Personal Property Securities (Corporations and Other Amendments) Act 2010 (Cth)

Personal Property Securities (Corporations and Other Amendments) Act 2010 No. 96, 2010 as amended Compilation start date: 29 June 2013 Includes amendments up to: Act No. 103, 2013 About this compilation The compiled Act This is a compilation of the Personal Property Securities (Corporations and Other Amendments) Act 2010 as amended and in force on 29 June 2013. It includes any amendment affecting the compiled Act to that date. This compilation was prepared on 6 August 2013. The notes at the end of this compilation (the endnotes) include information about amending Acts and instruments and the amendment history of each amended provision. Uncommenced provisions and amendments If a provision of the compiled Act is affected by an uncommenced amendment, the text of the uncommenced amendment is set out in the endnotes. Application, saving and transitional provisions for amendments If the operation of an amendment is affected by an application, saving or transitional provision, the provision is identified in the endnotes. Modifications If a provision of the compiled Act is affected by a textual modification that is in force, the text of the modifying provision is set out in the endnotes. Provisions ceasing to have effect If a provision of the compiled Act has expired or otherwise ceased to have effect in accordance with a provision of the Act, details of the provision are set out in the endnotes. Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Corporations Act 2001 Part 1—New concepts Part 2—Repeal of Chapter 2K (registration of charges) Part 3—Charges and chargees Division 1—Specific amendments Division 2—Bulk amendments Part 4—Floating charges Part 5—Security Part 6—Mortgages and mortgagees Part 7—Liens and pledges Part 8—PPSA retention of title property Part 9—Special requirements for security interests Part 10—Transitional provisions Schedule 2—Personal Property Securities Act 2009 Part 1—Specific amendments Part 2—Bulk amendments Schedule 3—Amendment of other Acts Designs Act 2003 Fisheries Management Act 1991 Mutual Assistance in Criminal Matters Act 1987 Navigation Act 1912 Offshore Petroleum and Greenhouse Gas Storage Act 2006 Patents Act 1990 Personal Property Securities (Consequential Amendments) Act 2009 Proceeds of Crime Act 2002 Torres Strait Fisheries Act 1984 Trade Marks Act 1995 Endnotes Endnote 1—Legislation history Endnote 2—Amendment history Endnote 3—Uncommenced amendments [none] Endnote 4—Misdescribed amendments [none] An Act to amend certain Acts as a consequence of the enactment of the Personal Property Securities Act 2009, to amend that Act, and for related purposes 1 Short title This Act may be cited as the Personal Property Securities (Corporations and Other Amendments) Act 2010. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 6 July 2010 2. Schedule 1, items 1 to 185 The registration commencement time within the meaning of section 306 of the Personal Property Securities Act 2009. 30 January 2012 (see F2011L02397) 3. Schedule 1, item 186 The day this Act receives the Royal Assent. 6 July 2010 4. Schedule 1, item 187 The registration commencement time within the meaning of section 306 of the Personal Property Securities Act 2009. 30 January 2012 (see F2011L02397) 5. Schedule 2, items 1 to 107 The day this Act receives the Royal Assent. 6 July 2010 6. Schedule 2, item 108 The registration commencement time within the meaning of section 306 of the Personal Property Securities Act 2009. 30 January 2012 (see F2011L02397) 7. Schedule 2, items 109 to 153 The day this Act receives the Royal Assent. 6 July 2010 8. Schedule 3, item 1 Immediately after the commencement of item 1 of Schedule 2 to the Personal Property Securities (Consequential Amendments) Act 2009. 30 January 2012 9. Schedule 3, item 2 Immediately after the commencement of item 1 of Schedule 1 to the Personal Property Securities (Consequential Amendments) Act 2009. 30 January 2012 10. Schedule 3, items 3 and 4 The registration commencement time within the meaning of section 306 of the Personal Property Securities Act 2009. 30 January 2012 (see F2011L02397) 11. Schedule 3, item 5 Immediately after the commencement of item 6 of Schedule 3 to the Personal Property Securities (Consequential Amendments) Act 2009. 30 January 2012 12. Schedule 3, items 6 to 15 The registration commencement time within the meaning of section 306 of the Personal Property Securities Act 2009. 30 January 2012 (see F2011L02397) 13. Schedule 3, item 16 Immediately after the commencement of item 14 of Schedule 2 to the Personal Property Securities (Consequential Amendments) Act 2009. 30 January 2012 14. Schedule 3, item 17 Immediately after the commencement of item 17 of Schedule 1 to the Personal Property Securities (Consequential Amendments) Act 2009. 