Personal Property Securities Act

11 DEC 2017

 

The Personal Property Securities Act 2009 (Cth) (PPSA) was enacted in 2009 and brought together over seventy (70) previous Commonwealth, State and Territory Laws regarding security interests in Personal Property (being all property owned by a person other than real estate) and established one national online register in Australia known as the Personal Property Security Register (PPS Register).

Purpose of the PPSA

The PPSA allows you to register a notice on the PPS Register over someone’s Personal Property to show that you have rights over their Personal Property which secure a debt or obligation that they owe you. Alternatively you can search the PPS Register to check if someone has a registered interest over Personal Property which you want to purchase or lease.

Failure to adequately register a Security Interest on the PPS Register may have the effect of allowing the Security Interest to be defeated by a later Security Interest that is in fact registered.

The PPSA provides a harmonised set of rules in relation to the following:

  1. Registering an interest in Personal Property.
  2. Priority between competing interests in Personal Property and how disputes are to be resolved when there is more than one interest.
  3. The creation of a streamlined way of establishing and registering enforceable and legitimate Security Interests in Personal Property.
  4. Enforcement of Security Interests.

Who does it affect?

The PPSA encompasses various industries, in particular:

  1. financiers & borrowers;
  2. suppliers, manufacturers and distributors; and
  3. leasing companies.

Under the PPSA, retention of title arrangements and consignments are regarded as Security Interests that can be registered on the PPS Register in order to reduce the risk of being defeated in a dispute over priority of interests.

What can you do to ensure you are protected?

In order to ensure that you, or your business, is protected by the PPSA you should:

  1. identify assets and transactions affected by the PPSA;
  2. understand what classes of Personal Property are relevant to your line of business;
  3. check your security agreements to ensure that Personal Property is adequately described;
  4. review your terms and conditions of your current business contracts;
  5. assess your risk of conducting business without making PPS Register registrations or transacting with companies who request not to have registrations made against them;
  6. submit your internal processes for review and approval of registration, to ensure the ongoing management of your Security Interests for the future;
  7. educate your staff on how to conduct registrations through the PPS Register and how to recognise transactions which may create a Security Interest and require registration;
  8. redraft standard terms and conditions of trade; and
  9. prepare policies/protocols to deal with the requirements of the PPSA.

If you would like advice or assistance with the PPSA or PPS Register, please contact our accredited business law specialists and Partners Justin Thornton on jthornton@marsdens.net.au and Rahul Lachman on rlachman@marsdens.net.au or otherwise by calling them on (02) 4626 5077.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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