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Recent Developments in Australian PPSA Case Law

2018; RELX Group (Netherlands); Linguagem: Inglês

1556-5068

Anthony Duggan,

Corporate Governance and Law

In this paper, I discuss four recent Australian cases: the Hamersley Iron case; In the Matter of OneSteel Manufacturing Pty. Limited; Allied Distribution Finance Pty. Ltd. v. Samwise Holdings Pty. Ltd. and R.e. Amerind Pty. Ltd. In the Hamersley Iron case, the main issue was whether the granting to A of a PPSA security interest in an account owing by B to C destroys mutuality between B and C so as to preclude B from asserting a right of set-off in C’s liquidation. In the OneSteel case, the issue was whether the inclusion of the grantor’s Australian Business Number (ABN) in the financing statement, rather than the Australian Company Number (ACN), as the statute requires, invalidates the registration. Samwise concerned the application of the purchase-money security interest (pmsi) priority rules in Australian PPSA, s.62 to a pmsi refinancier. In R.e. Amerind, the issue was whether, when parties contract for the supply of goods from time to time on title retention terms, there is: (1) a single security agreement which comes into effect once the requirements of offer and acceptance have been satisfied; or (2) a succession of separate security agreements which come into effect at the time of each new order or delivery. Hamersley Iron relied heavily on Canadian and New Zealand case law while in OneSteel, the court was influenced by New Zealand authority. By contrast, in Samwise there was no reference to any overseas authorities, even though the facts of the case were almost identical to the facts in the Nova Scotia Court of Appeal case, Macphee Chevrolet Buick GMC Cadillac Ltd. v. SWS Fuels Ltd. The concern in R.e. Amerind was with an issue that is peculiar to Australian law and so there was no occasion for the courts to consider Canadian or New Zealand authorities. Nevertheless, all four cases raise interesting and novel points which make them instructive in other PPSA jurisdictions.