Your assignment is to write a legal opinion in response to the Brief to Counsel below. 2. Students are encouraged to read the whole of the Personal Property Securities Act 2009 (Cth) (‘PPSA’) in preparation for this assignment to determine which sections of that Act might be applicable to the issues raised in the assignment. 3. In order to complete this assignment, you will need to have some background understanding of other areas of law, such as insolvency and corporations law, in order to appreciate the context in which the problem is set. Be aware, though, that you are being assessed and marked on your response to the property law issues raised in the assignment and that you will not be rewarded for writing about other issues. 4. You are given a precedent document that sets out the form in which your opinion is to be given. That precedent opinion document is attached to these instructions and an electronic copy can be found in a separate file on the LWB243 Blackboard site. 5. Each paragraph of your opinion is to be numbered. Your assignment also is required to conform to the requirements set out in the study guide and the requirements of the Australian Guide to Legal Citation (3rd edition). 6. Please see the study guide for other requirements. BRIEF TO COUNSEL Instructions 1. You are instructed to provide a memorandum of advice in relation to a letter received by one of the firm’s clients. 2. Blackacre Lawyers act for Lukies & Co Chartered Accountants (“the client”). The client has been appointed as administrator of Marble Haven Pty Ltd (“Marble Haven”), Marble Haven having recently been placed in external administration. 3. The administrators wish to call in and realise Marble Haven’s assets and distribute the proceeds to Marble Haven’s creditors. 2 4. On 7 March 2015, the client received a letter from Whiteacre Commercial Lawyers, in which it is claimed that Mediterranean Marble Pty Ltd (“Mediterranean”) is entitled to a quantity of uncut marble that Marble Haven has in its possession. Marble Haven does have the uncut marble referred to in that letter in its possession. 5. You are instructed that Marble Haven regularly obtains marble from Mediterranean, which it cuts and shapes to form various furnishings for houses and business premises. Marble Haven routinely turns the marble it purchases from Mediterranean into things such as tabletops and bench tops, as well as flooring, steps and wall panels. 6. On about 22 August 2012, Marble Haven’s sole director and majority shareholder, Mr Roger Andrew Sibin, executed an agreement styled, “Credit Account Application (and Terms and Conditions of Trade)” on behalf of Marble Haven. The parties to this agreement are Mediterranean and Marble Haven. A copy of this agreement is included in your brief. 7. We are instructed that Marble Haven would order stock from Mediterranean and pay for that stock in the following way. (a) Marble Haven’s employees would fax purchase orders to Mediterranean. Each purchase order was expressed to be subject to Mediterranean’s Terms and Conditions of Trade (which are attached to the Credit Account Application signed by Mr Sibin). (b) Mediterranean would then supply Marble Haven with stock. Marble Haven’s employees would sign delivery dockets acknowledging receipt of delivered stock. (c) Once Marble Haven had used stock, Mediterranean was advised (either at that point in time, or by a monthly stocktake of consignment stock). Mediterranean would then invoice Marble Haven for the stock used. 8. We understand that Marble Haven is not generally known to its creditors to be selling or leasing goods of others. 9. You are instructed to advise Blackacre Lawyers by answering the following questions (and you are to use these questions as headings). (a) Is Mediterranean’s interest a security interest under the PPSA? (b) Has Mediterranean’s interest in the marble been perfected? (c) Do the administrators need to return the marble to Mediterranean? (d) Would the result have been different at common law had the PPSA not been enacted? 10. Please note that you are instructed to give a memorandum of advice, and are not instructed to draft a letter.