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Personal Property Securities Act 2017

REPUBLIC OF FIJI

PERSONAL PROPERTY SECURITIES ACT 2017

(ACT NO. 45 OF 2017)

SECTIONS

PART 1—PRELIMINARY

1. Short title and commencement

2. Interpretation

3. Meaning of “possession” in certain cases

4. Meaning of “knowledge”

5. Description of collateral in a security agreement or notice

6. Classification of goods

7. Proceeds traceable

PART 2—APPLICATION OF THE ACT

8. Transactions subject to this Act

9. Transactions not subject to this Act

10. Act to bind the State

PART 3—SECURITY AGREEMENTS, ATTACHMENT OF SECURITY INTERESTS AND SECURED OBLIGATIONS

11. Effectiveness of security agreement, security interest and stamp duty

12. Attachment of security interest to collateral and proceeds

13. Attachment of obligation to after-acquired property

14. Future advances in a security agreement

PART 4—RIGHTS, DUTIES AND OBLIGATIONS OF THE DEBTOR AND THE SECURED PARTY

15. Secured party’s duty to preserve collateral

16. Investment property in control of secured party

17. Duties of secured party in control of deposit account

18. Duties of secured party if account debtor has been notified of assignment of payments

19. Debtor’s request for accounting

20. Acceleration of payment or performance

PART 5—PERFECTION OF SECURITY INTERESTS

21. Perfection of a security interest

22. Perfection by registration of a notice

23. Perfection by taking possession of collateral

24. Perfection by control of deposit accounts and investment property

25. Continuity of perfection

26. Temporary perfection

27. Perfection of security interest in goods held by a bailee

28. Perfection of security interest in proceeds

29. Perfection of security interest in goods returned or repossessed

PART 6—PRIORITY OF SECURITY INTERESTS AND RIGHTS OF THIRD PARTIES

Division 1—General Priority Rules

30. General priority rules

31. Time of priority of security interest in proceeds

32. Priority of an execution creditor

33. Priority in future advances and the interests of transferees of the debtor

34. Agreement to subordinate priority

Division 2—Priority of Purchase Money Security Interests

35. Meaning of “possession” in this Division

36. Status of purchase money security interest

37. General rule on priority of purchase money security interests

38. Priority of purchase money security interests in inventory, livestock and intangibles

39. Conflicts involving purchase money security interests

40. Priority of purchase money security interests against execution creditors

Division 3—Buyers and Other Transferees of Collateral

41. When transferee takes collateral free of a security interest

42. Buyer or lessee of consumer goods

43. Buyer or lessee of goods subject to temporarily perfected security interests

44. Buyer or lessee of minerals, petroleum and timber

45. Buyer, lessee or mortgagee of fixtures

46. Priority of materials or services lien

47. Rights of debtor in collateral may be transferred

Division 4—Persons to whom Negotiable Collateral is Transferred

48. Where holder of money takes free of perfected security interest in money

49. Priority of creditor who receives funds subject to a security interest

50. Priority of purchasers of instruments or securities

51. Priority of holders of negotiable documents of title

52. Priority of purchasers of chattel paper

Division 5—Assignments and Other Transfers of Accounts

53. Interpretation for this Division

54. Notice to account debtor

55. Account debtor’s right to assert defences and claims

56. Modified or substituted contracts effective against assignee

57. Enforceability of non-assignment clauses

Division 6—Priority in Deposit Accounts and Investment Property

58. Meaning of “control” of a deposit account

59. Priority of security interests in deposit accounts perfected by control

60. Priority of security interests in investment property

Division 7—Priority in Special Classes of Tangible Collateral

61. Priority of security interests in fixtures

62. Secured party’s right to remove fixtures

63. Application to court: fixtures

64. Retention of fixtures by a person with an interest in related land

65. Priority of security interests in crops

66. Priority of security interests in accessions

67. Priority of security interests in commingled goods

68. Priority of security interests in certain vessels and aircraft

PART 7—REGISTRATION

69. Personal Property Securities Registry

70. Initial notice

71. Notice of the interest of an execution creditor

72. Notice registered prior to security agreement or attachment

73. Notice may apply to multiple agreements

74. Name of the debtor

75. Notice is effective unless seriously misleading

76. Effect of change of circumstances

77. Duration of notice and effect of lapse

78. Amendment of notice

79. Continuation of notice

80. Termination of notice

81. Effectiveness of notice

82. Registrar’s refusal to register a notice

83. Effect of secured party’s notice on other secured parties on the notice

84. Duties of the Registrar

85. Public access to Registry records

86. Notice does not constitute constructive notice

PART 8—ENFORCEMENT OF SECURITY INTERESTS

87. Application of this Part

88. Secured party rights upon default

89. Recovery without judicial process in certain cases

90. Secured party’s right to take possession and dispose of collateral

91. Manner of disposition of collateral

92. Duty to act in a commercially reasonable manner

93. Obligation to give notice of disposition of collateral

94. Secured party may purchase collateral at public sale

95. Rights of purchasers of collateral

96. Secured party’s disposition of a licence

97. Application of proceeds and surplus or deficiency

98. Secured party’s right to retain collateral

99. Debtor’s right to redeem collateral

100. Debtor’s right to reinstate security agreement

101. Enforcement of a security interest in a mortgage

102. Remedies for secured party non-compliance

103. Manner of notification to debtors, secured parties and other persons

PART 9—CONFLICT OF LAWS

104. When the laws of Fiji apply

105. Continuity of perfection where goods are moved to Fiji

106. Location of debtor

107. Validity and perfection of security interests in intangibles and certain goods

108. Position where debtor relocates

109. Priority where there is no public record of a perfected security interest

110. Perfection of security interest in as-extracted collateral

PART 10—MISCELLANEOUS

111. Transitional

112. Offences

113. Regulations

114. Consequential amendments


PERSONAL PROPERTY SECURITIES ACT 2017

ACT NO. 45 OF 2017

I assent.

J. K. KONROTE President

[18 September 2017]

AN ACT

TO REGULATE THE LENDING OF MONEY SECURED BY PERSONAL PROPERTY AS COLLATERAL

ENACTED by the Parliament of the Republic of Fiji—

PART 1—PRELIMINARY

Short title and commencement

1.—(1) This Act may be cited as the Personal Property Securities Act 2017.

(2) This Act comes into force on a date or dates appointed by the Minister by notice in the Gazette.

Interpretation

2. In this Act, unless the context otherwise requires—

“accession” means goods that are installed in or affixed to other goods in such a manner that the identity of the goods is not lost;
“account debtor” means a person who is obligated under an account receivable, secured sales contract, intangible or chattel paper; “account receivable” means a monetary obligation, whether or not earned by performance, that is not evidenced by chattel paper or an instrument, but does not include a deposit account, letters of credit or an investment property;
“advance” means the payment of money, the provision of credit or the giving of value, and includes any liability of the debtor to pay interest, credit costs and other charges or costs payable by the debtor in connection with an advance or the enforcement of a security interest securing the advance;
“after-acquired property” means property acquired after the time that a security agreement is concluded that covers the property;
“as-extracted collateral” means—
“attachment” means completion of all conditions necessary under section 12 of this Act to make a security interest enforceable against the debtor with respect to the collateral;
“building” means a structure, erection, mine or work that is built or constructed on or opened in land;
“building materials” means materials that are incorporated into a building, and includes goods attached to a building so that their removal—
but does not include—
“buyer of goods in the ordinary course of business” means a person who buysgoods from a person in the business of selling goods of that kind, if the buyer buys in good faith and without knowledge that the sale violates the rights of another person in the goods;
“cash” means the physical currency, whether in paper form or coins, authorised as a medium of exchange by the laws of Fiji or any other country;
“chattel paper” means one or more writings that evidence both a monetary obligation and—
“collateral” means present or future personal property that is subject to a security interest;
“commercial consignment” means a transaction, regardless of the form or terminology used in the agreement, in which a person (the consignor) delivers goods for the purpose of sale to a merchant (the consignee) that deals in goods of that kind under a name other than that of the consignor, but the term excludes a transaction in which—
“commingled goods” means fungible goods that are physically united with other fungible goods in a way that their identity is lost in a product or mass;
“consumer goods” means goods that are used or acquired for use primarily for personal, family or household purposes, but the term does not include a serial numbered vehicle;
“creditor” includes an assignee for the benefit of creditors, an executor, an administrator, a committee or a property guardian of a creditor;
“crops” means crops, whether matured or otherwise, and whether naturally grown or planted, attached to land by roots including roots if able to be used as root-stock or otherwise transplanted or forming part of trees or plants attached to land, and includes trees only if the trees—
“debtor” means––
“default” means the failure to pay or otherwise perform the obligation secured when due, or the occurrence of an event that, under the security agreement, gives the secured party the right to enforce the security;
“deposit account” means a demand, time, savings, passbook or similar account maintained with a financial institution;
“document of title” means a writing, such as a bill of lading or warehouse receipt, issued by or addressed to a bailee—
“financial institution” means any financial institution within the meaning of the Banking Act 1995, credit union registered under the Credit Unions Act 1954, any friendly society registered under the Friendly Societies Act 1878, the Fiji Development Bank and such other persons as prescribed by regulations;
“fixtures” means goods that have become so related to real property that an interest in them arises under real property law but fixtures do not includebuildingmaterialsandreadilyremovablefactorymachines,officemachines and domestic appliances; “future advance” means—
“goods” means all things that are tangible personal property when a security interest attaches, and includes—
but the term does not include accounts receivable, deposit accounts, chattel paper, documents of title, instruments, investment property or money;
“instrument” means—
but does not include—
“intangible” means personal property that is not goods, chattel paper, a document of title, an instrument, money or an investment property, and includes an account receivable, a deposit account, intellectual property and a licence;
“inventory” means—
“lease for a term of more than one year” includes a lease of goods—
but does not include a lease of goods—
“lessee of goods in the ordinary course of business” means a person who, in good faith and without actual knowledge that the lease is in violation of the ownership rights or security interest or leasehold interest of a third party in the goods, leases in the ordinary course from a person in the business of selling or leasing goods of that kind;
“licence” means a right, whether or not exclusive—
that is transferrable by the grantee with or without restriction or the consent of the grantor of the licence;
“minerals” means minerals as defined in the Mining Act 1965; “Minister” means the Minister responsible for finance;
“money” means any item used as a medium of exchange, including cash, checks on demand, deposit cheques, money orders, or other credit arrangements;
“notice” means (except in the context of a notification delivered to a debtor, secured party, or person other than the Registry) a writing registered in the Registry, and includes an initial notice, amendment, continuation, and termination;
“perfection” means optimisation of a secured party’s rights in collateral against third parties such as buyers, other secured parties, execution creditors, lien holders, liquidators and insolvency administrators;
“personal property” means goods, chattel paper, investment property, a document of title, an instrument, money or an intangible;
“petroleum” means petroleum as defined in the Petroleum (Exploration and Exploitation) Act 1978;
“proceeds” means identifiable or traceable personal property that is derived directly or indirectly from dealing with collateral or the proceeds of collateral and in which the debtor acquires an interest, and includes whatever is acquired upon sale, lease or other disposition of collateral, or whatever is collected on or distributed with respect to collateral, including without limitation––
(a)
a right to an insurance payment or any other payment as indemnityor compensation for loss of or damage to the collateral or proceeds of the collateral;
(b)
a payment made in total or partial discharge or redemption of an intangible, chattel paper, an instrument or investment property;
(c)
rights arising out of, or property collected on, or distributed on account of, collateral that is investment property;
(d)
property exchanged for the original collateral; or
(e)
property purchased with money proceeds,

but does not include animals merely because they are the offspring of animals that are collateral;

“purchase money security interest” means—
but does not include a transaction of sale and the lease back to the seller and, for the purposes of this subparagraph, “purchase price” and “value” include credit charges and interest payable for the purchase or loan credit;
“purchaser” means a person who takes personal property by sale, lease, discount, assignment, negotiation, mortgage, pledge, lien, issue, reissue, gift or any other consensual transaction that creates an interest in personal property;
“Registrar” means the Registrar of the Personal Property Securities Act 2017 as designated by this Act or the regulations hereunder;
“Registry” means the electronic registry established under this Act;
“secured party” means a lender, seller or other person in whose favour a security interest is created or provided for under a security agreement, including a person to whom account receivables or chattel paper have been sold, and a consignor or lessor of goods, including the representative of any such person or groups of persons, and includes for the purposes of priority determination and filing only, a buyer of accounts receivable or secured sales contracts and a lessor of goods under a lease for a term of more than one year;
“secured sales contract” means a contract for the sale of goods on credit that includes a security agreement creating a security interest in the sold goods;
“security” means—
“security agreement” means a writing that creates or provides for a security interest;
“security interest” means––
“serial number” means the vehicle identification number assigned to a vehicle by its manufacturer under standards adopted by the International Organization for Standardization;
“serial numbered vehicle” means a motor vehicle identifiable by a serial number and held by a debtor primarily for personal use that is subject to a security interest;
“signed” means—
“supporting obligation” means a right in a letter of credit or secondary obligation that supports a right to payment or performance of an account receivable, chattel paper, a document of title, an instrument, an intangible or investment property;
“value” means any consideration that is sufficient to support a contract and includes an antecedent debt or liability; and
“writing” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; the term includes a photocopy, facsimile copy and electronic mail.

