A Bill for an Act to amend certain Acts as a consequence of the
enactment of the Personal Property Securities Act 2009, to amend that
Act, and for related purposes
The Parliament of Australia enacts:
1
Short title
This Act may be cited as the Personal
Property Securities (Corporations and Other Amendments) Act 2010.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 to 3 and anything in this Act not
elsewhere covered by this table
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The day this Act receives the Royal Assent.
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2. Schedule 1, items 1 to 185
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The registration commencement time within the meaning of
section 306 of the Personal Property Securities Act 2009.
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3. Schedule 1, item 186
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The day this Act receives the Royal Assent.
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4. Schedule 1, item 187
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The registration commencement time within the meaning of
section 306 of the Personal Property Securities Act 2009.
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5. Schedule 2, items 1 to 107
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The day this Act receives the Royal Assent.
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6. Schedule 2, item 108
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The registration commencement time within the meaning of
section 306 of the Personal Property Securities Act 2009.
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7. Schedule 2, items 109 to 153
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The day this Act receives the Royal Assent.
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8. Schedule 3, item 1
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Immediately after the commencement of item 1 of
Schedule 2 to the Personal Property Securities (Consequential
Amendments) Act 2009.
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9. Schedule 3, item 2
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Immediately after the commencement of item 1 of
Schedule 1 to the Personal Property Securities (Consequential
Amendments) Act 2009.
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10. Schedule 3, items 3 and 4
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The registration commencement time within the meaning of
section 306 of the Personal Property Securities Act 2009.
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11. Schedule 3, item 5
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Immediately after the commencement of item 6 of
Schedule 3 to the Personal Property Securities (Consequential
Amendments) Act 2009.
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12. Schedule 3, items 6 to 15
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The registration commencement time within the meaning of
section 306 of the Personal Property Securities Act 2009.
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13. Schedule 3, item 16
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Immediately after the commencement of item 14 of
Schedule 2 to the Personal Property Securities (Consequential
Amendments) Act 2009.
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14. Schedule 3, item 17
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Immediately after the commencement of item 17 of
Schedule 1 to the Personal Property Securities (Consequential
Amendments) Act 2009.
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15. Schedule 3, items 18 to 21
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The registration commencement time within the meaning of
section 306 of the Personal Property Securities Act 2009.
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16. Schedule 3, items 22 and 23
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The registration commencement time within the meaning of
section 306 of the Personal Property Securities Act 2009.
However, if the Crimes Legislation Amendment (Serious
and Organised Crime) Act 2010 receives the Royal Assent before the
registration commencement time within the meaning of section 306 of the Personal
Property Securities Act 2009, the provision(s) do not commence at all.
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17. Schedule 3, items 24 to 28
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The registration commencement time within the meaning of
section 306 of the Personal Property Securities Act 2009.
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18. Schedule 3, item 29
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Immediately after the commencement of item 19 of
Schedule 1 to the Personal Property Securities (Consequential
Amendments) Act 2009.
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19. Schedule 3, item 30
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Immediately after the commencement of item 18 of
Schedule 2 to the Personal Property Securities (Consequential
Amendments) Act 2009.
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Note 1: This table
relates only to the provisions of this Act as originally passed by both Houses
of the Parliament and assented to. It will not be expanded to deal with
provisions inserted in this Act after assent.
Note 2: The registration
commencement time, within the meaning of section 306 of the Personal
Property Securities Act 2009, is the start of 1 February 2012
(the first day of the month that is 26 months after that Act was given the
Royal Assent), or an earlier time determined by the Minister administering that Act, by legislative
instrument.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3
Schedule(s)
Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1—Corporations Act 2001
Part 1—New concepts
1 Section 9
Insert:
circulating security interest has the meaning
given by section 51C.
2 Section 9
Insert:
lease does not include a lease of goods that
gives rise to a PPSA security interest in the goods.
Note: An interest that arises under a lease of goods
that in substance secures the payment or performance of an obligation, or that
arises under a PPS lease within the meaning of the Personal Property
Securities Act 2009, may be a PPSA security interest (see sections 12
and 13 of that Act and the definition of PPSA security interest
in section 51 of this Act).
3 Section 9
Insert:
PPSA retention of title property (short for
Personal Property Security Act retention of title property) has the meaning
given by section 51F.
4 Section 9
Insert:
PPSA security interest (short for Personal
Property Security Act security interest) has the meaning given by section 51.
5 Section 9 (at the end of the definition of property)
Add:
, and:
(a) in Part 5.3A
(administration)—has a meaning affected by section 435B; and
(b) in Part 5.4B (winding up in
insolvency or by the Court)—has a meaning affected by section 465; and
(c) in Part 5.5 (voluntary winding
up)—has a meaning affected by section 489F; and
(d) in Part 5.6 (winding up
generally)—has a meaning affected by section 513AA; and
(e) in Part 5.7B (recovering
property or compensation for creditors of insolvent company)—has a meaning
affected by section 588C; and
(f) in Part 5.8 (offences
relating to external administration)—has a meaning affected by subsection
589(5); and
(g) in Part 5A.1 (deregistration,
and transfer of registration, of companies)—has a meaning affected by section 601;
and
(h) in Part 5B.2 (registrable
bodies)—has a meaning affected by section 601C.
Note: A reference in this Act to the property of a
corporation does not include a reference to any PPSA retention of title
property of the corporation, unless provided otherwise expressly or by
necessary implication (see section 51F). The sections mentioned in paragraphs (a)
to (h) extend references to property of a corporation in Parts of this Act to
PPSA retention of title property (or to certain PPSA retention of title
property).
6 Section 9 (definition of retention of title clause)
Repeal the definition, substitute:
retention of title clause: property is
subject to a retention of title clause under a contract for the
sale of property:
(a) if the contract contains a
provision the effect of which is that the seller retains title in the property
until the purchase price, or another amount, has been paid in full; and
(b) if the purchase price, or the
other amount, as the case may be, has not been paid in full; and
(c) to the extent that the contract
does not give rise to a PPSA security interest in the property.
Note: See also the definitions of PPSA
security interest in section 51 and PPSA retention of title
property in section 51F.
7 Section 9
Insert:
secured creditor has the meaning given by
section 51E.
8 Section 9
Insert:
secured party has the meaning given by
section 51B.
9 Section 9
Insert:
security interest has the meaning given by
section 51A.
10 After Division 6 of Part 1.2
Insert:
Division 6A—Security interests
51 Meaning of PPSA
security interest
In this Act:
PPSA security interest (short for Personal
Property Securities Act security interest) means a security interest within the
meaning of the Personal Property Securities Act 2009 and to which that
Act applies, other than a transitional security interest within the meaning of
that Act.
Note 1: The Personal Property Securities Act 2009
applies to certain security interests in personal property. See the following
provisions of that Act:
(a) section 8 (interests to which the Act does not
apply);
(b) section 12 (meaning of security interest);
(c) Chapter 9 (transitional provisions).
Note 2: For the meaning of transitional security
interest, see section 308 of the Personal Property Securities
Act 2009.
51A Meaning of security
interest
In this Act:
security interest means:
(a) a PPSA security interest; or
(b) a charge, lien or pledge.
51B
Meaning of secured party
In this Act:
secured party, in relation to a security
interest, means:
(a) if the security interest is a PPSA
security interest—a secured party within the meaning of the Personal
Property Securities Act 2009; or
(b) if the security interest is not a
PPSA security interest, but consists of a charge, lien or pledge in relation to
the property—a chargee, lienee or pledgee in relation to the charge, lien or
pledge.
Note: Security interests are either PPSA security
interests, or charges, liens or pledges (see section 51A).
51C
Meaning of circulating security interest
In this Act:
circulating security interest means a
security interest that is:
(a) a PPSA security interest, if:
(i) the security interest
has attached to a circulating asset within the meaning of the Personal
Property Securities Act 2009; and
(ii) the grantor (within
the meaning of that Act) has title to the asset; or
(b) a floating charge.
Note: Security interests are either PPSA security
interests, or charges, liens or pledges (see section 51A).
51D
Meaning of possessory security interest
In this Act:
possessory security interest, in relation to
property, means a security interest that is:
(a) a PPSA security interest in the
property that is perfected by possession or control, within the meaning of the Personal
Property Securities Act 2009; or
(b) a lien or a pledge in relation to
the property.
Note: Security interests are either PPSA security
interests, or charges, liens or pledges (see section 51A).
51E Meaning of secured
creditor
In this Act:
secured creditor of a corporation means a
creditor of the corporation, if the debt owing to the creditor is secured by a
security interest.
51F Meaning of PPSA
retention of title property
Definition
(1) Property is PPSA retention of title
property (short for Personal Property Securities Act retention of title
property) of a corporation if:
(a) the property is personal property;
and
(b) the property is used or occupied
by, or is in the possession of, the corporation; and
(c) the corporation does not have
title to the property; and
(d) a PPSA security interest is
attached to the property, within the meaning of the Personal Property
Securities Act 2009; and
(e) the corporation is the grantor in
relation to the PPSA security interest, within the meaning of that Act.
Examples: The following personal property is PPSA
retention of title property if a PPSA security interest attaches to the
property by virtue of the transaction concerned, and the grantor is a
corporation:
(a) property that is the subject of an agreement to sell
subject to retention of title, or a hire purchase agreement, that secures the
payment or performance of an obligation (see subsection 12(2) of the Personal
Property Securities Act 2009);
(b) property that is the subject of a lease, or a
consignment agreement, that secures the payment or performance of an obligation
(see subsection 12(2) of the Personal Property Securities Act 2009);
(c) goods that are the subject of a commercial consignment
(see subsection 12(3) of the Personal Property Securities Act 2009);
(d) goods that are leased or bailed under a PPS lease (see
subsection 12(3) of the Personal Property Securities Act 2009).
References to property of a corporation
(2) A reference in this Act to the property
of a corporation does not include a reference to any PPSA retention of title
property of the corporation, unless provided otherwise expressly or by
necessary implication.
Note: See also the definition of property
in section 9.
Part 2—Repeal of Chapter 2K (registration of charges)
11 Section 9 (paragraphs (a) and (b) of the
definition of company)
Repeal the paragraphs.
12 Paragraph 3.9 of the small business guide in Part 1.5
Omit “and a register of charges”.
13 Paragraph 3.9 of the small business guide in Part 1.5
Omit “—1302”, substitute “, 1301”.
14 Paragraph 3.11 of the small business guide in Part 1.5
Repeal the paragraph.
15 Paragraph 4.4 of the small business guide in Part 1.5
(table item 2)
Omit “, 1302”.
16 Paragraph 4.4 of the small business guide in Part 1.5
(table item 6)
Repeal the item.
17 Subsection 168(1) (note 1)
Repeal the note.
18 Chapter 2K
Repeal the Chapter.
19 Paragraph 283DA(d)
Repeal the paragraph.
20 Section 553E
Omit “and to section 279”.
21 Paragraph 601BC(6)(c)
Repeal the paragraph.
22 Subsection 601BC(6) (note)
Repeal the note.
23 Paragraphs 601BK(1)(a) and (b)
Repeal the paragraphs, substitute:
(a) set up the register required by
section 168; and
(b) include in the register the
information that is required to be included in the register and that is
available to the company on registration; and
24 Subsection 601BM(2)
Omit “and sections 263, 266 and 276 set out”, substitute
“sets out”.
25 Paragraphs 601CB(d) and 601CE(e)
Repeal the paragraphs.
26 Section 1302
Repeal the section.
27 Section 1446
Repeal the section.
Part 3—Charges and chargees
Division 1—Specific amendments
28 Subparagraph 283BF(4)(c)(ii)
Omit “security or charge”, substitute “security interest”.
29 Subsection 420B(1)
Repeal the subsection, substitute:
(1) On the application of a managing
controller of property of a corporation, the Court may by order authorise the
controller to sell, or to dispose of in some other specified way, specified
property of the corporation, even though it is subject to a security interest
(the prior security interest) that has priority over a security
interest (the controller’s security interest) in that property
that the controller is enforcing.
Note: The heading to section 420B is altered by
omitting “charge” and substituting “security interest”.
30 Paragraphs 420B(2)(b) and (d)
Omit “holder of the prior charge”, substitute “secured party in
relation to the prior security interest”.
31 Subsection 420B(3)
Omit “holder of the prior charge”, substitute “secured party in
relation to the prior security interest”.
32 Paragraph 434B(3)(b)
Omit “holder of the charge”, substitute “secured party in
relation to the security interest”.
33 Subsection 434B(5)
Omit “holder of the charge”, substitute “secured party”.
34 Subsection 436C(1)
Repeal the subsection, substitute:
(1) A person who is entitled to enforce a
security interest in the whole, or substantially the whole, of a company’s
property may by writing appoint an administrator of the company if the security
interest has become, and is still, enforceable.
(1A) Subsection (1) applies in relation to
a PPSA security interest only if the security interest is perfected within the
meaning of the Personal Property Securities Act 2009.
Note: The heading to section 436C is altered by
omitting “Chargee” and substituting “Secured party”.
35 Division 7 of Part 5.3A (heading)
Repeal the heading, substitute:
Division 7—Rights of secured party, owner or lessor
Subdivision A—General
441
Application of Division
Except as expressly provided, nothing in
this Division limits the generality of anything else in it.
36 Section 441A
Repeal the section, substitute:
Subdivision B—Property subject to security interests
441AA
Application of Subdivision—PPSA security interests
This Subdivision only applies in
relation to the enforcement of a PPSA security interest if the security
interest is perfected, within the meaning of the Personal Property
Securities Act 2009, at the time the enforcement starts.
441A
Secured party acts before or during decision period
Scope
(1) This section applies if:
(a) the whole, or substantially the
whole, of the property of a company under administration is subject to a
security interest; and
(b) before or during the decision
period, the secured party enforced the security interest in relation to all
property (including any PPSA retention of title property) of the company
subject to the security interest, whether or not the security interest was
enforced in the same way in relation to all that property.
(2) This section also applies if:
(a) a company is under administration;
and
(b) the same person is the secured
party in relation to each of 2 or more security interests in property
(including PPSA retention of title property) of the company; and
(c) the property of the company (the secured
property) subject to the respective security interests together
constitutes the whole, or substantially the whole, of the company’s property;
and
(d) before or during the decision
period, the secured party enforced the security interests in relation to all
the secured property:
(i) whether or not the
security interests were enforced in the same way in relation to all the secured
property; and
(ii) whether or not any of
the security interests was enforced in the same way in relation to all the
property of the company subject to that security interest; and
(iii) in so far as the
security interests were enforced in relation to property of the company by a
receiver or controller appointed for the purposes of Part 5.2 (whether
under an instrument relating to the security interest or a court order)—whether
or not the same person was appointed in respect of all of the last‑mentioned
property.
Power of enforcement by secured party, receiver or
controller
(3) Nothing in section 437C, 440B, 440F
or 440G, or in an order under subsection 444F(2), prevents any of the following
from enforcing the security interest, or any of the security interests:
(a) the secured party;
(b) a receiver or controller appointed
for the purposes of Part 5.2 (whether under an instrument relating to the
security interest or a court order, and even if appointed after the decision
period).
(4) Section 437D does not apply in
relation to a transaction or dealing that affects property of the company and
is entered into by:
(a) the secured party in the
performance or exercise of a function or power as secured party; or
(b) a receiver or controller mentioned
in paragraph (3)(b) of this section, in the performance or exercise of a
function or power as such a receiver or controller.
37 Section 441C
Repeal the section, substitute:
441C
Security interest in perishable property
Scope
(1) This section applies if perishable
property of a company under administration is subject to a security interest.
Power of enforcement by secured party, receiver or
controller
(2) Nothing in section 437C or 440B
prevents any of the following from enforcing the security interest, so far as
it is a security interest in perishable property:
(a) the secured party;
(b) a receiver or controller appointed
for the purposes of Part 5.2 (whether under an instrument relating to the
security interest or a court order, and even if appointed after the decision
period).
(3) Section 437D does not apply in
relation to a transaction or dealing that affects perishable property of the
company and is entered into by:
(a) the secured party in the
performance or exercise of a function or power as secured party; or
(b) a receiver or controller mentioned
in paragraph (2)(b) of this section, in the performance or exercise of a
function or power as such a receiver or controller.
38 Subsection 441D(3)
Omit “chargee’s”, substitute “secured party’s”.
Note: The heading to section 441D is altered by
omitting “chargee etc. in relation to charged” and substituting “secured
party etc. in relation to secured”.