30 January 2012 15. Schedule 3, items 18 to 21 The registration commencement time within the meaning of section 306 of the Personal Property Securities Act 2009. 30 January 2012 (see F2011L02397) 16. Schedule 3, items 22 and 23 The registration commencement time within the meaning of section 306 of the Personal Property Securities Act 2009. Do not commence However, if the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 receives the Royal Assent before the registration commencement time within the meaning of section 306 of the Personal Property Securities Act 2009, the provision(s) do not commence at all. 17. Schedule 3, items 24 to 28 The registration commencement time within the meaning of section 306 of the Personal Property Securities Act 2009. 30 January 2012 (see F2011L02397) 18. Schedule 3, item 29 Immediately after the commencement of item 19 of Schedule 1 to the Personal Property Securities (Consequential Amendments) Act 2009. 30 January 2012 19. Schedule 3, item 30 Immediately after the commencement of item 18 of Schedule 2 to the Personal Property Securities (Consequential Amendments) Act 2009. 30 January 2012 Note 1: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. Note 2: The registration commencement time, within the meaning of section 306 of the Personal Property Securities Act 2009, is the start of 1 February 2012 (the first day of the month that is 26 months after that Act was given the Royal Assent), or another time determined by the Minister administering that Act, by legislative instrument. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Corporations Act 2001 Part 1—New concepts 1 Section 9 Insert: circulating security interest has the meaning given by section 51C. 2 Section 9 Insert: lease does not include a lease of goods that gives rise to a PPSA security interest in the goods. Note: An interest that arises under a lease of goods that in substance secures the payment or performance of an obligation, or that arises under a PPS lease within the meaning of the Personal Property Securities Act 2009, may be a PPSA security interest (see sections 12 and 13 of that Act and the definition of PPSA security interest in section 51 of this Act). 3 Section 9 Insert: PPSA retention of title property (short for Personal Property Security Act retention of title property) has the meaning given by section 51F. 4 Section 9 Insert: PPSA security interest (short for Personal Property Security Act security interest) has the meaning given by section 51. 5 Section 9 (at the end of the definition of property) Add: , and: (a) in Part 5.3A (administration)—has a meaning affected by section 435B; and (b) in Part 5.4B (winding up in insolvency or by the Court)—has a meaning affected by section 465; and (c) in Part 5.5 (voluntary winding up)—has a meaning affected by section 489F; and (d) in Part 5.6 (winding up generally)—has a meaning affected by section 513AA; and (e) in Part 5.7B (recovering property or compensation for creditors of insolvent company)—has a meaning affected by section 588C; and (f) in Part 5.8 (offences relating to external administration)—has a meaning affected by subsection 589(5); and (g) in Part 5A.1 (deregistration, and transfer of registration, of companies)—has a meaning affected by section 601; and (h) in Part 5B.2 (registrable bodies)—has a meaning affected by section 601C. Note: A reference in this Act to the property of a corporation does not include a reference to any PPSA retention of title property of the corporation, unless provided otherwise expressly or by necessary implication (see section 51F). The sections mentioned in paragraphs (a) to (h) extend references to property of a corporation in Parts of this Act to PPSA retention of title property (or to certain PPSA retention of title property). 6 Section 9 (definition of retention of title clause) Repeal the definition, substitute: retention of title clause: property is subject to a retention of title clause under a contract for the sale of property: (a) if the contract contains a provision the effect of which is that the seller retains title in the property until the purchase price, or another amount, has been paid in full; and (b) if the purchase price, or the other amount, as the case may be, has not been paid in full; and (c) to the extent that the contract does not give rise to a PPSA security interest in the property. Note: See also the definitions of PPSA security interest in section 51 and PPSA retention of title property in section 51F. 7 Section 9 Insert: secured creditor has the meaning given by section 51E. 8 Section 9 Insert: secured party has the meaning given by section 51B. 9 Section 9 Insert: security interest has the meaning given by section 51A. 10 After Division 6 of Part 1.2 Insert: Division 6A—Security interests 51 Meaning of PPSA security interest In this Act: PPSA security interest (short for Personal Property Securities Act security interest) means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies, other than a transitional security interest within the meaning of that Act. Note 1: The Personal Property Securities Act 2009 applies to certain security interests in personal property. See the following provisions of that Act: (a) section 8 (interests to which the Act does not apply); (b) section 12 (meaning of security interest); (c) Chapter 9 (transitional provisions). Note 2: For the meaning of transitional security interest, see section 308 of the Personal Property Securities Act 2009. 