Meaning of “possession” in certain cases

3.—(1) For the purposes of this Act, a person takes possession of an investment property if—

(a) in the case of an investment property that is evidenced by a security certificate, the person takes physical possession of that certificate;
(b) in the case of an investment property that is traded or settled through a clearing house or securities depository, the clearing house or securities depository, as the case may be, records the interest of the person in the investment property;
(c) in the case of an investment property that is not evidenced by a security certificate and that is not traded or settled through a clearing house or securities depository, the records maintained by the issuer, or on behalf of the issuer, record the interest of the person in the investment property; or
(d) in the case of an investment property that is held by a nominee, the records of the nominee record the interest of the person in the investment property.

(2) For the purposes of this Act, a person takes possession of an instrument if—

(a) the person takes physical possession of the instrument; or
(b) in the case of an instrument that is traded or settled through a clearing house or securities depository, the clearing house or securities depository, as the case may be, records the interest of the person in the instrument.

(3) For the purposes of this Act, a secured party is not in possession of collateral that is in the actual or apparent possession or control of the debtor or the debtor’s agent.

Meaning of “knowledge”

4.—(1) For the purposes of this Act—

(a) a natural person knows or has knowledge of a fact in relation to a particular transaction when that person has actual knowledge of the fact or receives a notice stating the fact;
(b) an organisation knows or has knowledge of a fact in relation to a particular transaction when—
(c) a Government department knows or has knowledge of a fact in relation to a particular transaction when that fact has been brought to the attention of the permanent secretary responsible for the Government department with responsibility for the matters to which the fact relates, under circumstances in which a reasonable person would take cognisance of it.

Description of collateral in a security agreement or notice

5.—(1) A description of collateral in a security agreement or notice is sufficient, whether it is specific or general, if it—

(a) describes collateral by item or kind in a manner that enables the collateral to be identified;
(b) consists of a statement that a security interest is taken in all of the debtor’s present and after-acquired property; or
(c) consists of a statement that a security interest is taken in all of the debtor’s present and after-acquired property except for specified items or kinds of personal property.

(2) A collateral description may provide the serial number of a serial numbered vehicle in a field prescribed by the Registrar.

(3) A notice may provide a reasonable description of the location of the relevant real property if the notice covers fixtures, timber to be cut, or as-extracted collateral.

(4) To be sufficient, a description of consumer goods requires a specific description.

Classification of goods

6. Unless otherwise provided in this Act, the determination of whether goods are consumer goods, inventory or equipment is to be made as of the time when the security interest in the goods attaches.

Proceeds traceable

7. Proceeds are traceable whether or not there is a fiduciary relationship between the person who has a security interest in the proceeds and the person who has rights in or has dealt with the proceeds.

PART 2—APPLICATION OF THE ACT

Transactions subject to this Act

8.—(1) Subject to subsection (4), this Act applies––

(a) to every transaction that in substance creates a security interest, without regard to its form and without regard to the person who has title to the collateral;
(b) without limiting the generality of paragraph (a), to any transaction nominally called a chattel mortgage, hire-purchase, conditional sale, floating charge, fixed charge, pledge, trust indenture, trust receipt, debenture secured by collateral, and the like, or to an assignment, consignment, lease, trust or transfer of chattel paper that secures payment or performance of an obligation; and
(c) without limiting the generality of paragraph (a), to a security interest grantedbyapersontoafinancialinstitutioninadepositaccountmaintainedby the financial institution.

(2) The retention of title by a seller of goods has no effect other than the taking of a security interest in the goods.

(3) Except as provided in section 87, this Act applies—

(a) to a transfer of an account receivable or chattel paper, to a lease for a term of more than one year and to a commercial consignment that does not secure payment or performance of an obligation; and
(b) to the interest of an execution creditor.

(4) For the avoidance of doubt, nothing in this Act affects the repayment of advances and other payments of whatsoever nature made to the cane growers or on the cane growers’ behalf by the Fiji Sugar Corporation Limited pursuant to the Master Award established under the Sugar Industry Act 1984.

Transactions not subject to this Act

9.—(1) Except as otherwise provided in this Act, this Act does not apply to—

(a) the creation or transfer of an interest in present or future wages, salary, pay, commission or any other compensation for labour or personal services, other than fees for professional services;
(b) a transfer of an unearned right to payment under a contract to a transferee who is to perform the transferor’s obligations under the contract;
(c) the creation or transfer of an interest in real property including a lease of real property, including a transfer of rental payment payable under a lease for land unless the right to payment is evidenced by an investment property, but this Act does apply to an interest in crops, fixtures, timber to be cut, or as-extracted collateral;
(d) a sale of accounts receivable or chattel paper as part of a sale of a business out of which they arose, unless the seller remains in apparent control of the business after the sale;
(e) a transfer of accounts receivable that is made solely to facilitate the collection of accounts receivable for the transferor;
(f) an assignment for the general benefit of creditors;
(g) a transfer of an interest in a superannuation fund;
(h) the creation or transfer of an interest in a tenement governed by the Mining Act 1965;
(i) the creation or transfer of an interest in a licence governed by the Petroleum (Exploration and Exploitation) Act 1978;
(j) a transfer, assignment, mortgage, or assignment of a mortgage of a ship that is subject to registration under the Maritime Transport Act 2013 or any other written law of Fiji;
(k) a transfer, assignment, mortgage, or assignment of a mortgage of an aircraft that is subject to mandatory registration under any other written law of Fiji in order to secure a charge over such aircraft.

(2) The application of this Act to a security interest in an intangible is not affected by the fact that the intangible is secured by a transaction or interest to which this Act does not apply.

Act to bind the State

10. This Act binds the State.

PART 3—SECURITY AGREEMENTS, ATTACHMENT OF SECURITY INTERESTS AND SECURED OBLIGATIONS

Effectiveness of security agreement, security interest and stamp duty

11.—(1) Except as otherwise provided in this or any other Act, a security agreement is effective—

(a) according to its terms;
(b) against purchasers of the collateral; and
(c) against execution creditors.
(2) A security interest is not invalid or fraudulent against creditors and other third parties because—
(b) the secured party fails to require the debtor to account for proceeds or replace collateral.

(3) A security interest may not be taken in the consumer goods of a debtor except for a purchase money security interest in the consumer goods.

(4) The provisions of the Stamp Duties Act 1920 pertaining to the payment of stamp duty applies to security agreements under this Act, and the procedure to ensure stamp duty is paid is set out in regulations made under this Act.

Attachment of security interest to collateral and proceeds

12.—(1) Subject to subsection (5), a security interest attaches to collateral and is enforceable against the debtor and third parties as provided in this Act, when—

(a) value is given by the secured party;
(b) the debtor has rights in the collateral; and
(c) one of the following conditions is met—

(2) For the purposes of subsection (1)(b) and without limiting other rights that the debtor may have in the collateral, a debtor has rights in goods that are leased to the debtor under a lease for a term of more than one year, consigned to the debtor under a commercial consignment, or sold to the debtor under a conditional sale agreement (including an agreement to sell subject to retention of title) no later than when the debtor obtains possession of the goods.

(3) For the purposes of subsection (1)(b), a debtor has rights in timber to be cut when the timber is cut, and in as-extracted collateral at the time that the collateral subject to the security interest is extracted.

(4) Unless otherwise agreed by the debtor and secured party—

(a) the attachment of a security interest in collateral gives the secured party the right to proceeds of the collateral, even if the security agreement is silent about proceeds;
(b) the attachment of a security interest in collateral is also attachment of a security interest in a supporting obligation for the collateral; and
(c) the attachment of a security interest in a right to payment or performance secured by a security interest in collateral is also attachment of a security interest in the collateral.

(5) Subsection (1) does not apply if the parties to a security agreement have agreed that a security interest attaches at a later time, in which case the security interest attaches at the time specified in the security agreement.

Attachment of obligation to after-acquired property

13.—(1) Where a security agreement provides for a security interest in after-acquired property, the security interest attaches without specific appropriation by the debtor unless the after-acquired property are consumer goods.

(2) Where the after-acquired property is consumer goods, a written confirmation must be made by the debtor personally or by the debtor’s agent for the consumer goods to be after-acquired property.

Future advances in a security agreement

14. A security agreement may provide for future advances, and a security interest has the same priority in respect of all advances, including future advances.

PART 4—RIGHTS, DUTIES AND OBLIGATIONS OF THE DEBTOR AND THE SECURED PARTY

Secured party’s duty to preserve collateral

15.—(1) A secured party must take reasonable care in the custody and preservation of collateral in the possession of the secured party.

(2) Unless the parties agree otherwise, in the case of an instrument or chattel paper, reasonable care includes taking necessary steps to preserve rights against other persons.

(3) Unless the parties agree otherwise, where collateral is in the secured party’s possession—

(a) reasonable expenses, including the cost of insurance and payment of taxes or other charges incurred in obtaining and maintaining possession of the collateral, are chargeable to the debtor and are secured by the collateral; and
(b) the risk of loss or damage, except where caused by the negligence of the secured party, is on the debtor to the extent of any deficiency in any insurance coverage.

(4) Unless the parties agree otherwise, the secured party—

(a) may hold as additional security any increase or profits received from the collateral;
(b) must either apply money or funds received from the collateral to reduce the secured obligation or remit such money or funds to the debtor; and
(c) must keep the collateral identifiable, but fungible collateral may be commingled.

(5) Subject to subsection (1), a secured party may use the collateral—

(a) in the manner and to the extent provided in the security agreement;
(b) for the purpose of preserving the collateral or its value;
(c) under an order of the court; or
(d) in accordance with any written law.

Investment property in control of secured party

16.—(1) Unless otherwise agreed by the parties and notwithstanding section 15, a secured party having control of investment property as collateral—

(a) may hold as additional security any proceeds received from the collateral; and
(b) must either apply money or funds received from the collateral to reduce the secured obligation or remit such money or funds to the debtor.

(2) Notwithstanding subsection (1) and section 17, a secured party that has control of investment property as collateral may sell, transfer, use or otherwise deal with the collateral in the manner and to the extent provided in the security agreement.

(3) Within 14 days after receiving a demand in the form of a signed writing by the debtor, a secured party that has control of investment property must send to an interested intermediary a signed writing that releases the intermediary from any further obligation to comply with orders or directions originated by the secured party.

(4) Subsection (3) applies only if––

(a) there is no outstanding secured obligation; and
(b) the secured party is not committed to make advances, incur obligations, or otherwise give value.

Duties of secured party in control of deposit account

17.—(1) This section applies only if—

(a) there is no outstanding secured obligation; and
(b) the secured party is not committed to make advances, incur obligations, or otherwise give value.