39 Section 441E
Omit “a charge”, substitute “an agreement or instrument under
which a security interest is created or arises”.
Note: The heading to section 441E is altered by
omitting “charge” and substituting “security agreement etc.”.
40 After section 441E
Insert:
441EA
Sale of property subject to a possessory security interest
Scope
(1) This section applies if:
(a) a company is under administration;
and
(b) property of the company is subject
to a possessory security interest; and
(c) the property is in the possession
of the secured party; and
(d) the secured party sells the
property.
Distribution of proceeds of sale
(2) The secured party is entitled to retain
proceeds of the sale as follows:
(a) if the net proceeds of sale equals
the debt secured by the possessory security interest—the secured party is
entitled to retain the net proceeds;
(b) if the net proceeds of sale
exceeds the debt secured by the possessory security interest—the secured party
is entitled to retain so much of the net proceeds as equals the amount of the
debt secured by the security interest, but must pay the excess to the
administrator on behalf of the company;
(c) if the net proceeds of sale fall
short of the debt secured by the possessory security interest—the secured party
is entitled to retain the net proceeds.
Subdivision C—Property not subject to security interests
441EB
Scope of Subdivision
This Subdivision does not apply in
relation to the enforcement of a right, or the performance or exercise of a
function or power, if the enforcement, performance or exercise is authorised by
(or because of) a transaction or dealing that gives rise to a security interest
in the property concerned.
Example: An example of a transaction or dealing in
relation to which this Subdivision does not apply because of this section is a
commercial consignment of personal property. Such a transaction gives rise to a
PPSA security interest because of section 12 of the Personal Property
Securities Act 2009. The consigned property is PPSA retention of title
property of the company (see sections 51F and 435B).
Note: Subdivision B (property subject to security
interests) may apply in relation to transactions or dealings to which this
Subdivision does not apply because of this section. For example, Subdivision B
would apply in relation to a commercial consignment of personal property,
because such a transaction gives rise to a PPSA security interest.
41 Sections 441JA and 441K
Repeal the sections.
42 Paragraphs 442D(1)(a) and (b) and (2)(a) and (b)
Repeal the paragraphs, substitute:
(a) the secured party; or
(b) a receiver or controller appointed
under Part 5.2 (whether under an instrument relating to the security
interest or a court order, and even if appointed after the decision period).
Note: The heading to section 442D is altered by
omitting “chargee, receiver etc.” and substituting “secured party,
receiver or controller”.
43 Subsection 442D(3)
Omit “chargee, receiver or other person”, substitute “secured
party, receiver or controller”.
44 Paragraphs 443B(7)(b) and (c)
Repeal the paragraphs, substitute:
(b) under an agreement or instrument
under which a security interest in the property is created or arises:
(i) the secured party
appoints an agent to enter into possession, or to assume control, of the
property; or
(ii) the secured party
takes possession, or assumes control, of the property;
45 Subsection 477(2B)
Omit “charge”, substitute “an agreement under which a security
interest arises or is created”.
46 Paragraph 601AE(3)(a)
Omit “charge”, substitute “security interest in”.
47 Paragraph 652C(1)(g)
Omit “charges, or agrees to charge,”, substitute “grants, or
agrees to grant, a security interest in”.
48 Paragraph 1020B(3)(b)
Omit “charged or pledged”, substitute “subject to a security interest”.
Division 2—Bulk amendments
49 Amendments to change references to charges etc. to
references to security interests etc.
The specified provisions of the Corporations Act 2001
listed in items 50 to 85 of this Schedule are amended by:
(a) omitting “charge on” (wherever
occurring) and substituting “security interest in”; and
(b) omitting “charge” (wherever
occurring otherwise than as mentioned in paragraph (a)) and substituting
“security interest”; and
(c) omitting “charges on” (wherever
occurring) and substituting “security interests in”; and
(d) omitting “charges” (wherever
occurring otherwise than as mentioned in paragraph (c)) and substituting
“security interests”; and
(e) omitting “chargee” (wherever
occurring) and substituting “secured party”; and
(f) omitting “charged” (wherever
occurring) and substituting “secured”.
50 Section 9 (subparagraph (a)(ii) of the
definition of control day)
51 Section 9 (paragraph (b) of the definition of controller)
52 Section 9 (definition of debenture)
53 Section 9 (definition of decision period)
54 Section 9 (definition of enforce, except paragraph (e)
of the definition)
Note: Paragraph (e) of the definition of enforce
in section 9 is repealed and a new paragraph substituted by item 142
in this Schedule.
55 Paragraph 157A(5)(b)
56 Section 283BE
Note: The heading to section 283BE is altered by
omitting “charges” and substituting “security interests”.
57 Paragraph 283BF(4)(f)
58 Subsection 283BF(4) (note)
59 Subparagraph 283BF(7)(b)(ii)
60 Paragraphs 283BH(3)(a) and (b)
61 Section 283CC
Note: The heading to section 283CC is altered by
omitting “charges” and substituting “security interests”.
62 Subsection 413(2)
63 Paragraphs 418A(1)(b) and (2)(b)
64 Subsections 419(1) and (2)
65 Paragraph 420(2)(s)
66 Paragraph 420B(2)(a)
67 Subsection 420B(4)
68 Paragraphs 420B(6)(a) and (b)
69 Subsection 427(1A)
70 Sub‑subparagraph 429(2)(c)(iii)(B)
71 Subparagraphs 432(1A)(c)(ii), (iii) and (iv)
72 Paragraphs 434B(5)(a), (b) and (c)
73 Subsection 434C(1)
74 Subsections 441B(1) and (2)
Note: The heading to section 441B is altered by
omitting “charge” and substituting “security interest”.
75 Paragraph 441B(3)(a)
76 Paragraphs 441D(1)(a) and (b)
77 Subsection 441D(2)
78 Subsection 449C(2) (subparagraph (b)(iii) of the
definition of appointer)
79 Paragraphs 450A(3)(a) and (b)
80 Subsection 534(3)
81 Subsection 588E(1) (paragraph (c) of the definition
of recovery proceeding)
82 Paragraph 593(5)(b)
83 Subsection 593(7)
84 Paragraph 596(1)(b)
85 Paragraph 981E(2)(b)
Part 4—Floating charges
86 Paragraph 124(1)(f)
Omit “floating charge”, substitute “circulating security
interest”.
87 Paragraph 433(2)(a)
Omit “floating charge” (wherever occurring), substitute
“circulating security interest”.
Note: The heading to section 433 is replaced by
the heading “Property subject to circulating security interest—payment of
certain debts to have priority”.
88 Section 442B
Repeal the section, substitute:
442B
Dealing with property subject to circulating security interests
Scope
(1) This section applies if a security
interest in property (the secured property) of a company under
administration was a circulating security interest when the interest arose, but
has stopped being a circulating security interest because:
(a) in the case of a PPSA security
interest—the property has stopped being a circulating asset (within the meaning
of the Personal Property Securities Act 2009); or
(b) in the case of a security interest
that was a floating charge when it arose—the floating charge has since become a
fixed or specific charge.
Note 1: A circulating security interest can
be either a PPSA security interest to which a circulating asset has attached,
or a floating charge, in the circumstances set out in section 51C.
Note 2: For the meaning of circulating asset,
see section 340 of the Personal Property Securities Act 2009.
Security interest in circulating asset
(2) Subject to sections 442C and 442D,
in the case of a PPSA security interest, the administrator may deal with any of
the secured property in any way the company could deal with the secured
property immediately before it stopped being a circulating asset.
Floating charge
(3) Subject to sections 442C and 442D,
in the case of a security interest that was a floating charge when it arose,
the administrator may deal with any of the secured property as if the security
interest were still a floating charge.
Note: Section 442C deals with the disposal of
encumbered property by an administrator. Section 442D makes the
administrator’s functions and powers subject to those of a secured party,
receiver or controller.
89 Section 443E
Repeal the section, substitute:
443E
Right of indemnity has priority over other debts
General rule
(1) Subject to section 556, a right of
indemnity under section 443D has priority over:
(a) all the company’s unsecured debts;
and
(b) any debts of the company secured
by a PPSA security interest in property of the company if, when the
administration of the company begins, the security interest is vested in the
company because of the operation of any of the following provisions:
(i) section 267 or
267A of the Personal Property Securities Act 2009 (property subject to
unperfected security interests);
(ii) section 588FL of
this Act (collateral not registered within time); and
(c) subject otherwise to this section—debts
of the company secured by a circulating security interest in property of the
company.
Debts secured by circulating security
interests—receiver appointed before the beginning of administration etc.
(2) A right of indemnity under section 443D
does not have priority over debts of the company under administration that are
secured by a circulating security interest in property of the company, except
so far as the secured party agrees, if:
(a) before the beginning of the
administration, the secured party:
(i) appointed a receiver
of property of the company under a power contained in an instrument relating to
the security interest; or
(ii) obtained an order for
the appointment of a receiver of property of the company for the purpose of
enforcing the security interest; or
(iii) entered into
possession, or assumed control, of property of the company for that purpose; or
(iv) appointed a person so
to enter into possession or assume control (whether as agent for the secured
party or for the company); and
(b) the receiver or person is still in
office, or the secured party is still in possession or control of the property.
Debts secured by circulating security
interests—receiver appointed during administration etc.
(3) Subsection (4) applies if:
(a) debts of a company under
administration are secured by a circulating security interest in property of
the company; and
(b) during the administration, the
secured party, consistently with this Part:
(i) appoints a receiver of
property of the company under a power contained in an instrument relating to
the security interest; or
(ii) obtains an order for
the appointment of a receiver of property of the company for the purpose of
enforcing the security interest; or
(iii) enters into
possession, or assumes control, of property of the company for that purpose; or
(iv) appoints a person so to
enter into possession or assume control (whether as agent for the secured party
or for the company).
(4) A right of indemnity of the administrator
under section 443D has priority over those debts only in so far as it is a
right of indemnity for debts incurred, or remuneration accruing, before written
notice of the appointment, or of the entering into possession or assuming of
control, as the case may be, was given to the administrator.
Debts secured by circulating security
interests—priority over right of indemnity in relation to repayment of money
borrowed etc.
(5) A right of indemnity under section 443D
does not have priority over debts of the company under administration that are
secured by a circulating security interest in property of the company, except
so far as the secured party consents in writing, to the extent that the right
of indemnity relates to debts incurred for:
(a) the repayment of money borrowed;
or
(b) interest in respect of money
borrowed; or
(c) borrowing costs.
90 Paragraph 459C(2)(c)
Omit “floating charge on”, substitute “circulating security
interest in”.
91 Paragraph 459C(2)(d)
Omit “charge”, substitute “security interest”.
92 Paragraph 459C(2)(f)
Omit “chargee”, substitute “secured party”.
93 Section 561
Omit “chargee in relation to a floating charge”, substitute
“secured party in relation to a circulating security interest”.
Note: The heading to section 561 is altered by
omitting “floating charges” and substituting “circulating security
interests”.
94 Section 561
Omit “that charge”, substitute “the circulating security
interest”.
95 Paragraph 588FJ(1)(b)
Omit “floating charge on”, substitute “circulating security
interest in”.
Note: The heading to section 588FJ is altered by
omitting “Floating charge” and substituting “Circulating security
interest”.
96 Subsection 588FJ(2)
Omit “charge” (first occurring), substitute “circulating security
interest”.
97 Paragraph 588FJ(2)(a)
Omit “charge”, substitute “circulating security interest”.
98 Paragraphs 588FJ(4)(a) and (b)
Omit “chargee”, substitute “secured party”.
99 Subsection 588FJ(6)
Omit “charge” (first occurring), substitute “circulating security
interest”.
100 Subsection 588FJ(6)
Omit “chargee”, substitute “secured party”.
101 Subsection 588FJ(6) (definition of realisation costs)
Omit “charge”, substitute “security interest”.
Part 5—Security
102 Paragraph 12.5 of the small business guide in Part 1.5
Omit “security over”, substitute “security interests in”.
103 Paragraph 124(1)(e)
Repeal the paragraph, substitute:
(e) grant a security interest in uncalled
capital;
104 Paragraph 283BF(4)(g)
Omit “security or the interests”, substitute “security interests
or other interests”.
105 Subsections 444D(2) and 444F(2)
Omit “security”, substitute “security interest”.
106 Paragraph 444F(3)(a)
Omit “security”, substitute “security interest”.
107 Section 471C
Omit “security”, substitute “security interest”.
108 Subsection 510(2)
Omit “security or liens”, substitute “any security interests”.
109 Subsection 510(3)
Omit “security or lien”, substitute “security interest”.
110 Subsections 554E(3) to (6)
Omit “security”, substitute “security interest”.
111 Subsections 554F(1), (2), (3) and (5)
Omit “security” (wherever occurring), substitute “security
interest”.
Note: The heading to section 554F is altered by
omitting “security” and substituting “security interest”.
112 Subsection 554G(1)
Omit “security”, substitute “security interest”.
113 Paragraphs 554G(2)(a) and (b)
Omit “security”, substitute “security interest”.
114 Section 554J
Omit “security” (wherever occurring), substitute “security
interest”.
Note: The heading to section 554J is altered by
omitting “security” and substituting “security interest”.
115 Paragraphs 571(6)(b) and (7)(b) and 579E(6)(b) and
(7)(b)
Omit “security”, substitute “security interest”.
Part 6—Mortgages and mortgagees
116 Paragraph 8 of the small business guide in Part 1.5
Omit “mortgage or charge over”, substitute “security interest
in”.
117 Paragraph 448C(1)(d)
Omit “mortgagee of”, substitute “secured party in relation to”.
118 Paragraph 467(2)(a)
Repeal the paragraph, substitute:
(a) the total amount secured by one or
more security interests in the property of the company is equal to or greater
than the value of the property subject to the interest (or interests); or
119 Subsection 505(2)
Omit “A conveyance, assignment, transfer, mortgage, charge or
other disposition of a company’s property made by a liquidator”, substitute “A
disposition of a company’s property by a liquidator (including a disposition by
way of conveyance, assignment, transfer or an instrument giving rise to a
security interest)”.
120 Subparagraph 532(2)(c)(ii)
Omit “mortgagee of”, substitute “secured party in relation to”.
121 Subsection 609(1)
Omit “mortgage, charge or other security”, substitute “security
interest”.
122 Paragraphs 609(1)(a) and (b)
Omit “mortgage, charge or security”, substitute “security
interest”.
123 Section 611 (table item 6)
Omit “a mortgage, charge or other security”, substitute “an
instrument or agreement creating or giving rise to a security interest”.
124 Section 611 (paragraph (b) of table item 6)
Omit “security”, substitute “security interest”.
Part 7—Liens and pledges
125 Paragraph 440JA(c)
Omit “lien or pledge”, substitute “possessory security interest”.
126 Paragraph 440JA(d)
Omit “holder of the lien or pledge”, substitute “secured party”.
127 Paragraph 442C(1)(a)
Omit “charge, lien or pledge”, substitute “security interest”.
128 Paragraph 442C(2)(b)
Omit “chargee, lienee, pledgee”, substitute “secured party”.
129 Subsection 442C(3)
Omit “chargee, lienee, pledgee”, substitute “secured party”.
130 Paragraph 442C(5)(a)
Omit “chargee, lienee or pledgee, as the case may be”, substitute
“secured party”.
131 Paragraph 442C(7)
Omit “charge, lien or pledge” (wherever occurring), substitute
“security interest”.
132 Paragraph 442CA(1)(b)
Omit “lien or pledge”, substitute “possessory security interest”.
Note: The heading to section 442CA is altered by
omitting “lien or pledge” and substituting “possessory security
interest”.
133 Subsection 442CA(1)
Omit “holder of the lien or pledge”, substitute “secured party”.
134 Paragraph 442CA(2)(b)
Omit “lien or pledge”, substitute “possessory security interest”.
135 Subsection 442CB(1)
Repeal the subsection, substitute:
(1) If the administrator of a company is
entitled to dispose of property of the company by way of sale, and the property
is subject to a security interest, the administrator must act reasonably in
exercising a power of sale in respect of the property.
Note: A company’s property includes its PPSA
retention of title property (see the definition of property
applying to Part 5.3A, in section 435B).
Note: The heading to section 442CB is altered by
omitting “lien or pledge” and substituting “security interest”.
136 Paragraph 442CC(1)(b)
Omit “lien or pledge”, substitute “possessory security interest”.
