The Personal Property Securities Act 2009 (Cth) (PPSA) is legislation that governs the use of personal property (most types of property other than land) to secure payment of money or the performance of an obligation. The PPSA radically changes how business and individuals deal with personal property, and may apply to any transaction involving personal property.
The legislation established a new Personal Property Securities Register (PPS Register), which replaced a number of state, territory and Commonwealth registers of encumbrances, such as the ASIC Charges Register. The PPS Register allows people to protect their security interests in personal property by registering them on the PPS Register. Failing to correctly register your security interest in personal property may mean that another party can permanently take the personal property, even though you may own it.
Cooper Grace Ward Lawyers can assist with all of your PPSA matters, from the documentation and registration stage right through to litigation, should a dispute arise.
Personal property is all types of property other than land, fixtures, water rights and some statutory licences. Cars, boats, equipment, intellectual property, shares, and debts are all examples of personal property.
Common arrangements that are security interests include charges over a company, chattel mortgages, conditional sale agreements (for example, retention of title arrangements), hire purchase agreements, consignments and leases of goods.
The PPSA applies in a very broad range of circumstances, and many businesses and individuals will be affected by this legislation. The PPSA fundamentally changes the use of personal property as security. If you have a security interest in personal property and you fail to comply with the PPSA, you may lose the personal property if the business or individual in possession of the personal property becomes insolvent – even though you own it.
The PPSA affects both individuals and businesses, including those who:
- are financiers or provide vendor finance;
- take or grant security over all of an entity’s present and after-acquired property (fixed and floating charge);
- sell goods on credit;
- sell goods on retention of title terms;
- lease motor vehicles, plant and equipment or other assets;
- provide stock or other assets on consignment to third parties; and
- store goods with others.
You also need to consider the PPSA if you are acquiring personal property, to ensure it is not subject to another party’s security interest.
If you answer ‘yes’ to any of the questions below, you should contact us to discuss how the PPSA may apply to your business and how we can help you to manage the risks.
- Do you sell goods where you retain ownership until you are paid (retention of title)?
- Do your terms and conditions contain a ‘charging clause’?
- Do you lease or bail goods or equipment as part of your business?
- Are you a party to an operating lease or a finance lease?
- Do you deal with hire purchase agreements?
- Do you store goods for long periods of time?
- Do you take or are you subject to any all present and after-acquired property security interests (fixed or floating charges)?
- Do you provide finance against receivables?
- Are you acquiring assets from another business or individual?
Cooper Grace Ward Lawyers can assist you with all PPSA matters including (but not limited to):
- Providing advice about the application of the PPSA to you or your business;
- Advising on whether security interests arise and how best to protect security interests;
- Reviewing, amending or preparing documents to protect your interests from a PPSA perspective (most commonly, internal hire agreements, terms and conditions of trade, sale agreements and general security agreements);
- Completing registrations on the PPS Register;
- Providing training on how to register, amend, transfer or discharge security interests on the PPS Register;
- Providing advice in relation to disputes between secured parties or with insolvency practitioners; and
- Providing advice and conducting litigation and dispute resolution processes concerning PPSA-related disputes.