Personal Property Securities (PPS) Register

IS YOUR BUSINESS READY FOR 31 JANUARY

A transitional period concerning the Personal Property Securities Register ends on 31 January 2014, are you ready?

 

DO YOU NEED TO ACT

Firstly, what is the Personal Property Securities (PPS) Register

 

Consumers and business operators can search the PPS Register, which is a National register, when they need to know whether certain equipment, vehicles, machinery etc has a security interest registered against it.  These items are referred to as personal property, and by definition business assets also fall into this category.

The PPS Register is a single point of contact register for consumers, businesses and the finance industry, which can be accessed online.  The PPS Register replaced some 70 Commonwealth, State and Territory Registers in January 2012 to simplify and centralise the system. One of the replaced registers that was quite well known was REVS.

The PPS Register will be used in many situations including:

• – finance companies that provide loans on the basis that they receive a security interest in an item of personal property to register their interest in the property on the PPS Register.
• – business operators who sell personal property on credit, consignment, or on a retention of title arrangement to register their interest in the property on the PPS Register, and
• – consumers who are about to purchase personal property, such as valuable second goods, to search the register before buying to make sure that the property is free of a security interest.

The Register can be accessed electronically seven days a week, 24 hours a day and use of the PPS Register is voluntary.

Examples of personal property securities include

• – Fixed and floating charges
• – Chattel mortgages
• – Conditional Sales agreements (including agreements to sell subject to retention of title)
• – Hire purchase agreements
• – Pledges
• – Trust receipts
• – Consignment (including commercial)
• – Lease of goods
• – Leases of personal property (for a term of more than 1 year)
• – An assignment of an interest in property
• – Transfers of title
• – Finance leases

What is the transitional period

The transitional period applied to agreements made prior to 30 January 2012, and allowed those with personal property securities 24 months to register those agreements into the PPS register to protect their security interests.

 

Why should you act

Under the new regime, the priority of secured creditors in the event of insolvency will change. Those who fail to take adequate measures by registering on the PPS register risk losing any right to property in possession of another entity in the event of liquidation or receiving a greatly reduced return on a security over personal property.

 

The transitional period to register any interests not yet registered is about to end.

It’s important for you to act now to register any outstanding pre-PPS Act security interests on the Personal Property Securities Register (PPSR) before the transitional/grace period ends on 31 January 2014.

 

Do you purchase valuable second-hand items

Check the PPSR to see if goods such as a vehicle, machinery, stock or other items you intend to purchase are subject to security interests.  Doing a search to check before you make a purchase is low cost, easy and gives immediate results.

 

The New Zealand experience

The PPS system has been in place in New Zealand for a number of years and we can draw on two cases to illustrate the issues that may occur in Australia.

 

The first case is Graham v Portacom New Zealand Limited [2004] 2 NZLR 528 (HC) and the facts were as follows

 

• – NDG Pine Limited leased five buildings from Portacom for an unspecified term;
• – Portacom failed to register its interest in the lease;
• – NDG defaulted on its obligations to a third party bank that held a debenture over all of NDG’s assets;
• – A dispute arose over which party had priority to the portable buildings: the bank or Portacom.

 

The Outcome:  As the bank had registered its interest and Portacom had not, the bank was found to have priority.

 

In another case, New Zealand Bloodstock Limited v Waller [2006] 3 NZLR 629 (CA)

• – New Zealand Bloodstock leased a thoroughbred stallion in a hire/purchase arrangement to Glenmorgan Farm Limited;
• – The farm failed to make repayments under the agreement and New Zealand Bloodstock repossessed the stallion;
• – The farm subsequently went into receivership;
• – New Zealand Bloodstock had failed to register the agreement, which was capable of registration, and a bank, which held a debenture over all of the farm’s assets, had registered its interest.

 

The Outcome: Despite New Zealand Bloodstock having possession of and title to the stallion, the bank was found to have priority and accordingly was able to take possession of, and sell, the stallion.

 

Action

Please review your situation, and consider whether your business needs to register its interest on the PPS register.  The website at www.ppsr.gov.au has a lot of information, and we can assist you further if you have any queries.

 

Finally, before you buy a second-hand vehicle, machinery, stock or other items please check the register.

 

David Lennon CA

Partner

January 2014

 

 

 

 

This article does not constitute advice and we encourage you to contact one of our team to discuss your circumstances further.  The information remains the intellectual property of Marsdens Pty Ltd and you should not reproduce this in any format without written permission of the Directors.