Chapter 21
The Extinguishment Rules
21.2 Table Summarising the Extinguishment Rules by Class of Collateral
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21.2.1
PPSA Section Collateral Class Transaction

Extinguished?

Security interests granted by immediate seller or lessor

Extinguished?

Security interests granted by previous owners

Will knowledge prevent extinguishment?

Does extinguishment operate if buyer or lessee holds as inventory?

43 All personal property Sale or lease

Yes

(only for unperfected security interests).

Yes

(only for unperfected security interests).

No

Yes

(only for unperfected security interests).

44

Serial numbered property:

(a) Watercraft

(b)  Aircraft & Engines

(c)  IP Rights1

(d)  Motor vehicles?

See s45

Sale or lease Yes Yes

No

(but must search register against serial number immediately before time of sale or lease, and obtain a clear search).

No
45(1)-(2) Motor vehicles (private sales) Sale or lease (private) Yes Yes

(grantor of security to be extinguished must have lost right to possession).

Yes

(actual or constructive knowledge of existence of security interest).

Also necessary to search register against serial number either on previous day or same day as sale or lease, and obtain a clear search.

No

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21.2.2
PPSA Section Collateral Class Transaction

Extinguished?

Security interests granted by immediate seller or lessor

Extinguished?

Security interests granted by previous owners

Will knowledge prevent extinguishment?

Does extinguishment operate if buyer or lessee holds as inventory?

45(3)-(4)

Motor Vehicles (licensed dealer).

Sale or lease (from licensed dealer).

Yes Yes

Yes

(actual or constructive knowledge that security agreement terms breached by sale/ lease).

No
46

All personal property.

Sale or lease in ordinary course of business.

Yes No

Yes

(actual knowledge that security agreement terms breached by sale/ lease).

Yes, except for serial numbered property held as inventory.

47

Personal, domestic or household property other than serial numbered property

Sale or lease of value $5k or less2

Yes Yes

Yes

(actual or constructive knowledge that security agreement terms breached by sale/ lease)

N/A
48

Currency.

Payment of currency subject to a security interest.

Yes Yes

Yes

(actual or constructive knowledge of the existence security interest).

N/A
49

Investment instruments and intermediated securities.

Purchase in ordinary course
of trading on prescribed financial market.

Yes Yes

No.

Extinguishment operates despite knowledge.

N/A

Comment made
Bookmarked
21.2.3
PPSA Section Collateral Class Transaction

Extinguished?

Security interests granted by immediate seller or lessor

Extinguished?

Security interests granted by previous owners

Will knowledge prevent extinguishment?

Does extinguishment operate if buyer or lessee holds as inventory?

50

Investment instruments.

Any transaction where counterparty takes an interest
in, and possession or control of, investment instruments 3

Yes Yes

Yes

(actual or constructive knowledge that security agreement terms breached by sale/ lease).

N/A
51

Intermediated securities.

Taking any interest in intermediated securities.

Yes, if a “consensual transaction”

(eg, not a mistake or similar).

Yes, again if
a “consensual transaction” (eg, not a mistake or similar).

Yes

(actual or constructive knowledge that security agreement terms breached by sale/ lease).

N/A
52

Goods.

Proceeds of personal property.

Negotiable documents of title.

Purchase or
lease of the following personal property subject to temporarily perfected security interest4:

(a) goods,

(b) proceeds of personal

property, or

(c) negotiable documents of title.

 

Yes Yes

Yes

(actual knowledge that security agreement terms breached by sale/ lease).

N/A

Comment made
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21.2.4

There is more. Many extinguishment rules do not operate if the collateral sold or leased is inventory in the hands of the buyer or lessee.

Comment made
Bookmarked
21.2.5

The complexity that can accompany the extinguishment rules warrants very careful analysis.

Notes:

1 patents, trade marks, designs, plant breeder’s rights

2 property not serial numbered property

3 Includes sale, lease, discount, assignment, negotiation, mortgage, pledge, lien or any other transaction.

4 For example, security interests temporarily perfected over proceeds.  Does not apply to transitional security interests.

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