To ensure compliance with the provisions of the  Personal Property Securities Act 2009 (Cth.) (the PPSA), certain steps must often be taken within a specified number of ‘Business Days‘. Failure to comply can have serious ramifications, including with respect to the priority afforded to security interests.

For example:

1. Pursuant to section 62, in order to obtain super priority, a purchase money security interest (PMSI) in personal property other than inventory, must be, among other things, perfected by registration:
   1. if relating to goods – within 15 ‘business days‘ after the day the grantor obtains possession of the goods; and
   2. if any other personal property – within 15 ‘business days‘ after the day the security interest attaches to the property; and
2. Pursuant to section 64, a financier can obtain priority over a prior PMSI for an interest in an account as proceeds of inventory provided if, among other things, notice of at least 15 ‘business days‘ is given to the secured party before the earlier of registration or attachment of a financier’s interest in an account; and
3. Pursuant to section 181 , if a secured party wishes to submit an amendment demand, it must wait 5 ‘business days‘ after the amendment notice is given to the secured party before it can submit the demand to the registrar.

According to section 10 of the PPSA, a ‘business day‘ does not include a “day on which the Registrar has refused access to the register, or otherwise suspended the operation of the register, in whole or in part (see subsection 147(5))“. Pursuant to the Registrar’s Notice dated 21 December 2015, the PPSR is scheduled for routine maintenance every Wednesday except for Wednesdays falling on or between 21 December of one year and 1 January of the following year. During this scheduled maintenance period, the PPSR’s operation is suspended under subsection 147(4).

The effect of this is that when calculating ‘business days‘ for the purpose of the PPSA, you cannot generally count ‘Wednesday’ as a business day. Using section section 64 as an example, we would suggest that when issuing a section 64 notice that a party allows a few additional days to pass before its interest is registered on the PPSR to account for the scheduled maintenance day. It is important however to remember that the interest must be registered on the PPSR within 20 business days to avoid the trap of section 588FL of the Corporations Act 2001 (Cth.). 

If you or your company require further information on the PPSA, please do not hesitate to contact us.