Collier, Justice Berna --- "Reform of the law on personal property securities in Australia" (FCA) [2006] FedJSchol 15

Speeches 2006 Insolvency Law Workshop, Canberra Reform of the law on personal property securities in Australia Justice Berna Collier 11 August 2006 “(It) could not be patched or mended: the very foundation was rotten, therefore the entire fabric must be razed to the ground and a new super-structure substituted. Like a blundered calculation on a slate, it was in too much confusion for correction, so he would take a sponge and rub the whole out.” It would be no surprise to see this comment made about the current state of personal property security law in Australia. In fact, the comment is that of Sir Robert Torrens, made in 1857 in the context of the then framework of real property law in the colony of South Australia. [1] Of course in relation to real property law in South Australia, and indeed Australia and New Zealand, the position is very different. Historically, the approach taken by governments to developing and enacting laws referable to personal property security has been something of a “poor relation” to that to real property. Notwithstanding the continued recognition of unregistered interests, the system of title by registration conferred by the Torrens legislation offers a structure specifically aimed at simplifying, facilitating dealing, and providing certainty in relation to title to and security interests in land. The system, described as “the greatest legal invention of the age” [2] is in force throughout Australia, [3] and covers most land in Australia over which security is taken. [4] Although evolved through different legislative incarnations across the States and Territories, it is essentially the same system as devised by Sir Robert Torrens and introduced into the South Australian parliament in 1857. It is an important point however that traditionally land was the primary source of wealth, [5] and continues to remain so for most individuals in Australia. [6] In comparison, the laws with respect to security over personal property in Australia have developed in a haphazard fashion, perhaps typified by what has been described as “that famous body of ill-drafted legislation known as the Bills of Sale Acts”. [7] On 11 April 2006 the Standing Committee of Attorneys-General released an Options Paper entitled “Review of the law on Personal Property Securities”. The accompanying news release [8] issued by the Federal Attorney-General, Philip Ruddock, declared that a single national personal security register would deliver a simpler, cheaper system of doing business; it would allow prospective lenders and purchasers involving all personal property to check cheaply and easily on the Internet whether there is an encumbrance in the property; it would help to cut red tape and reduce the cost of loan transactions for business and consumers; existing personal property security arrangements involve around 7.3 million transactions annually, the vast majority of which involve motor vehicles through the Registers of Encumbered Vehicles maintained by each State; existing arrangements are fragmented and involve a large number of incomplete registers, and the initiative represented a contribution towards greater harmonisation of laws and micro-economic reform. Before the conference has a general discussion concerning implications of the regime for insolvency practitioners, it is useful to consider the nature of the problem the history of reform proposals proposals of the Options Paper the position in other jurisdictions going forward What is the problem? In short, there are three fundamental problems identified by the proposals in the Options Paper. They are: the problematic nature of taking security over personal property the plethora of types, registration systems, and administrative bodies involving personal property security in Australia at both federal and State levels the potential of gaps, overlaps and conflicts between differing systems Taking security The first point was summarised by Sykes and Walker as “the social evil that resulted from an owner of chattels being able to present to those giving her or him credit a fictitious appearance of prosperity, whereas all her or his property, though still in the person’s possession, might be disposed of or encumbered by secret dispositions.” [9] Choses, whether in action or in possession, are obviously more easily transportable and transferable than realty. Because chattels can also be homogeneous, they can be difficult to distinguish, whether to separate from others of the same kind, prevent transportation or transfer, or put third parties on notice as to ownership. In the sale of goods context, the false appearance of ownership is recognised by the rules applicable to seller or buyer in possession – that is, a seller or buyer in possession of goods after sale who does not have title (because, for example, the seller has sold the goods, or the buyer has not paid for the goods) can nonetheless pass good title in the goods to a third party who takes without notice of the true ownership. [10] A good illustration of this issue is retention of title clauses, which are akin to security interests, creatures of common law, [11] do not require registration under any statutory regime [12] but raise practical problems of identification and ownership in the event of insolvency of the person or entity in possession of goods subject to such clauses. Registration Systems Secondly, the plethora of statutes dealing with security over personal property reflects the multitude of forms of personal property (in contrast with real property which is much more limited).