Note: An electronic version of this Act is available in ComLaw (http://www.comlaw.gov.au/)
1 Short title...........................................................................................2 2 Commencement.................................................................................2 3 Schedule(s)........................................................................................4
Schedule 1—Corporations Act 2001 5 Part 1—New concepts 5 Part 2—Repeal of Chapter 2K (registration of charges) 11 Part 3—Charges and chargees 13 Division 1—Specific amendments 13 Division 2—Bulk amendments 19 Part 4—Floating charges 22 Part 5—Security 27 Part 6—Mortgages and mortgagees 29 Part 7—Liens and pledges 30 Part 8—PPSA retention of title property 32 Part 9—Special requirements for security interests 43 Part 10—Transitional provisions 53 Schedule 2—Personal Property Securities Act 2009 58 Part 1—Specific amendments 58 Part 2—Bulk amendments 99 Schedule 3—Amendment of other Acts 101 Designs Act 2003 101 Fisheries Management Act 1991 101 Mutual Assistance in Criminal Matters Act 1987 102 Navigation Act 1912 102 Offshore Petroleum and Greenhouse Gas Storage Act 2006 103 Patents Act 1990 104 Personal Property Securities (Consequential Amendments) Act 2009 105 Proceeds of Crime Act 2002 105
Torres Strait Fisheries Act 1984 108 Trade Marks Act 1995 109
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
[Assented to 6 July 2010]
This Act may be cited as the Personal Property Securities (Corporations and Other Amendments) Act 2010.
(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.
Commencement information
Provision(s) Commencement Date/Details
item 1 item 1 of Schedule 2 to the Personal Property Securities (Consequential Amendments) Act 2009.
9. Schedule 3, Immediately after the commencement of
Commencement information
Column 1 Column 2 Column 3
item 2 item 1 of Schedule 1 to the Personal Property Securities (Consequential Amendments) Act 2009.
item 5 item 6 of Schedule 3 to the Personal Property Securities (Consequential Amendments) Act 2009.
item 16 item 14 of Schedule 2 to the Personal Property Securities (Consequential Amendments) Act 2009.
14. Schedule 3, Immediately after the commencement of
item 17 item 17 of Schedule 1 to the Personal Property Securities (Consequential Amendments) Act 2009.
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.
17. Schedule 3, The registration commencement time within
items 24 to 28 the meaning of section 306 of the Personal Property Securities Act 2009.
Column 1 Column 2 Column 3
Provision(s) | Commencement | Date/Details |
---|---|---|
18. Schedule 3, item 29 | Immediately after the commencement of item 19 of Schedule 1 to the Personal | |
Property Securities (Consequential Amendments) Act 2009. | ||
19. Schedule 3, item 30 | Immediately after the commencement of item 18 of Schedule 2 to the Personal | |
Property Securities (Consequential |
Amendments) Act 2009.
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.
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.
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:
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:
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:
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:
Note 2: For the meaning of transitional security interest, see section 308 of the Personal Property Securities Act 2009.
In this Act: security interest means:
In this Act:
secured party, in relation to a security interest, means:
Note: Security interests are either PPSA security interests, or charges, liens or pledges (see section 51A).
In this Act:
circulating security interest means a security interest that is:
Note: Security interests are either PPSA security interests, or charges, liens or pledges (see section 51A).
In this Act:
possessory security interest, in relation to property, means a security interest that is:
Note: Security interests are either PPSA security interests, or charges, liens or pledges (see section 51A).
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.
Definition
(1) Property is PPSA retention of title property (short for Personal Property Securities Act retention of title property) of a corporation if:
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:
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.
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:
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.
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:
Except as expressly provided, nothing in this Division limits the
generality of anything else in it.
36 Section 441A
Repeal the section, substitute:
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.
Scope
(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
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
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:
Scope
(1) This section applies if:
Distribution of proceeds of sale
(2) The secured party is entitled to retain proceeds of the sale as follows:
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:
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:
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”.
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:
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
79 Paragraphs 450A(3)(a) and (b)
80 Subsection 534(3)
81 Subsection 588E(1) (paragraph (c) of the definition of
82 Paragraph 593(5)(b)
83 Subsection 593(7)
84 Paragraph 596(1)(b)
85 Paragraph 981E(2)(b)
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:
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:
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:
General rule
(1) Subject to section 556, a right of indemnity under section 443D has priority over:
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:
Debts secured by circulating security interests—receiver appointed during administration etc.
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:
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”.
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”.
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”.
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:
138 Subsection 443F(2)
Omit “a charge”, substitute “another security interest”.
