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PERSONAL PROPERTY SECURITIES ACT 2009 - SECT 10

The Dictionary

                   In this Act:

"ABN " (short for Australian Business Number) has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999 .

"accession " to other goods means goods that are installed in, or affixed to, the other goods, unless both the accession and the other goods are required or permitted by the regulations to be described by serial number.

"account " means a monetary obligation (whether or not earned by performance, and, if payable in Australia, whether or not the person who owes the money is located in Australia) that arises from:

                     (a)  disposing of property (whether by sale, transfer, assignment, lease, licence or in any other way); or

                     (b)  granting a right, or providing services, in the ordinary course of a business of granting rights or providing services of that kind (whether or not the account debtor is the person to whom the right is granted or the services are provided);

but does not include any of the following:

                     (c)  an ADI account;

                     (d)  chattel paper;

                     (e)  an intermediated security;

                      (f)  an investment instrument;

                     (g)  a negotiable instrument.

Example:    An account that is a credit card receivable is covered by paragraph (b).

"account debtor " means a person who is obligated under an account or chattel paper.

"ADI " (short for authorised deposit-taking institution) has the same meaning as in the Banking Act 1959 .

"ADI account " means an account, within the ordinary meaning of that term, kept by a person (whether alone or jointly with one or more other persons) with an ADI that is payable on demand or at some time in the future (as agreed between the ADI and the person or persons).

Example:    A savings account, or a term deposit, kept with an ADI.

"advance " :

                     (a)  means the payment of currency, the provision of credit or the giving of value; and

                     (b)  includes any liability of a debtor to pay interest, credit costs and other charges or costs payable by the debtor in connection with the advance or the enforcement of a security interest securing the advance.

"after-acquired property " means personal property acquired by the grantor after a security agreement is made.

"agency " includes an authority or instrumentality.

"amendment demand " has the meaning given by section 178.

"amendment notice " has the meaning given by section 180.

"amendment time " , of a registration, has the meaning given by section 160.

"approved form " has the meaning given by section 302.

"attaches " has the meaning given by section 19.

"Australia " has a meaning affected by section 7.

"Australian entity " means any of the following entities:

                     (a)  an individual who is located in Australia;

Note:       For the location of individuals, see section 235.

                     (b)  a company or registrable Australian body (within the meaning of the Corporations Act 2001 );

                     (c)  a corporation sole established under a law of the Commonwealth, a State or a Territory;

                     (d)  a public authority or an agency or instrumentality of the Crown in right of the Commonwealth, a State or a Territory.

"bankruptcy " has the same meaning as in paragraph 51(xvii) of the Constitution.

Note:          Other parts of speech and grammatical forms of "bankruptcy" (for example, "bankrupt") have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901 ).

"business day " means a day other than:

                     (a)  a Saturday or a Sunday; or

                     (b)  a day which is a public holiday for the whole of:

                              (i)  any State; or

                             (ii)  the Australian Capital Territory; or

                            (iii)  the Northern Territory; or

                     (c)  a day that falls between Christmas Day and New Year's Day; or

                     (d)  a day on which the Registrar has refused access to the register, or otherwise suspended the operation of the register, in whole or in part (see subsection 147(5)); or

                     (e)  a day that is prescribed by the regulations for the purposes of this definition.

"carrying on " an enterprise has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999 .

"chattel paper " means one or more writings that evidence a monetary obligation and either or both of the following:

                     (a)  a security interest in, or lease of, specific goods, or specific goods and accessions to the specific goods (even if the description of the goods (and accessions) is taken to include a description of intellectual property, or an intellectual property licence, under section 105);

                     (b)  a security interest in specific intellectual property or a specific intellectual property licence;

but does not include any of the following:

                     (c)  a document of title;

                     (d)  an intermediated security;

                     (e)  an investment instrument;

                      (f)  a negotiable instrument.

"circulating asset " has the meaning given by section 340.

"civil penalty provision " has the meaning given by section 221.

"clearing and settlement facility " has the meaning given by Chapter 7 of the Corporations Act 2001 .

"collateral " :

                     (a)  means personal property to which a security interest is attached; and

                     (b)  in relation to a registration with respect to a security interest--includes personal property described by the registration (whether or not a security interest is attached to the property).

Note:       Section 161 authorises the registration of a financing statement that describes personal property before or after a security agreement is made covering the property, or a security interest has attached to the property.

