Personal
Property Securities Regulations 20101
Select Legislative Instrument 2010 No. 291
I, QUENTIN
BRYCE, Governor-General of the Commonwealth of Australia, acting with the
advice of the Federal Executive Council, make the following Regulations under the
Personal Property Securities Act 2009.
Dated 24 November 2010
QUENTIN BRYCE
Governor-General
By Her
Excellency’s Command
ROBERT McCLELLAND
Contents
Part 1 Preliminary
Division 1 Preliminary
1.1 Name of Regulations 4
1.2 Commencement 4
Division 2 General application of the Act
1.3 Application of the Act to external Territories 4
1.4 Interests to which the Act does not apply 4
1.5 Interests to which the Act applies 5
Division 3 Definitions
1.6 Definitions 5
1.7 Meaning of motor vehicle 10
1.8 Meaning of security interest 11
Part 2 General rules for
security interests
2.1 Taking motor vehicles free of security
interests 12
2.2 Taking motor vehicles from prescribed persons 12
Part 3 Specific rules for certain
security interests
Part 4 Enforcement of security
interests
4.1 Relationship with consumer credit legislation 14
Part 5 Personal Property Securities
Register
5.1 Access to register 17
5.2 Notification of suspension of access to
register 17
5.3 What the register contains 17
5.4 Prohibited registration 18
5.5 Financing statements 20
5.6 Verification statements — publication as
alternative 20
5.7 Access to the register prohibited 21
5.8 Search — criteria 21
5.9 Administrative process —
statements in relation to amendment demand 21
5.10 Removal of data 22
Part 6 Judicial proceedings
Part 7 Operation of laws
7.1 When Act prevails — formal requirements
relating to agreements 24
Part 8 Miscellaneous
Part 9 Transitional provisions
9.1 Transitional meaning of watercraft 26
9.2 Temporary perfection rule — exception 26
9.3 Sunset of Part 9 26
Schedule 1 Financing statement matters for items
of the table in subsection 153 (1) of the Act 27
Part 1 Matters
for items 1 and 2 27
Part 2 Matters
for item 4 33
Part 3 Matters
for item 7 36
Part 4 Matters
for item 8 37
Schedule 2 Financing statement matters for the
table in section 154 of the Act 39
Part 1 Preliminary 39
Part 2 Matters
for item 1 39
Part 1 Preliminary
Division 1 Preliminary
1.1 Name
of Regulations
These Regulations are the Personal Property Securities Regulations 2010.
1.2 Commencement
These Regulations commence on the day after they
are registered.
Division 2 General application of the Act
1.3 Application
of the Act to external Territories
For subsection 7 (3) of the Act, the following
are external Territories:
(a) the Territory of Christmas Island;
(b) the Territory of Cocos (Keeling) Islands.
1.4 Interests
to which the Act does not apply
(1) For paragraph 8 (1) (l) of the Act,
the Act does not apply to a right or interest in personal property mentioned in
section 260‑5 of Schedule 1 to the Taxation Administration Act 1953.
(2) For item 6 of the table in subsection 8 (2)
of the Act, section 74 of the Act applies to an interest in personal
property mentioned in the following provisions of the Act:
(a) paragraph 8 (1) (b);
(b) paragraph 8 (1) (c);
(c) subparagraph 8 (1) (f) (ii);
(d) subparagraph 8 (1) (f) (iv).
1.5 Interests
to which the Act applies
(1) For subsection 8 (3) of the Act, the Act
applies to:
(a) a mortgage‑backed security; and
(b) if transferred to a person in connection with
the issue by the person of a mortgage‑backed security — a real
property mortgage loan.
(2) In this regulation:
mortgage‑backed security has the
meaning given by section 286 of the Duties Act 2001 (Qld).
Division 3 Definitions
1.6 Definitions
In these Regulations:
ACN (short for
‘Australian Company Number’) is the number given by ASIC to a company on
registration under the Corporations Act 2001.
Act means the Personal Property Securities
Act 2009.
agriculture means personal property that is crops
or livestock.
aircraft means:
(a) a machine or craft that:
(i) can derive support in the
atmosphere from the reactions of the air, other than the reactions of the air
against the earth’s surface; and
(ii) has nationality
and registration marks assigned to it under the Chicago Convention; or
(b) an aircraft engine; or
(c) an airframe; or
(d) a helicopter.
aircraft engine has
the meaning given by the definition of ‘aircraft engines’ in the Aircraft
Protocol.
Note The Aircraft Protocol contains the
following definition of ‘aircraft engines’:
“aircraft engines” means aircraft
engines (other than those used in military, customs or police services) powered
by jet propulsion or turbine or piston technology and:
(i) in
the case of jet propulsion aircraft engines, have at least 1750 lb of thrust or
its equivalent; and
(ii) in
the case of turbine-powered or piston-powered aircraft engines, have at least
550 rated take-off shaft horsepower or its equivalent,
together with all modules and other
installed, incorporated or attached accessories, parts and equipment and all
data, manuals and records relating thereto.
Aircraft Protocol means the Protocol on Matters Specific to Aircraft Equipment, done at Cape Town on 16 November
2001.
Note The Aircraft Protocol is a Protocol to
the Convention on International Interests in
Mobile Equipment, done at Cape Town on 16 November 2001.
airframe has the meaning given by the
definition of ‘airframes’ in the Aircraft Protocol.
