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University of Technology Sydney Law Research Series |
Last Updated: 24 March 2017
RETENTION OF OLD TITLES: PRE-PPSA RETENTION OF TITLE
AGREEMENTS AND UNFAIR PREFERENCES
BY CHRISTOPHER
PEARCE[1]
The Personal Property Securities Act 2009 (Cth) introduced
significant and sweeping changes to the classic understanding of a
‘security interest’. Gone are the
days of merely charges or liens,
and in their place an expanded concept of what can constitute a security
interest. As the Act remains
in its infancy, questions continue to arise as to
its proper interpretation and operation. One such question which came before the
courts recently was the effect of pre-PPSA transactions –
particularly retention of title agreements or Romalpa clauses – and
their interaction with the unfair preference provisions of the Corporations
Act 2001 (Cth). This article will examine the two contrasting views reached
by the Victorian Supreme Court in Blakeley v Yamaha Music Australia Pty Ltd
and the Federal Court of Australia in Hussain v CSR Building Products
Limited.
I RETENTION OF TITLE AGREEMENTS AND THE PPSA
Under the
Personal Property Securities Act 2009 (Cth) (‘PPSA’),
retention of title agreements (“ROT’ agreements”) are
transactions which create a security interest,
provided such agreements
effectively secure payment or performance of an
obligation.[2] However, this has not
always been the case. Before the introduction of the PPSA, ROT agreements
or Romalpa clauses were a functional means of protecting the interests of
a seller for the relevant period between delivery of the goods to the
purchaser
and payment of the contract price for those
goods.[3] ROT agreements achieved an
outcome whereby the title of the goods would remain with the seller, despite
acts such as delivery that
would normally constitute a transfer of legal title.
Critically, as ownership remained with the seller, it provided protection in
the
instance of a purchaser’s insolvency as the failure to complete payment
for the goods prevented title passing from the
seller’s hands. However,
while a seller may have retained ownership over their goods, such agreements
were not considered to
provide them with an enforceable security interest. This
position was substantially changed following the introduction of the
PPSA. ROT agreements are now listed in s 12(2)(d) of the PPSA as
examples of arrangements that may amount to a security interest, provided
that they secure payment or performance in accordance with the requirements of s
12(1).
The elevation of ROT agreements to the status of security
interests under the PPSA creates a unique problem in the context of
unfair preference claims brought under s 588FA of the Corporations Act
(‘the Corporations Act’). While post-PPSA a
creditor with rights under a ROT agreement that was perfected for the purposes
of section 21 of the PPSA would undoubtedly hold a valid security interest, and
thereby a defence to an allegation of unfair preferences, the question
is less
clear with respect to such an interest holder who acquired their interest prior
to the PPSA. Do the creditors under these agreements have a secured
interest, or are they merely creditors who received more than they ought
to upon
winding up of the company? This paper discusses two recent cases which came to
opposite conclusions with respect to this
question. In Hussain v CSR Building
Products Limited (‘Hussain’), Justice Edelman in the
Federal Court concluded that these agreements were secured
interests,[4] while in Blakeley v
Yamaha Music Australia Pty Ltd (‘Blakeley’) Justice
Gardiner concluded that only ROT agreements entered into after the PPSA
took effect could be treated as security
interests.[5]
This paper will
begin by discussing the unfair preferences regime under the Corporations
Act, before proceeding to provide a detailed analysis of the differences in
reasoning provided in each of the two decisions. This paper
will then turn to
consider the merits of each decision, and whether either decision strikes an
appropriate balance between achieving
the PPSA’s goal of a
functional approach to securities while also complying with the unfair
preferences regime under the Corporations Act. Ultimately, this paper
argues the view that the decision in Blakeley represents the preferable
position. Justice Gardiner’s decision serves the dual purpose of
acknowledging the changing nature
of ROT agreements following the introduction
of the PPSA, while also respecting the way in which the Corporations
Act deals with those agreements in different ways depending upon the
particular circumstances.