(2) Within 14 days after receiving a demand in the form of a signed writing by the debtor, a secured party that has control of a deposit account other than a secured party that is the financial institution with which a deposit account is maintained must send to the financial institution with which the deposit account is maintained assigned writing that releases the financial institution from any further obligation to comply with instructions originated by the secured party.

(3) Within 14 days after receiving a demand in the form of a signed writing by the debtor, a secured party that has control of a deposit account and that is the financial institution with which a deposit account is maintained must—

(a) pay the debtor the balance on deposit in the deposit account; or
(b) transfer the balance on deposit into a deposit account in the debtor’s name.

Duties of secured party if account debtor has been notified of assignment of payments

18.—(1) Except as otherwise provided in subsection (3), this section applies if—

(a) there is no outstanding secured obligation; and
(b) the secured party is not committed to make advances, incur obligations or otherwise give value.

(2) Within 14 days after receiving a demand in the form of a signed writing by the debtor, a secured party must send to an account debtor that has received notification of an assignment to the secured party (as assignee) a signed writing that releases the account debtor from any further obligation to the secured party.

(3) This section does not apply to a sale of an account receivable or chattel paper.

Debtor’s request for accounting

19.—(1) A debtor may request—

(a) an accounting of the unpaid obligations secured by collateral;
(b) that a secured party approve or correct a list of what the debtor believes to be the collateral securing an obligation; or
(c) that a secured party approve or correct a statement indicating what the debtor believes to be the aggregate amount of unpaid obligations secured by collateral as of a specified date.

(2) A secured party must comply with a request under subsection (1) within 14 days after receipt of the debtor’s request.

Acceleration of payment or performance

20.—(1) A security agreement may provide that the secured party can accelerate payment or performance by the debtor when—

(a) the debtor is in default;
(b) the secured party reasonably believes that the collateral is at risk; or
(c) the secured party reasonably believes that payment or other performance is at risk.

(2) In this section the term “at risk” means that the secured party has commercially reasonable grounds to believe that—

(a) the collateral has been or will be destroyed, damaged, endangered, disassembled, removed or concealed contrary to the provisions of the security agreement; or
(b) the debtor is or will be unable to pay or perform the debtor’s obligations under the security agreement,
provided, the burden of proving the existence of these grounds is on the secured party.

PART 5—PERFECTION OF SECURITY INTERESTS

Perfection of a security interest

21. A security interest is perfected when it has attached and a method of perfection authorised under this Act has been completed, regardless of the order of occurrence.

Perfection by registration of a notice

22. Subject to section 21, registration of a notice perfects a security interest in collateral other than money, except that registration of a notice perfects a security interest in money that is proceeds.

Perfection by taking possession of collateral

23.—(1) Subject to section 21, possession of the collateral by the secured party, or by another person on the secured party’s behalf, perfects a security interest in—

(a) chattel paper;
(b) goods;
(c) an instrument;
(d) a document of title; and
(e) money, except where possession is a result of seizure or repossession.

(2) For the purposes of subsection (1), a secured party does not have possession of collateral that is in the actual or apparent possession or control of the debtor or the debtor’s agent.

Perfection by control of deposit accounts and investment property

24.—(1) Subject to section 21, a security interest in a deposit account or in investment property may be perfected by control.

(2) A security interest in investment property is perfected by control from the time the secured party obtains control and remains perfected by control until—

(a) the secured party does not have control; and
(b) one of the following occurs––

Continuity of perfection

25.—(1) A security interest is continuously perfected for the purposes of this Act, if—

(a) the security interest is perfected under this Act;
(b) the security interest is subsequently perfected in another way under this Act; and
(c) there is no intervening period during which the security interest is unperfected.

(2) A transferee of a security interest has the same priority with respect to perfection of the security interest as the transferor had at the time of the transfer.

Temporary perfection

26.—(1) A security interest perfected by possession remains perfected, notwithstanding section 25, for 7 days after the collateral comes under the control of the debtor, where the collateral is—

(a) an instrument or a security evidenced by a certificate that a secured party delivers to the debtor for the purpose of ultimate sale or exchange, presentation, collection, renewal, or registration of a transfer; or
(b) a document of title or goods held by a bailee that are not covered by a negotiable document of title, which document of title or goods the secured party makes available to the debtor for the purpose of sale, exchange, loading, unloading, storing, shipping manufacturing, processing, packaging, or otherwise dealing with the goods in preparation for their sale or exchange.

(2) After the expiration of the 7 day period, the security interest is subject to the provisions of this Act relating to the perfection of a security interest.

Perfection of security interest in goods held by a bailee

27.—(1) Subject to section 23, a security interest in goods in the possession of a bailee is perfected by—

(a) the issuance of a document of title by the bailee in the name of the secured party;
(b) the perfection of a security interest in a negotiable document of title to the goods where the bailee has issued one;
(c) a possession on behalf of the secured party under section 23; or
(d) the registration of a notice relating to the goods.

(2) The issuance of a negotiable document of title covering goods does not preclude any other security interest in the goods from arising during the period that the negotiable document of title is outstanding.

(3) A perfected security interest in a negotiable document of title covering goods takes priority over a security interest in the goods otherwise perfected after the goods become covered by the negotiable document of title.

Perfection of security interest in proceeds

28.—(1) Except as otherwise provided in this Act, where collateral is dealt with or otherwise gives rise to proceeds, the security interest—

(a) continues in the collateral unless the secured party expressly or impliedly authorises the dealing; and
(b) extends to the proceeds.

(2) A security interest in proceeds is a continuously perfected security interest if the interest in the original collateral is perfected by registration of a notice that—

(a) contains a description of the proceeds that would be sufficient to perfect a security interest in the original collateral of the same kind;
(b) covers the original collateral, if the proceeds are of a kind that are within the description of the original collateral; or
(c) covers the original collateral, if the proceeds consist of money, cheques or deposit accounts.

(3) A security interest in proceeds is temporarily perfected until the expiration of 14 days after the security interest in the original collateral attached to the proceeds, if—

(a) the security interest in the original collateral is perfected; and
(b) the security interest in the proceeds is not continuously perfected under subsection (2).

Perfection of security interest in goods returned or repossessed

29.—(1) Where a debtor sells or leases goods that are subject to a security interest under circumstances in which the buyer or lessee takes the goods free of the security interest, the security interest reattaches to the goods if—

(a) the goods are returned to, seized or repossessed by the debtor or by a transferee of chattel paper created by the sale or lease; and
(b) the obligation secured remains unpaid or unperformed.

(2) Where a security interest reattaches under subsection (1), the perfection of the security interest and the time of registration or perfection are determined as if the goods had not been sold or leased, if—

(a) the security interest was perfected by registration at the time of the sale or lease; and
(b) the registration is effective at the time of the return, seizure or repossession.

(3) A security interest in goods given by a buyer or lessee of the goods under subsection (1) that attaches while the goods are in the possession of the buyer, lessee or debtor and that is perfected when the goods are returned, seized or repossessed has priority over a security interest in the goods arising under this section.

PART 6—PRIORITY OF SECURITY INTERESTS AND RIGHTS OF THIRD PARTIES

Division 1—General Priority Rules

General priority rules

30.—(1) If this Act provides no other way of determining priority between security interests in the same collateral—

(a) a perfected security interest has priority over an unperfected security interest in the same collateral;
(b) priority between perfected security interests in the same collateral (where perfection has been continuous) is to be determined by the order of whichever of the following first occurs in relation to a particular security interest—
(c) priority between unperfected security interests in the same collateral is to be determined by the order of attachment of the security interests.

(2) For the purpose of this section, a continuously perfected security interest is to be treated at all times as perfected by the method by which it was originally perfected.

Time of priority of security interests in proceeds

31. Subject to section 28 and for the purposes of section 30, the time of registration or perfection of a security interest in original collateral is also the time of registration or perfection of the security interest in its proceeds.

Priority of an execution creditor

32. A security interest in collateral is subordinate to the interest of an execution creditor if the security interest is not perfected at the time that a notice of the interest of the execution creditor is registered.

Priority in future advances and the interests of transferees of the debtor

33.—(1) Subject to subsection (3), the time of priority that a security interest has undersection 30 applies to all advances, including future advances.

(2) Where a debtor transfers rights in collateral that, at the time of the transfer, is subject to a perfected security interest, that security interest has priority over any other security interest granted by the debtor before the transfer.

(3) A perfected security interest has priority over the interests of an execution creditor only to the extent of advances made—

(a) before the secured party acquired knowledge of the interest of the execution creditor; or
(b) before a notice of the interest of the execution creditor is registered.

Agreement to subordinate priority

34.—(1) A secured party may, in a security agreement or otherwise, subordinate the secured party’s security interest to any other interest.

(2) An agreement to subordinate a security interest is effective according to its terms between the parties and may be enforced by a third party if the third party is the person, or one of a class of persons, for whose benefit the agreement is intended.

(3) A security interest is not created only by an agreement or undertaking to postpone or subordinate the following—

(a) the right of a person to performance of all or any part of an obligation to the right of another person to the performance of all or any part of another obligation of the same debtor; or
(b) all or any part of the rights of a secured party under a security agreement to all or any part of the rights of another secured party under another security agreement with the same debtor.

Division 2—Priority of Purchase Money Security Interests

Meaning of “possession” in this Division

35. For the purposes of this Division only, where goods are shipped by a common carrier to a debtor or to a person designated by the debtor, the debtor does not obtain possession of the goods until the debtor or a third party at the request of the debtor obtains actual possession of the goods or a document of title to the goods, whichever is earlier.

Status of purchase money security interest

36. In a transaction other than a consumer goods transaction, a purchase money security interest remains a purchase money security interest even if—

(a) the purchase money collateral also secures an obligation that is not a purchase money obligation;
(b) collateral that is not purchase money collateral also secures the purchase money obligation; or
(c) the purchase money obligation has been renewed, refinanced, consolidated or restructured.

General rule on priority of purchase money security interests

37. A purchase money security interest in collateral, other than inventory, livestock or intangibles, has priority over a non-purchase money security interest in the same collateral given by the same debtor if the purchase money security interest in the collateral or its proceeds is perfected not later than 7 days after the day on which the debtor, or the debtor’s agent, obtained possession of the collateral, whichever is earlier.

Priority of purchase money security interests in inventory, livestock and intangibles

38.—(1) A purchase money security interest in inventory or livestock and their proceeds has priority over a non-purchase money security interest in the same collateral given by the same debtor if the purchase money security interest in the inventory or livestock and their proceeds is perfected at the time the debtor, or the debtor’s agent, obtains possession of the collateral.

(2) A purchase money security interest in an intangible or its proceeds has priority over a non-purchase money security interest in the same collateral given by the same debtor if the purchase money security interest in the intangible or its proceeds is perfected not later than 7 days after the day on which the security interest in the intangible attached.

(3) The security interest of a consignor in goods that are the subject of a commercial consignment is a purchase money security interest in inventory.

Conflicts involving purchase money security interests

39.—(1) A purchase money security interest in goods or their proceeds taken by a seller, lessor, or consignor of the collateral, has priority over any other purchase money security interest in the same collateral given by the same debtor if the first mentioned purchase money security interest in the goods or their proceeds is perfected—

(a) in the case of inventory or livestock, at the time the debtor, or the debtor’s agent, obtained possession of the collateral, whichever is earlier; or
(b) in the case of collateral, other than inventory or livestock, not later than 7 days after the day on which the debtor, or the debtor’s agent, obtained possession of the collateral, whichever is earlier.

(2) Priority between purchase money security interests in the same goods or their proceeds that have not been granted to a seller, lessor or consignor, and that have been given by the same debtor are to be determined in accordance with section 30.

(3) A non-proceeds security interest in accounts receivable that is given for new value has priority over a purchase money security interest in the accounts receivable as proceeds of inventory if a notice relating to the non-proceeds security interest in the accounts receivable is registered before a notice relating to the purchase money security interest is registered.

(4) In this section, “non-proceeds security interest” means a security interest in original collateral.

