2005
2005
2007-12-13
act
government
publicgeneral
act.reprint
act-2006-058
allinforce
2005-09-15
2005-09-15
0
2005
none
act-2005-069
8376f4c5-ca14-493e-bc30-17ee0d49d978
550b6e5c-3bf0-469c-bde1-2ee06fdad43c
Does not include amendments
by:
Miscellaneous
Acts (Local Court) Amendment Act 2007 No 94 (not
commenced)
An Act with respect to security interests in
goods; and for other purposes.
Part 1Preliminary
1Name of
Act
This Act is the Security
Interests in Goods Act 2005.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Definitions
(1)
In this Act:
agricultural goods means any of the
following:
(a)
crops,
(b)
fish,
(c)
stock,
(d)
wool.
agricultural goods mortgage means
any of the following:
(a)
an aquaculture fish mortgage,
(b)
a crop mortgage,
(c)
a stock mortgage (including a wool
mortgage).
aquaculture has the same meaning as
in section 142 of the Fisheries Management Act
1994.
aquaculture fish mortgage means a
mortgage over fish that is granted as provided by section 15.
aquaculture fish mortgagee means the
holder of an aquaculture fish mortgage.
aquaculture fish mortgagor means the
grantor of an aquaculture fish mortgage.
assignment includes
transfer.
crop includes the following:
(a)
wheat, maize, canola, sorghum, barley, oats,
lucerne, grass (whether for hay or grain), cotton, tobacco, rice, sugar-cane
and any other kind of agricultural produce,
(b)
oranges, grapes (whether as fruit or for wine or
spirit) and any other kind of fruit or horticultural
produce.
crop
mortgage means a mortgage over crops that is granted as
provided by section 7.
crop
mortgagee means the holder of a crop
mortgage.
crop
mortgagor means the grantor of a crop
mortgage.
cultivate, in relation to fish,
includes propagate, hatch, breed, rear and farm.
duly
executed—see section 4.
exercise a function includes perform
a duty.
fish has the same meaning as in
section 5 of the Fisheries Management Act
1994.
Note—
Under section 5 of the Fisheries Management Act 1994, fish means marine, estuarine or
freshwater fish or other aquatic animal life at any stage of their life
history (whether alive or dead), including oysters and other aquatic molluscs,
crustaceans, echinoderms, beachworms and other aquatic
polychaetes.
function includes a power, authority
or duty.
goods means any chattels personal,
fixtures or other things capable of complete transfer by delivery (whether
immediately or at any future time), but does not include any of the
following:
(a)
title deeds, negotiable instruments, choses in
action or chattel interests in real estate,
(b)
shares or interests in the stock, funds or
securities of any of the following:
(i)
a Government (whether of this State or
otherwise),
(ii)
the Crown or a body representing the Crown
(whether in right of this State or otherwise),
(c)
shares or interests in the capital or property of
a body corporate (wherever constituted),
(d)
access licences in respect of water granted under
the Water Management Act
2000,
(e)
any other thing prescribed by the regulations for
the purposes of this definition.
grantor, in relation to a security
interest, means:
(a)
the person who grants, confers or creates the
security interest, or
(b)
the legal personal representative of the person
referred to in paragraph (a), or
(c)
if the person referred to in paragraph (a) is a
body corporate—its successors in title and permitted
assigns.
holder, in relation to a security
interest, means:
(a)
the person who holds the security interest
(whether for the person’s own benefit or the benefit of another person),
or
(b)
the legal personal representative of the person
referred to in paragraph (a), or
(c)
if the person referred to in paragraph (a) is a
body corporate—its successors in title and permitted
assigns.
mortgagee, in relation to an
agricultural goods mortgage, means the holder of the mortgage.
mortgagor, in relation to an
agricultural goods mortgage, means the grantor of the mortgage.
partial
discharge of a registered security interest means:
(a)
a discharge of a grantor of the interest from a
stated part of the debt or pecuniary obligation, or the performance of any
other obligation, that has been secured, or
(b)
if the security interest relates to a number of
goods—a discharge of the security interest in relation to some (but not
all) of the goods.
prescribed form for an agricultural
goods mortgage—see Division 4 of Part 2.
registered—see section
25.
registered security interest means a
security interest reserved, created or arising by or under a security
instrument that is registered.
registrable security
instrument—see section 24.
security
instrument means any instrument (including an instrument
granting an agricultural goods mortgage) by or under which a security interest
is reserved or created, or otherwise arises, in respect of goods (whether
existing or future).
security
interest, in relation to goods (whether existing or future),
means an interest or power:
(a)
reserved in or over an interest in the goods,
or
(b)
created or otherwise arising in or over an
interest in the goods under a bill of sale, mortgage, charge, trust or
power,
by way of security for the payment of a debt or other
pecuniary obligation or the performance of any other obligation, but does not
include an interest or a power reserved or created, or otherwise arising, by
or under any of the following:
(c)
a letting of goods with an option to purchase the
goods,
(d)
an agreement for the purchase of goods by
instalments (whether described as rent or hire or otherwise) not being an
agreement by which the property in the goods being purchased passes at the
time of the agreement or on, or at any time before, delivery of the
goods,
(e)
any other contract for the hiring of
goods,
(f)
any other agreement, arrangement, instrument or
circumstance of a kind prescribed by the
regulations.
sharefarmer means a party to a
sharefarming agreement.
sharefarming agreement means an
agreement between the owner or lessee of land and another person under which
the other person undertakes:
(a)
to cultivate or otherwise utilise the land,
and
(b)
to share with the owner or lessee in agreed
proportions any crops or other produce, or profits derived from crops or other
produce, grown on or derived from the land.
stock includes any sheep, goats,
cattle, horses, swine, poultry, alpacas, llamas, ostriches or other animals
(except fish).
stock
mortgage means a mortgage over stock or wool (or both) that
is granted as provided by section 12.
stock
mortgagee means the holder of a stock
mortgage.
stock
mortgagor means the grantor of a stock
mortgage.
take fish includes:
(a)
catch or kill fish, or
(b)
gather or collect fish, or
(c)
remove fish from any rock or other
matter.
unregistered security interest means
a security interest reserved, created or arising by or under a security
instrument that is not registered.
water
source means:
(a)
a river, lake, creek, pond or any other land that
is submerged by water (whether permanently or intermittently or whether
naturally or artificially), or
(b)
any part of such a river, lake, creek, pond or
submerged land.
wool means the natural fibre from
the fleece of sheep, goats, alpacas, llamas or any other kind of stock that
produce fleece that can be shorn.
wool
mortgage means a stock mortgage that relates only to
wool.
