PPSA Priorities – Who, When and Why?

Commercial

minutes reading time

DATE PUBLISHED: July 27, 2022

key takeaways

  • There are 4 key factors you need to consider when looking at a PPSR search, including whether the search is correct, the timing of the registration, what collateral was covered in the registration, and whether or not the security interest is a PMSI. 
  • Other relevant factors such as the PPSA's limitations and who can take the property free from a security interest can determine who can deal with the personal property and who can take possession. 

PPSA priorities – easy, right?

In theory, PPSA priorities seem simple, as 'first in time' prevails where there are multiple registrations in the same collateral/personal property. However, things aren't always as simple as they seem. This article looks to provide some guidance on the key things you should keep in mind when looking at a PPSR search and how to understand what they mean.


Factors determining priority

Adopting the view of first in time prevails can be detrimental to your or your client's position, so it's important to scrutinise search results to determine:

1

Is the search correct?
  • Has the search been undertaken on the correct entity, using the correct details?
  • Undertaking a search on the incorrect entity or not using the details required by the PPSA and the regulations may produce an inaccurate result. You/your client could make costly mistakes relying on inaccurate information

2

TIMING OF THE REGISTRATION
  • When was the interest registered? Is it within the timeframes required under the PPSA and/or the Corporations Act? If not registered within the required timeframes, the secured party runs the risk of the security interest vesting in the company and other interests in the same collateral taking priority.
  • What is the timing of competing registrations in the same collateral? Were they registered within the required time frames (e.g. to secure PMSI priority)? How does the timing of the registrations fit within the time for registration of your/your client's security interest?

Just because the statutory time limits may have passed does not mean that you cannot register the security interest. Instead, you just run the risk of losing priority or having the interest vesting in the company.

3

What collateral is covered in the registration, and does it cover more or less than the actual security interest?
  • Registrations should reflect the security interest which has been granted.
  • But because the PPSR is just a notice board, you can generally have broader registrations – you just have to substantiate your interest should anyone ask for details of the registration/the granting of the security interest.
  • Does the registration cover collateral/personal property which the secured party provides from time to time (i.e. multiple supplies)?

A secured party must have a belief on reasonable grounds that the secured party is (or will become) a secured party in relation to the collateral.

  • Does the registration cover collateral/personal property which is provided by the secured party from time to time (i.e. multiple supplies)?

4

Is the security interest a PMSI?
  • This is relevant to the fact that it can mean that a security interest will take higher priority than an earlier registration on the PPSR.
  • It is a defect in registration if the registration indicates that the security interest is a PSMI (to any extent) and the security interest is not a PMSI (to any extent). The security interest is ineffective where this defect exists.

Other relevant matters

Several other factors determine who can deal with personal property and who can take possession, etc. These include determining who can take the collateral free of another security interest.

Who can take the property free from a security interest?
  • Rules for unperfected security interests;
  • Incorrect or missing serial numbers – the PPSA sets out what collateral must be described by serial number;
  • Rules for motor vehicles – this also turns on who is supplying the vehicle;
    Ordinary course of business – needs to have an understanding of the seller's business and whether the rules apply;
  • Special rules for personal, domestic or household property.
Limitations of the PPSA

There are a number of carve-outs from the PPSA that aren't afforded the protections of the PPSA but do have other protection (e.g. under other legislation). Care should be taken to consider the other interests that may arise in respect of personal property and whether third parties have rights that may not be subject to the PPSA.

For example, liens, charges or interests which arise or are provided for under a law of the Commonwealth, a state or a territory unless the person who owns the property has agreed to the interest. Also, an interest provided by:

  • The creation or transfer of an interest in land; 
  • An interest in a fixture – which is relevant if considering registering interests under a lease;  or
  • A transfer of present or future remuneration.


conclusion

It's important that you consider the above factors when looking at a PPSR search. Though the priority of registered security interests may at first appear to be simple or straightforward, merely taking the first in time prevails view can have adverse outcomes for you or your client.

get in touch with us!

McInnes Wilson Lawyers can assist with all your PPSA and PPSR queries and advice, including:

  • Reviewing terms and conditions of trade, supply agreements and other contracts with customers:
    • To make sure they are up to date;  and
    • Check the security interests that you or your client may have, which should be registered on the PPSR;
  • Advising on registration of security interests, including what can and cannot be registered on the PPSR;
  • Providing training on registering security interests on the PPSR; and
  • Registering security interests so you or your client can focus on operating the business as usual.


If you require any assistance or have any questions,  please fill out the enquiry form below and mention this article for an obligation-free appointment.

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