What All Businesses Should Be Doing During the COVID-19 Crisis to Protect Their Interests

Commercial

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DATE PUBLISHED: March 30, 2020

PPSR ACTION ITEMS FOR BUSINESSES TO PROTECT THEIR INTERESTS AT ALL TIMES (INCLUDING DURING THE COVID-19 CRISIS)

Some businesses are fortunate enough to be able to continue trading and operating during the COVID-19 crisis, whether it be by way of online business, operating a supply or distribution service to other businesses who are able to operate or are essential services.

With business owners’ attentions understandably elsewhere it can be easy to neglect or forget about some of the fundamental actions that business owners should take to protect their interests. This includes registering security interests on the Personal Property Securities Register (PPSR).

Ensuring that security interests are registered on the PPSR is particularly important with regard to:

  • meeting the timing requirements under the Personal Property Securities Act (PPSA) to secure priority of the security interest – these requirements have not changed and are not impacted by any of the Government announcements to-date;
  • meeting the timing requirements under the Corporations Act to secure priority of security interests - these have not changed and are not impacted by any of the Government announcements to-date;
  • enforcement of security interests – there have been no amendments to the PPSA resulting from the Government announcements to-date.

Accordingly business owners should continue to register their security interests on the PPSR within the prescribed timeframes, despite there being a focus on the changes to limits for statutory demands and creditor’s petitions and timing for bringing bankruptcy or insolvency proceedings.


THE SHIFT FROM CASH BUSINESS TO CREDIT

Businesses who have traditionally been a cash business and/or a face to face business may be experiencing a change in the way that they operate. For example, with a move to online ordering and more businesses requesting credit (to allow them time to pay invoices), business owners are faced with new and different risks than they have experienced and managed in the past.

If goods or services are not being paid for in cash or electronically at the time of delivery, businesses should:

  • review their terms and conditions of supply to make sure they are up to date, include the granting of security interests in respect of the goods supplied, the obligation of the customer to pay for the goods or services supplied, etc;
  • if goods are being provided on a retention of title basis, register a security interest on the PPSR;
  • if goods or services are being provided on credit and a security interest is granted in accordance with the terms and conditions of trade, register a security interest on the PPSR;
  • if the terms and conditions of trade include a charging clause over real property, register a caveat or other instrument over any relevant real property;
  • if there is a personal guarantee supporting the payment obligations of the customer and the guarantee includes the charging of personal property, register a security interest.


OPPORTUNITIES ARISING FROM THE STIMULUS PACKAGES

Changes to insolvency law which has brought in an effective moratorium on instigating insolvency proceedings may provide you with time to register an existing security interest on the PPSR now, and avoid the risk that security interest would vest in the grantor on their insolvency.

A review of your PPSR security registrations (or lack thereof) now may assist you with obtaining security for payment in the future.


HOW CAN WE HELP?

McInnes Wilson Lawyers can help protect your business by:

  • reviewing terms and conditions of trade, supply agreements and other contracts with customers;
  • advise on whether or not security interests have been granted by customers and what can and cannot be registered on the PPSR;
  • provide training on registering security interests on the PPSR;
  • registering security interests for you so you can focus on operating your business as usual.

McInnes Wilson Lawyers wants to work with you through this difficult time to ensure that you have the legal support and assistance needed.

We are also offering free 30 minute consultations with all existing and new clients to help deal with the effects of COVID-19 on their business. This includes being available during usual office hours for phone calls, video calls and emails (and, if permitted, face to face meetings whilst social distancing and adopting appropriate health and safety measures).

free covid-19 consultation

We are offering free 30 minute consultations with all existing and new clients to help deal with the effects of COVID-19 on their business.

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