[13] So, for example, it is possible to take a statutory security interest in property as diverse as ostriches, alpacas and llamas, [14] self-propelled wheelchairs capable of travelling at a speed of more than 10 kilometres an hour, [15] sugar cane, [16] and fish. [17] As noted earlier, the development of statutes applicable to personal property security was haphazard. The Options Paper identifies in Attachment D a list of seventy-one personal property security Acts in force in Australia as at 1 March 2006, some of which have fairly general application, but many of which are specific. [18] It is worth listing them: [19] Commonwealth Corporations Act 2001 Chapter 2K Designs Act 2003 Patents Act 1990 Plant Breeders Rights Act 1994 Shipping Registration Act 1981 Trade Marks Act 1995 Australian Capital Territory Consumer Credit Code Part 5 Cooperatives Act 2002 s 270 and Schedule 3 Instruments Act 1933 Mercantile Law Act 1962 Sale of Goods Act 1954 s 29(2) Sale of Motor Vehicles Act 1977 New South Wales Consumer Credit Code Part 5 Cooperatives Act 1992 s 278 and Schedule 3 Factors (Mercantile Agents) Act 1923 Registration of Interests in Goods Act 1986 Sale of Goods Act 1923 s 28(2) Security Interests in Goods Act 2005 Warehousemen’s Liens Act 1935 Northern Territory Consumer Credit Code Part 5 Cooperatives Act s 264 and Schedule 3 Instruments Act Registrations of Interests in Motor Vehicles and Other Goods Act Sale of Goods Act s 28(2) Warehousemen’s Liens Act Workmen’s Liens Act Queensland Bills of Sale and Other Instruments Act 1955 Consumer Credit Code Part 5 Cooperatives Act 1997 s 262 and Schedule 3 Credit (Rural Finance) Act 1996 Factors Act 1892 Financial Intermediaries Act 1996 s 97C Goods Act 1896 s 27(2) Hire-Purchase Act 1959 Liens on Crops of Sugar Cane Act 1931 Motor Vehicles and Boats Securities Act 1986 South Australia Bills of Sale Act 1886 Consumer Credit Code Part 5 Cooperatives Act 1997 s 264 Goods Securities Act 1986 Liens on Fruit Act 1923 Mercantile Law Act 1936 Sale of Goods Act 1895 s 19 Second-hand Dealers and Pawnbrokers Act 1996 Stock Mortgages and Wool Liens Act 1924 Warehouse Liens Act 1990 Worker’s Liens Act 1893 Tasmania Bills of Sale Act 1900 Consumer Credit Code Part 5 Cooperatives Act 1997 s 271 and Schedule 4 Factors Act 1891 Motor Vehicles Securities Act 1984 Sale of Goods Act 1896 s 30(2) Stock, Wool and Crops Mortgages Act 1930 Victoria Chattel Securities Act 1987 Consumer Credit Code Part 5 Disposal of Uncollected Goods Act 1961 Goods Act 1958 s 31 Hire Purchase Act 1959 Instruments Act 1958 Parts VII and VIII Motor Car Traders Act 1986 Property Law Act 1958 s 134 Second-Hand Dealers and Pawnbrokers Act 1989 Warehousemen’s Liens Act 1958 Western Australia Bills of Sale Act 1899 Chattel Securities Act 1987 Consumer Credit Code Part 5 Factors Act 1842 (UK) Factors Act Amendment Act 1878 Hire-Purchase Act 1959 Sale of Goods Act 1895 s 19 As also pointed out in the Options Paper, and of further interest, is the fact that these statutes are administered by twenty-four entities across Australia, namely: [20] Commonwealth ASIC IP Australia Australian Maritime Safety Authority Australian Capital Territory ACT Office of Fair Trading Department of Justice and Community Safety New South Wales NSW Office of Fair Trading Attorney-General’s Department Lands Department NSW Office of Fair Trading / Commerce Department Northern Territory Consumer and Business Affairs Department of Justice NSW Office of Fair Trading Queensland Office of Fair Trading Treasury Department South Australia Commissioner for Consumer Affairs Office of Consumer and Business Affairs Department of Transport Attorney-General’s Department Tasmania Department of Justice Department of Consumer Affairs and Business Department of Infrastructure, Energy and Resources Victoria Consumer Affairs Victoria / Department of Roads and Ports Consumer Affairs Victoria Department of Justice Western Australia Department of Consumer and Employment Protection Department of the Attorney-General It is a challenge to actually locate registries where security interests can be registered, and identify the relevant procedures. The State-based Registries of Encumbered Vehicles [21] (“REVS”) are quickly identifiable, as, because of extensive use, [22] they each have informative internet sites and in, for example, New South Wales on-line searching is available. Finding personal property securities registries other than REVS registries can however be an interesting exercise, as most of the registries require manual lodgement and search, and are not electronic. So, by way of example: A number of personal property security interests in New South Wales are registered in the General Register of Deeds held by the Department of Lands. Since 2 November 1992 indexes to the General Register of Deeds have been maintained electronically. Public computer terminals at the Department of Lands can be used to search the following indexes: Vendor/Purchaser Bills of Sale Causes, Writs & Orders Stock Mortgages Wool Liens Crop Liens Resumptions Unregistered Deposited Deeds In Queensland, the Bills of Sale and Other Instruments Act 1955 (Qld) provides for a general system of registration of security interestson goods (except motor vehicles & certain boats). The Queensland Office of Fair Trading maintains a Bills of Sale Register. Searches can only be conducted at Office of Fair Trading offices. Bills of Sale are registered by completing an Application to Register an Interest – Form 1. These forms can be lodged with the OFT by mail or in person. In Victoria, the Land Registry is a Business Unit of Land Victoria. The Registrar General’s Office is located within the Land Registry and has registries for Crop Liens, Wool Liens and Stock Mortgages registered under the Instruments Act 1958 (Vic). They are all manual databases. In South Australia, the Stock Mortgages Registry and the Bills of Sales Registry are found in the General Registry Office in South Australia, which is itself a section of the South Australian Lands Titles Office. In Tasmania the Commissioner of Consumer Affairs and Trading (Department of Justice) keeps a register of Bills of Sale. The register is not electronic. To register a Bill of Sale the original bill of sale contract is attached to the registration form. The Registrar-General’s Office in the ACT is a cost centre within