PPSA & Consignment Stock

Under a Consignment Stock arrangement Company A supplies goods to Company B without passing ownership until such time as those goods are used or sold by Company B – at that point in time a payment obligation between Company A and Company B is created.  Any unused/unsold goods will usually be returned to Company A.

The Personal Property Securities Act treats the structure of Consignment Stock arrangements as providing a security interest for Company A in the goods supplied (PPSA Sections 12(2)(h) and 12(3)(b) refer).

The PPSA goes on to allow for such a security interest to be designated a Purchase Money Security Interest (PMSI) thus allowing Company A a greater priority claim over the goods they  supplied than, say, the holder of a general security agreement over all the assets of Company B (PPSA Section 14(1)(d) refers).

So, as with Leasing arrangements and Retention of Title clauses, it is not necessary for the terms of a Consignment Stock arrangement to specifically describe the agreement as a form of security for it to nevertheless be considered as such in the event of an administrator being attached to Company B.

Unfortunately, this can be something of a double-edged sword. 

Whenever the PPSA provides for an arrangement/agreement to be treated as a security interest it also allows for an administrator to vest the goods/collateral in question along with the rest of the assets of the debtor company UNLESS that security interest has been correctly registered on the PPSR.

Bringing this home quite strikingly was the entry into liquidation last month of Jacksons Rare Guitars Pty Ltd in Annandale, in Sydney’s inner west.  At the time a voluntary administrator was first appointed, Jacksons had over 100 clients who were using Jacksons to sell their instruments on a consignment basis representing almost $850,000 of the total stock.

In a pre-PPSA world the individual consignors could have relied upon consignment notes to prove ownership and claim back their instruments but, since PPSA, if they failed to register their consignment on the PPSR (and I’m not aware of any who did) their precious guitars would be vested by the liquidator with the rest of Jacksons’ stock and sold off for the benefit of, primarily, other creditors.  Unfortunately, it is the post-PPSA scenario that is currently playing itself out in Annandale.

While we continue to bemoan the poor promotion the Federal Government has engaged in regarding letting small and medium sized businesses know about the implications and requirements of the PPSR let us spare a thought for the lack of promotion towards the general public who may first become aware of the Register at the same time as they’re being told that they can’t have their guitar back!

When Should a PPSA Registration be Discharged?

Section 151 of the PPSA allows for registration of a security interest where the Secured Party has a reasonable belief that the collateral identified in the registration will become the subject of a valid security interest in their favour.

Because of the requirement under the Act for security interests taken in inventory to be registered in advance of the debtor/grantor taking possession there will inevitably be circumstances where a registration is in place but not yet applying to specific collateral held by the debtor/grantor.

This is particularly the case in circumstances involving on-going supply, or the reasonable expectation of on-going supply.

If a supplier is approached to open a credit account for a new customer then, provided that credit account includes a provision for a security interest (such as a Retention of Title clause), the opening of that account should be deemed to create a sufficiently reasonable belief in the likelihood of a security interest attaching to collateral thus satisfying the requirements of Section 151.

Similarly, unless it has been specifically stated that the sole purpose of that new credit account is to accommodate a one-off purchase, it would not be unreasonable for that supplier to anticipate a measure of continued/repeat business once the initial purchase under the account has been completed.

However, where there are no longer any reasonable grounds for anticipating on-going business/orders (and there are no monies outstanding on the account) then the registration should be discharged within 5 business days from the point at which there stopped being reasonable grounds for anticipating on-going business.

A clear and unambiguous point at which it could be determined that ‘reasonable grounds’ ceased to exist would be the date the Secured Party received confirmation from the debtor/grantor that no further purchasing was anticipated, possibly accompanied by a request to discharge the registration.  At such point the Secured Party would have 5 business days to discharge the registration.

Unfortunately, real life often does not present us with ‘clear and unambiguous’ events and it is quite likely that many suppliers will have open credit accounts on their books that have been inactive for some time.  At what point does it no longer become reasonable to sustain a belief in the likelihood of further trade (and thus the imminent attachment of their security interest)?  Disappointingly, the PPSA provides no guidance in this and legal precedents have yet to be set so we may well be entering ‘how long is a piece of string’ territory.

However, before suppliers relax too much they should note that part 4 of Section 151 places the burden of proof firmly on the shoulders of the Secured Party (supplier) in establishing the reasonableness of maintaining a registration in the absence of any current trading!

