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PPSA presentation 8 February 2012


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PPSA presentation 8 February 2012

  1. 1. Personal PropertySecurities Act 2009 (Cth) A new regime
  2. 2. DisclaimerThis document and presentation has been prepared only as anindustry guide and is based on policies of redchip lawyers PtyLtd which may or may not be relevant to you or to yourtransaction. It can be used as a starting point for discussionsor negotiations. No warranties or assurances can be givenabout the suitability of this document or any of its provisionsfor any specific transaction. You should seek legal advice onthe form and content of documents, negotiations anddecisions which are ultimately selected or made by you.redchip lawyers Pty Ltd and its officers, employees, agentsand professional advisors exclude all liability (includingliability for negligence) in relation to your use of thisdocument and any advice given during this presentation. Youshould rely on your own independent professional advice.
  3. 3. New RegimeThe 6 elements of the new regime: 1. Security Interest 2. Collateral 3. Attachment 4. Enforceability 5. Perfection 6. Enforcement
  4. 4. Security InterestA “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. 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. 6. Lessons to be learned from New ZealandGraham v Portacom New Zealand Limited (2004) 10TCLR 983
  7. 7. Lessons to be learned from New ZealandWaller v New Zealand Bloodstock Limited [2006] 2NZLR 629
  8. 8. CollateralThe personal property to which the “security interest” applies, for the purpose of securing the payment orperformance of an obligation, is called the “collateral” Secured Party Grantor $$ Collateral
  9. 9. AttachmentA 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. 10. EnforceabilityA security interest is enforceable against a third partyin 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. 11. PriorityPriority, 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. 12. Exception to Priority: PMSIsPurchase 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. 13. The scary law part
  14. 14. PPSA & Real EstateAbandoned goods under leases -Security over Tenant’s fitoutLandlord contributionsLease of fitted out premisesSecurity Deposits
  15. 15. The RegisterITSA estimated volumes of register activity peryear Registrations 1.1 million Amendments 0.25 million Cancellations 1 million Searches 6 million
  16. 16. How redchip can help
  17. 17. Questions