Registration of PPSA ‘security interests’

Most who do business in the construction and infrastructure industries will have come across thePersonal Property Securities Act 2009 (Cth). Many will have found the Act cumbersome and counter-intuitive, and might have concluded that the benefits of registering security interests are outweighed by the inconvenience. Yet in distinct contrast to the PPSA’s complexity, the actual process of registering security interests which arise in construction projects is in fact, generally, straightforward and cheap.

Since the possible consequences of not registering can be severe (including loss of property to which a party has legal title) registration is then to be encouraged.

The PPSA and the construction industry (in brief)
The PPSA’s purpose is to provide a comprehensive registration system for security interests in personal property, including priority rules to resolve conflicting interests in security property where the party giving security becomes insolvent.

Numerous, often unanticipated, security interests arise in construction projects. Common examples where construction contracts create registerable security interests include:

  • Payment for goods which remains offsite;
  • ‘Retention of title’ clauses;
  • Temporary works;
  • ‘Step-in’ or ‘take work out of the hands’ rights; and
  • Retention money.

Registering a party’s security interest(s) in property connected with a construction project is a simple yet powerful way to protect its interests in that property which would otherwise be at risk.

The process of registration

The following observations can be made regarding the process of registration:

  1. Security interests are registered by completing a short, pro-forma online form summarising the transaction. The form is lodged electronically at http://www.ppsr.gov.au.
  2. Information which must be provided in the financing statement is brief, and includes the identity and contact details of the secured party and the party giving security, a short description of the security property, and the registration end date.
  3. It is not necessary to describe the nature of the security interest or how the interest arises, or to file copies of any agreement creating it. The aim of registration is not to communicate the terms of the agreement, but rather to alert searchers of the register to the possibility that someone else might have a security interest in the property.
  4. The property must be identified by:
    1. ‘type’ as either commercial or consumer property;
    2. reference to one of the ‘classes’ set out in the regulations, for example: aircraft, financial property, motor vehicles, watercraft, intangible property and ‘other goods’ (the electronic registration lists all these options; the appropriate option is selected by clicking on it); and
    3. a short description of the property.
  5. The PPSA permits ‘blanket registrations’. That is, if multiple security interests are created in a construction contract (which is the norm) the secured party might only need to complete one registration. A blanket registration capturing the whole of the security property is however, only possible if the property all falls into a single ‘class’.
    1. Example: the principal and contractor enter into an agreement in the form of a modified AS2124-1992 contract, to build commercial premises. Under the agreement, numerous security interests of the contractor arise in relation to, for example, unfinished works, plant and equipment and temporary works such as scaffolding on site. Despite the multiple security interests, only one registration is necessary to capture this property, which will be identified in the registration as ‘commercial property, other goods’.
  6. If the security interests attach to multiple classes of property, separate registrations should be made for each class.
  7. Consider the example given in the previous paragraph. Consider also however, that security interests of the contractor arise in relation to retention money, design drawings and vehicles. At least three registrations, in addition to the registration identified above (for ‘commercial property, other goods’), should be made, one each for: a) the retention money, described as ‘commercial property, financial property’, b) the design (intellectual property), described as ‘commercial property, intangible property’, and c) the vehicles, described as ‘commercial property, motor vehicles’.
  8. Advance registrations are permitted under the PPSA. In the above example, the contractor should not wait until the parties have entered into the agreement; instead it should register as soon as it reasonably believes that the parties will enter into the agreement.
  9. The cost of a single 25 year registration is at the time of writing $34.

If you have any queries or would like further information about this article, please contact David Palser dpalser@pageseager.com.au or Owen Davis odavis@pageseager.com.au.

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