Clause |
Sub no. |
Submitter |
Issue |
Comment |
6 |
21 |
Australian Financial
Markets Association |
Need to include investment
entitlement in the scope of the bill |
|
8(1)(f) |
18 |
Australian Securitisation
Forum |
Clarification of
extinguishment of beneficial interests of a transferee back to a transferor |
|
8(1)(f)(ii) |
6 |
Clayton Utz |
Mortgage backed
securitisations should be included in the bill |
Possible error |
10 |
6 |
Clayton Utz |
Definition of goods |
Policy difference |
10 |
10 |
Insolvency Practitioners
Australia |
Definition of 'insolvency'
and 'bankruptcy'. |
|
10 |
17 |
Combined four law firms |
Provisions relating to
ADI accounts should extend to accounts with other financial institutions |
|
10 |
19 |
Mr David Turner |
Definition of purchase
price and value re credit charges and interest payable is confusing |
|
10 |
25 |
Independent Film &
Television Alliance |
Clarify that the
definition of license includes a partial assignment of intellectual property
operating like an exclusive license. |
|
12 |
26 |
The Victorian Bar |
The definition of security
interest is too broad, Associated Alloys Case trust arrangements should
be excluded from the operation of the Act |
|
12(2) |
17 |
Combined four law firms |
Confuses position in
respect of leases as security interests |
|
12(2)(l) |
17
21 |
Combined four law firms;
Australian Financial
Markets Association |
Should not treat flawed
assets as security interests |
|
12(3) |
13 |
DLA Phillips Fox |
Querying why a
transferee of an unsecured monetary interest is taken to have a security
interest |
|
12(4) |
6
17
23 |
Clayton Utz;
Combined four law firms
Queensland Law Society |
Does not apply to ADI –
suggests amending to fix |
Possible error |
13 |
5 |
Consumer Action Law
Centre |
Amend definition of consumer
property to ensure protections properly apply to consumers |
Refine existing approach |
14(1)(b) |
25 |
Independent Film &
Television Alliance |
Ensure that this
section allows a PMSI for intellectual property |
|
14(2)(b) |
6 |
Clayton Utz |
Amended clause is too
broad |
|
14(2)(c) |
2,
19
20 |
Piper Alderman;
Mr David Turner;
Australian Finance
Conference |
Whether the clause will
increase the cost of consumer finance of non-serial numbered goods |
Policy difference |
14(2)(c) |
14
23 |
Australian Bankers'
Association
Queensland Law Society |
Retention of provision
will diminish choice in finance for consumer. |
|
14(3), (4) and (5) |
19 |
Mr David Turner |
Suggests the bill
consider the Canadian Chrysler decision, reconsiders notice
requirements |
|
15 |
6 |
Clayton Utz |
There may be unintended
consequences if the definition of investment entitlement is linked to
the corporations legislation definition |
Refine existing approach |
18(4) |
6 |
Clayton Utz |
Unintended ambiguity |
|
19 |
26 |
The Victorian Bar |
Needs to be expanded –
how does 19(2) operate on after-acquired future property |
|
20 |
13 |
DLA Phillips Fox |
Enforceability of
security interests re: third parties, even when not perfected with
registration |
|
20 |
17 |
Combined four law firms |
Insufficient precision
of what description should suffice |
|
21(2) |
25 |
Independent Film &
Television Alliance |
Allow intellectual
property interests subject to a specialised register to be perfected by
registration in the specialised register |
Policy difference |
26(1)(a) |
6 |
Clayton Utz |
Clause does not deal
with all circumstances |
Possible omission |
26 |
21 |
Australian Financial
Markets Association |
Should deal with
investment instruments registered in the name of a 3rd party as
per clause 27 |
|
28 |
18 |
Australian
Securitisation Forum |
Relationship between
'control' and letter of credit problematic in securitisation context |
|
32(2) |
13
21 |
DLA Phillips Fox;
Australian Financial
Markets Association |
Unclear restriction
re: market value of collateral |
|
34(1)(c)(ii) |
17 |
Combined four law firms |
Fixing constructive
knowledge on transfer is more harsh than overseas |
|
39(2) |
17 |
Combined four law firms |
