PERSONAL PROPERTY SECURITIES ACT 2017 (ACT NO. 45 OF

395

PERSONAL PROPERTY SECURITIES ACT 2017

(ACT NO. 45 OF 2017)

_________

SECTIONS

PART 1—PRELIMINARY

1. Short title and commencement

2. Interpretation

3. Meaning of “possession” in certain cases

4. Meaning of “knowledge”

5. Description of collateral in a security agreement or notice

 6. Classicationofgoods

7. Proceeds traceable

PART 2—APPLICATION OF THE ACT

8. Transactions subject to this Act

9. Transactions not subject to this Act

10. Act to bind the State

PART 3—SECURITY AGREEMENTS, ATTACHMENT OF SECURITY

INTERESTS AND SECURED OBLIGATIONS

11. Effectiveness of security agreement, security interest and stamp duty

12. Attachment of security interest to collateral and proceeds

13. Attachment of obligation to after-acquired property

14. Future advances in a security agreement

PART 4—RIGHTS, DUTIES AND OBLIGATIONS OF THE DEBTOR AND THE

SECURED PARTY

15. Secured party’s duty to preserve collateral

16. Investment property in control of secured party

17. Duties of secured party in control of deposit account

 18. Dutiesofsecuredpartyifaccountdebtorhasbeennotiedofassignmentof

payments

19. Debtor’s request for accounting

20. Acceleration of payment or performance

PART 5—PERFECTION OF SECURITY INTERESTS

21. Perfection of a security interest

22. Perfection by registration of a notice

23. Perfection by taking possession of collateral

24. Perfection by control of deposit accounts and investment property

25. Continuity of perfection

26. Temporary perfection

27. Perfection of security interest in goods held by a bailee

396

28. Perfection of security interest in proceeds

29. Perfection of security interest in goods returned or repossessed

PART 6—PRIORITY OF SECURITY INTERESTS AND RIGHTS OF THIRD

PARTIES

Division 1—General Priority Rules

30. General priority rules

31. Time of priority of security interest in proceeds

32. Priority of an execution creditor

33. Priority in future advances and the interests of transferees of the debtor

34. Agreement to subordinate priority

Division 2—Priority of Purchase Money Security Interests

35. Meaning of “possession” in this Division

36. Status of purchase money security interest

37. General rule on priority of purchase money security interests

38. Priority of purchase money security interests in inventory, livestock and

intangibles

 39. Conictsinvolvingpurchasemoneysecurityinterests

40. Priority of purchase money security interests against execution creditors

Division 3—Buyers and Other Transferees of Collateral

41. When transferee takes collateral free of a security interest

42. Buyer or lessee of consumer goods

43. Buyer or lessee of goods subject to temporarily perfected security interests

44. Buyer or lessee of minerals, petroleum and timber

 45. Buyer,lesseeormortgageeofxtures

46. Priority of materials or services lien

47. Rights of debtor in collateral may be transferred

Division 4—Persons to whom Negotiable Collateral is Transferred

48. Where holder of money takes free of perfected security interest in money

49. Priority of creditor who receives funds subject to a security interest

50. Priority of purchasers of instruments or securities

51. Priority of holders of negotiable documents of title

52. Priority of purchasers of chattel paper

Division 5—Assignments and Other Transfers of Accounts

53. Interpretation for this Division

54. Notice to account debtor

55. Account debtor’s right to assert defences and claims

 56. Modiedorsubstitutedcontractseffectiveagainstassignee

57. Enforceability of non-assignment clauses

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Division 6—Priority in Deposit Accounts and Investment Property

58. Meaning of “control” of a deposit account

59. Priority of security interests in deposit accounts perfected by control

60. Priority of security interests in investment property

Division 7—Priority in Special Classes of Tangible Collateral

 61. Priorityofsecurityinterestsinxtures

 62. Securedparty’srighttoremovextures

 63. Applicationtocourt:xtures

 64. Retentionofxturesbyapersonwithaninterestinrelatedland

65. Priority of security interests in crops

66. Priority of security interests in accessions

67. Priority of security interests in commingled goods

68. Priority of security interests in certain vessels and aircraft

PART 7—REGISTRATION

69. Personal Property Securities Registry

70. Initial notice

71. Notice of the interest of an execution creditor

72. Notice registered prior to security agreement or attachment

73. Notice may apply to multiple agreements

74. Name of the debtor

75. Notice is effective unless seriously misleading

76. Effect of change of circumstances

77. Duration of notice and effect of lapse

78. Amendment of notice

79. Continuation of notice

80. Termination of notice

81. Effectiveness of notice

82. Registrar’s refusal to register a notice

83. Effect of secured party’s notice on other secured parties on the notice

84. Duties of the Registrar

85. Public access to Registry records

86. Notice does not constitute constructive notice

PART 8—ENFORCEMENT OF SECURITY INTERESTS

87. Application of this Part

88. Secured party rights upon default

89. Recovery without judicial process in certain cases

90. Secured party’s right to take possession and dispose of collateral

91. Manner of disposition of collateral

92. Duty to act in a commercially reasonable manner

93. Obligation to give notice of disposition of collateral

398

94. Secured party may purchase collateral at public sale

95. Rights of purchasers of collateral

96. Secured party’s disposition of a licence

97. Applicationofproceedsandsurplusordeciency

98. Secured party’s right to retain collateral

99. Debtor’s right to redeem collateral

100. Debtor’s right to reinstate security agreement

101. Enforcement of a security interest in a mortgage

102. Remedies for secured party non-compliance

103. Mannerofnoticationtodebtors,securedpartiesandotherpersons

PART 9—CONFLICT OF LAWS

104. When the laws of Fiji apply

105. Continuity of perfection where goods are moved to Fiji

106. Location of debtor

107. Validity and perfection of security interests in intangibles and certain goods

108. Position where debtor relocates

109. Priority where there is no public record of a perfected security interest

110. Perfection of security interest in as-extracted collateral

PART 10—MISCELLANEOUS

111. Transitional

112. Offences

113. Regulations

114. Consequential amendments

399

TO REGULATE THE LENDING OF MONEY SECURED

BY PERSONAL PROPERTY AS COLLATERAL

NACTED by the Parliament of the Republic of Fiji—

PART 1—PRELIMINARY

Short title and commencement

1.—(1) This Act may be cited as the Personal Property Securities Act 2017.

(2) This Act comes into force on a date or dates appointed by the Minister by notice

in the Gazette.

Interpretation

2. In this Act, unless the context otherwise requires—

“accession”meansgoodsthatareinstalledinorafxedtoothergoodsinsucha

manner that the identity of the goods is not lost;

“account debtor” means a person who is obligated under an account receivable,

secured sales contract, intangible or chattel paper;

ACT NO. 45 OF 2017

I assent.

J. K. KONROTE

President

[18 September 2017]

AN ACT

400 Personal Property Securities—45 of 2017

“account receivable” means a monetary obligation, whether or not earned by

performance, that is not evidenced by chattel paper or an instrument,

but does not include a deposit account, letters of credit or an investment

property;

“advance” means the payment of money, the provision of credit or the giving

of value, and includes any liability of the debtor to pay interest, credit

costs and other charges or costs payable by the debtor in connection with

an advance or the enforcement of a security interest securing the advance;

“after-acquired property” means property acquired after the time that a security

agreement is concluded that covers the property;

“as-extracted collateral” means—

(a) minerals and petroleum that are subject to a security interest that is

created by a debtor having an interest in the minerals or petroleum

before extraction, and that attaches to the minerals and petroleum as

they are extracted; and

(b) payment obligations arising out of the sale at the minehead or

wellhead of minerals or petroleum in which the debtor had an interest

before extraction;

“attachment” means completion of all conditions necessary under section 12

of this Act to make a security interest enforceable against the debtor with

respect to the collateral;

“building” means a structure, erection, mine or work that is built or constructed

on or opened in land;

“building materials” means materials that are incorporated into a building, and

includes goods attached to a building so that their removal—

(a) would necessarily involve the dislocation or destruction of some

other part of the building and cause substantial damage to the

building, apart from the loss of value of the building resulting from

the removal; or

(b) would result in weakening the structure of the building or exposing

the building to weather damage or deterioration,

but does not include—

(i)

heating, air conditioning or conveyancing devices;

(ii) machinery installed in a building or on land for use in carrying

on an activity in the building or on the land; or

(iii) axture;

Personal Property Securities—45 of 2017

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“buyer of goods in the ordinary course of business” means a person who buys

goods from a person in the business of selling goods of that kind, if the

buyer buys in good faith and without knowledge that the sale violates the

rights of another person in the goods;

“cash” means the physical currency, whether in paper form or coins, authorised

as a medium of exchange by the laws of Fiji or any other country;

“chattel paper” means one or more writings that evidence both a monetary

obligation and—

(a) asecurityinterestin,orleaseof,specicgoods;or

(b) asecurityinterestin,orleaseof,specicgoodsandaccessions;

“collateral” means present or future personal property that is subject to a security

interest;

“commercial consignment” means a transaction, regardless of the form or

terminology used in the agreement, in which a person (the consignor)

delivers goods for the purpose of sale to a merchant (the consignee) that

deals in goods of that kind under a name other than that of the consignor,

but the term excludes a transaction in which—

(a) goods are delivered to an auctioneer; or

(b) consumer goods are delivered to a seller;

“commingled goods” means fungible goods that are physically united with

other fungible goods in a way that their identity is lost in a product or mass;

“consumer goods” means goods that are used or acquired for use primarily for

personal, family or household purposes, but the term does not include a

serial numbered vehicle;

“creditor” includes an assignee for the benet of creditors, an executor, an

administrator, a committee or a property guardian of a creditor;

“crops” means crops, whether matured or otherwise, and whether naturally

grown or planted, attached to land by roots including roots if able to be

used as root-stock or otherwise transplanted or forming part of trees or

plants attached to land, and includes trees only if the trees—

(a) are being grown as nursery stock;

(b) are being grown for uses other than the production of lumber and

wood products; or

reforestation;

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“debtor” means––

(a) a person who owes payment or performance of an obligation secured,

whether or not that person owns or has rights in the collateral;

(b) a person having an interest, other than a security interest or other

lien, in the collateral, whether or not the person is an obligor;

promissory notes;

(d) a consignee under a commercial consignment; or

(e) a lessee under a lease for a term of more than one year;

“default” means the failure to pay or otherwise perform the obligation secured

when due, or the occurrence of an event that, under the security agreement,

gives the secured party the right to enforce the security;

“deposit account” means a demand, time, savings, passbook or similar account

maintainedwithanancialinstitution;

“document of title” means a writing, such as a bill of lading or warehouse

receipt, issued by or addressed to a bailee—

(a) thatcoversgoodsinthebailee’spossessionthatareidentiedorare

fungibleportionsofanidentiedmass;and

(b) inwhichitisstatedthatthegoodsidentiedinitwillbedeliveredto

a named person, or to the transferee of that person, or to the bearer or

to the order of a named person;

“equipment” means goods that are held by a debtor other than as inventory,

crops, livestock or consumer goods;

“execution creditor” means—

(a) apersonwhocausesormaycausepersonalpropertyorxturestobe

seized under legal process to enforce a judgment or legal obligation,

including execution, attachment or garnishment, or who has obtained

or may obtain a charging order or equitable execution that affects or

relates to the collateral;

(b) a trustee in bankruptcy;

(d) a liquidator;

(e) any taxing authority under the laws of Fiji, where a person liable

to pay a tax neglects or refuses to pay the tax after demand, and

the amount, including any interest and assessable penalty, together

Personal Property Securities—45 of 2017

403

with any costs that may accrue, is a charge in favour of the taxing

authority for the State upon all collateral belonging to the delinquent

taxpayer, subject to this Act; or

(f) the Fiji National Provident Fund where a lien arises as a result of the

failure to pay a contribution under section 108 of the Fiji National

Provident Fund Act 2011”;

“nancialinstitution”meansanynancialinstitutionwithinthemeaningofthe

Banking Act 1995, credit union registered under the Credit Unions Act

1954, any friendly society registered under the Friendly Societies Act

1878, the Fiji Development Bank and such other persons as prescribed by

regulations;

“xtures” means goods that have become so related to real property that an

interestinthemarisesunderrealpropertylawbutxturesdonotinclude

buildingmaterialsandreadilyremovablefactorymachines,ofcemachines

and domestic appliances;

“future advance” means—

(a) the payment of money, the provision of credit, or the giving of

value secured by a security interest, occurring after the security

agreement has been signed, whether or not provided or given under

an obligation; and

(b) includes advances, reasonable costs incurred, and expenditures

made for the protection, maintenance, preservation, or repair of the

collateral, or for the enforcement of the security interest;

“goods” means all things that are tangible personal property when a security

interest attaches, and includes—

(a) equipment;

(b) inventory;

(d) xtures;

(e) standing timber that is to be cut and removed under a conveyance or

contract for sale;

(f) minerals and petroleum, but only from the time of extraction;

(g) livestock, including the unborn young of livestock;

(h) crops; and

(i) manufactured or demountable homes,

Personal Property Securities—45 of 2017404

but the term does not include accounts receivable, deposit accounts, chattel

paper, documents of title, instruments, investment property or money;

“instrument” means—

(a) a bill of exchange within the meaning of the Bills of Exchange Act

1891 note or cheque;

(b) any other writing that evidences a right to payment of money and

that is of a type that, in the ordinary course of business, is transferred

by delivery with any necessary endorsement or assignment; or

of credit states on it that it must be surrendered on claiming payment,

but does not include—

(i) chattel paper, a document of title or an investment property; or

(ii) a writing that provides for or creates a mortgage or charge with

respecttoaninterestinlandthatisspecicallyidentiedinthe

writing;

“intangible” means personal property that is not goods, chattel paper, a document

of title, an instrument, money or an investment property, and includes an

account receivable, a deposit account, intellectual property and a licence;

“inventory” means—

(a) goods held by a person for sale or lease, or that have been leased by

that person as lessor;

(b) goods to be furnished by or on behalf of a person, or that have been

furnished by or on behalf of that person, under a contract of service;

(d) materials used or consumed in a business;

“investment property” means—

(a) a security;

(b) a security entitlement;

(d) a futures contract; or

(e) a futures account;

“lease for a term of more than one year” includes a lease of goods—

(a) for a stated duration of more than one year;

(b) foranindeniteterm;

Personal Property Securities—45 of 2017

405

of the lessor, retains uninterrupted or substantially uninterrupted

possession of the leased goods for more than one year after the lessee

rstacquiredpossessionofthegoods,buttheleasedoesnotbecome

a lease for a term of more than one year until the lessee’s possession

extends beyond one year; or

(d) for a term of one year or less where the lease provides that it is

renewable for any period that would cause the actual term of the

lease to exceed one year,

but does not include a lease of goods—

(i) involving a lessor who is not regularly engaged in the business

of leasing goods; or

(ii) a lease of household furnishings or appliances as part of a lease

of land where the goods are incidental to the use and enjoyment

of the land;

