The New Personal Property Securities Register How Does it Effect Your Business?

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1 April 2012 The New Personal Property Securities Register How Does it Effect Your Business? Stephens Lawyers & Consultants Newsletter: April 2012 The Personal Property Securities Act 2009 (Cth) (PPS) came in affect on 30 January 2012 and introduced an Australia-wide legislative scheme for registering and enforcing all personal property securities. It replaces the State based registers with a single national electronic PPS register. 1 All businesses involved in the supply or hiring of goods need to be aware of PPS and its relevance and application to their business. This update provides an overview of this complex law. Businesses should seek legal advice and have their terms and conditions of sale, Franchise Agreements, Distribution agreements, Intellectual Property Licences, Re-seller Agreements, Lease Agreements, Hire Purchase Rental Agreement and other contracts reviewed. Businesses also need to implement processes for registering and updating security interests on the register and searching and monitoring the register. How is the PPS relevant to my business? The PPS will be relevant to companies and businesses that: Supply goods on credit under general terms and conditions that include a retention of title (ROT) or Romalpa clause; 2 Supply goods on consignment; 3 Supply Bailment arrangement (eg warehousing or storing of goods); Provide finance or collateral in the form of a circulating asset (or floating charge) over inventory, accounts or other assets of the company; 4 Supply Plant and equipment under lease, hire and rental agreements. Supply Intellectual property licenses. What is a security interest? A security interest is an interest in personal property that in substance secures payment of a debt or other obligation regardless of the form of the transaction. 5 Personal property is all forms of property other than real estate. 6 Property interests which are not included under the PPS are: Land; Water Rights; Government licences such as taxi, gambling, racing, fishing and mining exploration licences.

2 A Purchase Money Security Interests (PMSI) is a particular type of security interest. 7 A PSMI will arise where under a Franchise Agreement where: The secured party has advanced property and all or part of the purchase price is outstanding, for example, goods supplied on credit terms which include a retention of title clause; Funds are provided by a financier for the purchase of the property; Where property is subject to consignment or a PPS Lease arises. 8 PMSI Leases arises where a lease or bailment of personal property exceeds 12 months, in the case the motor vehicles, boats and aircraft the term in three months. Who is responsible for registration the security interest? The responsibility to register a security interest on the PPS register is on the secured party. The secured party is the person or business that holds the security interest. For example this will commonly be the: Suppliers of goods which are subject to a terms contract such as ROT clause; Owners of intangible property which is being used to raise finance; Financiers providing finance to acquire property in which the security interest is created. 9 Once the verification statement from the PPS register has been issued confirming that registration has occurred, the secured party must give notice of the verification statement to the other party to the agreement. 10 Is consent required to be included on the PPS register? The suppliers of goods and intangible property on payment terms or the financer of the goods or intangible property does not have to obtain written consent to register the security interest on the PPS register from the purchaser or acquirer. The PPS expressly states that Grantors (the borrower, mortgagor or person or business that enjoys the benefit of the contract) are taken to have consented to being included on the register by their acceptance of the terms of the agreement. Although no written consent is required, it is recommended that the contract which creates the security interest refers to registration of the security interest on the PPS register. How are security interests registered? In order to register an interest the security interest holder must complete and file a financing statement on the PPS register. 11 Accessed on the website A finance statement uploaded on PPS register requires the secured party to include details relating to the parties to the transaction, the collateral and the security interest. 12 If the property in question is a motor vehicle, watercraft or aircraft and it is being acquired for consumer purposes rather than commercial, then it is sufficient to enter the serial number in place of the grantors personal details. 13

3 How are ongoing supply agreements registered? Where businesses deal with ongoing supply arrangement with customers, the secured party is only required to make a single registration against the customer. Ongoing supply arrangements occur when a supplier makes repeated supplies of property to the same customer and made on the same terms. 14 Is registration of a security interest a mandatory requirement? There is no legal obligation to have a security interest registered on the PPS register, however, in the case of insolvency, registered security interest will have priority in payment according to rules specified in the PPS Act. When can security interests be registered? A security interest may be registered after the interest has attached itself to the personal property by way of possession and is enforceable against third parties through a written agreement. 15 A security interest is considered to have attached to personal property after the grantor does as an act which them rights in the property (eg executes a document) or after value is given by secured party for the interest (eg a loan the is given). 16 A security agreement must generally in writing and signed by the grantor in order for it to be enforceable against a third party. 17 What will the effect of registration be? One of the primary goals of the PPS was to create a set of clear rules for appointees in formal administrations, liquidations and receiverships to use when distributing repayment of monies owed over personal property. Because it is common for two businesses to hold a secured interests in the same property, the rules of priority under the PPS Act become very important. Businesses may have an interest in the same property where, for example, a Business has a loan or overdraft facility which is secured by a floating charge over the assets and inventory of the business by a bank. The Business also has a supply agreement for inventory with a manufacturer which contains a Retention of Title provision. In this example, both the bank and the supplier of inventory will have a security interest in that property. Registration of a security interest on the PPS register will enhance the secured parties priority interests under the default priority rules in the PPS Act. The default priority rules state that: Registered security interests will have priority over unregistered interests; Priority between two or more registered security interests will be determined by order of registration; Priority between two or more unregistered security interests will be determined by order of attachment. 18

