Personal Property Securities Act - Australia

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after it starts to apply.

      Overview

      Summary

      Part 1.2

      General application of this Act

      4 Guide to this Part

      This Part contains general rules about the application of this Act. These deal with the following matters:

      (a) binding the Crown;

      (b) geographical rules;

      (c) particular interests to which this Act does not apply.

      5 Crown to be bound

      This Act binds the Crown in each of its capacities.

      6 Connection with Australia

      (1) This Act applies to a security interest in goods or financial property if:

      (a) the location of the goods or property is in Australia; or

      (b) the grantor is an Australian entity.

      Note: For when personal property is located in a jurisdiction, see section 235.

      (1A) This Act applies to a security interest in an intermediated security if:

      (a) the intermediary in relation to the intermediated security is located in Australia; or

      (b) the grantor is an Australian entity.

      Note: For when a person is located in a jurisdiction, see section 235.

      (2) This Act applies to a security interest in intangible property if:

      (a) the grantor is an Australian entity; or

      (b) the intangible property is an account that is payable in Australia; or

      (c) the security interest is an interest of a transferor under a transfer of intangible property that consists of an account or chattel paper, and:

      (i) the transferor is an Australian entity; or

      (ii) the account or chattel paper is payable in Australia; or

      (d) the intangible property is an ADI account; or

      (e) the intangible property is created, arises or is provided for by either or both of the following:

      (i) a law of the Commonwealth, a State or a Territory;

      (ii) the general law (to the extent to which it applies in Australia, a State or a Territory).

      Note: For the application of Australian and foreign law in relation to a security interest, see Part 7.2.

      7 Application in the external Territories

      Extension to Norfolk Island

      (1) This Act extends to Norfolk Island.

      (2) A reference in this Act to “Australia” includes a reference to Norfolk Island.

      Extension to other external Territories

      (3) This Act extends to such other external Territories (if any) as are prescribed by the regulations for the purposes of this section.

      (4) Without limiting subsection (3), if an external Territory is prescribed for the purposes of this section, regulations prescribing the external Territory may provide that:

      (a) only some of the provisions of this Act apply in the external Territory; and

      (b) provisions that apply in the external Territory only apply in specified circumstances.

      (5) If:

      (a) an external Territory is prescribed by the regulations for the purposes of this section; and

      (b) in a provision of this Act that applies (either generally or in particular circumstances) in the external Territory there is a reference to “Australia” or a reference to a term the definition of which includes a reference to “Australia”;

      then, unless the contrary intention appears, the reference to “Australia” in that provision as so applying, or in that definition as applying for the purposes of that provision as so applying, includes a reference to that external Territory.

      Acts Interpretation Act 1901 definition of Australia

      (6) To avoid doubt, this section applies despite paragraph 17(a) of the Acts Interpretation Act 1901 (definition of Australia).

      8 Interests to which this Act does not apply

      (1) This Act does not apply to any of the following interests (except as provided by subsection (2) or (3)):

      (a) the interest of a seller who has shipped goods to a buyer under a negotiable bill of lading, or its equivalent, to the order of the seller, or to the order of an agent of the seller, unless the parties have otherwise evidenced an intention to create or provide for a security interest in the goods;

      (b) a lien, charge, or any other interest in personal property, that is created, arises or is provided for under a law of the Commonwealth (other than this Act), a State or a Territory, unless the person who owns the property in which the interest is granted agrees to the interest;

      (c) a lien, charge, or any other interest in personal property, that is created, arises or is provided for by operation of the general law;

      (d) any right of set-off or right of combination of accounts (within the ordinary meaning of the term “accounts”);

      (e) any right or interest held by a person, or any interest provided for by any transaction, under any of the following (as defined in section 5 of the Payment Systems and Netting Act 1998):

      (i) an approved netting arrangement;

      (ii) a close-out netting contract;

      (iii) a market netting contract;

      (f) an interest provided for by any of the following transactions:

      (i) the creation or transfer of an interest in land;

      (ii) the creation of an interest in a right to payment, or the creation or transfer (including a successive transfer) of a right to payment, in connection with an interest in land, if the writing evidencing the creation or transfer specifically identifies that land;

      (iii) a transfer (including a successive transfer) of an unearned right to payment under a contract to a person who is to perform the transferor’s obligations under the contract;

      (iv) a transfer of present or future remuneration (including wages, salary, commission, allowances or bonuses) payable to an individual as an employee or a contractor;

      (v) a transfer of an interest or claim in, or under, a contract of annuity or policy of insurance, except a transfer of a right to an insurance payment or other payment as indemnity or compensation for loss of, or damage to, collateral (or proceeds of collateral);

      (vi) a transfer of an account made solely to facilitate the collection of the account on behalf of the person making the transfer;

      (vii) without limiting subparagraph (vi), a transfer of an account, if the transferee’s sole purpose in acquiring the account is to collect it;

      (viii) a transfer of an account or negotiable instrument to satisfy (either wholly or partly) a pre-existing indebtedness;

      (ix) a sale of an account or chattel paper as part of a sale of business, unless the seller remains in apparent control (within the ordinary meaning of that term) of the business after the sale;

      (x) a transfer of the beneficial interest in a monetary obligation where, after the transfer, the transferee holds the monetary obligation on trust for the transferor;

      (g) the following interests in property created under the Bankruptcy Act 1966:

      (i) the interest of the Official Trustee or a registered trustee who has taken control (within the

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