2021 personal property securities law wrap up – Lexology

2021 personal property securities law wrap up – Lexology

The content team have selected the following cases of interest in personal property securities law. All of these cases have been included in our commentary services.

Cases added to Australian Personal Property Securities Cases in 2021

• Vesting of unperfected security interests in the grantor upon the grantor’s winding up or bankruptcy — s 267 — Re Antqip Hire Pty Ltd (in liq) (2021) APPSR ¶701-100; [2021] NSWSC 1122. [October 2021]

• Scope of security interests — s 12(2) — McCallum, in the Matter of Re Holdco Pty Ltd (Administrators Appointed) (No 2) (2021) APPSR ¶701-099; [2021] FCA 377. [October 2021]

• Fixtures — s 8(1)(j) — SPIC Pacific Hydro Pty Ltd v Chief Commissioner of State Revenue (2021) APPSR ¶701-096; [2021] NSWSC 395. [May 2021]

• Circulating assets — dividend to priority creditors — payment to employees — s 340(5)(b) — In the matter of Force Corp Pty Ltd (in liq) (2020) APPSR ¶701-095; [2020] NSWSC 1842. [May 2021]

Commentary

Forms and Practice Statements — have been updated.

Equipment leases and lending documents has been updated with OPS Screening & Crushing Equipment Pty Ltd v Gold Valley Iron Pty Ltd (In Liq) [2020] WASC 412. The dispute involved a contest about the ownership of mining equipment which had been hired. The judge determined that the hire agreements did not create security interests in the equipment and therefore the equipment did not vest in the liquidator. The judge concluded that the hire agreements were not in substance agreements for the purchase of the equipment and therefore they did not create a grant of security interests and the hire agreements “did not confer a proprietary interest on the first defendant as hirer from which it could grant a security interest in favour of the plaintiff as security for payment or performance of an obligation”: [47], ¶16-670.

Interests in fixtures s 8(1)(j) The meaning of fixtures and land in s 10 was considered by the NSW Court of Appeal in Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (In Liq) (Receivers and Managers Appointed) (2017) APPSR ¶701-039; [2017] NSWCA 8. The Court of Appeal agreed with the primary judge that turbines, which had been leased, were not fixtures for the purposes of s 10 of the Personal Property Securities Act 2009 (Cth) (PPSA). The court considered whether the interpretation of fixture under s 10 could be determined by reference to common law or whether it must be determined on the meaning under the PPSA alone. At [92] the court stated that “in the present case, while the ordinary meaning of the word ‘affixed’ is not unclear (in the sense that it points to a form of attachment), what is uncertain is the nature and degree of attachment that will be sufficient for the purposes of the definition”. The court held that parliament intended, when using the expression “fixtures” to import the common law notion of affixation: [97]. The court dismissed the appeal and agreed with the primary judge that the turbines were fixtures. The property in dispute were 4 mobile gas turbine generators which had been leased. The turbines were mounted on trailers which kept their wheels throughout. The turbines were only intended to be in position on the site, which was a temporary power station site, for …….

Source: https://www.lexology.com/library/detail.aspx?g=b710d813-ab40-4236-8e93-0d3e353f8f02

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