Personal Property Securities Act (PPSA)


Jackson McDonald has significant expertise in advising various clients in relation to the PPSA introduced in 2012. Our core finance team includes lawyers who have worked in New Zealand where similar legislation has been operating for a decade.

We have a ‘can do’ approach for clients seeking practical advice. Our experience is recognised by industry leaders who have invited members of our team to present at seminars on the PPSA. 

The PPSA affects a number of industry sectors and we are well equipped to meet the demands of any sector due to the breadth and depth of our expertise. We draw on the experience of a full service firm and our PPSA committee meets regularly to identify and analyse emerging trends and issues.

Our collaborative approach ensures we understand new laws and offer tailored advice to enable clients to achieve their objectives as seamlessly as possible.

Our core capabilities in PPSA include:

  • General PPSA advice and documentation

  • Interpreting PPSA search results

  • PPSA issues for corporate due diligence

  • Advice to banks acting as Authorised Deposit taking Institution (ADI) account holders

  • Advice to suppliers in relation to the new retention of title regime

  • Removing security interests from the register

  • Intercreditor issues

  • Advice in relation to supply contracts

  • Rules relating to serial numbered goods

  • Advice to borrowers and banks involved in the resources sector including the impact on:

    • joint venture arrangements

    • confidentiality issues

    • structuring future farm-in arrangements

    • lease and bailment arrangements

    • offtake agreements.

     

The PPSA experience of our senior lawyers includes the following matters.  For further details of our capabilities and experience, please contact us.

  • Acting for a manufacturing company in relation to requests from suppliers to amend supply contracts to take account of the impact of the PPSA.

  • Advising companies about the implications of the PPSA in the resources sector generally and the potential for certain provisions to create security interests under the PPSA.

  • Advising on the priority issues arising on the default and potential insolvency of construction companies.

  • Conducting due diligence for a major bank in relation to the various security interests registered against a manufacturing business and the priorities that apply.

  • Advising a finance company in relation to the impact of the PPSA generally and preparing precedent financing statements and related documentation.

  • Advising a manufacturing company on changes requested to master rental and master hire agreements.

  • Advising on rights and remedies for an entity to have security interests removed under the 3 tier process set out in the legislation.

Victoria Butler

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Hilary Hunt

Partner

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Thomas Jacobs

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Luke Paterson

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  • 27 January 2016

    Applying partnership assets to meet the costs of liquidators appointed to the former partners

    It is well-established that a liquidator is entitled to his or her expenses properly incurred in preserving, realising or getting in property of the company to which they are appointed.

    Authors: Victoria Butler, Eva Lin

    LINK 43 Bytes

  • 7 May 2015

    PPSA Frontline – Spotlight on PPSA section 44 - serial number registration

    Much is made about registering against the serial numbers of serial numbered property under the Personal Property Securities Act 2009 (Cth).  However, the actual effect of failing to register by serial number or registering against an incorrect serial number is often overlooked.  Serial number is defined to mean a serial number by which the regulations require, or permit, the collateral to be described in a registration. 



    Author: Hilary Hunt

    LINK 50 Bytes

  • 30 March 2015

    Spotlight on PPSA: liability concerns for receivers and liquidators

    The recent PPSA case of Citadel Financial Corporation Pty Limited v Elite Highrise Services Pty Limited (No 3) [2014] NSWSC 1926 (Citadel) brings to light a liability issue arising for receivers under the PPSA.  In that case, a secured creditor, CML Payroll Pty Limited, appointed receivers and managers (Receivers) over a company.  Two other creditors with prior registrations on the PPSR claimed priority over scaffolding in the possession of the company.   Nevertheless, the Receivers entered into an agreement with a purchaser to sell a substantial portion of that scaffolding.

    Author: Hilary Hunt

    LINK 46 Bytes

  • 23 February 2015

    Spotlight on PPSA ss 164 and 165 – Defects in registrations

    Highlighting the significance of defects in registrations on the PPSR is the recent case of In the matter of Transurban CCT Pty Limited and Transurban CCT Nominees Pty Limited in its own capacity and as Trustee of the Transurban CCT Trust [2014] NSWSC 1909 (Transurban). 

    Author: Hilary Hunt

    Download PDF 46 Bytes

  • 1 February 2015

    Spotlight on PPSA section 62

    How well do you know the PMSI priority rule?
     
    Under the Personal Property Securities Act 2009 (Cth) (PPSA), a purchase money security interest (PMSI) has the benefit of a super-priority if the PMSI is perfected in accordance with the PPSA. This means the PMSI will have priority over the collateral to which it relates even if a prior perfected security interest attaches to the same collateral. 

    Author: Hilary Hunt

    LINK 46 Bytes

  • 7 December 2014

    PPSA Frontline - Spotlight on PPSA section 13(2)(c)

    Did you know that most leases of goods as part of a lease of residential premises are excluded from the PPSA even if the lease is for a term of more than one year?

    Author: Hilary Hunt

    LINK 46 Bytes

  • 12 November 2014

    PPSA Frontline - Spotlight on trusts and registering on the PPSR

    A vital element to registering financing statements correctly on the PPSR is inputting the correct grantor details.  Searchers of the register will search for financing statements using those details. If the searcher searches on the correct grantor details, but a registrant registered the incorrect details, the search will not disclose the registration. Section 165(b) of the PPSA states that such a defect causes the registration to be ineffective. 

    Author: Hilary Hunt

    LINK 46 Bytes

  • 20 October 2014

    PPSA Frontline - Spotlight on PPSA section 64 of the Personal Property Securities Act 2009

    Did you know that the super-priority of a purchase money security interest (PMSI) in accounts can be easily lost?