the Department of Justice and Community Safety. It delivers registration and access services for the ACT community, including instruments required to be registered under the Instruments Act 1933 (ACT) such as bills of sale, liens on crops, liens on wool and stock mortgages. The Western Australian Department of Consumer and Employment Protection is responsible for maintaining the Bills of Sale Register. Only security interests in livestock and crops are registered. Documents are lodged manually with the office and the register can be searched manually by visiting the office. The Northern Territory Lands Titles Office (a section of the Department of Justice) is responsible for the registries for personal property securities pursuant to the Instruments Act (NT). There are a number of separate registers: Bills of Sale Register, Stock Mortgages Register and a General Register. The database is electronic although paper copies must be lodged to register an interest. It is interesting to note that there are also at present six national registers providing for registration of security interests in relation to: ships: mortgages over a ship or a share in a ship that is registered under the Shipping Registration Act 1981 (Cth) may be registered with the Australian Shipping Registration Office, [23] with priority accorded in the order that the mortgage is registered. [24] patents: mortgages and other interests in a patent must be registered in the Register of Patents. [25] A security which is not registered is valid, however a document evidencing the security is not admissible in any proceedings in proof of the title to a patent or to an interest in a patent unless directed by a court, or the proceedings are for rectification of the register, or to enforce equities. [26] As the Options Paper notes, in practice courts have exercised the power to admit unregistered instruments. [27] Between 2003 and 2006, thirty-three requests to register a mortgage have been received by the Registry. designs: an interest in a design may be registered in the Register of Designs at the request of the registered owner of a registered design or an assignee of an interest in a design. [28] As is the case with patents, a document or instrument in respect of which an entry has not been made in the Register is not admissible in evidence in a court as proof of title to an interest in a design except in relation to an application for rectification of the register or as directed by a court. [29] According to information provided by IP Australia, 248 mortgages were recorded between 1 January 1988 and 30 June 2004 under the previous legislation (Designs Act 1906 Cth) and fifteen mortgages recorded under the Designs Act 2003 (Cth) between 1 July 2004 and 30 June 2006. trade marks: a person who claims to have an interest in a registered trade mark which is not an assignment or transmission may, together with the registered owner of the trade mark, apply to the Registrar to have the particulars of the claim recorded on the Register of Trade Marks. [30] The application must be in an approved form and filed in accordance with the regulations, [31] however the fact that a record has been made in the Register that a person claims an interest in respect of a registered trade mark is not proof or evidence that the person has that right or interest. [32] plant breeders’ rights (“PBRs”): assignments or transmission of PBRs (including by way of mortgage) must be registered under section 21 Plant Breeders Rights Act 1994 (Cth). During 2005, 58 assignments were recorded. company charges: registration of and priorities in relation to company charges fall within the scope of Chapter 2K Corporations Act 2001 (Cth). An unregistered charge over the property of a company is not void, however it is at risk of postponement to registered charges [33] and a charge not registered within 45 days of creation or more than six months before the commencement of the winding up or administration will be void as against a liquidator, administrator or administrator or a deed of company arrangement. [34] This is an busy registry – during the last financial year: 120,000 company charges were registered 50,000 charge-related documents were registered (for example, proof of payment of stamp duty, discharge documentation) 40,000 search requests in relation to charges were made. Potential of gaps, overlaps and conflicts between differing systems This issue can be best be described by a simple hypothetical example. A corporation seeks to borrow from a financial institution in New South Wales. The financial institution is prepared to advance funds, provided that the corporation can provide security for the loan. The corporation owns property, physically located in New South Wales, Queensland and Victoria, including: Stock in trade in retail outlets Book debts Real estate, which, following a corporate acquisition several years ago, includes rural properties with cattle and sheep, and some sugar cane on a property near Innisfail in North Queensland Plant and equipment Vehicles A number of patents First, if any of the chattels are subject to retention of title clauses in favour of third parties, any security (registered or otherwise) taken by the financial institution over the chattels may be of no value – Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588. Second, a superficial analysis reveals that a number of security interests potentially relevant statutes include: Under the Corporations Act 2001 (Cth) the financial institution could take and register a floating charge over the stock in trade and the book debts [35] Similarly under the Corporations Act 2001 (Cth) a fixed charge over the plant and equipment, vehicles and patents could be created and registered Security interests in the stock in trade and the book debts could be registered in Queensland under the Bills of Sale and Other Instruments Act 1955 (Qld) The financial institution could take mortgages over the real estate under the Land Title Act 1994 (Qld), Real Property