By Amelia Hagley and Adam Waldman -
Snapshot
- The Personal Property Securities Act 2009 (Cth) cannot simply be ignored because it is foreign to traditional common law thinking. While the fine details can be complex and extremely technical, the good news is that the regime can be viewed in terms of several simple fundamentals.
- All practitioners should be sufficiently versed in the basics, such that they can spot potential situations where it might operate.
- The Personal Property Securities Register can be counterintuitive to Australian lawyers, and is very different from the Torrens Register. Practitioners unfamiliar with the PPSA should not over-rely on PPSR registrations, and consider seeking expert advice when a security interest may exist.
The Personal Property Securities Act 2009 (Cth) (‘PPSA‘) created a radically new regime governing the law of securities in personal property, consolidating over 70 pieces of legislation and fundamentally altering the previous position at general law in the process. This, coupled with its significant volume (343 sections), may make the Act intimidating to approach. However, when viewed as a whole, the regime can be seen to contain several fundamental ideas, each capable of being simply conceptualised.
This article seeks to present a broad overview of these ‘fundamentals’ of the PPSA, with a particular emphasis on making the legislation more accessible to practitioners who are unfamiliar with it. The criterion for identifying a ‘security interest’ is examined, and the meaning of ‘attachment’, ‘enforceability’, and ‘perfection’ of a security interest are then considered. Finally, the ‘default priority rules’ are briefly discussed. Throughout the analysis, key differences between the PPSA’s regime and that of Torrens and the general law, are emphasised.
