Equity, Statute, and the Law of Secured Transactions

Abstract

This thesis seeks to improve our understanding of interactions between statute and the common law. It also seeks to improve our understanding of the law of secured transactions over personal property, by determining whether we can better understand the Personal Property Securities Act 2009 (Cth) (‘PPSA’) through examining its relationship with equity.

First, the thesis identifies a framework for understanding interactions between statute and the common law. That framework entails identifying the policies underlying statute as a question of statutory construction, and then using those policies to determine the appropriateness of interpreting statute by reference to the common law or of applying or developing the common law by reference to statute. This reflects how courts already deal with such questions, and can elucidate our understanding of them. It also considers how the application of the framework may differ when considering interactions between statute and the different components of the common law – ie, equity and the common law.

The thesis then uses the relationship between equity and the PPSA as a case study for the application of the framework. This demonstrates the usefulness of the framework at a higher level of abstraction, by showing that it can inform interactions between a given statute and a broad component of the common law. It also improves our understanding of the PPSA in and of itself. To do this, the thesis applies the framework to resolve broad questions concerning the interpretation of the PPSA by reference to equity, and the operation of equity in its context; and more specific questions concerning the relationship between the PPSA and two equitable doctrines and remedies, tracing and subrogation.

As a whole, the thesis both improves our understanding of interactions between statute and the common law, and shows that we can better understand the PPSA through examining its relationship with equity.