Priority of purchase money security interests against execution creditors

40. Notwithstanding section 32, a purchase money security interest has priority over the interest of an execution creditor in—

(a) collateral, other than an intangible, if the purchase money security interest is perfected not later than 7 days after the day on which the debtor, or the debtor’s agent, obtains possession of the collateral; or
(b) an intangible, if the purchase money security interest is perfected not later than 7 days from the day on which the security interest attaches.

Division 3—Buyers and Other Transferees of Collateral

When transferee takes collateral free of a security interest

41.—(1) A buyer or lessee of collateral who acquires the collateral for value takes the collateral free of an unperfected security interest, unless the unperfected security interest was created or provided for by a transaction to which the buyer or lessee is a party.

(2) Notwithstanding section 26 of the Sale of Goods Act 1978, a buyer of goods in the ordinary course of business, and a lessee of goods in the ordinary course of business, takes the goods free of any perfected or unperfected security interest that is given by the seller or lessor or that arises under section 28 or 29, whether or not the buyer or lessee knows of it, unless the buyer or lessee also knows that the sale or lease constitutes a breach of the security agreement under which the security interest was created.

(3) A buyer or lessee of a serial numbered vehicle takes it free of a security interest perfected by registration if the buyer or lessee does not know of the security interest and if the serial number was not described or was incorrectly described, in a field prescribed by the Registrar for the collection of serial numbers, on the notice of security interest.

(4) A buyer of goods takes free of a perfected security interest in the goods if the secured party consents to the sale by the debtor.

(5) A person who receives cash for value takes free of a perfected security interest in the cash.

(6) An execution creditor who takes control of collateral or causes collateral to be seized before a security interest is perfected takes free of the security interest.

(7) A court or a liquidator of an insolvent company that takes physical custody or control of assets before a security interest is perfected in them takes free of the security interest.

Buyer or lessee of consumer goods

42. A buyer or lessee of goods that are acquired as consumer goods takes the goods free of a perfected or unperfected security interest if the buyer or lessee—

(a) gave value for the interest acquired; and
(b) bought or leased the goods without knowledge of the security interest.

Buyer or lessee of goods subject to temporarily perfected security interests

43. A buyer or lessee of goods takes the goods free of a security interest that is temporarily perfected under section 26 if the buyer or lessee—

(a) gave value for the interest acquired; and
(b) bought or leased the goods without knowledge of the security interest.

Buyer or lessee of minerals, petroleum and timber

44. A buyer or lessee in ordinary course of business of the seller or lessor takes the following goods free of an interest arising out of an encumbrance on real property—

(a) minerals or petroleum at the mine head or wellhead, or upon extraction; and
(b) timber, as the timber is cut.

Buyer, lessee or mortgagee of fixtures

45. A buyer, lessee or mortgagee of fixtures takes the fixtures free of a security interest perfected by registration under this Act if—

(a) the buyer, lessee or mortgagee takes the fixtures without knowledge of the security interest; and
(b) the notice describing the fixtures does not include a reasonable description of the location of the real property where the fixtures are located.

Priority of materials or services lien

46.—(1) A lien arising out of materials or services provided in respect of goods that are subject to a security interest in the same goods has priority over that security interest if—

(a) the goods are in the possession of the person claiming the lien;
(b) the materials or services relating to the lien were provided in the ordinary course of business;
(c) the lien has not arisen under an Act that provides that the lien does not have the priority; and
(d) the person who provided the materials or services did not, at the time the person provided those materials or services, know that the security agreement relating to the security interest contained a provision prohibiting the creation of a lien by the debtor, if any such provision exists.

(2) For the avoidance of doubt, a port management company that has a lien in relation to any dues, rates or charges payable in relation to any goods under section 19 of the Seaports Management Act 2004 has a security interest perfected by possession.

Rights of debtor in collateral may be transferred

47.—(1) In this section, “transfer” includes a sale, the creation of a security interest and a transfer under judgment enforcement proceedings.

(2) The rights of a debtor in collateral may be transferred consensually or by operation of law notwithstanding a provision in the security agreement that prohibits transfer or declares a transfer to be a default.

(3) Notwithstanding subsection (2), a transfer by the debtor does not prejudice the rights of the secured party under the security agreement or otherwise, including the right to treat a prohibited transfer as an act of default.

Division 4—Persons to Whom Negotiable Collateral is Transferred

Where holder of money takes free of perfected security interest in money

48. A person other than the debtor who holds money that is proceeds has priority over a perfected security interest in the money if the holder—

(a) acquired the money without knowledge that it is subject to a security interest; or
(b) is a holder for value, whether or not the holder knew of the security interest at the time the holder acquired the money.

Priority of creditor who receives funds subject to a security interest

49.—(1) In this section, “debtor-initiated payment” means a payment made by the debtor through the use of—

(a) an instrument;
(b) an electronic funds transfer; or
(c) a debit, a transfer order, an authorisation or a similar written payment mechanism executed by the debtor when the payment is made.

(2) A creditor who receives payment of a debt owing by a debtor through a debtor-initiated payment has priority, whether or not the creditor has knowledge of the security interest at the time of the payment, over a security interest in—

(a) the funds paid;
(b) the intangible that was the source of the payment; and
(c) any instrument used to effect the payment.

Priority of purchasers of instruments or securities

50.—(1) A purchaser of an instrument or a security evidenced by a certificate has priority over any security interest in the instrument or security perfected by registration or temporarily perfected if the purchaser—

(a) gave value for the instrument or security;
(b) acquired the instrument or security without knowledge that it is subject to a security interest; and
(c) took possession of the instrument or security.

(2) For the purposes of this section, a purchaser of an instrument or a security evidenced by a certificate who acquired it in the ordinary course of the transferor’s business has knowledge only if the purchaser acquired the interest with knowledge that the transaction violates the terms of the security agreement that creates or provides for the security interest.

(3) For the purposes of this section, a purchaser includes a person who acquires an instrument or a security evidenced by a certificate by compulsory acquisition or scheme of arrangement.

Priority of holders of negotiable documents of title

51.—(1) The interest of a holder of a negotiable document of title has priority over a security interest in the document of title that is perfected by registration or temporarily perfected if the holder—

(a) gave value for the document of title; and
(b) acquired the document of title without knowledge that it is subject to a security interest.

(2) For the purposes of this section, a holder of a negotiable document of title who acquired it under a transaction entered into in the ordinary course of the transferor’s business has knowledge only if the purchaser acquired the interest with knowledge that the transaction violates the terms of the security agreement that creates or provides for the security interest.

Priority of purchasers of chattel paper

52. The interest of a purchaser of chattel paper who takes possession of the chattel paper in the ordinary course of the purchaser’s business and for new value has priority over any security interest in the chattel paper that—

(a) was perfected by registration, if the purchaser took possession of the chattel paper without knowledge of the security interest; or
(b) has attached to proceeds of inventory, whether or not the purchaser took possession of the chattel paper without knowledge of the security interest.

Division 5—Assignments and Other Transfers of Accounts

Interpretation for this Division

53. In this Division, “assignee” includes a secured party.

Notice to account debtor

54.—(1) Notice to an account debtor is not required as a condition of assignment, transfer, enforcement, attachment or perfection of the security interest.

(2) Where collateral that is an intangible or chattel paper is assigned, the account debtor may make payments under the contract to the assignor—

(a) before the account debtor receives a notice that—
(b) after—

(3) Payment by an account debtor to an assignee under a notice under subsection (2) (a) discharges the obligation of the account debtor to the extent of the payment.

Account debtor’s right to assert defences and claims

55. Unless the account debtor on an intangible or chattel paper has made an enforceable agreement not to assert defences to claims arising out of a contract, the rights of an assignee of the intangible or chattel paper are subject to—

(a) the terms of the contract between the account debtor and the assignor and any defence or claim arising from the contract or a closely connected contract; and
(b) any other defence or claim of the account debtor against the assignor that accrues before the account debtor acquires knowledge of the assignment.

Modification or substituted contracts effective against assignee

56.—(1) Amodificationoforsubstitutionforassignedcontractrightsmadeingood faith and in accordance with reasonable commercial standards and without material adverse effect on the assignee’s rights under the contract is effective against the assignee.

(2) Subsection (1) applies—

(a) to the extent that an assigned right to payment arising out of the contract has not been earned by performance; and
(b) notwithstanding that there has been notice of the assignment to the account debtor.

(3) Where a contract has been substituted or modified in the manner described in subsection (1), the assignee obtains rights that correspond to the rights of the assignor under the substituted or modified contract.

(4) Nothing in subsections (1) to (3) affects the validity of a term in an assignment agreement that provides that a modification or substitution is a breach of contract by the assignor.

Enforceability of non-assignment clauses

57. A term in a contract between an assignor and an account debtor, or a debtor on chattel paper, that prohibits or restricts assignment of the whole of the account receivable or chattel paper for money due or to become due—

(a) is binding on the assignor, but only to the extent of making the assignor liable in damages for breach of contract; and
(b) is unenforceable against third parties, including the assignee.

Division 6—Priority in Deposit Accounts and Investment Property

Meaning of “control” of a deposit account

58. A secured party has control of a deposit account if—

(a) the secured party is the financial institution with which the deposit account is maintained, even if the debtor retains the right to direct the disposition of funds from the deposit account;
(b) the debtor, secured party, and financial institution have agreed in asigned writing that the financial institution will comply with instructions
(c) the secured party becomes the financial institution’s customer with respect originated by the secured party directing disposition of the funds in the deposit account without further consent by the debtor; or to the deposit account.

Priority of security interests in deposit accounts perfected by control

59.—(1) A security interest held by a secured party having control of a deposit account has priority over a conflicting security interest held by a secured party that does not have control.

(2) Except as otherwise provided in subsections (3) and (4), security interests perfected by control rank according to priority in time of obtaining control.

(3) Except as otherwise provided in subsection (4), a security interest held by the financial institution with which the deposit account is maintained has priority over a conflicting security interest held by another secured party.

(4) A security interest perfected by control under section 58(b) has priority over a security interest held by the financial institution with which the deposit account is maintained.

Priority of security interests in investment property

60.—(1) A security interest of a secured party having control of investment property has priority over a security interest of a secured party that does not have control of the investment property.

(2) A security interest in a security evidenced by a certificate that is perfected by taking delivery and not by control has priority over a conflicting security interest perfected by a method other than control.

(3) Except as otherwise provided in subsections (4) and (5), conflicting security interests of secured parties each of which has control rank in priority according to time of obtaining control.

(4) A security interest held by a securities intermediary in a securities account maintained with the securities intermediary has priority over a conflicting security interest held by another secured party.

(5) A security interest held by a futures intermediary in a futures contract or a futures account maintained with the futures intermediary has priority over a conflicting security interest held by another secured party.

(6) Conflicting security interests granted by a broker, securities intermediary, or futures intermediary that are perfected without control rank equally.

(7) In all other cases, priority among conflicting security interests in investment property is governed by the general priority rules under this Act.

Division 7—Priority in Special Classes of Tangible Collateral

Priority of security interests in fixtures

61.—(1) Subject to subsection (2), a security interest under this Act may be created in goods that are fixtures or may continue in goods that become fixtures.

(2) A security interest does not exist under this Act in ordinary building materials incorporated into an improvement on real property.

(3) Aperfectedsecurityinterestinfixtureshaspriorityoveraclaimtothegoodsmadeby a person with an interest in the real property if, before the goods become fixtures, the security interest is perfected by any method permitted by this Act and the fixtures are readily removable—

(a) factory or office machines;
(b) equipment that is not primarily used or leased for use in the operation of the real property; or
(c) replacements of domestic appliances that are consumer goods.

(4) Except as provided in this section with respect to a construction mortgage, a purchase money security interest in goods that attaches before or at the time when the goods become fixtures has priority with respect to the goods over a claim to the goods made by a person with an interest in the real property.