'Gap' between foreign
registration and perfection. |
|
Part 2.5
41-53 |
26 |
The Victorian Bar |
Issues of concern
relating to sections 46, 47, 49, 50, 51 and 53 |
|
43 |
19 |
Mr David Turner |
Section 43 is confusing
and policy reasoning is not clear |
|
44 |
19 |
Mr David Turner |
Complicated drafting |
|
46 |
19 |
Mr David Turner |
Wording different from
the NZ legislation |
|
47(1) |
14 |
Australian Bankers'
Association |
Taking of personal
domestic or household property free of security should be at arms length |
|
50 |
17 |
Combined four law firms |
'Consensual'
transactions; impact on efficacy of takeovers |
|
51 |
21 |
Australian Financial
Markets Association |
Clarify ambiguity about
knowledge of interest in investment entitlement |
Possible error |
55(5) |
6 |
Clayton Utz |
Does not include
'perfection by control' |
Possible error |
58 |
26 |
The Victorian Bar |
Concerns about the
effect of the section |
Policy difference |
61 |
13 |
DLA Phillips Fox |
Subordination as
opposed to priority deeds |
|
62(3)(b)(i) |
20 |
Australian Finance
Conference |
Change section to
requirement to register within 10 days of the finance being provided,
not within 10 days of the grantor taking possession |
|
63(3) |
7 |
Motor Trades
Association of Australia |
Requirement that
'evidenced by writing, signed by the grantor' is impractical |
|
64(1) |
18 |
Australian
Securitisation Forum |
Should clarify that
holder of security interest can effect registration referring to future
property of grantor |
|
64 |
12 |
Australian Institute of
Credit Management |
Recommends that the
first in time priority rule should apply, or the period for notice be
extended to 10 business days |
Possible philosophical difference |
69 |
17 |
Combined four law firms |
'Obligor' and not
'debtor' suggested |
|
74 |
25 |
Independent Film &
Television Alliance |
Clarify the priority position
of execution creditor who obtains a transfer of intellectual property rights |
|
74 |
26 |
The Victorian Bar |
Should be contingent on
the execution creditor having seized the collateral and the rule should be
limited to goods |
|
77 |
17 |
Combined four law firms |
Priority of
unregistered foreign security interests should extend to investment
entitlements, ADI accounts and other forms of intangible property. |
|
77 |
17 |
Combined four law firms |
'Perfection' doesn't
exist in all international jurisdictions |
|
79 |
6, 17 |
Clayton Utz; Combined
four law firms |
Should this clause
apply only to agreements between the grantor and a secured party? |
Possible error |
79(1) |
25 |
Independent Film &
Television Alliance |
Requires some
clarification |
|
80(4) |
18 |
Australian
Securitisation Forum |
subparagraph b should
be deleted |
|
80(7)(b) |
18 |
Australian
Securitisation Forum |
Requiring proof of
transfer is unwieldy. |
|
80(7) |
6 |
Clayton Utz |
Should clause apply to
all transfers of an account or chattel paper? |
Possible error |
81 |
17 |
Combined four law firms |
Delimitation of rights
on transfer of account |
|
81 |
26 |
The Victorian Bar |
Include language with
respect to the account debtor contained in Article 9-406 |
Refine existing approach |
102 |
26 |
The Victorian Bar |
Basis for a pro rata
outcome should be cost of goods not the sum secured |
|
105(1) |
25 |
Independent Film &
Television Alliance |
Remove |
|
105(2) |
25 |
Independent Film &
Television Alliance |
Amend to reflect
UNCITRAL Recommendation 243 |
|
Part 4
107-144 |
6 |
Clayton Utz |
The new enforcement
regime is too complex |
Suggests an alternative approach |
109 |
7 |
Motor Trades
Association of Australia |
Requests that the bill
explicitly provides that multiple registrations will not be needed. Consider
with operation of clauses 59, 67(1) and (2) |
|
109(1)(a) |
18 |
Australian Securitisation
Forum |
Should delete 'that
does not' and substitute 'the primary purpose of which is not to' |
|
109(5) |
5 |
Consumer Action Law
Centre |
Concern that clause 126
and 142(2) should not apply to consumers |
Refine existing approach |