“lessee of goods in the ordinary course of business” means a person who, in

good faith and without actual knowledge that the lease is in violation of the

ownership rights or security interest or leasehold interest of a third party

in the goods, leases in the ordinary course from a person in the business of

selling or leasing goods of that kind;

“licence” means a right, whether or not exclusive—

(a) to manufacture, produce, sell, transport or deal with personal

property; or

(b) to provide services,

that is transferrable by the grantee with or without restriction or the consent

of the grantor of the licence;

“minerals”meansmineralsasdenedintheMiningAct1965;

“Minister”meanstheMinisterresponsiblefornance;

“money” means any item used as a medium of exchange, including cash, checks

on demand, deposit cheques, money orders, or other credit arrangements;

“notice”means(exceptinthecontextofanoticationdeliveredtoadebtor,

secured party, or person other than the Registry) a writing registered in

the Registry, and includes an initial notice, amendment, continuation, and

termination;

“perfection” means optimisation of a secured party’s rights in collateral against

third parties such as buyers, other secured parties, execution creditors, lien

holders, liquidators and insolvency administrators;

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“personal property” means goods, chattel paper, investment property, a

document of title, an instrument, money or an intangible;

“petroleum” means petroleum as dened in the Petroleum (Exploration and

Exploitation) Act 1978;

“proceeds” means identiable or traceable personal property that is derived

directly or indirectly from dealing with collateral or the proceeds of

collateral and in which the debtor acquires an interest, and includes

whatever is acquired upon sale, lease or other disposition of collateral, or

whatever is collected on or distributed with respect to collateral, including

without limitation––

(a) a right to an insurance payment or any other payment as indemnity

or compensation for loss of or damage to the collateral or proceeds

of the collateral;

(b) a payment made in total or partial discharge or redemption of an

intangible, chattel paper, an instrument or investment property;

account of, collateral that is investment property;

(d) property exchanged for the original collateral; or

(e) property purchased with money proceeds,

but does not include animals merely because they are the offspring of

animals that are collateral;

“purchase money security interest” means—

(a) a security interest taken in collateral, other than investment property,

to the extent that it secures all or part of its purchase price;

(b) a security interest taken in collateral, other than investment property,

by a person who gives value for the purpose of enabling the debtor to

acquire rights in the collateral, to the extent that the value is applied

to acquire those rights;

than one year; or

(d) the interest of a consignor who delivers goods to a consignee under a

commercial consignment,

but does not include a transaction of sale and the lease back to the seller

and, for the purposes of this subparagraph, “purchase price” and “value”

include credit charges and interest payable for the purchase or loan

credit;

Personal Property Securities—45 of 2017

407

“purchaser” means a person who takes personal property by sale, lease, discount,

assignment, negotiation, mortgage, pledge, lien, issue, reissue, gift or any

other consensual transaction that creates an interest in personal property;

“Registrar” means the Registrar of the Personal Property Securities Act 2017 as

designated by this Act or the regulations hereunder;

“Registry” means the electronic registry established under this Act;

“secured party” means a lender, seller or other person in whose favour a security

interest is created or provided for under a security agreement, including

a person to whom account receivables or chattel paper have been sold,

and a consignor or lessor of goods, including the representative of any

such person or groups of persons, and includes for the purposes of priority

determinationandlingonly,abuyerof accountsreceivableor secured

sales contracts and a lessor of goods under a lease for a term of more than

one year;

“secured sales contract” means a contract for the sale of goods on credit that

includes a security agreement creating a security interest in the sold goods;

“security” means—

(a) a writing (whether or not in the form of a security certicate)

that is recognised in the place in which it is issued or dealt with

as evidencing a share or a warrant or option, a right to participate,

a derivative, or other interest in property or an enterprise, or that

evidences an obligation of the issuer and that, in the ordinary course

of business, is transferred or withdrawn by—

(i) delivery with any necessary endorsement, assignment or

registration in the records of the issuer or the issuer’s agent;

(ii) an entry in the records of the clearing house or securities

depository; or

(iii) an entry in the records maintained for that purpose by or on

behalf of the issuer or by or for a nominee; but

(b) does not include a writing that evidences a monetary obligation

secured by land;

“security agreement” means a writing that creates or provides for a security

interest;

“security interest” means––

(a) a legal interest in personal property created or provided for by a transaction

that in substance secures payment or performance of an obligation, without

regard to the form of the transaction or identity of the person who has title

Personal Property Securities—45 of 2017408

to the personal property, and includes the interest created or provided for

by a—

(i) transfer of an account receivable or chattel paper;

(ii) a lease for a term of more than one year; and

(iii) a commercial consignment (whether or not the transfer, lease or

consignment secures payment or performance of an obligation);

(b) without limiting paragraph (a), and to avoid doubt, this Act applies to

a transaction termed a xed charge, oating charge, chattel mortgage,

conditional sale agreement (including an agreement to sell subject to

retention of title), hire purchase agreement, pledge, security trust deed, trust

receipt,consignment,lease,anassignmentoraawedassetarrangement,

that secures payment or performance of an obligation;

“serialnumber”meansthevehicleidenticationnumberassignedtoavehicleby

its manufacturer under standards adopted by the International Organization

for Standardization;

“serialnumberedvehicle”meansamotorvehicleidentiablebyaserialnumber

and held by a debtor primarily for personal use that is subject to a security

interest;

“signed” means—

(a) to physically execute a signature; or

(b) to execute or otherwise adopt a symbol, or encrypt or similarly

process a writing in whole or in part, with the present intent to

identify the person and adopt or accept a writing, whether in physical

or electronic format;

“supporting obligation” means a right in a letter of credit or secondary

obligation that supports a right to payment or performance of an account

receivable, chattel paper, a document of title, an instrument, an intangible

or investment property;

“value” means any consideration that is sufcient to support a contract and

includes an antecedent debt or liability; and

“writing” means information that is inscribed on a tangible medium or that is

stored in an electronic or other medium and is retrievable in perceivable

form; the term includes a photocopy, facsimile copy and electronic mail.

Meaning of “possession” in certain cases

3.—(1) For the purposes of this Act, a person takes possession of an investment

property if—

(a) in the case of an investment property that is evidenced by a security

certicate,thepersontakesphysicalpossessionofthatcerticate;

Personal Property Securities—45 of 2017

409

(b) in the case of an investment property that is traded or settled through a

clearing house or securities depository, the clearing house or securities

depository, as the case may be, records the interest of the person in the

investment property;

certicate and that is not traded or settled through a clearing house or

securities depository, the records maintained by the issuer, or on behalf of

the issuer, record the interest of the person in the investment property; or

(d) in the case of an investment property that is held by a nominee, the records

of the nominee record the interest of the person in the investment property.

(2) For the purposes of this Act, a person takes possession of an instrument if—

(a) the person takes physical possession of the instrument; or

(b) in the case of an instrument that is traded or settled through a clearing

house or securities depository, the clearing house or securities depository,

as the case may be, records the interest of the person in the instrument.

(3) For the purposes of this Act, a secured party is not in possession of collateral that

is in the actual or apparent possession or control of the debtor or the debtor’s agent.

Meaning of “knowledge”

4.—(1) For the purposes of this Act—

(a) a natural person knows or has knowledge of a fact in relation to a particular

transaction when that person has actual knowledge of the fact or receives a

notice stating the fact;

(b) an organisation knows or has knowledge of a fact in relation to a particular

transaction when—

(i) the natural person within the organisation with responsibility for

matters to which the transaction relates has actual knowledge of the

fact; or

(ii) the organisation receives a notice stating the fact; or

(iii) the fact is communicated to the organisation in such a way that

it would have been brought to the attention of the natural person

with responsibility for matters to which the transaction relates if the

organisation had exercised reasonable care;

a particular transaction when that fact has been brought to the attention of

the permanent secretary responsible for the Government department with

responsibility for the matters to which the fact relates, under circumstances

in which a reasonable person would take cognisance of it.

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Description of collateral in a security agreement or notice

5.—(1) A description of collateral in a security agreement or notice is sufcient,

whetheritisspecicorgeneral,ifit—

(a) describes collateral by item or kind in a manner that enables the collateral

tobeidentied;

(b) consists of a statement that a security interest is taken in all of the debtor’s

present and after-acquired property; or

presentandafter-acquiredpropertyexceptforspecieditemsorkindsof

personal property.

(2) A collateral description may provide the serial number of a serial numbered vehicle

inaeldprescribedbytheRegistrar.

(3) A notice may provide a reasonable description of the location of the relevant real

propertyifthenoticecoversxtures,timbertobecut,oras-extractedcollateral.

(4) Tobesufcient,adescriptionofconsumergoodsrequiresaspecicdescription.

Classication of goods

6. Unless otherwise provided in this Act, the determination of whether goods are

consumer goods, inventory or equipment is to be made as of the time when the security

interest in the goods attaches.

Proceeds traceable

7. Proceedsaretraceablewhetherornotthereisaduciaryrelationshipbetweenthe

person who has a security interest in the proceeds and the person who has rights in or

has dealt with the proceeds.

PART 2—APPLICATION OF THE ACT

Transactions subject to this Act

8.—(1) Subject to subsection (4), this Act applies––

(a) to every transaction that in substance creates a security interest, without

regard to its form and without regard to the person who has title to the

collateral;

(b) without limiting the generality of paragraph (a), to any transaction nominally

calledachattelmortgage,hire-purchase,conditionalsale,oatingcharge,

xedcharge,pledge, trust indenture,trustreceipt, debenture secured by

collateral, and the like, or to an assignment, consignment, lease, trust

or transfer of chattel paper that secures payment or performance of an

obligation; and

grantedbyapersontoanancialinstitutioninadepositaccountmaintained

bythenancialinstitution.

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(2) The retention of title by a seller of goods has no effect other than the taking of a

security interest in the goods.

(3) Except as provided in section 87, this Act applies—

(a) to a transfer of an account receivable or chattel paper, to a lease for a term

of more than one year and to a commercial consignment that does not

secure payment or performance of an obligation; and

(b) to the interest of an execution creditor.

(4) For the avoidance of doubt, nothing in this Act affects the repayment of advances

and other payments of whatsoever nature made to the cane growers or on the cane growers’

behalf by the Fiji Sugar Corporation Limited pursuant to the Master Award established

under the Sugar Industry Act 1984.

Transactions not subject to this Act

9.—(1) Except as otherwise provided in this Act, this Act does not apply to—

(a) the creation or transfer of an interest in present or future wages, salary, pay,

commission or any other compensation for labour or personal services,

other than fees for professional services;

(b) a transfer of an unearned right to payment under a contract to a transferee

who is to perform the transferor’s obligations under the contract;

of real property, including a transfer of rental payment payable under a

lease for land unless the right to payment is evidenced by an investment

property,butthisActdoesapplytoaninterestincrops,xtures,timberto

be cut, or as-extracted collateral;

(d) a sale of accounts receivable or chattel paper as part of a sale of a business

out of which they arose, unless the seller remains in apparent control of the

business after the sale;

(e) a transfer of accounts receivable that is made solely to facilitate the

collection of accounts receivable for the transferor;

(f) anassignmentforthegeneralbenetofcreditors;

(g) a transfer of an interest in a superannuation fund;

(h) the creation or transfer of an interest in a tenement governed by the Mining

Act 1965;

(i) the creation or transfer of an interest in a licence governed by the Petroleum

(Exploration and Exploitation) Act 1978;

(j) a transfer, assignment, mortgage, or assignment of a mortgage of a ship

that is subject to registration under the Maritime Transport Act 2013 or any

other written law of Fiji;

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(k) a transfer, assignment, mortgage, or assignment of a mortgage of an aircraft

that is subject to mandatory registration under any other written law of Fiji

in order to secure a charge over such aircraft.

(2) The application of this Act to a security interest in an intangible is not affected by

the fact that the intangible is secured by a transaction or interest to which this Act does

not apply.

Act to bind the State

10. This Act binds the State.

PART 3—SECURITY AGREEMENTS, ATTACHMENT OF SECURITY

INTERESTS AND SECURED OBLIGATIONS

Effectiveness of security agreement, security interest and stamp duty

11.—(1) Except as otherwise provided in this or any other Act, a security agreement

is effective—

(a) according to its terms;

(b) against purchasers of the collateral; and

(2) A security interest is not invalid or fraudulent against creditors and other third

parties because—

(a) the debtor has the right or ability—

(i) to use, commingle, or dispose of all or part of the collateral, including

returned or repossessed goods;

(ii) to collect, compromise, enforce, or otherwise deal with collateral;

(iii) to accept the return of collateral or make repossessions; or

(iv) to use, commingle, or dispose of proceeds; or

(b) the secured party fails to require the debtor to account for proceeds or

replace collateral.

(3) A security interest may not be taken in the consumer goods of a debtor except for

a purchase money security interest in the consumer goods.

(4) The provisions of the Stamp Duties Act 1920 pertaining to the payment of stamp

duty applies to security agreements under this Act, and the procedure to ensure stamp

duty is paid is set out in regulations made under this Act.

Attachment of security interest to collateral and proceeds

12.—(1) Subject to subsection (5), a security interest attaches to collateral and is

enforceable against the debtor and third parties as provided in this Act, when—

(a) value is given by the secured party;

(b) the debtor has rights in the collateral; and

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(i) the debtor has signed a security agreement that provides a description

of the collateral;

(ii) the collateral is in the possession of the secured party and is of a type

that may be perfected by possession; or

(iii) the collateral is in the control of the secured party and is of a type that

may be perfected by control.

(2) For the purposes of subsection (1)(b) and without limiting other rights that the

debtor may have in the collateral, a debtor has rights in goods that are leased to the

debtor under a lease for a term of more than one year, consigned to the debtor under

a commercial consignment, or sold to the debtor under a conditional sale agreement

(including an agreement to sell subject to retention of title) no later than when the debtor

obtains possession of the goods.

(3) For the purposes of subsection (1)(b), a debtor has rights in timber to be cut when

the timber is cut, and in as-extracted collateral at the time that the collateral subject to

the security interest is extracted.

(4) Unless otherwise agreed by the debtor and secured party—

(a) the attachment of a security interest in collateral gives the secured party the

right to proceeds of the collateral, even if the security agreement is silent

about proceeds;

(b) the attachment of a security interest in collateral is also attachment of a

security interest in a supporting obligation for the collateral; and

secured by a security interest in collateral is also attachment of a security

interest in the collateral.

(5) Subsection (1) does not apply if the parties to a security agreement have agreed

that a security interest attaches at a later time, in which case the security interest attaches

atthetimespeciedinthesecurityagreement.