Note: The heading to subsection 442CC(1) is altered
by omitting “lien or pledge” and substituting “possessory security
interest”.
137 Subparagraphs 442CC(1)(d)(i) and (ii) and (e)(i) and
(ii)
Repeal the subparagraphs, substitute:
(i) the possessory
security interest; and
(ii) any other security
interest in the property, where the debt secured by the security interest has a
priority that is equal to or higher than the priority of the debt secured by
the possessory security interest;
138 Subsection 443F(2)
Omit “a charge”, substitute “another security interest”.
139 Subsection 443F(2)
Omit “the charge”, substitute “the other security interest”.
Part 8—PPSA retention of title property
140 Section 9 (definition of decision period)
Omit “in relation to a chargee in relation to a charge on
property”, substitute “for a secured party in relation to a security interest
in property (including PPSA retention of title property)”.
141 Section 9 (paragraph (a) of the definition of decision
period)
Omit “chargee”, substitute “secured party”.
142 Section 9 (paragraph (e) of the definition of enforce)
Repeal the paragraph, substitute:
(e) exercise, in relation to property
including PPSA retention of title property, as the secured party or as a
receiver or person so appointed, a right, power or remedy existing because of
the security interest, arising:
(i) under an agreement or
instrument relating to the security interest; or
(ii) in the case of a PPSA
security interest—under an agreement or instrument relating to a transaction or
dealing giving rise to the security interest; or
(iii) under a written or
unwritten law; or
(iv) in any other way.
143 Section 9 (paragraph (b) of the definition of transaction)
Repeal the paragraph, substitute:
(b) a security interest granted by the
body in its property (including a security interest in the body’s PPSA
retention of title property); and
144 Paragraph 21(3)(f)
Omit “charge on property”, substitute “security interest in
property, including PPSA retention of title property of the body”.
145 Subparagraph 60(1)(a)(vii)
Repeal the subparagraph, substitute:
(vii) a person who is
entitled to enforce a security interest in the whole, or substantially the
whole, of the company’s property (including any PPSA retention of title
property); and
146 Section 283BG
Repeal the section, substitute:
283BG
Exceptions to borrower’s duty to report to trustee and ASIC
Section 283BF does not apply in
respect of:
(a) a borrower, while:
(i) it is under external
administration; or
(ii) a receiver, or a
receiver and manager, of property of the borrower has been appointed and has
not ceased to act under that appointment; or
(b) a security interest in PPSA
retention of title property.
147 Section 283CD
Repeal the section, substitute:
283CD
Exceptions to guarantor’s duty to inform trustee
Section 283CC does not apply in
respect of:
(a) the guarantor, while:
(i) it is under external
administration; or
(ii) a receiver, or a
receiver and manager, of property of the guarantor has been appointed and has
not ceased to act under that appointment; or
(b) a security interest in PPSA
retention of title property.
148 Paragraph 411(7)(a)
Repeal the paragraph, substitute:
(a) is a secured party in relation to
any property (including PPSA retention of title property) of the body; or
149 Paragraph 411(7)(c)
Omit “mortgagee of property of the body”, substitute “secured
party in relation to any property (including PPSA retention of title property)
of the body”.
150 Paragraphs 418(1)(a) and (c)
Omit “mortgagee of property of the corporation”, substitute
“secured party in relation to any property (including PPSA retention of title
property) of the corporation”.
151 Subsection 419(1)
After “leased”, insert “(including a lease of goods that gives
rise to a PPSA security interest in the goods)”.
152 At the end of subsection 419A(1)
Add:
; and (c) the third party property is not PPSA
retention of title property of the corporation.
153 At the end of section 420
Add:
(5) In this section:
lease includes a lease of goods that gives
rise to a PPSA security interest in the goods.
154 Section 435B
Insert:
property of a company includes any PPSA
retention of title property of the company.
Note: See sections 9 (definition of property)
and 51F (PPSA retention of title property). An extended definition of property
applies in subsection 444E(3) (see subsection 444E(4)).
155 At the end of section 437A
Add:
Note: A PPSA security interest in property of a
company that is unperfected (within the meaning of the Personal Property
Securities Act 2009) immediately before an administrator of the company is
appointed vests in the company at the time of appointment, subject to certain
exceptions (see section 267 of that Act).
156 Sections 440B to 440C
Repeal the sections, substitute:
440B
Restrictions on exercise of third party property rights
General rule
(1) During the administration of a company,
the restrictions set out in the table at the end of this section apply in
relation to the exercise of the rights of a person (the third party)
in property of the company, or other property used or occupied by, or in the
possession of, the company, as set out in the table.
Note: The property of the company includes any PPSA
retention of title property of the company (see section 435B).
Exception—consent of administrator or leave of court
(2) The restrictions set out in the table at
the end of this section do not apply in relation to the exercise of a third
party’s rights in property if the rights are exercised:
(a) with the administrator’s written
consent; or
(b) with the leave of the Court.
Possessory security interests—continued possession
(3) If a company’s property is subject to a
possessory security interest, and the property is in the lawful possession of
the secured party, the secured party may continue to possess the property
during the administration of the company.
|
Restrictions on
exercise of third party rights
|
|
Item
|
If the third party is …
|
then …
|
|
1
|
a secured party in relation to property of the company,
and is not otherwise covered by this table
|
the third party cannot enforce the security interest.
|
|
2
|
a secured party in relation to a possessory security
interest in the property of the company
|
the third party cannot sell the property, or otherwise
enforce the security interest.
|
|
3
|
a lessor of property used or occupied by, or in the
possession of, the company, including a secured party (a PPSA secured
party) in relation to a PPSA security interest in goods arising out
of a lease of the goods
|
the following restrictions apply:
(a) distress for rent must not be carried out against the
property;
(b) the third party cannot take possession of the property or
otherwise recover it;
(c) if the third party is a PPSA secured party—the third
party cannot otherwise enforce the security interest.
|
|
4
|
an owner (other than a lessor) of property used or
occupied by, or in the possession of, the company, including a secured party
(a PPSA secured party) in relation to a PPSA security interest
in the property
|
the following restrictions apply:
(a) the third party cannot take possession of the property
or otherwise recover it;
(b) if the third party is a PPSA secured party—the third
party cannot otherwise enforce the security interest.
|
157 Subsections 441F(2) and 441G(1)
Omit “440C”, substitute “440B”.
158 Paragraph 442C(1)(b)
After “property”, insert “(other than PPSA retention of title
property)”.
159 At the end of subsection 442C(1)
Add:
Note: PPSA retention of title property is subject to
a PPSA security interest, and so is covered by paragraph (a) (see
definition of PPSA retention of title property in section 51F).
160 Paragraph 442C(8)(c)
Repeal the paragraph, substitute:
(c) either:
(i) the property is PPSA
retention of title property; or
(ii) the property is
subject to a retention of title clause under a contract; and
161 After subsection 442CC(1)
Insert:
PPSA retention of title property
(1A) If the administrator of a company disposes
of PPSA retention of title property of the company by way of sale, then the
administrator must apply the net proceeds of the sale in the same way as a
secured party is required, under section 140 of the Personal Property
Securities Act 2009, to apply an amount, personal property or proceeds of
collateral received by the secured party as a result of enforcing a security
interest in the property.
Note: PPSA retention of title property does not
include property that is subject to a retention of title clause (see section 9,
definitions of PPSA retention of title property and retention
of title clause). Subsection (2) deals with property that is
subject to a retention of title clause.
162 At the end of subsection 442CC(2)
Add:
Note: Property that is subject to a retention of
title clause does not include PPSA retention of title property (see section 9,
definitions of PPSA retention of title property and retention
of title clause). Subsection (1A) deals with PPSA retention of
title property.
163 Paragraph 443A(1)(c)
After “occupied”, insert “, including property consisting of
goods that is subject to a lease that gives rise to a PPSA security interest in
the goods”.
164 At the end of subsection 443B(1)
Add “, including property consisting of goods that is subject to
a lease that gives rise to a PPSA security interest in the goods”.
Note 1: The following heading to subsection 443B(1) is
inserted “Scope”.
Note 2: The following heading to subsection 443B(2) is
inserted “General rule”.
165 After subsection 443B(3)
Insert:
(3A) Subsection (3) does not apply to PPSA
retention of title property.
Note: The following heading to subsection 443B(7) is
inserted “Restrictions on general rule”.
166 Section 443D
After “property”, insert “(other than any PPSA retention of title
property subject to a PPSA security interest that is perfected within the
meaning of the Personal Property Securities Act 2009)”.
167 After subsection 444D(3)
Insert:
(3A) Subsection (3) does not apply in relation
to an owner or lessor of PPSA retention of title property of the company.
Note: Subsection (2) applies in relation to an
owner or lessor of PPSA retention of title property of the company. Such an
owner or lessor is a secured creditor of the company (see section 51F
(meaning of PPSA retention of title property)).
168 Subsection 444E(4) (definition of property)
Repeal the definition, substitute:
property of a company includes:
(a) any PPSA retention of title
property of the company; and
(b) any other property used or
occupied by, or in the possession of, the company.
Note: See sections 9 (definition of property)
and 51F (PPSA retention of title property).
169 After subsection 444F(4)
Insert:
(4A) Subsection (4) does not apply in
relation to PPSA retention of title property of the company.
170 Subsection 446C(8)
After “property of the company”, insert “(other than its PPSA
retention of title property)”.
171 Before Division 1 of Part 5.4B
Insert:
Division 1A—Preliminary
465
Definitions
In this Part:
property of a company includes PPSA retention
of title property, if the security interest in the property is vested in the
company because of the operation of any of the following provisions:
(a) section 267 or 267A of the Personal
Property Securities Act 2009 (property subject to unperfected security
interests);
(b) section 588FL of this Act
(collateral not registered within time).
Note: See sections 9 (definition of property)
and 51F (PPSA retention of title property).
172 Subsection 474(1)
Repeal the subsection, substitute:
(1) If a company is being wound up in
insolvency or by the Court, or a provisional liquidator of a company has been
appointed:
(a) in a case in which a liquidator or
provisional liquidator has been appointed—the liquidator or provisional
liquidator must take into his or her custody, or under his or her control, all
the property which is, or which appears to be, property of the company; or
(b) in a case in which there is no
liquidator—all the property of the company is to be in the custody of the
Court.
Note: Section 465 extends the meaning of the property
of the company to include PPSA retention of title property, if the security
interest in the property has vested in the company in certain situations.
173 Subsection 483(1)
After “property”, insert “of the company”.
174 Before Division 1 of Part 5.5
Insert:
Division 1A—Preliminary
489F
Definitions
In this Part:
property of a company includes PPSA retention
of title property, if the security interest in the property is vested in the
company because of the operation of any of the following provisions:
(a) section 267 or 267A of the Personal
Property Securities Act 2009 (property subject to unperfected security
interests);
(b) section 588FL of this Act
(collateral not registered within time).
Note: See sections 9 (definition of property)
and 51F (PPSA retention of title property).
175 Subsection 500(3)
After “property”, insert “of the company”.
176 At the end of Division 1 of Part 5.6
Add:
513AA
Definitions
In this Part:
property of a company includes PPSA retention
of title property, if the security interest in the property is vested in the
company because of the operation of any of the following provisions:
(a) section 267 or 267A of the Personal
Property Securities Act 2009 (property subject to unperfected security
interests);
(b) section 588FL of this Act
(collateral not registered within time).
Note: See sections 9 (definition of property)
and 51F (PPSA retention of title property).
177 Subsection 568(1AA)
Repeal the subsection, substitute:
(1AA) This section does not apply to:
(a) an agreement by the company to buy
back its own shares; or
(b) PPSA retention of title property
that is taken to form part of the property of the company because of the
definition of property in section 513AA.
Note: The definition of property in
section 513AA includes PPSA retention of title property of the company, if
the security interest in the property has vested in the company in certain
situations.
178 At the end of section 588
Add:
(5) In this section:
property of a body includes PPSA retention of
title property, if the security interest in the property is vested in the body
because of the operation of any of the following provisions:
(a) section 267 or 267A of the Personal
Property Securities Act 2009 (property subject to unperfected security
interests);
(b) section 588FL of this Act
(collateral not registered within time).
Note: See sections 9 (definition of property)
and 51F (PPSA retention of title property).
179 Before section 588D
Insert:
588C
Definitions
In this Part:
property of a company includes PPSA retention
of title property, if the security interest in the property is vested in the
company because of the operation of any of the following provisions:
(a) section 267 or 267A of the Personal
Property Securities Act 2009 (property subject to unperfected security
interests);
(b) section 588FL of this Act
(collateral not registered within time).
Note: See sections 9 (definition of property)
and 51F (PPSA retention of title property).
180 Subsection 589(5)
Insert:
property of a company includes any PPSA
retention of title property of the company.
Note: See sections 9 (definition of property)
and 51F (PPSA retention of title property).
181 Before section 601AA
Insert:
601
Definitions
In this Part:
property of a company includes PPSA retention
of title property, if the security interest in the property is vested in the
company because of the operation of any of the following provisions:
(a) section 267 or 267A of the Personal
Property Securities Act 2009 (property subject to unperfected security
interests);
(b) section 588FL of this Act
(collateral not registered within time).
Note: See sections 9 (definition of property)
and 51F (PPSA retention of title property).
182 Before Division 1 of Part 5B.2
Insert:
Division 1A—Preliminary
601C
Definitions
In this Part:
property of a corporation includes PPSA
retention of title property, if the security interest in the property is vested
in the corporation because of the operation of any of the following provisions:
(a) section 267 or 267A of the Personal
Property Securities Act 2009 (property subject to unperfected security
interests);
(b) section 588FL of this Act
(collateral not registered within time).
Note: See sections 9 (definition of property)
and 51F (PPSA retention of title property).
Part 9—Special requirements for security interests
183 After Division 2 of Part 5.7B
Insert:
Division 2A—Vesting of PPSA security interests if not continuously
perfected
588FK
Interpretation and application
(1) A word or expression used in this
Division has the same meaning as in the Personal Property Securities Act
2009.
(2) Subsection (1) applies despite any
other provision of this Act (subject to subsection (4)).
(3) For the purposes of this Division,
whether or not a person has acquired actual or constructive knowledge of a
circumstance is to be determined in accordance with sections 297 to 300 of
the Personal Property Securities Act 2009.
(4) In this Division:
PPSA security interest has the meaning given
by section 51.
Note: As a result of this section, in this Division,
company has the same meaning as in the Personal Property
Securities Act 2009. At the time this section was enacted, section 10
of that Act provided that company means:
(a) a company registered under Part 2A.2 or Part 5B.1
of the Corporations Act 2001; or
(b) a registrable body that is registered under Division 1
or 2 of Part 5B.2 of that Act.
588FL
Vesting of PPSA security interests if collateral not registered within time
Scope
(1) This section applies if:
(a) any of the following events
occurs:
(i) an order is made, or a
resolution is passed, for the winding up of a company;
(ii) an administrator of a
company is appointed under section 436A, 436B or 436C;
(iii) a company executes a
deed of company arrangement under Part 5.3A; and
(b) a PPSA security interest granted
by the company in collateral is covered by subsection (2) or (3).
Note: A security interest granted by a company in
relation to which paragraph (a) applies that is unperfected at the
critical time may vest in the company under section 267 or 267A of the Personal
Property Securities Act 2009.
Australian law governs security interest
(2) This subsection covers a PPSA security
interest if:
(a) at the critical time, or, if the
security interest arises after the critical time, when the security interest
arises:
(i) the security interest
is enforceable against third parties under the law of Australia; and
(ii) the security interest
is perfected by registration, and by no other means; and
(b) the registration time for the
collateral is after the latest of the following times:
(i) 6 months before the
critical time;
(ii) the time that is the
end of 20 business days after the security agreement that gave rise to the
security interest came into force, or the time that is the critical time,
whichever time is earlier;
(iii) if the security
agreement giving rise to the security interest came into force under the law of
a foreign jurisdiction, but the security interest first became enforceable
against third parties under the law of Australia after the time that is 6
months before the critical time—the time that is the end of 56 days after the
security interest became so enforceable, or the time that is the critical time,
whichever time is earlier;
(iv) a later time ordered by
the Court under section 588FM.
Note 1: For the meaning of critical time,
see subsection (7).
Note 2: For when a security interest is enforceable
against third parties under the law of Australia, see section 20 of the Personal
Property Securities Act 2009.
Note 3: A security interest may become perfected at a
particular time by a registration that is made earlier than that time, if the
security interest attaches to the collateral at the later time (after registration).
