In the courts

Retention of title arrangement not necessarily a security interest under the PPSA
The Court of Appeal has overturned the High Court's decision that a retention of title arrangement created a registerable security interest.

Assignment by way of security may not be enforceable under Part 9 of the PPSA
In a successful application to have a statutory demand set aside, the court decided that, while it was unclear whether a "transfer" included an assignment by way of security, or was limited to absolute transfers, it was reasonably arguable that section 105(b)(i) of the Personal Property Securities Act (PPSA) prevented the lender from enforcing its security interest under Part 9 of the PPSA.

The importance of getting solicitor's certificates right
Summary judgment was ordered in favour of a bank against a firm of solicitors for breach of a solicitor's certificate and undertaking. The solicitors had acted for both the bank and the borrower in connection with a loan and security.

Agency/trust relationship or debtor/creditor relationship?
The Court of Appeal has agreed with the High Court that the critical issue in determining whether an arrangement is of an agency/trust or debtor/creditor nature is whether the supplier is required to keep the funds in a separate account.

CCCFA buy-back provisions do not assist victims of a fraudulent buy-back transaction
A couple whose house was fraudulently transferred to a bona fide purchaser for value failed in their bid to recover their home under the CCCFA buy-back provisions.

Guarantor's claim to right of subrogation fails against second mortgagee
The Court of Appeal has decided that a guarantor had no rights of subrogation vis-a-vis a second mortgagee because it had provided a guarantee and granted a mortgage to the second mortgagee.

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.