88VApplication of proceeds of sale and compensation

88V Application of proceeds of sale and compensation (1) Subject to section 88W, a port manager who sells a thing in accordance with section 88T must apply the proceeds of sale in the following order of priority— (a) to pay the costs of the sale, including any costs of moving or storing the thing; (b) to discharge any security interest over the thing, such as a bank loan or a lease arrangement, that existed immediately before the thing— (i) was determined by the port manager to be an abandoned thing under section 88PA(1); or (ii) was moved under section 88Q(2); (c) to pay any outstanding fees the owner of the thing owes to the port manager; (d) to pay to the owner of the thing and to any other person with an interest in the thing (other than a person with a security interest referred to in paragraph (b)) an amount referred to in subsection (3). (2) If a person with a security interest over the thing is unable to recover possession of the thing because the thing has been sold under this Division, a port manager must pay to the person an amount commensurate with the value of the person's interest in the thing from the proceeds of the sale, after the amounts referred to in subsection (1)(a) have been paid. (3) If the owner of a thing is unable to recover possession of the thing because the thing has been sold under this Division, a port manager must pay to the owner and to any other person with an interest in the thing (other than a person with a security interest referred to in subsection (1)(b)) an amount commensurate with the value of the owner's or person's interest in the thing from the proceeds of the sale, after the amounts referred to in subsection (1)(a), (b) and (c) have been paid. (4) The owner or other person with an interest in a thing disposed of under this Division is not entitled to any payments under this section— (a) if the thing is disposed of other than by sale; or (b) if the thing is disposed of by sale and there are no net proceeds remaining after the amounts referred to in— (i) subsection (1)(a), (b) and (c) have been paid, in the case of the owner or a person with an interest other than a security interest in the thing; or (ii) subsection (1)(a) have been paid, in the case of the person with a security interest in the thing. (5) A person with an interest in a thing that has been disposed of under this Division may make an application to the Magistrates' Court for an order that compensation be paid in accordance with subsection (2) or (3) (as the case requires) and the Court may make either or both of the following orders, where appropriate— (a) an order that compensation be paid to that person commensurate with the value of the person's interest in the thing, less the amounts referred to in— (i) subsection (1)(a), in the case of a person with a security interest in the thing; or (ii) subsection (1)(a), (b) and (c), in the case of the owner or a person with an interest other than a security interest in the thing; (b) an order that the port manager may retain the following out of the proceeds of the sale of the thing— (i) the costs incurred by the port manager in storing, moving or disposing of the thing under this Division; (ii) any outstanding fees owed by the owner of the thing to the port manager. (6) An application under subsection (5) must be made within 12 months of the date of the disposal of the thing. (7) Section 73(2) of the Personal Property Securities Act 2009 of the Commonwealth applies to an interest arising out of the operation of this Division. S. 88W inserted by No. 93/2009 s. 12.