Personal Property Securities (Corporations and Other Amendments) Act 2010 (96 of 2010)

Schedule 2   Personal Property Securities Act 2009

Part 1   Specific amendments

110   After section 267

Insert:

267A Vesting in grantor of security interest that attaches after winding up etc.

Vesting of security interest

(1) A security interest vests in the grantor when it attaches to the collateral if:

(a) paragraph 267(1)(a) applies in relation to the grantor; and

(b) before the time (the critical time ) mentioned in paragraph 267(1)(b), the grantor enters into a security agreement with the secured party that provides for the secured party to take a security interest in collateral from the grantor; and

(c) at the critical time:

(i) the security interest has not attached to the collateral; and

(ii) there is no registration that would perfect the security interest when it attaches to the collateral; and

(d) after the critical time, the security interest attaches to the collateral; and

(e) at the time of attachment:

(i) the security interest is unperfected; or

(ii) if the security interest is perfected, it is perfected only by a registration for which the registration time is after the critical time.

Note: This section does not apply to certain security interests (see section 268).

Property acquired for new value without knowledge

(2) Subsection (1) does not affect the title of a person to personal property if:

(a) the person acquires the personal property for new value from a secured party, from a person on behalf of a secured party, or from a receiver in the exercise of powers:

(i) conferred by the security agreement providing for the security interest; or

(ii) implied by the general law; and

(b) at the time the person acquires the property, the person has no actual or constructive knowledge of the following (as the case requires):

(i) the filing of an application for an order to wind up the company;

(ii) the passing of a resolution to wind up the company;

(iii) the appointment of an administrator of the company under section 436A, 436B or 436C of the Corporations Act 2001;

(iv) the execution of a deed of company arrangement by the company.

Note: Section 296 deals with the onus of proving matters under this subsection.