    A supplier of inventory to a retailer on title retention terms has a PMSI in the inventory giving it a super-priority over other security interests. Under the PPSA, this PMSI automatically extends to proceeds such as the account arising from the sale of inventory. This gives the supplier the same super-priority over that account. This is a favourable security position for the supplier.


    But! Under s 64, if another secured party subsequently takes a direct security interest in that account, the supplier's super-priority is jeopardised merely by the subsequent secured party giving 15 business days notice of its interest. A supply contract should be drafted to contemplate this situation. The supplier would also need to take steps to protect its security position from the operation of s 64 during the 15 business day window. If it does not, its super priority will be trumped by the subsequent security interest.

    Author: Hilary Hunt

    LINK 44 Bytes

  • 30 September 2014

    PPSA Frontline - Spotlight on section 21 of the Personal Property Securities Act 2009

    Swooping in to confirm our discussion in our last PPSA Frontline, is a new PPSA case from the Federal Court of Australia. In Pozzebon (Trustee) v Australian Gaming and Entertainment Ltd, in the matter of Australian Gaming and Entertainment Ltd (in liq) [2014] FCA 1034 (Pozzebon), the Court addressed section 588FL of the Corporations Act 2001 (Cth) and whether a security interest was “perfected by registration, and by no other means”.

    Author: Hilary Hunt

    LINK 46 Bytes

  • 22 September 2014

    Spotlight on PPSA section 21

    Welcome to PPSA Frontline – The spotlight on the Personal Property Securities Act 2009 (Cth). Security interests should be perfected to safeguard the secured party’s rights in the personal property subject to the security interest. The PPSA provides for three different perfection steps: registration, possession and control. The step that will apply to most security interests is registration. One common misconception is that the act of registration itself has the legal effect of perfecting a security interest. In actual fact, registering is merely a necessary component of “perfecting” a security interest. More is required.

    Author: Hilary Hunt

    Download PDF 48 Bytes

  • 28 August 2014

    Spotlight on section 161

    Why are so many PPSR registrations occurring after the security agreement is signed?

     
    Many secured parties are still registering at the closing of a transaction despite the fact that the PPSA is designed to accommodate early registration.  Section 161 confirms that a registration can be made in the PPSR before or after the security agreement is made or attaches to the property.  A secured party is able to register even before the terms of the security agreement have been concluded as long as the registrant is mindful of section 151 and believes on reasonable grounds that the security interest eventually will be created.

    Author: Hilary Hunt

    LINK 10 Bytes

  • 30 April 2014

    Beyond the transitional period

    This article first appeared in the Law Society of NSW's The Law Society Journal on 1 May 2014.  Now that the Personal Property Securities Act is fully in force, practitioners need to consider several issues that may not have come to light during the transitional period.

    Author: Hilary Hunt

    Download PDF 6 Bytes

  • 16 April 2014

    Is a finance lease ever a PPS lease? … the first question arising from the Maiden Civil Case

    The first significant Australian judgment relating to determining priorities between competing creditors under the Personal Property Securities Act 2009 (Cth) (PPSA) sends a clear message that what matters under the PPSA is having a “perfected” security interest in personal property not “title” to the personal property.

    Author: Hilary Hunt

    LINK 62 Bytes

  • 25 March 2014

    The Government’s red tape reduction… Do the proposed changes to the PPSA go far enough?

    The Personal Property Securities Amendment (Deregulatory Measures) Bill 2014 (Cth) (Bill) was introduced to the Parliament of the Commonwealth of Australia on 19 March 2014 as part of Prime Minister Tony Abbott’s “red tape bonfire”. The substantive amendments to the Personal Property Securities Act 2009 (Cth) (PPSA) appear minor - merely involving the repeal of two sub-sections. But, as a fitting reflection of the complexity of the PPSA, these repeals have warranted an extensive 25 page Explanatory Memorandum proving that any tinkering with the PPSA is fraught with difficulty despite bringing a welcome amendment.

    To read more about the Bill please click here.

    Author: Hilary Hunt

    Download PDF 50 Bytes

  • 23 January 2014

    PPSA Deadline 31 January 2014

    Construction contract step in rights - time is running out to take advantage of the transitional provisions under the PPSA (Do you have this or any other security interest that needs to be registered?)

    Authors: Matthew Lang, Isla McRobbie

    Download PDF 495 Bytes

  • 17 September 2013

    The Maiden Civil Case and Other Related Issues

    The first significant Australian judgment relating to determining prorities between competing creditors under the Personal Property Securities Act 2009 (Cth) (PPSA) highlights some important issues to consider regarding the PPSA, especially with the transitional period nearing its end.

    Author: Hilary Hunt

    Download PDF 479 Bytes

  • 25 May 2012

    Jackson McDonald 5th time Perth Law Firm of the Year

    Jackson McDonald consolidated its position as the leading West Australian law firm when named Perth Law Firm of the Year at the 2012 ALB Australasian Law Awards in Sydney on 24 May 2012.

    It is the fifth year out of six that Jackson McDonald has won this prestigious award.

    Authors:

    Download PDF 304 Bytes

  • 25 January 2012

    The Personal Property Securities Act 2009 (Cth)

    The Personal Property Securities Act 2009 (Cth) (“Act”) creates a single national law governing security interests and similar transactions with respect to many different
    kinds of tangible and intangible property, other than real property. The scheme under the Act commenced on 30 January 2012.

    Author: Will Moncrieff

    Download PDF 467 Bytes

  • 10 January 2011

    Doing Business in Asia Pacific

    Jackson McDonald is a proud member of Globalaw and has assisted in the development of this guide.

    Authors:

    Download PDF 4 Bytes