111 |
17 |
Combined four law firms |
Contracting out of
commercial reasonableness; still not possible to contract out; should at
least not require party to disregard its own commercial interests |
|
111 |
19 |
Mr David Turner |
Concerns about the commercially
reasonable manner test |
Policy difference |
115 |
26 |
The Victorian Bar |
Should be subject to a
requirement of not being "manifestly unreasonable" |
|
115(2) |
17 |
Combined four law firms |
Where governed by
foreign law, parties should be taken to have 'contracted out' |
|
116 |
14 |
Australian Bankers'
Association |
Corporations Act
continues to apply – dual regimes |
|
123 |
26 |
The Victorian Bar |
Section 123 notice
should also satisfy other notice requirements |
Refine existing approach |
127(6) |
14 |
Australian Bankers'
Association |
'Reasonable expenses paid
or incurred' should be payable |
|
136 |
26 |
The Victorian Bar |
The section needs more
safeguards as it is effectively a foreclosure |
|
142 |
26 |
The Victorian Bar |
The right of
reinstatement should be limited to the debtor |
|
143 |
17 |
Combined four law firms |
Reinstatement
provisions cause significant difficulty when a party has to undo acceleration |
|
151 |
17, 18 |
Combined four law firms,
Australian Securitisation Forum |
Could be breached by
assignees or consignors attempting to perfect interest. |
|
157 |
5 |
Consumer Action Law
Centre |
Believes proposed
penalty is insufficient & should be strengthened to provide for civil
penalties |
|
157(4) |
8 |
Office of the Privacy
Commissioner |
Only individuals can
make a complaint to the Privacy Commission, not all grantors |
Correct error |
166(2)(c) |
17 |
Combined four law firms |
Temporary effectiveness
of defective registration – onerous on secured parties; continuous checking |
|
168 |
26 |
The Victorian Bar |
Fee should accrue as a
charge on the secured property |
|
172 |
5 |
Consumer Action Law
Centre |
Requests that items
7-10 in the table under clause 172 be amended to restrict the use of the PPSR
for data mining for consumer credit assessment and marketing purposes |
Refine existing approach |
173 |
8 |
Office of the Privacy
Commissioner |
Could clarify the
Registrar's ability to lodge complaints in 173(2), is 3rd party
misuse covered, plus changes to the Explanatory Memorandum |
|
Part 7.2
233-241 |
6 |
Clayton Utz |
The provisions are too
complex |
Refine existing approach |
237(2) |
17 |
Combined four law firms |
Types of property
should not be quarantined |
|
267 |
6 |
Clayton Utz |
Unsecured creditors can
receive a windfall gain |
|
267 |
6 |
Clayton Utz |
Should not apply to
leases, bailments or commercial consignments – why should the interest of the
legal owner be defeated where there is no competing perfected security
interest |
Querying policy intent |
267 |
17, 18 |
Combined four law firms,
Australian Securitisation Forum |
Vesting of unperfected
security interests on insolvency; drafting problems. |
|
267 |
10 |
Insolvency Practitioners
of Australia |
Note 2 should refer to
s267 of Corporation Act also |
|
267 |
26 |
The Victorian Bar |
Unnecessary and should
be omitted as it expropriates the property of the secured party in favour of
the unsecured creditors and incorporates notions of reputed ownership |
|
268(2) |
17 |
Combined four law firms |
Turnover trusts not
successfully excluded from vesting provisions |
|
297 |
13 |
DLA Phillips Fox |
Definition of
'constructive knowledge' |
|
299(1)(a) |
6 |
Clayton Utz |
This clause (and
others) should refer to an interest in personal property |
Possible error |
Other |
3 |
James Kimpton |
Whether the bill
precludes ratification of the Cape Town Convention and Aircraft Equipment
Protocol |
|
|
6 |
Clayton Utz |
Time at which knowledge
tested – now unclear in many provisions |
Seeking amendments to resolve |
|
6 |
Clayton Utz |
Section 266 and 267 Corporations
Act |
|
|
7 |
Motor Trades
Association of Australia |
Will an innocent
repairer have rights to recover goods from a defaulting supplier?