Act 1900 (NSW), and the Transfer of Land Act 1958 (Vic) Security could be taken over the cattle and the sheep, and the unshorn wool of the sheep, under the Security Interests in Goods Act 2005 (NSW), the Bills of Sale and Other Instruments Act 1955 (Qld), and the Instruments Act 1958 (Vic) A lien over the unharvested sugar cane could be offered under the Liens on Crops of Sugar Cane Act 1931 (Qld) It would be possible to take a registered security interest over the plant and equipment in New South Wales under the Security Interests in Goods Act 2005 (NSW) and in Queensland under the Bills of Sale and Other Instruments Act 1955 (Qld) The vehicles could be the subject of security interests under the REVS legislation in each State: Registration of Interests in Goods Act 1986 (NSW), Motor Vehicles and Boats Securities Act 1986 (Qld), Chattel Securities Act 1987 (Vic) Mortgages over the patents could be taken under the Patents Act 1990 (Cth) Further, depending on the nature of the security interest taken by the financial institution over the goods, it is at risk of defeat by a rival creditor who may have taken a security interest under another regime. An example of this occurred in Australian Central Credit Union v Commonwealth Bank of Australia [36] where the credit union loaned money on the security of a bill of sale over a car owned by a corporation. The credit union caused its interest in the vehicle to be registered in the REVS register under the Goods Securities Act 1986 (SA). Subsequently, the corporation gave a floating charge over its assets, which included the car, to the bank. The charge was registered pursuant to the Companies (SA) Code. When the corporation defaulted in the loan to the bank, the bank took possession of the corporation’s assets pursuant to its powers under the charge. At first instance [37] the court held that the interest registered under the Goods Securities Act 1986 (SA) prevailed over the company charge, however this decision was reversed on appeal. Although the Goods Securities Act 1986 (SA) was chattel specific, the Full Court took the view that the charge took priority because, inter alia, A company is under a legal obligation to register charges on the register A reasonable business person who takes a security interest under the REVS legislation should expect a chargee to register their charge over assets of the company under the relevant companies legislation. The view of the Court can be summarised where their Honours said: “It would be going a long way to hold that a person who relies upon the Companies (SA) Code register, which relates to all charges over assets of a company, is to lose his priority because he has not searched a register which is concerned not with charges over assets of a particular company but with security interests over all chattels, irrespective of ownership, of particular type or types.” [38] In the view of the court, the fact that the interest of the credit union was registered first under the Goods Securities Act 1986 (SA) neither provided notice to the registered chargee, nor accorded it priority. It is interesting that the Full Court in Australian Central Credit Union was not persuaded by the fact that the South Australian Goods Securities Act was chattel-specific, compared with the general application of the companies legislation. It is also interesting to speculate whether there would be additional constitutional implications should the same facts present to a court (namely the prevalence of Commonwealth over State law in specific circumstances [39]). However, even as between Commonwealth registers the rules are not consistent. As one writer notes: “the Patents Act and the Trade Marks Act both contain provisions which resolve priorities between competing securities in certain circumstances; the Copyright Act and Designs Act do not contain such provisions. Hence priorities between competing interests in a copyright or a design owned by a corporation will be resolved in accordance with the Corporations Law principles: priorities in a patent or trade mark will be resolved in accordance with the intellectual property legislation if its terms apply to the particular conflict and, if not, in accordance with the Corporations Law principles.” [40] The potential competition between different securities registration systems adds unwanted complexity to an already confusing legal area. History of attempted reform in Australia A serious, national approach to reform of personal property laws in Australia has been a long time coming, although to be fair the issue has been considered a number of times at government level. As is noted in the Options Paper itself, papers on this topic have been produced by: the Molomby Committee, an ad hoc committee of the Law Council of Australia produced for the Attorney-General of Victoria, in 1972 [41] the Victorian Law Reform Commission and the Queensland Law Reform Commission in 1992 [42] the New South Wales Law Reform Commission and the Australian Law Reform Commission [43] the Business Law Division of the Commonwealth Attorney-General’s Department [44] The developments in the early 1990s resulted from a concerted effort by Attorneys-General of the Commonwealth and the States to stimulate debate on the issue and endeavour to reach agreement. The only report produced on this work however was an interim report of the Australian Law Reform Commission in 1993. [45] The work was to some extent “kept alive” through the engagement of bodies including the Banking and Financial Services Law Association and the Law Council of Australia, and in particular the work of individuals such as the late Professor David Allan of Bond University and Craig Wappett. The ALRC report recognised that, under current laws, the legal consequences of particular types of financing and security arrangements depend on the legal form that an arrangement takes, rather than the economic or commercial function that it performs. Accordingly, the principal recommendations of the report were: a