THE CORPORATIONS LAW

CHAPTER 2K - CHARGES

PART 2K.2 - REGISTRATION

SECTION 262   CHARGES REQUIRED TO BE REGISTERED  

262(1)  (Charges to be registered)  

Subject to this section, the provisions of this Chapter relating to the giving of notice in relation to, the registration of, and the priorities of, charges apply in relation to the following charges (whether legal or equitable) on property of a company and do not apply in relation to any other charges:

(a)  a floating charge on the whole or a part of the property, business or undertaking of the company;

(b)  a charge on uncalled share capital;

(c)  a charge on a call on shares made but not paid;

(d)  a charge on a personal chattel, including a personal chattel that is unascertained or is to be acquired in the future, but not including a ship registered in an official register kept under an Australian law relating to title to ships;

(e)  a charge on goodwill, on a patent or licence under a patent, on a trade mark or service mark or a licence to use a trade mark or service mark, on a copyright or a licence under a copyright or on a registered design or a licence to use a registered design;

(f)  a charge on a book debt;

(g)  a charge on a marketable security, not being:

(i) a charge created in whole or in part by the deposit of a document of title to the marketable security; or

(ii) a mortgage under which the marketable security is registered in the name of the chargee or a person nominated by the chargee;

(h)  a lien or charge on a crop, a lien or charge on wool or a stock mortgage;

(j)  a charge on a negotiable instrument other than a marketable security.

262(2)  (Charges etc not requiring registration)  

The provisions of this Chapter mentioned in subsection (1) do not apply in relation to:

(a)  a charge, or a lien over property, arising by operation of law;

(b)  a pledge of a personal chattel or of a marketable security;

(c)  a charge created in relation to a negotiable instrument or a document of title to goods, being a charge by way of pledge, deposit, letter of hypothecation or trust receipt;

(d)  a transfer of goods in the ordinary course of the practice of any profession or the carrying on of any trade or business; or

(e)  a dealing, in the ordinary course of the practice of any profession or the carrying on of any trade or business, in respect of goods outside Australia.

262(3)  (Charges on personal chattels)  

The reference in paragraph (1)(d) to a charge on a personal chattel is a reference to a charge on any article capable of complete transfer by delivery, whether at the time of the creation of the charge or at some later time, and includes a reference to a charge on a fixture or a growing crop that is charged separately from the land to which it is affixed or on which it is growing, but does not include a reference to a charge on:

(a)  a document evidencing title to land;

(b)  a chattel interest in land;

(c)  a marketable security;

(d)  a document evidencing a thing in action; or

(e)  stock or produce on a farm or land that by virtue of a covenant or agreement ought not to be removed from the farm or land where the stock or produce is at the time of the creation of the charge.

262(4)  [Charges on book debts]  

The reference in paragraph (1)(f) to a charge on a book debt is a reference to a charge on a debt due or to become due to the company at some future time on account of or in connection with a profession, trade or business carried on by the company, whether entered in a book or not, and includes a reference to a charge on a future debt of the same nature although not incurred or owing at the time of the creation of the charge, but does not include a reference to a charge on a marketable security, on a negotiable instrument or on a debt owing in respect of a mortgage, charge or lease of land.

262(5)  [Liens or charges on crops or wool; stock mortgages]  

The reference in paragraph (1)(h) to a lien or charge on a crop, a lien or charge on wool or a stock mortgage includes a reference to a security (however described) that is registrable under a prescribed law of a State or Territory.

262(6)  [Deemed deposit of document of title]  

For the purposes of this section, a company shall be deemed to have deposited a document of title to property with another person (in this subsection referred to as the ``chargee'') in a case where the document of title is not in the possession of the company if:

(a)  the person who holds the document of title acknowledges in writing that the person holds the document of title on behalf of the chargee; or

(b)  a government, an authority or a body corporate that proposes to issue a document of title in relation to the property agrees, in writing, to deliver the document of title, when issued, to the chargee.

262(7)  [Charges over various kinds of property]  

For the purposes of this section, a charge shall be taken to be a charge on property of a kind to which a particular paragraph of subsection (1) applies even though the instrument of charge also charges other property of the company including other property that is of a kind to which none of the paragraphs of that subsection applies.

262(8)  [Charges on land]  

The provisions of this Chapter mentioned in subsection (1) do not apply in relation to a charge on land.

262(9)  [Charges on fixtures]  

The provisions of this Chapter mentioned in subsection (1) do not apply in relation to a charge on fixtures given by a charge on the land to which they are affixed.

262(10)  [Charges created by trustees, legal personal representatives]  

The provisions of this Chapter mentioned in subsection (1) do not apply in relation to a charge created by a company in its capacity as legal personal representative of a deceased person or as trustee of the estate of a deceased person.

262(11)  [Effect of non-lodgment on validity]  

A charge on property of a company is not invalid merely because of the failure to lodge with the Commission, or give to the company or another person, a notice or other document that is required by this Part to be so lodged or given.