Note The Aircraft Protocol contains
the following definition of ‘airframes’:
“airframes” means airframes (other than those used in military,
customs or police services) that, when appropriate aircraft engines are
installed thereon, are type certified by the competent aviation authority to
transport:
(i) at least
eight (8) persons including crew; or
(ii) goods
in excess of 2750 kilograms,
together with all installed,
incorporated or attached accessories, parts and equipment (other than aircraft
engines), and all data, manuals and records relating thereto.
all present and after-acquired property
means:
(a) personal property over which the
grantor has an interest at the registration time for the financing statement
for a security interest or prescribed property; and
(b) personal property acquired after the
registration time for the financing statement for the security interest or
prescribed property.
all present and after-acquired property, except means
all present and after-acquired property, except for an item or class of
personal property stated in the financing statement for the interest.
AML-CTF Act means the Anti-Money
Laundering and Counter-Terrorist Financing Act 2006.
ARBN (short for ‘Australian Registered
Body Number’) is the number given by ASIC to a registrable body on registration
under Part 5B.2 of the Corporations Act 2001.
ARSN (short for ‘Australian Registered
Securities Number’) is the number given by ASIC to a registered scheme on
registration under section 601EB of the Corporations Act 2001.
ASIC means the Australian Securities and
Investments Commission.
Australian Business Register means the
register established under section 24 of the A New Tax System (Australian
Business Number) Act 1999.
Note The Australian Business Register can
be viewed at http://www.abr.business.gov.au.
chassis number, for a motor vehicle, means the
numbers or letters, or both, that:
(a) are attached to or stamped on the vehicle’s
chassis by the vehicle’s manufacturer; and
(b) appears to uniquely identify the vehicle.
Chicago Convention means the Convention on
International Civil Aviation done at Chicago on 7 December 1944, as
amended by the Protocols mentioned in subsection 3A (2) of the Air
Navigation Act 1920.
helicopter has the meaning given by the
definition of ‘helicopters’ in the Aircraft Protocol.
Note The Aircraft Protocol contains the
following definition of ‘helicopters’:
“helicopters” means heavier-than-air
machines (other than those used in military, customs or police services)
supported in flight chiefly by the reactions of the air on one or more
power-driven rotors on substantially vertical axes and which are type certified
by the competent aviation authority to transport:
(i) at least
five (5) persons including crew; or
(ii) goods
in excess of 450 kilograms,
together with all installed, incorporated
or attached accessories, parts and equipment (including rotors), and all data,
manuals and records relating thereto.
hull identification
number, for a watercraft, means a number that:
(a) is in a form and of a size, specified in one
of the following Standards, published by the International Organization for
Standardization:
(i) International Standard No ISO
10087:1995 (E), titled ‘Small craft—Hull identification—Coding system’;
(ii) International Standard No ISO
10087:2006, titled ‘Small craft—Craft identification—Coding
system’; and
(b) is permanently attached to, and located in
the positions on, the hull of a vessel specified by a Standard mentioned in
paragraph (a); and
(c) is allocated to the watercraft by:
(i) a registration authority of a
State or Territory; or
(ii) a person authorised by a registration
authority of a State or Territory; or
(iii) the watercraft’s manufacturer;
and
(d) appears to uniquely identify the watercraft.
manufacturer’s number,
for an aircraft or motor vehicle, or an outboard motor to which regulation 9.1
applies, means the numbers or letters, or both, that:
(a) are permanently attached to or stamped on a
permanent part of the aircraft, motor vehicle or outboard motor by its
manufacturer; and
(b) appears to uniquely identify the aircraft, motor
vehicle or outboard motor.
migrated security interest has the meaning
given by section 332 of the Act.
National Names Index means the index of that
title created by ASIC.
original registration time, for migrated data
registered under section 333 of the Act, means the time at which the security
interest or prescribed property was first registered on the transitional
register.
outboard motor
means an internal combustion engine that:
(a) has a propeller and a manufacturer’s number;
and
(b) is designed to be attached to a boat or
vessel; and
(c) is intended for use to propel a boat or
vessel.
prescribed property means personal property
mentioned in subregulation 5.3 (1).
registered scheme has the meaning given by
section 9 of the Corporations Act 2001.
registration time has the meaning given by
subsection 160 (1) of the Act.
responsible entity has the meaning given by
section 9 of the Corporations Act 2001.
small aircraft means an aircraft other than
an airframe, aircraft engine or helicopter.
vehicle identification number, for a motor
vehicle, means a number allocated to the vehicle in accordance with national
standards, as in force from time to time, made under the Motor Vehicle
Standards Act 1989.
watercraft
means a boat or vessel, other than a seaplane, that:
(a) is used, or intended to be used, in
navigation by water or for any other purpose on water; and
(b) that has:
(i) a hull identification number; or
(ii) an official number, within the
meaning of the Shipping Registration Regulations 1981, issued by
the Registrar of Ships (within the meaning of the Shipping
Registration Act 1981).
Note 1 For the meaning of watercraft,
see also regulation 9.1.
Note 2 Several other words and
expressions used in these Regulations have the meaning given by the Act, for
example:
·
ABN
·
account
·
after-acquired property
·
chattel paper
·
crops
·
financial property
·
goods
·
intangible property
·
intermediated security
·
investment instrument
·
livestock
·
National Credit Code
·
negotiable instrument
·
transitional register.
1.7 Meaning
of motor vehicle
(1) For the definition of motor vehicle in section 10 of
the Act, personal property described in subregulation (2) or (3) is a
motor vehicle.
(2) The personal property:
(a) is built to be propelled, wholly on land, by
a motor that forms part of the property; and
(b) either:
(i) is capable of a speed of at least
10 km/h; or
(ii) has 1 or more motors that have a
total power greater than 200 W; and
(c) has any of the following:
(i) a vehicle identification number;
(ii) a chassis number;
(iii) the manufacturer’s number; and
(d) does not run on rails, tram lines or other
fixed path.