functional approach towards security interests should be adopted, rather than the current form-based approach. The recommendation was that “an interest in personal property should be a security interest, and therefore subject to the proposed regime, if, because of an arrangement between the parties that has the same effect as the provision of financial accommodation, one of the parties has a right to take possession of or otherwise deal with the property if there is default in repayment of the amount of the accommodation or in the obligation to be performed.” [46] The definition of security interest should extend to cases where what is secured is the performance of an obligation. It should not matter to whom the accommodation is provided, or by whom the obligation must be performed. It should be made clear that the location of title to the property and the legal form of the arrangement are not conclusive of the question whether an interest is a security interest. [47] A possessory interest should take priority over non-possessory interests other than those registered earlier in time. [48] Priorities between competing non-possessory security interests should be determined according to the following rules: A registered security interest prevails over an unregistered one A security interest registered earlier in time prevails over one registered later An unregistered but registrable security interest for which value is given earlier in time, prevails over an unregistered security interest for which value is given later in time. [49] A purchaser in good faith who buys goods in the ordinary course of business from a dealer would be protected against all securities, whether or not registered, and whether or not the purchaser takes with notice. [50] The Australian Register of Company Charges should be used as the basis for a single national system of registration for personal property securities. [51] The Options Paper The paper itself is in the nature of a “testing of the water.” It seeks input to ascertain whether there is sufficient in-principle support to progress reform, and whether interested persons would support development of law reform proposals. It also seeks comment on two issues: 1. whether the law on personal property securities should be changed so that registration is not based on the form of collateral, but instead on whether the substance of the transaction is to take security over personal property, and 2. what would be the key design features of system for registering personal property securities, and for maintaining and searching the register. Key drivers for reform are identified throughout the paper, and include: economic inefficiencies inherent in the current system, including the variations in the ability to register a security over property across jurisdictions. It is important that property, both real and personal, is not, in the words of Lord Browne-Wilkinson, “economically sterile.” [52] The flow of funds to businesses should not be impeded because it is not possible to register security interests over business property. The fact that security cannot be registered in respect of newer types of property potentially stifles innovation, as developers of new types of property may have difficulty attracting capital because of the inability to offer registrable security over the property. The paper itself notes that this means that such businesses “are at a competitive disadvantage and face a higher cost of capital than those engaged in other activities where securities may be registered.” [53] uncertainty for consumers in acquiring goods which may be the subject of a security interest. additional compliance costs on parties to securities transactions, and on everyone who deals in personal property arising from the fragmented nature of the existing regime (including, depending on the nature of the property, the necessity to search multiple registers. [54]) the fact that the current regime is out of date, and does not reflect the movement of Australian economic and employment activity over the twentieth century from agriculture and mining to services. [55] increasing movement of personal property among the States and Territories and into and out of Australia, justifying a national focus to personal property security. [56] How does it work in other jurisdictions? The concept of a uniform personal property security regime and register is not new. Three international examples which have been advanced as possible models for Australia are: Article 9 Uniform Commercial Code (“UCC”) of the United States, which was enacted in almost all States [57] in 1968, and has been the subject of subsequent revisions including a major revision effective in most States on 1 July 2001. The Personal Property Securities Acts of each province and Territory of Canada, [58] which are based on Article 9 UCC. The Personal Properties Securities Register regime established by the Personal Property Securities Act 1999 (NZ), which has been operational since 1 May 2002. Interestingly, despite proposals by the UK Law Commission, there has been little movement in the UK towards establishing a similar regime. [59] Many aspects of Article 9 were reflected in the proposals of Australian law reform commissions already mentioned in this paper. So, for example, under the UCC, the “substance over form” approach has been taken, and a “security interest” defined as an interest in personal property or fixtures which secures payment or performance of an obligation (Article 1 – 201 (37)). A valid security interest for the purposes of Article 9 UCC is created where a creditor extends credit, a security agreement is authorised by the debtor which indicates the types or describes the items of property being used as security (“collateral”), and a financing statement is filed with the relevant state agency where the debtor is located (which, in the case of a debtor which is a corporate, LLC or limited partnership, is its jurisdiction of organisation). As a general rule, conflicting