Notes on Security Over Personal Property

Prospectus X: SECURITY OVER PERSONAL PROPERTY Table of Contents 1. introduction4 1. 1The structure of security4 1. 2Reasons for taking security4 Saloman v A Saloman and Co [1897] AC 22, per Lord Macnaghten4 Re Lind [1915] 2 Ch 3454 1. 3What occurs during bankruptcy? 5 1. 3. 1Cases on PP Rule AD Rule6 Re Jeavons, ex p Mackay (1873) LR 8 Ch App 6436 *British Eagle v Cie Nationale Air France [1975] HL6 International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 37 Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd [2011] UKSC 387 2. Structure versus Substance *8 . 1Artificial transactions8 Re George Inglefield Ltd [1933] Ch 18 Re Curtain Dream Plc [1990] BCC 3419 Welsh Development Agency v Exfinco [1990] BCC 3939 Thai Chee Ken v Banque Paribas [1993] SGCA10 2. 2American legitimate authenticity and Article 910 3. Home loans and Charges10 3. 1Mortgages over close to home property10 Pacrim Investments Pte Ltd v Tan Mui Keow [2005] 1 SLR(R) 14110 3. 2Clogs on the value of redemption11 3. 2. 1Length of mtgage11 Knightsbridge Estates Ltd v Byrne [1939] Ch 441 (ECA)11 Fiscal Consultants Pte Ltd v Asia Commercial Finance Ltd (1981)11 3. 2. 2Collateral advantages11 Samuel v Jarrah Timber12 *Kreglinger v New Patagonia Meat (HL)12 * Citicorp Investment Bank (Singapore) Ltd v Wee Ah Kee [’97 SGCA]12 3. 3Identifying a charge13 3. 3. 1Charge versus Mtgage13 **Swiss Bank Corporation v Lloyds Bank [1982] AC 58413 3. 3. 2Right to take ownership =/= charge14 *Re Cosslett (Contractors) Ltd [1998] Ch 49514 3. 3. 3Charge must contain positive undertaking14 Flightline Ltd v Edwards [2003] CA14 3. 3. 4Direction to pay out of store =/= charge14 *Palmer v Carey [1926] AC 703 (PC from Aus)14 3. 3. 5Equitable set-off versus charge15 3. 4Capturing future assets15 *Tailby v Official Receiver (1888) 13 App Cas 523 Lord Macnaughten16 3. 5Charge-backs16 3. 6Trust Receipts distinguished16 3. 6. 1How it works16 3. 6. 2Deemed proceeding pledge16 3. 6 . 3Deemed trust? 17 *United Malayan Banking Corp Bhd v Lim Kang Seng [1994] SGHC17 3. 6. 4How is continues shared btw Bank and B? 17 4. Fixed and Floating Charges18 4. 1Definition of a gliding charge18 Illingworth v Houldsworth [1904] HL (Lord Macnaghten)18 *Re Yorkshire Woolcombers Association Ltd [1904]:18 *Dresdner Bank v Ho Mun-Tuke [’92, SGCA]19 4. 2â€Å"Dealing in the common course of business† (OCOB)19Re Borax [1901] 1 Ch 32719 Ashborder BV v Green Gas Power Ltd [2004] EWHC 151719 4. 3Crystallisation of skimming charges19 Re Brightlife [1987] Ch 20020 Re Woodroffes (Musical Instruments) Ltd [1986] Ch 36620 4. 3. 1Apparent agency20 4. 3. 2S 226(1A): a sparkle to the programmed/self-loader battle20 4. 4Distinguishing fixed and gliding charges20 4. 5The bankruptcy battleground21 *Agnew v Commissioner of Inland Revenue [2001] 2 AC 71021 *Re Spectrum Plus Ltd [2005] 2 AC 68021 4. 5. 1Expenses of liquidator21 Buchler v Talbot [2004] AC 298 (HL)21 5. Semi Security: Ti tle-based Devices22 5. Reservation of title (‘Romalpa clauses’)22 Re Bond Worth Ltd [1980] Ch 22822 *Aluminiuim Industrie Vassen BV v Romalpa Aluminum Ltd [1976] 1 WLR 67622 5. 1. 1New merchandise clauses23 Clough Mill Ltd v Martin [1985] 1 WLR 11123 *Borden (UK) Ltd v Scottish Forest Timber Products Ltd [1981] Ch 2523 Re Bond Worth Ltd [1980] Ch 22823 5. 1. 2Money continues clauses23 *E Pfeiffer Weinkellerei Weinenkauf GmbH v Arbuthnot Factors Ltd [1988] 1 WLR 15023 Associated Alloys Pty Ltd v CAN 001 452 106 Pty Ltd [2000] HCA 2524 5. 2Hire purchase24 5. 3Discounting receivables24 6. enrollment of charges25 6. Registrable charges25 6. 1. 1S 131 registration25 6. 1. 2When is a charge made? 26 6. 2Effect of enrollment and non-registration26 6. 2. 1No helpful knowledge26 Re Monolithic Co [1915] 1 Ch 64326 6. 2. 2Conclusive evidence26 6. 3Late Registration26 7. Need Rules27 7. 1Rules in general27 Joseph v Lyons (1884)27 Cheah v Equiticorp Finance Group Ltd [1992] 1 AC 472 27 7. 2Constructive notice27 Wilson v Kelland [1910] 2 Ch 30627 *Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1995] 1 WLR 978, 999-100528 7. 3Purchase cash (security) interests28 7. 4Tacking future advances29West v Williams [1899]29 7. 5Circularity30 8. Remedies30 8. 1General30 8. 1. 1What cures does Chgee have? 30 8. 1. 2How much notification must leaser give? 30 8. 1. 3Duty of care in picking receiver30 Gaskell v Gosling [1896] (Rigby LJ)30 8. 2Receivership31 Re Newdigate Colliery [1912]31 Airlines Airspares v Handley Page [1970] 1 Ch 19331 Medforth v. Blake [1999] 2 BCLC 221; [1999] 3 All ER 97 (CA)31 8. 3Judicial management31 8. 3. 1What occurs in the JM procedure? 32 Bristol Airport Plc v Powdrill [1990] Ch 74432 Electro Magnetic (S) Co v Development Bank of Singapore Ltd [1994] 1 SLR(R) 57432 . 3. 2Disposal forces of JM32 9. Bankruptcy clawback33 9. 1Unfair preferences33 Re M C Bacon Ltd [1990] BCC 7833 9. 2Undervalue transactions33 Hill v Spread Trustee Co Ltd [20 06] BCC 64634 9. 3Floating charges close insolvency34 Power v Sharp Investments [1993] BCC 60934 Re Yeovil Glove Company [1965] 1 Ch 14834 10. Change? 