Enforcement of and other dealings with PPS security interests restricted in certain circumstances
23A Enforcement of and other dealings with PPS security interests restricted in certain circumstances
On and from the registration commencement time (but subject to this clause and the regulations), a person may not take action to enforce a PPS security interest in personal property or otherwise deal with the interest or property:
if the action or dealing is (or would be) inconsistent with a relevant State property law (or an order made under such a law) that:
requires, authorises or permits the property to be dealt with in a particular manner (including by disposing of the property whether by sale, destruction or any other means), or
prohibits or prevents the property being dealt with in a particular manner or places other limitations or restrictions on how the property may be dealt with, or
if the action or dealing would operate to prevent, impede or defeat the making of an application to a court, tribunal or any other person or body under a relevant State property law with respect to how the property is to be dealt with, or
in such other circumstances as may be prescribed by the regulations.
Each of the following is a relevant State property law for the purposes of this clause:
Schedule 2 to the Commercial Agents and Private Inquiry Agents Act 2004,
the Confiscation of Proceeds of Crime Act 1989,
the Criminal Assets Recovery Act 1990,
Part 8 of the Holiday Parks (Long-term Casual Occupation) Act 2002,
the Impounding Act 1993,
Division 2 of Part 17 of the Law Enforcement (Powers and Responsibilities) Act 2002,
the Pawnbrokers and Second-hand Dealers Act 1996,
section 42 of the Property (Relationships) Act 1984,
Division 7 of Part 11 of the Residential (Land Lease) Communities Act 2013,
(Repealed)
Division 2 of Part 6 of the Residential Tenancies Act 2010,
Division 7 of Part 9 of the Retirement Villages Act 1999,
section 28 of the Terrorism (Police Powers) Act 2002,
the Uncollected Goods Act 1995,
Division 9 of Part 2 of the Victims Support and Rehabilitation Act 1996,
the Storage Liens Act 1935,
an Act or statutory rule (or a provision of an Act or statutory rule) that is prescribed by the regulations to be a relevant State property law for the purposes of this clause.
The regulations may make provision for or with respect to the following:
the application of subclause (1) in relation to a relevant State property law (include the modification of the subclause in its application to such a law),
the modification of a relevant State property law so as to enable it to operate concurrently, or to remove a direct inconsistency, with the PPS Act (including providing for the extinguishment of a PPS security interest in connection with the application of the law).
This clause does not:
affect the meaning or operation of a relevant State property law in its application to interests other than PPS security interests, or
affect the meaning or operation of a relevant State property law to the extent that the law would (even if subclause (1) had not been enacted) be capable of operating according to its tenor because it is:
a law of the State capable of operating concurrently with the PPS Act, or
a law of the State that makes provision for a matter mentioned in section 245 (2) (a), (b) or (c) of the PPS Act, or
a law of the State the effect of which is covered by section 258 (2) of the PPS Act, or
prevent the enforcement of, or other dealings with, a PPS security interest:
by the State or an instrumentality or other agency of the State, or
by any other person (or person belonging to a class of persons) prescribed by the regulations.
In this clause:
modification includes addition, exception, omission or substitution.
order includes a direction or notice.
PPS security interest means a security interest to which the PPS Act applies (including a transitional security interest).
Note—
Section 254 (2) (b), (c) and (g) of the PPS Act recognises that a law of a State that has any of the following effects is capable of operating concurrently with the PPS Act except in cases of direct inconsistency between the PPS Act and the law of the State:
prohibiting or limiting a person creating, acquiring or dealing with personal property or a security interest in personal property,
prohibiting or limiting the right of a person to hold, transfer or assign a security interest in personal property,
imposing limitations or additional obligations or requirements in relation to the enforcement of a security interest in personal property,
operating to extinguish (however described) a security interest in circumstances other than those provided under the PPS Act.
In the event of a direct inconsistency between the PPS Act and a law of the State having any of the effects referred to in paragraphs (a)–(c) above, section 258 (1) and (2) of the PPS Act operate to limit the operation of the PPS Act so as to avoid that inconsistency arising.
The PPS Act also extends to certain security interests created before the registration commencement time (referred to as transitional security interests in that Act).
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