"commercial consignment " means a consignment if:

                     (a)  the consignor retains an interest in goods that the consignor delivers to the consignee; and

                     (b)  the consignor delivers the goods to the consignee for the purpose of sale, lease or other disposal; and

                     (c)  the consignor and the consignee both deal in goods of that kind in the ordinary course of business;

but does not include an agreement under which goods are delivered to:

                     (d)  an auctioneer for the purpose of sale; or

                     (e)  a consignee for sale, lease or other disposal if the consignee is generally known to the creditors of the consignee to be selling or leasing goods of others.

"commercial property " means personal property other than consumer property.

"commingled " : goods that are commingled include goods that are mixed with goods of the same kind.

"company " means:

                     (a)  a company registered under Part 2A.2 or Part 5B.1 of the Corporations Act 2001 ; or

                     (b)  a registrable body (within the meaning of that Act) that is registered under Division 1 or 2 of Part 5B.2 of that Act.

"constitutional corporation " means a corporation to which paragraph 51(xx) of the Constitution applies.

"constructive knowledge " has the meaning given by section 297.

Note:          Section 298 deals with knowledge in relation to bodies corporate and other entities.

"consumer property " means personal property held by an individual, other than personal property held in the course or furtherance, to any degree, of carrying on an enterprise to which an ABN has been allocated.

"continuously perfected " has the meaning given by section 56.

"control " has the meaning given by Part 2.3.

Note:          Control has an extended meaning in section 341 (control of inventory and accounts in relation to fixed and floating charges).

"crops " means crops (whether matured or not and whether naturally grown or planted) that have not been harvested, including:

                     (a)  the products of agriculture or aquaculture, if the products have not been harvested; and

                     (b)  trees (but only if they are personal property), if the trees have not been harvested.

"currency " means currency authorised as a medium of exchange by the law of Australia or of any other country.

"debtor " means :

                     (a)  a person who owes payment or performance of an obligation that is secured by a security interest in personal property (whether or not the person is also the grantor of the security interest); or

                     (b)  a transferee of, or successor to, an obligation mentioned in paragraph (a).

"defect " , in relation to a registration, includes an irregularity, omission or error in the registration.

"Deputy Registrar " means a Deputy Registrar of Personal Property Securities.

Note:          See Part 5.9 for the office of Deputy Registrar.

"description " of personal property (including collateral and proceeds) means:

                     (a)  in the case of a particular item of personal property--a description that identifies the item, or that identifies a class to which the item belongs; or

                     (b)  in the case of a class of personal property--a description that identifies the class, including a description that identifies the class by identifying a larger class of personal property that wholly includes the class.

Example 1:  A description that identifies collateral as "sheep" (a type of livestock) is sufficient to identify collateral that is sheep wool (a product of livestock, which is a class of collateral wholly included in the larger class of "sheep").

Example 2:  A description that identifies collateral as "fruit" is sufficient to identify collateral that is apples.

"document of title " means a writing issued by or addressed to a bailee:

                     (a)  that covers goods in the bailee's possession that are identified or are fungible portions of an identified mass; and

                     (b)  in which it is stated that the goods identified in it will be delivered:

                              (i)  to a named person, or to the transferee of that person; or

                             (ii)  to the bearer; or

                            (iii)  to the order of a named person.

"effective " : a registration is effective with respect to particular collateral if it is effective with respect to that collateral under Part 5.4.

"enterprise " has the meaning given by section 9-20 of the A New Tax System (Goods and Services Tax) Act 1999 .

"evidential burden " , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

"execution creditor " means a creditor who has recovered judgment and issued execution against a grantor.

"expenses " , in relation to the enforcement of a security interest in collateral, includes advances, costs and taxes for obtaining possession of, protecting (including insuring), maintaining, preserving or repairing the collateral.

Example:    For collateral that is intellectual property, expenses include the costs of legal proceedings against infringers of the intellectual property.

Note:          Reasonable expenses in relation to the enforcement of a security interest are taken to be secured by a security interest unless the parties agree otherwise (see subsection 18(5)).

"express amendment " , of this Act, has the meaning given by section 244.

"Family Court " means the Family Court of Australia.

"Federal Circuit Court " means the Federal Circuit Court of Australia.

"Federal Court " means the Federal Court of Australia.

"financial product " :

                     (a)  for the purposes of the definition of investment instrument in this section--has the meaning given by the Corporations Act 2001 ; and

                     (b)  for any other purposes--means any of the following, or an interest in any of the following, other than cash:

                              (i)  shares;

                             (ii)  bonds;

                            (iii)  any other financial instrument;

                            (iv)  any other financial asset.

