Legislation called the Personal Property Securities Act (PPSA) came into effect on 30 January 2012. The legislation introduced a national online Personal Property Securities Register (PPS Register) which replaced other registers including the ASIC register of company charges. The act covers security interests over all forms of property other than land and buildings or fixtures which are a part of land. So whilst the term "Personal" is used in the Act title, it is not just personal in nature.
The purpose of the legislation is improve the ability of businesses to use all their property in raising capital, as well as to clarify the position of competing creditors in an insolvency situation.
A personal property security is when a secured party takes an interest in personal property to secure payment or performance of an obligation. Examples include:
- The right of a supplier to recover goods for non-payment (i.e. retention of title clauses);
- Financing or operational leases of personal property;
- Consignment arrangements; and
- Licensing agreements for intellectual property.
Under the PPSA, the concept of "title" is irrelevant and has been replaced by the term "security interests". Title itself will not equate to rights over property unless "security" over them is "perfected" in the PPS Register. Effectively, if you own assets which you do not have possession of (eg. inventory sold to a customer for which you are still owed the money), you are at risk unless your interest in the asset is registered.
Generally a security interest over personal property will be ineffective unless registered on the Personal Property Securities Register. Where retention of title clauses are not registered, the clause will be ineffective if disputed by a liquidator. This is particularly true for companies, where-by non-registered security interests will vest in the company upon liquidation. The effect of this would be that the secured party could not seize the collateral on the liquidation and their only recourse would be to prove the debt against the liquidator and be paid out as an unsecured creditor. In effect, without registration, any retention of title arrangements you have may not be enforceable.
The Online PPS Register as well as further information about the register can be found at www.ppsr.gov.au.
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The information provided in this brochure does not constitute advice. The information is of a general nature only and does not take into account your individual objectives, financial situation or needs. It should not be used, relied upon, or treated as a substitute for specific professional advice. We recommend that you contact Brentnalls SA before making any decision to discuss your particular requirements or circumstances.