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The purpose of this article is to provide some guidance to practitioners and the judiciary in both Australia and New Zealand on the vital question: when is a sale in the 'ordinary course of business' for the purposes of the Personal Property Securities Acts of Australia and New Zealand? It is not uncommon for the courts to say that in any given case this is a question of fact. But, while not denying the importance of the particular factual circumstances in issue, the author seeks to demonstrate that the analysis will be facilitated by adopting a structured approach that initially recognises the primacy of security interests and that follows sound legal principles developed by the North American courts. Differences between the Australian and New Zealand legislative provisions are analysed to determine whether they lead to different outcomes on either side of the Tasman. [ABSTRACT FROM AUTHOR]

This paper focuses on a statutory provision common to Australian, New Zealand and Canadian personal property securities legislation which requires a grantor of a security interest generally to have 'rights in the collateral' before a security interest can attach to that collateral. It analyses the extent to which a particular construction of that provision, initially developed by Canadian courts and commentators in the context of certain lease transactions and now applied in New Zealand, may and should colour construction of the equivalent Australian legislation. The paper argues that 'new learning', which holds the interest of a lessee sufficient to enable a security interest to attach to leased goods, is capable of achievement through different reasoning to that currently adopted by New Zealand courts. Such reasoning has significant implications for understanding when a security interest may attach to personal property more broadly. [ABSTRACT FROM AUTHOR]