Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) This Act does not apply to any of the following interests (except as provided by subsection (2) or (3)):
(a) the interest of a seller who has shipped goods to a buyer under a negotiable bill of lading, or its equivalent, to the order of the seller, or to the order of an agent of the seller, unless the parties have otherwise evidenced an intention to create or provide for a security interest in the goods;
(b) a lien, charge, or any other interest in personal property, that is created, arises or is provided for under a law of the Commonwealth (other than this Act), a State or a Territory, unless the person who owns the property in which the interest is granted agrees to the interest;
(c) a lien, charge, or any other interest in personal property, that is created, arises or is provided for by operation of the general law;
(d) any right of set - off or right of combination of accounts (within the ordinary meaning of the term "accounts");
(e) any right or interest held by a person, or any interest provided for by any transaction, under any of the following (as defined in section 5 of the Payment Systems and Netting Act 1998 ):
(i) an approved netting arrangement;
(ii) a close - out netting contract;
(iii) a market netting contract;
(f) an interest provided for by any of the following transactions:
(i) the creation or transfer of an interest in land;
(ii) the creation of an interest in a right to payment, or the creation or transfer (including a successive transfer) of a right to payment, in connection with an interest in land, if the writing evidencing the creation or transfer specifically identifies that land;
(iii) a transfer (including a successive transfer) of an unearned right to payment under a contract to a person who is to perform the transferor's obligations under the contract;
(iv) a transfer of present or future remuneration (including wages, salary, commission, allowances or bonuses) payable to an individual as an employee or a contractor;
(v) a transfer of an interest or claim in, or under, a contract of annuity or policy of insurance, except a transfer of a right to an insurance payment or other payment as indemnity or compensation for loss of, or damage to, collateral (or proceeds of collateral);
(vi) a transfer of an account made solely to facilitate the collection of the account on behalf of the person making the transfer;
(vii) without limiting subparagraph (vi), a transfer of an account, if the transferee's sole purpose in acquiring the account is to collect it;
(viii) a transfer of an account or negotiable instrument to satisfy (either wholly or partly) a pre - existing indebtedness;
(ix) a sale of an account or chattel paper as part of a sale of business, unless the seller remains in apparent control (within the ordinary meaning of that term) of the business after the sale;
(x) a transfer of the beneficial interest in a monetary obligation where, after the transfer, the transferee holds the monetary obligation on trust for the transferor;
(g) the following interests in property created under the Bankruptcy Act 1966 :
(i) the interest of the Official Trustee or a registered trustee who has taken control (within the meaning of section 50 of that Act) of a debtor's or grantor's property under that section;
(ii) the interest of the Official Trustee or a registered trustee in property of a debtor or grantor that has vested in the Official Trustee or the registered trustee under section 58 of that Act;
(iii) a charge created under section 139ZN of that Act;
(iv) a charge created under section 139ZR of that Act;
(v) an interest created under a personal insolvency agreement under Part X of that Act;
(h) a trust over some or all of an amount provided by way of financial accommodation, if the person to whom the financial accommodation is provided is required to use the amount in accordance with a condition under which the financial accommodation is provided;
(i) a right entitlement or authority, whether or not exclusive, that is granted by or under the general law or a law of the Commonwealth, a State or a Territory in relation to the control, use or flow of water;
Note: See also subsection (5).
(j) an interest in a fixture;
(ja) a security interest in personal property taken by a pawnbroker, if subsection (6) applies to the security interest;
(jb) an interest that a person has:
(i) as a member of a superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993 ); or
(ii) as a member of an approved deposit fund (within the meaning of the Superannuation Industry (Supervision) Act 1993 ); or
(iii) as a holder of a retirement savings account (within the meaning of the Retirement Savings Accounts Act 1997 ); or
(iv) in an account kept under the Small Superannuation Accounts Act 1995 in the name of the person; or
(v) as a holder of a superannuation annuity (within the meaning of the Income Tax Assessment Act 1997 );
(jc) a charge created by section 5 of the Loans Redemption and Conversion Act 1921 ;
(k) a particular right, licence or authority (the statutory right ) granted by or under a law of the Commonwealth, a State or a Territory, if, at the time when the statutory right is granted, or at any time afterwards, a provision of that law declares that kind of statutory right not to be personal property for the purposes of this Act (no matter whether the provision remains in force);
Note: Personal property does not include such a statutory right if it has been declared by such a law not to be personal property for the purposes of this Act (see section 10).
(l) an interest of a kind prescribed by the regulations for the purposes of this section.
Exceptions to subsection (1)
(2) The following table has effect:
Provisions of this Act that apply to interests mentioned in subsection (1) | ||
Item | Despite subsection (1), the following provision: | applies in relation to the following interest mentioned in subsection (1): |
1 | section 73 | (a) a lien, charge or other interest in personal property of a kind described in paragraph (1)(b) or (c); and (b) an interest provided for by a transaction described in subparagraph (1)(f)(ii). |
2 | section 80 | a right of set - off (see paragraph (1)(d)). |
3 | an interest provided for by the creation or transfer of an interest in land (see subparagraph (1)(f)(i)). | |
4 | paragraph 140(2)(a) | a lien, charge or other interest in personal property of a kind described in paragraph (1)(b) or (c). |
5 | paragraph 148(c) and regulations made for the purposes of that paragraph | a lien, charge or other interest in personal property of a kind described in paragraph (1)(b) or (c). |
6 | a provision prescribed by regulations made for the purposes of this item | an interest mentioned in subsection (1) (including an interest prescribed by regulations made for the purposes of paragraph (1)(l)) that is prescribed by regulations made for the purposes of this item. |
(3) The regulations may provide that, despite subsection (1), this Act applies in relation to a kind of interest prescribed by the regulations for the purposes of this subsection.
Transfer of interests and rights
(4) To avoid doubt, the interest provided for by a transfer of an interest or right (see paragraph (1)(f)) is the interest that the transferee has to claim against the transferor.
(5) In paragraph (1)(i), the reference to a right in relation to the control, use or flow of water includes, but is not limited to, a reference to a right that a person has against another person to receive (or otherwise gain access to) water.
Pawnbroker security interests
(6) For the purposes of paragraph (1)(ja), this subsection applies to a security interest taken by a pawnbroker if:
(a) the pawnbroker holds a licence or is otherwise expressly authorised (for example, by registration) by a law of a State or Territory to carry on a pawnbroking business (however described in that law); and
(b) the taking of the security interest is authorised by that licence or authorisation, and is not in contravention of that law of the State or Territory; and
(c) the security interest is taken in the ordinary course of the pawnbroker's business as a pawnbroker; and
(d) at the time the security interest is taken, the market value of the payment or obligation secured by the security interest is less than or equal to:
(i) $5,000; or
(ii) if a greater amount has been prescribed by regulations made for the purposes of subsection 47(1)--that amount; and
(e) at the time the security interest is taken, the pawnbroker believes, and it is actually the case, that the market value of the personal property is less than or equal to:
(i) $5,000; or
(ii) if a greater amount has been prescribed by regulations made for the purposes of paragraph 47(2)(c)--that amount; and
(f) the personal property is not of a kind that the regulations provide may, or must, be described by serial number in a registration.
Note: Section 47 deals with taking personal, domestic or household property free of a security interest.