(2)
Notes included in this Act (other than in
Schedule 1, 2 or 3) do not form part of this Act.
4Due execution of
instruments
(1)
Subject to subsection (2), if a provision of this
Act provides for an instrument to be duly executed:
(a)
the instrument must be signed by the person or
persons specified by the provision, and
(b)
the signing of the instrument must be attested by
at least one witness (being a person who is not a party to the
instrument).
(2)
A receipt of the kind referred to in section 23
(1) (a) does not need to be attested as provided by subsection (1) (b) in
order for it to be duly executed.
(3)
A person is not excluded from being a witness for
the purposes of subsection (1) (b) merely because the person is an employee of
a party to the instrument acting in the ordinary course of
business.
(4)
No particular form of words is required for an
attestation by a witness.
(5)
For the purposes of this section, section 38 (1A)
and (1B) of the Conveyancing Act
1919 extend to the execution and attestation of an
instrument of the kind referred to in subsection (1) even if the instrument is
not a deed.
Note—
Section 38 (1A) and (1B) of the Conveyancing Act 1919 make provision for
when deeds are taken to have been sufficiently signed.
(6)
Nothing in this section affects the operation of
Part 3 of the Conveyancing Act
1919 in its application to the execution of
deeds.
5Relationship of this Act with
general law and other Acts
(1)Operation of general
law
This Act does not affect any principle or rule of
the common law or equity in relation to security interests in goods except to
the extent that this Act provides otherwise (whether expressly or by necessary
implication).
Note—
Section 31 affects the priority of security
interests by reference to the date of registration of the security instrument
by or under which the security is reserved, created, conferred or arises.
Generally, the registration of a security instrument does not of itself
perfect a security interest that is not valid under the general law. However,
agricultural goods mortgages granted as provided by this Act require
registration under this Act before they can have effect.
(2)Mortgages and other security
interests over agricultural goods
Without limiting subsection (1), nothing in this
Act prevents a person from granting a mortgage or other security interest over
agricultural goods under another law (whether written or unwritten) instead of
in accordance with the provisions of Part 2.
(3)Relationship with Registration of Interests in Goods Act
1986
Nothing in this Act applies to or affects any
security interest in prescribed goods within the meaning of the Registration of Interests in Goods Act
1986, except to the extent provided by regulations made
for the purposes of section 3C of that Act.
Note—
The Registration of
Interests in Goods Act 1986 provides for the registration
of security interests in prescribed goods within the meaning of that Act. The
Act makes provision for the priority of both registered and unregistered
security interests in such goods.
The term prescribed goods is defined in
section 3 (1) of the Registration of Interests in Goods Act
1986 to mean a motor vehicle or any other goods prescribed
by the regulations, whether situated in the State or elsewhere.
Section 3C of the Registration of
Interests in Goods Act 1986 enables savings and
transitional regulations to be made in the event that goods to which this Act
applies become prescribed goods under the former Act.
(4)Relationship with Corporations
Act 2001 of the Commonwealth
Nothing in this Act is intended to limit or
otherwise affect the operation of Chapter 2K or any other provision of the
Corporations Act 2001 of the
Commonwealth.
Note—
Chapter 2K of the Corporations Act
2001 of the Commonwealth provides for the registration of
charges over certain property of companies and the order of priority of such
charges.
6Act to bind
Crown
This Act binds the Crown in right of New South
Wales and, in so far as the legislative power of the Parliament of New South
Wales permits, the Crown in all its other capacities.
Part 2Agricultural goods
mortgages
Division 1Crop
mortgages
7Creation of crop
mortgages
(1)
A person may grant a mortgage as provided by this
section (a crop
mortgage) over any crops that grow or are grown on land by
way of security for payment of a debt or other pecuniary obligation in
circumstances where the person:
(a)
owns the land, or
(b)
has exclusive possession of the land and a right
to harvest crops that grow or are grown on the land, or
(c)
holds a lease over the land granted under the
Western Lands Act 1901 (whether or not
the lease confers exclusive possession of the land) and has a right to harvest
crops that grow or are grown on the land, or
(d)
is entitled under a sharefarming agreement with
the owner or lessee of the land to crops (or a share of the crops) that grow
or are grown on the land and has obtained the written consent of the owner or
lessee to grant the mortgage.
(2)
A crop mortgage may extend to any or all of the
following:
(a)
crops that are growing on the land concerned
during the period of the mortgage,
(b)
crops to be sown or planted on the land concerned
by the mortgagor during the period of the mortgage,
(c)
crops that grow on the land concerned in the
ordinary course of nature during the period of the
mortgage.
(3)
A crop mortgage must:
(a)
be in the prescribed form,
and
(b)
be duly executed by the mortgagor,
and
(c)
describe or otherwise identify the crops to which
the mortgage is to apply, and
(d)
describe or otherwise identify the land on which
the crops concerned are growing or will grow, and
(e)
specify a period for its duration in accordance
with subsection (5), and
(f)
be registered within the period of 45 days after
its execution.
Note—
Division 4 makes provision for the prescribed
form for a crop mortgage.