Will repairer
encumbrance details be evident from the register? |
|
|
8 |
Office of the Privacy
Commissioner |
The coverage of the Privacy
Act in relation to 'interferences with privacy' will need to be
addressed. |
Bill is inconsistent with Privacy Act. |
|
9 |
Office of the Victorian
Privacy Commissioner |
Include a legislative
principle to retain personal information for the minimum amount of time,
include a provision to prohibit the use of information for pre-screening and
direct marketing, any extension of the use of the register should require
legislative amendment or a further privacy impact assessment |
|
|
10 |
Insolvency
Practitioners Australia |
Insolvency
administrators' liens |
|
|
10 |
Insolvency
Practitioners Australia |
Service of documents;
consistency with Corporations Act |
|
|
11 |
Legal Aid Queensland |
Synchronise
commencement of the bill with the National Consumer Credit Protection Bill |
|
|
11 |
Legal Aid Queensland |
Bill should include
powers to address pattern of behaviour conduct |
|
|
11 |
Legal Aid Queensland |
Bill should provide for
circumstances where volume of requests to registrar leads to delay for
example, expand EDR Schemes so they apply. |
|
|
11 |
Legal Aid Queensland |
Bill should outline a
clear process for a security interest when the holding company goes into
liquidation. |
|
|
12 |
Australian Institute of
Credit Management |
Clarify the registering
and searching where a trust is involved, fixtures and fittings should be
reconsidered by the state and territory governments |
|
|
13 |
DLA Phillips Fox |
Complexity of priority
rules |
|
|
13 |
DLA Phillips Fox |
Priority of unperfected
lessors – apparently no changes to Bill |
|
|
13 |
DLA Phillips Fox |
Lack of guidance – when
a lease secures payment or performance of an obligation. |
|
|
13 |
DLA Phillips Fox |
Definitions of' New
Value', 'document of title', 'financial property', 'investment instrument' ,
'located', 'constructive knowledge'and 'land' all problematic |
|
|
13 |
DLA Phillips Fox |
Transitional rules –
still too complex |
|
|
13 |
DLA Phillips Fox |
'flawed asset
arrangement' not defined |
|
|
13 |
DLA Phillips Fox |
PMSI issue |
|
|
13 |
DLA Phillips Fox |
Possession and control
– ss 29, 27, 25, 27(3), 27(4), 27(5) |
|
|
13 |
DLA Phillips Fox |
Uncertainty over
re-perfection, and apparent lack of consistency between ss 67 and 32(5) |
|
|
13 |
DLA Phillips Fox |
Modification/substitution
of contracts between grantor of interest and transferee |
|
|
13 |
DLA Phillips Fox |
Enforcement of security
interests – ss 111, 118, 120. |
|
|
13 |
DLA Phillips Fox |
Registration |
|
|
13 |
DLA Phillips Fox |
Provision of
information by secured parties – timeframe unreasonable |
|
|
14 |
Australian Bankers'
Association |
Lack of clarity –
impact on security interest over ships |
|
|
14 |
Australian Bankers'
Association |
Possible conflict with
s266 of Corporations Act – certain charges void against liquidator |
|
|
14 |
Australian Bankers'
Association |
Uncertainty over
proceeds when security interest in a company |
|
|
15 |
Australian Privacy
Foundation |
Definition of consumer
property |
|
|
16, and additional
comments |
Professor Tony Duggan |
Issues raised and
commented on by the department: ADI accounts; consumer goods, inventory and
equipment; low-value goods; priority time; inventory PMSIs and the notice
requirement; clause 64 process; and collateral |
|
|
17 |
Combined four law firms |
Consumer property;
reference to businesses should include those without an ABN |
|
|
17 |
Combined four law firms |
Intellectual property:
should extend to forms of property under general law |
|
|
17 |
Combined four law firms |
Clauses 31-52 –
inconsistent language and tests of knowledge |
|
|
17 |
Combined four law firms |
Clause 69 and related
rules on negotiable instruments; should be moved. |
|
|
17 |
Combined four law firms |
'particular collateral'
– requires clarification |
|
|
17 |
Combined four law firms |
Absolute assignments of
accounts and chattel paper should not vest on insolvency unless when they
don't secure money |
|
|
17 |
Combined four law firms |
Implementation phases
insufficient; based on NZ experience |
|
|
17 |
Combined four law firms |
Investment entitlements
are absent from Bill |
|
|
17
Combined four law firms |
Combined four law firms
Australian Financial
Markets Association |
Repos, credit support
annexes, securities loans and similar should be excluded from scope of Bill |
|
|
17 |
Combined four law firms |
Weakening of asset
charges and other security |
|
|
18 |
Australian Securitisation
Forum |
Equitable and legal
assignment; consistency with other legislation |
|
|
18 |
Australian
Securitisation Forum |
Query whether Bill
includes or excludes mortgage backed securitisation |
|
|
18 |
Australian
Securitisation Forum |
Minor drafting matters
at p.5 |
|
|
19 |
Mr David Turner |
Concerned about
perfection by control in relation to ADIs |
|
|
21 |
Australian Financial
Markets Association |
Suggest making bill
compatible with other legislation dealing with negotiable instruments |
|
|
21 |
Australian Financial
Markets Association |
Suggest regulation
power with capacity to support substantive modification of the act similar to
the Corporations Act 2001 powers |
|
|
22 |
Women's Legal Service
Victoria |
Makes suggestions to
ensure that the operation of the register especially protects women and
children from family violence |
|
|
24 |
Director of Public
Prosecutions Victoria |
Requests the ability to
be able to register property restraining orders on the PPSR |
|
|
26 |
The Victorian Bar |
'Control' as a method
of perfection is problematic |
|
|
26 |
The Victorian Bar |
Floating charges - no
ability to register negative restrictions |
|