II RETENTION OF TITLE AGREEMENTS AND
UNFAIR PREFERENCES
The elevation of ROT agreements to the status of
security interests under the PPSA creates a unique problem in the context
of unfair preference claims brought under s 588FA of the Corporations Act
(‘the Corporations Act’). When payments are made
by a company pursuant to a ROT clause, liquidators are able to rely upon the
provisions of the Corporations Act to claw back such payments if the
relevant agreement was not secured by some additional type of charge or other
security. Relevantly,
section 588FA of the Corporations Act provides that
payments made to a creditor will be unfair preferences and amount to a voidable
transaction, if the transaction would
produce a result whereby the creditor
received from the company, in respect of an unsecured debt, more than the
creditor would receive from the company if the debt were set aside. Prior to the
introduction of the PPSA ROT agreements would often fall foul of this
rule if they weren’t accompanied by some additional form of security, as
ROT agreements
did not previously bear the character of a security interest.
Importantly however, an unfair preference claim can be defeated by
a creditor if
they can establish that the relevant interest was in fact secured. The
Corporations Act defines a security interest in s 51A as including a
‘charge, pledge or lien’, and was amended in 2010 to also extend
“to a ‘security interest’
to which the PPSA
applies”.[6] Pursuant to the
Corporations Act, once a security interest within the meaning of s 51A
has been established, the creditor will be a ‘secured creditor’ for
the purposes of s 51E.
A BLAKELEY V AUSTRALIAN MUSIC PTY LTD
The decision of the Victorian Supreme Court in Blakeley argued but did not expressly hold that only ROT agreements which took effect after the introduction of the PPSA would provide a defence to an unfair preference claim.[7] Blakeley as liquidator of Australian Music Pty Ltd brought an unfair preferences claim against Yamaha for a number of payments totaling in excess of $3 million. Yamaha argued that it had a registered PPSA interest, in the form of an all-monies ROT clause, over all products supplied by them to the Plaintiff and the proceeds arising from their sale. Crucially, the liquidators faced a strike-out application from the Defendants to dismiss the proceedings on the basis that the debts were in fact secured, so the decision arrived at was not a final determination, but rather a question as to whether there was an arguable position that the agreements were secured.
In coming to his conclusion, Justice Gardiner noted that prior to the introduction of the PPSA, a ROT agreement gave the holder ownership of the goods and the right to take possession.[8] His Honour referred to the High Court’s decision in Associated Alloys,[9] which found that a reservation of title clause could not be registered as a charge under the (then) Corporations Act 1989 (Cth) as it would be ‘inconsistent with the will of the legislature’.[10] Yet, as Justice Gardiner went on to note, this position has since been modified by the express elevation of ROT agreements to the status of security interests under s 12(2)(d) of the PPSA (where the criteria in section 12(1) are satisfied). He also went further, and commented that a party receiving payment in respect of a pre-PPSA retention of title provision, would not be receiving a payment as a secured creditor, but rather in payment of an unsecured debt susceptible to being characterised as a preferential payment.[11]
In particular, his Honour noted that ROT agreements to secure repayment of the purchase price were a ‘statutory construct’ which fell under the category of Purchase Money Security Interests (“PMSIs”) in s 14 of the PPSA.[12] That provision provides that a ‘security interest taken in collateral, to the extent that it secures all or part of its purchase price’ will be a PMSI, and obtain super-priority under the provisions of Pt 2.6 Div 3 of the PPSA provided it complies with the relevant registration requirements. In his view, these agreements were only to have effect in respect of deals “which took place after the PPSA was introduced.”[13] Furthermore, his Honour concluded that PMSIs could only secure the unpaid purchase price of the stock itself, and not other debts owing to the creditor for other purposes.
