Administrators and the PPSA
Formerly, the holder of a charge over the whole or substantially the whole of a company’s property was entitled to appoint an administrator over the company’s property – s 436C of the Corporations Act – and to enforce its charge before or during the administration period- ss440B and 441A of the Corporations Act.
However, in assessing whether a person is a secured party over the whole or substantially the whole of a company’s property, consideration now needs to be given to “PPS retention of title property.” This is defined in s51F of the Corporations Act.
Section 51F states that property is PPSA retention of title property of a corporation if:
(a) the property is personal property; and
(b) the property is used or occupied by or is in the possession of the corporation; and
(c) the corporation does not have title to the property within the meaning of the
Personal Property Securities Act 2009; and
(d) the corporation is the grantor in relation to the PPSA security interest.
The following personal property is PPSA retention of title property if a PPSA security interest attaches to the property by virtue of the transaction concerned and the grantor is a corporation: (quoting the LexisNexis publication Australian Corporations Law, underneath s 51F) –
(i) property that is the subject of an agreement to sell subject to a retention of title or
a hire purchase agreement, that secures the payment or performance of an
(ii) property that is the subject of a lease, or a consignment agreement, that secures
the payment or performance of an obligations…or
(iii) goods that are the subject of a commercial consignment…or
(iv) goods that are leased or bailed under a PPS lease.