(3) The personal property:
(a) is capable, when being towed by, or attached
to, a motor vehicle, of travelling at a speed greater than 10 km/h; and
(b) is:
(i) without motive power and designed
for attachment to a motor vehicle; or
(ii) a piece of machinery or equipment
that is equipped with wheels and designed to be towed behind a motor vehicle;
and
(c) has any of the following:
(i) a vehicle identification number;
(ii) a chassis number;
(iii) the manufacturer’s number.
1.8 Meaning
of security interest
For paragraph 12 (5) (b) of the Act,
the extinguishment of a beneficial interest in an account or chattel paper is
not a security interest.
Part 2 General rules for security interests
2.1 Taking
motor vehicles free of security interests
For subsections 45 (1) and (3) of the
Act, a motor vehicle described in regulation 1.7 is prescribed.
2.2 Taking
motor vehicles from prescribed persons
For paragraph 45 (3) (b) of the
Act, the seller or lessor of a motor vehicle is in a prescribed class if the
seller or lessor:
(a) holds a licence (however described) to deal
or trade in that kind of motor vehicle; and
(b) the licence is issued by a licensing
authority in the State or Territory where the sale or lease of the motor
vehicle happens.
Part 3 Specific
rules for certain security interests
Note This Part heading is reserved for
future use.
Part 4 Enforcement
of security interests
4.1 Relationship
with consumer credit legislation
For subsection 119 (2)
of the Act, a provision in Chapter 4 of the Act mentioned in an item of
the table is taken to have been complied with, in the circumstances for the Act
mentioned in the item, if a provision of the National Credit Code (the NCC)
mentioned in the item has been complied with, in the circumstances for the NCC
mentioned in the item.
|
Item
|
Provision of Act
|
Circumstances for Act
|
Provision of NCC
|
Circumstances for NCC
|
|
1
|
Section 130
|
At least 10 business days
before collateral is to be disposed of, the secured party gives notice to the
grantor and to any secured party with a higher priority
|
Section 102
|
Within 14 days after taking
possession of collateral under a mortgage, the secured party provides a
notice to the debtor, and does not sell the goods within 21 days after
providing the notice
|
|
2
|
Sections 128 and 131
|
After seizing collateral, a
secured party disposes of the collateral by sale, lease or licence, having
first obtained the market value or, if the collateral does not have a market
value, the best price reasonably available
|
Section 104
|
An outstanding obligation has
not been paid within 21 days after receiving a notice under section 102
of the National Credit Code and the secured party sells the goods, in
accordance with section 103, for at least the estimated value, to a nominated
person or to another person for the best price reasonably available
|
|
3
|
Section 132
|
After the sale of mortgaged
goods, a secured party, on request by the grantor, higher secured parties and
the debtor, gives a notice that contains the following information:
(a) the total amount
received from the sale;
(b) the enforcement
expenses, amounts paid to other secured parties;
(c) amounts paid to other
secured parties;
(d) the balance owing to
the grantor or by the debtor to the secured party
|
Subsection 104 (3)
|
After the sale of mortgaged
goods, a secured party gives the mortgagor a notice that contains the
following information:
(a) the gross amount
realised;
(b) the net proceeds of the
sale;
(c) the amount required to
pay out the credit contract;
(d) any further recovery
action that the secured party intends to take against the grantor;
(e) any other information
prescribed by these Regulations
|
|
4
|
Section 140
|
A
secured party distributes funds received in the following order:
|
Section 105
|
A
secured party deducts the following amounts from any money received from a
sale:
|
|
|
|
(a) interests with a higher
priority;
(b) enforcement costs;
(c) higher ranking security
interests;
(d) the secured interests
of the enforcing party;
(e) lower priority security
interests;
(f) the grantor
|
|
(a) the secured amount that
is outstanding;
(b) the amount payable to
discharge any prior mortgage;
(c) the amounts payable to
discharge any subsequent mortgages of which the secured party has notice;
(d) the secured party’s reasonable enforcement expenses
|
Part 5 Personal
Property Securities Register
5.1 Access
to register
For paragraph 147 (4) (b) of the Act,
the Registrar may suspend the operation of the register for up to 4 hours,
after giving notice of the suspension in accordance with subsection 147 (6)
of the Act at least 7 days before the suspension.
5.2 Notification
of suspension of access to register
For paragraph 147 (6) (a) of the
Act, the Registrar must publish the notice on a website maintained by the
Registrar on the Internet.
5.3 What
the register contains
(1) For paragraph 148 (c) of the Act, the
following types of personal property are prescribed:
(a) a motor vehicle that has been impounded, immobilised
or forfeited, or is subject to an impoundment, immobilisation or forfeiture
application, under a law that provides for impoundment, immobilisation or
forfeiture of a motor vehicle because it is being used, or has been used, in
the commission of certain offences;
(b) personal property that is subject to a notice
or an order, or is confiscated or forfeited, under a provision of a proceeds of
crime law;
(c) personal property that is subject to an order
of a court or tribunal (however described) that:
(i) prevents or restricts a person dealing with the property; or
(ii) enforces
another court order (however described); or
(iii) orders
the sale or other disposal of all or part of the property;
(d) personal property that:
(i) is not mentioned in paragraph (a),
(b) or (c); and
(ii) immediately before the
registration commencement time, could have been registered on a transitional
register maintained under a law of the Commonwealth, a State or a Territory.
Note For subparagraph (d) (ii),
transitional register has the meaning given by section 330 of the
Act.
(2) In this regulation:
court order does not include an order made
under a proceeds of crime law.
proceeds of crime law
means:
(a) the Mutual Assistance in Criminal Matters
Act 1987; or
(b) the Proceeds of Crime Act 1987; or
(c) the Proceeds of Crime Act 2002; or
(d) a law of a State or Territory that is a
corresponding law within the meaning given by section 338 of the Proceeds of
Crime Act 2002.
