SUBMISSION SUMMARY

Submission to the Attorney General on Personal Property Securities Act 2009

Submission Summary



Attorney General

Supreme Court

Australian Capital Territory

Submission to the Attorney General on Personal Property Securities Act 2009

Introduction

Personal Property Securities Act 2009 is a law is related to the security interests in personal property provided for by a transaction that secures payment or the performance of an obligation. I truly appreciate and recognise the benefits of the Personal Property Securities reforms; however, there are some issues within the Personal Property Securities Act 2009 . I am writing this submission to request certain amendments in the Act in the interests of small traders. The association of small traders is concerned with a lack of certainty in some clauses of the legislation. My concerns with the regulations are detailed briefly in the following section.

The Amendments to Section 436C and Section 441A of the Corporations Act

The inclusion of "Personal Property Securities Act retention of title property" within the definition of “property” for the purpose of section 436C, power of a secured party to appoint an administrator, and section 441A, power of a secured party to enforce during the decision period of the Corporations Act 2001 may appear complex and illusory with regards to the rights given to a secured party, which has a security interest over the whole or substantially the whole of the property of the company. In particular, it is unclear that

It will ever be possible to have a security interest over the whole or substantially the whole of the property of the company if Personal Property Securities Act retention of title property is included in the company's property for the purposes of these sections

An all present and after acquired property security interest will be sufficient to satisfy this requirement with the issue of enforcement over Personal Property Securities Act retention of title property the subject of a purchase money security interest as merely a matter of priority.

The Ability to Register more than one Security Interest Against a Grantor

Moreover, a security interest that is expressed to extend to a company's retention of title property will attach to that property, in addition to any other property to which it is attached. A security interest that describes the collateral as the grantor company's all present and after-acquired property would, in accordance with section 18(1), attach to the whole of the company's property for the purposes of sections 436Cand 441A. However, it remains unclear and perplexed, whether a fixed and floating charge over all of the assets and undertaking of a company which was entered into at a time, when it was not possible to take a security interest over Personal Property Securities Act retention of title property will now extend to this property enabling a secured party to exercise rights under sections 436C and 441A of the Corporations Act. Therefore, the trading association requests to clarify and ensure that the intended interpretation of the Act is completely free from any doubt or misinterpreted ...