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29 October 2013

PPSA – You need to act now to ensure your security interests are protected after 30 January 2014

Key provisions that currently protect some unregistered security interests will come to an end on 30 January 2014

Key provisions that currently protect some unregistered security interests will come to an end on 30 January 2014. This affects security interests such as:

  • retention of title arrangements;
  • equipment and finance leases;
  • mortgages over property (other than land); and
  • charges given by individuals.

Businesses that have been relying on the transitional provisions for these security interests need to take action or risk automatically losing their rights as a secured creditor from 30 January 2014.

What do you need to do?

Identify all the security interests held by your business (if you haven’t already).

Document each security interest, including those that have been subject to the transitional provisions.

Implement steps to perfect your security interests:

  • before 30 January 2014 for security interests subject to the transitional provisions; and
  • ASAP for all other security interests.

How do the transitional provisions work?

Although the PPSA started on 30 January 2012, security interests that existed prior to this date are covered by the legislation.

Some pre-existing security interests migrated to the new PPS Register (such as fixed and floating charges registered with ASIC), and therefore became perfected from commencement of the PPSA.

However, many interests that were not previously registrable (such as retention of title arrangements and some leases) were deemed to be protected for two years after the start date.

This measure was a trade-off, designed to allow businesses time to adjust to the new procedures for taking security over personal property and perfect their interests in accordance with the legislation.

There is some conjecture about whether agreements made before 30 January 2012 are protected if new supplies have been made after the commencement of the PPSA. There is no guidance by the courts on this issue, so the safe option is to register these arrangements.

What happens if you do nothing?

Under the transitional rules, a security interest that existed prior to 30 January 2012 is deemed to be perfected until 30 January 2014.

On and from 30 January 2014, the deemed perfection ceases.

Unless you have perfected these security interests by taking the appropriate steps under the legislation, you will become an unsecured creditor from 30 January 2014.

This means you could lose goods that you own but which are held by a third party, if the other party becomes insolvent.

Cooper Grace Ward has a specialist PPSA team that can assist you in identifying, documenting and implementing procedures to deal with the PPSA, such as:

  • advice on how to perfect your security interests;
  • registration manuals; and
  • tailored training for you and your staff on how to use the new register with confidence.

For further information, click here to go to our PPSA training services page or contact one of our PPSA team members.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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Charles Sweeney
Managing Partner

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