Attachment of obligation to after-acquired property

13.—(1) Where a security agreement provides for a security interest in after-acquired

property,thesecurityinterestattacheswithoutspecicappropriationbythedebtorunless

the after-acquired property are consumer goods.

(2) Wheretheafter-acquiredpropertyisconsumergoods,awrittenconrmationmust

be made by the debtor personally or by the debtor’s agent for the consumer goods to be

after-acquired property.

Future advances in a security agreement

14. A security agreement may provide for future advances, and a security interest has

the same priority in respect of all advances, including future advances.

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PART 4—RIGHTS, DUTIES AND OBLIGATIONS OF THE DEBTOR AND THE

SECURED PARTY

Secured party’s duty to preserve collateral

15.—(1) A secured party must take reasonable care in the custody and preservation

of collateral in the possession of the secured party.

(2) Unless the parties agree otherwise, in the case of an instrument or chattel paper,

reasonable care includes taking necessary steps to preserve rights against other persons.

(3) Unless the parties agree otherwise, where collateral is in the secured party’s

possession—

(a) reasonable expenses, including the cost of insurance and payment of taxes

or other charges incurred in obtaining and maintaining possession of the

collateral, are chargeable to the debtor and are secured by the collateral;

and

(b) the risk of loss or damage, except where caused by the negligence of

thesecuredparty,isonthedebtortotheextentofanydeciencyinany

insurance coverage.

(4) Unless the parties agree otherwise, the secured party—

(a) mayholdasadditionalsecurityanyincreaseorprotsreceivedfromthe

collateral;

(b) must either apply money or funds received from the collateral to reduce the

secured obligation or remit such money or funds to the debtor; and

commingled.

(5) Subject to subsection (1), a secured party may use the collateral—

(a) in the manner and to the extent provided in the security agreement;

(b) for the purpose of preserving the collateral or its value;

(d) in accordance with any written law.

Investment property in control of secured party

16.—(1) Unless otherwise agreed by the parties and notwithstanding section 15, a

secured party having control of investment property as collateral—

(a) may hold as additional security any proceeds received from the collateral;

and

(b) must either apply money or funds received from the collateral to reduce the

secured obligation or remit such money or funds to the debtor.

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(2) Notwithstanding subsection (1) and section 17, a secured party that has control

of investment property as collateral may sell, transfer, use or otherwise deal with the

collateral in the manner and to the extent provided in the security agreement.

(3) Within 14 days after receiving a demand in the form of a signed writing by the

debtor, a secured party that has control of investment property must send to an interested

intermediary a signed writing that releases the intermediary from any further obligation

to comply with orders or directions originated by the secured party.

(4) Subsection (3) applies only if––

(a) there is no outstanding secured obligation; and

(b) the secured party is not committed to make advances, incur obligations, or

otherwise give value.

Duties of secured party in control of deposit account

17.—(1) This section applies only if—

(a) there is no outstanding secured obligation; and

(b) the secured party is not committed to make advances, incur obligations, or

otherwise give value.

(2) Within 14 days after receiving a demand in the form of a signed writing by the

debtor, a secured party that has control of a deposit account other than a secured party

thatisthenancialinstitutionwithwhichadepositaccountismaintainedmustsendto

thenancialinstitutionwithwhichthedepositaccountismaintainedasignedwritingthat

releasesthenancialinstitutionfromanyfurtherobligationtocomplywithinstructions

originated by the secured party.

(3) Within 14 days after receiving a demand in the form of a signed writing by the

debtor, asecured party that has controlof a deposit account andthat is the nancial

institution with which a deposit account is maintained must—

(a) pay the debtor the balance on deposit in the deposit account; or

(b) transfer the balance on deposit into a deposit account in the debtor’s name.

Duties of secured party if account debtor has been notied of assignment of payments

18.—(1) Except as otherwise provided in subsection (3), this section applies if—

(a) there is no outstanding secured obligation; and

(b) the secured party is not committed to make advances, incur obligations or

otherwise give value.

(2) Within 14 days after receiving a demand in the form of a signed writing by the

debtor,asecuredpartymustsendtoanaccountdebtorthathasreceivednoticationofan

assignment to the secured party (as assignee) a signed writing that releases the account

debtor from any further obligation to the secured party.

(3) This section does not apply to a sale of an account receivable or chattel paper.

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Debtor’s request for accounting

19.—(1) A debtor may request—

(a) an accounting of the unpaid obligations secured by collateral;

(b) that a secured party approve or correct a list of what the debtor believes to

be the collateral securing an obligation; or

debtor believes to be the aggregate amount of unpaid obligations secured

bycollateralasofaspecieddate.

(2) A secured party must comply with a request under subsection (1) within 14 days

after receipt of the debtor’s request.

Acceleration of payment or performance

20.—(1) A security agreement may provide that the secured party can accelerate

payment or performance by the debtor when—

(a) the debtor is in default;

(b) the secured party reasonably believes that the collateral is at risk; or

at risk.

(2) In this section the term “at risk” means that the secured party has commercially

reasonable grounds to believe that—

(a) the collateral has been or will be destroyed, damaged, endangered,

disassembled, removed or concealed contrary to the provisions of the

security agreement; or

(b) the debtor is or will be unable to pay or perform the debtor’s obligations

under the security agreement,

provided, the burden of proving the existence of these grounds is on the secured party.

PART 5—PERFECTION OF SECURITY INTERESTS

Perfection of a security interest

21. A security interest is perfected when it has attached and a method of perfection

authorised under this Act has been completed, regardless of the order of occurrence.

Perfection by registration of a notice

22. Subject to section 21, registration of a notice perfects a security interest in collateral

other than money, except that registration of a notice perfects a security interest in money

that is proceeds.

Perfection by taking possession of collateral

23.—(1) Subject to section 21, possession of the collateral by the secured party, or by

another person on the secured party’s behalf, perfects a security interest in—

(a) chattel paper;

(b) goods;

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(d) a document of title; and

(e) money,

except where possession is a result of seizure or repossession.

(2) For the purposes of subsection (1), a secured party does not have possession

of collateral that is in the actual or apparent possession or control of the debtor or the

debtor’s agent.

Perfection by control of deposit accounts and investment property

24.—(1) Subject to section 21, a security interest in a deposit account or in investment

property may be perfected by control.

(2) A security interest in investment property is perfected by control from the time the

secured party obtains control and remains perfected by control until—

(a) the secured party does not have control; and

(b) one of the following occurs––

(i) ifthecollateralisasecurityevidencedbyacerticate,thedebtorhas

oracquirespossessionofthecerticate;

(ii) ifthecollateralisanuncerticatedsecurity,theissuerofthesecurity

has registered or registers the debtor as the registered owner; or

(iii) if the collateral is a security entitlement, the debtor is or becomes the

entitlement holder.

Continuity of perfection

25.—(1) A security interest is continuously perfected for the purposes of this Act, if—

(a) the security interest is perfected under this Act;

(b) the security interest is subsequently perfected in another way under this

Act; and

unperfected.

(2) A transferee of a security interest has the same priority with respect to perfection

of the security interest as the transferor had at the time of the transfer.

Temporary perfection

26.—(1) A security interest perfected by possession remains perfected, notwithstanding

section 25, for 7 days after the collateral comes under the control of the debtor, where

the collateral is—

(a) an instrument or a security evidenced by a certicate that a secured

party delivers to the debtor for the purpose of ultimate sale or exchange,

presentation, collection, renewal, or registration of a transfer; or

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(b) a document of title or goods held by a bailee that are not covered by a

negotiable document of title, which document of title or goods the secured

party makes available to the debtor for the purpose of sale, exchange,

loading, unloading, storing, shipping manufacturing, processing,

packaging, or otherwise dealing with the goods in preparation for their

sale or exchange.

(2) After the expiration of the 7 day period, the security interest is subject to the

provisions of this Act relating to the perfection of a security interest.

Perfection of security interest in goods held by a bailee

27.—(1) Subject to section 23, a security interest in goods in the possession of a bailee

is perfected by—

(a) the issuance of a document of title by the bailee in the name of the secured

party;

(b) the perfection of a security interest in a negotiable document of title to the

goods where the bailee has issued one;

(d) the registration of a notice relating to the goods.

(2) The issuance of a negotiable document of title covering goods does not preclude

any other security interest in the goods from arising during the period that the negotiable

document of title is outstanding.

(3) A perfected security interest in a negotiable document of title covering goods takes

priority over a security interest in the goods otherwise perfected after the goods become

covered by the negotiable document of title.

Perfection of security interest in proceeds

28.—(1) Except as otherwise provided in this Act, where collateral is dealt with or

otherwise gives rise to proceeds, the security interest—

(a) continues in the collateral unless the secured party expressly or impliedly

authorises the dealing; and

(b) extends to the proceeds.

(2) A security interest in proceeds is a continuously perfected security interest if the

interest in the original collateral is perfected by registration of a notice that—

(a) containsadescriptionoftheproceedsthatwouldbesufcienttoperfecta

security interest in the original collateral of the same kind;

(b) covers the original collateral, if the proceeds are of a kind that are within

the description of the original collateral; or

deposit accounts.

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(3) A security interest in proceeds is temporarily perfected until the expiration of 14

days after the security interest in the original collateral attached to the proceeds, if—

(a) the security interest in the original collateral is perfected; and

(b) the security interest in the proceeds is not continuously perfected under

subsection (2).

Perfection of security interest in goods returned or repossessed

29.—(1) Where a debtor sells or leases goods that are subject to a security interest

under circumstances in which the buyer or lessee takes the goods free of the security

interest, the security interest reattaches to the goods if—

(a) the goods are returned to, seized or repossessed by the debtor or by a

transferee of chattel paper created by the sale or lease; and

(b) the obligation secured remains unpaid or unperformed.

(2) Where a security interest reattaches under subsection (1), the perfection of the

security interest and the time of registration or perfection are determined as if the goods

had not been sold or leased, if—

(a) the security interest was perfected by registration at the time of the sale or

lease; and

(b) the registration is effective at the time of the return, seizure or repossession.

(3) A security interest in goods given by a buyer or lessee of the goods under subsection

(1) that attaches while the goods are in the possession of the buyer, lessee or debtor and

that is perfected when the goods are returned, seized or repossessed has priority over a

security interest in the goods arising under this section.

PART 6—PRIORITY OF SECURITY INTERESTS AND RIGHTS OF THIRD

PARTIES

Division 1—General Priority Rules

General priority rules

30.—(1) If this Act provides no other way of determining priority between security

interests in the same collateral—

(a) a perfected security interest has priority over an unperfected security

interest in the same collateral;

(b) priority between perfected security interests in the same collateral (where

perfection has been continuous) is to be determined by the order of

whicheverofthefollowingrstoccursinrelationtoaparticularsecurity

interest—

(i) the registration of a notice;

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(ii) the secured party, or another person on the secured party’s behalf,

taking possession of the collateral (except where possession is a

result of seizure or repossession);

(iii) the temporary perfection of the security interest in accordance with

this Act;

be determined by the order of attachment of the security interests.

(2) For the purpose of this section, a continuously perfected security interest is to be

treated at all times as perfected by the method by which it was originally perfected.

Time of priority of security interests in proceeds

31. Subject to section 28 and for the purposes of section 30, the time of registration

or perfection of a security interest in original collateral is also the time of registration or

perfection of the security interest in its proceeds.

Priority of an execution creditor

32. A security interest in collateral is subordinate to the interest of an execution

creditor if the security interest is not perfected at the time that a notice of the interest of

the execution creditor is registered.

Priority in future advances and the interests of transferees of the debtor

33.—(1) Subject to subsection (3), the time of priority that a security interest has under

section 30 applies to all advances, including future advances.

(2) Where a debtor transfers rights in collateral that, at the time of the transfer, is

subject to a perfected security interest, that security interest has priority over any other

security interest granted by the debtor before the transfer.

(3) A perfected security interest has priority over the interests of an execution creditor

only to the extent of advances made—

(a) before the secured party acquired knowledge of the interest of the execution

creditor; or

(b) before a notice of the interest of the execution creditor is registered.

Agreement to subordinate priority

34.—(1) A secured party may, in a security agreement or otherwise, subordinate the

secured party’s security interest to any other interest.

(2) An agreement to subordinate a security interest is effective according to its terms

between the parties and may be enforced by a third party if the third party is the person,

oroneofaclassofpersons,forwhosebenettheagreementisintended.

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(3) A security interest is not created only by an agreement or undertaking to postpone

or subordinate the following—

(a) the right of a person to performance of all or any part of an obligation to

the right of another person to the performance of all or any part of another

obligation of the same debtor; or

(b) all or any part of the rights of a secured party under a security agreement to

all or any part of the rights of another secured party under another security

agreement with the same debtor.

Division 2—Priority of Purchase Money Security Interests

Meaning of “possession” in this Division

35. For the purposes of this Division only, where goods are shipped by a common

carrier to a debtor or to a person designated by the debtor, the debtor does not obtain

possession of the goods until the debtor or a third party at the request of the debtor obtains

actual possession of the goods or a document of title to the goods, whichever is earlier.

Status of purchase money security interest

36. In a transaction other than a consumer goods transaction, a purchase money security

interest remains a purchase money security interest even if—

(a) the purchase money collateral also secures an obligation that is not a

purchase money obligation;

(b) collateral that is not purchase money collateral also secures the purchase

money obligation; or

or restructured.

General rule on priority of purchase money security interests

37. A purchase money security interest in collateral, other than inventory, livestock or

intangibles, has priority over a non-purchase money security interest in the same collateral

given by the same debtor if the purchase money security interest in the collateral or its

proceeds is perfected not later than 7 days after the day on which the debtor, or the debtor’s

agent, obtained possession of the collateral, whichever is earlier.

Priority of purchase money security interests in inventory, livestock and intangibles

38.—(1) A purchase money security interest in inventory or livestock and their proceeds

has priority over a non-purchase money security interest in the same collateral given by

the same debtor if the purchase money security interest in the inventory or livestock and

their proceeds is perfected at the time the debtor, or the debtor’s agent, obtains possession

of the collateral.

(2) A purchase money security interest in an intangible or its proceeds has priority over

a non-purchase money security interest in the same collateral given by the same debtor

if the purchase money security interest in the intangible or its proceeds is perfected not

later than 7 days after the day on which the security interest in the intangible attached.

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(3) The security interest of a consignor in goods that are the subject of a commercial

consignment is a purchase money security interest in inventory.

Conicts involving purchase money security interests

39.—(1) A purchase money security interest in goods or their proceeds taken by a

seller, lessor, or consignor of the collateral, has priority over any other purchase money

securityinterestinthesamecollateralgivenbythesamedebtoriftherstmentioned

purchase money security interest in the goods or their proceeds is perfected—

(a) in the case of inventory or livestock, at the time the debtor, or the debtor’s

agent, obtained possession of the collateral, whichever is earlier; or

(b) in the case of collateral, other than inventory or livestock, not later than

7 days after the day on which the debtor, or the debtor’s agent, obtained

possession of the collateral, whichever is earlier.