"financial property " means any of the following personal property:

                     (a)  chattel paper;

                     (b)  currency;

                     (c)  a document of title;

                     (d)  an investment instrument;

                     (e)  a negotiable instrument.

"financing change statement " means data amending a registered financing statement.

"financing statement " means data registered (or that is to be registered) pursuant to an application for registration under subsection 150(1).

Note:          For requirements relating to financing statements, see Part 5.3 (Registration).

"fish " means any of the following, while alive:

                     (a)  marine, estuarine or freshwater fish, or other aquatic animal life, at any stage of their life history;

                     (b)  oysters and other aquatic molluscs, crustaceans, echinoderms, beachworms and other aquatic polychaetes;

but does not include any fish prescribed by the regulations for the purposes of this definition.

"fixtures " means goods, other than crops, that are affixed to land.

"foreign jurisdiction " has the meaning given by section 39.

"future advance " means:

                     (a)  an advance secured by a security interest (whether or not made pursuant to an obligation), if the advance is made after the security agreement was made; or

                     (b)  expenses in relation to the enforcement of a security interest that are secured by the security interest.

Note:          For the meaning of expenses , see the definition elsewhere in this section. Reasonable expenses in relation to the enforcement of a security interest are taken to be secured by the security interest unless the parties agree otherwise (see subsection 18(5)).

"general law " means the principles and rules of the common law and equity.

"goods " means personal property that is tangible property, including the following:

                     (a)  crops;

                     (b)  livestock;

                     (c)  wool;

                     (d)  minerals that have been extracted (including hydrocarbons) in any form, whether solid, liquid or gaseous and whether organic or inorganic;

                     (e)  satellites and other space objects;

but does not include financial property or an intermediated security.

"grantor " means:

                     (a)  a person who has the interest in the personal property to which a security interest is attached (whether or not the person owes payment or performance of an obligation secured by the security interest); or

                     (b)  a person who receives goods under a commercial consignment; or

                     (c)  a lessee under a PPS lease; or

                     (d)  a transferor of an account or chattel paper; or

                     (e)  a transferee of, or successor to, the interest of a person mentioned in paragraphs (a) to (d); or

                      (f)  in relation to a registration with respect to a security interest:

                              (i)  a person registered in the registration as a grantor; or

                             (ii)  a person mentioned in paragraphs (a) to (e).

"insolvency " has the same meaning as in paragraph 51(xvii) of the Constitution.

Note:          Other parts of speech and grammatical forms of "insolvency" (for example, "insolvent") have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901 ).

"intangible property " means personal property (including a licence) that is not any of the following:

                     (a)  financial property;

                     (b)  goods;

                     (c)  an intermediated security.

"intellectual property " means any of the following rights (including the right to be a party to proceedings in relation to such a right):

                     (a)  the right to do any of the things mentioned in paragraphs 10(1)(a) to (f) of the Designs Act 2003 in relation to a design that is registered under that Act;

                     (b)  the right to exploit or work an invention, or to authorise another person to exploit or work an invention, for which a patent is in effect under the Patents Act 1990 ;

                     (c)  the rights held by a person who is the registered owner of a trade mark that is registered under the Trade Marks Act 1995 ;

                     (d)  the right to do, or to license another person to do, an act referred to in section 11 of the Plant Breeder's Rights Act 1994 in relation to propagating material of a plant variety;

                     (e)  the right to do an act referred to in section 17 of the Circuit Layouts Act 1989 in relation to an eligible layout during the protection period of the layout;

                      (f)  the right under the Copyright Act 1968 to do an act comprised in the copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast;

                     (g)  a right under or for the purposes of a law of a foreign country that corresponds to a right mentioned in any of paragraphs (a) to (f).

"intellectual property licence " means an authority or licence (within the ordinary meaning of that term) to exercise rights comprising intellectual property.

"interest " , in personal property , includes a right in the personal property.

"intermediary " has the meaning given by section 15.

"intermediated security " has the meaning given by section 15.

"inventory " means personal property (whether goods or intangible property) that, in the course or furtherance, to any degree, of an enterprise to which an ABN has been allocated :

                     (a)  is held by the person for sale or lease, or has been leased by the person as lessor; or

                     (b)  is held by the person to be provided under a contract for services, or has been so provided; or

                     (c)  is held by the person as raw materials or as work in progress; or

                     (d)  is held, used or consumed by the person, as materials.