(4)
The crops to which a crop mortgage relates are
sufficiently described or identified for the purposes of subsection (3) if the
crops are described or identified:
(a)
by reference to the species of crops,
or
(b)
in another way that reasonably allows the crops
to be identified.
(5)
The period specified for the duration of a crop
mortgage must not exceed a total period of 5 years commencing from the time it
is first registered.
(6)
A crop mortgage has effect on and from the time
at which it is registered.
(7)
Subject to this Part and the provisions of any
other Act or law, a crop mortgage may make such provision with respect to the
respective rights, liabilities and obligations of the parties to the mortgage
as the parties may agree from time to time.
8Rights of crop
mortgagee
(1)
If a crop mortgagor refuses or fails to pay the
debt or other pecuniary obligation secured by the crop mortgage in accordance
with the provisions of the mortgage, the crop mortgagee may do any or all of
the following:
(a)
take possession of any crops to which the
mortgage applies,
(b)
cut, gather, harvest, sell or otherwise deal with
the crops,
(c)
enter the land on which the crops are growing, or
grew, for the purpose of exercising any such power,
(d)
require the mortgagor to pay to the mortgagee the
proceeds of any sale of the crops if the mortgagor has already harvested and
sold the crops.
(2)
Subsection (1) has effect subject to any contrary
provision made by a crop mortgage with respect to the rights, liabilities or
obligations of the crop mortgagee.
(3)
Nothing in this section authorises a crop
mortgagee to deal with crops to which a crop mortgage applies in a manner that
would contravene a provision of another Act or an instrument made under
another Act.
Note—
For example, the Plant Diseases
Act 1924 makes provision with respect to dealings with
diseased plants within New South Wales.
9Exercise of power of sale
under crop mortgage in respect of mortgaged land
(1)
This section applies to the exercise of a power
of sale in respect of crops under a crop mortgage if:
(a)
a mortgage existed over the land on which the
crops are growing or grew (the land
mortgage) at the time the crop mortgage was granted,
and
(b)
the land is occupied by the mortgagee under the
land mortgage (the land
mortgagee) at the time the crops are harvested under the
crop mortgage.
(2)
A crop mortgagee must, before exercising a power
of sale to which this section applies, pay to the land mortgagee such amount
of interest (not exceeding an amount equal to 12 months’ interest) as
may be due under the land mortgage at the time of harvesting the
crops.
(3)
However, the crop mortgagee may retain the amount
of any interest paid under subsection (2) out of the proceeds of the sale of
the crops before paying over the balance (if any) under the crop mortgage to
the crop mortgagor.
10Exercise of power of sale
under crop mortgage in respect of leased land
(1)
If a crop mortgagor holds a lease over the land
on which the crops concerned are growing or grew, the crop mortgagee must,
before exercising a power of sale under the crop mortgage, pay to the lessor
of the land such amount of rent (not exceeding an amount equal to 12
months’ rent) as may be due under the lease of the land at the time of
harvesting the crops.
(2)
However, the crop mortgagee may retain the amount
of any rent paid under subsection (1) out of the proceeds of the sale of the
crops before paying over the balance (if any) under the crop mortgage to the
crop mortgagor.
11Effect of crop mortgages on
sharefarming agreements
(1)
In this section:
landholder sharefarmer, in relation
to a sharefarming agreement, means a party to the agreement who is an owner or
lessee of the land to which the agreement relates.
non-landholder sharefarmer, in
relation to a sharefarming agreement, means a party to the agreement who is
not the owner or lessee of the land to which the agreement
relates.
(2)
Any right or other entitlement of a landholder
sharefarmer under a sharefarming agreement to a share of crops, or profits
derived from crops, that grow on land has priority over any security interest
of a mortgagee under a crop mortgage granted by a non-landholder sharefarmer
in respect of the same crops unless the landholder sharefarmer is also a
mortgagor under that crop mortgage.
(3)
Any right or other entitlement of a
non-landholder sharefarmer under a sharefarming agreement to a share of crops,
or profits derived from crops, that grow on land has priority over any
security interest of a mortgagee under a crop mortgage granted by a landholder
sharefarmer in respect of the same crops unless the non-landholder sharefarmer
is also a mortgagor under that crop mortgage.
Division 2Stock mortgages and wool
mortgages
12Creation of stock
mortgages
(1)
A person may grant a mortgage as provided by this
section (a stock
mortgage) by way of security for payment of a debt or other
pecuniary obligation over either or both of the following:
(a)
stock owned by the person,
(b)
wool produced by stock owned by the
person.
(2)
The mortgagor under a stock mortgage over stock
may not, without the written consent of the stock mortgagee, grant a stock
mortgage over the wool of the stock to a third person.
(3)
A stock mortgage must:
(a)
be in the prescribed form,
and
(b)
be duly executed by the mortgagor,
and
(c)
describe or otherwise identify the stock to which
the mortgage is to apply, and
(d)
describe or otherwise identify the land on which
the stock concerned is, or is to be, kept, and
(e)
specify a period for its duration,
and
(f)
be registered within the period of 45 days after
its execution.
Note—
Division 4 makes provision for the prescribed
form for a stock mortgage.
(4)
The stock to which a stock mortgage relates is
sufficiently described or identified for the purposes of subsection (3) if the
stock is described or identified:
(a)
by reference to the number of stock and the
brand, earmark or other mark on the stock, or
(b)
in another way that reasonably allows the stock
to be identified.
(5)
A stock mortgage over stock extends to the
following unless the stock mortgage expressly provides otherwise:
(a)
any progeny of the stock produced during the
period of the mortgage,
(b)
any sperm and embryos of the stock produced
during the period of the mortgage,
(c)
any stock of the kind identified in the mortgage
that is acquired during the period of the mortgage.
(6)
A stock mortgage over wool is limited to the next
ensuing clip of wool of the owner of the stock concerned following the
execution of the mortgage unless the stock mortgage expressly provides
otherwise.
