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Corporations Bill 2001

Part 2K.3 Order of priority

   

278   Definitions

             (1)  In this Part:

priority time , in relation to a registered charge, means:

                     (a)  except as provided by paragraph (b) or (c)—the time and date appearing in the Register in relation to the charge, being a time and day entered in the Register pursuant to section 265; and

                     (b)  where a notice has been lodged under section 264 in relation to a charge on property, being a charge that, at the time when the notice was lodged, was already registered under Part 2K.2—the earlier or earliest time and day appearing in the Register in relation to the charge, being a time and day entered in the Register pursuant to section 264; and

                     (c)  to the extent that the charge has effect as varied by a variation notice of which was required to be lodged under subsection 268(2)—the time and day entered in the Register in relation to the charge pursuant to subsection 265(14).

prior registered charge , in relation to another registered charge, means a charge the priority time of which is earlier than the priority time of the other charge.

registered charge means a charge that is registered under Part K.2.

subsequent registered charge , in relation to another registered charge, means a charge the priority time of which is later than the priority time of the other registered charge.

unregistered charge means a charge that is not registered under Part 2K.2 but does not include a charge that is not a registrable charge.

             (2)  A reference in this Part to a person having notice of a charge includes a reference to a person having constructive notice of the charge.

             (3)  Where, by virtue of the definition of priority time in subsection (1), a registered charge has 2 or more priority times each of which relates to a particular liability secured by the charge, each of those liabilities is, for the purposes of this Part, taken to be secured by a separate registered charge the priority time of which is the priority time of the first-mentioned registered charge that relates to the liability concerned.

279   Priorities of charges

             (1)  Subject to this section, sections 280 to 282, inclusive, have effect with respect to the priorities, in relation to each other, of registrable charges on the property of a company.

             (2)  The application, in relation to particular registrable charges, of the order of priorities of charges set out in sections 280 to 282, inclusive, is subject to:

                     (a)  any consent (express or implied) that varies the priorities in relation to each other of those charges, being a consent given by the holder of one of those charges, being a charge that would otherwise be entitled to priority over the other charge; and

                     (b)  any agreement between those chargees that affects the priorities in relation to each other of the charges in relation to which those persons are the chargees.

             (3)  The holder of a registered charge, being a floating charge, on property of a company is taken, for the purposes of subsection (2), to have consented to that charge being postponed to a subsequent registered charge, being a fixed charge that is created before the floating charge becomes fixed, on any of that property unless:

                     (a)  the creation of the subsequent registered charge contravened a provision of the instrument or resolution creating or evidencing the floating charge; and

                     (b)  a notice in respect of the floating charge indicating the existence of the provision referred to in paragraph (a) was lodged with ASIC under section 263, 264 or 268 before the creation of the subsequent registered charge.

             (4)  Where a charge relates to property of a kind or kinds to which a particular paragraph or paragraphs of subsection 262(1) applies or apply and also relates to other property, sections 280 to 282, inclusive, apply so as to affect the priority of the charge only in so far as it relates to the first-mentioned property and do not affect the priority of the charge in so far as it relates to the other property.

             (5)  Sections 280 to 282, inclusive, do not apply so as to affect the operation of:

                     (a)  the Copyright Act 1968 ; or

                     (b)  the Designs Act 1906 ; or

                     (c)  the Life Insurance Act 1995 ; or

                     (d)  the Patents Act 1952 ; or

                     (e)  the Trade Marks Act 1955 .

280   General priority rules in relation to registered charges

             (1)  A registered charge on property of a company has priority over:

                     (a)  a subsequent registered charge on the property, unless the subsequent registered charge was created before the creation of the prior registered charge and the chargee in relation to the subsequent registered charge proves that the chargee in relation to the prior registered charge had notice of the subsequent registered charge at the time when the prior registered charge was created; and

                     (b)  an unregistered charge on the property created before the creation of the registered charge, unless the chargee in relation to the unregistered charge proves that the chargee in relation to the registered charge had notice of the unregistered charge at the time when the registered charge was created; and

                     (c)  an unregistered charge on the property created after the creation of the registered charge.

             (2)  A registered charge on property of a company is postponed to:

                     (a)  a subsequent registered charge on the property, where the subsequent registered charge was created before the creation of the prior registered charge and the chargee in relation to the subsequent registered charge proves that the chargee in relation to the prior registered charge had notice of the subsequent registered charge at the time when the prior registered charge was created; and

                     (b)  an unregistered charge on the property created before the creation of the registered charge, where the chargee in relation to the unregistered charge proves that the chargee in relation to the registered charge had notice of the unregistered charge at the time when the registered charge was created.

281   General priority rule in relation to unregistered charges

                   An unregistered charge on property of a company has priority over:

                     (a)  a registered charge on the property that was created after the creation of the unregistered charge and does not have priority over the unregistered charge under subsection 280(1); and

                     (b)  another unregistered charge on the property created after the first-mentioned unregistered charge.

282   Special priority rules

             (1)  Except as provided by this section, any priority accorded by this Part to a charge over another charge does not extend to any liability that, at the priority time in relation to the first-mentioned charge, is not a present liability.

             (2)  Where a registered charge on property of a company secures:

                     (a)  a present liability and a prospective liability of an unspecified amount; or

                     (b)  a prospective liability of an unspecified amount;

any priority accorded by this Part to the charge over another charge of which the chargee in relation to the first-mentioned charge does not have actual knowledge extends to the prospective liability, whether the prospective liability became a present liability before or after the registration of the first-mentioned charge.

             (3)  Where a registered charge on property of a company secures:

                     (a)  a present liability and a prospective liability up to a specified maximum amount; or

                     (b)  a prospective liability up to a specified maximum amount;

and the notice lodged under section 263 or 264 in relation to the charge sets out the nature of the prospective liability and the amount so specified, then any priority accorded by this Part to the charge over another charge extends to any prospective liability secured by the first-mentioned charge to the extent of the maximum amount so specified, whether the prospective liability became a present liability before or after the registration of the first-mentioned charge and notwithstanding that the chargee in relation to the first-mentioned charge had actual knowledge of the other charge at the time when the prospective liability became a present liability.

             (4)  Where:

                     (a)  a registered charge on property of a company secures:

                              (i)  a present liability and a prospective liability up to a specified maximum amount; or

                             (ii)  a prospective liability up to a specified maximum amount;

                            but the notice lodged under section 263 or 264 in relation to the charge does not set out the nature of the prospective liability or the maximum amount so specified; or

                     (b)  a registered charge on property of a company secures a prospective liability of an unspecified amount;

the following paragraphs have effect:

                     (c)  any priority accorded by this Part to the charge over another charge of which the chargee in relation to the first-mentioned charge has actual knowledge extends to any prospective liability secured by the first-mentioned charge that had become a present liability at the time when the chargee in relation to the first-mentioned charge first obtained actual knowledge of the other charge;

                     (d)  any priority accorded by this Part to the charge over another charge of which the chargee in relation to the first-mentioned charge has actual knowledge extends to any prospective liability secured by the first-mentioned charge that became a present liability, as the result of the making of an advance, after the time when the chargee in relation to the first-mentioned charge first obtained actual knowledge of the other charge if, at that time, the terms of the first-mentioned charge required the chargee in relation to that charge to make the advance after that time, and so extends to that prospective liability whether the advance was made before or after the registration of the first-mentioned charge and notwithstanding that the chargee in relation to the first-mentioned charge had actual knowledge of the other charge at the time when the advance was made.



 

Chapter 2L Debentures