(5) A security interest in goods that attaches after the goods become fixtures is subordinate to the interest of a person who—

(a) has an interest in the real property at the time when the goods become fixtures and who—
(b) acquires an interest in the real property after the goods become fixtures, if the interest is acquired without fraud and before a notice of the security interest in the goods is registered.

(6) A mortgage is a construction mortgage—

(a) to the extent that it secures an obligation incurred for the construction of an improvement on real property, including the acquisition cost of the real property, if a registered mortgage so indicates; and
(b) to the extent that the mortgage is given to refinance a mortgage described in paragraph (a).

(7) Notwithstanding subsection (3), a security interest in fixtures is subordinate to aconstructionmortgageifthemortgageisregisteredbeforethegoodsbecomefixturesandthe goods become fixtures before the completion of the construction.

(8) Nothing in this Act—

(a) prevents the creation of a mortgage in fixtures under real property law; or
(b) requires a notice of a mortgage in fixtures created under real property law to be registered under this Act to perfect or enforce the right of the mortgagee.

Secured party’s right to remove fixtures

62.—(1) A secured party who, under this Act, has the right to remove fixtures from real property must exercise this right of removal in a manner that causes no greater damage or injury to the real property and to other property situated on it or that puts the occupier of the real property to greater inconvenience than is necessarily incidental to the removal of the goods.

(2) A person, other than the debtor, who has an interest in the real property at the time when the fixtures subject to the security interest are affixed to the real property is entitled to reimbursement for any damages to the interest of the person in the real property caused during the removal of the fixtures, but is not entitled to reimbursement for reduction in the value of the real property caused by the absence of the fixtures removed or by the necessity or replacement.

(3) The person entitled to reimbursement under subsection (2) may refuse permission to remove the goods until the secured party has given adequate security for reimbursement.

(4) The secured party who, under this Act, has the right to remove fixtures from the real property must give a notice of the secured party’s intention to remove the fixtures to each person—

(a) who is known by the secured party to have an interest in the real property; or
(b) who has registered a notice using the name of the debtor and mentioning the fixtures in that notice.

(5) The notice under subsection (4) is to contain—

(a) the name and address of the secured party;
(b) a description of the fixtures to be removed;
(c) the amount required to satisfy the obligations secured by the security interest;
(d) the estimated market value of the fixtures;
(e) a description of real property upon which the fixtures are located; and
(f) a statement of intention to remove the fixtures on or before a specified day that is not less than 10 days after the notice is given.

(6) A notice under subsection (4) is to be given at least 10 days before removal of the fixture and must be given by a method of delivery listed in section 103.

Application to court: fixtures

63. The secured party may apply to a court for one or more of the following—

(a) an order determining the person entitled to reimbursement under section 62;
(b) an order determining the amount and kind of adequate security to be provided by the secured party;
(c) an order prescribing the depository for the security;
(d) an order enforcing the right to gain access to the land to deal with the fixture;
(e) an order authorising the removal of the goods without the provision of adequate security for reimbursement; and
(f) resolution of any other matters concerning the right of removal of fixtures.

Retention of fixtures by a person with an interest in related land

64. A person, other than the debtor, who has an interest in the real property that is subordinate to a security interest as provided in this Act may, before the fixtures have been removed from the real property by the secured party, retain the fixtures on payment to the secured party of the lesser of––

(a) the amount secured by the security interest that has priority over that interest; or
(b) the market value of the fixtures if the fixtures were removed from the real property.

Priority of security interests in crops

65.—(1) A security interest in crops is a security interest in the crops to be grown, while growing and afterwards when cut or separated from the soil.

(2) For the purpose of determining whether a security interest in crops cut or separated from the soil exists, it does not matter whether the crops are stored on the real property where the crops were grown or on any other land or premises.

(3) A perfected security interest in crops is not extinguished or prejudicially affected by a subsequent sale, lease, mortgage, or other encumbrance of or upon the land on which the crops are growing.

(4) A perfected security interest in crops growing on real property has priority over a conflicting interest of an owner, mortgagee or other person with an interest in the real property if the debtor has a registered interest in or is in possession of the real property.

Priority of security interests in accessions

66.—(1) In this section—

(a) “other goods” means goods to which an accession is installed or affixed;
(b) “the whole” means an accession and the goods to which the accession is installed or affixed.

(2) A security interest in goods that become an accession continues in the accession.

(3) If a security interest is perfected when the goods become an accession the security interest remains perfected in the accession and has priority over a person with an interest in the other goods or the whole.

(4) The interest of any of the following persons has priority over a security interest in goods that is attached at the time when the goods become an accession––

(a) a person who acquires for value an interest in the whole after the goods become an accession, but before the security interest in the accession is perfected;
(b) a person with a perfected security interest in the whole who makes an advance under the security agreement relating to the security interest after the goods become an accession, but before the security interest in the accession is perfected, and only to the extent of the advance;
(c) a person with a perfected security interest in the whole who acquires the right to retain the whole in satisfaction of the obligation secured after the goods become an accession, but before the security interest in the accession is perfected.

(5) A security interest in goods that attaches after the goods become an accession is subordinate to the interest of a person who acquires an interest in the other goods or the whole after the goods become an accession but before the security interest in the accession is perfected.

(6) A secured party who, pursuant to this Act, has the right to remove an accession must exercise this right of removal in a manner that––

(a) causes no greater damage or injury to the whole or to the other goods; or
(b) puts the person in possession of the whole to greater inconvenience, than is necessarily incidental to the removal of the accession.

(7) A person, other than the debtor, who has an interest in the whole at the time when the goods subject to the security interest become an accession, is entitled to reimbursement for any damages to the interest of the person in the whole that is caused during the removal of the accession, but is not entitled to reimbursement for reduction in the value of the whole that is caused by the absence of the accession or by the necessity of replacement.

(8) The person entitled to reimbursement pursuant to subsection (7) may refuse permission to remove the accession until the secured party has given adequate security for the reimbursement.

(9) The secured party may apply to a court for one or more of the following—

(a) an order determining the person who is entitled to reimbursement pursuant to this section;
(b) an order determining the amount and kind of adequate security to be provided by the secured party;
(c) an order authorising the removal of the goods without the provision of adequate security for reimbursement.

(10) A person who has an interest in the whole that is subordinate to a security interest in an accession as provided in this section may, before the accession has been removed from the whole by the secured party, retain the accession on payment to the secured party of the lesser of—

(a) the amount secured by the security interest entitled to priority; or
(b) the market value of the accession if the accession were removed from the other goods.

(11) The secured party who has a right to remove the accession from the whole must give a notice of the secured party’s intention to remove the accession to each person—

(a) who is known by the secured party to have an interest in the whole; or
(b) who has registered a notice using the name of the debtor and mentioning the other goods and including the serial number of the other goods if they are serial numbered vehicles.

(12) The notice under subsection (11) is to contain—

(a) the name and address of the secured party;
(b) a description of the goods to be removed;
(c) the amount required to satisfy the obligations secured by the security interest;
(d) the estimated market value of the accession;
(e) a description of the other goods or the whole; and
(f) a statement of intention to remove the accession unless an amount referred to in subsection (10) is paid on or before a specified day that is not less than 5 days after the notice is given.

(13) A notice under subsection (11) is to be given at least 10 days before removal of the accession and must be given by one of the methods listed in section 103.

Priority of security interests in commingled goods

67.—(1) A security interest may not be created in commingled goods, however, a security interest may attach to a product or mass that results when goods become commingled goods.

(2) A security interest in goods that subsequently become part of a product or mass continues in the product or mass if the goods are some manufactured, processed, assembled, or commingled that their identity is lost in the product or mass.

(3) Perfection of a security interest in goods that subsequently become part of a productor mass is to be treated as perfection of the security interest in the product or mass without the need for registering a notice, and the priority of the security interest in the product or mass is measured from the time of perfection of the security interest in the collateral that became commingled.

(4) If more than one security interest attaches to the product or mass—

(a) a perfected security interest continuing in the product of mass has priority over an unperfected security interest continuing in the same product or mass;
(b) if more than one perfected security interest continues in the same product or mass, each perfected security interest is entitled to share in the product or mass according to the ratio that the obligation secured by the perfected security interest bears to the sum of the obligations secured by all perfected security interests in the same product or mass; and
(c) if more than one unperfected security interest continues in the same product or mass, each unperfected security interest is entitled to share in the product or mass according to the ratio that the obligation secured by the unperfected security interest bears to the sum of the obligations secured by all unperfected security interests in the same product or mass; and
(d) a perfected purchase money security interest in goods that continues in the product or mass has priority over—

Priority of security interests in certain vessels and aircraft

68. A security interest under this Act, whether or not it is perfected, is subordinate to a mortgage, charge, lien, or other interest registered—

(a) with respect to a vessel under the Maritime Transport Act 2013; or
(b) with respect to aircraft under any written law of Fiji that requires the registration of charges over aircraft in order to be effective, without regard to the time of attachment or perfection of the security interest under this Act, or the time of registration of a notice of the security interest under this Act.

PART 7—REGISTRATION

Personal Property Securities Registry

69.—(1) A Personal Property Securities Registry is established to receive, index, store and retrieve notices by electronic means delivered by secured parties and execution creditors, and to collect authorised fees.

(2) No person has a claim against the Registry for errors in Registry records committed by a person who registers a notice, or for failure to provide registry services for reasons beyond the control of the Registry.

(3) The duties of the Registrar are administrative—

(a) by registering a notice or refusing to register a notice, the Registrar does not determine the sufficiency, correctness, authenticity, or validity of the notice or any information contained in the notice; and
(b) the registering of a notice does not create a security interest in collateral and does not provide evidence that a security interest in collateral exists.

(4) Information contained in a filed notice is a public record and any person may inspect notices in the Registry.

(5) The Registry is to be operated at all times unless the Registrar suspends the operation of the Registry, in whole or in part, for routine maintenance or if the Registrar considers that it is not practical to provide any service relating to the Registry.

Initial notice

70.—(1) An initial notice is sufficient if it—

(a) identifies the debtor and provides a physical address; and
(b) identifies the secured party or an agent of the secured party and provides a physical address; and
(c) describes the collateral covered by the notice.

(2) For the purpose of subsection (1)(c), a notice that covers fixtures, timber to be cut or as-extracted collateral must include a reasonable description of the location of the real property where the fixtures, timber to be cut or as-extracted collateral is located.

(3) For purposes of this section the term “a reasonable description of the location of the real property” means a physical address where available, and if no physical address is available then another description that would allow a searcher to determine the approximate location of the land, but the term does not require a legal description sufficient to record a mortgage.

(4) A debtor must authorize the filing of an initial notice by signing a security agreement or a separate agreement.

(5) A signature may be any tangible indication of the debtor’s intent to enter the security agreement.

(6) Authorisation by the debtor need not be contained in the notice, need not be disclosed to the Registrar, and may be given after registration.

(7) By signing a security agreement, a debtor authorises the registering of an initial notice covering the collateral described in the security agreement, and proceeds of the collateral, whether or not the security agreement expressly covers proceeds.

Notice of the interest of an execution creditor

71.—(1) A notice of the interest of an execution creditor must include—

(a) identification of the execution creditor;
(b) identification of the person owing payment or performance to the execution creditor; and
(c) a description of property against which the execution creditor claims or may claim a right in the same manner as provided in this Act for registering a notice of a security interest.

(2) A notice may be registered by the execution creditor or, upon request of the execution creditor, by the court on behalf of at the execution creditor—

(a) with respect to the holder of a money judgment, at the time the money judgment is entered or at any time thereafter; or
(b) in the case of a bankruptcy trustee or a liquidator, at the time of the filing of a petition under the laws of bankruptcy or insolvency or at any time thereafter.

(3) With respect to a charge in favour of a taxing authority for the State for outstanding taxes, a notice may be registered by the taxing authority for the State after the time a demand has been made upon the taxpayer and the full amount due has not been paid in accordance with the demand.

(4) For the purposes of filing amendments, continuations and terminations, an execution creditor has the same rights and responsibilities as a secured party.

Notice registered prior to security agreement or attachment

72. A notice may be registered before a security agreement is concluded and before a security interest attaches to collateral.