On this basis, his Honour concluded (but did not hold), that it was arguable that the PPSA only operated prospectively, and did not purport to create any security interest over goods supplied pre-PPSA. Thus, a supplier who received payment in respect of a pre-PPSA ROT agreement did so as an unsecured creditor, with the consequence that the payment was capable of characterisation as an unfair preference.[14]
B HUSSAIN V CSR BUILDING PRODUCTS LIMITED
Decided only a
few days after, and without any reference to the decision in Blakeley,
Justice Edelman in the Federal Court adopted an opposing view point in
Hussain to the very same
question.[15] His Honour held that
the PPSA had the effect of modifying the concept of a security interest
under the Corporations Act, with the effect that a pre-PPSA ROT
agreement provided a ‘secured debt’ sufficient to defeat an unfair
preferences claim.
In Hussain, the liquidators of a company
named FPJ brought an unfair preference claim against CSR. CSR had supplied FPJ
with building goods
and materials on a number of occasions, subject to a credit
agreement entered into in 2010. That agreement provided that FPJ “agree
that any goods... receive(d) remain the property of CSR until CSR receives
payment for them”. The total debt of $153,554 was
comprised of 18 separate
transactions; each repaid within different 45-day repayment windows. The
liquidators brought a claim against
CSR on the basis that the payments for those
goods amounted to unsecured debts and therefore unfair preferences. However,
akin to
the position in Blakeley, CSR contended that those debts were
secured debts by virtue of the ROT clause.
In considering whether CSR
had a relevant ‘secured debt’, Justice Edelman first noted that s
588FA(1)(b) of the Corporations Act did not define the meaning of an
‘unsecured debt’. However, drawing upon the decision in
Romalpa,[16] his Honour
concluded that there was no uncertainty as to whether a ROT agreement could in
fact be described as a security. His Honour
pointed to amendments introduced in
2010, which modified the definition of a ‘security interest’ under
the Corporations Act, consistent with the provisions of the
PPSA.[17] Relevantly, Justice
Edelman drew from the words of the second reading speech of the Amendment Act,
where the responsible Minister,
Dr Craig Emerson, noted that the amendment would
“ensure the Corporations Act treats property provided by a supplier on
a ‘retention of title’ basis as secured property”, and
that “treating such supplies as secured property is consistent with the
PPS scheme’s approach of treating transactions that in substance
secure
payment or performance of an obligation the same way, regardless of the form of
the transaction.”[18]
Yet, the definition of a ‘security interest’ under the
Corporations Act does not extend to ‘transitional security
interests’ under the PPSA. Relevantly, transitional security
interests are defined under s 308 of the PPSA as being those interests
provided for by a ‘transitional security agreement’ to which the Act
would have applied.[19] Given the
timing of CSR’s interest, Justice Edelman examined whether it ought
properly to be considered a ‘transitional
security interest’, which
would be beyond the scope of s 51A of the Corporations Act. As
CSR’s credit agreement came into force on 26 September 2010, it was in
force prior to the relevant commencement date of 30
January 2012 provided for by
the PPSA. In accordance with ss 310(d) and 322(1) of the PPSA, the
credit agreement acquired the character of a ‘transitional security
interest’ on that date, and, consequently, was
excluded by s 51A of the
Corporations Act.
However, in his Honour’s view, this did
not prevent the interest from “negating” the unsecured nature of
FPJ’s
debts.[20] His Honour
pointed to the definition of a ‘security interest’ under s 51A of
the Corporations Act which was amended to extend to ‘PPSA
security interests’. Such interests are defined in s 51 of the
Corporations Act as meaning those to which the PPSA applies apart
from transitional security interests. Consequently, as s 12(2) of the PPSA
explicitly refers to ROT agreements as examples of arrangements that may be
in substance security interests, he concluded that the Corporations
Act also embraced such
agreements.[21]
In addition,
his Honour was persuaded by a number of other provisions within the
Corporations Act that treat ROT agreements as tantamount to security
interests. For example, sections 442CB and 442CC permit an administrator the
power to dispose of property and to recover the proceeds from the sale of that
property in situations where it is subject to a security
interest or ROT clause.
