Abstract

http://ssrn.com/abstract=2033433
 


 



The Role of Trusts in the PPSA


Jamie Glister


University of Sydney - Faculty of Law

April 2, 2012

University of New South Wales Law Journal, Vol. 34, No. 2, pp. 628-645, 2011
Sydney Law School Research Paper No. 12/19

Abstract:     
The new Australian personal property securities regime has now been brought into force. Under the new system, the concept of a 'security interest' is of paramount importance. Generally speaking, security interests must be registered to give their holders priority over other creditors in respect of the same assets. This article argues that one device often thought to be a security interest – a retention of title proceeds trust – will not be so if constituting the trust can be seen discharging the buyer’s obligation to the seller. The article also comments on the place of constructive trusts under the new regime, given that the PPSA exempts from its scope interests that are created by the operation of law. The problem here is that a plain reading of the legislation would seem to both include and exclude many interests at the same time. Finally, I also make some observations about the role of Quistclose trusts in personal property security regimes. These trusts are expressly excluded from the Australian PPSA, but their status is uncertain in Canada and New Zealand.

Number of Pages in PDF File: 19

Keywords: PPSA (Personal Property Securities Act 2009), security interest, retention of title, proceeds trust, constructive trust, Quistclose trust

JEL Classification: K10, K11, K30

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Date posted: April 3, 2012 ; Last revised: April 16, 2012

Suggested Citation

Glister, Jamie, The Role of Trusts in the PPSA (April 2, 2012). University of New South Wales Law Journal, Vol. 34, No. 2, pp. 628-645, 2011; Sydney Law School Research Paper No. 12/19. Available at SSRN: http://ssrn.com/abstract=2033433

Contact Information

Jamie Glister (Contact Author)
University of Sydney - Faculty of Law ( email )
Faculty of Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
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