(2) Priority between purchase money security interests in the same goods or their

proceeds that have not been granted to a seller, lessor or consignor, and that have been

given by the same debtor are to be determined in accordance with section 30.

(3) A non-proceeds security interest in accounts receivable that is given for new

value has priority over a purchase money security interest in the accounts receivable

as proceeds of inventory if a notice relating to the non-proceeds security interest in the

accounts receivable is registered before a notice relating to the purchase money security

interest is registered.

(4) In this section, “non-proceeds security interest” means a security interest in original

collateral.

Priority of purchase money security interests against execution creditors

40. Notwithstanding section 32, a purchase money security interest has priority over

the interest of an execution creditor in—

(a) collateral, other than an intangible, if the purchase money security interest

is perfected not later than 7 days after the day on which the debtor, or the

debtor’s agent, obtains possession of the collateral; or

(b) an intangible, if the purchase money security interest is perfected not later

than 7 days from the day on which the security interest attaches.

Division 3—Buyers and Other Transferees of Collateral

When transferee takes collateral free of a security interest

41.—(1) A buyer or lessee of collateral who acquires the collateral for value takes the

collateral free of an unperfected security interest, unless the unperfected security interest

was created or provided for by a transaction to which the buyer or lessee is a party.

(2) Notwithstanding section 26 of the Sale of Goods Act 1978, a buyer of goods in the

ordinary course of business, and a lessee of goods in the ordinary course of business, takes

the goods free of any perfected or unperfected security interest that is given by the seller

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or lessor or that arises under section 28 or 29, whether or not the buyer or lessee knows

of it, unless the buyer or lessee also knows that the sale or lease constitutes a breach of

the security agreement under which the security interest was created.

(3) A buyer or lessee of a serial numbered vehicle takes it free of a security interest

perfected by registration if the buyer or lessee does not know of the security interest and

iftheserialnumberwasnotdescribedorwasincorrectlydescribed,inaeldprescribed

by the Registrar for the collection of serial numbers, on the notice of security interest.

(4) A buyer of goods takes free of a perfected security interest in the goods if the

secured party consents to the sale by the debtor.

(5) A person who receives cash for value takes free of a perfected security interest in

the cash.

(6) An execution creditor who takes control of collateral or causes collateral to be

seized before a security interest is perfected takes free of the security interest.

(7) A court or a liquidator of an insolvent company that takes physical custody or control

of assets before a security interest is perfected in them takes free of the security interest.

Buyer or lessee of consumer goods

42. A buyer or lessee of goods that are acquired as consumer goods takes the goods

free of a perfected or unperfected security interest if the buyer or lessee—

(a) gave value for the interest acquired; and

(b) bought or leased the goods without knowledge of the security interest.

Buyer or lessee of goods subject to temporarily perfected security interests

43. A buyer or lessee of goods takes the goods free of a security interest that is

temporarily perfected under section 26 if the buyer or lessee—

(a) gave value for the interest acquired; and

(b) bought or leased the goods without knowledge of the security interest.

Buyer or lessee of minerals, petroleum and timber

44. A buyer or lessee in ordinary course of business of the seller or lessor takes the

following goods free of an interest arising out of an encumbrance on real property—

(a) minerals or petroleum at the minehead or wellhead, or upon extraction; and

(b) timber, as the timber is cut.

Buyer, lessee or mortgagee of xtures

45. Abuyer,lesseeormortgageeofxturestakesthexturesfreeofasecurityinterest

perfected by registration under this Act if—

(a) thebuyer,lesseeormortgageetakesthextureswithoutknowledgeofthe

security interest; and

(b) thenoticedescribingthexturesdoesnotincludeareasonabledescription

ofthelocationoftherealpropertywherethexturesarelocated.

Personal Property Securities—45 of 2017424

Priority of materials or services lien

46.—(1) A lien arising out of materials or services provided in respect of goods that are

subject to a security interest in the same goods has priority over that security interest if—

(a) the goods are in the possession of the person claiming the lien;

(b) the materials or services relating to the lien were provided in the ordinary

course of business;

the priority; and

(d) the person who provided the materials or services did not, at the time

the person provided those materials or services, know that the security

agreement relating to the security interest contained a provision prohibiting

the creation of a lien by the debtor, if any such provision exists.

(2) For the avoidance of doubt, a port management company that has a lien in relation

to any dues, rates or charges payable in relation to any goods under section 19 of the

Seaports Management Act 2004 has a security interest perfected by possession.

Rights of debtor in collateral may be transferred

47.—(1) In this section, “transfer” includes a sale, the creation of a security interest

and a transfer under judgment enforcement proceedings.

(2) The rights of a debtor in collateral may be transferred consensually or by operation

of law notwithstanding a provision in the security agreement that prohibits transfer or

declares a transfer to be a default.

(3) Notwithstanding subsection (2), a transfer by the debtor does not prejudice the

rights of the secured party under the security agreement or otherwise, including the right

to treat a prohibited transfer as an act of default.

Division 4—Persons to Whom Negotiable Collateral is Transferred

Where holder of money takes free of perfected security interest in money

48. A person other than the debtor who holds money that is proceeds has priority over

a perfected security interest in the money if the holder—

(a) acquired the money without knowledge that it is subject to a security

interest; or

(b) is a holder for value, whether or not the holder knew of the security interest

at the time the holder acquired the money.

Priority of creditor who receives funds subject to a security interest

49.—(1) In this section, “debtor-initiated payment” means a payment made by the

debtor through the use of—

(a) an instrument;

(b) an electronic funds transfer; or

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mechanism executed by the debtor when the payment is made.

(2) A creditor who receives payment of a debt owing by a debtor through a debtor-

initiated payment has priority, whether or not the creditor has knowledge of the security

interest at the time of the payment, over a security interest in—

(a) the funds paid;

(b) the intangible that was the source of the payment; and

Priority of purchasers of instruments or securities

50.—(1) A purchaserofan instrumentorasecurityevidencedbya certicatehas

priority over any security interest in the instrument or security perfected by registration

or temporarily perfected if the purchaser—

(a) gave value for the instrument or security;

(b) acquired the instrument or security without knowledge that it is subject to

a security interest; and

(2) For the purposes of this section, a purchaser of an instrument or a security evidenced

byacerticatewhoacquireditintheordinarycourseofthetransferor’sbusinesshas

knowledge only if the purchaser acquired the interest with knowledge that the transaction

violates the terms of the security agreement that creates or provides for the security interest.

(3) For the purposes of this section, a purchaser includes a person who acquires an

instrumentorasecurityevidencedbyacerticatebycompulsoryacquisitionorscheme

of arrangement.

Priority of holders of negotiable documents of title

51.—(1) The interest of a holder of a negotiable document of title has priority over a

security interest in the document of title that is perfected by registration or temporarily

perfected if the holder—

(a) gave value for the document of title; and

(b) acquired the document of title without knowledge that it is subject to a

security interest.

(2) For the purposes of this section, a holder of a negotiable document of title who

acquired it under a transaction entered into in the ordinary course of the transferor’s

business has knowledge only if the purchaser acquired the interest with knowledge that

the transaction violates the terms of the security agreement that creates or provides for

the security interest.

Personal Property Securities—45 of 2017426

Priority of purchasers of chattel paper

52. The interest of a purchaser of chattel paper who takes possession of the chattel

paper in the ordinary course of the purchaser’s business and for new value has priority

over any security interest in the chattel paper that—

(a) was perfected by registration, if the purchaser took possession of the chattel

paper without knowledge of the security interest; or

(b) has attached to proceeds of inventory, whether or not the purchaser took

possession of the chattel paper without knowledge of the security interest.

Division 5—Assignments and Other Transfers of Accounts

Interpretation for this Division

53. In this Division, “assignee” includes a secured party.

Notice to account debtor

54.—(1) Notice to an account debtor is not required as a condition of assignment,

transfer, enforcement, attachment or perfection of the security interest.

(2) Where collateral that is an intangible or chattel paper is assigned, the account

debtor may make payments under the contract to the assignor—

(a) before the account debtor receives a notice that—

(i) states that the amount payable or to become payable under the

contract has been assigned and that payment is to be made to the

assignee; and

(ii) identiesthecontractunderwhichtheamountpayableistobecome

payable; or

(b) after—

(i) the account debtor requests the assignee to furnish proof of the

assignment; and

(ii) the assignee fails to furnish proof within 14 days after the day of the

request.

(3) Payment by an account debtor to an assignee under a notice under subsection (2)

(a) discharges the obligation of the account debtor to the extent of the payment.

Account debtor’s right to assert defences and claims

55. Unless the account debtor on an intangible or chattel paper has made an enforceable

agreement not to assert defences to claims arising out of a contract, the rights of an assignee

of the intangible or chattel paper are subject to—

(a) the terms of the contract between the account debtor and the assignor

and any defence or claim arising from the contract or a closely connected

contract; and

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(b) any other defence or claim of the account debtor against the assignor that

accrues before the account debtor acquires knowledge of the assignment.

Modication or substituted contracts effective against assignee

56.—(1) Amodicationoforsubstitutionforassignedcontractrightsmadeingood

faith and in accordance with reasonable commercial standards and without material

adverse effect on the assignee’s rights under the contract is effective against the assignee.

(2) Subsection (1) applies—

(a) to the extent that an assigned right to payment arising out of the contract

has not been earned by performance; and

(b) notwithstanding that there has been notice of the assignment to the account

debtor.

(3) Wherea contract has been substitutedor modied in the mannerdescribed in

subsection (1), the assignee obtains rights that correspond to the rights of the assignor

underthesubstitutedormodiedcontract.

(4) Nothing in subsections (1) to (3) affects the validity of a term in an assignment

agreementthatprovidesthatamodicationorsubstitutionisabreachofcontractbythe

assignor.

Enforceability of non-assignment clauses

57. A term in a contract between an assignor and an account debtor, or a debtor on

chattel paper, that prohibits or restricts assignment of the whole of the account receivable

or chattel paper for money due or to become due—

(a) is binding on the assignor, but only to the extent of making the assignor

liable in damages for breach of contract; and

(b) is unenforceable against third parties, including the assignee.

Division 6—Priority in Deposit Accounts and Investment Property

Meaning of “control” of a deposit account

58. A secured party has control of a deposit account if—

(a) thesecuredpartyisthenancialinstitutionwithwhichthedepositaccount

is maintained, even if the debtor retains the right to direct the disposition

of funds from the deposit account;

(b) the debtor, secured party, and nancial institution have agreed in a

signedwritingthatthenancialinstitutionwillcomplywithinstructions

originated by the secured party directing disposition of the funds in the

deposit account without further consent by the debtor; or

to the deposit account.

Personal Property Securities—45 of 2017428

Priority of security interests in deposit accounts perfected by control

59.—(1) A security interest held by a secured party having control of a deposit account

haspriorityoveraconictingsecurityinterestheldbyasecuredpartythatdoesnothave

control.

(2) Except as otherwise provided in subsections (3) and (4), security interests perfected

by control rank according to priority in time of obtaining control.

(3) Except as otherwise provided in subsection (4), a security interest held by the

nancialinstitution with which thedeposit account is maintainedhas priority over a

conictingsecurityinterestheldbyanothersecuredparty.

(4) A security interest perfected by control under section 58(b) has priority over

a security interest held by the nancial institution with which the deposit account is

maintained.

Priority of security interests in investment property

60.—(1) A security interest of a secured party having control of investment property

has priority over a security interest of a secured party that does not have control of the

investment property.

(2) Asecurityinterestinasecurityevidencedbyacerticatethatisperfectedbytaking

deliveryandnotbycontrolhaspriorityoveraconictingsecurityinterestperfectedby

a method other than control.

(3) Except as otherwise provided in subsections (4) and (5), conicting security

interests of secured parties each of which has control rank in priority according to time

of obtaining control.

(4) A security interest held by a securities intermediary in a securities account

maintainedwiththesecuritiesintermediaryhaspriorityoveraconictingsecurityinterest

held by another secured party.

(5) A security interest held by a futures intermediary in a futures contract or a futures

accountmaintainedwiththefuturesintermediaryhaspriorityoveraconictingsecurity

interest held by another secured party.

(6) Conictingsecurityinterestsgrantedbyabroker,securitiesintermediary,orfutures

intermediary that are perfected without control rank equally.

(7) In all other cases, priority among conicting security interests in investment

property is governed by the general priority rules under this Act.

Division 7—Priority in Special Classes of Tangible Collateral

Priority of security interests in xtures

61.—(1) Subject to subsection (2), a security interest under this Act may be created

ingoodsthatarexturesormaycontinueingoodsthatbecomextures.

(2) A security interest does not exist under this Act in ordinary building materials

incorporated into an improvement on real property.

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(3) Aperfectedsecurityinterestinxtureshaspriorityoveraclaimtothegoodsmade

byapersonwithaninterestintherealpropertyif,beforethegoodsbecomextures,the

securityinterestisperfectedbyanymethodpermittedbythisActandthexturesare

readily removable—

(a) factoryorofcemachines;

(b) equipment that is not primarily used or leased for use in the operation of

the real property; or

(4) Except as provided in this section with respect to a construction mortgage, a

purchase money security interest in goods that attaches before or at the time when the

goodsbecomextureshasprioritywithrespecttothegoodsoveraclaimtothegoods

made by a person with an interest in the real property.

(5) A security interest in goods that attaches after the goods become xtures is

subordinate to the interest of a person who—

(a) has an interest in the real property at the time when the goods become

xturesandwho—

(i) has not consented to the security interest;

(ii) hasnotdisclaimedaninterestinthegoodsorxtures;

(iii) has not entered into an agreement under which a person is entitled to

remove the goods; or

(iv) is not otherwise precluded from preventing the debtor from removing

the goods; or

(b) acquiresaninterestintherealpropertyafterthegoodsbecomextures,

if the interest is acquired without fraud and before a notice of the security

interest in the goods is registered.

(6) A mortgage is a construction mortgage—

(a) to the extent that it secures an obligation incurred for the construction of

an improvement on real property, including the acquisition cost of the real

property, if a registered mortgage so indicates; and

(b) totheextentthatthemortgageisgiventorenanceamortgagedescribed

in paragraph (a).

(7) Notwithstandingsubsection(3),asecurityinterestinxturesissubordinatetoa

constructionmortgageifthemortgageisregisteredbeforethegoodsbecomexturesand

thegoodsbecomexturesbeforethecompletionoftheconstruction.

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(8) Nothing in this Act—

(a) preventsthecreationofamortgageinxturesunderrealpropertylaw;or

(b) requires a notice of a mortgage in xtures created under real property

law to be registered under this Act to perfect or enforce the right of the

mortgagee.

