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New RegimeThe 6 elements of the new regime:
1. Security Interest2. Collateral3. Attachment4. Enforceability5. Perfection6. Enforcement
Security InterestA “Security Interest” is:
an interest in relation to personal property provided for by a transaction that secures the payment or performance of an obligation
Deemed Security Interests The interest of a transferee in an account or chattel paper The interest of a consignor who delivers goods to a consignee under a consignment The interests of a lessor or bailor of goods under a PPS lease
CollateralThe personal property to which the “security interest”
applies, for the purpose of securing the payment or performance of an obligation, is called the “collateral”
Secured Party Grantor
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Collateral
AttachmentA security interest attaches to collateral when:
the grantor has rights in the collateral, or the power to transfer rights in the collateral to the secured party; and
either:-the secured party gives some value for the security interest; or-the grantor does an act by which the security interest arises
EnforceabilityA security interest is enforceable against a third party in respect of collateral if: the security interest is attached to the collateral; and:
the secured party possesses the collateral; the secured party has control of collateral; or the parties have entered into a security
agreement.
PriorityPriority, the general position is: a “perfected” security interest has priority over
an unperfected security interest
Priority between perfected interests in determined on a first-in-time basis
priority between unperfected interests is determined on a first-in-time basis
Exception to Priority: PMSIsPurchase Money Security Interest – the Super Priority
Include:- a security interest in collateral where securing all or
part of the purchase price - an interest under a PPS Lease
- an interest under a commercial consignment
PPSA & Real Estate
Abandoned goods under leases -
Security over Tenant’s fitout
Landlord contributions
Lease of fitted out premises
Security Deposits
The RegisterITSA estimated volumes of register activity per year
Registrations 1.1 million Amendments 0.25 million Cancellations 1 million Searches 6 million