5.4 Prohibited
registration
(1) For paragraph 150 (3) (d) of the Act, the
following registrations are prohibited:
(a) a registration of a financing statement or
a financing change statement for a motor vehicle mentioned in paragraph 5.3 (1) (a),
if the application for registration is made by a person other than:
(i) a police commissioner; or
(ii) a person authorised to register
personal property on a transitional register; or
(iii) a person authorised by a relevant
agency to register data in relation to prescribed property;
(b) a registration of a financing statement or a
financing change statement for personal property mentioned in paragraph 5.3 (1) (b),
if the application for registration is made by a person other than:
(i) a proceeds of crime authorised
person; or
(ii) a person authorised to register
personal property on a transitional register; or
(iii) a person authorised by a relevant
agency to register data in relation to prescribed property;
(c) a registration of a financing statement or
a financing change statement for personal property that is subject to an order
of a court or tribunal (however described) mentioned in paragraph 5.3 (1) (c),
if the application for registration is made by a person other than:
(i) the person who applied for the
order; or
(ii) if the order was made on the
court’s own initiative — the person in whose favour the order is made;
(d) a registration of a financing statement or a
financing change statement for personal property that is mentioned in paragraph 5.3 (1) (d),
if the application for registration is made by a person other than:
(i) a person authorised to register
personal property on a transitional register; or
(ii) a person authorised by a relevant
agency to register data in relation to prescribed property;
(e) a registration of a financing statement or a
financing change statement for property prescribed under
paragraph 148 (c) of the Act, if the registration is in relation to a
security interest in the property.
(2) In this regulation:
court order does not include an order made
under a proceeds of crime law.
police commissioner
means:
(a) the Commissioner of the Australian Federal
Police; or
(b) the head (however described) of the police
force or service of a State or Territory.
proceeds of crime
authorised person means:
(a) an appropriate officer under the Proceeds
of Crime Act 1987; or
(b) an authorised officer under the Proceeds
of Crime Act 2002; or
(c) an authorised person (however described)
under a law of a State or Territory that is a corresponding law within the
meaning of the Proceeds of Crime Act 2002, whose duties correspond to
the duties of an authorised officer under that Act.
proceeds of crime law
means:
(a) the Mutual Assistance in Criminal Matters
Act 1987; or
(b) the Proceeds of Crime Act 1987; or
(c) the Proceeds of Crime Act 2002; or
(d) a law of a State or Territory that is a
corresponding law within the meaning of the Proceeds of Crime Act 2002.
relevant agency
means an agency that administers:
(a) a law of the Commonwealth, a State or a
Territory that establishes a transitional register; or
(b) any other law of the Commonwealth, a State or
a Territory that provides for registration of personal property on a
transitional register.
5.5 Financing
statements
(1) Schedule 1 sets out matters prescribed for items of
the table in subsection 153 (1) of the Act.
(2) Schedule 2 sets out matters prescribed for items of
the table in section 154 of the Act.
5.6 Verification
statements — publication as alternative
(1) For subsection 158 (1) of the Act, the
Registrar may publish a verification statement by publishing the statement on a
website maintained by the Registrar on the Internet.
(2) A statement published under subregulation (1)
must not include the date of birth of a grantor.
5.7 Access
to the register prohibited
(1) For paragraph 170 (3) (d) of the
Act, access to data on the register is prohibited if:
(a) a court has ordered that access to the data is
not permitted; or
(b) the Registrar considers that it is in the
public interest that access to the data should not be permitted.
(2) For paragraph (1) (b), the Registrar must
take into account the following matters:
(a) whether it is necessary to prevent or lessen
a serious and imminent threat to the life or health of the individual whose
personal details are recorded in the financing statement or of another person;
(b) the interests of a person undertaking a
search authorised by section 171 or 172 of the Act;
(c) the interests of the secured party in
ensuring that notice of the security interest is accessible by authorised
searchers;
(d) whether, in all the circumstances, the public
interest in protecting the privacy of the individual grantor’s information
outweighs the public interest in providing access to data.
5.8 Search —
criteria
For subsection 171 (2) of the Act, the
method by which the results of a search are to be worked out must allow for
case‑insensitive searching.
5.9 Administrative process — statements in relation to
amendment demand
For paragraph 180 (3) (b)
of the Act, the following statements must be made on the form:
(a) that the person has given an amendment
demand to the secured party, as required by section 178 of the Act;
(b) that the amendment demand was given at least
5 business days before the day that the statement was given to the Registrar;
(c) that:
(i) no collateral described in the
registration secures any obligation (including a payment) owed by a grantor to
the secured party; or
(ii) the collateral in which the person
has an interest does not secure any obligation (including a payment) owed by a grantor
to the secured party;
(d) that:
(i) the approved form is accompanied
by any written response to the amendment demand received from the secured party;
or
(ii) no written response was received
from the secured party;
(e) that there are no proceedings currently
before a court (including a court of appeal) that relate to the amendment
demanded;
(f) that the person will notify the Registrar if
proceedings that relate to the amendment demanded come before a court
(including a court of appeal);
(g) that the security agreement providing for
the security interest is not an instrument or other document:
(i) by which a person issues or
guarantees, or provides for the issue or guarantee of, an obligation secured by
a security interest; or
(ii) in which another person is
appointed as trustee for the person to whom the obligation secured by the
security interest is owed;
(h) that the information contained in the form
is correct.
5.10 Removal
of data
(1) For paragraph 184 (1) (c) of the Act,
the Registrar may remove data from the register if the removal of the data is
required by a court order.
(2) For subparagraph 184 (1) (e) (ii)
of the Act, removal of data is required urgently if a court order requires the
data to be removed urgently.