Secured party’s right to remove xtures

62.—(1) Asecuredpartywho,underthisAct,hastherighttoremovexturesfromreal

property must exercise this right of removal in a manner that causes no greater damage

or injury to the real property and to other property situated on it or that puts the occupier

of the real property to greater inconvenience than is necessarily incidental to the removal

of the goods.

(2) A person, other than the debtor, who has an interest in the real property at the time

whenthexturessubjecttothesecurityinterestareafxedtotherealpropertyisentitled

to reimbursement for any damages to the interest of the person in the real property caused

duringtheremovalofthextures,butisnotentitledtoreimbursementforreductionin

thevalueoftherealpropertycausedbytheabsenceofthexturesremovedorbythe

necessity or replacement.

(3) The person entitled to reimbursement under subsection (2) may refuse permission to

remove the goods until the secured party has given adequate security for reimbursement.

(4) Thesecuredpartywho,underthisAct,hastherighttoremovexturesfromthe

realpropertymustgiveanoticeofthesecuredparty’sintentiontoremovethextures

to each person—

(a) who is known by the secured party to have an interest in the real property;

(b) who has registered a notice using the name of the debtor and mentioning

thexturesinthatnotice.

(5) The notice under subsection (4) is to contain—

(a) the name and address of the secured party;

(b) adescriptionofthexturestoberemoved;

interest;

(d) theestimatedmarketvalueofthextures;

(e) adescriptionofrealpropertyuponwhichthexturesarelocated;and

(f) astatementofintentiontoremovethexturesonorbeforeaspeciedday

that is not less than 10 days after the notice is given.

(6) A notice under subsection (4) is to be given at least 10 days before removal of the

xtureandmustbegivenbyamethodofdeliverylistedinsection103.

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Application to court: xtures

63. The secured party may apply to a court for one or more of the following—

(a) an order determining the person entitled to reimbursement under section

62;

(b) an order determining the amount and kind of adequate security to be

provided by the secured party;

(d) an order enforcing the right to gain access to the land to deal with the

xture;

(e) an order authorising the removal of the goods without the provision of

adequate security for reimbursement; and

(f) resolutionofanyothermattersconcerningtherightofremovalofxtures.

Retention of xtures by a person with an interest in related land

64. A person, other than the debtor, who has an interest in the real property that is

subordinatetoasecurityinterestasprovidedinthisActmay,beforethextureshave

beenremovedfromtherealpropertybythesecuredparty,retainthexturesonpayment

to the secured party of the lesser of––

(a) the amount secured by the security interest that has priority over that

interest; or

(b) themarketvalueofthexturesifthextureswereremovedfromthereal

property.

Priority of security interests in crops

65.—(1) A security interest in crops is a security interest in the crops to be grown,

while growing and afterwards when cut or separated from the soil.

(2) For the purpose of determining whether a security interest in crops cut or separated

from the soil exists, it does not matter whether the crops are stored on the real property

where the crops were grown or on any other land or premises.

(3) A perfected security interest in crops is not extinguished or prejudicially affected

by a subsequent sale, lease, mortgage, or other encumbrance of or upon the land on which

the crops are growing.

(4) A perfected security interest in crops growing on real property has priority over

aconictinginterestofanowner,mortgageeorotherpersonwithaninterestinthereal

property if the debtor has a registered interest in or is in possession of the real property.

Priority of security interests in accessions

66.—(1) In this section—

(a) “othergoods”meansgoodstowhichanaccessionisinstalledorafxed;

(b) “the whole” means an accession and the goods to which the accession is

installedorafxed.

Personal Property Securities—45 of 2017432

(2) A security interest in goods that become an accession continues in the accession.

(3) If a security interest is perfected when the goods become an accession the security

interest remains perfected in the accession and has priority over a person with an interest

in the other goods or the whole.

(4) The interest of any of the following persons has priority over a security interest in

goods that is attached at the time when the goods become an accession––

(a) a person who acquires for value an interest in the whole after the goods

become an accession, but before the security interest in the accession is

perfected;

(b) a person with a perfected security interest in the whole who makes an

advance under the security agreement relating to the security interest after

the goods become an accession, but before the security interest in the

accession is perfected, and only to the extent of the advance;

right to retain the whole in satisfaction of the obligation secured after the

goods become an accession, but before the security interest in the accession

is perfected.

(5) A security interest in goods that attaches after the goods become an accession is

subordinate to the interest of a person who acquires an interest in the other goods or the

whole after the goods become an accession but before the security interest in the accession

is perfected.

(6) A secured party who, pursuant to this Act, has the right to remove an accession

must exercise this right of removal in a manner that––

(a) causes no greater damage or injury to the whole or to the other goods; or

(b) puts the person in possession of the whole to greater inconvenience,

than is necessarily incidental to the removal of the accession.

(7) A person, other than the debtor, who has an interest in the whole at the time when

the goods subject to the security interest become an accession, is entitled to reimbursement

for any damages to the interest of the person in the whole that is caused during the removal

of the accession, but is not entitled to reimbursement for reduction in the value of the

whole that is caused by the absence of the accession or by the necessity of replacement.

(8) The person entitled to reimbursement pursuant to subsection (7) may refuse

permission to remove the accession until the secured party has given adequate security

for the reimbursement.

(9) The secured party may apply to a court for one or more of the following—

(a) an order determining the person who is entitled to reimbursement pursuant

to this section;

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(b) an order determining the amount and kind of adequate security to be

provided by the secured party;

adequate security for reimbursement.

(10) A person who has an interest in the whole that is subordinate to a security interest

in an accession as provided in this section may, before the accession has been removed

from the whole by the secured party, retain the accession on payment to the secured party

of the lesser of—

(a) the amount secured by the security interest entitled to priority; or

(b) the market value of the accession if the accession were removed from the

other goods.

(11) The secured party who has a right to remove the accession from the whole must

give a notice of the secured party’s intention to remove the accession to each person—

(a) who is known by the secured party to have an interest in the whole; or

(b) who has registered a notice using the name of the debtor and mentioning

the other goods and including the serial number of the other goods if they

are serial numbered vehicles.

(12) The notice under subsection (11) is to contain—

(a) the name and address of the secured party;

(b) a description of the goods to be removed;

interest;

(d) the estimated market value of the accession;

(e) a description of the other goods or the whole; and

(f) a statement of intention to remove the accession unless an amount referred

toinsubsection(10)ispaidonorbeforeaspecieddaythatisnotlessthan

5 days after the notice is given.

(13) A notice under subsection (11) is to be given at least 10 days before removal of

the accession and must be given by one of the methods listed in section 103.

Priority of security interests in commingled goods

67.—(1) A security interest may not be created in commingled goods, however,

a security interest may attach to a product or mass that results when goods become

commingled goods.

(2) A security interest in goods that subsequently become part of a product or mass

continues in the product or mass if the goods are some manufactured, processed, assembled,

or commingled that their identity is lost in the product or mass.

Personal Property Securities—45 of 2017434

(3) Perfection of a security interest in goods that subsequently become part of a product

or mass is to be treated as perfection of the security interest in the product or mass without

the need for registering a notice, and the priority of the security interest in the product

or mass is measured from the time of perfection of the security interest in the collateral

that became commingled.

(4) If more than one security interest attaches to the product or mass—

(a) a perfected security interest continuing in the product of mass has priority

over an unperfected security interest continuing in the same product or

mass;

(b) if more than one perfected security interest continues in the same product

or mass, each perfected security interest is entitled to share in the product

or mass according to the ratio that the obligation secured by the perfected

security interest bears to the sum of the obligations secured by all perfected

security interests in the same product or mass; and

product or mass, each unperfected security interest is entitled to share in

the product or mass according to the ratio that the obligation secured by the

unperfected security interest bears to the sum of the obligations secured by

all unperfected security interests in the same product or mass; and

(d) a perfected purchase money security interest in goods that continues in the

product or mass has priority over—

(i) a non-purchase money security interest in the goods that continues in

the product or mass; and

(ii) a non-purchase money security interest in the product or mass given

by the same debtor.

Priority of security interests in certain vessels and aircraft

68. A security interest under this Act, whether or not it is perfected, is subordinate to

a mortgage, charge, lien, or other interest registered—

(a) with respect to a vessel under the Maritime Transport Act 2013; or

(b) with respect to aircraft under any written law of Fiji that requires the

registration of charges over aircraft in order to be effective,

without regard to the time of attachment or perfection of the security interest under this

Act, or the time of registration of a notice of the security interest under this Act.

PART 7—REGISTRATION

Personal Property Securities Registry

69.—(1) A Personal Property Securities Registry is established to receive, index,

store and retrieve notices by electronic means delivered by secured parties and execution

creditors, and to collect authorised fees.

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435

(2) No person has a claim against the Registry for errors in Registry records committed

by a person who registers a notice, or for failure to provide registry services for reasons

beyond the control of the Registry.

(3) The duties of the Registrar are administrative—

(a) by registering a notice or refusing to register a notice, the Registrar does

notdeterminethesufciency,correctness,authenticity,orvalidityofthe

notice or any information contained in the notice; and

(b) the registering of a notice does not create a security interest in collateral

and does not provide evidence that a security interest in collateral exists.

(4) Information contained in a led noticeisapublicrecordandanyperson may

inspect notices in the Registry.

(5) The Registry is to be operated at all times unless the Registrar suspends the operation

of the Registry, in whole or in part, for routine maintenance or if the Registrar considers

that it is not practical to provide any service relating to the Registry.

Initial notice

70.—(1) Aninitialnoticeissufcientifit—

(a) identiesthedebtorandprovidesaphysicaladdress;and

(b) identiesthesecuredpartyoranagentofthesecuredpartyandprovidesa

physical address; and

(2) For the purpose of subsection (1)(c),anoticethatcoversxtures,timbertobecut

or as-extracted collateral must include a reasonable description of the location of the real

propertywherethextures,timbertobecutoras-extractedcollateralislocated.

(3) For purposes of this section the term “a reasonable description of the location of

the real property” means a physical address where available, and if no physical address is

available then another description that would allow a searcher to determine the approximate

locationoftheland,butthetermdoesnotrequirealegaldescriptionsufcienttorecord

a mortgage.

(4) Adebtormustauthorisethelingofaninitialnoticebysigningasecurityagreement

or a separate agreement.

(5) A signature may be any tangible indication of the debtor’s intent to enter the

security agreement.

(6) Authorisation by the debtor need not be contained in the notice, need not be

disclosed to the Registrar, and may be given after registration.

(7) By signing a security agreement, a debtor authorises the registering of an initial

notice covering the collateral described in the security agreement, and proceeds of the

collateral, whether or not the security agreement expressly covers proceeds.

Personal Property Securities—45 of 2017436

Notice of the interest of an execution creditor

71.—(1) A notice of the interest of an execution creditor must include—

(a) identicationoftheexecutioncreditor;

(b) identicationofthepersonowingpaymentorperformancetotheexecution

creditor; and

may claim a right in the same manner as provided in this Act for registering

a notice of a security interest.

(2) A notice may be registered by the execution creditor or, upon request of the

execution creditor, by the court on behalf of at the execution creditor—

(a) with respect to the holder of a money judgment, at the time the money

judgment is entered or at any time thereafter; or

(b) inthecaseofabankruptcytrusteeoraliquidator,atthetimeoftheling

of a petition under the laws of bankruptcy or insolvency or at any time

thereafter.

(3) With respect to a charge in favour of a taxing authority for the State for outstanding

taxes, a notice may be registered by the taxing authority for the State after the time a

demand has been made upon the taxpayer and the full amount due has not been paid in

accordance with the demand.

(4) Forthepurposesoflingamendments,continuationsandterminations,anexecution

creditor has the same rights and responsibilities as a secured party.

Notice registered prior to security agreement or attachment

72. A notice may be registered before a security agreement is concluded and before

a security interest attaches to collateral.

Notice may apply to multiple agreements

73. A notice may relate to one or more security agreements.

Name of the debtor

74.—(1) Anoticesufcientlyidentiesthedebtorwhen—

(a) in the case of an individual who is a citizen of Fiji, the notice contains the

debtor’staxpayeridenticationnumber;

(b) in the case of an individual who is not a citizen of Fiji, the notice contains

the name of the person as indicated on the individual’s passport;

Fiji or other written law of Fiji, the notice contains the name of the debtor

as provided by law that established the entity;

(d) in the case of an entity organised or authorised to do business under the

Companies Act 2015 or other Act in which documents of organisation are

subject to registration in the companies registry, the company number and

nameoftheentityasitappearsonthecerticateissuedbythecompanies

registry;

Personal Property Securities—45 of 2017

437

(e) in the case of a distinct legal entity which is not registered under the

Companies Act 2015 or other Act in which documents of organisation are

subject to registration, the name of the entity as it appears on the document

creating the entity; or

(f) in the case of a foreign registered entity not authorised to do business under

the laws of Fiji, the notice provides the name of the debtor as shown on the

appropriate registry in the country where the foreign entity is organised.

(2) A notice that sufciently identies the debtor is not rendered insufcient or

ineffective by the presence or absence of a trade name or other alias name of the debtor.

(3) A notice that provides only the debtor’s trade name or other alias but does not

complywithsubsection(1)doesnotsufcientlyidentifythedebtor.

(4) A notice may identify more than one debtor and the name of more than one secured

party.

(5) The failure to indicate on a notice that a person is a representative of the secured

partydoesnotaffectthesufciencyofanotice.

Notice is effective unless seriously misleading

75.—(1) The validity or the registration of a notice is not affected by any defect,

irregularity, omission or error in the notice unless the defect, irregularity, omission or

error is seriously misleading.

(2) Anoticethatinsufcientlyidentiesthedebtorisseriouslymisleading.

(3) Failure to include a description of any item or kind of collateral in a notice does

not affect the validity of the registration in respect of the description of other collateral

included in the notice.

(4) In order to establish that a defect, irregularity, omission, or error is seriously

misleading, it is not necessary to prove that any person was actually misled by it.

Effect of change of circumstances

76.—(1) A registered notice remains effective with respect to collateral that is sold,

exchanged, leased, licensed, or otherwise disposed of and in which a security interest

continues, even if the secured party knows of or consents to the disposition.

(2) If a debtor changes its name so that the notice becomes seriously misleading,

(a) the notice remains effective, without amendment, to perfect a security

interest in collateral acquired by the debtor for 120 days after the change

of name; and

(b) the notice is not effective to perfect a security interest in collateral acquired

by the debtor more than 120 days after the change of name unless an

amendment to the notice which renders the notice not seriously misleading

isledwithin120daysafterthenamechange.

Personal Property Securities—45 of 2017438

(3) Except as provided in this section for a change of debtor name, a notice remains

effective if, after the notice is registered, a change of circumstances renders the notice

seriously misleading.

