It is remarkable what our leaders can inflict upon us in the name of “reform”. At the very least the Personal Property Securities Act 2009 is confusing and messy. That it has been inflicted on business and their advisors in this form says much for how ‘out of touch’ our politicians and public servants are.
Property lawyers are much relieved that an interest that provides for the creation or transfer of an interest in land is not caught by the Act[1]. But property lawyers cannot be complacent because many transactions that relate to property will come within the ambit of the Act. The complexity and confusion apparent in the Act is so overwhelming that the first question has to be: where does one start? In answering this question the most useful text that I have come across is Lionel Meehan’s The PPS Guide which is available in the Law Institute’s bookshop. Unlike other authors Meehan sets out how to approach an Act matter. Meehan says that in order to determine whether the Act applies to a secured transaction four questions must be asked:
(a) is there a “security interest”;
(b) is the security interest granted in personal property;
(c) has the security interest attached to the personal property; and
(d) does the transaction have an Australian connection?[2]
If the answer to all these questions is yes, the transaction is caught by the Act and how it is treated under the Act needs to be considered.
[1] Section 8(1)(f).
[2] Meehan, paragraphs 2.004 and 5.002.
