In the courts

Liquidator not a third party for the purposes of the PPSA
A liquidator has been held to be an agent of the debtor company and not a third party, meaning that an unsigned retention of title document can be enforceable against a liquidator if it creates a security interest, even though it does not meet the requirements of the Personal Property Securities Act.

Electronic funds transfer good payment
The Court of Appeal has determined that a payment by electronic funds transfer is equivalent to payment by bank cheque.

Deed enforceable by third party if intended
An English court has found that a guarantee entered into as a deed between the principal debtor and the guarantor, but not executed by the creditor, was nonetheless enforceable by the creditor.

Declaration of trust over the benefit of contractual rights not effective to entitle beneficiary to enforce those rights
An English court has decided that it is not possible to circumvent a provision in a facility agreement prohibiting assignment by a lender by the use of a declaration of trust.

Enquiries and information

For more information on any of the cases, articles and features in Financial Services Quarterly, please email Rachel Gowing or call on 64 9 916 8825.