Duration of notice and effect of lapse

77.—(1) A registered notice is effective for a period measured in years that is designated

by the person who registers the notice, and lapses at the end of the designated period

unless, before the lapse, a continuation is registered.

(2) Upon lapse, a notice becomes ineffective and a security interest that was perfected

by the notice becomes unperfected, unless the security interest is perfected by another

means permitted under this Act.

(3) If the security interest becomes unperfected upon lapse, it is deemed never to have

been perfected against a purchaser of the collateral for value.

Amendment of notice

78.—(1) An initial notice may be amended by one or more amendments.

(2) An amendment must—

(a) identify the initial notice by its registration number;

(b) identify each secured party on the notice who authorises the amendment;

(d) provide all of the information required of an initial notice, completely

restatingthenoticeinamannerthatreectstheamendedstateofthenotice.

(3) If an amendment adds collateral covered by a notice, or adds a debtor to a notice,

it is effective if the debtor authorises the registration in a signed writing.

(4) For the purposes of subsection (3)—

(a) by signing a security agreement that adds collateral, a debtor authorises

the registration of an amendment covering the collateral described in the

security agreement, and proceeds of the collateral, whether or not the

security agreement expressly covers proceeds; and

(b) by signing a security agreement, a new debtor authorises the registering

of an amendment that adds the name and address of the new debtor to the

notice.

(5) An authorisation by the debtor under subsection (4)—

(a) need not be contained in the amendment; and

(b) need not be disclosed to the Registrar; and

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(6) An amendment that adds a debtor or adds collateral is effective as to the added

debtor or added collateral only from the date of the registration of the amendment.

(7) An amendment is ineffective if it purports to delete all secured parties and fails to

provide the name of a new secured party, or purports to delete the names of all debtors

and fails to provide the name of a new debtor not previously named on the notice.

(8) If there is more than one secured party on the notice—

(a) any secured party or all secured parties may authorise the registration of an

amendment; and

(b) an amended notice is only effective as to each secured party who authorises

it.

(9) The registration of an amendment does not extend the period of effectiveness of

a notice.

Continuation of notice

79.—(1) The period of effectiveness of a notice may be continued by registering a

continuation that—

(a) identiestheinitialnoticebyitsregistrationnumber;and

(b) identiesasecuredpartyonthenoticewhoauthorisesthecontinuation.

(2) A continuation may be registered only within 6 months before the date upon which

the notice would otherwise lapse.

(3) Upon timely registration of a continuation, the effectiveness of the notice continues

for a period of 5 years commencing on the day on which the notice would have become

ineffective in the absence of the continuation.

(4) The effectiveness of a notice is continued only with respect to the secured party

who authorised the registration of the continuation.

(5) Upon the expiration of the new 5 year period—

(a) the notice lapses with respect to the secured party unless, before the lapse,

another continuation authorised by that secured party is registered; and

(b) succeeding continuations may be registered in the same manner to continue

the effectiveness of the notice.

Termination of notice

80.—(1) The effectiveness of a notice may be terminated by registering a termination

that—

(a) identiestheinitialnoticebyitsregistrationnumber;

(b) identiesasecuredpartyonthenoticewhoauthorisesthetermination;and

the secured party who authorised the registration of the termination.

Personal Property Securities—45 of 2017440

(2) Within 14 days after the secured party receives a written demand by the debtor,

the secured party on a notice must register a termination if—

(a) there is no outstanding secured obligation and no commitment to make an

advance, incur an obligation, or otherwise give value;

(b) the debtor did not authorise the registration of the initial notice; or

but as to which the account debtor or other person obligated has discharged

its obligation.

(3) A termination terminates the effectiveness of a notice with respect to a secured party

on the notice only if the termination is authorised in a signed writing by that secured party.

(4) Upon the registration of an effective termination, the notice to which the termination

relates becomes ineffective with respect to the authorising secured party.

Effectiveness of notice

81. An initial notice, amendment, continuation or termination is effective at the time it

is available to the public by means of a search of the records of the Registry as provided

in this Act.

Registrar’s refusal to register a notice

82.—(1) The Registrar may refuse to register a notice only because—

(a) in the case of an initial notice, the notice does not identify a debtor;

(b) in the case of an amendment, the amendment does not identify the name of

a debtor, does not provide the registration number of the initial notice, or

theamendmentidentiesaninitialnoticewhoseeffectivenesshaslapsed;

registration number of the initial notice, or was not submitted within the

permitted 6-month time period;

(d) in the case of a termination, the termination does not provide the registration

number of the initial notice, or the termination relates to an initial notice

that has lapsed with respect to each secured party on the notice; or

(e) less than the full registration fee is tendered, or no other arrangement has

been made for the payment of the fee.

(2) If the Registrar refuses to accept a notice for registration, it must promptly

communicate the fact of and reason for its refusal to the person that presented the notice.

Effect of secured party’s notice on other secured parties on the notice

83. An amendment, continuation or termination authorised by one secured party on

the notice does not affect the rights of another secured party on the notice.

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Duties of the Registrar

84.—(1) For each notice registered, the Registrar must—

(a) assign a unique registration number in the case of an initial notice;

(b) assign a unique number to notices other than the initial notice;

registration; and

(d) maintain registered notices for public inspection.

(2) The Registrar must maintain the capability to retrieve Registry records—

(a) by the identity of the debtor;

(b) by the registration number of the initial notice, in a manner that associates the

initial notice with all related amendments, continuations and terminations;

and

providedonthenoticeinaeldprescribedbytheRegistrar.

(3) A notice that the Registrar fails to maintain as required in subsection (2) remains

effective except against a purchaser of the collateral that gives value in reasonable reliance

upon the information available from the Registry.

(4) The Registrar must maintain records of lapsed or terminated notices for a period

of 10 years beyond the date of lapse or termination.

Public access to Registry records

85.—(1) Information contained in notices are public information and are the property

of the State.

(2) The Registrar must communicate the following information to any person that

requests it—

(a) whether there is registered a notice that designates a particular debtor or

serial number and has not lapsed with respect to all secured parties;

(b) the registration number, and the date and time of registration of each notice;

(d) all of the information contained in each notice.

(3) The Registrar may communicate information in any medium.

(4) Notwithstandingsubsection(3),ifrequested,theRegistrarmustissueacertied

searchreportorotherreportasmayberequiredandbearingawrittencerticate.

(5) AcopyoforextractfromanydocumentlodgedwiththeRegistry,andcertiedby

the Registrar, is, in any proceeding, admissible in evidence as of equal validity with the

original document or lodgement.

Personal Property Securities—45 of 2017442

(6) The Registrar may communicate information in bulk about some or all registered

notices to interested persons from time to time, on terms agreeable to the Registrar and,

notwithstanding section 113(d), including a reasonable fee for provision of the service.

Notice does not constitute constructive notice

86. Registration of a notice in the Registry is not constructive notice or knowledge of

its existence or contents to any person.

PART 8—ENFORCEMENT OF SECURITY INTERESTS

Application of this Part

87.—(1) This Part does not apply to—

(a) a commercial consignment that does not secure payment or performance of

an obligation;

(b) the interest of an execution creditor; or

(2) The rights and remedies set out in this Part are cumulative.

(3) A security interest does not merge merely because a secured party has obtained a

judgment against the debtor.

Secured party rights upon default

88.—(1) If the debtor defaults on its obligation to pay or otherwise perform, or upon

the occurrence of another event of default, the security interest becomes enforceable.

(2) Upon default, the secured party must have—

(a) the rights and remedies set forth in the security agreement;

(b) the right to possession or control of the collateral, even if the security

agreement is silent about possession or control;

(d) other rights or remedies provided in this Act; and

(e) notwithstanding anything to the contrary in this Act, the rights or remedies

provided in any other written law.

Recovery without judicial process in certain cases

89.—(1) Upon default, a secured party with a security interest in chattel paper, an

account receivable, secured sales contract or intangible may instruct the account debtor or

any other person obligated to pay to make payment to the secured party, and must apply

such payment to satisfaction of the obligation secured by the security interest.

(2) Upon default, a secured party with a security interest in a document of title that is

perfected by possession may proceed as to the goods covered by the document of title.

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443

(3) If so agreed by the debtor, and in any event after default––

(a) anancialinstitutionwithaperfectedsecurityinterestinadepositaccount

maintainedbythenancialinstitutionmayapplythebalanceofthedeposit

account to the obligation secured by the deposit account; and

(b) in other cases, a secured party that has a security interest in a deposit

account perfected by control may instruct the bank to pay the balance of

the deposit account to the secured party’s account.

(4) Where the collateral is a licence, the secured party may seize the collateral by

giving notice to the debtor, or to the grantor of the licence or any successor to the interest

in the licence.

(5) A secured party may deduct reasonable expenses of collection under this section.

from—

(a) amounts collected from a debtor or from a person obligated to pay or

perform; or

(b) money held as collateral.

(6) The secured party may act under this section without judicial process,

notwithstanding any other provision of this Act.

Secured party’s right to take possession and dispose of collateral

90. Subject to sections 62 and 66 and any rule of law requiring prior notice, on default

under a security agreement—

(a) the secured party has, unless otherwise agreed, the right to take possession

of the collateral or otherwise enforce the security agreement by any method

permitted by law; and

(b) where the collateral is goods of a kind that cannot be readily moved from

the debtor’s premises or of a kind for which adequate storage facilities

are not readily available, the secured party may seize or repossess the

collateral without removing it from the debtor’s premises in any method

permittedbylaw,includingbywhichanexecutionofceractingundera

writ of execution may seize without removal, if the secured party’s interest

is perfected by registration; and

the debtor’s premises, but must not cause the person in possession of the

premises any greater inconvenience and cost than is necessarily incidental

to the disposal; and

(d) if the collateral is a document of title, the secured party may—

(i) proceed either as to the document of title or as to the goods covered

by it; and

Personal Property Securities—45 of 2017444

(ii) a method of enforcement that is available with respect to the

documentoftitleisalsoavailable,withanynecessarymodication,

with respect to the goods covered by it.

Manner of disposition of collateral

91.—(1) The disposition of collateral may be––

(a) by private sale;

(b) by public sale, including public auction or closed tender;

(d) by lease, credit sale, licence; or

(e) other commercially reasonable manner of disposition.

(2) After seizing or repossessing the collateral, a secured party may dispose of it in

its existing condition or after repair, processing or preparation for disposition, and the

proceeds of the disposition must be applied consecutively to––

(a) the reasonable expenses of seizing, repossessing, holding, repairing,

processing or preparing for disposition and disposing of the collateral and

any other reasonable expenses incurred by the secured party; and

(b) the satisfaction of the obligations secured by the security interest of the

party making the disposition,

any surplus must be dealt with in accordance with section 97.

(3) The secured party may delay disposition of the collateral in whole or in part.

Duty to act in a commercially reasonable manner

92.—(1) In disposing of collateral, the secured party must act in a commercially

reasonable manner.

(2) A disposition is not commercially unreasonable merely because a better price could

have been obtained by disposition at a different time or by a different method from the

time and method adopted by the secured party.

(3) A disposition is commercially reasonable if the secured party disposes of the

collateral in conformity with commercial practices among dealers in that type of property.

(4) If a method of disposition of collateral has been approved in any legal proceeding,

it is conclusively deemed to be commercially reasonable, but no such approval is required

by this Act.

Obligation to give notice of disposition of collateral

93.—(1) Not less than 7 days prior to disposition of the collateral, a secured party

must deliver a notice to––

(a) the debtor;

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445

(b) any other person who is known by the secured party to be an owner of the

collateral;

effective at the time the secured party took possession of the collateral; and

(d) any other person with an interest in the collateral who has given a written

notice to the secured party of that person’s interest in the collateral prior to

the day on which the notice of disposition is given to the debtor.

(2) Thedebtormaywaivetherighttobenotied.

(3) A notice under subsection (1), delivered by a secured party, must contain—

(a) a description of the collateral;

(b) the amount required to satisfy the obligations secured by the security

interest;

has not been determined, a reasonable estimate;

(d) the day, time and place of any sale by public auction, the place to which

closed tenders may be delivered and the day after which closed tenders

will not be accepted, or the day after which any private disposition of the

collateral is to be made; and

(e) the name of the debtor and the secured party.

(4) A notice under this section is not required where—

(a) the collateral is perishable;

(b) the secured party believes on reasonable grounds that the collateral will

decline substantially in value if it is not disposed of as soon as practicable;

relation to its value;

(d) the collateral is of a type that is to be disposed of by sale on an organised

market that handles large volumes of transactions between many different

sellers and many different buyers;

(e) the collateral is money authorised or adopted by a foreign government as

part of its currency;

(f) after default, each person entitled to receive a notice of disposition consents

in writing to the disposition of the collateral without compliance with the

notice requirements of this section; or

(g) for any other reason, a court on ex parteapplicationissatisedthatanotice

is not required.

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Secured party may purchase collateral at public sale

94. The secured party may purchase the collateral or any part of it only at any public

or private sale for a price that bears a reasonable relationship to the market value of the

collateral.

Rights of purchasers of collateral

95.—(1) Where a secured party disposes of the collateral to a purchaser for value and

in good faith and who takes possession of it—

(a) the purchaser acquires the collateral free from—

(i) the interest of the debtor;

(ii) an interest subordinate to that of the debtor; and

(iii) an interest subordinate to that of the secured party whether or not the

requirements of this Part have been complied with by the secured

party; and

(b) all obligations secured by the subordinate interests are deemed to be

performed for the purposes of a demand to terminate a notice.

(2) This section applies regardless of the manner in which the secured party gained

possession or control of the collateral.

Secured party’s disposition of a licence

96. Notwithstanding any other provision of this Part, where the collateral is a licence,

the collateral may be disposed of only in accordance with the terms and conditions that

applied at the time that the secured party took control of the licence.

Application of proceeds and surplus or deciency

97.—(1) The proceeds of disposition must be applied in the following order—

(a) the reasonable expenses of retaking, holding, preparing for disposition,

and disposing of the collateral, including reasonable attorneys’ fees and

legal expenses incurred by the secured party;

(b) the satisfaction of obligations secured by any senior security interest or

lien;

enforcing secured party;

(d) the satisfaction of obligations secured by any subordinate security interest

or lien, or by a subordinate execution creditor, in the collateral if a written

demand and proof of the interest are received before distribution of the

proceeds is completed.

(2) The secured party must give a written accounting of—

(a) the amount received from the disposition of collateral or the amount

collected under section 89;

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447

(b) the manner in which the collateral was disposed of;

(d) the distribution of the amount received from the disposition or collection;

and

(e) the amount of any surplus,

to a person under subsection (1) within 30 days after receipt of a written request for an

accounting.

(3) Where there is a question as to who is entitled to receive payment under this

section, the secured party may pay the surplus into court, and the surplus must not be paid

out except on an application under section 108 by a person claiming an entitlement to it.