(7)
A stock mortgage has effect on and from the time
at which it is registered.
(8)
Subject to this Part and the provisions of any
other Act or law, a stock mortgage may make such provision with respect to the
respective rights, liabilities and obligations of the parties to the mortgage
as the parties may agree from time to time.
13When stock mortgages may be
referred to as wool mortgages
For the purposes of this Act, a stock mortgage
that relates only to wool may be referred to as a wool
mortgage.
14Rights of stock
mortgagee
(1)
If a stock mortgagor refuses or fails to pay the
debt or other pecuniary obligation secured by the stock mortgage in accordance
with the provisions of the mortgage, the stock mortgagee may do any or all of
the following:
(a)
if the mortgage applies to or includes the wool
of stock:
(i)
take possession of the wool wherever it is
located,
(ii)
shear the wool from the
stock,
(iii)
sell or otherwise deal with the
wool,
(iv)
enter the land on which the stock is located for
the purpose of exercising any such power,
(b)
if the mortgage applies to or includes
stock:
(i)
take possession of the stock wherever it is
located,
(ii)
slaughter, sell or otherwise deal with the
stock,
(iii)
enter the land on which the stock is located for
the purpose of exercising any such power.
(2)
Without limiting subsection (1), if the mortgagor
under a stock mortgage over wool (or a subsequent purchaser, bailee or
possessor of, or holder of a security interest over, the sheep bearing the
wool) refuses or fails to shear and deliver the wool of any such stock in
accordance with the provisions of the mortgage:
(a)
the mortgagee may take possession of the stock
for the purpose of shearing the wool from the stock (and may enter the land on
which the stock is located for the purpose of exercising any such power),
and
(b)
all of the following expenses of the mortgagee
are taken to form part of any debt or other pecuniary obligation secured by
the mortgage:
(i)
the expenses associated with taking possession of
the stock,
(ii)
the expenses associated with shearing the
stock,
(iii)
the expenses associated with conveying the wool
to the place specified in the mortgage for the conveyance of the wool or, if
no such place is specified, to the mortgagee’s principal place of
residence (if the mortgagee is an individual) or principal place of business
(in any other case).
(3)
Subsections (1) and (2) have effect subject to
any contrary provision made by a stock mortgage with respect to the rights,
liabilities or obligations of the stock mortgagee.
(4)
Nothing in this section authorises a stock
mortgagee to deal with stock or wool to which a stock mortgage applies in a
manner that would contravene a provision of another Act or an instrument made
under another Act.
Note—
For example, the Stock Diseases
Act 1923 makes provision with respect to dealings with
diseased stock within New South Wales.
Division 3Aquaculture fish
mortgages
15Creation of aquaculture fish
mortgages
(1)
A person may grant a mortgage as provided by this
section (an aquaculture fish mortgage) over any
fish owned by the person that are cultivated or kept for the purposes of
aquaculture by way of security for payment of a debt or other pecuniary
obligation.
Note—
Section 144 of the Fisheries Management Act 1994 prohibits
a person from undertaking aquaculture except under the authority of an
aquaculture permit issued under that Act.
Division 3 of Part 6 of that Act also enables
aquaculture leases to be granted over public water land for the purposes of
aquaculture. Public water land is land submerged by water (whether permanently
or intermittently), being land that is Crown land or vested in certain
trustees or public authorities. An aquaculture lease confers ownership of the
fish specified in the lease on the holder of the lease. However, the lessee
must also hold a permit in order to undertake aquaculture in the waters to
which the lease applies.
(2)
An aquaculture fish mortgage may extend to any or
all of the following:
(a)
fish that are being cultivated or kept on the
land or in the water source concerned during the period of the
mortgage,
(b)
fish that are to be cultivated or kept on the
land or in the water source concerned by the mortgagor during the period of
the mortgage.
(3)
An aquaculture fish mortgage must:
(a)
be in the prescribed form,
and
(b)
be duly executed by the mortgagor,
and
(c)
describe or otherwise identify the fish to which
the mortgage is to apply, and
(d)
describe or otherwise identify the land or water
source on or in which the fish concerned are being, or are to be, cultivated
or kept, and
(e)
specify a period for its duration,
and
(f)
be registered within the period of 45 days after
its execution.
Note—
Division 4 makes provision for the prescribed
form for an aquaculture fish mortgage.
(4)
The fish to which an aquaculture fish mortgage
relates are sufficiently described or identified for the purposes of
subsection (3) if the fish are described or identified:
(a)
by reference to the species of fish,
or
(b)
in another way that reasonably allows the fish to
be identified.
(5)
An aquaculture fish mortgage has effect on and
from the time at which it is registered.
(6)
Subject to this Part and the provisions of any
other Act or law, an aquaculture fish mortgage may make such provision with
respect to the respective rights, liabilities and obligations of the parties
to the mortgage as the parties may agree from time to
time.
16Rights of aquaculture fish
mortgagee
(1)
If an aquaculture fish mortgagor refuses or fails
to pay the debt or other pecuniary obligation secured by the aquaculture fish
mortgage in accordance with the provisions of the mortgage, the aquaculture
fish mortgagee may do any or all of the following:
(a)
take the fish to which the mortgage applies
wherever it is located,
(b)
sell or otherwise deal with the
fish,
(c)
enter the land or water source on or in which the
fish is located for the purpose of exercising any such
power.
(2)
Subsection (1) has effect subject to any contrary
provision made by an aquaculture fish mortgage with respect to the rights,
liabilities or obligations of the aquaculture fish
mortgagee.
(3)
Nothing in this section authorises an aquaculture
fish mortgagee to deal with fish to which an aquaculture fish mortgage applies
in a manner that would contravene a provision of another Act or an instrument
made under another Act.
Note—
For example, the Fisheries
Management Act 1994 makes provision with respect to
dealings with fish within New South Wales and, in particular, in relation to
aquaculture.
