Personal Property Securities Act. Australia

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СКАЧАТЬ authoritative copy can be made only with the participation of the secured party; and

      (e) each copy of the authoritative copy (or any copy of such a copy) is readily identifiable as a copy that is not the authoritative copy; and

      (f) any revision of the authoritative copy is readily identifiable as an authorised or unauthorised copy.

      Possession of investment instruments

      (6) Despite subsections (1) and (2), a person (the possessor) has possession of an investment instrument that is evidenced by a certificate if, and only if:

      (a) the certificate specifies the person who is entitled to the investment instrument; and

      (b) a transfer of the investment instrument may be registered on books maintained for that purpose by or on behalf of the issuer (or the certificate states that a transfer of the instrument may be so registered); and

      (c) any of the following applies:

      (i) the possessor has possession of the certificate;

      (ii) another person (other than the grantor or the debtor) has possession of the certificate on behalf of the possessor;

      (iii) the registered owner (who is not the grantor or debtor) of the investment instrument acknowledges in writing that he, she or it has possession of the investment instrument on behalf of the possessor.

      25 Control of an ADI account

      A secured party has control of an ADI account for the purposes of section 21 (perfection — main rule) if, and only if, the secured party is the ADI.

      Note: Control has an extended meaning in relation to ADIs in sections 341 and 341A (control in relation to fixed and floating charges).

      26 Control of intermediated securities

      Main rule

      (1) A person has control of an intermediated security that is credited to or recorded in a securities account if, and only if, this section so provides.

      Control by agreement

      (2) A secured party has control of an intermediated security if:

      (a) one of the following conditions is satisfied:

      (i) there is an agreement in force between the grantor, the secured party and the intermediary who maintains the securities account;

      (ii) there is an agreement in force between the grantor and the intermediary;

      (iii) there is an agreement in force between the grantor and the secured party, and notice of the agreement is given to the intermediary; and

      (b) the agreement has the effect that:

      (i) the intermediary must not comply with instructions given by the grantor in relation to the intermediated security without seeking the consent of the secured party (or a person who has agreed to act on the instructions of the secured party); or

      (ii) the intermediary must comply, or must comply in one or more specified circumstances, with instructions (including instructions to debit the account) given by the secured party in relation to the intermediated security without seeking the consent of the grantor (or any person who has agreed to act on the instructions of the grantor).

      (3) If the intermediary who maintains the securities account is an intermediary because of paragraph 15(2)(b), a reference to the intermediary in subparagraphs (2)(a)(i) to (iii) of this section includes a reference to a person prescribed by regulations made for the purposes of this subsection.

      Note 1: Under paragraph 15(2)(b), a person is an intermediary if the person operates a clearing and settlement facility under an Australian CS facilities licence (within the meaning of the Corporations Act 2001), other than such a person prescribed by regulations made for the purposes of that paragraph.

      Note 2: The regulations may prescribe a person by reference to a class or classes of persons (see subsection 33(3A) of the Acts Interpretation Act 1901).

      (3A) A secured party has control of an intermediated security if there is an agreement in force under which the secured party (or a person who has agreed to act on the instructions of the secured party) is able to initiate or control the sending of some or all electronic messages or other electronic communications by which the intermediated security could be transferred or otherwise dealt with.

      Control by secured party in whose name securities account is maintained

      (4) A secured party has control of an intermediated security if:

      (a) the securities account is maintained in the secured party’s name; or

      (b) the securities account is maintained in the name of another person (who is not the grantor or debtor), and that person acknowledges in writing that he, she or it holds the intermediated security on behalf of the secured party.

      27 Control of investment instruments

      Main rule

      (1) A person has control of an investment instrument if, and only if, this section so provides.

      Control of any investment instrument

      (2) A person, other than the debtor or grantor, has control of an investment instrument (whether or not the instrument is evidenced by a certificate) if the issuer of the instrument registers the person as the registered owner of the instrument.

      Control of investment instruments evidenced by certificates

      (3) A person (the controller) has control of an investment instrument that is evidenced by a certificate if:

      (a) the controller has possession of the instrument; and

      (b) the controller (or a person who has agreed to act on the instructions of the controller) is able to:

      (i) transfer the instrument to the controller, or to another person; or

      (ii) otherwise deal with the instrument.

      Control of investment instruments not evidenced by certificates

      (4) A person has control of an investment instrument that is not evidenced by a certificate if:

      (a) there is an agreement in force between the person and the grantor; and

      (b) the agreement has the effect that the person (or a person who has agreed to act on the instructions of the first person) is able to initiate or control sending instructions by which the investment instrument could be transferred or otherwise dealt with.

      (5) A person (the controller) has control of an investment instrument that is not evidenced by a certificate if:

      (a) either:

      (i) the issuer of the instrument registers another person (who is not the grantor or debtor) as the registered owner of the investment instrument on behalf of the controller; СКАЧАТЬ