How do I enforce my PPSR interest?

How do I enforce my PPSR interest?

If you have registered your interest in property on the Personal Property Securities Register (PPSR), here’s some tips on how to enforce it.

Step 1:  Is there a ‘default’ under the Security Agreement?

You will need to carefully review the terms of the Security Agreement to check that the grantor / borrower (i.e. the person that has granted you a security interest in their property) has actually defaulted under the Agreement and that the default allows you to take enforcement action.

You may not be able to exercise certain powers if they haven’t been specifically granted to you under the Security Agreement.

If you are unsure of your rights and obligations under the Security Agreement, call us on 1300 654 590.

Step 2:  Seize the Property

If you are:

  • Empowered under the Security Agreement to take enforcement action; and
  • There are no other parties that rank in priority to your security interest,

then you will need to physically seize the secured property (‘the collateral’).

You now have two options.  Either:

  • Option 1:  Dispose of the collateral; or
  • Option 2:  Retain the collateral.

If you need some help to seize the collateral and decide what to do next, please call us on 1300 654 590.

Step 3: Dispose or Retain the Collateral

Option 1 – Dispose of the Collateral

If you choose to dispose of the collateral, you have three choices.  You can:

  • Sell the collateral, either by private sale or public auction;
  • Lease the collateral (if the Security Agreement permits); or
  • License the collateral if it is intellectual property.

If you are thinking of disposing of the collateral and would like to discuss your options, please call us on 1300 654 590.

What are the steps involved in disposing of the collateral?

In most cases, you need to give notice of your intention to dispose of the collateral to:

  • The grantor (e.g. the borrower under your Security Agreement); and
  • Other parties that have a secured interest in the collateral.

This notice usually must be given at least 10 business days before you take steps to dispose of the collateral.  A pro-forma ‘Notice of Intention to Dispose of Collateral’ is provided in the Forms section of the PPSR website.

Important things to watch out for before you dispose of collateral

Redemption

At any time before you dispose of the collateral, the grantor (e.g. the borrower under the Security Agreement) or any other secured party may ‘redeem’ the collateral by paying all outstanding amounts secured against the collateral plus secured enforcement expenses.  After redemption, the redeeming person becomes the owner of the collateral and is entitled to possession.  The grantor has a priority right to redeem collateral over the right of any secured party.

Reinstatement

At any time before you dispose of the collateral, any person may reinstate the Security Agreement by paying the amount outstanding under the Security Agreement plus secured enforcement expenses.  Once reinstated, you must return the collateral to the grantor and the rights and obligations under the Security Agreement continue as if the default had not occurred.

The sale process

When you sell the collateral, you have an obligation under the Personal Property Securities Act (PPSA) to achieve market value, or to otherwise obtain the best price that can reasonably be obtained.

After you have sold the collateral, the proceeds must be distributed among the parties that have a security interest in the collateral in their order of priority. Any funds left over must be distributed to the grantor.  You are only entitled to be reimbursed for any costs that you incur in selling the collateral if this is specifically provided in the Security Agreement.

If requested by another secured party or the grantor, you may be required to provide a statement setting out the price that you sold the collateral for and what you have done with the sale proceeds.  Usually the statement will need to be provided within 20 business days of the request.

Option 2 – Retain the Collateral

If you choose to keep the collateral, you need to first give notice to:

  • The grantor (e.g. the borrower under your security agreement); and
  • Other parties that have a secured interest in the collateral.

This notice usually must be given at least 10 business days before you take steps to retain the collateral.  A pro-forma ‘Notice of Proposal to Retain Collateral’ is provided in the Forms section of the PPSR website.

If one of the parties objects to you retaining the collateral, then you will need to take steps to dispose of the collateral in accordance with the PPSA.

If the notice time frame expires and you do not receive a notice of objection, you can then take steps to transfer legal ownership of the collateral to yourself.  Once this has been done, all lower priority security interests in the collateral are ‘extinguished’.

If you have received a notice of objection or need some help to transfer legal ownership in the collateral, call us on 1300 654 590.

Click here to find out more about how we can help you run your business.

 


If you enjoyed reading this article, don’t miss out on our latest posts:



Published by

Andrew

Lawyer to entrepreneurs and investors