Additionally, section 9 of the Corporations Act defines ‘retention
of title clauses’ to extend to debts subject to such clauses. Ultimately,
it was concluded that the
ROT clause gave CSR a secured interest, providing a
defence to the unfair preferences claim.
III EXPLAINING THE DIFFERENT OUTCOMES
This section of the paper
will examine the basis for the opposing outcomes in Blakeley and
Hussain. The contrasting outcomes in each of these cases demonstrate the
key importance of the individual judge’s approach to the PPSA as a
whole, and the extent to which the particular judge is willing to embrace the
Act’s functional approach to favouring form
over
substance.[22] This is particularly
clear in Justice Edelman’s decision in Hussain, which
explicitly discusses the Act’s intention, and thereafter proceeds to
focus upon the substantive effect of the relevant ROT clause.
In doing so
Justice Edelman’s discussion examined the nature of CSR’s ROT
clause; before concluding that it was a transaction
which, in substance,
secured payment or performance as required by s 12 of the
PPSA.[23] It was this
approach which led to his conclusion that the unfair preferences provisions of
the Corporations Act were not intended to apply to any transaction
which operated as a security interest.
In comparing this approach to the decision in Blakeley, it is crucial to bear in mind that Justice Gardiner was dealing with an application for dismissal; an application which only required the Court to conclude whether there was an arguable case or not. Thus, the Victorian Supreme Court’s conclusion did not amount to a final determination on the issue of pre-PPSA security interests, but, rather, a conclusion that there was an arguable case that such interests are not subject to the unfair preferences scheme. Nevertheless, Justice Gardiner’s decision does appear to favour drawing a line in the sand between pre-PPSA and post-PPSA security interests in the context of unfair preferences.[24] Arguably this dichotomy amounts to a rejection of Justice Edelman’s holistic view of the notion of a security interest, instead electing to treat pre-PPSA security interests as bearing an entirely different character to their post-PPSA counterparts. Although his Honour does acknowledge the changing character of ROT agreements under the PPSA, he readily adheres to the provisions of the Corporations Act in determining that pre-PPSA ROT agreements do not provide a creditor with a ‘secured debt’. However, again, it is noted that his Honour acknowledges that the question is ‘complex’ and ‘requires a good deal more evidence and analysis for a determination to be made’ on the issue.[25]
IV THE PREFERABLE APPROACH
Although each decision is not
without its own merits, this paper argues that Justice Gardiner’s approach
strikes a more appropriate
balance between the changing role of PPSA
security interests and the unfair preference provisions of the
Corporations Act.
While Justice Edelman clearly appreciated the
need to recognise the functional approach to security interests in a
post-PPSA age, arguably his attempt to give effect to this amounted to a
circumvention of the provisions of the Corporations Act. His
Honour’s conclusion was based upon the reasoning that the formation of the
relevant security agreement, being a security
interest arising under or provided
for by a ‘transitional security interest’, did not prevent it
from ‘negating’ the unsecured nature of the
debt.[26] Yet, despite his Honour
acknowledging that sections 51 and 51A of the Corporations Act bar the
Act from extending to ‘transitional security interests’, his
conclusion produced that exact result. The process
of identifying additional
provisions within the Corporations Act may have supported his conclusion
that ROT agreements now bear the character of security interests, but it was
unable to provide a
satisfactory reason as to why such a conclusion should
overcome the express exclusion against ‘transitional security
interests’
in s 51A of the Act. Further, while the amendments in 2010 were
expressed as an attempt to harmonise the provisions of both the PPSA and
the Corporations Act, and to favour substance over form there was no
suggestion that such an approach was to override the express provisions of the
Corporations Act.[27]
Although Justice Gardiner’s approach may appear less willing to
embrace the functional approach of the PPSA, it does so in in a way which
does no offence to the provisions of the Corporations Act. His Honour
recognised that ROT agreements would, if entered into after the PPSA,
now create a security interest, but was not willing to endow pre-PPSA
ROT agreements with the same
attributes.[28] It was also noted
that had any further supplies been made after the commencement date of the
PPSA the position would have altered, and those supplies which would have
been subject to the same ROT agreement would have amounted to
a security
interest for the purposes of s 51A of the Corporations Act. However, on
the facts of Blakeley no subsequent supply occurred, meaning the relevant
transactions were all subject to the original all-monies retention of title
clause
and were thus made pursuant to a ‘transitional security
interest’. This conclusion accords not only with the terms of
sections 51
and 51A of the Corporations Act but also the Act’s treatment of
PPSA ROT property in general.
