Interlaw Ltd., an Elite* global law firm network, is delighted
to present this survey of how practices differ across the world
when a lender takes security or collateral over moveable property.
Terminology can be an issue here - some talk of
"security", others of "collateral" or
"charge"; some call the assets in question
"moveable", others talk of "personal property";
and that's before we bring other languages into consideration.
By whatever name called, we're considering taking security for
finance over such things as vehicles, plant and equipment,
receivables, contractual rights - in other words both tangibles and
intangibles, but generally not land and buildings.
With the globalisation of commerce and finance, it is of vital
importance to lenders and other financiers to understand that the
opportunities for taking collateral in their home jurisdictions may
not exist in other jurisdictions or indeed that they may be greater
in other jurisdictions. While no one can be an expert in all
jurisdictions, it will be helpful to have some advance feel for
what might be on offer elsewhere.
This survey has been prepared by Interlaw Member law firms that
participate in the network's Banking and Finance Special
Business Team. It is written in in layman's terms for
the finance professional.
We start with some teaser questions - " Lenders Beware -
Did you Know?" - highlights of what seems normal in one
jurisdiction but which may cause consternation in another.
In some jurisdictions, for example, a lender can take a floating
charge, valid as a security over all a debtor's assets from
time to time without the need to specify those assets individually.
Other jurisdictions would regard that as anathema. The Interlaw
member firms can guide you through this labyrinth wherever you are
or your debtor's assets are.
Five questions are then answered for each jurisdiction:
How do you secure moveables (also known as personal property,
moveable assets or collateral) both tangible and intangible in your
What, generally, is the priority of different types of security
available for these types of assets?
What taxes, duties or other fees are payable on these
What, generally, is the method of enforcement of these
What other issues should be considered when looking at securing
We hope you find this useful as a quick reference guide. But it
is only a guide. Nothing in what follows should be relied on as
legal advice; it is not intended as such. However, each
contributing firm would be delighted to hear from you and expand on
the simplified summaries given in this survey.
These are the top five issues that should be considered by asset-based lenders in the context of Australian transactions.
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