Part 8 Miscellaneous
Note This Part heading is reserved for
future use.
Part 9 Transitional
provisions
9.1 Transitional
meaning of watercraft
The definition of watercraft in regulation 1.6
includes an outboard motor that has a manufacturer’s number if:
(a) the outboard motor is subject to a
transitional security interest; and
(b) before the registration commencement time,
the outboard motor was registered on a transitional register, under legislation
that conferred priority on security interests that are registered.
9.2 Temporary
perfection rule — exception
(1) For subsection 322 (3) of the Act, a
transitional security interest is prescribed if, before the registration
commencement time it was:
(a) registrable
on a transitional register, under legislation that conferred priority on
security interests that are registered; and
(b) not registered.
(2) Subregulation (1) does not apply to a transitional
security interest if:
(a) it is a charge that, under section 262 of
the Corporations Act 2001, is required to be registered; and
(b) for subsection 265 (9) of Corporations
Act 2001, it is taken not to have been registered.
9.3 Sunset
of Part 9
This Part ceases to have effect after the end of
the month that is 24 months after the registration commencement time.
Schedule 1 Financing
statement matters for items of table in subsection 153 (1) of Act
(subregulation 5.5 (1))
Part 1 Matters for items 1 and 2
1.1 Definitions for Part 1
In this
Part:
individual:
(a) includes a sole trader who has an ABN for
the enterprise for which the security interest is granted or held; and
(b) does not include an individual who is a
partner in a partnership or a trustee of a trust if the partnership or trust
has an ABN for the enterprise for which the security interest is granted or
held.
1.2 Individual secured party or grantor
(1) For items 1
and 2 of the table in subsection 153 (1) of the Act, this clause applies if
the secured party or grantor is an individual.
(2) The details mentioned in each item of the
table, from the source mentioned for the item, are prescribed for the individual
mentioned in the item.
(3) For
subclause (2), the prescribed details are the details mentioned in the
item of the table that:
(a) applies to the individual; and
(b) has the lowest item number.
(4) For a grantor, in addition to the details
mentioned in each item of the table, the grantor’s date of birth is prescribed.
(5) The source
for a grantor’s date of birth is the source in an item of the table that:
(a) includes details of dates of birth; and
(b) applies to the grantor; and
(c) has the lowest
item number.
|
Item
|
Individual
|
Details
|
Source
|
|
1
|
Individual whose details are
recorded in a transitional register, for a migrated security interest
|
Individual’s surname and given names, as recorded on the
transitional register
|
Transitional register
|
|
2
|
Individual grantor who is
known to the secured party, because of the operation of the AML-CTF Act
|
Individual’s surname and given names, as known to the
secured party, because of the operation of the AML‑CTF Act
|
Current data known by the
secured party, because of the operation of the AML‑CTF Act
|
|
3
|
Individual who holds a current
driver’s licence
|
Individual’s surname and given names, as recorded on the
individual’s driver’s licence
|
Current driver’s licence
issued by a State or Territory licensing authority to the individual
|
|
4
|
Individual who holds a current
proof of identity or current proof of age card
|
Individual’s surname and given names, as recorded on a
proof of identity or proof of age card issued by a State or Territory body
|
Current proof of identity or current
proof of age card issued by a State or Territory body to the individual
|
|
5
|
Individual who holds a current
Australian passport
|
Individual’s surname and given names, as recorded on the
individual’s current Australian passport
|
Current Australian passport
issued to the individual
|
|
6
|
Individual who holds a current
visa, issued by the Australian Government
|
Individual’s surname and given names, as recorded on the
individual’s current Australian visa
|
Current Australian visa issued
for the individual
|
|
7
|
Individual who holds a current
passport other than an Australian passport
|
Individual’s surname and given names, as recorded on the
individual’s current passport issued by the jurisdiction in which the
individual ordinarily resides
|
Current passport issued by the
jurisdiction in which the individual ordinarily resides
|
|
8
|
Any other individual
|
Individual’s surname and given names, as recorded on the
individual’s birth certificate
|
Birth certificate issued for
the individual
|
1.3 Body corporate secured party or grantor
(1) For items 1
and 2 of the table in subsection 153 (1) of the Act, this clause applies if the
secured party or grantor is a body corporate that:
(a) is a trustee and has an ARSN; or
(b) is not a trustee.
(2) The details mentioned in each item of the
table, from the source mentioned for the item, are prescribed for the body
corporate mentioned in the item.
(3) For
subclause (2), the prescribed details are the details mentioned in the
item of the table that:
(a) applies to the body corporate; and
(b) has the lowest
item number.
|
Item
|
Body corporate
|
Details
|
Source
|
|
1
|
Body corporate for which details have been included on the
transitional register, for a migrated security interest
|
Body corporate number or name of body corporate, as recorded
on the transitional register
|
Transitional register
|
|
2
|
Body corporate that is the responsible entity of a
registered scheme, if the scheme has an ARSN
|
Registered scheme’s ARSN
|
National Names Index
|
|
3
|
Body corporate that has an ACN
|
ACN
|
National Names Index
|
|
4
|
Body corporate that has an ARBN
|
ARBN
|
National Names Index
|
|
5
|
Any other body corporate
|
Name of body corporate, as provided for in body
corporate’s constitution or equivalent document
|
Body corporate’s constitution or equivalent document
|
1.4 Secured party or grantor is a partner
(1) For items 1 and 2 of the table in
subsection 153 (1) of the Act, this clause applies if the secured party or
grantor is a partner in a partnership.
(2) The details mentioned in each item of the
table, from the source mentioned for the item, are prescribed for the partner
mentioned in the item.
