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Personal Property (the bundle of rights) - Coggle Diagram
Personal Property (the bundle of rights)
Pure personalty
Choses in action
intangible physical property
IP
Shares
Goodwill
Choses in possession
movable physical objects
Chattels real (leasehold interest)
Personal Property Securities Act 2009
(Cth)
Regime for regulation and recognition of security interests over PERSONAL PROPERTY in Australia
Excludes certain property
PPSA s 8
Creates security interests in property
Sale of Goods Act
Four steps are required for security interest over collateral to take priority
the collateral is "personal property"
PPSAS s 10
means property other than:
a) land; or
b) a right, entitlement or authority that is:
granted by the goverment
there is a valid security interest over the property
PPSA s 12(1)
a security interest means an interest in personal property provided for by a transaction that, in substance, secures payment or performance of an obligation (without regard to the form of the transaction
An instrument which constitutes a security interest: s 12(2) PPSA
a fixed charge
a floating charge
a chattel mortgage
a conditional sale agreement
a hire-purchase agreement
a pledge
a trust receipt
a consignment
a lease of goods
an assignment
a transfer of title
a flawed asset arrangement
the security interest "attaches" to the underlying collateral
PPSA s 19
(1) A security interest is enforceable against a grantor in respect of particular collateral only if the security interest has attached to the collateral.
(2) A security interest attaches to collateral when:
(a) the grantor has rights in the collateral, or the power to transfer rights in the collateral to the secured party; and
(b) either
(i) value is given for the security interest; or
(ii) the grantor does an act by which the security arises
the security interest is perfected
The Methods of perfection s 21 provides for registration, possession and control
Perfection by registration PPSA s 150, 151
Lodgment of a financial statement to PPSR
Perfection by possession
Actual or apparent possession
PPSA s 24
Knauf Plasterboard Pty Ltd v Plasterboard West Pty Ltd
Perfection by control
refers to certain types of collateral classes
PPSA pt 2.3
exercising control of something intangible such as a bank account or shares
Continuous Perfection PPSA s 56
(1) a security interest is continuously perfected after a particular time if the security interest is, after that time, perfected under this Act at all times
(2) A security interest may be continuously perfected after a particular time even if, after that time, it is perfected in 2 or more different ways
(a) at any particular time; or
((b) at different times
Priority Rules
Earlier perfected interest VERSUS later unperfected interest = perfected interest prevails: s 55(3) PPSA
Earlier perfected interest VERSUS later perfected interest = interest that arose first prevails: S 55(4) PPSA
Earlier unperfected interest VERSUS later unperfected interest = interest that arose first prevails: s 55(2) PPSA
Earlier unperfected interest VERSUS later perfected interest = perfected interest prevails: s 55(3)
Enforcement
Rights of secured parties
PPSA ss 123, 128
seizure
disposal
Duties of security holders
PPSA ss 111, 131, 127
s 111 All rights, duties and obligations must be exercised and discharged:
(a) honestly
(b) in a commercially reasonable manner
s 131 A secured party who disposes of collateral under s 128 owes a duty to any other person with a security interest in the collateral to exercise reasonable care
(a) to obtain at least market value
(b) to obtain the best possible price at time of disposal, having regard to the circumstances
s 127 If at any time while collateral is seized by a secured party for the purposes of enforcement, another secured party has a security interest that is higher priority that the enforcing party then the section applies.
The higher priority may give notice to the enforcing party, requiring the enforcing party to give the higher priority party possession of the seized collateral