Asset Protection Structures Under the PPSA

The Personal Property Securities Act (PPSA) came into effect on 30 January 2012. The legislation introduced a national online Personal Property Securities Register which replaced other registers including the ASIC register of company charges.

Under the PPSA, the concept of "title" and "ownership" are replaced by the term "security interests". Title itself will not equate to rights over
property unless security over them is registered. Effectively, if you own assets which are not within your possession, you are at risk unless your interest in the asset is registered. The act covers security interests over all forms of property other than land and buildings or fixtures which are a part of land.

When setting up a business, it is common practice to establish a holding entity (trust or company) in order to protect business assets from the
risk of the operating entity. The operating entity then leases the assets from the holding entity.

Prior to the commencement of the Personal Property Securities Act, the assets held by the holding entity would be protected as creditors of the operating entity would have no claim over these assets. However, under the new law, the lease must be registered on the Personal Property Securities Register in order to achieve this same protection. If the security interest is not registered, such arrangements are ineffective against a liquidator or trustee in bankruptcy.

All equipment leased to the operating entity should be registered within 15 business days of the operating entity taking possession of the equipment. Security interests that are not registered within this timeframe are still validly created, however will receive a lower priority than those registered within it. 

Common situations where this would apply include:

• Farming businesses where equipment is owned separate to the operations.
• Service trust arrangements where a trust owns equipment used by a professional practice.
• Construction businesses where equipment is owned separate to the operations.