(3) For
subclause (2), the prescribed details are the details mentioned in the
item of the table that:
(a) applies to the partner; and
(b) has the lowest
item number.
|
Item
|
Partner
|
Details
|
Source
|
|
1
|
Partner of a partnership for which details of the
partnership have been included on the transitional register, for a migrated
security interest
|
ABN, name of partner or name that identifies partnership,
as recorded on the transitional register
|
Transitional register
|
|
2
|
Partner of a partnership that holds or has an interest in
collateral in the course of, or for, an enterprise that has been allocated an
ABN
|
ABN
|
Australian Business Register
|
|
3
|
Partner in any other partnership
|
Details mentioned in the item in the table in clause 1.2
that applies to the partner
|
Source of the details mentioned in the item in the table
in clause 1.2 that applies to the partner
|
1.5 Secured party or grantor is a trustee
(1) For items 1
and 2 of the table in subsection 153 (1) of the Act, this clause applies
if the secured party or grantor is:
(a) a body corporate that is a trustee of a
trust that:
(i) has an ABN; and
(ii) does not have an ARSN; or
(b) any other trustee of a trust.
(2) The details mentioned in each item of the
table, from the source mentioned for the item, are prescribed for the trustee
mentioned in the item.
(3) For
subclause (2), the prescribed details are:
(a) for a trustee that is an individual —
the details mentioned in the item of the table in clause 1.2 that:
(i) applies to the trustee; and
(ii) has the lowest item number; and
(b) in any other case — the details
mentioned in the item of the table that:
(i) applies to the trustee; and
(ii) has the lowest item number.
(4) In this
clause:
trustee details means:
(a) the ABN allocated to the enterprise carried
on by the trust; or
(b) the ACN or ARBN allocated to the trustee; or
(c) the name of the
trust or trustee.
|
Item
|
Trustee
|
Details
|
Source
|
|
1
|
Trustee of a trust for which details of the trust have
been included on the transitional register, for a migrated security interest
|
Trustee details, as recorded on the transitional register
|
Transitional register
|
|
2
|
Trustee of a trust that holds or has an interest in
collateral in the course of, or for, an enterprise that has been allocated an
ABN
|
ABN
|
Australian Business Register
|
|
3
|
Trustee of any other trust
|
Trustee details mentioned in paragraph (3) (a)
|
Source mentioned in paragraph (3) (a)
|
1.6 Body politic secured party or grantor
(1) For items 1 and 2 of the table in
subsection 153 (1) of the Act, this clause applies if the secured party or
grantor is a body politic.
(2) The details mentioned in each item of the
table, from the source mentioned for the item, are prescribed for the body
politic mentioned in the item.
(3) For
subclause (2), the prescribed details are the details mentioned in the
item of the table that:
(a) applies to the body politic; and
(b) has the lowest
item number.
|
Item
|
Body politic
|
Details
|
Source
|
|
1
|
Body politic for which details have been included on the transitional
register, for a migrated security interest
|
Body politic details, as recorded on the transitional
register
|
Transitional register
|
|
2
|
Body politic that holds or has an interest in collateral
in course of, or for, an enterprise that has been allocated an ABN
|
ABN
|
Australian Business Register
|
|
3
|
Body politic or has an interest in collateral, other than
in the course of, or for, an enterprise that has been allocated an ABN
|
Name of body politic, in accordance with constitution of
body politic
|
Constitution of body politic
|
Part 2 Matters for item 4
2.1 Application of Part 2 — personal
property that is intermediated security
For this Part, personal property that is
intermediated security is to be treated as financial property.
2.2 Description by serial number
(1) For
paragraph (b) of item 4 of the table in subsection 153 (1) of the Act:
(a) the following classes of collateral, when
described as consumer property, must be described by serial number:
(i) aircraft;
(ii) intangible property that is:
(A) a design; or
(B) a patent; or
(C) a plant breeder’s right;
or
(D) a trade mark; or
(E) a licence over any
intangible property mentioned in sub-subparagraphs (A) to (D).
(iii) motor vehicles;
(iv) watercraft; and
(b) aircraft that is an aircraft engine,
airframe, helicopter or small aircraft, when described as commercial property,
must be described by serial number; and
(c) the following classes of collateral, when
described as commercial property, may be described by serial number:
(i) motor vehicles;
(ii) watercraft;
(iii) intangible property that is:
(A) a design; or
(B) a patent; or
(C) a plant breeder’s right;
or
(D) a trade mark; or
(E) a licence over any
intangible property mentioned in sub-subparagraphs (A) to (D).
(2) If sub-subparagraph (1) (a) (ii) (E)
or (1) (c) (iv) (E) applies, the licence must be described by
the serial number of the right for which the licence is given.
(3) For
paragraph (b) of item 4 of the table in subsection 153 (1) of the Act,
a description of collateral by serial number must include the following
information:
(a) for an aircraft that is an aircraft engine, airframe or
helicopter:
(i) the manufacturer’s
number; and
(ii) the manufacturer’s
name; and
(iii) the manufacturer’s
generic model designator;
(b) for a small aircraft — the nationality and registration marks assigned to it under the Chicago
Convention;
(c) for a motor vehicle:
(i) the vehicle identification number;
or
(ii) if it has no vehicle
identification number but has a chassis number — the chassis number; or
(iii) if it has no vehicle identification number or chassis number — the
manufacturer’s number;
(d) for
watercraft:
(i) the
official number; or
(ii) if it does not have an official
number — the hull identification number; or
(iii) if it is an outboard motor for
regulation 1.6 — the manufacturer’s number;
(e) for a design:
(i) the design number
issued by IP Australia; or
(ii) if it does not
have a design number — the design application number issued by IP
Australia;
(f) for a patent:
(i) the patent number
issued by IP Australia; or
(ii) if it does
not have a patent number — the patent application number
issued by IP Australia; or
(iii) if it does not
have a patent number or a patent application number — a PCT number;
(g) for a plant breeder’s
right:
(i) the plant
breeder’s right number issued by IP Australia; or
(ii) if it does not
have a plant breeder’s right number — the plant breeder’s right
application number issued by IP Australia;
(h) for a trade mark:
(i) the trade mark
number issued by IP Australia; or
(ii) if it does not
have a trade mark number — the trade mark application number issued by IP
Australia.