139 Subsection 443F(2)
Omit “the charge”, substitute “the other security interest”.
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:
(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:
Section 283BF does not apply in respect of:
147 Section 283CD
Repeal the section, substitute:
Section 283CC does not apply in respect of:
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:
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:
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.
Item | If the third party is … | then … |
---|---|---|
1 | a secured party in relation to | the third party cannot enforce the |
property of the company, and is not | security interest. | |
otherwise covered by this table | ||
2 | a secured party in relation to a | the third party cannot sell the |
possessory security interest in the | property, or otherwise enforce the | |
property of the company | security interest. | |
3 | a lessor of property used or occupied | the following restrictions apply: |
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 | (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; |
Item | If the third party is … | then … |
---|---|---|
(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 | the following restrictions apply: |
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 | (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:
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:
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:
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:
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:
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:
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:
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:
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:
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:
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:
Note: See sections 9 (definition of property) and 51F (PPSA retention of title property).
179 Before section 588D
Insert:
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:
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:
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:
Note: See sections 9 (definition of property) and 51F (PPSA retention of title property).
182 Before Division 1 of Part 5B.2
Insert:
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:
Note: See sections 9 (definition of property) and 51F (PPSA retention of title property).
183 After Division 2 of Part 5.7B
Insert:
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:
Scope
(1) This section applies if:
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:
(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:
(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:
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:
(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.
critical time, in relation to a company, means:
(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).
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:
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:
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:
Transfer of collateral subject to PPSA security interests
Note: For what is actual or constructive knowledge, see sections 297 and 298 of the Personal Property Securities Act 2009.
Scope
(1) This section applies if either of the following PPSA security interests is vested in a company under section 588FL:
Entitlement to damages and compensation
(2) The consignor, lessor or bailor:
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.
General rule
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:
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
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.
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:
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:
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.
(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.
The amendments made by Part 1 (new concepts) of Schedule 1 to the amending Act apply:
(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.
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:
Requirements that stop applying
(2) Whichever of the following requirements would otherwise apply stops applying at the commencement time:
The requirements in section 271 (company documentation and registration of charges) stop applying in relation to registrable charges at the commencement time.
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.
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:
Note: Sections 440BA and 440BB commenced on 31 December 2007.
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.
Section 588FP does not apply in relation to a registrable charge.
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.
1 Section 3
Omit:
Substitute:
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:
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:
(iii) as a holder of a retirement savings account (within the meaning of the Retirement Savings Accounts Act 1997); or
(jc) a charge created by either of the following provisions:
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:
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:
(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.
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:
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):
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 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:
(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:
Main rule
Control by agreement
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:
42 Paragraph 32(1)(a)
Repeal the paragraph, substitute:
(a) continues in the collateral, unless:
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:
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:
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:
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:
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:
This Part includes rules on 3 topics:
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:
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 collateran( �
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):
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:
Note: Livestock includes fish (see section 10).
water source means:
138B Seizure and disposal or retention of crops
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:
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.
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:
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:
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:
Substitute:
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:
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:
(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:
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:
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
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:
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:
(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
Priorities involving transitional security interests | |||||||
---|---|---|---|---|---|---|---|
Item | The following security | has priority over … | because of … | ||||
interest: | |||||||
1 | a perfected transitional | an unperfected security | subsection 55(3). | ||||
security interest | interest (whether | ||||||
transitional or not) | |||||||
2 | a perfected transitional | a perfected security | subsection 55(5) and | ||||
security interest | interest that is not a | section 322. | |||||
transitional security | |||||||
interest | |||||||
3 | an unperfected | an unperfected security | subsection 55(2) and | ||||
transitional security | interest that is not a | section 321. | |||||
interest | transitional security | ||||||
interest | |||||||
4 | a perfected security | an unperfected | subsection 55(3). | ||||
interest (whether | transitional security | ||||||
transitional or not) | interest |
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:
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:
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:
324 Priority rule—certain security interests upon insolvency or bankruptcy
122 Paragraph 333(3)(a)
Repeal the paragraph, substitute:
(a) either:
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
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.
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:
Note: Sections 164 and 165 provide that serious or misleading defects in a registration, and certain particular types of defect, make a registration ineffective.
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:
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:
(1B) For the purposes of subsection 340(5) and this section:
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:
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”.
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:
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.
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:
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.
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:
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:
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.
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).
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:
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.
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.
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:
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.
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:
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.
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:
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.
[Minister’s second reading speech made in— House of Representatives on 10 March 2010 Senate on 15 June 2010]
(50/10)