(4) Except as otherwise agreed or as otherwise provided in this Act or any other Act,

thedebtorisliabletopaytheamountofthedeciencytothesecuredparty.

Secured party’s right to retain collateral

98.—(1) After default, the secured party may propose to the debtor to take all or part

of the collateral in satisfaction of all or a part of the debtor’s obligation, and must give

notice of the proposal to—

(a) the debtor;

(b) any other secured party or lien holder who, 5 days before the notice is

giventothedebtor,hasperfecteditssecurityinterestorlienbyling;

notice to the secured party before the notice is given to the debtor.

(2) If the secured party receives objection in writing from a person entitled to receive

notice under subsection (1) within 15 days after the notice was given, the secured party

must dispose of the collateral as otherwise provided in this Division unless otherwise

directed by the court.

(3) If no objection is received within the 15 day period, the secured party must be

deemed to have irrevocably elected to retain the collateral in satisfaction of the debtor’s

obligation in accordance with the proposal.

(4) The secured party may request that any person mentioned in subsection (1), other

than the debtor, furnish proof of that person’s interest and, unless the person furnishes proof

not later than 10 days after the secured party’s request, the secured party may proceed as

if no objection were received from the person.

(5) The secured party may request that any person mentioned in subsection (1), other

than the debtor, furnish proof of that person’s interest and, unless the person furnishes proof

not later than 14 days after the secured party’s request, the secured party may proceed as

if no objection were received from the person.

Personal Property Securities—45 of 2017448

(6) On application by a secured party, the court may determine that an objection to

the proposal of a secured party is ineffective on the ground that—

(a) the person made the objection for a purpose other than the protection of an

interest in the collateral or proceeds of a disposition of the collateral; or

(b) the market value of the collateral is less than the total amount owing to the

secured party and the costs of disposition.

Debtor’s right to redeem collateral

99. At any time after the secured party has taken possession of the collateral but

before the secured party sells or agrees to sell the collateral or is deemed to have taken

the collateral in satisfaction of the obligation secured by it, the debtor and any person who

is entitled to receive a notice of disposition under section 93(1) may, unless otherwise

agreed in writing after default, redeem the collateral by—

(a) tenderingfullmentoftheobligationssecuredbythecollateral;and

(b) a sum equal to the reasonable expenses of seizing, repossessing, holding,

repairing, processing and preparing the collateral for disposition, if those

expenses have actually been incurred by the secured party, and any other

reasonable expenses incurred by the secured party in enforcing the security

agreement.

Debtor’s right to reinstate security agreement

100.—(1) At any time after the secured party has taken possession of the collateral but

before the secured party sells or agrees to sell the collateral or is deemed to have taken

the collateral in satisfaction of the obligation secured by it, the debtor may, unless the

debtor has otherwise agreed in writing after default, reinstate the security agreement by—

(a) paying the sums actually in arrears, exclusive of the operation of an

acceleration clause in the security agreement; and

(b) remedying any other default by reason of which the secured party intends

to sell the collateral; and

holding, repairing, processing, and preparing the collateral for sale, if those

expenses have actually been incurred by the secured party, and any other

reasonable expenses incurred by the secured party in enforcing the security

agreement.

(2) Subsection (1) does not apply to any security agreement made or entered into

before the commencement of this Act.

(3) Unless otherwise agreed, the debtor is not entitled to reinstate a security agreement—

(a) more than once, if the security agreement provides for payment in full by

the debtor not later than 12 months after the day on which value was given

by the secured party; or

Personal Property Securities—45 of 2017

449

(b) more than once in each year, if the security agreement provides for payment

by the debtor during a period greater than one year after the day on which

value was given by the secured party.

(4) Where the right to reinstate the agreement is exercised under this section—

(a) uponthereceiptoftherequiredamount,orconrmationoftheperformance

of the accrued obligations and the default being remedied, the secured

party must forthwith return the collateral to the debtor; and

(b) the debtor is deemed to receive and hold the returned collateral pursuant to

the terms of the security agreement as if the default had not occurred and

the secured party had not taken possession of the collateral.

(5) Where the collateral is returned to the debtor and a particular default has not been

remedied, the secured party does not have any right, arising out of that default, to retake

possession of the collateral unless—

(a) by notice in writing served on the debtor at the time of the return of the

collateral, the secured party species the default and requires it to be

remedied; and

(b) thedebtorfailstoremedythedefaultwithinaperiodtobespeciedinthe

notice (being a period of not less than 14 days after the service of the notice

on the debtor).

Enforcement of a security interest in a mortgage

101.—(1) Subject to any other Act or rule of law to the contrary, where the same

obligation is secured by an interest in a mortgage in real property and a security interest

in personal property, the secured party may—

(a) without limiting the secured party’s rights, remedies and duties with respect

to the land, proceed under this Part as to the personal property; or

(b) proceed as to both the interest in the mortgage and the personal property.

(2) Subsection (1)(b) does not limit the rights of a secured party who has a security

interest in personal property that is taken before or after the security interest mentioned

in subsection (1).

(3) For the purpose of distributing the amount received from the sale of the real property

and personal property under this section, where the purchase price is not allocated to the

real property and the personal property separately, the amount of the total price that is

attributable to the sale of the personal property is the market value of the personal property

at the time of sale.

Remedies for secured party non-compliance

102.—(1) If the secured party does not comply with the requirements of this Part, the

court may order or restrain disposition of collateral.

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(2) If disposition has occurred, the debtor or any person entitled to be informed or

whose security interest has been made known to the secured party prior to the disposition

has a right to recover from the secured party any loss caused by a failure to comply with

this Part.

Manner of notication to debtors, secured parties and other persons

103.—(1) Where a provision of this Act requires or permits the communication of a

demandornoticationtoaperson,thenoticationiseffective—

(a) inthecaseofanaturalpersonwhoisadebtor,whenthenoticationis—

(i) delivered to the debtor;

(ii) posted by registered mail to the debtor’s last known postal address;

(iii) despatched in accordance with the security agreement; or

(iv) sent by electronic mail or any other approved electronic means;

(b) in the case of a secured party named on a registered notice, when the

noticationis—

(i) delivered to the secured party;

(ii) posted by registered mail to the address on the registered notice; or

(iii) sent by electronic mail or any other approved electronic means;

noticationis—

(i) delivered to the person;

(ii) posted by registered mail to the person’s postal address as stated in

the request;

(iii) in the case of a company, posted to or delivered at the company’s

registeredofce;

(iv) despatched in accordance with an agreement with the person; or

(v) sent by electronic mail or any other approved electronic means; or

(d) inthecaseofanyotherperson,whenthenoticationis—

(i) delivered to the person;

(ii) in the case of a company, posted to or delivered at the company’s

registeredofce;

(iii) despatched in accordance with an agreement with the person; or

(iv) sent by electronic mail or any other approved electronic means.

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451

(2) Notwithstandingsubsection(1),noticationtoapersonthatisacompanyorganised

or registered under the Companies Act 2015 may be made in any manner authorised by

that Act.

(3) Notwithstanding subsection (1), a notice or document served or given by electronic

mail or other similar means of communication is acceptable where the recipient of the

notice has agreed that electronic mail is an authorised means of communication.

PART 9—CONFLICT OF LAWS

When the laws of Fiji apply

104.—(1) Except as otherwise provided in this Act, the validity, perfection, and the

effect of perfection or non-perfection of a security interest in goods or a possessory security

interest in chattel paper, investment property, money, a document of title, or a negotiable

instrument, is governed by the laws of Fiji if—

(a) at the time the security interest attaches to the collateral, the collateral is

situated in Fiji;

(b) at the time the security interest attaches to the collateral, the collateral is

situated outside Fiji but the secured party has knowledge that it is intended

to move the collateral to Fiji;

the transaction; or

(d) in any other case, the laws of Fiji apply.

(2) For the purposes of subsection (1), investment property that is not in the form of

asecurityevidencebyacerticateissituatedwheretherecordsoftheclearinghouseor

securities depository are kept.

Continuity of perfection where goods are moved to Fiji

105.—(1) A security interest in goods that is perfected under the law of the jurisdiction

in which the goods are situated when the security interest attached and before the goods

are brought into Fiji continues to be perfected in Fiji if it is perfected in Fiji by the earliest

of the following––

(a) not later than 60 days after the day on which the goods are brought into

Fiji;

(b) not later than 14 days after the day on which the secured party has

knowledge that the goods have been brought into Fiji; or

goods were situated when the security interest attached.

(2) A security interest that is not perfected as provided in subsection (1) may be

otherwise perfected in Fiji under this Act.

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Location of debtor

106.—For the purposes of section 107—

(a) a debtor that is a corporate body is located in the country of incorporation;

and

(b) a debtor that is not a corporate body is located at––

(i) the debtor’s place of business;

(ii) the debtor’s principal place of business if the debtor has more than

one place of business; or

(iii) the debtor’s principal residence if the debtor has no place of business.

Validity and perfection of security interests in intangibles and certain goods

107. The validity, perfection, and effect of perfection or non-perfection of a security

interestisgovernedbythelaw,includingtheconictoflawsrules,ofthejurisdiction

where the debtor is located when the security interest attaches, if the security interest is—

(a) a security interest in an intangible;

(b) a security interest in goods that are of a kind that are normally used in more

than one jurisdiction, if the goods are equipment or inventory leased or

held for lease by a debtor to others; or

document of title, money, or a negotiable instrument.

Position where debtor relocates

108. If a debtor relocates to another jurisdiction or transfers an interest in collateral

to a person located in another jurisdiction, a security interest perfected in accordance

with the law applicable, as provided in section 25, continues to be perfected in Fiji if it

is perfected in the other jurisdiction by the earliest of the following—

(a) not later than 60 days after the day on which the debtor relocates or transfers

an interest in the collateral to a person located in the other jurisdiction;

(b) not later than 14 days after the day on which the secured party has

knowledge that the debtor has relocated or transferred an interest in the

collateral to a person located in the other jurisdiction; or

jurisdiction.

Priority where there is no public record of a perfected security interest

109.—(1) If the law governing the perfection of a security interest referred to in this

Part does not provide for public registration or recording of the security interest or a notice

relating to it, and the collateral is not in the possession of the secured party, the security

interest is subordinate to—

(a) an interest in an account receivable, chattel paper, or instrument that is

payable in Fiji; or

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453

(b) an interest in goods, investment property, a negotiable instrument, a

document of title, money, or chattel paper, acquired when the collateral

was situated in Fiji.

(2) Subsection (1) does not apply if the security interest is perfected under this Act

before the interest referred to in subsection (1)(a) or subsection (1)(b) arises.

(3) A security interest to which subsection (1) applies may be perfected under this Act.

Perfection of security interest in as-extracted collateral

110. Notwithstanding anything in this Act to the contrary, the perfection and the

effect of perfection or non-perfection of a security interest in as-extracted collateral is

governed by the law of the jurisdiction in which the minehead or wellhead is located if

the security interest—

(a) is provided for in a signed security agreement before extraction; and

(b) attaches to the as-extracted collateral.

PART 10—MISCELLANEOUS

Transitional

111.—(1) In this Part—

“prior lien” means the right of an execution creditor whose right arose prior to

the commencement of this Act;

“prior transaction” means a transaction concluded prior to the commencement

of this Act that would otherwise fall within the scope of this Act; and

“transitional notice” means notice of the interest of a person under a prior lien

or prior transaction.

(2) The validity, effect and enforcement of a prior transaction or prior lien must be

determined by reference to the law in effect when the prior transaction was concluded or

the prior lien arose, except as provided otherwise in this section.

(3) The provisions of this Act on registration, priority, and enforcement apply to a

priortransactionorpriorlienonlyinthecaseofconictbetweenthepriortransactionor

prior lien and a security interest created under this Act.

(4) A creditor under a prior transaction and the holder of a prior lien may register a

transitional notice at any time.

(5) A transitional notice—

(a) may be registered in the same manner as provided for a notice of a security

interest or notice of the right of an execution creditor; and

(b) the authorisation of the debtor is not required.

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(6) If a transitional notice registered—

(a) on or before the 180th day from the commencement of this Act, the interest

subject to the transitional notice has priority over a security interest created

under this Act, with priority measured from the date of the commencement

of this Act; and

(b) after the 180th day from the commencement of this Act, the priority of the

interest subject to the transitional notice against a security interest created

under this Act must be determined—

(i) according to the priority rules established in this Act; and

(ii) from the date of registration of the transitional notice.

(7) Except as provided in subsection (6), if no transitional notice is registered, a security

interest perfected under this Act has priority over the prior transaction or prior lien.

Offences

112.—(1) Any person who registers a notice with malicious intent or fraudulently,

commitsan offenceandisliableupon convictiontoanenotexceeding$50,000 or

imprisonment for a term not exceeding 10 years or both.

(2) Any person who wilfully and without proper authorisation destroys or tampers with

any record that is in the Registry, or attempts to destroy or tamper with any such record,

commitsanoffenceandisbeliableuponconvictiontoanenotexceeding$50,000or

imprisonment for a term not exceeding 10 years or both.

(3) Any person who wilfully and forcibly obstructs a secured party or a secured party’s

agent who is lawfully exercising any power to take possession of collateral, commits an

offence against this Act, and is liable upon summary conviction to a nenotexceeding

$50,000orimprisonmentforatermnotexceeding10yearsorboth.

(4) Any person who attempts to conceal or otherwise alters collateral subject to a

security interest hereunder with the intent to defraud or otherwise prevent a secured

party of the ability to enforce its security interest commits an offence and is liable upon

convictiontoanenotexceeding$50,000orimprisonmentforatermnotexceeding10

years or both.

Regulations

113. The Minister may make regulations prescribing matters that are required or

permitted by this Act to be prescribed or necessary or convenient to be prescribed for

carrying out or giving effect to this Act, including—

(a) a secure method for registration or lodgement of notices, including—

(i) identicationofthepersonwhoregistersanotice;

(ii) identicationofthepersonsnamedonanoticeledintheRegistry;

and

(iii) authorisation to amend, continue, or terminate a notice; and

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455

(b) the method of payment of fees;

of maintaining the Registry, including a reasonable reserve;

(d) afeeforissuingacertiedsearchreport,buttheremustbenofeeforan

uncertiedsearchreport;

(e) the maximum charge, if any, for a request by a debtor under section 19;

(f) the requirements for a security agreement;

(g) appointing a person to serve as the Registrar; and

(h) the duties or additional duties to be performed by the Registrar for the

purposes of this Act, including the collection and dissemination of

aggregated statistics related to the use of the Registry.