Division 4Prescribed forms for
agricultural goods mortgages
17Prescribed
forms
(1)Crop
mortgages
A crop mortgage is in the prescribed form for the
purposes of this Act if the instrument by which the mortgage is
granted:
(a)
is in or to the effect of the Form set out in
Schedule 1, or
(b)
is not in or to the effect of that Form, but
includes provisions that specify or describe at least each of the following
matters:
(i)
that it is a crop mortgage granted under this
Act,
(ii)
the name and address of each
mortgagor,
(iii)
the name of each mortgagee,
(iv)
the crops to which the mortgage relates or will
relate,
(v)
the land on which the crops are growing or will
grow,
(vi)
the debt or other pecuniary obligations secured
by the mortgage,
(vii)
the period for the duration of the
mortgage.
(2)Stock
mortgages
A stock mortgage is in the prescribed form for
the purposes of this Act if the instrument by which the mortgage is
granted:
(a)
is in or to the effect of the Form set out in
Schedule 2, or
(b)
is not in or to the effect of that Form, but
includes provisions that specify or describe at least each of the following
matters:
(i)
that it is a stock mortgage granted under this
Act,
(ii)
the name and address of each
mortgagor,
(iii)
the name of each mortgagee,
(iv)
the stock or wool (or both) to which the mortgage
relates or will relate,
(v)
the land on which the stock concerned is kept or
is to be kept,
(vi)
the debt or other pecuniary obligations secured
by the mortgage,
(vii)
the period for the duration of the
mortgage.
(3)Aquaculture fish
mortgages
An aquaculture fish mortgage is in the prescribed
form for the purposes of this Act if the instrument by which the mortgage is
granted:
(a)
is in or to the effect of the Form set out in
Schedule 3, or
(b)
is not in or to the effect of that Form, but
includes provisions that specify or describe at least each of the following
matters:
(i)
that it is an aquaculture fish mortgage granted
under this Act,
(ii)
the name and address of each
mortgagor,
(iii)
the name of each mortgagee,
(iv)
the fish to which the mortgage relates or will
relate,
(v)
the land or water source on or in which the fish
are being, or are to be, cultivated or kept,
(vi)
the debt or other pecuniary obligations secured
by the mortgage,
(vii)
the period for the duration of the
mortgage.
Note—
Division 5 of Part 6 of the Conveyancing Act 1919 enables the
Registrar-General to register a memorandum setting out provisions that are
capable of being covenants in an agricultural goods mortgage of a class
specified in the memorandum. Any such covenants may then be included in an
agricultural goods mortgage of that class by reference to the registered
memorandum without the need to set out the covenants in
full.
18Regulations may amend
Schedules 1–3
(1)
The regulations may replace or amend Schedule 1,
2 or 3 (or any combination of them).
(2)
The amendment or repeal of a Form set out in
Schedule 1, 2 or 3 does not:
(a)
confer or impose any additional functions on a
mortgagee or mortgagor under an agricultural goods mortgage that was in force
immediately before the day on which the amendment or repeal takes effect (an
existing
mortgage), or
(b)
remove any function conferred or imposed on a
mortgagee or mortgagor under an existing mortgage, or
(c)
otherwise affect the continued operation of an
existing mortgage.
Division 5Dealings concerning
agricultural goods mortgages
19Agricultural goods mortgage
not affected by certain sales and other matters
(1)
An agricultural goods mortgage is not
extinguished or otherwise prejudicially affected by the death, bankruptcy or
insolvency of the mortgagor.
(2)
An agricultural goods mortgage is not
extinguished or otherwise prejudicially affected by the sale of, or the
creation of a mortgage or other encumbrance over, any of the following:
(a)
the agricultural goods to which the mortgage
relates,
(b)
the land or water source on or in which the
agricultural goods concerned are growing or being cultivated or kept (or will
be growing, cultivated or kept).
(3)
Subsections (1) and (2) have effect subject to
any contrary provision of a law of the Commonwealth.
Note—
The Bankruptcy Act
1966 of the Commonwealth makes special provision to
protect the security interests of secured creditors of bankrupt persons. A
secured creditor is a creditor who holds a mortgage, charge or lien on the
property of the debtor as a security for a debt due. Section 58 (5) of that
Act provides that the vesting of the property of a bankrupt person in the
Official Trustee does not affect the right of a secured creditor to realise or
otherwise deal with the creditor’s security. Also, section 153 (3) of
that Act provides that the discharge of a person from bankruptcy does not
affect the rights of a secured creditor to realise the creditor’s
security. There are some limited exceptions to the protection afforded to
secured creditors. See, for example, section 121 (Transfers to defeat
creditors).
Similar provision is made in the Corporations
Act 2001 of the Commonwealth with respect to the
insolvency of companies. See, for example, section 471C and Subdivision C of
Division 6 of Part 5.6 of that Act.
20Variation of provisions of
agricultural goods mortgages
(1)
The parties to an agricultural goods mortgage may
vary the provisions of the mortgage by:
(a)
an instrument that is duly executed by the
parties to the mortgage, or
(b)
a memorandum of variation endorsed on or annexed
to the original agricultural goods mortgage in accordance with the provisions
of section 91 of the Conveyancing Act
1919.
Note—
Section 91 of the Conveyancing Act
1919 provides that any mortgage may be varied by a
memorandum endorsed on or annexed to the mortgage, and signed by the persons
to be bound by it and attested by one witness. Such a memorandum may be in
terms of certain of the short forms set out in Schedule 5 to that
Act.
(2)
Any such variation does not have effect until the
instrument or memorandum that provides for the variation is
registered.
(3)
Nothing in this section permits the period for
the duration of a crop mortgage to be varied if the variation would result in
the total period for the duration of the mortgage exceeding 5 years commencing
from the time it is first registered.
21Renewals of agricultural goods
mortgages
(1)
An agricultural goods mortgage may provide for
one or more renewals of the mortgage for a further period on the registration
of an instrument of renewal that is duly executed by the parties to the
mortgage.