See section 21 of the Personal Property Securities Act 2009.
Note 4: The Personal Property Securities Act 2009
provides for perfection by registration, possession or control, or by force of
that Act (see section 21 of that Act).
Foreign law governs security interest
(3) This subsection covers a PPSA security
interest if:
(a) at the critical time, or, if the
security interest arises after the critical time, when the security interest
arises, the security interest is enforceable against third parties under the
law of a foreign jurisdiction (the relevant foreign law); and
(b) the relevant foreign law provides
for the public registration or recording of the security interest, or of a
notice relating to the security interest; and
(c) the security interest or notice
has not been so registered or recorded, in accordance with the relevant foreign
law, before the latest of the following times:
(i) 6 months before the
critical time;
(ii) the time that is the
end of 20 business days after the security agreement that gave rise to the
security interest came into force, or the time that is the critical time,
whichever time is earlier;
(iii) if the security
agreement giving rise to the security interest came into force under the law of
a jurisdiction other than the relevant foreign law, but the security interest
first became enforceable against third parties under the relevant foreign law
after the time that is 6 months before the critical time—the time that is the
end of 56 days after the security interest became so enforceable, or the time
that is the critical time, whichever time is earlier;
(iv) a later time ordered by
the Court under section 588FM.
Note: For the meaning of critical time,
see subsection (7).
Vesting of security interest in company
(4) The PPSA security interest vests in the
company at the following time, unless the security interest is unaffected by
this section because of section 588FN:
(a) if the security interest first
becomes enforceable against third parties at or before the critical
time—immediately before the event mentioned in paragraph (1)(a);
(b) if the security interest first
becomes enforceable against third parties after the critical time—at the time
it first becomes so enforceable.
Note: For the meaning of critical time,
see subsection (7).
Property acquired for new value without knowledge
(5) Subsection (4) does not affect the
title of a person to personal property if:
(a) the person acquires the personal
property for new value from a secured party, from a person on behalf of a
secured party, or from a receiver in the exercise of powers:
(i) conferred by the
security agreement providing for the security interest; or
(ii) implied by the general
law; and
(b) at the time the person acquires
the property, the person has no actual or constructive knowledge of the
following (as the case requires):
(i) the filing of an
application for an order to wind up the company;
(ii) the passing of a
resolution to wind up the company;
(iii) the appointment of an
administrator of the company under section 436A, 436B or 436C;
(iv) the execution of a deed
of company arrangement by the company under Part 5.3A.
Note: For what is actual or constructive knowledge,
see sections 297 and 298 of the Personal Property Securities Act 2009.
(6) In a proceeding in Australia under this
Act, the onus of proving the fact that a person acquires personal property
without actual or constructive knowledge as mentioned in paragraph (5)(b)
lies with the person asserting that fact.
(7) In this section:
critical time, in relation to a company,
means:
(a) if the company is being wound
up—when, on a day, the event occurs by virtue of which the winding up is taken
to have begun or commenced on that day under section 513A or 513B; or
(b) in any other case—when, on a day,
the event occurs by virtue of which the day is the section 513C day for
the company.
588FM
Extension of time for registration
(1) A company, or any person interested, may
apply to the Court (within the meaning of section 58AA) for an order
fixing a later time for the purposes of subparagraph 588FL(2)(b)(iv) or
(3)(c)(iv).
Note: Paragraphs 588FL(2)(b) and (3)(c) fix times
within which certain events must take place (for example, registration under the
Personal Property Securities Act 2009), failing which a PPSA security
interest may vest in a company granting the security interest. The paragraphs
only apply if an insolvency‑related event occurs in relation to the
company under subsection 588FL(1).
(2) On an application under this section, the
Court may make the order sought if it is satisfied that:
(a) the failure to register the
collateral earlier:
(i) was accidental or due
to inadvertence or some other sufficient cause; or
(ii) is not of such a nature
as to prejudice the position of creditors or shareholders; or
(b) on other grounds, it is just and
equitable to grant relief.
(3) The Court may make the order sought on
any terms and conditions that seem just and expedient to the Court.
588FN
PPSA security interests unaffected by section 588FL
PPSA
security interests arising under certain transactions
(1) Subsection 588FL(4) (vesting of security
interests in company) does not apply to a PPSA security interest provided for
by any of the following transactions, if the interest does not secure the
payment or performance of an obligation:
(a) a transfer of an account or
chattel paper;
(b) a PPS lease, if paragraph (e)
(serial numbered goods) of the definition of PPS lease in
subsection 13(1) of the Personal Property Securities Act 2009 applies to
the lease, and none of paragraphs (a) to (d) of that definition applies to
the lease;
(c) a commercial consignment.
Example: An example of a PPSA security interest mentioned
in paragraph (b) is a PPS lease of goods that does not secure the payment
or performance of an obligation, if:
(a) the goods leased may or must be described by serial
number in accordance with regulations made for the purposes of the Personal
Property Securities Act 2009; and
(b) the lease is for a term of between 90 days and 1 year;
and
(c) paragraphs (c) and (d) of the definition of PPS
lease in subsection 13(1) of the Personal Property Securities Act
2009 do not apply to the lease.
PPSA security interests and subordinated debts
(2) Subsection 588FL(4) (vesting of security
interests in company) does not apply to a PPSA security interest in an account
if all of the following conditions are satisfied:
(a) a person (the obligor)
owes money to another person (the senior creditor);
(b) the obligor also owes money to a
third person (the junior creditor);
(c) an agreement between the senior
creditor and the junior creditor provides (in substance):
(i) for the postponement
or subordination of the obligor’s debt to the junior creditor, to the obligor’s
debt to the senior creditor; and
(ii) in the event of the
obligor’s debt to the junior creditor being discharged (whether wholly or
partly) by the obligor transferring personal property to the junior
creditor—for the junior creditor to transfer the property, or proceeds of the
property, to the senior creditor to the value of the amount owed by the obligor
to the senior creditor; and
(iii) in the event that the
property or proceeds are not transferred—for the junior creditor to hold the
property or proceeds on trust for the senior creditor to that value; and
(iv) in the event of such a
trust arising—for a security interest to be granted by the junior creditor to
the senior creditor over the personal property or proceeds securing payment of
the obligor’s debt to the senior creditor;
(d) the security interest is a
security interest granted under the agreement, in the circumstances described
in subparagraph (c)(iv).
Transfer of collateral subject to PPSA security
interests
(3) Subsection 588FL(4) (vesting of security
interests in company) does not apply to a PPSA security interest covered by
subsection 588FL(2) (Australian law governs security interest) if:
(a) before the critical time that applies
under section 588FL, the company acquired, by transfer, the collateral in
which the PPSA security interest is granted; and
(b) the company did not acquire the
collateral free of the security interest; and
(c) the security interest became
perfected before the critical time; and
(d) the security interest was
continuously perfected by registration during a period covered by subsection (4)
that begins before the critical time.
(4) The period covered by this subsection:
(a) begins at whichever of the following
times is applicable:
(i) in a case in which the
secured party consented to the transfer—the end of 5 business days after the
day of the transfer;
(ii) in a case in which the
secured party otherwise acquires the actual or constructive knowledge required
to perfect the secured party’s interest by registration (or to re‑perfect
the interest by an amendment of a registration)—the end of 5 business days
after the day the secured party acquires the knowledge; and
(b) ends no earlier than at the critical
time that applies under section 588FL.
Note: For what is actual or constructive knowledge,
see sections 297 and 298 of the Personal Property Securities Act 2009.
588FO
Certain lessors, bailors and consignors entitled to damages
Scope
(1) This section applies if either of the
following PPSA security interests is vested in a company under section 588FL:
(a) a PPSA security interest of a
consignor under a commercial consignment;
(b) a PPSA security interest of a
lessor or bailor under a PPS lease.
Entitlement to damages and compensation
(2) The consignor, lessor or bailor:
(a) is taken to have suffered damage
immediately before the PPSA security interest was vested in the company; and
(b) may recover an amount of
compensation from the company equal to the greater of the following amounts:
(i) the amount determined
in accordance with the consignment, lease or bailment;
(ii) the sum of the market
value of the consigned, leased or bailed property immediately before the
critical time that applies under section 588FL, and the amount of any
other damage or loss resulting from the termination of the consignment, lease
or bailment.
Note: The consignor, lessor or bailor may be able to
prove the amount of compensation in proceedings related to the winding up of
the company.
Division 2B—Security interests in favour of company officers etc.
588FP
Security interests in favour of an officer of a company etc. void
General rule
(1) A security interest, and any powers
purporting to be conferred by the instrument under which the security interest
is created, are void, and are taken always to have been void, if:
(a) a company grants the security interest;
and
(b) a person covered by subsection (2)
is a secured party; and
(c) the secured party purports to take
a step to enforce the security interest, within 6 months after the time (the relevant
time) the instrument is made, without the leave of the Court under subsection (4).
(2) This subsection covers the following
persons:
(a) a person who is an officer
(including a local agent of a foreign company) of the company at the relevant
time;
(b) a person who has been such an
officer of the company at any time within the period of 6 months ending at the
relevant time;
(c) a person associated, in relation
to the creation of the security interest, with a person of a kind mentioned in paragraph (a)
or (b).
(3) Without limiting paragraph (1)(c), a
secured party takes a step to enforce a security interest if:
(a) the secured party appoints a
receiver, or a receiver and manager, under powers conferred by an instrument
creating or evidencing the security interest; or
(b) whether directly or by an agent,
the secured party enters into possession or assumes control of property of a
company for the purposes of enforcing the security interest; or
(c) the secured party seizes the
property under section 123 of the Personal Property Securities Act 2009
for the purposes of enforcing the security interest.
Extension of time on application to the Court
(4) On application by a secured party, the
Court may give leave for a security interest granted by a company to be
enforced by the secured party within 6 months after the relevant time, if it is
satisfied that:
(a) the company was solvent
immediately before the relevant time; and
(b) in all the circumstances of the
case, it is just and equitable for the Court to do so.
Exception for security interests in PPSA retention of
title property
(5) This section does not apply in relation
to a PPSA security interest in PPSA retention of title property.
Effect on debts, liabilities, obligations and title
(6) A debt, liability or obligation is not
affected by the fact that the security interest securing the debt, liability or
obligation is void under subsection (1).
(7) Subsection (1) does not affect the
title of a person to property if:
(a) the person acquires the property
for new value (within the meaning of the Personal Property Securities Act
2009) from any of the following persons (the seller):
(i) a person covered by subsection (2);
(ii) another person on
behalf of a person covered by subsection (2);
(iii) a receiver, or
receiver and manager, appointed under powers conferred by an instrument
creating or evidencing the security interest; and
(b) at the time the person acquires
the property, the person has no actual or constructive knowledge that the
seller is a secured party or acting on behalf of a secured party.
(8) Sections 297 to 300 of the Personal
Property Securities Act 2009 apply in relation to the determination of
whether or not a person has actual or constructive knowledge as mentioned in paragraph (7)(b)
of this section.
Onus of proof
(9) In a proceeding in Australia under this
Act, the onus of proving the fact that a person acquires property without
actual or constructive knowledge as mentioned in paragraph (7)(b) lies
with the person asserting that fact.
Part 10—Transitional provisions
184 At the end of subsection 1483(9)
Add:
Note: Section 440BA was repealed by the Personal
Property Securities (Corporations and Other Amendments) Act 2010, and was
replaced with a new section 440B incorporating the same substantive rules.
Section 1506 preserves the operation of this subsection.
185 At the end of subsection 1483(10)
Add:
Note: Section 440BB was repealed by the Personal
Property Securities (Corporations and Other Amendments) Act 2010, and was
replaced with a new section 440B incorporating the same substantive rules.
Section 1506 preserves the operation of this subsection.
186 After Part 10.12
Insert:
Part 10.13—Transitional provisions relating to the Personal Property
Securities (Corporations and Other Amendments) Act 2009
1498A
Commencement of provisions in Part 10.13
Sections 1499 to 1510, which are
inserted by the Personal Property Securities (Corporations and Other
Amendments) Act 2010, are to commence at the registration commencement time
within the meaning of section 306 of the Personal Property Securities
Act 2009.
Note: See item 187 of Schedule 1 to the Personal
Property Securities (Corporations and Other Amendments) Act 2010. The
commencement of that item is provided for by section 2 of that Act.
187 Section 1498A
Repeal the section, substitute:
1499
Definitions
In this Part:
amending Act means the Personal Property
Securities (Corporations and Other Amendments) Act 2010.
commencement time means the time item 187
of Schedule 1 to the amending Act commences.
Note: Item 187 of Schedule 1 to the
amending Act inserts sections 1499 to 1510. The item commences at the
registration commencement time within the meaning of section 306 of the Personal
Property Securities Act 2009 (as provided by section 2 of the amending
Act).
registrable charge means a charge created
before the commencement time that was a registrable charge within the meaning
of section 261 when it was created.
1500
Charges, liens and pledges—continuation of restriction of references
(1) This section applies despite the
amendment of this Act made by item 10 of Schedule 1 to the
amending Act if a reference to a charge in a provision of this Act, as in force
immediately before the commencement time, did not include a reference to a lien
or a pledge, or any other particular form of security over the property.
Note: Item 10 of Schedule 1 to the
amending Act inserts the definition of security interest in
section 51A.
(2) In its application in relation to an
interest in property created or arising before the commencement time, or under
an agreement or instrument made before that time, the reference in that
provision (as amended by the amending Act) to a security interest does not
include a reference to a lien or a pledge, or that particular form of security
over the property, as the case may be.
1501
References to security interests etc.
The amendments made by Part 1 (new
concepts) of Schedule 1 to the amending Act apply:
(a) in relation to charges, liens and
pledges, whether created or arising before, at or after the commencement time;
and
(b) in relation to property owned, occupied
or used by, or in the possession of, a corporation, whether the ownership,
occupation, use or possession started before, at or after the commencement
time.
1502
Repeal of Chapter 2K (charges)—general
(1) For the period of 7 years after the
commencement time, the amendments made by Part 2 of Schedule 1 to the
amending Act do not apply in relation to registrable charges.
Note: The amendments made by Part 2 of Schedule 1
to the amending Act repeal Chapter 2K and make consequential amendments to
other provisions.
(2) This section applies subject to sections 1503
to 1506.
1503
Repeal of Chapter 2K (charges)—cessation of requirements in relation to
documents or notices
Scope
(1) This section applies if, immediately
before the commencement time, a document (however described) or notice is
required to be lodged or given by a company or other person under one of the
following provisions:
(a) paragraph 263(1)(a), (b) or (c);
(b) paragraph 263(2)(b);
(c) subsection 263(3);
(d) paragraph 264(1)(a) or (b);
(e) paragraph 265(6)(b);
(f) paragraph 268(1)(a) or (b);
(g) subsection 268(2);
(h) subsection 269(1) or (2);
(i) subsection 270(4).
Requirements that stop applying
(2) Whichever of the following requirements
would otherwise apply stops applying at the commencement time:
(a) the requirement to lodge or give
the document or notice;
(b) the requirement for ASIC to enter
or delete particulars in the Register in relation to the document or notice.
1504
Repeal of Chapter 2K (charges)—application of section 266
(1) Subject to this section, section 266
stops applying at the commencement time in relation to registrable charges.
(2) However, if a registrable charge is void
under section 266 immediately before the commencement time, that section
continues to apply in relation to the charge, subject to subsection (3) of
this section.
(3) The Court may, on such terms and
conditions as seem to the Court just and expedient, by order, declare a
registrable charge not to be, and never to have been, void under subsection
266(1) or (3), if:
(a) before the commencement time, the
charge is void under subsection 266(1) or (3) (as the case requires); and
(b) either:
(i) an application is made
to the Court under subsection 266(4) before the commencement time for an
extension of the relevant period, and as at the commencement time, the Court
had not made a decision in relation to the application; or
(ii) an application is made
to the Court at or after the commencement time for an order under this
subsection; and
(c) the Court is satisfied of the
matters set out in subsection 266(4).
1505
Repeal of Chapter 2K (charges)—cessation of company registration
requirements
The requirements in section 271
(company documentation and registration of charges) stop applying in relation
to registrable charges at the commencement time.
1506
Repeal of Chapter 2K (charges)—priority between registrable charges
At and after the commencement time, registrable
charges have the priority between themselves that they would have had under
this Act as in force immediately before the commencement time, subject to
Chapter 9 (Transitional provisions) of the Personal Property Securities
Act 2009.