Although Justice Edelman’s
approach did identify additional provisions within the Corporations Act
which treat ROT agreements as security interests, he omitted elements of the
Act which distinguish between when property subject to
a ROT agreement will be
considered ‘property of the company’. Importantly, s 51F of the
Corporations Act defines ‘PPSA retention of title
property’, as personal property used or in possession of the corporation
over which the corporation is yet
to acquire title. Crucially, the provision
provides that any additional references to the ‘property of the
company’ will
not apply to ‘retention of title property’
unless provided otherwise expressly or by necessary
implication.[29] One such provision
appears within Pt 5.3A of the Act and deals with the process of liquidation.
Section 435B provides that for the purposes of that part, ‘property’
of the company includes ‘PPSA retention of title property’.
The effect of these provisions, in this author’s view, is to maintain a
strict separation
between the treatment of PPSA security interests in
certain circumstances. Thus, rather than the 2010 Amendments being read as
favouring an unwavering embrace of
the functional approach to the PPSA,
such an approach can only be maintained where the relevant provision permits
such an interpretation.
Sections 51F and 435B provide an example of
where such an interpretation is not only permitted but expressly stated. As
Duggan and
Brown note, the introduction of the ‘PPSA retention of
title property’ definition was to protect against the changing nature of a
PPSA ROT agreement.[30] As
PPSA ROT agreements are now treated as functioning as a security
interest, the effect of the agreement has altered somewhat. Prior to the
PPSA, a contract for supply of goods with a ROT clause would result in
delivery to the buyer before payment was made and before title had
passed,
thereby granting the buyer lawful possession. In the absence of a clause in the
supply contract that specified something
different, the Sale of Goods
Act 1923 (NSW) would provide that title was to pass when the parties
intended it to, which would be upon
delivery.[31] Under the PPSA,
the interest that the buyer holds in possessing the goods provides a proprietary
interest in the goods sufficient for it to be capable
of granting a security
interest in the property, and the inclusion of a retention of title clause makes
the transaction one that
in substance secures payment of the price, and,
therefore, a security interest for the purposes of section 12(1) of the PPSA.
Thus, the inclusion of a specific definition for ‘PPSA
retention of title property’ was to confirm that such arrangements
could function as security interests under the Act, thereby
protecting the
property from being distributed to other creditors in the insolvency process.
The manner by which these provisions
treat PPSA ROT agreements
differently in certain circumstances would also suggest that the 2010
Amendments, although expressed to favour the
functional approach of the
PPSA, were not intended to override express provisions of the Act. Thus,
as sections 51 and 51A expressly prohibit the definition of a ‘security
interest’ from encompassing transitional ROT security agreements,
the
provisions should have been interpreted as such irrespective of how the
agreements are treated elsewhere within the Corporations Act.
V A BROADER APPLICATION
Although the determinations made in
each of the cases focused upon transitional ROT clauses, these decisions have
the potential for
a far wider impact. Although neither decision made reference
to s 308(b) of the PPSA, the interpretation of that provision may be
affected by the conclusions arrived at in the present cases. Relevantly, that
provision extends the operation of the PPSA to “security
agreements” which were made before the Act, but which continue to operate
with respect to security interests
created after the end of the
PPSA’s transitional security interest
window.[32] Such an arrangement
would be applicable in circumstances whereby parties were engaged in signed
trading terms that contemplated a
series of contracts of supply, and later
supplies occurred after the conclusion of the transitional security interest
date of January
2012.