While this shifting of the burden of proof to require the ‘accused’ to prove their ‘innocence’ may come as a rude awakening to those whose legal expertise comes from watching episodes of ‘Law & Order’, those who have to deal regularly with liquidators or the Taxman will simply see this as par for the course.

Although I appreciate that it is much more easily said than done, suppliers’ primary defence against claims of unreasonable registrations will be tight and efficient credit control procedures, regular monitoring of accounts and good communication with customers. 

At a bare minimum credit departments should make sure they have “Discharge PPSR Registration” as a priority item on their check-list whenever an account is closed.

The relevant portions of Section 151 referred to above are reproduced below:

151  Registration—belief about security interest

Requirements for collateral to secure obligation etc.

             (1)  A person must not apply to register a financing statement, or a financing change statement, that describes collateral, unless the person believes on reasonable grounds that the person described in the statement as the secured party is, or will become, a secured party in relation to the collateral (otherwise than by virtue of the registration itself).

Civil penalty:

                     (a)  for an individual—50 penalty units;

                     (b)  for a body corporate—250 penalty units.

             (2)  If a financing statement, or a financing change statement, that describes collateral has been registered on the application of a person, the person must, within the period covered by subsection (3), apply to register a financing change statement to amend the registration to end its effect with respect to the collateral, if:

                     (a)  the person described in the statement as the secured party has never, since the statement was registered, been a secured party in relation to the collateral (other than by virtue of the registration itself); and

                     (b)  there are no reasonable grounds (or there are no longer any reasonable grounds) for the belief mentioned in subsection (1).

Civil penalty:

                     (a)  for an individual—50 penalty units;

                     (b)  for a body corporate—250 penalty units.

             (3)  The period covered by this subsection is as soon as practicable, or 5 business days, whichever is earlier, after:

                     (a)  if there never have been, since the statement was registered, reasonable grounds for the belief mentioned in subsection (1)—the day of the registration time, or the amendment time, for the financing statement or financing change statement; or

                     (b)  if there are no longer any reasonable grounds for that belief—the day when there stopped being reasonable grounds for the belief.

             (4)  A person who wishes to establish that there were reasonable grounds for the belief mentioned in subsection (1) (at any particular time) bears an evidential burden in relation to the matter.

PPSA & Real Estate (more fun!)

The approaches from the solicitors of prospective purchasers of real estate to have unrelated PPSR registrations lifted show no sign of abating.  

Scenario

Eyes & Ears Pty Ltd sells and installs audio visual equipment; a portion of their stock is bought from Sight n Sound Ltd.

Sight n Sound sell to Eyes & Ears on credit terms subject to a Retention of Title clause.  While this clause allows for Eyes & Ears to on-sell the goods that Sight n Sound has supplied it also provides for Sight n Sound to be able to recover any unsold Sight n Sound sourced products for which Eyes & Ears have failed to make payment in a timely manner.

Under the Personal Property Securities Act Cth 2009 (PPSA), such a Retention of Title clause is treated as a security interest (Section 12(2)(d) refers) and, as such, Sight n Sound has registered that security interest on the Personal Property Securities Register (PPSR). 

In accordance with the PPSR’s rules Sight n Sound has registered their security interest as follows:

Collateral Type:      Commercial Property (as distinct from Consumer Property);

Collateral Class:      Other Goods (the PPSR does not provide for a more specific designation for tangible property that is not required under the Act to be identified by serial number);

Inventory:              Yes (to identify the use to which the goods being sold are put);

PMSI:                     Yes (designating the security interest as a Purchase Money Security Interest, this identifies that the goods/collateral in question are acting as security for their own purchase); and

Proceeds:               Yes – All present & after acquired property (recognising the rights of Eyes & Ears to on-sell their product, Sight n Sound’s security interest extends to any proceeds arising from such on-sale, regardless of the form such proceeds might take, as long as the original supply remains unpaid).

Eyes & Ears is in the process of selling real estate property and the solicitor acting on behalf of the prospective purchaser has asked that Sight n Sound release the real estate property in question from the charge they have registered on the PPSR as a condition to the real estate transaction progressing.

Opinion

1.    The PPSA does not apply to collateral in the form of real estate or to any fixtures   attached to such property.

Confirmation is available from the PPSR’s web site at www.ppsr.gov.au where it clearly states that:

Under the Personal Property Securities Act 2009 (Cth), personal property is defined as any form of property other than land, buildings or fixtures that form part of it or a right (such as water rights), entitlement or authority.

Reference may also be made to Section 8(1)(j) of the PPSA which specifically identifies fixtures as an item of property to which the Act does not apply and Section 10 which defines the Act’s use of the term fixtures.