1507
New section 440B (restrictions on third party property rights)
The repeal of sections 440B, 440BA,
440BB and 440C by item 156 of Schedule 1 to the amending Act
does not affect the operation of subsections 1483(9) and (10) in relation to:
(a) the administration of a company
that began at or after the start of the day section 440BA commenced, and
before the commencement time within the meaning of section 1499; or
(b) distress for rent that began to be
carried out before the day section 440BB commenced.
Note: Sections 440BA and 440BB commenced on 31 December
2007.
1508
New subsection 442CB(1) (administrator’s duty of care)
The amendment of this Act by item 135
of Schedule 1 to the amending Act does not apply in relation to the
exercise of a power of sale if the power began to be exercised before the
commencement time.
Note: Item 135 of Schedule 1 to the
amending Act repealed subsection 442CB(1) and substituted a new subsection.
1509
New section 588FP (security interests in favour of an officer of a company
etc. void)
Section 588FP does not apply in
relation to a registrable charge.
1510
Winding up applied for at or after the commencement time
Subject to this Part, the amendments
made by the amending Act do not apply in relation to the winding up of a
company under Part 5.4, Part 5.4A or Part 5.4B, or the
subsequent liquidation of the company, if the application for winding up for
the purposes of those Parts is made before the commencement time.
Schedule 2—Personal Property
Securities Act 2009
Part 1—Specific amendments
1 Section 3
Omit:
(a) it has
attached to collateral; and
(b) certain
extra steps (possession or control of the collateral, or registration on the
Register of Personal Property Securities) have been taken to protect the
interest, or the interest is perfected by force of this Act.
Substitute:
(a) it has
attached to collateral; and
(b) it is
enforceable against third parties; and
(c) certain
extra steps (possession or control of the collateral, or registration on the
Register of Personal Property Securities) have been taken to protect the
interest.
Certain security interests are also
declared to be temporarily perfected, or perfected, under this Act.
2 Section 3
Omit:
(f) rules about
the transfer and assignment of interests in collateral (Part 2.7).
Substitute:
(f) rules about
the transfer of interests in collateral (Part 2.7).
3 Section 3
Omit:
Chapter 9 also deals with
references to charges and fixed and floating charges in this Act and in
security agreements, and provides for an independent review of the Act within 3
years after it is enacted.
Substitute:
The Act starts to apply under Part 9.3
at the registration commencement time, which is 1 February 2012 (the first
day of the month that is 26 months after this Act was given the Royal Assent),
or an earlier time determined by the Minister.
Chapter 9 also deals with
references to charges and fixed and floating charges in this Act and in
security agreements, and provides for the review of the operation of the Act
within 3 years after it starts to apply.
4 Paragraph 6(2)(c)
Repeal the paragraph, substitute:
(c) the security interest is an
interest of a transferor under a transfer of intangible property that consists
of an account or chattel paper, and:
(i) the transferor is an
Australian entity; or
(ii) the account or chattel
paper is payable in Australia; or
5 At the end of subparagraph 8(1)(f)(v)
Add “, except a transfer of a right to an insurance payment or
other payment as indemnity or compensation for loss of, or damage to,
collateral (or proceeds of collateral)”.
6 Subparagraph 8(1)(f)(vi)
Omit “an assignment”, substitute “a transfer”.
7 Subparagraph 8(1)(f)(vi)
Omit “the assignment”, substitute “the transfer”.
8 Subparagraph 8(1)(f)(vii)
Omit “an assignment of an account, if the assignee’s”, substitute
“a transfer of an account, if the transferee’s”.
9 Subparagraph 8(1)(f)(viii)
Omit “an assignment”, substitute “a transfer”.
10 Subparagraph 8(1)(f)(x)
Repeal the subparagraph, substitute:
(x) a transfer of the
beneficial interest in a monetary obligation where, after the transfer, the
transferee holds the monetary obligation on trust for the transferor;
11 At the end of paragraph 8(1)(i)
Add:
Note: See also subsection (5).
12 After paragraph 8(1)(j)
Insert:
(ja) a security interest in personal
property taken by a pawnbroker, if subsection (6) applies to the security
interest;
(jb) an interest that a person has:
(i) as a member of a
superannuation fund (within the meaning of the Superannuation Industry
(Supervision) Act 1993); or
(ii) as a member of an
approved deposit fund (within the meaning of the Superannuation Industry
(Supervision) Act 1993); or
(iii) as a holder of a
retirement savings account (within the meaning of the Retirement Savings
Accounts Act 1997); or
(iv) in an account kept
under the Small Superannuation Accounts Act 1995 in the name of the
person; or
(v) as a holder of a
superannuation annuity (within the meaning of the Income Tax Assessment Act
1997);
(jc) a charge created by either of the
following provisions:
(i) section 6 of the Commonwealth
Inscribed Stock Act 1911;
(ii) section 5 of the Loans
Redemption and Conversion Act 1921;
13 Subsection 8(4)
Omit “or assignment”.
Note: The heading to subsection 8(4) is altered by
omitting “and assignments”.
14 At the end of section 8
Add:
Water rights
(5) In paragraph (1)(i), the reference
to a right in relation to the control, use or flow of water includes, but is
not limited to, a reference to a right that a person has against another person
to receive (or otherwise gain access to) water.
Pawnbroker security interests
(6) For the purposes of paragraph (1)(ja),
this subsection applies to a security interest taken by a pawnbroker if:
(a) the pawnbroker holds a licence or
is otherwise expressly authorised (for example, by registration) by a law of a
State or Territory to carry on a pawnbroking business (however described in
that law); and
(b) the taking of the security
interest is authorised by that licence or authorisation, and is not in
contravention of that law of the State or Territory; and
(c) the security interest is taken in
the ordinary course of the pawnbroker’s business as a pawnbroker; and
(d) at the time the security interest
is taken, the market value of the payment or obligation secured by the security
interest is less than or equal to:
(i) $5,000; or
(ii) if a greater amount
has been prescribed by regulations made for the purposes of subsection
47(1)—that amount; and
(e) at the time the security interest
is taken, the pawnbroker believes, and it is actually the case, that the market
value of the personal property is less than or equal to:
(i) $5,000; or
(ii) if a greater amount
has been prescribed by regulations made for the purposes of paragraph
47(2)(c)—that amount; and
(f) the personal property is not of a
kind that the regulations provide may, or must, be described by serial number
in a registration.
Note: Section 47 deals with taking personal,
domestic or household property free of a security interest.
15 Section 10 (paragraph (b) of the definition of description)
Repeal the paragraph, substitute:
(b) in the case of a class of personal
property—a description that identifies the class, including a description that
identifies the class by identifying a larger class of personal property that
wholly includes the class.
Example 1: A description that identifies collateral as
“sheep” (a type of livestock) is sufficient to identify collateral that is
sheep wool (a product of livestock, which is a class of collateral wholly
included in the larger class of “sheep”).
Example 2: A description that identifies collateral as
“fruit” is sufficient to identify collateral that is apples.
16 Section 10 (definition of financial product)
Repeal the definition, substitute:
financial product:
(a) for the purposes of the definition
of investment instrument in this section—has the meaning given by
the Corporations Act 2001; and
(b) for any other purposes—means any
of the following, or an interest in any of the following, other than cash:
(i) shares;
(ii) bonds;
(iii) any other financial
instrument;
(iv) any other financial
asset.
17 Section 10 (paragraph (a) of the definition of grantor)
Omit “owns the personal property, or has the interest in the
personal property,”, substitute “has the interest in the personal property”.
18 Section 10 (at the end of the definition of intellectual
property)
Add:
; (g) a right under or for the purposes
of a law of a foreign country that corresponds to a right mentioned in any of paragraphs (a)
to (f).
19 Section 10
Insert:
intermediary has the meaning given by section 15.
20 Section 10
Insert:
intermediated security has the meaning given
by section 15.
21 Section 10 (definition of investment entitlement)
Repeal the definition.
22 Section 10 (definition of investment entitlement
account)
Repeal the definition.
23 Section 10 (definition of investment entitlement
intermediary)
Repeal the definition.
24 Section 10 (at the end of the definition of livestock)
Add:
; and (c) the products of livestock before
they become proceeds (for example, the wool on a sheep’s back before the sheep
is shorn).
25 Section 10 (paragraph (d) of the definition of negotiable
instrument)
Repeal the paragraph, substitute:
(d) any other writing that evidences a
right to payment of currency, if:
(i) the writing is of a
kind that, in the ordinary course of business, is transferred by delivery with
any necessary endorsement or assignment; or
(ii) the writing satisfies
the requirements for negotiability under the law governing negotiable
instruments (including, but not limited to, instruments that are negotiable
instruments within the meaning of this definition); or
26 Section 10 (at the end of the definition of new
value)
Add “owed to the person providing the value”.
27 Section 10
Insert:
referred PPS matters (short for referred
Personal Property Securities matters) has the meaning given by
section 245.
28 Section 10 (after paragraph (a) of the
definition of registration time)
Insert:
(aa) section 333 (registration
with respect to migrated data); or
29 Section 10
Insert:
securities account has the meaning given by
section 15.
30 Section 10
Insert:
take has the meaning given by section 138A.
31 Section 10
Insert:
water source has the meaning given by section 138A.
32 Subsections 12(4) and (4A)
Repeal the subsections, substitute:
(3A) A person who owes payment or performance of
an obligation to another person may take a security interest in the other
person’s right to require the payment or the performance of the obligation.
(4) Without limiting subsection (3A):
(a) an account debtor, in relation to
an account or chattel paper, may take a security interest in the account or
chattel paper; and
(b) an ADI may take a security
interest in an ADI account that is kept with the ADI.
33 Subsection 13(3)
Repeal the subsection (not including the heading),
substitute:
(3) This section only applies to a bailment
for which the bailee provides value.
34 Section 15
Repeal the section, substitute:
15
Meaning of intermediated security and related terms
Meaning of intermediated security
(1) An intermediated security is
the rights of a person in whose name an intermediary maintains a securities account.
Meaning of intermediary
(2) An intermediary is:
(a) a person (including a central
securities depository) who holds an Australian financial services licence
(within the meaning of the Corporations Act 2001) permitting the person,
in the course of business or other regular activity, to maintain securities
accounts:
(i) on behalf of others;
or
(ii) on behalf of others as
well as on the person’s own behalf; or
(b) a person who operates a clearing
and settlement facility under an Australian CS facility licence (within the
meaning of the Corporations Act 2001), other than such a person
prescribed by regulations made for the purposes of this paragraph; or
(c) a person (including a central
securities depository) who holds a licence issued under the law of a foreign
jurisdiction permitting the person, in the course of business or other regular
activity, to maintain securities accounts:
(i) on behalf of others;
or
(ii) on behalf of others as
well as on the person’s own behalf.
(3) An intermediary does not
include a central bank.
(4) An intermediary (including a central
securities depository) is an intermediary only while acting in
the capacity of an intermediary.
(5) A person is not an intermediary merely
because the person maintains a securities account on behalf of the issuer of
the financial products to which the account relates.
(6) Without limiting subsection (5), a
person is not an intermediary merely because the person:
(a) acts as a central securities
depository, registrar or transfer agent for an issuer of a financial product;
or
(b) records
details of interests in financial products in the person’s own books, being
interests credited to securities accounts in the names of other persons for
whom the person acts as manager or agent or otherwise in a purely
administrative capacity.
Meaning of securities account
(7) In this Act:
securities account means an account to which
interests in financial products may be credited or debited.
35 Subsection 19(5)
After “leased”, insert “or bailed”.
Note: The heading to subsection 19(5) is altered by
inserting “bailed,” after “leased,”.
36 At the end of section 19
Add:
Note: A security interest may attach to crops while
they are growing, and to the products of livestock, before they become proceeds
of the crops or livestock (for example, wool before it is shorn). See
subsections 31(4) and (5) (meaning of proceeds) and section 84A
(security interests in crops and livestock).
37 Subparagraph 20(2)(a)(ii)
Omit “specified in the writing that is”, substitute “, or
omission, that reasonably appears to be”.
38 Paragraph 21(1)(b)
Repeal the paragraph, substitute:
(b) all of the following apply:
(i) the security interest
is attached to the collateral;
(ii) the security interest
is enforceable against a third party;
(iii) subsection (2)
applies.
39 Subparagraph 21(2)(c)(i)
Repeal the subparagraph, substitute:
(i) an ADI account in
relation to which the ADI is the secured party;
40 Paragraphs 24(5)(b) and (d)
Omit “assignee”, substitute “transferee”.
41 Section 26
Repeal the section, substitute:
26
Control of intermediated securities
Main rule
(1) A person has control of an
intermediated security that is credited to a securities account if, and only
if, this section so provides.
Control by agreement
(2) A secured party has control
of an intermediated security if:
(a) one of the following conditions is
satisfied:
(i) there is an agreement
in force between the grantor, the secured party and the intermediary who
maintains the securities account;
(ii) there is an agreement
in force between the grantor and the intermediary;
(iii) there is an agreement
in force between the grantor and the secured party, and notice of the agreement
is given to the intermediary; and
(b) the agreement has the effect that:
(i) the intermediary must
not comply with instructions given by the grantor in relation to the intermediated
security without seeking the consent of the secured party (or a person who has
agreed to act on the instructions of the secured party); or
(ii) the intermediary must
comply, or must comply in one or more specified circumstances, with instructions
(including instructions to debit the account) given by the secured party in
relation to the intermediated security without seeking the consent of the
grantor (or any person who has agreed to act on the instructions of the
grantor).
(3) If the intermediary who maintains the
securities account is an intermediary because of paragraph 15(2)(b), a
reference to the intermediary in subparagraphs (2)(a)(i) to (iii) of this
section includes a reference to a person prescribed by regulations made for the
purposes of this subsection.
Note 1: Under paragraph 15(2)(b), a person is an intermediary
if the person operates a clearing and settlement facility under an Australian
CS facilities licence (within the meaning of the Corporations Act 2001),
other than such a person prescribed by regulations made for the purposes of
that paragraph.
Note 2: The regulations may prescribe a person by
reference to a class or classes of persons (see subsection 33(3A) of the Acts
Interpretation Act 1901).
Control by secured party in whose name securities
account is maintained
(4) A secured party has control
of an intermediated security if:
(a) the securities account is
maintained in the secured party’s name; or
(b) the securities account is
maintained in the name of another person (who is not the grantor or debtor),
and that person acknowledges in writing that he, she or it holds the
intermediated security on behalf of the secured party.
42 Paragraph 32(1)(a)
Repeal the paragraph, substitute:
(a) continues in the collateral,
unless:
(i) the secured party
expressly or impliedly authorised a disposal giving rise to the proceeds; or
(ii) the secured party
expressly or impliedly agreed that a dealing giving rise to the proceeds would
extinguish the security interest; and
43 Paragraph 44(2)(b)
Repeal the paragraph, substitute:
(b) the security interest was created
or provided for by a transaction to which the buyer or lessee is a party,
unless the personal property concerned is of a kind prescribed by regulations
for the purposes of this paragraph.
44 Subsection 44(3)
Repeal the subsection.
45 Subsection 51(2)
Repeal the subsection, substitute:
Exception
(2) Subsection (1) does not apply if, at
the time the interest is taken, the transferee has actual or constructive
knowledge that crediting the interest in the financial product constitutes a
breach of a security agreement that provides for a security interest in any
intermediated security or financial product.
Note: The heading to section 51 is altered by
omitting “investment entitlement” and substituting “intermediated
security”.
46 Subsection 52(1)
Omit “(other than section 322)”, substitute “(or perfected
by force of section 322)”.
47 Subsection 52(1) (note)
Repeal the note, substitute:
Note: Section 322 provides for the perfection
of transitional security interests.
48 Section 54 (before the paragraph relating to
Division 3)
Insert:
For example, a security interest held
by an ADI in an ADI account with the ADI has priority over any other security interest
in the ADI account. An ADI has control over an ADI account held with the ADI
(see section 25). Only the ADI with which an ADI account is held may
perfect a security interest in the ADI account by control (see section 21).
A security interest perfected by control has priority over any other security
interest in the same collateral (see section 57).
49 Section 54 (paragraph relating to Division 6)
Repeal the paragraph, substitute:
Division 6 deals with priorities
in relation to the following:
(a) interests
that arise under law;
(b) interests of
execution creditors;
(c) security
interests in returned goods;
(d) security
interests in accounts, financial property or intermediated securities if a
foreign law governs their perfection but does not provide for public
registration.