(2)
Any such renewal does not have effect until the
instrument of renewal is registered.
(3)
The Registrar-General may register an instrument
of renewal.
Note—
Section 202 of the Conveyancing Act 1919 enables the
Governor to make regulations with respect to the following:
(a)
the manner and form of registering instruments in
the General Register of Deeds under that Act or any other Act (including this
Act),
(b)
the fees to be paid for any such
registration.
(4)
An instrument of renewal may be registered even
if it does not disclose any consideration for the
renewal.
(5)
Nothing in this section permits a crop mortgage
to be renewed for a total period commencing from the time it is first
registered that exceeds 5 years.
22Assignment of security
interest created by agricultural goods mortgages
(1)
A mortgagee under an agricultural goods mortgage
may assign the security interest created by the mortgage to another person
by:
(a)
an instrument that is duly executed by the
mortgagee, or
(b)
a memorandum of transfer endorsed on or annexed
to the original agricultural goods mortgage in accordance with the provisions
of section 91 of the Conveyancing Act
1919.
Note—
Section 91 of the Conveyancing Act
1919 provides that any mortgage may be transferred by a
memorandum endorsed on or annexed to the mortgage, and signed by the persons
to be bound by it and attested by one witness. Such a memorandum may be in
terms of certain of the short forms set out in Schedule 5 to that
Act.
(2)
Any such assignment does not have effect until
the instrument or memorandum that provides for the assignment is
registered.
23Discharge of agricultural
goods mortgage
(1)
An agricultural goods mortgage is discharged on
the registration of:
(a)
a receipt for the payment of all of the debt or
other pecuniary obligation secured by the mortgage that is duly executed by
the mortgagee, or
(b)
a memorandum of discharge endorsed on or annexed
to the original agricultural goods mortgage in accordance with the provisions
of section 91 of the Conveyancing Act
1919.
Note—
Section 91 of the Conveyancing Act
1919 provides that any mortgage may be discharged by a
memorandum endorsed on or annexed to the mortgage, and signed by the persons
to be bound by it and attested by one witness. Such a memorandum may be in
terms of certain of the short forms set out in Schedule 5 to that
Act.
(2)
Without limiting subsection (1), any property
interest of the mortgagee under the agricultural goods mortgage reverts to the
mortgagor when the mortgage is discharged.
(3)
However, the discharge of an agricultural goods
mortgage does not affect the validity of any lawful sale or other disposition
of, or dealing with, agricultural goods under the mortgage before the
discharge.
Part 3Registration of security
interests in goods
Division 1General
24Meaning of “registrable
security instrument”
For the purposes of this Act, a security
instrument is a registrable security instrument
if:
(a)
the instrument states the name and address of
each grantor and the name of the holder of the security interest concerned,
and
(b)
the instrument includes a description of the
goods to which the security interest relates to the extent to which the goods
are ascertainable at the time of the execution of the instrument,
and
(c)
the instrument has been duly executed by each
grantor, and
(d)
in the case of an agricultural goods
mortgage—the instrument otherwise complies with the requirements of Part
2.
s 24: Am 2006 No 58,
Sch 1.30.
25Registration to be in General
Register of Deeds
(1)
An instrument is registered for the purposes of this
Act if it is recorded in the General Register of Deeds kept under Division 1
of Part 23 of the Conveyancing Act
1919 in accordance with the provisions of that
Act.
Note—
Section 202 of the Conveyancing Act 1919 enables the
Governor to make regulations with respect to the following:
(a)
the manner and form of registering instruments in
the General Register of Deeds under that Act or any other Act (including this
Act),
(b)
the fees to be paid for any such
registration.
(2)
Registration of an instrument takes effect on and
from the time when a distinctive reference is first allocated for the
instrument under section 184E of the Conveyancing Act
1919.
Division 2Registration of registrable
security instruments
26Registration of registrable
security instruments
The Registrar-General may register a security
instrument if satisfied that the instrument is a registrable security
instrument.
Division 3Dealings with registered
security interests
27Variation of registered
security interests
The Registrar-General may register:
(a)
an instrument that is duly executed by the
parties to a registered security instrument, or
(b)
a memorandum endorsed on or annexed to a
registered security instrument in accordance with the provisions of section 91
of the Conveyancing Act
1919,
if the Registrar-General is satisfied that it varies the
terms of the security instrument.
28Assignment of registered
security interests
(1)
The Registrar-General may register:
(a)
an instrument that is duly executed by each
relevant party to the registered security instrument concerned,
or
(b)
a memorandum endorsed on or annexed to a
registered security instrument in accordance with the provisions of section 91
of the Conveyancing Act
1919,
if the Registrar-General is satisfied that it assigns
the registered security interest to another person.
(2)
For the purposes of subsection (1), a party to a
registered security instrument is a relevant party for the purposes of the
assignment of the registered security interest reserved, created or arising
under the instrument if the instrument of assignment must be executed by that
party for it to have effect in law.
29Devolution of registered
security interests
(1)
The Registrar-General may register an instrument
if satisfied that the instrument effects or evidences the devolution of a
registered security interest.
(2)
In this section:
devolution of a registered security
interest means the passing of the interest from a deceased grantor or holder
of the interest to a living heir of the grantor or
holder.
30Discharge of registered
security interests
The Registrar-General may register:
(a)
an instrument that is duly executed by the
parties to a registered security instrument, or
(b)
a memorandum endorsed on or annexed to a
registered security instrument in accordance with the provisions of section 91
of the Conveyancing Act
1919, or
(c)
a receipt of the kind referred to in section 23
(1) (a) given in relation to an agricultural goods
mortgage,
if the Registrar-General is satisfied that it partially
or fully discharges the registered security interest.
