Safe Guarding your Business under the Personal Property Securities Act

The Personal Property Securities Act (PPSA), which was first introduced two years ago by the previous Labour government, is now fully operational.

With the PPSA comes the Personal Property Securities Register (PPSR). This legislation represents a major change to commercial law in Australia. In fact, a number of people have made the comment ‘Title is no longer King’.

The change in legislation means that businesses need to consider every transaction to determine whether it is necessary to register that transaction on the Personal Property Securities Register. In this podcast, I am going to try and explain to you how this legislation operates, and its possible effect on your business.

Firstly, the PPSR is a public register, where security interests over personal property may be registered and searched. For a small fee, anyone can use the PPSR, 24 hours a day, seven days a week. You can access the register at http://www.ppsr.gov.au/Pages/ppsr.aspx.

Personal property is defined as ‘all forms of property other than real estate’. This means that personal property includes a vast range of business property.

Types of transactions that might be caught up under this legislation?

Items such as:

• sale of goods under consignment;
• sale of goods with serial numbers – this includes motor vehicles but it could include boats, aeroplanes, trailers that are attached to motor vehicles;
• supply of goods utilising hire purchase agreements;
• supply of goods utilising lease agreements;
• supply of goods including Retention of Title agreements, which are commonly known as ‘Romalpa Clauses’ (but ‘Romalpa Clauses’ drafted prior to 31 January 2012 are probably not sufficient protection under this legislation);
• goods stored in someone else’s possession – this is the area on which most legal action has already been taken during the transitional stage of this legislation over the last two years. Therefore, businesses need to be looking at it very closely;
• goods attached to other goods, such as putting a new motor into a boat;
• equipment renters;
• livestock on agistment;
• share farmers for security over a crop;
• temporary work on construction sites, covering items like formwork, scaffolding and other plant and equipment;
• tradesmen’s plant and equipment;
• intangible property such as intellectual property licences;
• heavy equipment such as cranes, scaffolding, machinery, plant and equipment that is on someone else’s property;
• art work, sculptures that are on commercial consignment to an art gallery, dealers etc.;
• automotive spare parts dealers;
• second hand businesses; and
• pawn brokers.

This is a very wide group and identifies to you that there has been significant changes in commercial law, which will affect most people operating a business. (continued in podcast transcript)