Personal Property Securities Act. Australia

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СКАЧАТЬ if neither paragraph (a) nor (b) applies — in the following order:

      (i) to obligations that are not secured, in the order in which those obligations were incurred;

      (ii) to obligations that are secured, but not by purchase money security interests, in the order in which those obligations were incurred;

      (iii) to obligations that are secured by purchase money security interests, in the order in which those obligations were incurred.

      Purchase money obligations

      (7) This subsection covers an obligation of a debtor incurred:

      (a) as all or part of the purchase price of the collateral; or

      (b) for value given to enable the grantor to acquire or use the collateral (provided the collateral is so acquired or used).

      References to purchase price and value

      (8) In this section, a reference to a purchase price, or value, includes a reference to credit charges and interest payable for the purchase or loan credit.

      15 Meaning of intermediated security and related terms

      Meaning of intermediated security

      (1) An intermediated security is the rights of a person in whose name an intermediary maintains a securities account.

      Meaning of intermediary

      (2) An intermediary is:

      (a) a person (including a central securities depository) who holds an Australian financial services licence (within the meaning of the Corporations Act 2001) permitting the person, in the course of business or other regular activity, to maintain securities accounts:

      (i) on behalf of others; or

      (ii) on behalf of others as well as on the person’s own behalf; or

      (b) a person who operates a clearing and settlement facility under an Australian CS facility licence (within the meaning of the Corporations Act 2001), other than such a person prescribed by regulations made for the purposes of this paragraph; or

      (c) a person (including a central securities depository) who holds a licence issued under the law of a foreign jurisdiction permitting the person, in the course of business or other regular activity, to maintain securities accounts:

      (i) on behalf of others; or

      (ii) on behalf of others as well as on the person’s own behalf.

      (3) An intermediary does not include a central bank.

      (4) An intermediary (including a central securities depository) is an intermediary only while acting in the capacity of an intermediary.

      (5) A person is not an intermediary for the purposes of paragraph (2)(a) or (c) merely because the person maintains a securities account on behalf of the issuer of the financial products to which the account relates.

      (6) Without limiting subsection (5), a person is not an intermediary for the purposes of paragraph (2)(a) or (c) merely because the person:

      (a) acts as a central securities depository, registrar or transfer agent for an issuer of a financial product; or

      (b) records details of interests in financial products in the person’s own books, being interests credited to securities accounts in the names of other persons for whom the person acts as manager or agent or otherwise in a purely administrative capacity.

      Meaning of securities account

      (7) In this Act:

      securities account means:

      (a) an account to which interests in financial products may be credited or debited; or

      (b) in the case of an intermediary mentioned in paragraph 15(2)(b) — a record of holdings and transfers of interests in financial products.

      Chapter 2

      General rules relating to security interests

      Part 2.1

      Guide to this Chapter

      16 Guide to this Chapter

      This Chapter sets out general rules relating to security interests in personal property.

      Part 2.2 contains some general principles relating to these security interests, the agreements that govern them and their enforceability. The Part describes how a security interest is attached to personal property and perfected.

      Part 2.3 deals with the concepts of possession and control of personal property.

      Part 2.4 contains some rules about attachment and perfection of security interests in particular situations.

      Part 2.5 sets out circumstances in which a person takes an interest in personal property free of a security interest in the property.

      Part 2.6 sets out how to work out the priority between competing security interests (and in some cases, other sorts of interests) in personal property. If a specific rule does not deal with the priority between security interests, then the priority is determined in accordance with the default rules in section 55.

      Part 2.7 contains some rules about transferring and assigning interests in collateral.

      Part 2.2

      Security interests: general principles

      17 Guide to this Part

      This Part sets out some general principles about security interests.

      These principles relate to the enforceability of security agreements against grantors of security interests and third parties.

      A security interest is only effective if it has attached to collateral. A security interest attaches to collateral when the grantor has rights in the collateral, or can transfer it to the secured party, and value is given, or the security interest otherwise arises.

      A security interest is only enforceable against a third party if it has attached to collateral and the secured party possesses the collateral, has perfected the security interest by controlling the collateral or has entered into a written security agreement that describes the collateral.

      This Part also contains rules about how a security interest is perfected and how it is continuously perfected. A perfected security interest has priority over an unperfected security interest, and the security interest that has been continuously perfected for the longest time generally has the highest priority (see Part 2.6 for priority rules).

      Perfection occurs when a security interest has attached to collateral and any further steps needed to make the security interest effective against third parties have been taken.

      These СКАЧАТЬ