Personal Property Securities
This guide provides the explanation and tools practitioners need to navigate the PPSR system, readily document loans using personal property as security and also advise and assist clients seeking to discharge or vary security interests. The helpful suite of precedents includes various forms of loan agreement creating security interests, from single assets to complex business undertakings, together with our comprehensive Retainer Instructions, advice certificates, company resolutions, discharges and all other documents the practitioner is likely to need when performing this type of work.
The detailed and practical commentary provides a clear and comprehensive explanation of the PPSR regime and assistance with using the register in loan and asset sale transactions.
Recent publication updates can be viewed on Obiter - our blog.
Some of the most popular precedents in this publication include:
- Certificate of independent financial advice
- Acknowledgement of legal advice by proposed guarantor
- Minutes of meeting of grantor resolving to sign general security agreement
- Equipment hire agreement
- Security agreement - Company extensive all assets
- Security agreement - Concise
- Terms of trade
- Consent to same solicitor giving legal advice - Grantor guarantor
- Consignment agreement
MATTER PLAN
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“ Contents Overview3 ”
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“ A full commentary on the law and practice of personal property securities Contents ”
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“ Conveyancing is concerned with the transfer of land and improvements from one owner to another. The doctrine of fixtures means that the improvements on the land are considered by the law to be part of the land and therefore a contract for the sale of real estate simpliciter does not involve the ... ”
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“ Many practitioners have expressed concerns as to how the new legislation will affect them, and expressed fears they will overlook actions they should take. This is written to assist in quelling those fears. ”
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“ The Personal Property Securities Register Australian Financial Security Authority ”
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“ Personal Property Securities Mortgages ”
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“ This is a practical, matter-based publication. It is designed to provide the explanation and tools practitioners will need to readily document loans using personal property as security when called upon to do so. The Personal Property Securities Act 2009 is federal law that reforms the way security ... ”
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“ As is the want of those drafting new legislation, they have left their mark with new terminology. So in the context of personal property securities the following applies: Attachment happens when either value is given for the security interest or the grantor does an act by which the security ... ”
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“ The essential difference between an agreement and a deed is that of consideration. An agreement must have consideration moving between the parties. It usually involves a promise made for a promise - for example, I will transfer ownership of this horse to you in return for payment of $1,000. ”
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“ An indemnity clause provides that the indemnifier will pay liabilities incurred by the indemnified party as a result of performance of the contract. For example, a principal may indemnify their agent for any liability incurred while carrying out their duties. Indemnity clauses are often included ... ”
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“ The precedents provide the following security agreements: Security agreement - Short: to be used for simple dealings. The agreement provides for interest, repayment, security, default, guarantor provisions, and costs. ”
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“ Defined in s 14, the following are likely scenarios in which these interests would arise. An interest claimed by an unpaid seller of goods. ”
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“ The Act in ss 41 to 53 deals with the various situations in which a purchaser takes title to personal property free of secured interests. Where property is described by serial number ”
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“ A security interest is only effective if it has attached to the collateral being the personal property that constitutes the security. The attachment rule provides that a security interest attaches to collateral when the grantor has rights or the power to transfer rights in the collateral and the ... ”
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“ Perfection is a key concept. An attached security interest is perfected by the secured party providing public notice of its secured interest by: registering that interest in the register; ”
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“ Most practitioners will perfect a security interest by registering it unless they have written acknowledgement from their clients that the client has possession or control of the collateral. The Personal Property Securities Act 2009 enables a security interest to be registered as soon as a party ... ”
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“ The collateral must be described as either: consumer property: personal property held by an individual, other than personal property held in the course or furtherance, to any degree, of carrying on an enterprise to which an ABN has been allocated; or ”
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“ The regulations either require or permit certain collateral to be described by serial number in a registration. Consumer property that is an aircraft, a motor vehicle or a watercraft must be described by serial number. A serial number for a motor vehicle is the vehicle identification number; if ... ”
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“ A secured party group can comprise one or more secured parties, but normally it will comprise only one. Law stationers and law firms who provide registration and searching services will register as a secured party group. A secured party group is allocated a number and an access code known only to ... ”
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“ The verification statement is defined by s 155 and is given by the registrar in approved form to the secured party, who is called the statement holder under s 157. The statement holder must give notice of the verification statement in the approved form to the grantor as soon as reasonably ... ”
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“ Transitional security interests and migrated registrations The Personal Property Securities Act 2009 established a new system for the creation, priority and enforcement of security interests in personal property. All existing security interests created before the Act commenced and registered on one ... ”
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“ The priority rules established by the Act replace the former common law and equitable rules which governed priority of security interests and are very similar to old system title priorities under registration of deeds legislation. The new rules apply to two or more competing security interests. ... ”
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“ The administrative process The Act sets out a procedure for disputing registrations, called the amendment demand administrative process. This process is only available in the circumstances set out within s 179 of the Act. The administrative process involves four main steps: ”
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“ Only a current registration can be renewed and therefore it can only be renewed before its expiry date. It is important that practitioners advise their clients to keep track of the registration expiry date. To extend the end date of a registration, follow the steps set out on the Australian ... ”
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“ In the event that a grantor or an interested person as defined wishes to ensure that personal property is free of any security interest then that person obtains either: A release from the secured party releasing the security interest in respect of the property; or ”
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“ Chapter 4 of the Act sets out the provisions for enforcement of security interests. It provides secured parties with remedies additional to those in their agreements under statute and at common law or in equity. The Act in s 111 imposes a general standard of honesty and commercial reasonableness ... ”
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“ Remedies available to a secured party on the grantor's default include the rights to: Seizure ”
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“ The Act requires notices to be in writing: s 286. A notice must be given to a registered secured party at the address specified in the registration by leaving it there or sending it there by prepaid post, by fax or by email: s 287. If there are two or more secured parties, one notice to the ... ”
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Notice to higher priority parties - Enforcement of security interests in liquid assets - Section 121
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“ The grantor and other secured parties with a superior interest can object to the proposed enforcement. The grantor's right to redeem has priority over any other person's right. At any time before the disposal is exercised, the grantor or any secured party may redeem the collateral by paying out ... ”
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