51A Meaning of security interest In this Act: security interest means: (a) a PPSA security interest; or (b) a charge, lien or pledge. 51B Meaning of secured party In this Act: secured party, in relation to a security interest, means: (a) if the security interest is a PPSA security interest—a secured party within the meaning of the Personal Property Securities Act 2009; or (b) if the security interest is not a PPSA security interest, but consists of a charge, lien or pledge in relation to the property—a chargee, lienee or pledgee in relation to the charge, lien or pledge. Note: Security interests are either PPSA security interests, or charges, liens or pledges (see section 51A). 51C Meaning of circulating security interest In this Act: circulating security interest means a security interest that is: (a) a PPSA security interest, if: (i) the security interest has attached to a circulating asset within the meaning of the Personal Property Securities Act 2009; and (ii) the grantor (within the meaning of that Act) has title to the asset; or (b) a floating charge. Note: Security interests are either PPSA security interests, or charges, liens or pledges (see section 51A). 51D Meaning of possessory security interest In this Act: possessory security interest, in relation to property, means a security interest that is: (a) a PPSA security interest in the property that is perfected by possession or control, within the meaning of the Personal Property Securities Act 2009; or (b) a lien or a pledge in relation to the property. Note: Security interests are either PPSA security interests, or charges, liens or pledges (see section 51A). 51E Meaning of secured creditor In this Act: secured creditor of a corporation means a creditor of the corporation, if the debt owing to the creditor is secured by a security interest. 51F Meaning of PPSA retention of title property Definition (1) Property is PPSA retention of title property (short for Personal Property Securities Act retention of title property) of a corporation if: (a) the property is personal property; and (b) the property is used or occupied by, or is in the possession of, the corporation; and (c) the corporation does not have title to the property; and (d) a PPSA security interest is attached to the property, within the meaning of the Personal Property Securities Act 2009; and (e) the corporation is the grantor in relation to the PPSA security interest, within the meaning of that Act. Examples: The following personal property is PPSA retention of title property if a PPSA security interest attaches to the property by virtue of the transaction concerned, and the grantor is a corporation: (a) property that is the subject of an agreement to sell subject to retention of title, or a hire purchase agreement, that secures the payment or performance of an obligation (see subsection 12(2) of the Personal Property Securities Act 2009); (b) property that is the subject of a lease, or a consignment agreement, that secures the payment or performance of an obligation (see subsection 12(2) of the Personal Property Securities Act 2009); (c) goods that are the subject of a commercial consignment (see subsection 12(3) of the Personal Property Securities Act 2009); (d) goods that are leased or bailed under a PPS lease (see subsection 12(3) of the Personal Property Securities Act 2009). References to property of a corporation (2) A reference in this Act to the property of a corporation does not include a reference to any PPSA retention of title property of the corporation, unless provided otherwise expressly or by necessary implication. Note: See also the definition of property in section 9. Part 2—Repeal of Chapter 2K (registration of charges) 11 Section 9 (paragraphs (a) and (b) of the definition of company) Repeal the paragraphs. 12 Paragraph 3.9 of the small business guide in Part 1.5 Omit "and a register of charges". 13 Paragraph 3.9 of the small business guide in Part 1.5 Omit "—1302", substitute ", 1301". 14 Paragraph 3.11 of the small business guide in Part 1.5 Repeal the paragraph. 