Personal Properties Securities Act 2009 How will PPSA impact Your Business? The Aim of PPSA Is To:

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Maximilian Morton
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The Personal Property Securities Act 2009 (PPSA) became operational on 30 January 2012 and is a real time online register that is operated by the Insolvency and Trustee Service Australia (ITSA).

It applies to security interests such as leasing or hiring arrangements (between associated entities and external parties), fixed and floating charges, chattel mortgages and other forms of secured

1 The Personal Property Securities Act 2009 (PPSA) became operational on 30 January 2012 and is a real time online register that is operated by the Insolvency and Trustee Service Australia (ITSA). The register replaced approximately 70 Commonwealth and State Acts and Registers previously administered by 30 government agencies, which recorded securities held in relation to various assets. It applies to security interests such as leasing or hiring arrangements (between associated entities and external parties), fixed and floating charges, chattel mortgages and other forms of secured finance. It may also apply to businesses which sell goods on credit terms (with retention of title) or businesses who store their goods, stock, vehicles or plant and equipment on another business land or premises. It is important that businesses review their structures and operations to ensure that their assets are protected under the PPSA and that you no longer rely on existing concepts of ownership or security. The Aim of PPSA Is To: Harmonise fragmented legislation and case law Legislate and standardise practices that have evolved over time Improve credit management Provide protection for purchasers & suppliers Introduce more efficient enforcement Reduce litigation Increase certainty and consistency Reduce costs and complexity Provide alignment with overseas developments in this area (NZ, Canada and USA) Phone Address Level 1, 100 Goondoon Street, Gladstone, Qld, sothertons@sothertonsgladstone.com.au Website

2 What is Personal Property? Property of any kind, other than land, fixtures, water rights, or a right granted by the Commonwealth or State that is declared by law not to be personal property for the purposes of PPSA. Examples include: Tangible goods such as motor vehicles, aircraft, livestock, mining equipment and machinery Intangible items such as intellectual property and contract rights, designs, patents and trademarks. Growing crops Debts Shares, units and debt securities Exclusions include: Land, fixtures and water rights (i.e. real property) Specific exclusions in the legislation such as bills of lading and statutory liens Specific State and Federal carve outs such as statutory licences eg taxi, liquor, fishing and gaming licences. Types of Transactions caught by PPSA: Loan Transactions (including intra-group loans) Sale of Goods (retention of title) Lease of Goods (including intra-group leases) Hire Purchase Agreements Commercial Consignment Transportation Agreements Chattel Mortgages Receivables Financing Business Sale Transactions Bailment of Goods Storage of Goods There is no prescribed form of documenting a security agreement, it may be a General Security Agreement or a Specific Security Agreement.

3 Types of Security Interests Covered: All currently registrable securities such as the following examples: Fixed and floating charges (ASIC) Bills of sale (Bill of Sale Register) Chattel mortgages Motor vehicle finance (REVS) Plus currently non-registrable interests in property such as: Leasing of goods Rental of goods Bailment of goods Note: A bailment of goods includes goods provided for the use of a customer as part of a wider arrangement. Retention of title clauses What is a PPS Lease? The rules as to what constitutes a PPS Lease are complex and will require expert guidance. At first glance, PPSA says that a PPS Lease is:- A lease or bailment of goods for a term of more than one year. On closer inspection, a PPS Lease could be:- A month to month lease A lease with no specified term A lease for less than one year but where the customer has had the goods for more than one year. Registration (known as Perfection in the legislation) It is vital that security interests are registered correctly and accurately on the PPSR, within specific timeframes, for the security interest (and ownership) to be valid. To register an interest in an asset the owner/hirer must have an interest in relation to an asset, such as a (written) lease/hire agreement. This agreement, if it constitutes a PPS lease (refer above), can then be registered as a Purchase Money Security Interest (PMSI). More than one party can register an interest in an asset. The terms of the lease/hire agreement do not have to be at commercial rates and may be between related parties

4 Transitional Provisions Security interests arising PRIOR to 30 January 2012 will have transitional protection under the PPSA and will be deemed to be temporarily registered for 24 months. Security interests created AFTER 30 January 2012 will not have the benefit of the transitional provisions and must be registered on the PPSR. Why is Registration of Security Interests on the PPSR Important? If the owner of an asset leases, rents or bails the asset to another entity/person, The arrangement constitutes a PPS Lease (as defined within the Act) The owner of the asset has not registered their security interest on PPSR The entity/person in possession of the asset becomes insolvent THEN The owner of the asset will, almost certainly, lose their asset to the insolvency practitioner. Important! Storage/Location of Assets It should also be understood that if an asset of an entity is left on the premises of another entity, and the second entity becomes insolvent, the liquidator of the insolvent entity may then be able to sell the asset belonging to the first entity even though the first entity owned the asset. To prevent this from happening, the owner of the asset should register their interest in the asset on the PPSR. In Summary On solvency, PPSA determines priority to assets Registration is the key Inaccuracies or errors in registration will invalidate security Strict timeframes apply to registration The devil is in the detail with PPSA. A couple of words in lease terms can dramatically alter the outcome. ORGANISATIONS THAT RENT, LEASE OR BAIL GOODS TO OTHERS OR HAVE ASSETS STORED/LOCATED ON L/PREMISES OF OTHERS MUST SEEK SPECIALIST ADVICE IMMEDIATELY

5 This fact sheet is of a general nature and intended as a guide only. It has been prepared with no consideration of specific financial investments, situations or requirements. It is not a substitute for legal or professional advice, and should not be relied upon as such. In the preparation of this fact sheet, Sothertons (Gladstone) Services Pty Ltd has attempted to offer the most current, correct and clearly expressed information possible. However, inadvertent errors can occur and applicable laws, rules and regulations can change. Legal statutes and the cases interpreting them change, and the information contained in this document may not reflect the changes. Sothertons (Gladstone) Services Pty Ltd, its administrators, directors, agents and/or employees, disclaim all liability and are hereby released and indemnified from and against all actions, claims, demands and proceedings whatsoever (whether foreseeable or not) withstanding any negligence, default or lack of due diligence and care from any person which may arise in connection with the information contained in this fact sheet or advice given by a consultant. In all cases, recipients should individually review and assess the information contained in this fact sheet based on their own special circumstances and consult with Sothertons concerning specific matters before making any decision. It is always important to consider legal advice when dealing with leases, rentals and bailments. This fact sheet is current as at July Sothertons (Gladstone) Services Pty Ltd All rights reserved. This work is copyright. It may be reproduced in whole or in part for Sothertons (Gladstone) Services Pty Ltd purposes subject to the inclusion of any acknowledgement of the source and no commercial usage or sale. Reproduction for purposes other than those indicated above requires written permission. Requests and enquiries concerning reproduction and rights should be addressed to Sothertons (Gladstone) Services Pty Ltd, PO Box 5066, Gladstone, QLD, Privacy Policy Sothertons (Gladstone) Services Pty Ltd is committed to adhering to National Privacy Principles (NPP). For further information, please refer to

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