security interests in the same property rank according to priority in time of filing or perfection (Article 9-312 (5)(a)) and so long as conflicting security interests are unperfected, the first to attach has priority (Article 9-312 (5)(a)). Closer to home, the New Zealand system is an electronic system offering a centralised, electronic register. Like Canadian and US legislation, it creates a “substance over form” approach to the notion of a security interest. The Act is clearly based on the Saskatchewan Personal Property Securities Act 1993. “Security interest” is defined as follows (1) In this Act, unless the context otherwise requires, the term “security interest” (a) means an interest in personal property created or provided for by a transaction that in substance secures payment or performance of an obligation, without regard to (i) The form of the transaction; and (ii) The identity of the person who has title to the collateral; and (b) includes an interest created or provided for by a transfer of an account receivable or chattel paper, a lease for a term of more than 1 year, and a commercial consignment (whether or not the transfer, lease, or consignment secures payment or performance of an obligation) (2) A person who is obligated under an account receivable may take a security interest in the account receivable under which that person is obligated (3) Without limiting subsection (1), and to avoid doubt, this Act applies to a fixed charge, floating charge, chattel mortgage, conditional sale agreement (including an agreement to sell subject to retention of title), hire purchase agreement, pledge, security trust deed, trust receipt, consignment, lease, an assignment, or a flawed asset arrangement, that secures payment or performance of an obligation The website of the Personal Property Securities Register, which can be found at , makes interesting reading. Key aspects of the New Zealand system include: it is cheap. Creating a financing statement on the register costs $3.00, renewing it costs $5.00, and amending or discharging it is free. Financing statement registration number searches allow for up to 10 financing statements to be searched at one time. everything is electronic. Lodgement of financing statements is electronic; there is no manual lodgement. To conduct a search, users are required to first create a “secured party group” on the system, which may be one or more secured parties. To do this is free. registration determines priority. the regime has replaced four personal property securities registers, namely the Motor Vehicle Securities Register, the company charges register held in the Companies Office, the industrial and provident societies charges register held at the Companies Office, and the twelve chattels registers held at the High Courts. Interestingly, transitional arrangements included that those four replaced registers closed for registrations in April 2002 but remained available for searching for six months, and to retain the priority date of existing security interests, secured parties were required to re-register notice of their interests on the new register within six months of the register becoming operational. There was no automatic transfer of data between replaced registers and the new register. From available statistics the regime appears to be a successful initiative. In the last financial year: there were 577,282 personal property security interest registrations, which was 11% higher than forecast, and 2,430,492 electronic searches, which was 66% higher than forecast. [60] The New Zealand experience is particularly interesting, not only in view of similar financial and cultural approaches to credit, and also in view of the practical issue that major financial institutions, which would frequently be creditors and thus have a major interest in the creation of a new regime in Australia, are already operating under the New Zealand regime. According to a recently published report by Access Economics, there have only been two legal disputes in New Zealand concerning the PPSR regime, and both have involved the situation where the creditor did not re-register a pre-PPSR security interest. [61] Going forward Discussion of the proposed reforms has taken place at high level, both at the Standing Committee of Attorneys-General and the Council of Australian Governments. Consultation by the Attorney-General’s Department continues, including at this conference. The approach taken by the financial services industry, consumers, the legal and accounting professions, and industry groups, will be of particular interest. While the New Zealand example is interesting, it should not be forgotten that New Zealand is not a federation, and is without the federal constitutional implications for enactment of legislation of this nature which are inevitable in the Australian context. One possible approach is similar to the Consumer Credit Code and, in the personal property security area, the US Uniform Commercial Code and Canadian provincial statutes, namely uniform State-based legislation. While the adoption of a uniform approach to registration of security interests in the United States and Canada has led the world, a “code” implemented by all States approach always runs the risk that not all participating jurisdictions will enact the legislation at the same time, or in the same way (or even that all will participate). [62] Other obvious inconveniences of the “code” approach are that failure to file in the correct jurisdiction may result in a loss of the security, conflict of laws issues will arise in relation to, for example, the place of registration of the security interest, [63] and there is always the risk that different jurisdictions will interpret the code differently. [64] However, it should also be acknowledged that this approach seems to have worked well in the United States over four decades. It is interesting to note that the personal property security regimes in place in the United States and Canada are not, if the pun can be