Application of the Personal Property Securities Act 2009 (Cth) to retention of title arrangements

The Personal Property Securities Act 2009 (Cth) (PPSA) is a law about security interests in personal property.  Personal property is generally all property other than land, fixtures and certain statutory interests. A security interest is an interest in personal property which in substance secures payment of a debt or other obligation.  This definition is broad and, whilst incorporating standard forms of security, such as mortgages and charges, it also covers some non-traditional security interests including retention of title (ROT) clauses in contracts.  A retention of title clause states that a purchaser has possession of goods but does not receive title to those goods until the full purchase price has been paid.

What are the benefits of the PPSA to ROT suppliers?

Under the PPSA, ROT suppliers will become secured parties with a security interest in the goods they are supplying. The PPSA provides clear rules to be followed in order for ROT suppliers to protect themselves in the event of a buyer’s default or insolvency. However in order to maximise this protection the secured party must register its security interest in the goods supplied.

Under the PPSA, ROT suppliers enjoy the benefit of what is known as a purchase money security interest. This is a certain type of security interest which raises the interest of the secured party to a higher priority relative to other interests. This means that a registered security interest of an ROT supplier takes priority over all others, including earlier security interests in the goods where the requirements of the PPSA have been complied with.

A second benefit of a registered ROT security interest is the protection it offers against a trustee in bankruptcy or liquidator. Under pre-PPSA law, ROT clauses have often been ineffective when disputed by a liquidator with focus placed on the form of words that are used in the clause. Under the PPSA, a registered security interest in the goods supplied means that the goods will not be available to a trustee in bankruptcy or a liquidator.  In the case of a purchaser which is a company, if such a security interest is not registered on the Personal Property Securities Register (PPSR), it will vest in the purchaser. The effect of this would be that the secured party could not seize the goods on the liquidation and their only recourse would be to prove the debt against the liquidator and be paid out as an unsecured creditor.

It is important to note that the PPSA does not require a registration to be made in respect of all supplies to the same purchaser. A single registration may cover subsequent security interests in goods that are supplied under later agreements. However, in all cases registration will be at the choice of the secured party, as it is not mandatory.

Considerations for ROT suppliers when deciding whether to register

In light of these potential benefits, ROT suppliers should consider their exposure and the relative benefits and risks of whether to register such security interests on the PPSR. Below is a list of factors that ROT suppliers might consider when deciding whether to register. The list is not in any particular order and is not exhaustive, and they should seek their own professional advice on whether to register.

1. Pre-existing client relationship (eg Do the terms of the supply prohibit the grant of further security interests in the goods? What is the history of the supplier/client relationship and the degree of trust? What has the pre-lending due diligence revealed about the solvency and other details of the purchaser?)
2. Risk profile (eg What is the degree of likelihood that the ROT arrangement will be dishonoured? Are transactions of the type being contemplated often dishonoured? What are the numbers and value of dishonoured agreements in the ROT supplier’s books?)
3. Goods value (eg What is the value of the goods? What is the proportion of the value of the goods to the total assets of the business?)
4. Commerciality of enforcing (eg What are the costs of enforcing against goods of this type? What are the practicalities of enforcement? Are the goods perishable? Is there a market for second hand goods of that value and nature? What is the likely depreciated value of the goods?)
5. Cost of transitioning to and adopting PPSA practice (eg the cost of developing back office functions, up-skilling staff and transacting with the PPSR).