The Personal Property Securities Register (“PPSR”) has operated for several years, but defective registrations remain a (sometimes serious) problem for many of those looking to protect their interests. Unlike with real property, the PPSR has no title registrars who will requisition faulty forms. The responsibility for noticing mistakes lies with the party attempting to protect their interests.
Simple typos are problematic, but with careful editing these can be avoided. This article will consider some of the more technical - but still common - mistakes people make when registering interests, and will provide solutions that will help avoid a loss of priority or even a loss of the interest itself.
Registering Out of Time
Registering promptly is vital to ensure no loss of priority occurs. In terms of priority, the time that registrations are made is more determinative than the time that agreements are entered into. An unregistered security interest arising in January will likely lose its priority to another security interest granted in June which is registered.
Beyond simply losing priority, however, with the PPSR there are certain time limits that must be complied with in order to protect security interests when the grantor has an insolvency event. When a company enters into administration or liquidation, the secured party’s security interest will vest in the company immediately before this insolvency event occurs unless the security interest has been perfected and, if the perfection is by registration alone, the registration was made within time.
To effectively protect against losing its rights in the secured property, interests should be registered as soon as possible, but no later than 20 days after the interest arises (e.g. the date of the agreement). Registrations made after this date will fall foul of s588FL of the Corporations Act 2001 and will not be effective if the grantor has an insolvency event within six months after the registration date. Otherwise perfected registrations will be ineffective if they do not comply with this requirement, so prompt registration is integral to protect security interests.
Altering a Registration after an Insolvency Event
Changes can be made to existing registrations, but making changes to an ineffective registration after an insolvency event occurs may not prevent the property from vesting with the grantor, as the vesting occurs immediately before the insolvency event. The relevant registrations are those that existed (in the form they existed in) at this time.
Insolvency events can often come as a surprise to creditors and secured parties, so the only way to effectively protect against these adversely effecting your interests is to proactively ensure that your registrations are made in time and contain the correct details.
Incorrect Grantor Identifier
When registering your interests against an entity, it is critically important that you ensure you are registering against the correct identifier. Part 1.3 in Schedule 1 of the Personal Property Securities Regulation 2010 (“the Regulation”) contains a table that sets out the required identifier for each kind of security provider (ie. the grantor). If, for example, you are registering against a company, an ACN is required and an ABN will not be sufficient. This table is an essential tool in ensuring your registrations will be effective.
Essentially, if you have a registration against a grantor which is a company, and a search of the register using only the grantor’s ACN does not reveal a registration, that registration is ineffective. An otherwise perfected registration that identifies the grantor by, for example, an ABN where an ACN is required will not be enforceable. As with other defects, this creates a risk that the secured property will vest if administrators are appointed, or that other interests will take priority.
To avoid problems, when in doubt refer to the table in Part 1.3 of Schedule 1 of the Regulation and ensure all your registrations are made against the correct identifier for the grantee you are dealing with.
Incorrect PMSI Registrations
Purchase Money Security Interests (PMSI), are an effective tool for securing and obtaining priority for specific types of security interest (such as motor vehicle or equipment leases or retention of title supply arrangements), as these allow for a “super priority” which will trump other prior PPSR registrations. To get the benefit of these, however, there are some technical requirements which can cause hazards for secured parties.
First, consumer property will likely not require a PMSI registration as these interests are inherently commercial; the exception to this is if the property is serial-numbered. If the interest you are securing is not a PMSI, registering it incorrectly as one could cause your registration to be ineffective. For further details on what constitutes a PMSI refer to the PPSR website or consult a legal advisor.
Second, when creating a PMSI, it is essential that you select the correct box in the registration process as registrations cannot be amended retrospectively to make them a PMSI.
Third, different timing requirements apply to PMSIs as compared to other registrations, and even as compared to different kinds of PMSI. These depend upon the kind of secured property (collateral) involved, and whether or not it is inventory:
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Note that a failure to register within these timeframes will only lose the PMSI priority; it will not make the registration completely invalid.
Registering security interests on the PPSR is a technical endeavour, and there can be many costs associated with ineffective registrations, most significantly this could involve a loss of all interest in the secured property. To ensure that your interests are protected it is vital that your registrations are performed or overseen by someone with an understanding of the technical requirements to give effect to a security, and that you act promptly.