A registration must indicate whether the security interest to which it relates is (or is to be) a PMSI to any extent. To do this you check the box “A Purchase Money Security Interest (PMSI) is claimed” in step 2 of the registration process.
A PMSI is a particular type of security interest. A PMSI is distinguished from a standard security interest in two main ways: its manner of creation and the priority it receives relative to other security interests in the same collateral.
You must choose PMSI when you first register your security interest. You cannot amend a registration to indicate PMSI.
PMSIs are typically commercial not consumer
A PMSI will not arise in property that the grantor intends to use for personal domestic or household purposes unless the asset is serial- numbered property.
A PMSI is likely in four main scenarios
A loan or credit to purchase personal property
This is where funds are provided by a financer or other lender to a grantor for the purchase of personal property. This is the most common transaction that gives rise to a PMSI and covers purchases of motor vehicles where finance is provided at the point of sale.
Personal property advanced to the grantor with an outstanding debt
A PMSI will arise where the secured party has advanced personal property and all or part of the purchase price remains outstanding.
The most common transactions in which this occurs are retention of title arrangements. This typically involves the transfer of possession of the collateral with the title only passing after the full payment price is paid.
A PPS lease transaction
A PPS lease is defined in the Personal Property Securities Act 2009 (Cth) (PPS ACT) as a lease or bailment of goods for a term exceeding one year or for an indefinite term. Both financing leases and operational leases can fall within the definition of PPS lease.
A consignment transaction
A consignment occurs where the title holder (the consignor) delivers possession of personal property to the consignee. The consignee is in the business of selling personal property of that type and attempts to sell the consignors property. See sections 12 and 10, PPS Act.
PMSIs and priorities
A secured party with a PMSI may benefit from a ‘super-priority’ which defeats all other security interests in the collateral. This includes security interests created and registered before the PMSI.
Registration requirements for super-priority
Certain registration requirements must be complied with in order for the PMSI to benefit from the super-priority.
An example of super-priority
ABC Pty Ltd grants an all-assets floating charge to Bankcorp Pty Ltd, which duly registers this security interest. At a subsequent time ABC Pty Ltd receives a supply of inventory on a retention of title basis from Supply-2 -U Pty Ltd, which is also registered. ABC Pty Ltd subsequently becomes insolvent.
The effect of the super-priority is that the PMSI held by Supply-2-U Pty Ltd defeats the security interest of Bankcorp Pty Ltd.
The rationale for this priority rule is that the earlier secured party should not benefit by having recourse to assets of the grantor that would not have been acquired other than with the assistance of the subsequent financier. If the subsequent PMSI secured party did not have the super-priority, they may not have advanced the money or assistance necessary for the grantor to acquire the collateral and develop their business further.
An exception to super-priority is inventory financing
In the instance of inventory financing a PMSI in accounts as proceeds of a supply of inventory is defeated by a deemed security interest in those accounts arising from a factors purchase of those accounts.
PMSI registration requirements for a super-priority
To receive a super-priority a PMSI must be registered within specific timeframes. These vary according to the type of personal property and its intended use by the grantor.
The timeframe is dependent on whether the collateral is tangible or intangible property, and if the collateral is inventory or not.
|Where the collateral is tangible property:||Where the collateral is intangible property:|
|Where the collateral is inventory:||
The security interest must be registered before the time the grantor obtains possession of the collateral.
|The security interest must be registered before the time the PMSI attaches, or is created, over the inventory.|
|Where the collateral is not inventory:||The security interest must be registered within 15 business days of the grantor obtaining possession of the collateral.||The security interest must be registered within 15 business days of the time of attachment, or creation, of the PMSI.|
A PMSI that is not registered within these timeframes is still validly created. However, it will not benefit from the PMSI super-priority. The secured party continues to have a security interest and the default priority rules apply.
Ongoing supply arrangements
It is common in commercial practice for a supplier to make repeated supplies of property to the same receiver (grantor). These supplies are commonly made on the same terms.
In these cases, the secured party only needs to make a single registration against the grantor. They do not need to make a registration for each supply advanced. This is because a single registration is valid for one or more security interests.