15 Paragraph 4.4 of the small business guide in Part 1.5 (table item 2) Omit ", 1302". 16 Paragraph 4.4 of the small business guide in Part 1.5 (table item 6) Repeal the item. 17 Subsection 168(1) (note 1) Repeal the note. 18 Chapter 2K Repeal the Chapter. 19 Paragraph 283DA(d) Repeal the paragraph. 20 Section 553E Omit "and to section 279". 21 Paragraph 601BC(6)(c) Repeal the paragraph. 22 Subsection 601BC(6) (note) Repeal the note. 23 Paragraphs 601BK(1)(a) and (b) Repeal the paragraphs, substitute: (a) set up the register required by section 168; and (b) include in the register the information that is required to be included in the register and that is available to the company on registration; and 24 Subsection 601BM(2) Omit "and sections 263, 266 and 276 set out", substitute "sets out". 25 Paragraphs 601CB(d) and 601CE(e) Repeal the paragraphs. 26 Section 1302 Repeal the section. 27 Section 1446 Repeal the section. Part 3—Charges and chargees Division 1—Specific amendments 28 Subparagraph 283BF(4)(c)(ii) Omit "security or charge", substitute "security interest". 29 Subsection 420B(1) Repeal the subsection, substitute: (1) On the application of a managing controller of property of a corporation, the Court may by order authorise the controller to sell, or to dispose of in some other specified way, specified property of the corporation, even though it is subject to a security interest (the prior security interest) that has priority over a security interest (the controller's security interest) in that property that the controller is enforcing. Note: The heading to section 420B is altered by omitting "charge" and substituting "security interest". 30 Paragraphs 420B(2)(b) and (d) Omit "holder of the prior charge", substitute "secured party in relation to the prior security interest". 31 Subsection 420B(3) Omit "holder of the prior charge", substitute "secured party in relation to the prior security interest". 32 Paragraph 434B(3)(b) Omit "holder of the charge", substitute "secured party in relation to the security interest". 33 Subsection 434B(5) Omit "holder of the charge", substitute "secured party". 34 Subsection 436C(1) Repeal the subsection, substitute: (1) A person who is entitled to enforce a security interest in the whole, or substantially the whole, of a company's property may by writing appoint an administrator of the company if the security interest has become, and is still, enforceable. (1A) Subsection (1) applies in relation to a PPSA security interest only if the security interest is perfected within the meaning of the Personal Property Securities Act 2009. Note: The heading to section 436C is altered by omitting "Chargee" and substituting "Secured party". 35 Division 7 of Part 5.3A (heading) Repeal the heading, substitute: Division 7—Rights of secured party, owner or lessor Subdivision A—General 441 Application of Division Except as expressly provided, nothing in this Division limits the generality of anything else in it. 36 Section 441A Repeal the section, substitute: Subdivision B—Property subject to security interests 441AA Application of Subdivision—PPSA security interests This Subdivision only applies in relation to the enforcement of a PPSA security interest if the security interest is perfected, within the meaning of the Personal Property Securities Act 2009, at the time the enforcement starts. 441A Secured party acts before or during decision period Scope (1) This section applies if: (a) the whole, or substantially the whole, of the property of a company under administration is subject to a security interest; and (b) before or during the decision period, the secured party enforced the security interest in relation to all property (including any PPSA retention of title property) of the company subject to the security interest, whether or not the security interest was enforced in the same way in relation to all that property. (2) This section also applies if: (a) a company is under administration; and (b) the same person is the secured party in relation to each of 2 or more security interests in property (including PPSA retention of title property) of the company; and (c) the property of the company (the secured property) subject to the respective security interests together constitutes the whole, or substantially the whole, of the company's property; and (d) before or during the decision period, the secured party enforced the security interests in relation to all the secured property: (i) whether or not the security interests were enforced in the same way in relation to all the secured property; and (ii) whether or not any of the security interests was enforced in the same way in relation to all the property of the company subject to that security interest; and (iii) in so far as the security interests were enforced in relation to property of the