Personal Property Security Research Articles

Uniform Personal Property Security Legislation for Australia - Introduction to the Workshop on Personal Property Security Law Reform

This is a Report, as an Introduction to this Special Issue of the Bond Law Review, on the history of the campaign in Australia to introduce sensible reforms of personal property security law, culminating in a Workshop held at Bond University on 25 – 27 April 2002. The Proceedings of the Workshop are included in this Special Issue in some detail, but it is also necessary to provide an account and explanation to the background to those Proceedings.

Final Report - Workshop on Personal Property Security Law Reform

Work on the reform of the law relating to personal property security law reform has been under way in Australia for more than 40 years. Although it has progressed sporadically, it has had a constant objective. That objective has been to streamline the multiple and complex system of State and federal laws and procedures, based on statute and case law, in order to develop an efficient and modern regime to reduce the uncertainty and cost of financing transactions against personal property. The category of property described as “personal” has increased in size and value over that time, and it now plays a much greater role in security for business finance. Advances in technology have made the task of developing an appropriate infrastructure more effective and straightforward. Changes in taxation laws have meant that there is less emphasis on the production and registration of documents for revenue purposes. Our economy has become more dependent on credit for growth at all levels.

A User’s Guide to Australian Secured Transactions Law Reform

extract] Talking about law reform, before we have a bill, let alone before reform has been enacted, has the appearance of hubris of the rankest sort. Talking about secured transactions law reform looks even worse. After all, it has been talked about for a long time. And there are many who consider a sufficient case has not been made for it. I look at the matter another way. For me, the persistence of the discussion of the case for reform suggests there is ground for a concern that will not go away. Now we have new draft legislation, for a Personal Property Security Act for Australia . It might be enacted as uniform state law, or as federal law under a suitable new referral of legislative power.

The Perspectives of Borrowing Corporations Under the Personal Property Security Bill

extract] While there are some matters which may cause concern in the Personal Property Security Bill, the certainty and efficiency which its introduction offers clearly offset these potential sticking points. Moving to registration based upon functionality rather than on the basis of archaic and highly artificial constructs must be an improvement. Further, under the new provision, the question of priority is clear from the time the security interest is created thereby imposing less risk on creditors. This should result in greater willingness to extend credit. With less uncertainty and greater supply, the cost of capital to borrowing corporations should be comparatively less than is currently the case. Who would argue with that result if it transpires?

Uniform Personal Property Security Legislation for Australia -Constitutional Issues

Uniform Personal Property Security Legislation for Australia -Constitutional Issues

Final Report - Workshop on Personal Property Security Law Reform

Work on the reform of the law relating to personal property security law reform has been under way in Australia for more than 40 years. Although it has progressed sporadically, it has had a constant objective. That objective has been to streamline the multiple and complex system of State and federal laws and procedures, based on statute and case law, in order to develop an efficient and modern regime to reduce the uncertainty and cost of financing transactions against personal property. The category of property described as “personal” has increased in size and value over that time, and it now plays a much greater role in security for business finance. Advances in technology have made the task of developing an appropriate infrastructure more effective and straightforward. Changes in taxation laws have meant that there is less emphasis on the production and registration of documents for revenue purposes. Our economy has become more dependent on credit for growth at all levels.

Personal Property Security - A Long Long Trail A-Winding

extract] The promised land where it exists is said to be a new security law. It is based on, but does not necessarily slavishly follow, article 9 of the US Uniform Commercial Code and those statutes which have followed it in some of the Canadian Provinces and, most recently, in New Zealand. In Australia and New Zealand it has indeed been a long long trail a-winding. There have been many mountain ranges of difficulty and even sometimes of opposition to surmount. And each time a range has been crested we have expected to see the promised land on the other side. But all too often it has been just another range of mountains. The most recent range was revealed at the Australia New Zealand Banking Law Association Conference on 8 and 9 June 2000 at the Sheraton Mirage Hotel on the Queensland Gold Coast. Part 1 of this paper was written in the days preceding that Conference. It sets out the path we have followed and the ranges we have crested. Part 2 was written on 12 June 2000, just after we crested the range revealed at the Conference.

A Voluntary Filing System for Secured Financing Transactions in the European Union

In this article the authors urge the adoption of a personal property security regime that rests on a system of voluntary submission by debtors to a filing system. Under the system, debtors seeking to secure borrowing with their personal property announce their election of the harmonized system in order to facilitate cross border asset based financing. The authors argue that the diverse nature of property law in Europe makes it impossible to adopt a required regime of a personal property law fully integrated into the property regimes of Member States. They propose as an alternative, the voluntary system, which would be supported by European Union legislation, but that legislation would not supersede municipal law and would apply only if borrowers elect to make themselves subject to it.

Enforcement Remedies of Creditors

This article begins by discussing the history of the enforcement remedies possessed by creditors against debtor's goods in Alberta. The author examines the new Personal Property Security Act legislation and the more recent Civil Enforcement Act. He outlines the objectives of such legislation and the competing policy concerns that need to be considered when such legislation is drafted. The article concludes by assessing the approach taken in relation to the four rudimentary elements of an enforcement system: seizure, sale, restrictions of enforcement, and judicial intervention.