(4) In
this clause:
PCT number means:
(a) an international
application number, issued under paragraph 30 (2) (b) of the
Patent Cooperation Treaty done at Washington 19 June 1970, amended on 2 October 1979
and modified on 3 February 1984 and 3 October 2001; or
(b) if there is no international application
number — an international publication number issued by the World
Intellectual Property Organization.
2.3 Classes of collateral
(1) For
paragraph (c) of item 4 of the table in subsection 153 (1) of
the Act, the following classes of collateral are prescribed:
(a) agriculture;
(b) aircraft;
(c) all present and after-acquired property;
(d) all present and after-acquired property,
except;
(e) financial property;
(f) intangible property;
(g) motor vehicles;
(h) other goods;
(i) watercraft.
(2) In paragraph (1) (h):
other goods means personal property that is
goods, other than agriculture, aircraft, motor vehicles and watercraft.
2.4 Description of proceeds
For paragraph (d) of item 4 of
the table in subsection 153 (1) of the Act, a description of proceeds must
describe proceeds:
(a) as all present and after-acquired property;
or
(b) for a particular item of personal property —
in a way that identifies the item, including identifying a class to which the
item belongs; or
(c) for a class of personal property — in a
way that identifies the class, including identifying the class by identifying a
larger class of personal property that wholly includes the class.
Part 3 Matters for item 7
3.1 Purchase money security interest
For item 7 of the table in subsection 153 (1)
of the Act, property is in a prescribed class of collateral if the collateral
can be subject to a purchase money security interest under section 14 of
the Act.
Part 4 Matters for item 8
4.1 Prescribed matters — financing
statement
For item 8
of the table in subsection 153 (1) of the Act, for collateral, the details
mentioned in each item of the table, about the subject mentioned for the item,
for the purpose mentioned in the item.
|
Item
|
Subject
|
Purpose
|
Details
|
|
1
|
Inventory
|
Determining whether collateral may include inventory, for
Part 9.5 of the Act
|
For collateral that is commercial property — whether
or not the collateral may include inventory
|
|
2
|
Control
|
Determining whether collateral may be subject to control,
for Part 9.5 of the Act
|
For collateral that is commercial property — whether
or not the collateral may be subject to control
|
|
3
|
Transitional security interest
|
Indicating whether a security interest is a transitional
security interest
|
If a security interest is a transitional security interest
for section 308 of the Act — a statement that the security interest is a
transitional security interest
|
|
4
|
Migrated security interest
|
Indicating whether a registration is a migrated
registration
|
If collateral is subject to a migrated security interest:
(a) a statement that the security interest is a
migrated security interest; and
(b) the name of the transitional register in which the
data about the transitional security interest was held; and
(c) when the migrated data was registered in the
transitional register
|
|
5
|
Data from Australian Business Register or National Names
Index
|
Recording details from Australian Business Register or
National Names Index
|
If an ABN, ACN, ARSN or ARBN is entered in a financing
statement and a verification of these numbers is undertaken with the
Australian Business Register or the National Names Index — the entity
name or other data attached to those identifier numbers obtained from the
Australian Business Register or the National Names Index
|
Note For the
application of item 4, section 333 of the Act.
Schedule 2 Financing
statement matters for table in section 154 of Act
(subregulation 5.5 (2))
Part 1 Preliminary
1.1 Definitions for Schedule 2
In this Schedule:
individual:
(a) includes a sole trader who has an ABN for
the enterprise that holds or has an interest in the prescribed property; and
(b) does not include an individual who is a
partner in a partnership or a trustee of a trust if the partnership or trust
has an ABN for the enterprise that holds or has an interest in the prescribed
property.
Part 2 Matters for item 1
2.1 Individuals
(1) For item 1 of the table in section 154
of the Act, this clause applies if an individual holds or has an interest in prescribed
property.
(2) The details mentioned in each item of the
table, from the source mentioned for the item, are prescribed for the individual
mentioned in the item.
(3) For
subclause (2), the prescribed details are the details mentioned in the
item of the table that:
(a) applies to the individual; and
(b) has the lowest item number.
(4) For an individual who is the owner of prescribed
property, in addition to the details mentioned in each item of the table, the
individual’s date of birth is prescribed.
(5) The source
for the individual’s date of birth is the source in an item of the table that:
(a) includes details of dates of birth; and
(b) applies to the individual; and
(c) has the lowest
item number.
