Here we look at several industries to see what life was like before the PPSA and why there’s an advantage to registering with the PPSR.

Retention of Title suppliers

Retention of Title (or Romalpa) clauses in contracts or invoices have been part of the commercial landscape for many years, but they no longer protect you on their own. If you don’t register on the PPSR, your Retention of Title clause is unlikely to help get your goods back should your customer default or go broke. 

If you use a Retention of Title clause and register with the PPSR, these are a few of the recovery options you’re now entitled to:

• The right to your goods where they are still in the debtor’s possession
• Security in the manufactured product where your goods are used in the manufacturing process
• Security in a product where your goods have been mixed or blended with other goods
• Security in proceeds (particularly book debts) where your goods are dealt with or on-sold
• Possible defence against an Unfair Preference claim from a liquidator.

If you supply goods and have complied with all the PPSA requirements, you receive a particular type of security interest called a Purchase Money Security Interest (PMSI). A PMSI puts you first in line ahead of all other creditors – including preferential creditors and the bank. You can use a PMSI to claim super-priority for outstanding debts owed on your goods.

Receivers and liquidators can make it difficult for suppliers to establish their claims. The EDX team are made up of former insolvency practitioners, so we know how to play the game. We have used this expertise to help many Retention of Title suppliers make successful claims.

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Equipment renters and lessors

Before the PPSA, ownership rights trumped everything else. If a customer became insolvent, the equipment renter or lessor could rely on ownership rights to repossess the equipment. 

This all changed with the introduction of the PPSA. Now you can lose equipment following the insolvency of a customer, even if that customer was merely renting your equipment and had no ownership rights.

The outcome is not much better when the customer on-hires the equipment to someone else because this creates a chain of competing interests in the equipment. Even if your hire or lease agreement has created a security interest with a PPS Lease, if you don’t register this interest on the PPSR and the customer becomes insolvent, you risk losing the equipment.

You may have been financed by a bank that has adequately registered its interests on the PPSR, but this is not enough to prevent your equipment from being lost. If you lose the equipment and have personally guaranteed the bank, this could be catastrophic for your business.

To protect your equipment, you must comply with the requirements of the PPSA and register correctly, within time limits. If you rent, hire or lease equipment, our PPSR experts can help register your security interests correctly, without error.

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Construction suppliers

Before the PPSA, a Retention of Title clause was not much use to suppliers in the construction industry. The right to repossess was lost when goods became affixed to land.  

Since the PPSA, suppliers can now receive payment for the loss of goods. For example, let’s say you manufacture aluminium extrusions and you supply your product to a window manufacturer and installer.

Pre PPSA, you would have lost rights in the aluminium as soon as the window manufacturer cut it up to make a window. Now, under the PPSA, you have security in the manufactured windows up to the value of the aluminium component. You can repossess the manufactured windows or negotiate a settlement with the insolvency practitioner.

If the window manufacturer has installed the windows in a building, title passes to the building owner and you wouldn’t be able to get the windows back. However, the supply of windows creates ‘proceeds’ from dealing with the windows, and your security continues in proceeds. If the building owner has not yet paid the window manufacturer, you have security in the book debt arising.
 
The PPSA can be a tremendous advantage to suppliers in the construction industry, but it doesn’t work for everyone. Our PPSR experts can analyse and report on the economic costs and benefits for your business.

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Equipment and motor financiers

If you’re in technology, capital equipment and office equipment finance, you can no longer rely on a PPS Lease. Without registering your security interests on the PPSR, you risk losing your goods if a customer becomes insolvent.

Here’s what could happen if you’re not registered:

1. If your customer fraudulently sells your assets, a purchaser for value without notice will typically take possession free of your security interest
2. A receiver will win a priority contest
3. If a liquidator or administrator is appointed, your security interest (unregistered) will vest in the company.

To learn more, go to Frequently Asked Questions or contact us. Our team of professional PPSR experts take the guesswork out of the registration process.