excused, “perfect”. They remain the subject of continuing reform, as indicated by the revision in 2001 of the Uniform Commercial Code [65] and have been the subject of an extensive body of law arising from interpretation of particular provisions, which will in itself sound warning bells for Australian legislators. The Australian proposals in respect of reforming the laws in this country are however to be applauded, as an initiative to bring this area of law into the twenty-first century in this country. [1] Speech of Robert Torrens at a Public Dinner at Salisbury, 1 June 1857, Speeches of Robert R Torrens Esq, Explanatory of his Measure for Reform of the Law of Real Property to which is Appended Copy of the Act as passed by the Parliament of South Australia, 1858 page 8 [2] D Kerr The Australian Lands Titles (Torrens) System (Law Book Company, 1927) page xii [3] Land Title Act 1994 (Qld), Real Property Act 1900 (NSW), Real Property Act 1886 (SA), Land Titles Act 1980 (Tas), Transfer of Land Act 1958 (Vic), Transfer of Land Act 1893 (WA), Land Titles Act 1925 (ACT), Land Title Act (NT) (enacted in 2000) [4] Only New South Wales, Victoria, Western Australia, and to a lesser extent Tasmania have general law land: A Bradbrook, S MacCallum and A Moore Australian Real Property Law (Lawbook Co, 2002) page 113. In New South Wales for example, all lands alienated by the Crown in fee simple since 1 January 1863 are held under Torrens title, many parcels of land granted to that date have been converted to Torrens title, and by 2004 it was estimated that there were more than 2,000,000 parcels of land under Torrens title in New South Wales and only 15,000 old system parcels remaining to be converted to Torrens title: P Butt Land Law (Thomson Lawbook Co, 2006) pages 720-721 [5] This is common in many jurisdictions. See for example comments in Ian P. Williamson “The Role of Land and Geographic Information Systems In Economic and Environmental Management” The South African Journal of Surveying and Mapping, Vol. 22, Part 5, 309-320, 1994.  [6] According to the Australian Bureau of Statistics, across all households housing accounted on average for 60% of all assets, and 70% of households owned or were buying their own home: D Trewin, Australian Statistician, Australian Social Trends 2006, Australian Bureau of Statistics 20 July 2006 [7] Sykes and Walker at 530-531. A number of these Acts remain in operation: see Bills of Sale and Other Instruments Act 1955 (Qld), Bills of Sale Act 1886 (SA), Bills of Sale Act 1900 (Tas), Bills of Sale Act 1899 (WA) [8] Attorney-General The Hon Philip Ruddock MP News Release 058/2006 11 April 2006 [9] EI Sykes and S Walker The Law of Securities 5th edition (Law Book Company 1993) page 531. This problem has been recognised for centuries – one celebrated early reported example being Twyne’s Case [1601] EngR 4; (1602) 3 Co Rep 80, 76 ER 809, [1556-1774] All ER Rep 303 [10] Section 29 Sale of Goods Act 1954 (ACT), section 28 Sale of Goods Act 1923 (NSW), section 28 Sale of Goods Act (NT), section 27 Sale of Goods Act 1896 (Qld), section 25 Sale of Goods Act 1895 (SA), section 30 Sale of Goods Act 1896 (Tas), sections 30 and 31 Goods Act 1958 (Vic), section 25 Sale of Goods Act 1895 (WA) [11] In short, Romalpa clauses in individual cases derive their legitimacy from contract, the applicable Sale of Goods Acts, and principles of agency, trust and bailment [12] They do not give rise to a company charge: Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588; nor a security interest for the purposes of, for example, the Chattel Securities Act 1987 (Vic): Southbank Traders Pty Ltd v General Motors Acceptance Corporation Australia [2006] VSCA 102 [13] Although not all types of personal property can be subject to security interests. A macabre example of "property" which cannot be retained by a creditor as a security for the debt is the corpse of the debtor: see R v Fox [1841] EngR 1003; (1841) 2 QB 246 and R v Scott (1842) 2 QB 248n [14] definition of “stock” section 3 (1) Security Interests in Goods Act 2005 (NSW) [15] Definition of “motor vehicle” in section 3 Motor Vehicles Securities Act 1984 (Tas) and section 3 (1) Vehicle and Traffic Act 1999 (Tas) [16] Liens on Crop of Sugar Cane Act 1931 (Qld) [17] Security Interests in Goods Act 2005 (NSW) [18] For example, the Motor Vehicle Securities Acts in force in Queensland, Tasmania, [19] Options Paper Attachment D page 24-25 [20] Options Paper Attachment D page 24-25 [21] Sale of Motor Vehicles Act 1977 (ACT), Registration of Interests in Goods Act 1986 (NSW), Registration of Interests in Motor Vehicles and Other Goods Act 1989 (NT), Motor Vehicles and Boats Securities Act 1986 (Qld), Goods Securities Act 1986 (SA), Chattel Securities Act 1987 (Vic), Chattel Securities Act 1987 (WA) [22] In the last financial year the number of transactions on each REVS database was as follows: NSW, ACT, NT - 1.4 million Victoria - 1.3 million Queensland - 1.2 million South Australia - 332,815 Western Australia - 433,522 Tasmania - 19,193 [23] Section 38 (3) Shipping Registration Act 1981 (Cth) [24] Sections 38,39 Shipping Registration Act 1981 (Cth) [25] Section 187 Patents Act 1990 (Cth) and regulation 19.1 (1)(a) Patent Regulations [26] Section 196 Patents Act 1990 (Cth) [27] Paragraph 37, referring to Martin Engineering Co v Matflo Engineering Pty Ltd (1987) 17 FCR 132, AIPC 90-430 [28] Section 114 Designs Act 2003 (Cth) [29] Section 119 Designs Act 2003 (Cth) [30] Section 113 (1) Trade Marks Act 1995 (Cth). A similar application may be made in respect of unregistered trade marks in respect of which a person has applied for registration: section 117. [31] Section 113 (2) Trade Marks Act 1995 (Cth) [32] Section 116 Trade Marks Act 1995 (Cth) [33] Sections 279-282 Corporations Act 2001 (Cth) [34] Section 266 Corporations Act 2001 (Cth) [35] In view of the recent House of Lords decision in Re Spectrum Plus Ltd (in liquidation) (2005) 3 WLR 58 it appears that a floating charge is more appropriate to book debts