|
Item
|
Individual
|
Details
|
Source
|
|
1
|
Individual whose details are recorded in a transitional
register, for migrated data
|
Individual’s surname and given names, as recorded on the transitional
register
|
Transitional register
|
|
2
|
Individual whose property is subject to a court order
|
Individual’s surname and given names, as recorded on the
court order
|
Court order
|
|
3
|
Individual who holds a current driver’s licence
|
Individual’s surname and given names, as recorded on the
individual’s current driver’s licence
|
Current driver’s licence issued by a State or Territory
licensing authority to the individual
|
|
4
|
Individual who holds a current proof of identity or
current proof of age card
|
Individual’s surname and given names, as recorded on a
proof of identity or proof or age card issued by a State or Territory body
|
Current proof of identity or current proof or age card
issued by a State or Territory body to the individual
|
|
5
|
Individual who holds a current Australian passport
|
Individual’s surname and given names, as recorded on the
individual’s current Australian passport
|
Current Australian passport issued to the individual
|
|
6
|
Individual who holds a current visa issued by the
Australian Government
|
Individual’s surname and given names, as recorded on the
individual’s current Australian visa
|
Current Australian visa issued for the individual
|
|
7
|
Individual who holds a current passport other than an
Australian passport
|
Individual’s surname and given names, as recorded on the
individual’s current passport issued by the jurisdiction in which the
individual ordinarily resides
|
Current passport issued by the jurisdiction in which the
individual ordinarily resides
|
|
8
|
Any other individual
|
Individual’s surname and given names, as recorded on the
individual’s birth certificate
|
Birth certificate issued for the individual
|
2.2 Bodies
corporate
(1) For item 1
of the table in section 154 of the Act, this clause applies if the secured
party or grantor is a body corporate that:
(a) is a trustee and has an ARSN; or
(b) is not a trustee.
(2) The details mentioned in each item of the
table, from the source mentioned for the item, are prescribed for the body
corporate mentioned in the item.
(3) For
subclause (2), the prescribed details are the details mentioned in the
item of the table that:
(a) applies to the body corporate; and
(b) has the lowest
item number.
|
Item
|
Body corporate
|
Details
|
Source
|
|
1
|
Body corporate for which details have been included on the
transitional register, for migrated data
|
Body corporate number or name of body corporate, as recorded
on the transitional register
|
Transitional register
|
|
2
|
Body corporate that is the responsible entity of a
registered scheme, if the scheme has an ARSN
|
Registered scheme’s ARSN
|
National Names Index
|
|
3
|
Body corporate that has an ACN
|
ACN
|
National Names Index
|
|
4
|
Body corporate that has an ARBN
|
ARBN
|
National Names Index
|
|
5
|
Any other body corporate
|
Name of the body, as provided for in body’s constitution
or equivalent document
|
Body’s constitution or equivalent document
|
2.3 Partners
(1) For item 1 of the table in section 154 of the
Act, this clause applies if a partner in a partnership holds or has an interest
in prescribed property for the partnership.
(2) The details mentioned in each item of the
table, from the source mentioned for the item, are prescribed for the partner mentioned
in the item.
(3) For
subclause (2), the prescribed details are the details mentioned in the
item of the table that:
(a) applies to the partner; and
(b) has the lowest
item number.
|
Item
|
Partner
|
Details
|
Source
|
|
1
|
Partner of a partnership for which details of the
partnership have been included on the transitional register, for migrated data
|
ABN, name of partner or name that identifies partnership,
as recorded on the transitional register
|
Transitional register
|
|
2
|
Partner of a partnership that holds or has an interest in
the prescribed property in the course of, or for, an enterprise that has been
allocated an ABN
|
ABN
|
Australian Business Register
|
|
3
|
Partner in any other partnership
|
Details mentioned in the item in the table in clause 2.1
that applies to the partner
|
Source of the details mentioned in the item in the table
in clause 2.1 that applies to the partner
|
2.4 Trustees
(1) For item 1 of the table in section 154 of the
Act, this clause applies if the secured party or grantor is:
(a) a body corporate that is a trustee of a
trust that:
(i) has an ABN; and
(ii) does not have an ARSN; or
(b) any other trustee of a trust.
(2) The details mentioned in each item of the
table, from the source mentioned for the item, are prescribed for the trustee
mentioned in the item.
(3) For
subclause (2), the prescribed details are:
(a) for a trustee that is an individual —
the details mentioned in the item of the table in clause 2.2 that:
(i) applies to the trustee; and
(ii) has the lowest item number; and
(b) in any other case — the details
mentioned in the item of the table that:
(i) applies to the trustee; and
(ii) has the lowest item number.
(4) In this
clause:
trustee details means:
(a) the ABN allocated to the enterprise carried
on by the trust; or
(b) the ACN or ARBN allocated to the trustee; or
(c) the name of the
trust or trustee.
|
Item
|
Trustee
|
Details
|
Source
|
|
1
|
Trustee of a trust for which details of the trust have
been included on the transitional register, for migrated data
|
Trustee details, as recorded on the transitional register
|
Transitional register
|
|
2
|
Trustee of a trust that holds or has an interest in the
prescribed property in the course of, or for, an enterprise that has been
allocated an ABN
|
ABN
|
Australian Business Register
|
|
3
|
Trustee of any other trust
|
Trustee details mentioned in paragraph (3) (a)
|
Source mentioned in paragraph (3) (a)
|
2.5 Bodies politic
(1) For item 1 of the table in section 154
of the Act, this clause applies if a body politic holds or has an interest in prescribed
property.
(2) The details mentioned in each item of the
table, from the source mentioned for the item, are prescribed for the body
politic mentioned in the item.
(3) For
subclause (2), the prescribed details are the details mentioned in the
item of the table that:
(a) applies to the body politic; and
(b) has the lowest
item number.
|
Item
|
Body politic
|
Details
|
Source
|
|
1
|
Body politic for which details
have been included on the transitional register, for migrated data
|
Body politic details, as recorded on the transitional
register
|
Transitional register
|
|
2
|
Body politic that holds prescribed
property in course of, or for, an enterprise for which an ABN has been given
|
ABN
|
Australian Business Register
|
|
3
|
Body politic that holds prescribed
property other than in course of, or for, an enterprise for which an ABN has
been given
|
Name of body politic, as provided for in constitution of
body politic
|
Constitution of body politic
|
Note
1. All legislative instruments
and compilations are registered on the Federal Register of Legislative
Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.