Consequential amendments

114. The Acts listed in the Schedule are amended as provided in the Schedule.

Personal Property Securities—45 of 2017456

SCHEDULE

(Section 114)

________

CONSEQUENTIAL AMENDMENTS

Bankruptcy Act 1944

1. The Bankruptcy Act 1944 is amended by—

(a) in section 2(1) in the denition of “secured creditor” after “from the

debtor”,inserting“andincludesasecuredpartyasdenedinthePersonal

Property Securities Act 2017”;

(b) in section 40—

(i) in paragraph (a), deleting “and”;

(ii) in paragraph (b) after “;”, inserting “and”; and

(iii) after paragraph (b), inserting the following new paragraph––

“(c) personal property that is subject to a perfected security interest

under the Personal Property Securities Act 2017 to the extent

provided under section 45,”; and

“Avoidance of security interests unless perfected

45.—(1) If a person has granted a security interest in personal property

under the Personal Property Securities Act 2017 and is subsequently

adjudicated bankrupt, the security interest in the personal property is void

against the trustee unless the security interest in the personal property

is perfected under the Personal Property Securities Act 2017 before the

trusteelesanoticeofthebankruptcylienonthepersonalpropertyofthe

bankrupt in the registry established under the Personal Property Securities

Act 2017.

(2) If the trustee determines that the value of the personal property

subject to a perfected security interest exceeds the amount of the secured

creditor’s remaining secured obligation, the trustee may redeem the

collateral by paying to the secured creditor the remaining amount of the

obligation.

(3) For the purpose of subsection (2), the trustee may require the

secured creditor to present the security agreement as evidence of the

security interest and to present evidence of the amount of the remaining

secured obligation in the form of the secured creditor’s record of account.”.

Bills of Sale Act 1879

2. The Bills of Sale Act 1879 is repealed.

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457

Companies Act 2015

3. The Companies Act 2015 is amended by—

(a) insection3,deletingthedenitionof“ChargesRegister”;

(b) in section 57(2), deleting “If” and substituting “Without limiting the

application of the Personal Property Securities Act 2017, if”;

(i) in paragraph (b) after “;”, inserting “and”;

(ii) in paragraph (c), deleting “; and” and substituting “.”; and

(iii) deleting paragraph (d);

(d) deleting sections 370 to 376;

(e) in section 377—

(i) in subsection (1)—

(A) deleting “registrable charge on property” and substituting

“charge on the property”; and

(B) deleting“documentsspeciedinsection371(1)werelodged—

(a) within the relevant period; or

(b) at least 6 months before the critical day.”

and substituting “charge is perfected by registration under the

Personal Property Securities Act 2017 at least 6 months before

the critical day.”;

(ii) in subsection (2)—

(A) deleting “registrable charge on property” and substituting

“charge on the property”; and

(B) deleting“documentsspeciedinsection371(1)werelodged—

(a) within the relevant period; or

(b) at least 6 months before the critical day.”

and substituting “charge is perfected by registration under the

Personal Property Securities Act 2017 and the date of variation

to the terms of the charge is at least 6 months before the critical

day.”; and

Personal Property Securities—45 of 2017458

(iii) in subsection (3)—

(A) deleting “lodge a notice in respect of a charge, or in respect of

a variation in the terms of a charge,” and substituting “perfect

the charge by registration under the Personal Property Securities

Act 2017”; and

(B) deleting“extendtheperiodforsuchfurtherperiodasisspecied

in the order” and substituting “amend the time of registration to

thetimespeciedintheorder”;

(f) deleting sections 379 to 385;

(g) in section 435(3) after “Act”, inserting “or the Personal Property Securities

Act 2017”; and

(h) deleting section 745.

Co-operatives Act 1996

4. The Co-operatives Act 1996 is amended in section 27(1) after “Subject to” by

inserting “the Personal Property Securities Act 2017 and”.

Crop Liens Act 1904

5. The Crop Liens Act 1904 is repealed.

Distress for Rent Act 1961

6. The Distress for Rent Act 1961 is amended after section 3 by inserting the following

new sections—

“Application of Personal Property Securities Act 2017

3A. Notwithstanding anything in this Act, a bailiff shall levy any distress for

rent in accordance with the provisions of the Personal Property Securities Act

2017.”.

Fiji Development Bank Act 1966

7. The Fiji Development Bank Act 1966 is amended by—

(a) in section 2—

(i) inthedenitionof“borrower”after“Act”,inserting“orthePersonal

Property Securities Act 2017”; and

(ii) insertingthefollowingnewdenition—

““collateral” has the same meaning as dened under the Personal

Property Securities Act 2017;”;

(b) in section 23—

(i) in subsection (1)—

(A) in paragraph (c) after “chattels”, inserting “, collateral”;

(B) in paragraph (d) after “chattels,”, inserting “collateral,”;

Personal Property Securities—45 of 2017

459

the provisions of the Personal Property Securities Act 2017,”;

(D) in paragraph (f) before “that the farmer”, inserting “subject to

the provisions of the Personal Property Securities Act 2017,”;

(E) in paragraph (k) after “buildings”, inserting “, collateral”;

(F) in paragraph (n)—

a. after “section”, inserting “and under any other applicable

law”; and

b. deleting “.” and substituting “; and”; and

(G) after paragraph (n), inserting the following new paragraph—

“(o) that the farmer has good right and absolute priority to grant

a security interest under the provisions of the Personal

Property Securities Act 2017 over the collateral and that

the farmer must at any time after the creation of the security

interest permit, make, do and execute all such further acts,

deeds and assurances for the further assurance of all or any

of the said collateral unto the Bank and enabling the Bank

to secure its interest in the collateral and in the event of

default obtain possession of the same as may by the Bank

be lawfully required.”; and

(ii) in subsection (2), deleting “paragraphs (a) to (n)” and substituting

“paragraphs (a) to (o)”;

(i) after “this Act”, inserting “and the Personal Property Securities Act

2017”;

(ii) in paragraph (a), deleting “, not being deemed to be personal chattels

within the meaning of the Bills of Sale Act 1879”; and

(iii) deleting paragraph (c) and substituting the following—

“(c) achargeonallcollateralbelongingtothefarmerandspecied

inthenotication.”;

(d) in section 25—

(i) deletingtheheadingandsubstituting“Notications”;

(ii) deleting subsection (1) and substituting the following—

“(1) The Bank may, in any case where any charge is created

under the provisions of this Part over collateral, cause a notice of

thesecurityinteresttobeledintheregistryestablishedunderthe

Personal Property Securities Act 2017.”;

Personal Property Securities—45 of 2017460

(iii) in subsection (3)—

(A) deleting “or of any other Act or any other provision of law or

rule of equity”;

(B) deleting “(1)” and substituting “(2)”; and

(C) deleting “, xtures, chattels, crops or other property” and

substituting “and other improvements thereon”;

(iv) deleting subsection (4) and substituting the following—

“(4) The effectiveness, amendment, continuation and termination

of a notice of a security interest made under subsection (1) relating

to any collateral is governed by the Personal Property Securities Act

2017.”;

(v) deleting subsection (5);

(vi) in subsection (6)—

(A) deleting “Where” and substituting “Subject to the Personal

Property Securities Act 2017, where”;

(B) after “any notification”, inserting “or notice of a security

interest”; and

(C) after “the notication”, inserting “or notice of the security

interest”;

(vii) in subsection (7)—

(A) deleting “registered under the provisions of subsection (1)”;

(B) after“registrationand”,inserting“lingofa”;and

(C) after“thenotication”,inserting“andnoticeofthesecurity

interest”; and

(viii) deleting subsection (8);

(e) in section 26—

(i) renumbering subsection (3) as subsection (4); and

(ii) after subsection (2), inserting the following new subsection—

“(3) Where any charge is registered under the Registrar of Titles

prior to the commencement of the Personal Property Securities Act

2017, and such charge has been re-registered under the Personal

Property Securities Act 2017, the Bank on repayment by a farmer of

all amounts due to the Bank in respect of any advance granted under

section22,mustcauseaterminationtobeledunderthePersonal

Property Securities Act 2017.”;

Personal Property Securities—45 of 2017

461

(f) in section 27—

(i) in subsection (1)(b)(iii) after “part of the”, inserting “collateral or

other”; and

(ii) after subsection (4), inserting the following new subsection—

“(5) In the event the property to be sold consists of collateral

subject to the Personal Property Securities Act 2017, the provisions

related to the enforcement of the security interest created under

that Act are also available to the Bank, including the provision that

notwithstanding anything to the contrary in the Personal Property

Securities Act 2017, the rights and remedies provided in any other

law including this Act, must continue to be available to the Bank.”;

(g) in section 29(1)—

(i) after “chattels” wherever it appears, inserting “, collateral”;

(ii) renumbering paragraphs (b), (c) and (d) as paragraphs (c), (d) and (e)

respectively;

(iii) after paragraph (a), inserting the following new paragraph—

“(b) secondly, with regard to collateral, to the satisfaction of any

obligation secured by any security interest which has priority

under the Personal Property Securities Act 2017;”;

(iv) in paragraph (c), deleting “secondly” and substituting “thirdly”; and

(v) in paragraph (d), deleting “thirdly” and substituting “fourthly;

(h) in section 30(3) and (4) after “crops”, inserting “, collateral”;

(i) in section 32—

(i) in subsection (2), deleting “Where” and substituting “Subject to the

provisions of the Personal Property Securities Act 2017 with respect

to a charge over collateral, where”; and

(ii) in subsection (4), deleting “The” and substituting “Subject to the

Personal Property Securities Act 2017, the”; and

(j) in section 33(2)—

(i) in paragraph (d) after “thereof”, inserting “or that the collateral or

performance of an obligation subject to a charge under the Personal

PropertySecuritiesAct2017isatrisk,asdenedinsection20(2)of

the Personal Property Securities Act 2017”; and

(ii) in paragraph (e) after “property”, inserting “or collateral”.

Personal Property Securities—45 of 2017462

Fiji National Provident Fund Act 2011

8. The Fiji National Provident Fund Act 2011 is amended in section 108 after subsection

(1) by inserting the following new subsection—

“(1A) If payment of any contribution, additional contribution or penalty has

not been made on or before the due date, a lien shall arise over the property of

the person liable to pay such amounts to secure the payment of the amount of

thecontribution,additionalcontributionorpenalty,andtheBoardoranyofcer

or agent authorised by the Board may le a notice of such lien in the registry

established under the Personal Property Securities Act 2017 to establish the priority

date and time of such lien.”.

Indemnity, Guarantee and Bailment 1881

9. The Indemnity, Guarantee and Bailment Act 1881 is amended by—

(a) renumbering section 56 as section 56(1); and

(b) after section 56(1), inserting the following new subsection—

  “(2) Except in relation to consumer goods as dened in the Personal

Property Securities Act 2017, a pledge of goods under this Act is subject to

a prior security created under the Personal Property Securities Act 2017.”.

Land Transfer Act 1971

10. The Land Transfer Act 1971 is amended in section 39(1) by—

(a) in paragraph (c), deleting “.” and substituting “; and”; and

(b) after paragraph (c), inserting the following new paragraph—

“(d) whenanitemofpersonalpropertybecomesafxedtoland,ortoa

structure that is itself attached to land, in such a way as to cause an

interestinthexturetoariseinapersonwhohasaninterestinthe

land,priorityinthextureasbetweenaholderofaninterestinthe

landandaholderofaninterestinthextureshallbedeterminedas

provided by the Personal Property Securities Act 2017.”.

Land Transport Act 1998

11. The Land Transport Act 1998 is amended after section 65 by inserting the following

new section––

“Security on permits

65A.—(1) Any public service permit issued under this Act, including a public

service licence issued in respect of a road permit, is deemed to be personal property

for the purposes of the Personal Property Securities Act 2017.

(2) Notwithstanding subsection (1), a public service permit issued under this

Act, including a public service licence in respect of a road permit, may only be

usedascollateralforasecurityinterestgrantedtoanancialinstitutionasdened

in the Personal Property Securities Act 2017.”.

Personal Property Securities—45 of 2017

463

Marine Insurance Act 1961

12. The Marine Insurance Act 1961 is amended in section 54(2) after “agreed” by

inserting “and subject to the provisions of the Personal Property Securities Act 2017”.

Property Law Act 1971

13. The Property Law Act 1971 is amended in section 67 by deleting “A” and

substituting “Subject to the provisions of the Personal Property Securities Act 2017, a”.

Registration Act 1879

14. The Registration Act 1879 is amended by—

(a) in section 10, deleting “All” and substituting “Subject to the provisions of

the Personal Property Securities Act 2017, all”; and

(b) deleting Part 4.

Sale of Goods Act 1979

15. The Sale of Goods Act 1979 is amended in section 23 by—

(a) in paragraph (b), deleting “.” and substituting “; or”; and

(b) after paragraph (b), inserting the following new paragraph—

“(c) the provisions of the Personal Property Securities Act 2017 enabling

a purchaser of goods to acquire good title to the goods.”.

Stamp Duties Act 1920

16. The Stamp Duties Act 1920 is amended in the Schedule by––

(a) in Part 1 after the row on “SETTLEMENT, Deed of”, inserting the

following new row—

Nature of Instrument Amount of Duty Persons Primarily Liable

“SECURITY AGREEMENT

The like duty as for a

mortgage”;

(b) in Part 2, deleting Item 30 and substituting the following—

“30. Any security agreement in relation to a security interest where the

collateral is crops.”.

Sugar Cane Growers Fund Act 1984

17. The Sugar Cane Growers Fund Act 1984 is amended by—

(a) in section 15(3), deleting “No” and substituting “Subject to any fee payable

under the Personal Property Securities Act 2017, no”; and

(b) deleting section 17.

Tax Administration Act 2009

18. The Tax Administration Act 2009 is amended in section 28 by––

(a) in subsection (2), deleting “The” and substituting “Subject to

subsection (2A), the”;

464 Personal Property Securities—45 of 2017

(b) after subsection (2), inserting the following new subsection––

  “(2A) Ifapplicable,theCEOmayleanoticeofachargecreatedbythis

section in the registry established under the Personal Property Securities

Act 2017 to establish the priority date and time of such charge, and the

registry must, without fee, register the notice as if it were a registrable

instrument under law.”;

of the Personal Property Securities Act 2017, a”;

(d) in subsection (5) after “unregistered charge created by this section”,

inserting “as of the date of registration of the charge”;

(e) after subsection (6), inserting the following new subsection—

“(6A) With regard to personal property, if a notice of a charge under

this section has been registered and the charge has been satised, the

CEOmust lewiththeregistry establishedunderthe PersonalProperty

Securities Act 2017 a termination of the charge, and the relevant Registrar

must, without payment of any fee, register the termination as if it were a

registrable instrument under law.”; and

(f) in subsections (7) and (10), deleting “subsection (2)” and substituting

“subsections (2) and (3)”.

Passed by the Parliament of the Republic of Fiji this 15th day of September 2017.

Price:$5.40 S.NAVUNILAWA,GovernmentPrinter,Suva,Fiji—2017 45/Z/17—600

Ofcial Printer Since 1883