50 After subsection 57(2)
Insert:
(2A) A perfected security interest (the priority
interest) in the proceeds of original collateral has priority over any
other security interest in the proceeds, except a security interest in the
proceeds as original collateral that is perfected by control, if:
(a) the security interest in the first‑mentioned
original collateral was perfected by control when the collateral gave rise to
proceeds; and
(b) the priority interest is not
perfected by control.
51 Paragraphs 62(3)(b) and 63(c) and (d)
Omit “10 business days”, substitute “15 business days”.
52 Subparagraph 64(1)(b)(ii)
Omit “5 business days”, substitute “15 business days”.
53 At the end of subsection 64(3)
Add:
; and (c) the new value is taken to be an
account for the purposes of this Act (except for the purposes of this section
or paragraph 12(3)(a) (account transferee’s interest taken to be security
interest)).
54 At the end of section 64
Add:
(4) However, if the new value mentioned in paragraph (3)(c)
would be an account for the purposes of this Act in the absence of that
paragraph, the paragraph does not prevent the new value from being an account
for the purposes of this section or paragraph 12(3)(a).
55 Paragraph 68(2)(c)
Omit “transferee‑granted interest”, substitute
“collateral”.
56 Paragraph 68(2)(d)
Omit:
(d) the transferee‑granted
interest secures performance of an advance made, or an obligation incurred, by
the transferee’s secured party before:
(i) the transferor‑granted
interest is re‑perfected as mentioned in paragraph (1)(d); and
(ii) the notice is given
under paragraph (1)(e);
but only to the extent of the
advance or obligation.
Substitute:
(d) the transferee‑granted
interest secures performance of an advance made, or an obligation incurred, by
the transferee’s secured party before:
(i) the transferor‑granted
interest is re‑perfected as mentioned in paragraph (1)(d); and
(ii) the notice is given
under paragraph (1)(e);
but only to the extent of the advance or obligation.
Note: The amendment made by this item corrects a
formatting error.
57 Subsection 71(1) (note)
Omit “assignment”, substitute “transfer”.
58 Subparagraph 72(b)(ii)
Omit “negotiable instrument”, substitute “document of title”.
59 Subsection 77(3)
Omit “financial property or an investment entitlement”,
substitute “personal property that is financial property or an intermediated
security”.
Note: The heading to subsection 77(3) is replaced by
the heading “Security interests in financial property and intermediated
securities”.
60 Subsection 77(3)
Omit “the financial property or investment entitlement”,
substitute “the personal property”.
61 Paragraphs 77(3)(a) and (b)
Omit “property” (wherever occurring), substitute “personal
property”.
62 Subsection 77(4)
Omit “240(3)”, substitute “240(4) or (5)”.
63 Part 2.7 (heading)
Repeal the heading, substitute:
Part 2.7—Transfer of
interests in collateral
64 Section 78
Omit:
This Part deals with the transfer and
assignment of interests in collateral.
Substitute:
This Part deals with the transfer of
interests in collateral.
65 Section 83
Repeal the section, substitute:
83
Guide to this Part
This Part includes rules on 3 topics:
(a) the
relationship between a security interest in crops and interests in the land on
which the crops are growing; and
(b) the capacity
for a security interest to attach to crops while they are growing, and to the
products of livestock, before the crops or products become proceeds (for
example, the wool on a sheep’s back before it is shorn); and
(c) the priority
to be given to security interests in crops (and proceeds) granted to enable the
crops to be produced, and security interests in livestock (and proceeds)
granted to enable the livestock to be fed and developed.
Other provisions of this Act that deal
with agricultural interests are subsections 31(4), (5) and (6) (meaning of proceeds
of crops and livestock) and Division 6 of Part 4.3 (enforcement of
security interests in crops and livestock).
66 After section 84
Insert:
84A
Attachment of security interests to crops while they are growing and to the products
of livestock
Security interest in crops while they are growing
(1) To avoid doubt, a security interest may
attach to crops while they are growing.
Security interest in the products of livestock
(2) To avoid doubt, a security interest may
attach to the products of livestock before they become proceeds (for example,
the wool on a sheep’s back before the sheep is shorn).
Note 1: Livestock includes the products
of livestock before they become proceeds (see section 10).
Note 2: For what are the proceeds of
crops and livestock, see subsections 31(4), (5) and (6).
67 Section 85
Omit “in crops has priority over any other security interest in
crops that is granted by the same grantor in the same crops”, substitute “that
is granted by a grantor in crops or the proceeds of crops has priority over any
other security interest that is granted by the same grantor in the same crops
or proceeds”.
68 Section 86
Omit “livestock has priority over any other security interest
(other than a purchase money security interest) that is granted by the same
grantor in the same livestock”, substitute “livestock or the proceeds of
livestock has priority over any other security interest (other than a purchase
money security interest) that is granted by the same grantor in the same
livestock or proceeds”.
69 At the end of section 108
Add:
; (e) rules
relating to the enforcement of security interests in crops and livestock.
70 After paragraph 109(5)(b)
Insert:
(ba) section 126 (apparent
possession of collateral);
71 After paragraph 115(1)(p)
Insert:
(pa) Division 6 of Part 4.3
(seizure and disposal or retention of crops and livestock), or any particular
provision of that Division;
72 Subsection 115(4)
Repeal the subsection.
73 At the end of
section 116
Add:
(3) Despite subsection (1), if a grantor
of a security interest in property is an individual, this Chapter applies in
relation to the security interest while a person is a receiver, or a receiver
and manager, of the property.
74 Section 122
Omit:
If a secured party proposes to dispose
of, or retain, collateral, the party must give notice to the grantor and any
other secured party with a security interest in the collateral that has a
higher priority.
A person may object to a proposal by a
secured party to enforce a security interest by purchasing or retaining the
collateral (see Division 5).
Substitute:
If a secured party proposes to dispose
of, or retain, collateral, the party must give notice to the grantor and any
other secured party with a security interest in the collateral that has a
higher priority. A notice of disposal may be given in the approved form, while
a notice of retention must be given in the approved form.
A person may object if a secured party
proposes to enforce a security interest by purchasing or retaining the
collateral (see Division 5).
A person exercising or discharging
rights, duties and obligations arising under this Part must act honestly and in
a commercially reasonable manner (see section 111).
75 At the end of subsection 126(1)
Add:
Note: This section does not apply in relation to
collateral that is used predominantly for personal, domestic or household
purposes (see subsection 109(5)).
76 Subsection 135(4)
Omit “may be given”, substitute “must be given”.
77 At the end of section 136
Add:
Extinguishment of obligation owed to the secured party
(5) If a secured party (the retaining
secured party) takes collateral under this section free of the
interests referred to in subsection (2):
(a) the debt or other obligation
secured by the security interest held by the retaining secured party is
extinguished; but
(b) paragraph (2)(c) does not
have the effect that a debt or other obligation secured by another security
interest in the collateral is extinguished, if the other security interest has
a lower priority than the security interest of the retaining secured party.
78 At the end of Part 4.3
Add:
Division 6—Seizure and disposal or retention of crops and livestock
138A
Meaning of take and water source
In this Act:
take fish includes:
(a) catch or kill fish; and
(b) gather or collect fish; and
(c) remove fish from any rock or other
matter.
Note: Livestock includes
fish (see section 10).
water source means:
(a) a river, lake, creek or pond,
tidal waters or any other land that is submerged by water (whether permanently
or intermittently or whether naturally or artificially); or
(b) any part of such a river, lake,
creek or pond, tidal waters or submerged land.
138B
Seizure and disposal or retention of crops
(1) Without limiting section 123
(secured party may seize collateral), for the purposes of seizing collateral
under that section that is crops, or the proceeds of crops, the secured party
may:
(a) take possession of the crops or
the proceeds; or
(b) cut, gather or harvest the crops or
the proceeds.
(2) The secured party may dispose of, or
retain, collateral that is crops, or the proceeds of crops, after they have
been taken, cut, gathered or harvested, subject to Divisions 2, 3, 4 and 5
(seizure, disposal or retention of collateral and objections).
(3) For the purposes of exercising a power
under subsection (1) or (2), or performing any related function under
Division 2, 3 or 4, the secured party may enter the land on which, or the
water source in which, the crops are, or were, growing.
(4) However, the secured party may exercise
the power to enter land or a water source under subsection (3) for a
purpose mentioned in subsection (1) or (2) only to the same extent as the
grantor would be entitled to enter the land or water source for the same
purpose.
138C
Seizure and disposal or retention of livestock
(1) Without limiting section 123
(secured party may seize collateral), for the purposes of seizing collateral
under that section that is livestock, or the proceeds of livestock, the secured
party may:
(a) take possession of the livestock
or proceeds wherever it is located; or
(b) slaughter the livestock wherever
it is located; or
(c) take livestock that is fish; or
(d) extract products from livestock
(for example, by shearing sheep to extract wool).
Note: A security interest may attach to a livestock
product (for example, the wool of a sheep) as original collateral as mentioned
in subsection 84A(2), or as proceeds.
(2) The secured party may dispose of, or
retain, collateral that is livestock, or the proceeds of livestock, after it
has been taken, slaughtered or extracted, subject to Divisions 2, 3, 4 and
5 (seizure, disposal or retention of collateral and objections).
(3) For the purposes of exercising a power
under subsection (1) or (2), or performing any related function under
Division 2, 3 or 4, the secured party may enter the land on which, or the
water source in which, the livestock or proceeds is located.
79 At the end of section 139
Add:
A person exercising or discharging
rights, duties and obligations arising under this Part must act honestly and in
a commercially reasonable manner (see section 111).
80 After subsection 140(1)
Insert:
(1A) This section does not prevent the operation
of another law of the Commonwealth, or a law of a State or Territory, to the
extent that the law requires the amount, personal property or proceeds to be
applied towards one or more obligations to persons that do not hold security
interests (or any other interests) in the collateral before being applied
towards any (or all) of the obligations mentioned in subsection (2).
Example: This section does not prevent the operation of
section 561 of the Corporations Act 2001, which gives priority to
the satisfaction of certain unsecured obligations over the claims of a secured
party holding a circulating security interest in a debtor’s property.
81 Section 141
Omit “, if the grantor could take those steps”, substitute “that
the person whose title to the collateral is extinguished because of the
disposal or retention could take”.
82 At the end of subsection 151(1) (after the note)
Add:
Example 1: A person applies to register a financing statement
that describes collateral as “all present and after‑acquired property” of
the grantor described in the statement. It is sufficient to comply with this
subsection if the applicant believes on reasonable grounds that the secured
party described in the statement will take a security interest in a particular class
of items of personal property held (or later acquired) by the grantor (see paragraph (b)
of the definition of description in section 10).
Example 2: A person applies to register a financing statement
that describes collateral as “fruit”. It is sufficient to comply with this
subsection if the applicant believes on reasonable grounds that the secured
party described in the statement will take a security interest in apples (see paragraph (b)
of the definition of description in section 10).
83 Paragraph 174(2)(c)
Repeal the paragraph, substitute:
(c) the chronological order of any of
the events mentioned in paragraph (b), in relation to one or more registrations.
84 Subsection 178(3)
Omit “collateral that is consumer property.”, substitute:
collateral that:
(a) at the time the security interest
attached to the collateral, the grantor intended to use predominantly for
personal, domestic or household purposes; or
(b) the grantor is using predominantly
for personal, domestic or household purposes.
85 Paragraph 237(2)(b)
Omit “an assignment”, substitute “a transfer”.
86 Subsection 239(3)
Repeal the subsection (not including the heading),
substitute:
(3) In relation to a security interest in
intellectual property or an intellectual property licence:
(a) subject to paragraph (c), the
validity of the security interest is governed by the law of the jurisdiction
(other than the law relating to conflict of laws) in which the grantor is
located when the security interest attaches, under that law, to the property or
licence; and
(b) subject to paragraph (c), at
a particular time, the perfection, and the effect of perfection or non‑perfection,
of the security interest is governed by the law of the jurisdiction (other than
the law relating to conflict of laws) in which the grantor is located at that
time; and
(c) the following matters are governed
by the law of the jurisdiction (other than the law relating to conflict of
laws) by or under which the property or licence is granted, if that law
provides for the public registration or recording of the security interest, or
of a notice relating to the security interest:
(i) whether a successor in
title to the grantor’s interest in the property or licence takes it free of a
security interest;
(ii) the validity of the
security interest against a transferee of the property or licence.
87 Subsections 241(1) and (2)
Omit “, other than proceeds that are an account,”.
88 At the end of section 241
Add:
(4) However, this section does not apply in
relation to proceeds that are an account unless the account arises from the
dealing that gave rise to the proceeds.
Note: If this section does not apply in relation to
proceeds that are an account, the law governing the validity and the perfection
of a security interest consisting of a transfer of the account is determined by
the law of the jurisdiction in which the grantor is located (see section 239
(governing laws—intangible property)).
89 Before section 242
Insert:
Division 1—Introduction
90 Section 242
Omit:
(a) this Act
operates in any State that has referred to the Commonwealth power to enact and
amend it for the purposes of paragraph 51(xxxvii) of the Constitution;
(b) this Act
operates in that State and any other State, to the extent that other
constitutional powers permit its operation;
Substitute:
(a) this Act
operates in any State that has given the Commonwealth power to legislate
accordingly for the purposes of paragraph 51(xxxvii) of the Constitution;
(b) this Act
operates in any State to the extent that other constitutional powers permit its
operation;
91 After section 242
Insert:
Division 2—Constitutional basis
92 Paragraph 243(1)(b)
Omit “in respect of matters to which this Act relates because
those matters are referred to it”, substitute “because of a reference or
adoption”.
93 Subsection 243(1) (note 1)
Repeal the note.
94 Subsection 243(1) (note 2)
Omit “Note 2”, substitute “Note”.
95 Subsections 244(1) and (2)
Repeal the subsections, substitute:
General meaning
(1) A State is a referring State
if, for the purposes of paragraph 51(xxxvii) of the Constitution, the
Parliament of the State has, before the registration commencement time:
(a) referred the matters covered by subsections (3)
and (4) to the Commonwealth Parliament; or
(b) both:
(i) adopted the relevant
version of this Act; and
(ii) referred the matters
covered by subsection (4) to the Commonwealth Parliament.
Note 1: For registration commencement time,
see section 306.
Note 2: Subsections (5), (6) and (7) deal with
when a State stops being a referring State.
(2) A State is a referring State
even if the State’s referral law provides that:
(a) the reference to the Commonwealth
of a matter covered by subsection (3) or (4) is to terminate in particular
circumstances; or
(b) the adoption of the relevant
version of this Act is to terminate in particular circumstances; or
(c) any or
all of the State’s amendment references have not commenced in relation to a
particular kind (or kinds) of personal property (or so commence at or after the
registration commencement time); or
(d) the
reference to the Commonwealth Parliament of a matter covered by subsection (3)
or (4) has effect only:
(i) if, and to the extent
that, the matter is not otherwise included in the legislative powers of the
Commonwealth Parliament (otherwise than by a reference under paragraph
51(xxxvii) of the Constitution); or
(ii) if and to the extent
that the matter is included in the legislative powers of the Parliament of the
State.
96 Subsection 244(3)
Omit “referral version”, substitute “relevant version”.
Note: The heading to subsection 244(3) is replaced by
the heading “Reference covering the relevant version of this Act”.
97 Subsection 244(5)
Repeal the subsection, substitute:
(5) A State stops being a referring
State if:
(a) in the case where the Parliament
of the State has referred to the Commonwealth Parliament the matters covered by
subsection (3)—that reference terminates; or
(b) in the case where the Parliament
of the State has adopted the relevant version of this Act—the adoption
terminates.
98 Subsections 244(6) and (7)
Omit “referring State”, substitute “referring State”.
99 Subsection 244(8) (definition of initial reference)
Repeal the definition.
100 Subsection 244(8) (definition of referral law)
Omit “matters, as mentioned in subsection (1),”, substitute
“the matters covered by subsection (4)”.
101 Subsection 244(8) (definition of referral version of
this Act)
Repeal the definition.
102 Subsection 244(8) (definition of referred provisions)
Omit “referral”, substitute “relevant”.
103 Subsection 244(8)
Insert:
relevant version of this Act means:
(a) if, at the time the State’s
referral law was enacted, this Act had not been enacted—this Act as originally
enacted; or
(b) otherwise—this Act as originally
enacted, and as amended by the Personal Property Securities (Consequential Amendments)
Act 2009 and the Personal Property Securities (Corporations and Other
Amendments) Act 2010.