Division 4Effect of registration on
priority of security interests
31Priority of security
interests
(1)
A registered security interest in goods ranks in
priority over any unregistered security interest in the same goods with
respect to all debts and other pecuniary obligations (including contingent
obligations) and all other obligations secured under the registered security
interest.
(2)
Registered security interests in the same goods
rank in priority in the order in which they are registered with respect to all
debts and other pecuniary obligations (including contingent obligations) and
all other obligations respectively secured under them whenever
arising.
(3)
However, an unregistered security interest in
goods ranks in priority over a registered security interest in the same goods
if the holder of the unregistered security interest takes possession of goods
before the registered security interest is registered.
(4)
The order of priority of security interests
established by this section is subject to any agreement between the holders of
the security interests concerned.
(5)
This section has effect subject to section 11
(Effect of crop mortgages on sharefarming agreements).
Part 4Miscellaneous
32Offences in relation to
agricultural goods mortgages
(1)
A mortgagor under an agricultural goods mortgage
(or an employee, contractor or agent of the mortgagor) must not, without
reasonable excuse:
(a)
destroy, sell or otherwise dispose of any
agricultural goods to which the mortgage relates without the written consent
of the mortgagee, or
(b)
do any other act or thing that defeats, destroys
or prejudices (or that is calculated to defeat, destroy or prejudice) the
security interest created by the mortgage.
Maximum penalty: 100 penalty units or
imprisonment for 2 years (or both).
(2)
For the purposes of subsection (1) (but without
limiting that subsection), reasonable excuse includes doing an
act or thing that the person is required to do under a provision of another
Act or an instrument made under another Act.
33Offences by
corporations
(1)
If a corporation contravenes, whether by act or
omission, any provision of this Act or the regulations, each person who is a
director of the corporation or who is concerned in the management of the
corporation is taken to have contravened the same provision if the person
knowingly authorised or permitted the contravention.
(2)
A person may be proceeded against and convicted
under a provision pursuant to subsection (1) whether or not the corporation
has been proceeded against or has been convicted under the
provision.
(3)
Nothing in this section affects any liability
imposed on a corporation for an offence committed by the corporation under
this Act or the regulations.
34Nature of proceedings for
offences
Proceedings for an offence under this Act or the
regulations may be dealt with summarily before a Local
Court.
35Regulations
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
36Repeal of certain Acts and
Regulations
The following Acts and Regulations are
repealed:
(a)
the Bills of Sale Act
1898,
(b)
the Liens on Crops
and Wool and Stock Mortgages Act 1898,
(c)
any regulation made under an Act referred to in
paragraph (a) or (b).
37Savings, transitional and
other provisions
Schedule 4 has effect.
38
s 38: Rep 2006 No 58,
Sch 4.
39Review of
Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the date of assent to this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
Schedule 1Form for crop
mortgage
(Section 17 (1))
Crop
mortgage
I, [state name of mortgagor] of [state
address of mortgagor], (the Mortgagor) grant a mortgage as
provided by the Security Interests in Goods Act
2005 in respect of the crops described in the Schedule in
favour of [state name of mortgagee] of [state address of
mortgagee] (the Mortgagee).
This mortgage is granted as security for the
payment by the Mortgagor of the following:
1
[state debt or other pecuniary obligations for
which mortgage granted]
2
*The provisions set out in the memorandum of
covenants, registered in the General Register of Deeds as number [specify
number of memorandum], are included as part of this mortgage subject to
the following:
(a)
*[specify any alterations to or omissions from
provisions]
(b)
*Note—
Division 5 of Part 6 of the Conveyancing Act 1919 enables the
Registrar-General to register a memorandum setting out provisions that are
capable of being covenants in an agricultural goods mortgage of a class
specified in the memorandum. Any such covenants may then be included in an
agricultural goods mortgage of that class by reference to the registered
memorandum without the need to set out the covenants in
full.
This mortgage has effect for the period specified
in the Schedule commencing from the date of its registration.
Note—
Part 2 of the Security
Interests in Goods Act 2005 makes provision for the rights and
obligations of mortgagors and mortgagees under a crop mortgage granted under
that Act.
Schedule
1Crop to which mortgage
relates
[describe crops to which mortgage relates or
will relate]
2Land to which mortgage
relates
[describe land on which the crops to which
mortgage relates are growing or are to grow]
3Duration of the
mortgage
[specify period for duration of the mortgage,
including any renewal rights]
[*Cross out the options that you do not
want]
Schedule 2Form for stock mortgage or
wool mortgage
(Section 17 (2))
*Stock mortgage/*Wool
mortgage
I, [state name of mortgagor] of [state
address of mortgagor], (the Mortgagor) grant a mortgage as
provided by the Security Interests in Goods Act
2005 in respect of the *stock/*wool/*stock and wool
described in the Schedule in favour of [state name of mortgagee] of
[state address of mortgagee] (the Mortgagee).
This mortgage is granted as security for the
payment by the Mortgagor of the following:
1
[state debt or other pecuniary obligations for
which mortgage granted]
2
*The provisions set out in the memorandum of
covenants, registered in the General Register of Deeds as number [specify
number of memorandum], are included as part of this mortgage subject to
the following:
(a)
*[specify any alterations to or omissions from
provisions]
(b)
*Note—
Division 5 of Part 6 of the Conveyancing Act 1919 enables the
Registrar-General to register a memorandum setting out provisions that are
capable of being covenants in an agricultural goods mortgage of a class
specified in the memorandum. Any such covenants may then be included in an
agricultural goods mortgage of that class by reference to the registered
memorandum without the need to set out the covenants in
full.
This mortgage has effect for the period specified
in the Schedule commencing from the date of its registration.
Note—
Part 2 of the Security
Interests in Goods Act 2005 makes provision for the rights and
obligations of mortgagors and mortgagees under a *stock mortgage/*wool
mortgage granted under that Act.
*This mortgage *extends/*does not extend to
[state any limitations on or extensions on the provisions of section 12 (5)
or (6) of theSecurity Interests in Goods Act
2005].