34 Focus obviously: * Non-possessory security: esp Mtgages and Charges * Title-based security| presentation The structure of security (see mindmap) Reasons for taking security * Main explanation: need over other unbound banks (U/Cs) *During indebtedness * Obvious favorable position * Also, a self improvement cure * Outside bankruptcy * Borrower (B) has increasingly impetus to reimburse * one might say, Secured Creditor (SC) is the best; however note that Parliament has mediated with a class of â€Å"Preferential Creditors† (P/C) Saloman v A Saloman and Co [1897] AC 22, per Lord Macnaghten * Salomon ran an organization to such an extent that there were a few U/Cs yet Salomon himself was the main S/C * HELD: Salomon’s security was legitimate, even it was totally shocking that the made sure about lender could clear aside al l cases of the company’s different leasers. Case shows that loan boss and borrower completely allowed to contract in any capacity they need. * Only exemption is in the event that they force stops up on the value of reclamation. * (Note: After this, Parliament made an uncommon classification of P/Cs) Re Lind [1915] 2 Ch 345| Facts| * Case concerned undeveloped security †present security over future resources * Son conceded leasers security over the reversionary enthusiasm for his mother’s bequest (which just emerges after mum’s demise) * Son became bankrupt †Mother bites the dust †Son released from chapter 11 | HELD| Security joins from the date of the security course of action (ie. hen S originally gave the security)| Reasoning| * When prop appears (ie. at the point when mother passed on) it is caught by the security, yet dated right back to when S previously gave security. * This is so despite the fact that prop fall in after liquidation! Prop is out of the hands of the trustee in insolvency. * S/Cs had need over other unbound banks. * Goode utilizes similarity of new brought into the world having the option to sue for wounds continued during birth. | Bankruptcy Act ss 76, 78 Companies Act s 269 Assets under security don't vest in outlet/OA (s 76(3) BA) * If a partnership has ALL benefits are secured by security, the vendor is weak and needs to sit by the sidelines until the made sure about loan boss, regularly representing a recipient, does the way toward dealing with the organization and managing the advantages in order to amplify resources for be repaid. What occurs during bankruptcy? * You can't exactly acknowledge security until you realize what befalls property in the indebtedness procedure: 1. Applicable event† happens †eg. goals to wrap up/request to court is passed 2. Trustee in chapter 11/outlet selected 3. No one (no official of the organization or individual) may discard the advantages without the ass ent of the trustee or vendor * Prior to indebtedness, regardless of whether individual is going to be bankrupt, resources are at free removal of Co/individual. * But 2 exemptions: (I) Insolvency clawback * certain pre-indebtedness dealings can be turned around. (ii) Anti-hardship rule (AD Rule) * custom-based law rule of open arrangement (starts in com-law; not found in indebtedness enactment) * If an instrument looks to move prop out or just produce results upon an individual’s chapter 11, it is commonly void. (see Syl 3) * One disparaged differentiation: * the award for a constrained period which lapses upon indebtedness = legitimate * the relinquishment of a full enthusiasm upon bankruptcy = invalid * Hard to perceive any reason why they are dealt with diff when impact is same. * Anti-hardship rule not equivalent to pari pasu rule (PP Rule) (as held in Belmont Park) * The pari pasu rule of conveyance is expressed in s. 00 of the organizations demonstration expresses that s ubject to the case of the particular leasers, the benefits of the wiped out individual are to be appropriated in the pari pasu or rateable. This is an enactment that can't be formed by the court. Cases on PP Rule AD Rule Re Jeavons, ex p Mackay (1873) LR 8 Ch App 643 * Facts: * J sold one B a patent for improving protection plates produce. * consequently B would pay J eminences of 15s per ton of plates delivered. * B likewise loaned J ? 12,500, and concurred that a large portion of J’s' eminences would go to taking care of that credit. It was additionally concurred that if J went wiped out, or made a course of action with lenders, B could keep all the sovereignties to fulfill the obligation * Held: The second piece of understanding incapable; Brown had a lien on one portion of the eminences just * Clear-cut penetrate of pari pasu and AD Rule both. *British Eagle v Cie Nationale Air France [1975] HL| Facts| * The case concerned the activity of IATA, a clearing house for carrie rs. Under the IATA course of action, ‘debts’ owed between individuals were not payable, yet were gotten off in the clearing framework; just the equalization was payable to or by IATA. English Eagle was owed a specific total via Air France; however at the general leve, BE was a Net Debtor Airline. * Following a wrapping up appeal, British Eagle