The Problem of Perfection: Can Equity Provide a Solution?
- Publisher:
- LexisNexis Australia
- Publication Type:
- Journal Article
- Citation:
- Australian Property Law Journal, 2018, 27 (1)
- Issue Date:
- 2018-08-31
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There were always bound to be teething problems with the introduction of a system designed to revolutionise the priority rules applying to security interests. After 5 years of operation, it is clear that practitioners are still coming to terms with the intersection of the Personal Property Securities Act 2009 (Cth) and the common law principles, as well as the flexibility or perhaps, lack thereof, of the Personal Property Securities Act’s provisions. This article will consider perfection, which is a central tenet of the Personal Property Securities Act 2009, and the mechanism by which parties guarantee the priority of their security interest. This article begins with a discussion of some key Personal Property Securities Act decisions which have demonstrated the inflexibility of the Act’s perfection requirements. This article then turns to consider the consequences that will flow from a failure to perfect a security interest in accordance with the provisions of the Personal Property Securities Act 2009. This article will then examine whether any relevant equitable exceptions may exist which could be utilised by parties to ameliorate the harsh consequences that would otherwise flow from a failure to perfect under the Personal Property Securities Act 2009.
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