee in an account or chattel paper  The interest of a consignor who delivers goods to a consignee under a consignment  The interests of a lessor or bailor of goods under a PPS lease

6 Lessons to be learned from New Zealand Graham v Portacom New Zealand Limited (2004) 10 TCLR 983

7 Lessons to be learned from New Zealand Waller v New Zealand Bloodstock Limited [2006] 2 NZLR 629

8 Collateral The personal property to which the “security interest” applies, for the purpose of securing the payment or performance of an obligation, is called the “collateral” Secured PartyGrantor $$ Collateral

9 Attachment A security interest attaches to collateral when:  the grantor has rights in the collateral, or the power to transfer rights in the collateral to the secured party; and  either: -the secured party gives some value for the security interest; or -the grantor does an act by which the security interest arises

10 Enforceability A security interest is enforceable against a third party in respect of collateral if: the security interest is attached to the collateral; and:  the secured party possesses the collateral;  the secured party has control of collateral; or  the parties have entered into a security agreement.

11 Priority Priority, the general position is:  a “perfected” security interest has priority over an unperfected security interest  Priority between perfected interests in determined on a first-in-time basis  priority between unperfected interests is determined on a first-in-time basis

12 Exception to Priority: PMSIs Purchase Money Security Interest – the Super Priority Include: - a security interest in collateral where securing all or part of the purchase price - an interest under a PPS Lease - an interest under a commercial consignment

13 The scary law part

14 PPSA & Real Estate Abandoned goods under leases - Security over Tenant’s fitout Landlord contributions Lease of fitted out premises Security Deposits

15 The Register ITSA estimated volumes of register activity per year  Registrations 1.1 million  Amendments 0.25 million  Cancellations 1 million  Searches 6 million

16 How redchip can help

17 Questions

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