Further, on that basis the decision would not be
limited purely to ROT agreements. Apart from transitional security interests
expressly
recognised under s 51A of the Corporations Act 2001 (Cth),
being the charge, lien and pledge, there are other potential PPSA
security interests to which this decision could extend. In particular, the
decision could also extend to assets acquired by an insolvent
company under
hire-purchase, leasing or bailment arrangements. Both hire-purchase arrangements
and leases of goods are listed in
s 12 of the PPSA as examples of
transactions which may amount to a security interest, assuming they secure
payment or performance of an
obligation.[33] In the context of
leasing arrangements, the potential for such transactions being caught is
further extended by the inclusion of
“PPS Leases” in s 13 of the
PPSA. These transactions cover both leases and bailments for reward, and
qualify as security interests under s 12(3) of the PPSA regardless of
whether they secure payment or performance of an
obligation.[34] Provided a leasing
or bailment arrangement is for an indefinite term or for more than one year, and
the lessor or bailor is regularly
engaged in the business of leasing or bailing
such goods, a PPS lease will arise. The likelihood of such leasing arrangements
being
caught has only increased in light of the Supreme Court’s recent
decision in Forge v General
Electric.[35] There, Justice
Hammerschlag concluded that a lessor would be ‘regularly engaged in the
business of leasing goods’ if such
leasing formed a “proper
component” of the relevant
business.[36] Arguably such broad
terms will increase the potential for leasing arrangements to qualify as PPS
leases, and thereby transitional
security interests, further extending the
potential effect of Justice Edelman’s decision in Hussain.
CONCLUSION
The decisions in Blakeley and Hussain highlight some of the
teething problems which continue to arise in connection with the PPSA.
Whether a liquidator ought to bring unfair preference proceedings against a
creditor relying upon a pre-PPSA security interest raises a number of
concerns. Ultimately, the resolution to this question would appear to boil down
to the extent
to which courts give effect to the intention of the 2010
amendments. As Justice Edelman noted in Hussain, the second reading
speech for the 2010 amendments spoke of the need for ‘conceptual
consistency’ within the
law.[37] Whether this is a goal
which favours a holistic approach akin to Justice Edelman, over a more textual
approach like Justice Gardiner
remains unclear. Although this paper has favoured
the approach taken by Justice Gardiner in Blakeley it must be emphasised
that as Honour’s decision was in the context of a strike-out application
it does not amount to a determination
on the matter. Thus, as the only
conclusive decision on the issue, the Hussain decision would dictate that
ROT clauses will provide a successful defence to an unfair preference claim,
irrespective of whether
such a clause was given effect to before or after the
introduction of the PPSA. Further, as noted, there is the potential for
this decision to apply to additional types of PPSA security interests, if
such interests arise under transitional security agreements. Whether such an
approach prevails in future decisions
remains to be seen, but until such time as
the question comes before the court for reconsideration pre-PPSA ROT
agreements will pose continuing concerns for liquidators.
[1] BA, LLB (Hons I), LLM (Sydney),
Scholarly Teaching Fellow at the University of Technology Sydney, and PhD
Candidate at the University
of Sydney.
[2] Personal Property
Securities Act 2009 (Cth), s
12(2)(d).
[3] From the case of
Aluminium Industrie Vaasen BV v. Romalpa Aluminium Ltd [1976] 2 All
E.R. 552 where the agreements get their name. However, retention of title
arrangements had been first identified almost a century prior by
the House of
Lords in McEntire v Crossley Brothers Ltd [1895] AC 457 at 466 per Lord
Herschell LC.
[4] Hussain v
CSR Building Products Limited; In the matter of FPJ Group Pty Ltd (in
liquidation) [2016] FCA
392.
[5] Blakeley v Yamaha Music
Australia Pty Ltd [2016] VSC
231.
[6] Personal Property
Securities (Corporations and Other Amendments) Act 2010 (Cth), Sch 1.
[7] Blakeley v Australian Music
Pty Ltd [2016] VSC 231.