          8  Interests to which this Act does not apply

(1)               This Act does not apply to any of the following:

(j)         an interest in a fixture;

and

10  The Dictionary

                        In this Act:

                        fixtures means goods, other than crops, that are affixed to land.

2.    Sight n Sound’s security interest resides solely in goods supplied by Sight n Sound to Eyes & Ears as well as to any proceeds arising from the sale or disposal of those goods for as long as monies remain outstanding to Sight n Sound for the sale of those goods.  Sight n Sound’s registration does not perfect any security interest in any other property or assets held by Eyes & Ears.

3.    Even were there to be some hitherto unheard of interpretation of the PPSA which would allow that Act to apply to real estate property in this context and collateral from Sight n Sound was incorporated into that real estate property then Sight n Sound’s PPSR registration should still not be considered an obstacle to the sale of that property by virtue of Section 32 of the PPSA.

Section 32 effectively extinguishes Sight n Sound’s continued security interest in the goods themselves, once those goods have been on-sold, and transfers that interest to any proceeds arising from the on-sale.

32  Proceeds—attachment

            (1)        Subject to this Act, if collateral gives rise to proceeds (by being dealt with or otherwise), the security interest:

            (a)        continues in the collateral, unless:

            (i)         the secured party expressly or impliedly authorised a disposal giving rise to the proceeds; or

            (ii)        the secured party expressly or impliedly agreed that a dealing giving rise to the proceeds would extinguish the security interest; and

            (b)        attaches to the proceeds, unless the security agreement provides otherwise.

The nature of Sight n Sound’s Terms and Conditions of Sale (in which their Retention of Title clause is to be found) and Sight n Sound’s designation in their PPSR registration of their security interest residing in Inventory both expressly and impliedly authorise the disposal of their goods by Eyes & Ears thus enabling the purchaser of their on-sale to take those goods free of any continuing security interest.

While there may be exceptions to such a situation should the collateral in question be described by serial number in Sight n Sound’s registration that is clearly not the case in this instance.

Had the sale of real estate been a normal part of the business of Eyes & Ears it would have also been relevant to have quoted Section 46 of the PPSA which allows for purchasers of the on-sale to take such property free of any security interest where the on-sale would constitute an action “in the ordinary course of the seller’s business”.

46  Taking personal property free of security interest in ordinary course of business

(1)        A buyer or lessee of personal property takes the personal property free of a security interest given by the seller or lessor, or that arises under section 32 (proceeds—attachment), if the personal property was sold or leased in the ordinary course of the seller’s or lessor’s business of selling or leasing personal property of that kind.

Conclusion

Not only is there no justification for Sight n Sound to discharge their correctly registered security interest but to do so would seriously impact upon the effectiveness of Sight n Sound’s security interest in respect of its on-going trading with Eyes & Ears.

Similarly, there is no justification/need for Sight n Sound to make any amendments to their existing registration.

While it is not considered at all necessary and would only serve a ‘cosmetic’ purpose it would not prejudice the effectiveness of Sight n Sound’s security interests were Sight n Sound to execute a Deed of Release along the lines of the draft shown after the following disclaimer.

Disclaimer

Please note that nothing in this document should be taken as formal legal advice and neither the author nor his employer accept any liability for any negative outcome that may arise from actions taken after it has been read.

Deed of Release

Addressee:                   [the entity seeking the release]

Secured Party:             [your company – as per your PPSR registration]

Grantor:                       [the debtor – as per your PPSR registration]

Security Interest: Any security interest (including a “security interest” as defined under the Personal Property Securities Act 2009 (Commonwealth)) held by the Secured Party in respect of the Released Property.

Date:                            [date this release is intended to take effect]

Released Property:       [description of the property for which the release is required]

The Released Property is released from the Security Interest on the date of this deed.  Nothing in this deed releases, terminates or otherwise affects any debts or liabilities of the Grantor or any other person secured by any Security Interest to the extent such debts or liabilities remain outstanding at the date of this deed or arise after the date of this deed.

This document is governed by the law in [insert relevant State of jurisdiction] and the Secured Party submits to the nonexclusive jurisdiction of the courts of that place.

Executed by the Secured Party as a deed poll

EXECUTED AS A DEED by

as attorney for   ………………………….     under power of attorney dated  ……………….

in the presence of: ........................................................

Signature of witness: ........................................................

Name of witness (block letters): ........................................................

By executing this deed the attorney states that the attorney has received no notice of revocation of the power of attorney.