Schedule
1*Stock and wool/*stock/*wool
to which mortgage relates
[describe stock and/or wool to which mortgage
relates or will relate]
2Land on which stock concerned
to be kept
[describe land on which stock concerned are
being kept or are to be kept]
3Duration of the
mortgage
[specify period for duration of the mortgage,
including any renewal rights]
[*Cross out the options that you do not
want]
Schedule 3Form for aquaculture fish
mortgage
(Section 17 (3))
Aquaculture fish
mortgage
I, [state name of mortgagor] of [state
address of mortgagor], (the Mortgagor) grant a mortgage as
provided by the Security Interests in Goods Act
2005 in respect of the fish described in the Schedule in
favour of [state name of mortgagee] of [state address of
mortgagee] (the Mortgagee).
This mortgage is granted as security for the
payment by the Mortgagor of the following:
1
[state debt or other pecuniary obligations for
which mortgage granted]
2
*The provisions set out in the memorandum of
covenants, registered in the General Register of Deeds as number [specify
number of memorandum], are included as part of this mortgage subject to
the following:
(a)
*[specify any alterations to or omissions from
provisions]
(b)
*Note—
Division 5 of Part 6 of the Conveyancing Act 1919 enables the
Registrar-General to register a memorandum setting out provisions that are
capable of being covenants in an agricultural goods mortgage of a class
specified in the memorandum. Any such covenants may then be included in an
agricultural goods mortgage of that class by reference to the registered
memorandum without the need to set out the covenants in
full.
This mortgage has effect for the period specified
in the Schedule commencing from the date of its registration.
Note—
Part 2 of the Security
Interests in Goods Act 2005 makes provision for the rights and
obligations of mortgagors and mortgagees under an aquaculture fish mortgage
granted under that Act.
Schedule
1Fish to which mortgage
relates
[describe fish to which mortgage relates or
will relate]
2Land or water source to which
mortgage relates
[describe land or water source on or in which
fish to which mortgage relates are being cultivated or are to be
cultivated]
3Duration of the
mortgage
[specify period for duration of the mortgage,
including any renewal rights]
[*Cross out the options that you do not
want]
Schedule 4Savings, transitional and
other provisions
(Section 37)
Part 1General
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of the following
Acts:
this Act
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
(4)
Regulations made as referred to in subclause (1)
may have effect despite the terms of any savings or transitional provisions
contained in this Schedule, if the regulations so
provide.
Part 2Provisions consequent on
enactment of this Act
2Definitions
In this Part:
repeal
date, in relation to legislation or a provision of
legislation, means the day on which the legislation or provision is repealed
by this Act.
repealed
bills legislation means the following legislation as in
force immediately before its repeal or amendment by this Act:
(a)
the Bills of Sale Act
1898 and the regulations made under that
Act,
(b)
the Conveyancing Act
1919 and the regulations made under that Act in their
application to matters arising under the Bills of Sale Act
1898.
repealed
liens legislation means the following legislation as in
force immediately before its repeal or amendment by this Act:
(a)
the Liens on Crops
and Wool and Stock Mortgages Act 1898 and the regulations
made under that Act,
(b)
the Conveyancing Act
1919 and the regulations made under that Act in their
application to matters arising under the Liens on Crops
and Wool and Stock Mortgages Act
1898.
3Continued application of
repealed bills legislation
The repealed bills legislation continues to apply
to a bill of sale or trader’s bill of sale within the meaning of the
Bills of Sale Act 1898 as if the
provisions of this Act (other than this Part) had not been enacted if:
(a)
the bill of sale was executed, or purportedly
executed, before the repeal date of the Bills of Sale Act
1898, and
(b)
the bill of sale was an instrument to which the
Bills of Sale Act 1898 would have
applied but for its repeal.
4Continued application of
repealed liens legislation
The repealed liens legislation continues to apply
to the following as if the provisions of this Act (other than this Part) had
not been enacted:
(a)
a lien over crops executed, or purportedly
executed, before the repeal date of the Liens on Crops
and Wool and Stock Mortgages Act 1898 and to which that
Act would have applied but for its repeal,
(b)
a lien over wool executed, or purportedly
executed, before the repeal date of the Liens on Crops
and Wool and Stock Mortgages Act 1898 and to which that
Act would have applied but for its repeal,
(c)
a mortgage over stock executed, or purportedly
executed, before the repeal date of the Liens on Crops
and Wool and Stock Mortgages Act 1898 and to which that
Act would have applied but for its repeal.
Schedule 5
sch 5: Am 2005 No 98,
Sch 2.52. Rep 2006 No 58, Sch 4.
Historical
notes
Table of amending
instruments
Security
Interests in Goods Act 2005 No 69. Second reading speech
made: Legislative Assembly, 15.9.2005; Legislative Council, 11.10.2005.
Assented to 19.10.2005. Date of commencement, 1.3.2006, sec 2 and GG No 13 of
27.1.2006, p 483. This Act has been amended as follows:
2005
No
98
Statute Law
(Miscellaneous Provisions) Act (No 2) 2005. Assented to
24.11.2005.
Date of commencement of Sch 2.52, immediately before the
commencement of Sch 5.3 to the Security
Interests in Goods Act 2005 (Sch 5.3 commenced on
1.3.2006), Sch 2.52 and GG No 13 of 27.1.2006, p
483.
2006
No
58
Statute Law
(Miscellaneous Provisions) Act 2006. Assented to
20.6.2006.
Date of commencement of Sch 1.30, assent, sec 2 (2);
date of commencement of Sch 4, assent, sec 2 (1).
Table of
amendments
Sec
24
Am 2006 No
58, Sch 1.30.
Sec
38
Rep 2006 No
58, Sch 4.
Sch
5
Am 2005 No
98, Sch 2.52. Rep 2006 No 58, Sch 4.