Notice may apply to multiple agreements

73. A notice may relate to one or more security agreements.

Name of the debtor

74.—(1) A notice sufficiently identifies the debtor when—

(a) in the case of an individual who is a citizen of Fiji, the notice contains the debtor’s taxpayer identification number;
(b) in the case of an individual who is not a citizen of Fiji, the notice contains the name of the person as indicated on the individual’s passport;
(c) in the case of an entity established by the Constitution of the Republic of Fiji or other written law of Fiji, the notice contains the name of the debtor as provided by law that established the entity;
(d) in the case of an entity organised or authorised to do business under the Companies Act 2015 or other Act in which documents of organisation are subject to registration in the companies registry, the company number and name of the entity as it appears on the certificate issued by the companies registry;
(e) in the case of a distinct legal entity which is not registered under the Companies Act 2015 or other Act in which documents of organisation are subject to registration, the name of the entity as it appears on the document creating the entity; or
(f) in the case of a foreign registered entity not authorised to do business under the laws of Fiji, the notice provides the name of the debtor as shown on the appropriate registry in the country where the foreign entity is organised.

(2) A notice that sufficiently identifies the debtor is not rendered insufficient or ineffective by the presence or absence of a trade name or other alias name of the debtor.

(3) A notice that provides only the debtor’s trade name or other alias but does not comply with subsection (1) does not sufficiently identify the debtor.

(4) A notice may identify more than one debtor and the name of more than one secured party.

(5) The failure to indicate on a notice that a person is a representative of the secured party does not affect the sufficiency of a notice.

Notice is effective unless seriously misleading

75.—(1) The validity or the registration of a notice is not affected by any defect, irregularity, omission or error in the notice unless the defect, irregularity, omission or error is seriously misleading.

(2) A notice that insufficiently identifies the debtor is seriously misleading.

(3) Failure to include a description of any item or kind of collateral in a notice does not affect the validity of the registration in respect of the description of other collateral included in the notice.

(4) In order to establish that a defect, irregularity, omission, or error is seriously misleading, it is not necessary to prove that any person was actually misled by it.

Effect of change of circumstances

76.—(1) A registered notice remains effective with respect to collateral that is sold, exchanged, leased, licensed, or otherwise disposed of and in which a security interest continues, even if the secured party knows of or consents to the disposition.

(2) If a debtor changes its name so that the notice becomes seriously misleading,

(a) the notice remains effective, without amendment, to perfect a security interest in collateral acquired by the debtor for 120 days after the change of name; and
(b) the notice is not effective to perfect a security interest in collateral acquired by the debtor more than 120 days after the change of name unless an amendment to the notice which renders the notice not seriously misleading is filed within 120 days after the name change.

(3) Except as provided in this section for a change of debtor name, a notice remains effective if, after the notice is registered, a change of circumstances renders the notice seriously misleading.

Duration of notice and effect of lapse

77.—(1) A registered notice is effective for a period measured in years that is designated by the person who registers the notice, and lapses at the end of the designated period unless, before the lapse, a continuation is registered.

(2) Upon lapse, a notice becomes ineffective and a security interest that was perfected by the notice becomes unperfected, unless the security interest is perfected by another means permitted under this Act.

(3) If the security interest becomes unperfected upon lapse, it is deemed never to have been perfected against a purchaser of the collateral for value.

Amendment of notice

78.—(1) An initial notice may be amended by one or more amendments.

(2) An amendment must—

(a) identify the initial notice by its registration number;
(b) identify each secured party on the notice who authorises the amendment;
(c) indicate that it is an amendment to the notice; and
(d) provide all of the information required of an initial notice, completely restating the notice in a manner that reflects the amended state of the notice.

(3) If an amendment adds collateral covered by a notice, or adds a debtor to a notice, it is effective if the debtor authorises the registration in a signed writing.

(4) For the purposes of subsection (3)—

(a) by signing a security agreement that adds collateral, a debtor authorises the registration of an amendment covering the collateral described in the security agreement, and proceeds of the collateral, whether or not the security agreement expressly covers proceeds; and
(b) by signing a security agreement, a new debtor authorises the registering of an amendment that adds the name and address of the new debtor to the notice.

(5) An authorisation by the debtor under subsection (4)—

(a) need not be contained in the amendment; and
(b) need not be disclosed to the Registrar; and
(c) may be given after registration of the amendment.

(6) An amendment that adds a debtor or adds collateral is effective as to the added debtor or added collateral only from the date of the registration of the amendment.

(7) An amendment is ineffective if it purports to delete all secured parties and fails to provide the name of a new secured party, or purports to delete the names of all debtors and fails to provide the name of a new debtor not previously named on the notice.

(8) If there is more than one secured party on the notice—

(a) any secured party or all secured parties may authorise the registration of an amendment; and
(b) an amended notice is only effective as to each secured party who authorises it.

(9) The registration of an amendment does not extend the period of effectiveness of a notice.

Continuation of notice

79.—(1) The period of effectiveness of a notice may be continued by registering a continuation that—

(a) identifies the initial notice by its registration number; and
(b) identifies a secured party on the notice who authorises the continuation.

(2) A continuation may be registered only within 6 months before the date upon which the notice would otherwise lapse.

(3) Upon timely registration of a continuation, the effectiveness of the notice continues for a period of 5 years commencing on the day on which the notice would have become ineffective in the absence of the continuation.

(4) The effectiveness of a notice is continued only with respect to the secured party who authorised the registration of the continuation.

(5) Upon the expiration of the new 5 year period—

(a) the notice lapses with respect to the secured party unless, before the lapse, another continuation authorised by that secured party is registered; and
(b) succeeding continuations may be registered in the same manner to continue the effectiveness of the notice.

Termination of notice

80.—(1) The effectiveness of a notice may be terminated by registering a termination that—

(a) identifies the initial notice by its registration number;
(b) identifies a secured party on the notice who authorises the termination; and
(c) indicates that the notice is no longer effective with respect to the interest of the secured party who authorised the registration of the termination.

(2) Within 14 days after the secured party receives a written demand by the debtor, the secured party on a notice must register a termination if—

(a) there is no outstanding secured obligation and no commitment to make an advance, incur an obligation, or otherwise give value;
(b) the debtor did not authorise the registration of the initial notice; or
(c) the notice covers accounts receivable or chattel paper that have been sold but as to which the account debtor or other person obligated has discharged its obligation.

(3) A termination terminates the effectiveness of a notice with respect to a secured partyon the notice only if the termination is authorised in a signed writing by that secured party.

(4) Upon the registration of an effective termination, the notice to which the termination relates becomes ineffective with respect to the authorising secured party.

Effectiveness of notice

81. An initial notice, amendment, continuation or termination is effective at the time it is available to the public by means of a search of the records of the Registry as provided in this Act.

Registrar’s refusal to register a notice

82.—(1) The Registrar may refuse to register a notice only because—

(a) in the case of an initial notice, the notice does not identify a debtor;
(b) in the case of an amendment, the amendment does not identify the name of a debtor, does not provide the registration number of the initial notice, or the amendment identifies an initial notice whose effectiveness has lapsed;
(c) in the case of a continuation, the continuation does not provide the registration number of the initial notice, or was not submitted within the permitted 6-month time period;
(d) in the case of a termination, the termination does not provide the registration number of the initial notice, or the termination relates to an initial notice that has lapsed with respect to each secured party on the notice; or
(e) less than the full registration fee is tendered, or no other arrangement has been made for the payment of the fee.

(2) If the Registrar refuses to accept a notice for registration, it must promptly communicate the fact of and reason for its refusal to the person that presented the notice.

Effect of secured party’s notice on other secured parties on the notice

83. An amendment, continuation or termination authorised by one secured party on the notice does not affect the rights of another secured party on the notice.

Duties of the Registrar

84.—(1) For each notice registered, the Registrar must—

(a) assign a unique registration number in the case of an initial notice;
(b) assign a unique number to notices other than the initial notice;
(c) create a writing that bears the registration number and the date and time of registration; and
(d) maintain registered notices for public inspection.

(2) The Registrar must maintain the capability to retrieve Registry records—

(a) by the identity of the debtor;
(b) by the registration number of the initial notice, in a manner that associates the initial notice with all related amendments, continuations and terminations; and
(c) by the serial number of a serial numbered vehicle, if a serial number was provided on the notice in a field prescribed by the Registrar.

(3) A notice that the Registrar fails to maintain as required in subsection (2) remains effective except against a purchaser of the collateral that gives value in reasonable reliance upon the information available from the Registry.

(4) The Registrar must maintain records of lapsed or terminated notices for a period of 10 years beyond the date of lapse or termination.

Public access to Registry records

85.—(1) Information contained in notices are public information and are the property of the State.

(2) The Registrar must communicate the following information to any person that requests it—

(a) whether there is registered a notice that designates a particular debtor or serial number and has not lapsed with respect to all secured parties;
(b) the registration number, and the date and time of registration of each notice;
(c) the name and address of each debtor and secured party on each notice; and
(d) all of the information contained in each notice.

(3) The Registrar may communicate information in any medium.

(4) Notwithstanding subsection (3), if requested, the Registrar must issue a certified search report or other report as may be required and bearing a written certificate.

(5) A copy of or extract from any document lodged with the Registry, and certified by the Registrar, is, in any proceeding, admissible in evidence as of equal validity with the original document or lodgement.

(6) The Registrar may communicate information in bulk about some or all registered notices to interested persons from time to time, on terms agreeable to the Registrar and, notwithstanding section 113(d), including a reasonable fee for provision of the service.

Notice does not constitute constructive notice

86. Registration of a notice in the Registry is not constructive notice or knowledge of its existence or contents to any person.

PART 8—ENFORCEMENT OF SECURITY INTERESTS

Application of this Part

87.—(1) This Part does not apply to—

(a) a commercial consignment that does not secure payment or performance of an obligation;
(b) the interest of an execution creditor; or
(c) a transaction in which a person pledges property to a pawnbroker.

(2) The rights and remedies set out in this Part are cumulative.

(3) A security interest does not merge merely because a secured party has obtained a judgment against the debtor.

Secured party rights upon default

88.—(1) If the debtor defaults on its obligation to pay or otherwise perform, or upon the occurrence of another event of default, the security interest becomes enforceable.

(2) Upon default, the secured party must have—

(a) the rights and remedies set forth in the security agreement;
(b) the right to possession or control of the collateral, even if the security agreement is silent about possession or control;
(c) the right to dispose of the collateral;
(d) other rights or remedies provided in this Act; and
(e) notwithstanding anything to the contrary in this Act, the rights or remedies provided in any other written law.

Recovery without judicial process in certain cases

89.—(1) Upon default, a secured party with a security interest in chattel paper, an account receivable, secured sales contract or intangible may instruct the account debtor or any other person obligated to pay to make payment to the secured party, and must apply such payment to satisfaction of the obligation secured by the security interest.

(2) Upon default, a secured party with a security interest in a document of title that is perfected by possession may proceed as to the goods covered by the document of title.

(3) If so agreed by the debtor, and in any event after default––

(a) a financial institution with a perfected security interest in a deposit accountmaintainedbythefinancialinstitutionmayapplythebalanceofthe deposit account to the obligation secured by the deposit account; and
(b) in other cases, a secured party that has a security interest in a deposit account perfected by control may instruct the bank to pay the balance of the deposit account to the secured party’s account.

(4) Where the collateral is a licence, the secured party may seize the collateral by giving notice to the debtor, or to the grantor of the licence or any successor to the interest in the licence.

(5) A secured party may deduct reasonable expenses of collection under this section from—

(a) amounts collected from a debtor or from a person obligated to pay or perform; or
(b) money held as collateral.

(6) The secured party may act under this section without judicial process, notwithstanding any other provision of this Act.