Enforcement Remedies of Creditors

This article begins by discussing the history of the enforcement remedies possessed by creditors against debtor's goods in Alberta. The author examines the new Personal Property Security Act legislation and the more recent Civil Enforcement Act. He outlines the objectives of such legislation and the competing policy concerns that need to be considered when such legislation is drafted. The article concludes by assessing the approach taken in relation to the four rudimentary elements of an enforcement system: seizure, sale, restrictions of enforcement, and judicial intervention.

The PPSA Writing Requirement and Priority Among Competing Perfected Security Interests

The writing requirement for non-possessory security interests has been a feature of PPSA legislation in common law Canada from its beginnings. For a non-possessory security interest to attach and become enforceable as against third parties, the debtor must have signed a secu- rity agreement containing a description of the collateral, l After several decades of judicial and scholarly scrutiny, the impact of the writing requirement ought to have been settled. However, in the second edition of their excellent handbooks on the Alberta and British Columbia Personal property Security Acts. Professors Cuming and Wood attribute a priority effect to the requirement which many observers are likely to find surprising. The comment shall take issue with the approach they advocate. The debate, however, raises the larger question of the function of a writing requirement for security agreements in a registry system which does not require registration of the security agreement but simply notice of the security interest created by the agreement. The conclusory portion of the comment will address this larger question.

Non-Consensual Security Interests in Personal Property

The authors trace the chaotic growth of non-consensual security interests in personal property. Rules governing non-consensual security interests are analyzed and shown to have developed in an inconsistent and unpredictable manner. The authors set out a framework to resolve the priority contests between security interests governed by the Personal Property Security Act and non-consensual security interests. Ultimately, the authors call for reform to this area of the law, similar to that which occurred to chattel security law with the advent of the Personal Property Security Act, so as to create some degree of predictability in the area.

Good Faith Duties of Secured Parties and Receivers under the Personal Property Security Act

Mirth presents a detailed discussion of the duties of secured parties and receivers to act in good faith under the Personal Property Security Act of Alberta. The focus is on ss. 16 and 66 of the Act which set out requirements similar to those codified in Part 8 of the Alberta Business Corporations Act. First, the duty of receivers to pursue the best possible price on the sale of assets is considered. Mirth then goes on to discuss how the duty of good faith was defined in pre-PPSA situations and determines that the duty will be of much more positive nature in the future: recent cases indicate that the test will be whether the actions undertaken were "commercially reasonable" in the situation. Mirth continues with an analysis of recent Alberta case law which is tending to offer a broad view of the duty of good faith. Ultimately. Mirth concludes that although the Alberta Court may have gone a little far in shifting the burden, the PPSA provisions have definitely resulted in stricter duties for receivers and secured parties than what existed under the old common law regime.

Section 107 of the Land Titles Act

Section 107 of the Land Titles Act prevents the operation of certain interests in land described in terms of personal property security. The section was amended in 1990 in response to the enactment of the Alberta Personal Property Security Act. This comment examines the historical application of the section and continues on to look at how the amended section will be interpreted. It is concluded that the wording potentially catches more than is needed to secure the section's original purpose.

The Personal Property Security Act of Alberta - Implications for Oil and Gas Lenders

The proposed Personal Property Security Act introduces a new statutory regime for taking and perfecting security interests in personal property. Lawyers acting in secured transactions involving oil and gas assets must become knowledgeable about the Act and its advantages and pitfalls. Vie paper reviews key concepts introduced by the Act and assesses the impact of the Act on secured oil and gas financings.

The New Personal Property Security Regimes - Have We Gone Too Far

The following is an excerpt from the Alberta Law Review's new book An Introduction to the Personal Property Security Act of Alberta. Professor Ziegel, who has been involved with PPSA legislation since its introduction in Canada in the 1970's, considers the philosophical underpinnings of this new wave of creditor-debtor regulations. He is concerned that the benefit to the secured creditor may be gained at the expense of unsecured parties, and suggests further fine tuning may be required to better balance the respective interests of secured and unsecured creditors.

The Floating Charge in Canada

This article examines the evolution of the floating charge in England and Canada, and predicts its demise as a conceptually discrete security device upon the enactment of personal property security legislation in the provinces. However, the author contends that a study of the floating charge can aid our understanding of the economic and historical processes that shaped the judicial attitude towards the security idea and explains how this will be of continuing relevance following the implementation of a personal property security regime in Alberta.

The Reform of Personal Property Security Law: Can Article 9 of the US Uniform Commercial Code be a Precedent?

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Secured Credit and Bankruptcy: A Call for the Federalization of Personal Property Security Law

We frequently assume that a state of affairs as we find or experience itwhether that state of affairs be cultural, institutional, or personal-both is, and should be, the norm. This objectivization arguably functions to facilitate acceptance of our environment, but it also makes critical assessment difficult and change often beyond contemplation. To what degree does this egocentric phenomenon operate in law, and more specifically among legal scholars? It might be thought to operate little, for legal scholars seem constantly to be engaged in an inquiry into what the law should be. But even those who participate in that inquiry frequently start with fundamental assumptions about the status of law that go unchallenged as other policy issues are confronted. And if the assumption relates to the supposed form of the law, as opposed to its content, there seems to be a lesser tendency to recognize and correct anomaly. The stranger to our legal system does not share this perceptual problem, as he has not yet adapted to this legal environment in which we write and teach.

The Modernization of Canadian Personal Property Security Law

The Modernization of Canadian Personal Property Security Law