104 At the end of Part 7.3
Add:
Division 3—Constitutional guarantees
252A
No constitutional preference to one State over another
A provision of this Act does not apply
to the extent that the operation of the provision would give, or result in the
giving of, preference (within the meaning of section 99 of the
Constitution) to one State or part of a State over another State or part of a
State.
252B
No unjust acquisition of property
(1) A provision of this Act does not apply to
the extent that the operation of the provision would result in an acquisition
of property from a person otherwise than on just terms.
(2) In subsection (1):
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in
paragraph 51(xxxi) of the Constitution.
105 Paragraph 254(2)(h) (after paragraph (c) of the
note)
Insert:
(ca) section 140 (distribution of proceeds received by
secured party);
106 Section 260
Repeal the section.
Note: This section is reproduced in a different form
at section 252A, inserted by item 104 of this Schedule.
107 Subsection 267(1) (note 2)
Omit “section 266”, substitute “sections 266 and 267”.
Note: Note 2 to subsection 267(1) will be further
amended to take account of the amendments of the Corporations Act 2001
in Schedule 1 to this Act when item 108 of this Schedule commences.
108 Subsection 267(1) (note 2)
Omit “sections 266 and 267”, substitute “Division 2A of
Part 5.7B”.
Note: Division 2A of Part 5.7B of the Corporations
Act 2001 is inserted by the amendments of the Corporations Act 2001
in Part 9 of Schedule 1 to this Act. This item will commence at the
same time as Part 9 of Schedule 1 to this Act, which commences at the
registration commencement time within the meaning of the Personal Property
Securities Act 2009.
109 Subsection 267(3) (at the end of the note)
Add “under this subsection”.
110 After section 267
Insert:
267A
Vesting in grantor of security interest that attaches after winding up etc.
Vesting of security interest
(1) A security interest vests in the grantor
when it attaches to the collateral if:
(a) paragraph 267(1)(a) applies in
relation to the grantor; and
(b) before the time (the critical
time) mentioned in paragraph 267(1)(b), the grantor enters into a
security agreement with the secured party that provides for the secured party
to take a security interest in collateral from the grantor; and
(c) at the critical time:
(i) the security interest
has not attached to the collateral; and
(ii) there is no
registration that would perfect the security interest when it attaches to the
collateral; and
(d) after the critical time, the
security interest attaches to the collateral; and
(e) at the time of attachment:
(i) the security interest
is unperfected; or
(ii) if the security
interest is perfected, it is perfected only by a registration for which the
registration time is after the critical time.
Note: This section does not apply to certain
security interests (see section 268).
Property acquired for new value without knowledge
(2) Subsection (1) does not affect the
title of a person to personal property if:
(a) the person acquires the personal
property for new value from a secured party, from a person on behalf of a
secured party, or from a receiver in the exercise of powers:
(i) conferred by the
security agreement providing for the security interest; or
(ii) implied by the general
law; and
(b) at the time the person acquires
the property, the person has no actual or constructive knowledge of the
following (as the case requires):
(i) the filing of an
application for an order to wind up the company;
(ii) the passing of a
resolution to wind up the company;
(iii) the appointment of an
administrator of the company under section 436A, 436B or 436C of the Corporations
Act 2001;
(iv) the execution of a deed
of company arrangement by the company.
Note: Section 296 deals with the onus of
proving matters under this subsection.
111 Subsection 268(1)
Omit “Subsection 267(2) (security interests vested in grantor)
does not apply”, substitute “Subsection 267(2) and section 267A (security
interests vested in grantor) do not apply”.
112 After paragraph 268(1)(a)
Insert:
(aa) a security interest for which
perfection, and the effect of perfection or non‑perfection, is governed
by the law of a foreign jurisdiction at the time mentioned in paragraph
267(1)(b);
113 Subsection 269(1)
After “section 267”, insert “or 267A”.
114 Paragraph 269(2)(a)
Repeal the paragraph, substitute:
(a) is taken to have suffered damage
immediately before the time the security interest vests in the grantor under
section 267 or 267A (as the case requires); and
115 Subparagraph 269(2)(b)(ii)
Omit “day referred to in paragraph 267(1)(b)”, substitute “time
mentioned in paragraph 267(1)(b)”.
116 Section 304
Omit:
Part 9.3 deals with the initial
application of this Act. Generally speaking, the Act starts to apply at the registration
commencement time, which is 26 months after the Act is given the Royal
Assent, or an earlier time determined by the Minister.
Substitute:
Part 9.3 deals with the initial
application of this Act. Generally speaking, the Act starts to apply at the
registration commencement time, which is 1 February 2012 (the first day of
the month that is 26 months after this Act was given the Royal Assent), or an
earlier time determined by the Minister.
117 Section 304
Omit:
This includes rules for determining
priority between these interests and the vesting and extinguishment of
interests in some situations.
Substitute:
This includes rules about the
attachment, perfection and priority of transitional security interests.
118 Section 307 (definition of transitional security
agreement)
Repeal the definition (including the note), substitute:
transitional security agreement means a
security agreement that is in force immediately before the registration
commencement time, and that continues in force at and after that time.
119 Section 311
Repeal the section, substitute:
311
Enforceability of transitional security interests against third parties
Despite section 20, a transitional
security interest is enforceable against a third party in respect of particular
personal property if it would have been so enforceable under the law that
applied to the enforceability of security interests immediately before the
registration commencement time, and as if this Act had not been enacted
(whether the security interest arises before, at or after the registration
commencement time).
120 Section 313
Repeal the section, substitute:
313
Enforcement of security interests in intellectual property licences
Section 106 applies in relation to
security interests in intellectual property licences only if the security
interests are provided for by security agreements made at or after the
registration commencement time.
121 Divisions 1 to 5 of Part 9.4
Repeal the Divisions, substitute:
Division 1—Introduction
319
Guide to this Part
This Part deals with the transitional
application of this Act.
This Part applies to transitional
security interests, which are security interests provided for by security
agreements (transitional security agreements) in force immediately before the
registration commencement time. A transitional security interest may arise
before, at or after the registration commencement time.
The registration commencement time is
1 February 2012 (the first day of the month that is 26 months after this
Act was given the Royal Assent), or an earlier time determined by the Minister.
Division 2 is about the
attachment, perfection and priority of transitional security interests.
Transitional security interests are declared to be perfected until the end of
the month that is 24 months after the registration commencement time, or until
they are earlier perfected by other means (for example, by registration).
Division 6 is about the migration
of data about personal property from Commonwealth, State and Territory
registers onto the Personal Property Securities Register. The Registrar may
register migrated data about transitional security interests with effect from
the registration commencement time. Such transitional security interests are
known as migrated security interests.
Migrated security interests are
perfected under Division 2 from immediately before the registration
commencement time.
Division 7 provides for
preparatory registration with respect to transitional security interests in
anticipation of the commencement of the Personal Property Securities Register.
Other data may also be registered under this Division before the registration
commencement time.
Transitional security interests that
are registered in this way are perfected under Division 2 from immediately
before the registration commencement time.
Division 8 provides rules for dealing
with defective registrations with respect to transitional security interests.
For example, omissions arising from the migration of data onto the Personal
Property Securities Register will not automatically render the registration of
the data ineffective.
Division 2—Attachment, perfection and priority of transitional security
interests
320
Guide to priority rules for transitional security interests
(1) The following table is a guide to how
this Act applies to the determination of priorities involving transitional
security interests:
|
Priorities involving
transitional security interests
|
|
Item
|
The following security
interest:
|
has priority over …
|
because of …
|
|
1
|
a perfected transitional security interest
|
an unperfected security interest (whether transitional or
not)
|
subsection 55(3).
|
|
2
|
a perfected transitional security interest
|
a perfected security interest that is not a transitional
security interest
|
subsection 55(5) and section 322.
|
|
3
|
an unperfected transitional security interest
|
an unperfected security interest that is not a
transitional security interest
|
subsection 55(2) and section 321.
|
|
4
|
a perfected security interest (whether transitional or
not)
|
an unperfected transitional security interest
|
subsection 55(3).
|
(2) Other priorities involving transitional
security interests are dealt with under this Division as follows:
(a) for the priority between 2
perfected transitional security interests, see section 323;
(b) for the priority between 2
unperfected transitional security interests, see section 323;
(c) for the priority between 2
security interests, one or both of which is a transitional security interest,
if the priority comes to be determined after the end of the month that is 24
months after the registration commencement time in circumstances involving
insolvency or bankruptcy, see section 324.
(3) In this section, a reference to a
perfected transitional security interest is taken to be a reference to a transitional
security interest that has been continuously perfected, at the time the
priority comes to be determined, since immediately before the registration
commencement time.
321
Attachment rule
For the purposes of subparagraph 21(1)(b)(i)
and section 55, a transitional security interest in collateral is taken to
have attached to the collateral immediately before the registration
commencement time, whether the security interest arises before, at or after the
registration commencement time.
Note 1: Subparagraph 21(1)(b)(i) provides that unless a
security interest in collateral is perfected by force of this Act, the security
interest must have attached to the collateral in order to be perfected.
Note 2: Section 55 provides for the default rules
for determining priority between security interests in the same collateral. In
some cases, these rules depend on when a security interest attaches. For
example, the priority between 2 unperfected security interests is generally
determined by their order of attachment (see subsection 55(2)).
However, 2 unperfected transitional
security interests have the priority they would have had between themselves if
this Act had not been enacted (see section 323).
Note 3: See section 320 for a general summary of
priority rules as they affect transitional security interests.
322
Perfection rule
Main rule
(1) A transitional security interest in
collateral is perfected from immediately before the registration commencement
time, whether the security interest arises before, at or after the registration
commencement time (including a transitional security interest that arises after
the end of the month that is 24 months after the registration commencement
time).
Note 1: As a result of this subsection, the priority
time for a transitional security interest under subsection 55(4) will be
immediately before the registration commencement time, as long as the security
interest remains continuously perfected.
Note 2: See section 320 for a general summary of
priority rules as they affect transitional security interests.
(2) However, the transitional security
interest stops being perfected under subsection (1) at the earliest of the
following times:
(a) when the security interest is
perfected by registration under Division 6 (migration of personal property
interests);
(b) when the security interest is
perfected by preparatory registration under Division 7;
(c) when a registration under Division 6
or 7 is amended so that the registration perfects the security interest;
(d) when the security interest is
otherwise perfected by registration, or is perfected by possession or control;
(e) when the security interest is
otherwise perfected (but not temporarily perfected) by this Act, other than
under this section;
(f) the end of the month that is 24
months after the registration commencement time.
Note: In the case of a transitional security
interest in collateral that does not arise until after the end of the month
that is 24 months after the registration commencement time, this section has
the same effect as for other transitional security interests. In particular:
(a) if a financing statement describing the collateral is
registered before the end of that month, by the operation of sections 21,
55, 321 and this section, the security interest is continuously perfected from
the registration time for the collateral until the registration stops being
effective; and
(b) if the security interest is not perfected (otherwise
than under this section) at the end of the month that is 24 months after the
registration commencement time, the security interest will become unperfected
at that time.
Exception
(3) Subsections (1) and (2) do not apply
to a transitional security interest in collateral if the interest is of a class
prescribed by regulations made for the purposes of this subsection.
323
Priority rule—priority otherwise undetermined
If the priority between 2 transitional
security interests is not otherwise able to be determined under this Act, they
have the priority between themselves that they would have had under the law
that applied to such priority immediately before the registration commencement
time, and as if this Act had not been enacted.
Note: The priority between the following
transitional security interests is not otherwise able to be determined under
this Act:
(a) 2 unperfected transitional security interests (because
of section 321, the order of attachment between these interests cannot be
determined for the purposes of subsection 55(2));
(b) 2 transitional security interests that have been
continuously perfected since immediately before the registration commencement
time (because of sections 321 and 322, the order of the priority times for
these interests cannot be determined for the purposes of subsection 55(4)).
324
Priority rule—certain security interests upon insolvency or bankruptcy
(1) The priority between 2 security interests
in the same collateral is to be determined under this Act, as if section 322
had not been enacted, if:
(a) the priority between the security
interests comes to be determined after the end of the month that is 24 months
after the registration commencement time; and
(b) either (or each) of the interests
is a transitional security interest that has not been perfected, apart from
under section 322; and
(c) the grantor or secured party in
relation to either (or each) of the security interests is insolvent or
bankrupt.
(2) Subsection (1) is in addition to,
and does not derogate from, any other provision of this Division.
122 Paragraph 333(3)(a)
Repeal the paragraph, substitute:
(a) either:
(i) if subsection (4)
applies—state the transitional registration end time as the end time for the
effective registration in respect of the personal property; or
(ii) if subsection (4)
does not apply—not state an end time for the effective registration in respect
of the personal property; and
123 Subsection 333(4)
Repeal the subsection, substitute:
(4) This subsection applies if, in the
Registrar’s opinion, the registration of the interest in the personal property
in the transitional register would have ended at a particular time (the transitional
registration end time) in accordance with the law under which the
transitional register was maintained (as in force immediately before the
migration time).
Registration time
(5) The registration time for
the personal property is the registration commencement time.
Note: However, the migrated security interest in the
personal property is perfected from immediately before the registration
commencement time (see section 322).
124 Section 336
Repeal the section, substitute:
336
Preparatory registration—transitional security interests
Application for preparatory registration
(1) At or after the migration time, and
before the registration commencement time, a person may apply to the Registrar,
in the approved form, for the registration of any of the following:
(a) a financing statement that
describes collateral with respect to a transitional security interest;
(b) a financing statement with respect
to personal property prescribed by regulations made for the purposes of paragraph
148(c);
(c) a financing change statement to
amend a financing statement mentioned in paragraph (a) or (b) that is
registered under this section.
(2) The Registrar may accept an application
made under subsection (1), but only if:
(a) in the case of a financing
statement, or a financing change statement, with respect to a transitional
security interest—the Registrar is satisfied on reasonable grounds that a
transitional security interest will (whether before, at or after the
registration commencement time) be:
(i) attached to the
collateral; and
(ii) held by the applicant;
and
(b) in any case—in the Registrar’s
opinion, it is operationally practicable for the Registrar to register the
financing statement, or financing change statement, before the registration
commencement time.
Registration
(3) If the Registrar accepts the application
for registration, the Registrar may register the financing statement (or
financing change statement), in accordance with the application, before the
registration commencement time.
Note: The Registrar must give a verification
statement to a secured party affected by the registration.
(4) A registration under this section with
respect to a transitional security interest must disclose that the collateral
is covered by a transitional security agreement.
(5) In the case of a registration with
respect to a transitional security interest, the registration time for
the collateral is the registration commencement time.
Note: However, a transitional security interest in
the personal property arising under the agreement is perfected from immediately
before the registration commencement time, no matter whether the security
interest arises before, at or after that time (see section 322).
(6) Chapter 5 (registration) applies in
relation to an application for registration under this section, and to such a
registration, subject to this section.
125 Section 337
Repeal the section, substitute:
337
Registration effective despite certain defects
Scope
(1) This section applies if:
(a) a registration describes
collateral covered by a transitional security agreement; and
(b) the transitional security
agreement has given rise to a transitional security interest; and
(c) the registration would not, apart
from this section, be effective in respect of the collateral because of a
defect in the registered data (including the omission of data); and
(d) the Registrar has made a
determination under subsection (2) in relation to defects of that type;
and
(e) the determination applies to the
registration.
Note: Sections 164 and 165 provide that serious
or misleading defects in a registration, and certain particular types of
defect, make a registration ineffective.
(2) For the purposes of paragraph (1)(d),
the Registrar may, by legislative instrument, determine that registrations in a
stated class are effective despite stated types of defect.
(3) A determination under subsection (2)
may provide that the determination does not apply in relation to a stated type
of defect unless the registration includes particular data in relation to the
defect (or in substitution for omitted data).
Registration temporarily unaffected by the defect
(4) Despite sections 164 and 165, the
defect does not make the registration ineffective for the period starting at
the registration time for the collateral and ending at the following time:
(a) if the financing statement, as
initially registered, states an end time—that end time (or an earlier end time,
if the registration is amended to state an earlier end time);
(b) if the financing statement, as
initially registered, does not state an end time—the end of the month that is
60 months after the registration commencement time (or an earlier end time, if
the registration is amended to state an end time).