Secured party’s right to take possession and dispose of collateral

90. Subject to sections 62 and 66 and any rule of law requiring prior notice, on default under a security agreement—

(a) the secured party has, unless otherwise agreed, the right to take possession of the collateral or otherwise enforce the security agreement by any method permitted by law; and
(b) where the collateral is goods of a kind that cannot be readily moved from the debtor’s premises or of a kind for which adequate storage facilities are not readily available, the secured party may seize or repossess the collateral without removing it from the debtor’s premises in any method permitted by law, including by which an execution officer acting under a writ of execution may seize without removal, if the secured party’s interest is perfected by registration; and
(c) where paragraph (b) applies, the secured party may dispose of collateral on the debtor’s premises, but must not cause the person in possession of the premises any greater inconvenience and cost than is necessarily incidental to the disposal; and
(d) if the collateral is a document of title, the secured party may—

Manner of disposition of collateral

91.—(1) The disposition of collateral may be––

(a) by private sale;
(b) by public sale, including public auction or closed tender;
(c) as a whole or in commercial units or parts;
(d) by lease, credit sale, licence; or
(e) other commercially reasonable manner of disposition.

(2) After seizing or repossessing the collateral, a secured party may dispose of it in its existing condition or after repair, processing or preparation for disposition, and the proceeds of the disposition must be applied consecutively to––

(a) the reasonable expenses of seizing, repossessing, holding, repairing, processing or preparing for disposition and disposing of the collateral and any other reasonable expenses incurred by the secured party; and
(b) the satisfaction of the obligations secured by the security interest of the party making the disposition, any surplus must be dealt with in accordance with section 97.

(3) The secured party may delay disposition of the collateral in whole or in part.

Duty to act in a commercially reasonable manner

92.—(1) In disposing of collateral, the secured party must act in a commercially reasonable manner.

(2) A disposition is not commercially unreasonable merely because a better price could have been obtained by disposition at a different time or by a different method from the time and method adopted by the secured party.

(3) A disposition is commercially reasonable if the secured party disposes of the collateral in conformity with commercial practices among dealers in that type of property.

(4) If a method of disposition of collateral has been approved in any legal proceeding, it is conclusively deemed to be commercially reasonable, but no such approval is required by this Act.

Obligation to give notice of disposition of collateral

93.—(1) Not less than 7 days prior to disposition of the collateral, a secured party must deliver a notice to––

(a) the debtor;
(b) any other person who is known by the secured party to be an owner of the collateral;
(c) any person who has registered a notice in respect of the collateral that is effective at the time the secured party took possession of the collateral; and
(d) any other person with an interest in the collateral who has given a written notice to the secured party of that person’s interest in the collateral prior to the day on which the notice of disposition is given to the debtor.

(2) The debtor may waive the right to be notified.

(3) A notice under subsection (1), delivered by a secured party, must contain—

(a) a description of the collateral;
(b) the amount required to satisfy the obligations secured by the security interest;
(c) the amount of applicable expenses or, where the amount of the expenses has not been determined, a reasonable estimate;
(d) the day, time and place of any sale by public auction, the place to which closed tenders may be delivered and the day after which closed tenders will not be accepted, or the day after which any private disposition of the collateral is to be made; and
(e) the name of the debtor and the secured party.

(4) A notice under this section is not required where—

(a) the collateral is perishable;
(b) the secured party believes on reasonable grounds that the collateral will decline substantially in value if it is not disposed of as soon as practicable;
(c) the cost of care and storage of the collateral is disproportionately large in relation to its value;
(d) the collateral is of a type that is to be disposed of by sale on an organised market that handles large volumes of transactions between many different sellers and many different buyers;
(e) the collateral is money authorised or adopted by a foreign government as part of its currency;
(f) after default, each person entitled to receive a notice of disposition consents in writing to the disposition of the collateral without compliance with the notice requirements of this section; or
(g) for any other reason, a court on ex parte application is satisfied that a notice is not required.

Secured party may purchase collateral at public sale

94. The secured party may purchase the collateral or any part of it only at any public or private sale for a price that bears a reasonable relationship to the market value of the collateral.

Rights of purchasers of collateral

95.—(1) Where a secured party disposes of the collateral to a purchaser for value and in good faith and who takes possession of it—

(a) the purchaser acquires the collateral free from—
(b) all obligations secured by the subordinate interests are deemed to be performed for the purposes of a demand to terminate a notice.

(2) This section applies regardless of the manner in which the secured party gained possession or control of the collateral.

Secured party’s disposition of a licence

96. Notwithstanding any other provision of this Part, where the collateral is a licence, the collateral may be disposed of only in accordance with the terms and conditions that applied at the time that the secured party took control of the licence.

Application of proceeds and surplus or deficiency

97.—(1) The proceeds of disposition must be applied in the following order—

(a) the reasonable expenses of retaking, holding, preparing for disposition, and disposing of the collateral, including reasonable attorneys’ fees and legal expenses incurred by the secured party;
(b) the satisfaction of obligations secured by any senior security interest or lien;
(c) the satisfaction of the obligation secured by the security interest of the enforcing secured party;
(d) the satisfaction of obligations secured by any subordinate security interest or lien, or by a subordinate execution creditor, in the collateral if a written demand and proof of the interest are received before distribution of the proceeds is completed.

(2) The secured party must give a written accounting of—

(a) the amount received from the disposition of collateral or the amount collected under section 89;
(b) the manner in which the collateral was disposed of;
(c) the amount applied to expenses;
(d) the distribution of the amount received from the disposition or collection; and
(e) the amount of any surplus,

to a person under subsection (1) within 30 days after receipt of a written request for an accounting.

(3) Where there is a question as to who is entitled to receive payment under this section, the secured party may pay the surplus into court, and the surplus must not be paid out except on an application under section 108 by a person claiming an entitlement to it.

(4) Except as otherwise agreed or as otherwise provided in this Act or any other Act, the debtor is liable to pay the amount of the deficiency to the secured party.

Secured party’s right to retain collateral

98.—(1) After default, the secured party may propose to the debtor to take all or part of the collateral in satisfaction of all or a part of the debtor’s obligation, and must give notice of the proposal to—

(a) the debtor;
(b) any other secured party or lien holder who, 5 days before the notice is given to the debtor, has perfected its security interest or lien by filing;
(c) any other person with an interest in the collateral who has given a written notice to the secured party before the notice is given to the debtor.

(2) If the secured party receives objection in writing from a person entitled to receive notice under subsection (1) within 15 days after the notice was given, the secured party must dispose of the collateral as otherwise provided in this Division unless otherwise directed by the court.

(3) If no objection is received within the 15 day period, the secured party must be deemed to have irrevocably elected to retain the collateral in satisfaction of the debtor’s obligation in accordance with the proposal.

(4) The secured party may request that any person mentioned in subsection (1), other than the debtor, furnish proof of that person’s interest and, unless the person furnishes proof not later than 10 days after the secured party’s request, the secured party may proceed as if no objection were received from the person.

(5) The secured party may request that any person mentioned in subsection (1), other than the debtor, furnish proof of that person’s interest and, unless the person furnishes proof not later than 14 days after the secured party’s request, the secured party may proceed as if no objection were received from the person.

(6) On application by a secured party, the court may determine that an objection to the proposal of a secured party is ineffective on the ground that—

(a) the person made the objection for a purpose other than the protection of an interest in the collateral or proceeds of a disposition of the collateral; or
(b) the market value of the collateral is less than the total amount owing to the secured party and the costs of disposition.

Debtor’s right to redeem collateral

99. At any time after the secured party has taken possession of the collateral but before the secured party sells or agrees to sell the collateral or is deemed to have taken the collateral in satisfaction of the obligation secured by it, the debtor and any person who is entitled to receive a notice of disposition under section 93(1) may, unless otherwise agreed in writing after default, redeem the collateral by—

(a) tendering fulfilment of the obligations secured by the collateral; and
(b) a sum equal to the reasonable expenses of seizing, repossessing, holding, repairing, processing and preparing the collateral for disposition, if those expenses have actually been incurred by the secured party, and any other reasonable expenses incurred by the secured party in enforcing the security agreement.

Debtor’s right to reinstate security agreement

100.—(1) At any time after the secured party has taken possession of the collateral but before the secured party sells or agrees to sell the collateral or is deemed to have taken the collateral in satisfaction of the obligation secured by it, the debtor may, unless the debtor has otherwise agreed in writing after default, reinstate the security agreement by—

(a) paying the sums actually in arrears, exclusive of the operation of an acceleration clause in the security agreement; and
(b) remedying any other default by reason of which the secured party intends to sell the collateral; and
(c) paying a sum equal to the reasonable expenses of seizing, repossessing, holding, repairing, processing, and preparing the collateral for sale, if those expenses have actually been incurred by the secured party, and any other reasonable expenses incurred by the secured party in enforcing the security agreement.

(2) Subsection (1) does not apply to any security agreement made or entered into before the commencement of this Act.

(3) Unless otherwise agreed, the debtor is not entitled to reinstate a security agreement—

(a) more than once, if the security agreement provides for payment in full by the debtor not later than 12 months after the day on which value was given by the secured party; or
(b) more than once in each year, if the security agreement provides for payment by the debtor during a period greater than one year after the day on which value was given by the secured party.

(4) Where the right to reinstate the agreement is exercised under this section—

(a) upon the receipt of the required amount, or confirmation of the performance of the accrued obligations and the default being remedied, the secured party must forthwith return the collateral to the debtor; and
(b) the debtor is deemed to receive and hold the returned collateral pursuant to the terms of the security agreement as if the default had not occurred and the secured party had not taken possession of the collateral.

(5) Where the collateral is returned to the debtor and a particular default has not been remedied, the secured party does not have any right, arising out of that default, to retake possession of the collateral unless—

(a) by notice in writing served on the debtor at the time of the return of the collateral, the secured party specifies the default and requires it to be remedied; and
(b) the debtor fails to remedy the default within a period to be specified in the notice (being a period of not less than 14 days after the service of the notice on the debtor).

Enforcement of a security interest in a mortgage

101.—(1) Subject to any other Act or rule of law to the contrary, where the same obligation is secured by an interest in a mortgage in real property and a security interest in personal property, the secured party may—

(a) without limiting the secured party’s rights, remedies and duties with respect to the land, proceed under this Part as to the personal property; or
(b) proceed as to both the interest in the mortgage and the personal property.

(2) Subsection (1)(b) does not limit the rights of a secured party who has a security interest in personal property that is taken before or after the security interest mentioned in subsection (1).

(3) For the purpose of distributing the amount received from the sale of the real property and personal property under this section, where the purchase price is not allocated to the real property and the personal property separately, the amount of the total price that is attributable to the sale of the personal property is the market value of the personal property at the time of sale.

Remedies for secured party non-compliance

102.—(1) If the secured party does not comply with the requirements of this Part, the court may order or restrain disposition of collateral.

(2) If disposition has occurred, the debtor or any person entitled to be informed or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by a failure to comply with this Part.

Manner of notification to debtors, secured parties and other persons

103.—(1) Where a provision of this Act requires or permits the communication of a demand or notification to a person, the notification is effective—

(a) in the case of a natural person who is a debtor, when the notification is—
(b) in the case of a secured party named on a registered notice, when the notification is—
(c) in the case of a person who has requested the notification, when the notification is—
(d) in the case of any other person, when the notification is—

(2) Notwithstanding subsection (1), notification to a person that is accompany organized or registered under the Companies Act 2015 may be made in any manner authorised by that Act.

(3) Notwithstanding subsection (1), a notice or document served or given by electronic mail or other similar means of communication is acceptable where the recipient of the notice has agreed that electronic mail is an authorised means of communication.

PART 9—CONFLICT OF LAWS

When the laws of Fiji apply

104.—(1) Except as otherwise provided in this Act, the validity, perfection, and the effect of perfection or non-perfection of a security interest in goods or a possessory security interest in chattel paper, investment property, money, a document of title, or a negotiable instrument, is governed by the laws of Fiji if—

(a) at the time the security interest attaches to the collateral, the collateral is situated in Fiji;
(b) at the time the security interest attaches to the collateral, the collateral is situated outside Fiji but the secured party has knowledge that it is intended to move the collateral to Fiji;
(c) the security agreement provides that the laws of Fiji is the law governing the transaction; or
(d) in any other case, the laws of Fiji apply.