company by a receiver or controller appointed for the purposes of Part 5.2 (whether under an instrument relating to the security interest or a court order)—whether or not the same person was appointed in respect of all of the last‑mentioned property. Power of enforcement by secured party, receiver or controller (3) Nothing in section 437C, 440B, 440F or 440G, or in an order under subsection 444F(2), prevents any of the following from enforcing the security interest, or any of the security interests: (a) the secured party; (b) a receiver or controller appointed for the purposes of Part 5.2 (whether under an instrument relating to the security interest or a court order, and even if appointed after the decision period). (4) Section 437D does not apply in relation to a transaction or dealing that affects property of the company and is entered into by: (a) the secured party in the performance or exercise of a function or power as secured party; or (b) a receiver or controller mentioned in paragraph (3)(b) of this section, in the performance or exercise of a function or power as such a receiver or controller. 37 Section 441C Repeal the section, substitute: 441C Security interest in perishable property Scope (1) This section applies if perishable property of a company under administration is subject to a security interest. Power of enforcement by secured party, receiver or controller (2) Nothing in section 437C or 440B prevents any of the following from enforcing the security interest, so far as it is a security interest in perishable property: (a) the secured party; (b) a receiver or controller appointed for the purposes of Part 5.2 (whether under an instrument relating to the security interest or a court order, and even if appointed after the decision period). (3) Section 437D does not apply in relation to a transaction or dealing that affects perishable property of the company and is entered into by: (a) the secured party in the performance or exercise of a function or power as secured party; or (b) a receiver or controller mentioned in paragraph (2)(b) of this section, in the performance or exercise of a function or power as such a receiver or controller. 38 Subsection 441D(3) Omit "chargee's", substitute "secured party's". Note: The heading to section 441D is altered by omitting "chargee etc. in relation to charged" and substituting "secured party etc. in relation to secured". 39 Section 441E Omit "a charge", substitute "an agreement or instrument under which a security interest is created or arises". Note: The heading to section 441E is altered by omitting "charge" and substituting "security agreement etc.". 40 After section 441E Insert: 441EA Sale of property subject to a possessory security interest Scope (1) This section applies if: (a) a company is under administration; and (b) property of the company is subject to a possessory security interest; and (c) the property is in the possession of the secured party; and (d) the secured party sells the property. Distribution of proceeds of sale (2) The secured party is entitled to retain proceeds of the sale as follows: (a) if the net proceeds of sale equals the debt secured by the possessory security interest—the secured party is entitled to retain the net proceeds; (b) if the net proceeds of sale exceeds the debt secured by the possessory security interest—the secured party is entitled to retain so much of the net proceeds as equals the amount of the debt secured by the security interest, but must pay the excess to the administrator on behalf of the company; (c) if the net proceeds of sale fall short of the debt secured by the possessory security interest—the secured party is entitled to retain the net proceeds. Subdivision C—Property not subject to security interests 441EB Scope of Subdivision This Subdivision does not apply in relation to the enforcement of a right, or the performance or exercise of a function or power, if the enforcement, performance or exercise is authorised by (or because of) a transaction or dealing that gives rise to a security interest in the property concerned. Example: An example of a transaction or dealing in relation to which this Subdivision does not apply because of this section is a commercial consignment of personal property. Such a transaction gives rise to a PPSA security interest because of section 12 of the Personal Property Securities Act 2009. The consigned property is PPSA retention of title property of the company (see sections 51F and 435B). Note: Subdivision B (property subject to security interests) may apply in relation to transactions or dealings to which this Subdivision does not apply because of this section. For example, Subdivision B would apply in relation to a commercial consignment of personal property, because such a transaction gives rise to