than a fixed charge although cf Whitton v ACN 003 266 886 Pty Ltd (in liq) [1996] NSWSC 534; (1996) 42 NSWLR 123 [36] (1991) 4 ACSR 145 [37] (1990) 54 SASR 135 per White J [38] (1991) 4 ACSR 145 at 152 [39] Chapter Section 109 of the Australian Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid [40] M Pattison “Using Intellectual Property as a Security” (1996) 7 AIPJ 135 at 145 [41] “Report on Fair Consumer Credit Laws to the Honourable G O Reid QC, MLA, Attorney-General for the State of Victoria by a Committee of the Law Council of Australia” Melbourne, 1971-1972 [42] A joint discussion paper “Personal Property Securities law: A blueprint for reform” Queensland Law Reform Commission Discussion Paper 39 and the law Reform Commission of Victoria Discussion paper 28 [43] A joint discussion paper “Personal Property Securities” The Law Reform Commission of Australia Discussion Paper 52 and the New South Wales Law Reform Commission Paper 28 published in 1992 [44] A paper entitled “Personal Property Securities”, January 1995 [45] The Law Reform Commission of Australia, “Personal Property Securities” Report No 64 (Interim) 1993 [46] Paragraph 5.10 [47] Paragraph 5.10 [48] Paragraph 6.12 [49] Paragraph 6.8 [50] Paragraph 9.7 [51] Paragraph 11.11 [52] Barclays Bank plc v O’Brien [1993] UKHL 6; (1994) 1 AC 180 at 188 [53] Paragraph 53 [54] In the case of motor vehicles for example, each State and Territory has its own register of security interests. Discussions have progressed since August 2002 when the possibility of a national register was considered by the Ministerial Council of Consumer Affairs, to review of a report in March 2006 by the Standing Committee of Officials of Consumer Affairs on the issue [55] As Saul Eslake points out, in 1900 farming, forestry and fishing accounted for 20% of Australia’s gross domestic product and mining for a further 10%, at which time the agricultural and mining sectors provided 95% of Australia’s exports and jobs for about 30% of Australia’s workforce. By the end of the twentieth century however, agriculture and mining accounted for 7.5% of Australia’s total output, 6% of its workforce and 42% of its exports. By way of further comparison, the services sector, including wholesale and retail trade, transport and communications, finance and insurance, property and business services, personal services, tourism and recreation and government and community services, account for 72% of Australia’s gross domestic product, employ nearly three out of every four Australians in the workforce, and provide over 20% of Australia’s export income: Saul Eslake “An Introduction to the Australian Economy”, July 2002, pages 1-2 [56] Paragraph 96 [57] With the exception of Louisiana, which subsequently enacted the Code [58] A useful website with links to all of these Acts is [59] The UK Law Commission published a Consultation Paper Registration of Security Interests: Company Charges and Property other than Land in 2002, and subsequently on 31 August 2005 a report recommending reform of the system for registering company charges Company Security Interests. To date the recommendations in the report have not been implemented – the Company Law Reform Bill, introduced into the House of Lords on 1 November 2005, did not include specified powers to implement the Law Commission’s recommendations in relation to security. Gerard McCormack discusses resistance to the proposals in “The Law Commission Consultative Report on Company Security Interests: An Irreverent Riposte” (2005) 68 MLR 286. For a summary of the proposals see the discussion on the Law Commission’s website at [60] Annual Report of the Ministry of Economic Development (NZ) for the Year Ended 30 June 2005 [61] After several years with few disputes before the courts, a number of cases have come before the High Court and the Court of Appeal within the last eighteen months: see for example Service Foods Manawatu Ltd (Receivers) v NZARFD [2006] NZHC 14 (perfection of security interests and retention of title under PPSA regime); Sleepyhead Manufacturing Co Ltd v Dunphy and Shephard [2006] NZHC 125 (the relationship between a security interest under the PPSA and a charge under the Companies Act 1993 (NZ)); Asset Traders Ltd v Favas Sportscar World Ltd [2006] NZHC 903 (maintenance of Financing Statements registered over motor vehicles, personal rights as distinct from security in personal property); Paalvast v Civil Aviation Authority [2006] NZHC 143 (PPSA and Civil Aviation Act 1990 (NZ)); NZ Bloodstock Limited v Waller [2005] NZCA 254 (interpretation of the PPSA, including exclusion of nemo dat principle, issue of leasehold interests and relevance of principles of quasi-security) [62] As noted in one US legal newsletter, “hold-out” States eventually implemented the revisions to Article 9, namely Connecticut on 1 October 2002, and Alabama, Florida and Mississippi on 1 January 2002 (note D Mayer, Patton Boggs LLP Newsletter, It is interesting however to note revisions to Article 8, which were originally promulgated in 1994 but by the end of 1996 only 60% of States had adopted them. In Canada, it has taken several decades for all provinces to come on board in relation to this legislative approach to personal property security regulation. [63] Under the UCC in its previous form, perfection of security interests in goods was accomplished by filing in the jurisdiction where the goods were located or, if the property in question was intangibles, where the debtor was located. Under the current regime, filing of the security interest takes place in the jurisdiction where the debtor is located. [64] This is an issue which has arisen in interpretation of the UCC in the United States by State Supreme Courts, although UCC section 1-102 states the purposes and policies of the UCC: note comments of Professor Harry C Sigman at [65] The reform landscape in Canada is described in A J Duggan “Personal Property Security Law Reform in Canada”, paper presented at the Policy Development Workshop on 25 July 2006,