"investment instrument " means any of the following financial products:

                     (a)  a share in a body, or a debenture of a body;

                     (b)  a debenture, stock or bond issued or proposed to be issued by a government;

                     (c)  a derivative;

                     (d)  a foreign exchange contract that is not a derivative;

                     (e)  an assignable option to have an allotment of an investment instrument (apart from this paragraph) made to the holder of the option;

                      (f)  an interest in, or a unit in an interest in, a managed investment scheme;

                     (g)  a unit in a share in a body;

                     (h)  a financial product that is traded on a financial market that is:

                              (i)  operated in accordance with an Australian market licence; or

                             (ii)  exempt from the operation of Part 7.2 of the Corporations Act 2001 ;

                      (i)  any other financial product that is prescribed by the regulations;

                      (j)  any financial product that consists of a combination of any 2 or more of the financial products mentioned in paragraphs (a) to (i);

but does not include any of the following:

                     (k)  the creation or transfer (including a successive transfer) of a right to payment in connection with interests in land, if the writing evidencing the creation or transfer does not specifically identify that land;

                      (l)  a document of title;

                    (m)  an intermediated security;

                     (n)  a negotiable instrument.

A word or expression used in this definition has the same meaning as in the Corporations Act 2001 , subject to this Part.

"jurisdiction " , in which personal property, or an individual, is located, has a meaning affected by subsections 235(6) and (7).

"land " includes all estates and interests in land, whether freehold, leasehold or chattel, but does not include fixtures.

"land law " has the meaning given by section 117.

"law " of the Commonwealth, a State or a Territory means:

                     (a)  an Act of the Commonwealth, the State or the Territory; or

                     (b)  an instrument made under such an Act.

"licence " means either of the following, if it is transferable by the licensee (whether or not the right, entitlement, authority or licence is exclusive, and whether or not a transfer is restricted or requires consent):

                     (a)  a right, entitlement or authority to do one or more of the following:

                              (i)  to manufacture, produce, sell, transport or otherwise deal with personal property;

                             (ii)  to provide services;

                            (iii)  to explore for, exploit or use a resource;

                     (b)  an intellectual property licence;

but does not include a right, entitlement or authority that is:

                     (c)  granted by or under a law of the Commonwealth, a State or a Territory; and

                     (d)  declared by that law not to be personal property for the purposes of this Act.

Note:          A right, entitlement or authority to which paragraph (c) or (d) applies is not personal property for the purposes of this Act (for the meaning of personal property , see elsewhere in this section).

"livestock " includes:

                     (a)  while they are alive--alpacas, cattle, fish, goats, horses, llamas, ostriches, poultry, sheep, swine and other animals; and

                     (b)  the unborn young of animals mentioned in paragraph (a); and

                     (c)  the products of livestock before they become proceeds (for example, the wool on a sheep's back before the sheep is shorn).

"located " , in relation to personal property, or a person, has the meaning given by section 235.

"lower court " has the meaning given by section 211.

"matter " includes act, omission, body, person and thing.

"migrated security interest " has the meaning given by section 332.

"modification " includes addition, omission and substitution.

"motor vehicle " has the meaning given by the regulations.

"National Credit Code " means Schedule 1 to the National Consumer Credit Protection Act 2009 , and includes regulations made under section 329 of that Act for the purposes of that Schedule.

"negotiable instrument " means:

                     (a)  a bill of exchange (within the meaning of the Bills of Exchange Act 1909 ); or

                     (b)  a cheque (within the meaning of the Cheques Act 1986 ); or

                     (c)  a promissory note (within the meaning of section 89 of the Bills of Exchange Act 1909 ); or

                     (d)  any other writing that evidences a right to payment of currency, if:

                              (i)  the writing is of a kind that, in the ordinary course of business, is transferred by delivery with any necessary endorsement or assignment; or

                             (ii)  the writing satisfies the requirements for negotiability under the law governing negotiable instruments (including, but not limited to, instruments that are negotiable instruments within the meaning of this definition); or

                     (e)  a letter of credit that states that it must be presented on claiming payment;

but does not include any of the following:

                      (f)  the creation or transfer (including a successive transfer) of a right to payment in connection with interests in land, if the writing evidencing the creation or transfer does not specifically identify that land;

                     (g)  a document of title;

                     (h)  an intermediated security.

"new value " means value other than value provided to reduce or discharge an earlier debt or liability owed to the person providing the value.

"non-referring State " means a State that is not a referring State.

Note:          For the meaning of referring State , see section 244.

"notice of objection " has the meaning given by section 137.

"penalty unit " has the meaning given by section 4AA of the Crimes Act 1914 .

"perfected " has the meaning given by section 21.