[8]
Blakeley v Australian Music Pty Ltd [2016] VSC 231 at [33].
[9] Associated Alloys v ACN 001
452 106 Pty Ltd (in liq) [2000] HCA 25; (2000) 202 CLR
588.
[10] Associated Alloys v
ACN 001 452 106 Pty Ltd (in liq) [2000] HCA 25; (2000) 202 CLR 588 at 624-626 per Kirby J.
[11] Blakeley v Australian
Music Pty Ltd [2016] VSC 231 at
[33].
[12] Contained in s 14 of
the Personal Property Securities Act 2009
(Cth).
[13] Blakeley v
Australian Music Pty Ltd [2016] VSC 231 at [36].
[14] Blakeley v Australian
Music Pty Ltd [2016] VSC 231 at
[33].
[15] Hussain v CSR
Building Products Limited; In the matter of FPJ Group Pty Ltd (in
liquidation) [2016] FCA
392.
[16] Aluminium Industrie
Vaassen BV v Rompala Aluminium Ltd [1976] 2All ER
552.
[17] Personal Property
Securities (Corporations and Other Amendments) Act 2010
(Cth).
[18] Commonwealth,
Parliamentary Debates, House of Representatives, 10 March 2010,
2101
(Dr Craig Emerson).
[19] The
provisions of s 308 are subject to s 310 of the Personal Property Securities
Act 2009 (Cth) which provides the relevant commencement dates for
transitional security agreements and interests.
[20] Hussain v CSR Building
Products Limited; In the matter of FPJ Group Pty Ltd (in liquidation) [2016]
FCA 392 at [151].
[21] Hussain
v CSR Building Products Limited; In the matter of FPJ Group Pty Ltd (in
liquidation) [2016] FCA 392 at
[149]- [153].
[22] Commonwealth,
Parliamentary Debates, House of Representatives, 24 June 2009,
6961
(Mr Robert McClelland).
[23]
Hussain v CSR Building Products Limited; In the matter of FPJ Group Pty Ltd
(in liquidation) [2016] FCA 392 at
[144]- [154].
[24] Blakeley v
Australian Music Pty Ltd [2016] VSC 231 at
[33].
[25] Blakeley v
Australian Music Pty Ltd [2016] VSC 231 at
[41].
[26] Hussain v CSR
Building Products Limited; In the matter of FPJ Group Pty Ltd (in
liquidation) [2016] FCA 392 at
[151].
[27] Commonwealth,
Parliamentary Debates, House of Representatives, 10 March 2010,
2100
(Dr Craig Emerson).
[28]
Blakeley v Australian Music Pty Ltd [2016] VSC 231 at
[33].
[29] Corporations Act
2001 (Cth), s 51F(2).
[30]
Anthony Duggan and David Brown, Australian Personal Property Securities
Law (LexisNexis Butterworths, 2012), 300.
[31] Sale of Goods Act 1923
(NSW), s 22(1).
[32]
“Security agreements” are defined in s 10 of the Personal
Property Securities Act 2009 (Cth) to mean: (a) an agreement or act by
which a security interest is created, arises or is provided for; or
(b) writing evidencing
such an agreement or act.
[33] Hire-purchase agreements are
referred to in s 12(2)(e), and a Lease of goods (whether or not a PPS Lease) is
referred to in s 12(2)(i) of the Personal Property Securities Act 2009
(Cth).
[34] In the context
of a bailment, a PPS Lease will only exist where the bailee has provided value:
s 13(3) of the Personal Property Securities Act 2009
(Cth).
[35] Forge Group
Power Pty Limited (in liquidation) (receivers and managers appointed) v General
Electric International Inc [2016] NSWSC
52.
[36] Forge Group Power Pty
Limited (in liquidation) (receivers and managers appointed) v General Electric
International Inc [2016] NSWSC 52 at [44] per Hammerschlag J.
[37] Commonwealth,
Parliamentary Debates, House of Representatives, 10 March 2010,
2100
(Dr Craig Emerson).
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