(2) For the purposes of subsection (1), investment property that is not in the form of a security evidence by a certificate is situated where the records of the clearing house or securities depository are kept.

Continuity of perfection where goods are moved to Fiji

105.—(1) A security interest in goods that is perfected under the law of the jurisdiction in which the goods are situated when the security interest attached and before the goods are brought into Fiji continues to be perfected in Fiji if it is perfected in Fiji by the earliest of the following––

(a) not later than 60 days after the day on which the goods are brought into Fiji;
(b) not later than 14 days after the day on which the secured party has knowledge that the goods have been brought into Fiji; or
(c) before perfection ceases under the law of the jurisdiction in which the goods were situated when the security interest attached.

(2) A security interest that is not perfected as provided in subsection (1) may be otherwise perfected in Fiji under this Act.

Location of debtor

106.—For the purposes of section 107—

(a) a debtor that is a corporate body is located in the country of incorporation; and
(b) a debtor that is not a corporate body is located at––

Validity and perfection of security interests in intangibles and certain goods

107. The validity, perfection, and effect of perfection or non-perfection of a security interest is governed by the law, including the conflict of laws rules, of the jurisdiction where the debtor is located when the security interest attaches, if the security interest is—

(a) a security interest in an intangible;
(b) a security interest in goods that are of a kind that are normally used in more than one jurisdiction, if the goods are equipment or inventory leased or held for lease by a debtor to others; or
(c) a non-possessory security interest in chattel paper, investment property, a document of title, money, or a negotiable instrument.

Position where debtor relocates

108. If a debtor relocates to another jurisdiction or transfers an interest in collateral to a person located in another jurisdiction, a security interest perfected in accordance with the law applicable, as provided in section 25, continues to be perfected in Fiji if it is perfected in the other jurisdiction by the earliest of the following—

(a) not later than 60 days after the day on which the debtor relocates or transfers an interest in the collateral to a person located in the other jurisdiction;
(b) not later than 14 days after the day on which the secured party has knowledge that the debtor has relocated or transferred an interest in the collateral to a person located in the other jurisdiction; or
(c) prior to the day on which perfection ceases under the law of the first jurisdiction.

Priority where there is no public record of a perfected security interest

109.—(1) If the law governing the perfection of a security interest referred to in this Part does not provide for public registration or recording of the security interest or a notice relating to it, and the collateral is not in the possession of the secured party, the security interest is subordinate to—

(a) an interest in an account receivable, chattel paper, or instrument that is payable in Fiji; or
(b) an interest in goods, investment property, a negotiable instrument, a document of title, money, or chattel paper, acquired when the collateral was situated in Fiji.

(2) Subsection (1) does not apply if the security interest is perfected under this Act before the interest referred to in subsection (1)(a) or subsection (1)(b) arises.

(3) A security interest to which subsection (1) applies may be perfected under this Act.

Perfection of security interest in as-extracted collateral

110. Notwithstanding anything in this Act to the contrary, the perfection and the effect of perfection or non-perfection of a security interest in as-extracted collateral is governed by the law of the jurisdiction in which the mine head or wellhead is located if the security interest—

(a) is provided for in a signed security agreement before extraction; and
(b) attaches to the as-extracted collateral.

PART 10—MISCELLANEOUS

Transitional

111.—(1) In this Part—

“prior lien” means the right of an execution creditor whose right arose prior to the commencement of this Act;
“prior transaction” means a transaction concluded prior to the commencement of this Act that would otherwise fall within the scope of this Act; and
“transitional notice” means notice of the interest of a person under a prior lien or prior transaction.

(2) The validity, effect and enforcement of a prior transaction or prior lien must be determined by reference to the law in effect when the prior transaction was concluded or the prior lien arose, except as provided otherwise in this section.

(3) The provisions of this Act on registration, priority, and enforcement apply to a prior transaction or prior lien only in the case of conflict between the prior transaction or prior lien and a security interest created under this Act.

(4) A creditor under a prior transaction and the holder of a prior lien may register a transitional notice at any time.

(5) A transitional notice—

(a) may be registered in the same manner as provided for a notice of a security interest or notice of the right of an execution creditor; and
(b) the authorisation of the debtor is not required.

(6) If a transitional notice registered—

(a) on or before the 180th day from the commencement of this Act, the interest subject to the transitional notice has priority over a security interest created under this Act, with priority measured from the date of the commencement of this Act; and
(b) after the 180th day from the commencement of this Act, the priority of the interest subject to the transitional notice against a security interest created under this Act must be determined—

(7) Except as provided in subsection (6), if no transitional notice is registered, a security interest perfected under this Act has priority over the prior transaction or prior lien.

Offences

112.—(1) Any person who registers a notice with malicious intent or fraudulently, commits an offence and is liable upon conviction to a fine not exceeding $50,000 or imprisonment for a term not exceeding 10 years or both.

(2) Any person who wilfully and without proper authorisation destroys or tampers with any record that is in the Registry, or attempts to destroy or tamper with any such record, commits an offence and is be liable upon conviction to a fine not exceeding $50,000 or imprisonment for a term not exceeding 10 years or both.

(3) Any person who wilfully and forcibly obstructs a secured party or a secured party’s agent who is lawfully exercising any power to take possession of collateral, commits an offence against this Act, and is liable upon summary conviction to a fine not exceeding $50,000 or imprisonment for a term not exceeding 10 years or both.

(4) Any person who attempts to conceal or otherwise alters collateral subject to a security interest hereunder with the intent to defraud or otherwise prevent a secured party of the ability to enforce its security interest commits an offence and is liable upon conviction to a fine not exceeding $50,000 or imprisonment for a term not exceeding 10 years or both.

Regulations

113. The Minister may make regulations prescribing matters that are required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act, including—

(a) a secure method for registration or lodgement of notices, including—
(b) the method of payment of fees;
(c) a fee for registering a notice, not to exceed a reasonable estimate of the cost of maintaining the Registry, including a reasonable reserve;
(d) a fee for issuing a certified search report, but there must be no fee for an uncertified search report;
(e) the maximum charge, if any, for a request by a debtor under section 19;
(f) the requirements for a security agreement;
(g) appointing a person to serve as the Registrar; and
(h) the duties or additional duties to be performed by the Registrar for the purposes of this Act, including the collection and dissemination of aggregated statistics related to the use of the Registry.

Consequential amendments

114. The Acts listed in the Schedule are amended as provided in the Schedule.

SCHEDULE (Section 114)

CONSEQUENTIAL AMENDMENTS

Bankruptcy Act 1944

1. The Bankruptcy Act 1944 is amended by—

(a) in section 2(1) in the definition of “secured creditor” after “from the debtor”, inserting “and includes a secured party as defined in the Personal Property Securities Act 2017”;
(b) in section 40—
(c) deleting section 45 and substituting the following—

Bills of Sale Act 1879

2. The Bills of Sale Act 1879 is repealed.

Companies Act 2015

3. The Companies Act 2015 is amended by—

(a) in section 3, deleting the definition of “Charges Register”;
(b) in section 57(2), deleting “If” and substituting “Without limiting the application of the Personal Property Securities Act 2017, if”;
(c) in section 81(1)—
(d) deleting sections 370 to 376;
(e) in section 377—
(f) deleting sections 379 to 385;
(g) in section 435(3) after “Act”, inserting “or the Personal Property Securities Act 2017”; and
(h) deleting section 745. Co-operatives Act 1996

4. The Co-operatives Act 1996 is amended in section 27(1) after “Subject to” by inserting “the Personal Property Securities Act 2017 and”.

Crop Liens Act 1904

5. The Crop Liens Act 1904 is repealed.

Distress for Rent Act 1961

6. The Distress for Rent Act 1961 is amended after section 3 by inserting the following new sections—

“Application of Personal Property Securities Act 2017
3A. Notwithstanding anything in this Act, a bailiff shall levy any distress for rent in accordance with the provisions of the Personal Property Securities Act 2017.”.

Fiji Development Bank Act 1966

7. The Fiji Development Bank Act 1966 is amended by—

(a) in section 2—
(b) in section 23—
(c) in section 24—
(d) in section 25—
(e) in section 26—
(f) in section 27—
(g) in section 29(1)—
(h) in section 30(3) and (4) after “crops”, inserting “, collateral”;
(j) in section 33(2)—

Fiji National Provident Fund Act 2011

8. The Fiji National Provident Fund Act 2011 is amended in section 108 after subsection (1) by inserting the following new subsection—

“(1A) If payment of any contribution, additional contribution or penalty has not been made on or before the due date, a lien shall arise over the property of the person liable to pay such amounts to secure the payment of the amount of the contribution, additional contribution or penalty, and the Board or any officer or agent authorised by the Board may file a notice of such lien in the registry established under the Personal Property Securities Act 2017 to establish the priority date and time of such lien.”.

Indemnity, Guarantee and Bailment 1881

9. The Indemnity, Guarantee and Bailment Act 1881 is amended by—

(a) renumbering section 56 as section 56(1); and
(b) after section 56(1), inserting the following new subsection—

Land Transfer Act 1971

10. The Land Transfer Act 1971 is amended in section 39(1) by—

(a) in paragraph (c), deleting “.” and substituting “; and”; and
(b) after paragraph (c), inserting the following new paragraph—

Land Transport Act 1998

11. The Land Transport Act 1998 is amended after section 65 by inserting the following new section––

“Security on permits
65A.—(1) Any public service permit issued under this Act, including a public service licence issued in respect of a road permit, is deemed to be personal property for the purposes of the Personal Property Securities Act 2017.
(2) Notwithstanding subsection (1), a public service permit issued under this Act, including a public service licence in respect of a road permit, may only be used as collateral for a security interest granted to a financial institution as defined in the Personal Property Securities Act 2017.”.

Marine Insurance Act 1961

12. The Marine Insurance Act 1961 is amended in section 54(2) after “agreed” by inserting “and subject to the provisions of the Personal Property Securities Act 2017”.

Property Law Act 1971

13. The Property Law Act 1971 is amended in section 67 by deleting “A” and substituting “Subject to the provisions of the Personal Property Securities Act 2017, a”.

Registration Act 1879

14. The Registration Act 1879 is amended by—

(a) in section 10, deleting “All” and substituting “Subject to the provisions of the Personal Property Securities Act 2017, all”; and
(b) deleting Part 4.

Sale of Goods Act 1979

15. The Sale of Goods Act 1979 is amended in section 23 by—

(a) in paragraph (b), deleting “.” and substituting “; or”; and
(b) after paragraph (b), inserting the following new paragraph—

Stamp Duties Act 1920

16. The Stamp Duties Act 1920 is amended in the Schedule by––

(a) in Part 1 after the row on “SETTLEMENT, Deed of”, inserting the following new row—
Nature of Instrument
Amount of Duty
Persons Primarily Liable
"SECURITY AGREEMENT
The like duty as for a mortgage";
(b) in Part 2, deleting Item 30 and substituting the following—

Sugar Cane Growers Fund Act 1984

17. The Sugar Cane Growers Fund Act 1984 is amended by—

(a) in section 15(3), deleting “No” and substituting “Subject to any fee payable under the Personal Property Securities Act 2017, no”; and
(b) deleting section 17.

Tax Administration Act 2009

18. The Tax Administration Act 2009 is amended in section 28 by––

(a) in subsection (2), deleting “The” and substituting “Subject to subsection (2A), the”;
(b) after subsection (2), inserting the following new subsection––
(c) in subsection (3), deleting “A” and substituting “Subject to the provisions of the Personal Property Securities Act 2017, a”;
(d) in subsection (5) after “unregistered charge created by this section”, inserting “as of the date of registration of the charge”;
(e) after subsection (6), inserting the following new subsection—
(f) in subsections (7) and (10), deleting “subsection (2)” and substituting “subsections (2) and (3)”.

Passed by the Parliament of the Republic of Fiji this 15th day of September 2017.

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