LITMIR.BIZ

Скачать книгу

A person (the controller) has control of an investment instrument that is not evidenced by a certificate if:

      (a) either:

      (i) the issuer of the instrument registers another person (who is not the grantor or debtor) as the registered owner of the investment instrument on behalf of the controller; or

      (ii) the registered owner (who is not the grantor or debtor) of the investment instrument acknowledges in writing that he, she or it holds the investment instrument on behalf of the controller; and

      (b) there is an agreement in force under which the controller (or a person who has agreed to act on the instructions of the controller) is able to initiate or control the sending of some or all electronic messages or other electronic communications by which the investment instrument could be transferred or otherwise dealt with.

      (6) For the purposes of this section, a person has control of an investment instrument even if the registered owner of the investment instrument (who might be the grantor) retains the right:

      (a) to make substitutions for the instrument; or

      (b) to originate instructions to the issuer; or

      (c) to otherwise deal with the instrument.

      28 Control of a letter of credit

      A secured party does not have control of a right evidenced by a letter of credit, to the extent of any right to payment or performance of an obligation by the issuer or a nominated person, unless the issuer or nominated person has consented to assigning the proceeds of the letter of credit to the secured party.

      29 Control of negotiable instruments that are not evidenced by a certificate

      (1) A secured party has control of a negotiable instrument that is not evidenced by a certificate if, and only if:

      (a) the instrument is able to be transferred in accordance with the operating rules of a clearing and settlement facility; and

      (b) there is an agreement in force under which the secured party (or a person who has agreed to act on the instructions of the secured party) controls the sending of some or all electronic messages or other electronic communications by which the instrument could be transferred.

      (2) For the purposes of subsection (1), a secured party has control of a negotiable instrument even if the registered owner (who might be the grantor) retains the right:

      (a) to make substitutions for the instrument; or

      (b) to originate instructions to the issuer; or

      (c) to otherwise deal with the instrument.

      Part 2.4

      Attachment and perfection: specific rules

      Division 1

      Introduction

      30 Guide to this Part

      This Part contains rules about when attachment and perfection (including, in some circumstances, temporary perfection) of security interests occurs in particular situations.

      Division 2 deals with security interests in the proceeds of collateral, and in collateral after it is transferred.

      Proceeds of collateral are identifiable or traceable personal property that is derived from dealings with the collateral. Proceeds also includes certain insurance or indemnity rights, payments in redemption of certain intangible collateral, certain rights of licensors of intellectual property, and certain rights relating to investment instruments and intermediated securities.

      A security interest in collateral continues in the proceeds (except in certain cases). Division 2 also includes some other rules about the perfection of such interests and their enforcement. Special provisions are made for the perfection and temporary perfection of security interests in proceeds, and for the temporary perfection of security interests in collateral after it is transferred.

      Division 3 deals with the perfection (and temporary perfection) of security interests in goods that are returned to the grantor or the debtor. After goods are returned for certain dealings (for example, sale or exchange), a security interest in the goods that had previously been perfected otherwise than by registration may be temporarily perfected for 5 business days. The same period of temporary perfection is provided in similar circumstances if possession or control of a negotiable instrument or investment instrument is returned to the grantor or debtor.

      If goods are taken free of a security interest, but are repossessed by the grantor or debtor, the security interest reattaches to the goods, and (if the security interest had been perfected by registration) the perfection status of the security interest is unaffected.

      Division 3 also provides special rules for the attachment and perfection of a security interest in goods if a sale or lease of the goods creates an account or chattel paper that is transferred to another person.

      Division 4 deals with situations where collateral or a grantor of a security interest is relocated from a foreign jurisdiction to Australia. The security interest in the collateral is temporarily perfected if certain conditions are met.

      Division 2

      Proceeds and transfer

      31 Meaning of proceeds

      (1) In this Act:

      proceeds of collateral to which a security interest is (or is to be) attached means identifiable or traceable personal property of the following types, subject to subsections (2) and (3):

      (a) personal property that is derived directly or indirectly from a dealing with the collateral (or proceeds of the collateral);

      (b) a right to an insurance payment or other payment as indemnity or compensation for loss of, or damage to, the collateral (or proceeds of the collateral);

      (c) a payment made in total or partial discharge or redemption of the collateral (or proceeds of the collateral), if the collateral (or proceeds) consists of any of the following:

      (i) chattel paper;

      (ii) intangible property;

      (iii) an investment instrument;

      (iv) an intermediated security;

      (v) a negotiable instrument;

      (d) if the collateral is intellectual property (or an intellectual property licence) — in addition to any other proceeds, the right of a licensor of the property (whether or not the property is itself a licence) to receive payments under any licence agreement in relation to the collateral;

      (e) if the collateral is an investment instrument or intermediated security — any of the following:

      (i) rights arising out of the collateral;

      (ii) property collected on the collateral;

      (iii) property distributed on account of the collateral.

      Note: In section 140 (distribution of proceeds received by secured party) proceeds has its ordinary meaning, so this definition does not apply.

      Whether proceeds are traceable

      (2) Proceeds are traceable whether or not there is a fiduciary relationship between the person who has a security interest in the proceeds, as provided in section 32, and the person who has rights in or has dealt with the proceeds.

      Restriction to proceeds in which grantor has a transferable interest

      (3) However, personal property is proceeds only if:

      (a) either:

      (i) the grantor has an interest in the proceeds; or

      (ii) the grantor has the power to transfer rights in the proceeds to the secured party (or to a person nominated by the secured party); and

      (b) the interest in

Скачать книгу