It seems like there is never ending content on the PPSA out there. It could be easy to feel as though you have read it all, seen it all and know it all.
This week, we turn it up a notch by sharing 3 interesting points about the PPSA that you might not have come across before.
IT’S ALL ABOUT CONTINUOUS PERFECTION
You have probably heard that a security interest must be ‘perfected’ in order for it to be effective, often by registration of a financing statement on the PPS Register. A ‘set and forget’ sort of thing, right?
Did you know that a security interest must not only be perfected, but continuously perfected over the life of the security interest? Yes, maintenance of continuous perfection is implicit in an effective registration. If there’s a gap in perfection (for example, an expired registration) then the validity and priority of your security interest will be in trouble. You can thank section 21 of the PPS Act for that.
But don’t worry just yet, because section 56 will help you out – a security interest can be continuously perfected in several ways, even if that is in 2 or more different methods and at different times.
Our tip: Check whether your registrations are due to expire from January 2019 onwards so that you can prepare to continuously perfect your current registrations but do it early. Don’t wait until the last day!
WHAT AM I ACTUALLY REGISTERING?
It’s easy to think that we are registering our security interests on the PPS Register. You have probably seen this phrase in Terms and Conditions of Sale or heard people mention, “registration of my security interest”.
But did you know that this phrase is not strictly accurate and could cause confusion?
A security interest under the PPS Act is not actually registered, nor is there any way to upload a security agreement to the PPS Register. It is actually a financing statement that is lodged on the PPS Register to give notice of the existence of a security interest. Trust us when we say that the last thing you want in a priority dispute is for your T&C’s (i.e. your security agreement) to be considered misleading.
Our tip: Check your Terms and Conditions to see how your PPSA clauses are actually worded around registration – is it ‘security interest’ or ‘financing statement’? Make sure your terms actually provide the correct PPSA protection.
THE TENSION BETWEEN THE PPSA AND THE UNFAIR CONTRACTS REGIME
If you have updated your T&C’s in the last few years, chances are those updates could constitute a whole new contract between your organisation and your customers rather than a mere amendment to the existing one (depending upon the nature of the changes and how your existing T&C’s allow updates to be made).
A new contract can result in the creation of a new security interest; a new security interest means a new registration. This is extremely resource intensive for business because it potentially requires new registrations each and every time updates are made to your T&C’s. Yikes!
Did you know that there is a way to mitigate this? A supplier can reserve the unilateral right in its T&C’s to modify terms without necessarily creating a new contract and/or a new security interest.
The catch is that provision of unilateral rights in T&C’s may be caught by the Unfair Contracts Regime for imbalance and unfairness. The most appropriate drafting often comes down to balancing the risks that are inherent in both the PPSA and the Unfair Contracts Regime.
Our tip: Review your T&C’s to know how updates are allowed to be made to your agreements.
Stay tuned for Part 2 of PPSA: Did You Know? and be on the lookout for the second Webinar in the CreditorWatch PPSA series which was held on Thursday 6 September 2018, where it’s all about ‘PPSA: Getting it right’.
Contact us now on (02) 8488 3389 to make sure you are PPSA protected.