"personal property " means property (including a licence) other than:

                     (a)  land; or

                     (b)  a right, entitlement or authority that is:

                              (i)  granted by or under a law of the Commonwealth, a State or a Territory; and

                             (ii)  declared by that law not to be personal property for the purposes of this Act.

Note:          This Act does not apply to certain interests even if they are interests in personal property (see section 8).

"possession " has a meaning affected by section 24.

"PPS lease " (short for Personal Property Securities lease) has the meaning given by section 13.

"PPS matter " (short for Personal Property Securities matter) has the meaning given by section 206.

"predominantly " : personal property is intended to be used predominantly for personal, domestic or household purposes if:

                     (a)  the personal property:

                              (i)  is intended to be used only for those purposes; or

                             (ii)  is intended to be used for other purposes as well, but is intended to be mostly used for personal, domestic or household purposes; and

                     (b)  the personal property is not acquired as an investment.

"present liability " means a liability:

                     (a)  that has arisen; and

                     (b)  whose extent or amount is fixed or capable of being ascertained;

whether or not the liability is immediately due to be met.

"proceeds " has the meaning given by section 31.

"provides " : a security agreement provides for a security interest if the interest arises under the agreement.

"purchase money security interest " has the meaning given by section 14.

"receiving court " has the meaning given by section 210.

"referred PPS matters " (short for referred Personal Property Securities matters) has the meaning given by section 245.

"referring State " has the meaning given by section 244.

"register " means the Personal Property Securities Register established under section 147.

"registered data conditions " has the meaning given by section 176B (access to registered data).

"Registrar " means the Registrar of Personal Property Securities.

Note:          See Part 5.9 for the office of Registrar.

"registration " means a registered financing statement (as amended by any registered financing change statement) with respect to:

                     (a)  a security interest; or

                     (b)  personal property prescribed by regulations made for the purposes of paragraph 148(c).

"registration commencement time " has the meaning given by section 306.

"registration event " has the meaning given by section 155.

"registration time " , with respect to collateral described in a registration, has the meaning given by:

                     (a)  section 160; or

                    (aa)  section 333 (registration with respect to migrated data); or

                     (b)  section 336 (preparatory registration with respect to transitional security interests).

"relevant superior court " has the meaning given by section 211.

"secured party " :

                     (a)  means a person who holds a security interest for the person's own benefit or for the benefit of another person (or both); and

                     (b)  if the holders of the obligations issued, guaranteed or provided for under a security agreement are represented by a trustee as the holder of the security interest--includes the trustee; and

                     (c)  in relation to a registration with respect to a security interest--includes a person registered as a secured party in the registration.

"securities account " has the meaning given by section 15.

"security agreement " means:

                     (a)  an agreement or act by which a security interest is created, arises or is provided for; or

                     (b)  writing evidencing such an agreement or act.

"security interest " has the meaning given by section 12.

"serial number " , in relation to collateral, means a serial number by which the regulations require, or permit, the collateral to be described in a registration.

"State Family Court " , in relation to a State, means a court of that State to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

"superior court " has the meaning given by section 211.

"take " has the meaning given by section 138A.

"term deposit " means a deposit made with an ADI that matures on a particular date (whether or not the ADI can be required to repay the deposit before that date).

"third party data " has the meaning given by section 176C (access to third party data).

"third party data conditions " has the meaning given by section 176C (access to third party data).

"this Act " includes the regulations.

"time of execution " has the meaning given by section 74.

"transfer matter " has the meaning given by section 210.

"transferring court " has the meaning given by section 210.

"transitional register " has the meaning given by section 330.

"transitional security agreement " has the meaning given by section 307.

"transitional security interest " has the meaning given by section 308.

"value " :

                     (a)  means consideration that is sufficient to support a contract; and

                     (b)  includes an antecedent debt or liability; and

                     (c)  in relation to the definition of purchase money security interest --has a meaning affected by section 14.

"verification statement " has the meaning given by section 155.

"water source " has the meaning given by section 138A.

"wool " means the natural fibre from any livestock that produce fleece that can be shorn (such as sheep, goats, alpacas and llamas).

"writing " includes:

                     (a)  the recording of words or data in any way (including electronically), if, at the time the recording was made, it was reasonable to expect that the words or data would be readily accessible so as to be useable for subsequent reference; and

                     (b)  the display, or other representation, of words or data by any form of communication (including electronic), if:

                              (i)  the display or representation is recorded in any way (including electronically); and

                             (ii)  at the time the recording was made, it was reasonable to expect that the words or data would be readily accessible so as to be useable for subsequent reference.



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