Personal Property Securities Act. Australia

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СКАЧАТЬ steps involve registration on the Personal Property Securities Register or possession or control of the collateral. In certain situations this Act provides for perfection, or temporary perfection, by the operation of the Act itself.

      18 General rules about security agreements and security interests

      (1) A security agreement is effective according to its terms.

      (2) A security agreement may provide for security interests in after-acquired property.

      (3) A security interest in after-acquired property attaches without specific appropriation by the grantor.

      (4) A security agreement may provide for future advances.

      (5) A security interest is taken to secure reasonable expenses in relation to the enforcement of the security interest, unless the parties agree otherwise.

      19 Enforceability of security interests against grantors — attachment

      Attachment required for enforceability

      (1) A security interest is enforceable against a grantor in respect of particular collateral only if the security interest has attached to the collateral.

      Attachment rule

      (2) A security interest attaches to collateral when:

      (a) the grantor has rights in the collateral, or the power to transfer rights in the collateral to the secured party; and

      (b) either:

      (i) value is given for the security interest; or

      (ii) the grantor does an act by which the security interest arises.

      Time of attachment

      (3) Subsection (2) does not apply if the parties to a security agreement have agreed that a security interest attaches at a later time, in which case the security interest attaches at the time specified in the agreement.

      (4) To avoid doubt, a reference in a security agreement to a floating charge is not a reference to an agreement that the security interest created by the floating charge attaches at a time later than provided under subsection (2).

      Goods leased, bailed, consigned or sold under a conditional sale agreement.

      (5) For the purposes of paragraph (2)(a), a grantor has rights in goods that are leased or bailed to the grantor under a PPS lease, consigned to the grantor, or sold to the grantor under a conditional sale agreement (including an agreement to sell subject to retention of title) when the grantor obtains possession of the goods.

      (6) Subsection (5) does not limit any other rights the grantor may have in the goods.

      Note: A security interest may attach to crops while they are growing, and to the products of livestock, before they become proceeds of the crops or livestock (for example, wool before it is shorn). See subsections 31(4) and (5) (meaning of proceeds) and section 84A (security interests in crops and livestock).

      20 Enforceability of security interests against third parties

      General rule

      (1) A security interest is enforceable against a third party in respect of particular collateral only if:

      (a) the security interest is attached to the collateral; and

      (b) one of the following applies:

      (i) the secured party possesses the collateral;

      (ii) the secured party has perfected the security interest by control;

      (iii) a security agreement that provides for the security interest covers the collateral in accordance with subsection (2).

      Note: For possession and control of collateral, see Part 2.3.

      Written security agreements

      (2) A security agreement covers collateral in accordance with this subsection if:

      (a) the security agreement is evidenced by writing that is:

      (i) signed by the grantor (see subsection (3)); or

      (ii) adopted or accepted by the grantor by an act, or omission, that reasonably appears to be done with the intention of adopting or accepting the writing; and

      (b) the writing evidencing the agreement contains:

      (i) a description of the particular collateral, subject to subsections (4) and (5); or

      (ii) a statement that a security interest is taken in all of the grantor’s present and after-acquired property; or

      (iii) a statement that a security interest is taken in all of the grantor’s present and after-acquired property except specified items or classes of personal property.

      Methods of signing writing

      (3) Without limiting subparagraph (2)(a)(i), for the purposes of that subparagraph a grantor is taken to sign writing if, with the intention of identifying the grantor and adopting, or accepting, the writing, the person applies:

      (a) writing (including a symbol) executed or otherwise adopted by the person; or

      (b) writing wholly or partly encrypted, or otherwise processed, by the person.

      Note: For the meaning of writing, see section 10.

      Personal property descriptions — consumer property, equipment and inventory

      (4) If particular personal property is described using the term “consumer property” or “commercial property” in the writing evidencing a security agreement, subparagraph (2)(b)(i) is satisfied only if the personal property is more particularly described, in addition, by reference to item or class.

      (5) If particular personal property is described using the term “inventory” in the writing evidencing a security agreement, subparagraph (2)(b)(i) is satisfied only while the personal property is held or leased by the grantor as inventory.

      Proceeds

      (6) A security interest in proceeds is enforceable against a third party whether or not the security agreement providing for the security interest contains a description of the proceeds.

      Note: Section 32 deals with whether a security interest in collateral attaches to proceeds of the collateral.

      21 Perfection — main rule

      (1) A security interest in particular collateral is perfected if:

      (a) the security interest is temporarily perfected, or otherwise perfected, by force of this Act; or

      (b) all of the following apply:

      (i) the security interest is attached to the collateral;

      (ii) the security interest is enforceable against a third party;

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