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Priority of Personal Property Securities Register

Maiden Civil Pty Ltd; Re; Albarran v Queensland Excavation Services Pty Ltd [2013] NSWSC 852

Issue

The Supreme Court of New South Wales has ruled that the nemo dat rule (that one cannot give what is not theirs) has been removed from Australian law in relation to thePersonal Property Securities Act 2009 (Cth) (“PPSA”).

This case also provides that in circumstances where a party has not secured their interest in property as the true owner, their interests may be outweighed by the secured interest of a third party, under the act.

Facts

Maiden Civil Pty Ltd (“Maiden Civil”) leased three excavators from Queensland Excavation Services Pty Limited (“QES”) for the purposes of civil construction works. Fast Financial Solutions Pty Ltd (“Fast Financial”), through a Loan Agreement secured by a General Security Deed provided finance for the excavators to the Maiden Civil. The property secured included the excavators.

Fast Financial registered its security interest on the PPSR. Maiden Civil later defaulted on the loan to Fast Financial, who retained possession of the excavators. QES demanded return of the property as the true owners, however, had not registered the property on the PPSR.
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