4 What will be the effect of registering a Purchase Money Security Interest? A secured party with a PMSI may benefit from a super-priority which will defeat other security interests that were created and registered before the PMSI. 19 PSMI s are a powerful tool established to protect the security interest holder who provides the payment of terms or the finance assistance in order to enable the purchase or acquisition of personal property. For example, a company granted a floating charge to a bank which is registered on the PPS register. The Company subsequently purchases inventory on a Retention of Title basis from its supplier which is registered on the PPS register as a PSMI. In the event that the company becomes insolvent the suppliers registered PSMI will have a super priority and defeat the security interest of the bank which was registered earlier. 20 What are the time limits in which to register a security interest? The PPS Act imposes strict time limits for registration of security interests in particular the PMSI which gives super priority. Because of these strict time restraints, businesses must have processes in place to register their security interest within the time limits otherwise they will not benefit from the protection of registration which gives their security priority. Will businesses that are yet to adapt their processes be unprotected? The PPS Act contains a Transitional Security Interest Regime that establishes a bridging period in which businesses can transition to the new system without being adversely affected. The Transitional Security Interest Regime will be effective until the 30 January During this period security transactions that were created before the PPS came into effect will be deemed to be capable of registration on the register regardless of whether the security agreement meets the criteria established by the Act. The Transitional Security Interests, which are not registered on the PPS register will have the same priority rights as other unregistered security interests. These Transitional Security Interests will expire after 30 January 2014 or after the secured party has registered the interest on the register. 22 All security interests on relevant Commonwealth, State and territory registers existing before 30 January 2012 have been migrated to the PPS register. Both Franchisors and Franchisees should search the PPS register to check whether existing registrations have been migrated to the new PPS register. What benefits will registration provide my Franchise? During an uncertain economic climate where business failure is high, suppliers of goods and other personal property on credit are at risk of not being paid, if the customer becomes insolvent. PPS registration provides your businesses security. Our lawyer s represent leading companies in both litigious and commercial matters. For further contact: Katarina Klaric Principal

5 Stephens Lawyers & Consultants Level 34, 360 Collins Street Melbourne VIC 3000 Phone: (03) Fax: (03) Website: All Correspondence to: PO Box Collins Street West Melbounre VIC 8007 To register for newsletter updates and to send comments and feedback please Disclaimer: This newsletter is not intended to be a substitute for obtaining legal advice. Stephens Lawyers & Consultant. April Authored by Katarina Klaric and Matthew Churkovich. 1 LRLC, PPS Bulletin No.1 (June 15, 2011). 2 This is a supply agreement whereby the supplier retains ownership or title of the goods until payment is received by the supplier in full from the purchaser. 3 Goods that are supplied but paid for when used or sold to a third party; 4 Section 19 (2) PPS Act 2009 (Cth), here after PPS ; The Personal Securities Act 2009 (Cth) and floating charges fact sheet, accessed at 5 Section 12 PPS Act 2009 (Cth); Personal Securities key concepts fact sheet, accessed at 6 Section 10 PPS Act 2009 (Cth). 7 Section 14 PPS 2009 (Cth). 8 PPS Lease is a lease of bailment for a term exceeding either three months in the case of cars, boats and aircraft, or one year for other types of personal property. 9 See Purchase Money Security Interest fact sheet, accessed at 10 Section 157 PPS Act 2009 (Cth). 11 Section 153 PPS Act 2009 (Cth). 12 Personal Property Security (PPS) Register and priorities fact sheet, assessed at 13 Regulation 3.2 PPS Regulations. 14 Purchase Money Security interests fact sheet, accessed at 15 Section 21 PPS Act 2009 (Cth). 16 Section 19(2) PPS Act 2009 (Cth). 17 Section 20 PPS Act 2009 (Cth). 18 Section 55 PPS Act 2009 (Cth). 19 Section 63 PPS 2009 (Cth). 20 See Purchase Money Security Interest fact sheet, accessed at 21 Section 322 PPS 2009 (Cth). 22 Section 322(2) PPS Act 2009 (Cth).