The Personal Property Securities Act 2009 (“PPSA”) was introduced on 30 January 2012 and the Personal Property Securities Register (“PPSR”) went live that same day.
The PPSA significantly altered the way security is registered in Australia and rendered several common business transactions (namely, retention of title supplies, the lease, rental or bailment of equipment or consignment of stock) as security interests that need to be registered on PPSR to be enforceable.
Supplies of goods on credit terms subject to retention of title
There can be significant benefits to be gained by ‘retention of title’ (“ROT”) suppliers who embrace PPSA and the loss of previously available ROT recovery sources for those that do not.
PPSA deems all suppliers that supply goods subject to ROT and that register on PPSR to be ‘secured creditors’. When it comes to enforcement, the creditor with the highest ranking security interest is able to seize and sell the goods for their own benefit.
Specifically, a supplier of goods, subject to ROT will be able to:-
- Repossess its goods if they are still in the customer’s possession
- Recover goods where they have become affixed to other goods – such as wheels installed on a motor vehicle.
- Retain rights in commingled or mixed goods – such as fuel in a fuel tank where other suppliers are involved
- Obtain security in manufactured goods where the goods supplied form part such as where flour has been supplied to make bread.
- Have security in ‘proceeds’ – which are book debts derived from the sale of the ROT supplies.
There are additional benefits, which do not come directly from PPSA:-
- Registration on PPSR could be a defence against a claim for a unfair preference or preferential payment claim from a liquidator.
- Customers selling their businesses will be forced to obtain a discharge from you guaranteeing you get paid.
There are powerful benefits to be gained by ROT suppliers that register on PPSR. It is a very different story for those who don’t. If your customer becomes insolvent and you haven’t registered, you will lose your goods. It is a similar story for stock supplied on consignment. If you haven’t registered your interest on PPSR you will lose any rights to your stock.
Supplies of goods on lease, rental or bailment terms
The PPSA is extremely harsh on equipment renters and bailers (parties that provide equipment on loan to a customer as part of a wider commercial arrangement). The previous law treated these types of businesses fairly in that he lessor or person making goods available for hire or loan would at all times own the goods. If the customer defaults or becomes insolvent, the equipment owner was simply able to repossess their goods, as they did not form part of the insolvent estate.
PPSA has completely reversed this position. In brief terms, if:-
- a business leases, rents or bails equipment to its customers, and;
- the arrangement creates what PPSA calls a PPS Lease, and;
- the business fails to register on PPSR, then;
- the equipment owner will most likely lose their equipment on the insolvency of the customer.
Meaning that the equipment will be sold by the insolvency practitioner and they proceeds applied to the ‘insolvency pot’. This may seem unfair but it is correct. It is therefore, critical to know whether your agreements create a ‘PPS Lease’ and, if so, to understand how to achieve protection with minimum cost and impact on your business.
SiiP – Our PPSR Platform
Our registration platform SiiP features superior PPSR portfolio management alongside all functionality available on the PPSR website with pre-programmed templates and build in validation prior to processing.
SiiP is also capable of bulk transaction and data cleansing uploads and exportable reporting downloads.
PPSR portfolios are visible through a dynamically driven dashboard giving users a unique snapshot of registration numbers and types, collateral classes, grantor types. The dashboard also provides an extremely useful summary of registrations due to expire and registrations that do not comply with grantor identification rules or approved registration profiles.
We would be delighted to arrange a demonstration. Please contact us to arrange this.