Registration becomes ineffective
(5) However, the registration becomes
ineffective under section 164 because of the defect immediately after the
end of the period mentioned in subsection (4), unless, at or before that
time, the registration is amended to correct the defect.
337A
Registration defective if collateral is not covered by transitional security
agreement
Without limiting section 164
(defects in registration), a registration that discloses that collateral is
covered by a transitional security agreement is ineffective to the extent that
it describes collateral that is not covered by a transitional security
agreement.
126 Subsection 340(2) (note)
Repeal the note, substitute:
Note: For the meaning of control in
this subsection, see section 341.
127 At the end of subsection 340(5)
Add:
Note: For the meaning of inventory in
this subsection, see section 341.
128 Before subsection 341(1)
Insert:
General rules
(1A) For the purposes of subsection 340(2), a
secured party has control of personal property if:
(a) the secured party has control of
the property within the ordinary meaning of the term “control”; or
(b) the secured party has control
of the property within the meaning of Part 2.3 (possession and
control of personal property); or
(c) in a case in which the personal
property is inventory or an account—the secured party has control of the
inventory or account because of:
(i) paragraph (a) or
(b); or
(ii) subsection (1),
(2), (3) or (4).
(1B) For the purposes of subsection 340(5) and
this section:
(a) inventory has its
ordinary meaning; and
(b) the definition of inventory
in section 10 does not apply.
Note: The heading to section 341 is replaced by
the heading “Meaning of control and inventory”.
129 Subsection 341(1)
Omit “For the purposes of determining whether inventory is a
circulating asset under section 340, a secured party has control
of the inventory if”, substitute “For the purposes of subsection 340(2), a
secured party has control of inventory if”.
130 Subsection 341(2)
Omit “For the purposes of determining whether an account is a
circulating asset under section 340”, substitute “For the purposes of
subsection 340(2)”.
131 Subsection 341(2)
After “subsections (3) and (4)”, insert “of this section”.
132 Subsection 341(5)
Repeal the subsection.
Part 2—Bulk amendments
133 Amendments to change references to investment
entitlements etc. to references to intermediated securities etc.
The specified provisions of the Personal Property Securities
Act 2009 listed in items 134 to 153 of this Schedule are amended by:
(a) omitting “investment entitlement
intermediary” (wherever occurring) and substituting “intermediary”; and
(b) omitting “investment entitlement
account” (wherever occurring) and substituting “securities account”; and
(c) omitting “investment entitlement”
(wherever occurring otherwise than as mentioned in paragraph (a) or (b))
and substituting “intermediated security”; and
(d) omitting “entitlement” (wherever
occurring otherwise than as mentioned in paragraphs (a), (b) and (c)) and
substituting “intermediated security”; and
(e) omitting “investment entitlements”
(wherever occurring) and substituting “intermediated securities”.
134 Subsection 6(1A)
135 Section 10 (paragraph (e) of the definition of
account)
136 Section 10 (paragraph (d) of the definition of
chattel paper)
137 Section 10 (definition of goods)
138 Section 10 (paragraph (c) of the definition of
intangible property)
139 Section 10 (paragraph (m) of the definition of
investment instrument)
140 Section 10 (paragraph (h) of the definition of
negotiable instrument)
141 Paragraph 14(2)(b)
142 Subparagraph 21(2)(c)(ii)
143 Section 23
144 Section 30
145 Subsection 31(1) (subparagraph (c)(iv) of the
definition of proceeds)
146 Subsection 31(1) (paragraph (e) of the definition
of proceeds)
147 Subsection 32(2)
148 Paragraphs 41(g) and (i)
149 Paragraph 42(b)
150 Section 49
Note: The heading to section 49 is altered by
omitting “entitlement” and substituting “intermediated security”.
151 Subsection 51(1)
152 Subsection 77(1)
153 Paragraph 109(3)(b)
Note: The heading to subsection 109(3) is altered by
omitting “investment entitlements” and substituting “intermediated
securities”.
Schedule 3—Amendment of other Acts
Designs Act 2003
1 Section 5 (definition of PPSA security interest)
Repeal the definition, substitute:
PPSA security interest (short for Personal
Property Securities Act security interest) means a security interest within the
meaning of the Personal Property Securities Act 2009 and to which that
Act applies, other than a transitional security interest within the meaning of
that Act.
Note 1: The Personal Property Securities Act 2009
applies to certain security interests in personal property. See the following
provisions of that Act:
(a) section 8 (interests to which the Act does not
apply);
(b) section 12 (meaning of security interest);
(c) Chapter 9 (transitional provisions).
Note 2: For the meaning of transitional security
interest, see section 308 of the Personal Property Securities
Act 2009.
Note: This amendment replaces the definition inserted
by item 1 of Schedule 2 to the Personal Property Securities
(Consequential Amendments) Act 2009.
Fisheries Management Act 1991
2 Subsection 4(1) (definition of PPSA security interest)
Repeal the definition, substitute:
PPSA security interest (short for Personal
Property Securities Act security interest) means a security interest within the
meaning of the Personal Property Securities Act 2009 and to which that
Act applies, other than a transitional security interest within the meaning of
that Act.
Note 1: The Personal Property Securities Act 2009
applies to certain security interests in personal property. See the following
provisions of that Act:
(a) section 8 (interests to which the Act does not
apply);
(b) section 12 (meaning of security interest);
(c) Chapter 9 (transitional provisions).
Note 2: For the meaning of transitional security
interest, see section 308 of the Personal Property Securities
Act 2009.
Note: This amendment replaces the definition inserted
by item 1 of Schedule 1 to the Personal Property Securities
(Consequential Amendments) Act 2009.
Mutual Assistance in Criminal Matters
Act 1987
3 At the end of section 35J
Add:
(4) Subsection 73(2) of the Personal
Property Securities Act 2009 applies to the charge (to the extent, if any,
to which that Act applies in relation to the property charged).
Note 1: The effect of this subsection is that the
priority between the charge and a security interest in the property to which
the Personal Property Securities Act 2009 applies is to be determined in
accordance with this Act rather than the Personal Property Securities Act
2009.
Note 2: Subsection 73(2) of the Personal Property
Securities Act 2009 applies to charges created by this section after the
commencement of subsection (4) (which is at the registration commencement
time within the meaning of the Personal Property Securities Act 2009).
4 Subsection 35L(4) (definition of registration authority)
Repeal the definition, substitute:
registration authority, in relation to
property of a particular kind, means:
(a) an authority responsible for
administering a law of the Commonwealth, a State or a Territory providing for
registration of title to, or charges over, property of that kind; or
(b) the Registrar of Personal Property
Securities, if the Personal Property Securities Act 2009 provides for
the registration of data in relation to that kind of personal property for the
purposes of paragraph 148(c) of that Act.
Note: The Personal Property Securities Act 2009
provides for the registration of such data if regulations are made for the
purposes of paragraph 148(c) of that Act.
Navigation Act 1912
5 Subsection 6(1) (definition of PPSA security interest)
Repeal the definition, substitute:
PPSA security interest (short for Personal
Property Securities Act security interest) means a security interest within the
meaning of the Personal Property Securities Act 2009 and to which that
Act applies, other than a transitional security interest within the meaning of
that Act.
Note 1: The Personal Property Securities Act 2009
applies to certain security interests in personal property. See the following
provisions of that Act:
(a) section 8 (interests to which the Act does not
apply);
(b) section 12 (meaning of security interest);
(c) Chapter 9 (transitional provisions).
Note 2: For the meaning of transitional security
interest, see section 308 of the Personal Property Securities
Act 2009.
Note: This amendment replaces the definition inserted
by item 6 of Schedule 3 to the Personal Property Securities
(Consequential Amendments) Act 2009.
Offshore Petroleum and Greenhouse Gas
Storage Act 2006
6 Section 7 (definition of charge)
Repeal the definition.
7 Section 7 (definition of debenture)
Repeal the definition.
8 Subsections 489(5) and (6)
Repeal the subsections.
9 Paragraph 490(2)(c)
Omit “instrument;”, substitute “instrument.”.
10 Paragraph 490(2)(d)
Repeal the paragraph.
11 Subsections 499(5) and (6)
Repeal the subsections.
12 Paragraph 500(2)(c)
Omit “instrument;”, substitute “instrument.”.
13 Paragraph 500(2)(d)
Repeal the paragraph.
14 Subsections 540(5) and 549(5)
Repeal the subsections.
15 Transitional—repeal of definition of debenture
The amendment made by item 7 applies in relation to dealings
taking place after the time that item commences.
Note 1: Sections 468 and 520 of the Offshore
Petroleum and Greenhouse Gas Storage Act 2006 are about dealings in series
of debentures.
Note 2: Item 7 of this Schedule commences at the
registration commencement time within the meaning of section 306 of the Personal
Property Securities Act 2009 (as provided by section 2 of this Act).
Patents Act 1990
16 Schedule 1 (Dictionary) (definition of PPSA
security interest)
Repeal the definition, substitute:
PPSA security interest (short for Personal
Property Securities Act security interest) means a security interest within the
meaning of the Personal Property Securities Act 2009 and to which that
Act applies, other than a transitional security interest within the meaning of
that Act.
Note 1: The Personal Property Securities Act 2009
applies to certain security interests in personal property. See the following
provisions of that Act:
(a) section 8 (interests to which the Act does not
apply);
(b) section 12 (meaning of security interest);
(c) Chapter 9 (transitional provisions).
Note 2: For the meaning of transitional security
interest, see section 308 of the Personal Property Securities
Act 2009.
Note: This amendment replaces the definition inserted
by item 14 of Schedule 2 to the Personal Property Securities
(Consequential Amendments) Act 2009.
Personal Property Securities
(Consequential Amendments) Act 2009
17 Item 17 of Schedule 1
Repeal the item.
Note: The repealed item is redundant because of the
amendment in item 2 of this Schedule.
Proceeds of Crime Act 2002
18 At the end of section 142
Add:
(4) Subsection 73(2) of the Personal
Property Securities Act 2009 applies to the charge (to the extent, if any,
to which that Act applies in relation to the property charged).
Note 1: The effect of this subsection is that the
priority between the charge and a security interest in the property to which
the Personal Property Securities Act 2009 applies is to be determined in
accordance with this Act rather than the Personal Property Securities Act
2009.
Note 2: Subsection 73(2) of the Personal Property
Securities Act 2009 applies to charges created by this section after the
commencement of subsection (4) (which is at the registration commencement
time within the meaning of the Personal Property Securities Act 2009).
19 At the end of section 143
Add:
(3) In this section:
registration of a charge on a particular kind
of personal property within the meaning of the Personal Property Securities
Act 2009 includes the registration of data in relation to that kind of
property for the purposes of paragraph 148(c) of that Act.
Note: The Personal Property Securities Act 2009
provides for the registration of such data only if regulations are made for the
purposes of paragraph 148(c) of that Act.
20 At the end of section 169
Add:
(4) Subsection 73(2) of the Personal
Property Securities Act 2009 applies to the charge (to the extent, if any,
to which that Act applies in relation to the property charged).
Note 1: The effect of this subsection is that the
priority between the charge and a security interest in the property to which
the Personal Property Securities Act 2009 applies is to be determined in
accordance with this Act rather than the Personal Property Securities Act
2009.
Note 2: Subsection 73(2) of the Personal Property
Securities Act 2009 applies to charges created by this section after the
commencement of subsection (4) (which is at the registration commencement
time within the meaning of the Personal Property Securities Act 2009).
21 At the end of section 170
Add:
(3) In this section:
registration of a charge on a particular kind
of personal property within the meaning of the Personal Property Securities
Act 2009 includes the registration of data in relation to that kind of
property for the purposes of paragraph 148(c) of that Act.
Note: The Personal Property Securities Act 2009
provides for the registration of such data only if regulations are made for the
purposes of paragraph 148(c) of that Act.
22 Section 302
Before “If a charge”, insert “(1)”.
23 At the end of section 302
Add:
(2) Subsection 73(2) of the Personal
Property Securities Act 2009 applies to the commission’s charge (to the
extent, if any, to which that Act applies in relation to the property charged).
Note 1: The effect of this subsection is that the
priority between the commission’s charge and a security interest in the
property to which the Personal Property Securities Act 2009 applies is
to be determined in accordance with this Act rather than the Personal
Property Securities Act 2009.
Note 2: Subsection 73(2) of the Personal Property
Securities Act 2009 applies to commission charges created by section 300
after the commencement of subsection (2) (which is at the registration
commencement time within the meaning of the Personal Property Securities Act
2009).
24 Section 302C
Before “If a charge”, insert “(1)”.
25 At the end of section 302C
Add:
(2) Subsection 73(2) of the Personal
Property Securities Act 2009 applies to the Commonwealth’s charge (to the
extent, if any, to which that Act applies in relation to the property charged).
Note 1: The effect of this subsection is that the
priority between the Commonwealth’s charge and a security interest in the
property to which the Personal Property Securities Act 2009 applies is
to be determined in accordance with this Act rather than the Personal
Property Securities Act 2009.
Note 2: Subsection 73(2) of the Personal Property
Securities Act 2009 applies to Commonwealth charges created by section 302A
after the commencement of subsection (2) (which is at the registration
commencement time within the meaning of the Personal Property Securities Act
2009).
26 After subsection 307(3)
Insert:
(3A) Subsection 73(2) of the Personal
Property Securities Act 2009 applies to a charge created by subsection (1)
(to the extent, if any, to which that Act applies in relation to the property
charged).
Note 1: The effect of this subsection is that the
priority between the charge and a security interest in the property to which
the Personal Property Securities Act 2009 applies is to be determined in
accordance with this Act rather than the Personal Property Securities Act
2009.
Note 2: Subsection 73(2) of the Personal Property
Securities Act 2009 applies to charges created by subsection (1) after
the commencement of subsection (3A) (which is at the registration
commencement time within the meaning of the Personal Property Securities Act
2009).
27 At the end of section 307
Add:
(5) In this section:
registration of a charge on a particular kind
of personal property within the meaning of the Personal Property Securities
Act 2009 includes the registration of data in relation to that kind of
property for the purposes of paragraph 148(c) of that Act.
Note: The Personal Property Securities Act 2009
provides for the registration of such data if regulations are made for the
purposes of paragraph 148(c) of that Act.
28 Section 338 (definition of registration authority)
Repeal the definition, substitute:
registration authority, in relation to
property of a particular kind, means:
(a) an authority responsible for
administering a law of the Commonwealth, a State or a Territory providing for
registration of title to, or charges over, property of that kind; or
(b) the Registrar of Personal Property
Securities, if the Personal Property Securities Act 2009 provides for
the registration of data in relation to that kind of personal property for the
purposes of paragraph 148(c) of that Act.
Note: The Personal Property Securities Act 2009
provides for the registration of such data if regulations are made for the
purposes of paragraph 148(c) of that Act.
Torres Strait Fisheries Act 1984
29 Subsection 3(1) (definition of PPSA security interest)
Repeal the definition, substitute:
PPSA security interest (short for Personal
Property Securities Act security interest) means a security interest within the
meaning of the Personal Property Securities Act 2009 and to which that
Act applies, other than a transitional security interest within the meaning of
that Act.
Note 1: The Personal Property Securities Act 2009
applies to certain security interests in personal property. See the following
provisions of that Act:
(a) section 8 (interests to which the Act does not
apply);
(b) section 12 (meaning of security interest);
(c) Chapter 9 (transitional provisions).
Note 2: For the meaning of transitional security
interest, see section 308 of the Personal Property Securities
Act 2009.
Note: This amendment replaces the definition inserted
by item 19 of Schedule 1 to the Personal Property Securities
(Consequential Amendments) Act 2009.
Trade Marks Act 1995
30 Section 6 (definition of PPSA security interest)
Repeal the definition, substitute:
PPSA security interest (short for Personal
Property Securities Act security interest) means a security interest within the
meaning of the Personal Property Securities Act 2009 and to which that
Act applies, other than a transitional security interest within the meaning of
that Act.
Note 1: The Personal Property Securities Act 2009
applies to certain security interests in personal property. See the following
provisions of that Act:
(a) section 8 (interests to which the Act does not
apply);
(b) section 12 (meaning of security interest);
(c) Chapter 9 (transitional provisions).
Note 2: For the meaning of transitional security
interest, see section 308 of the Personal Property Securities
Act 2009.
Note: This amendment replaces the definition inserted
by item 18 of Schedule 2 to the Personal Property Securities
(Consequential Amendments) Act 2009.