Western Australian Numbered Acts Western Australian Numbered Acts (1) This section
amends the Western Australian Treasury Corporation Act 1986 .
(2) In Schedule 1
delete items 5 and 6.
Schedule 1 -- Matters for which rules must make provision
[s. 98]
1 . Requirements for all co-operatives
The rules of all
co-operatives must set out or make provision for each of the
following —
(a) the
name of the co-operative;
(b)
active membership provisions (within the meaning of Part 6);
(c) the
mode and conditions of admission to membership, and the payment to be made or
the share or interest to be acquired before rights of membership are
exercised;
(d) the
rights and liabilities of members, of the estates of deceased members, and of
representatives of members under bankruptcy or mental incapacity;
(e) the
circumstances in which members may be expelled or suspended, and the rights
and liabilities of expelled and suspended members;
(f) the
circumstances in which membership ceases;
(g) the
charges or subscriptions that are payable by a member to the co-operative;
(h) the
circumstances in which fines and forfeitures may be imposed on members of the
co-operative, and the amount of the fines (being not more than the maximum
amount prescribed by the regulations);
(i)
the grievance procedures for settling disputes under the
rules between the co-operative and any of its members as defined in
section 79(4), or between a member and another member;
(j) the
restrictions, if any, on the powers of the co-operative and the board;
(k) the
number of directors, the qualification of directors, the way of electing,
remunerating and removing directors and filling a vacancy, the period for
which directors are to hold office, whether directors are to retire by
rotation or otherwise, and the holding of elections;
(l) the
quorum for, and the procedure at, meetings of the board;
(m) the
design, custody and use of the seal of the co-operative;
(n) the
manner in which the funds of the co-operative are to be managed, and in
particular the mode of drawing and signing cheques, drafts, bills of exchange,
promissory notes, and other negotiable instruments for and on behalf of the
co-operative;
(o) the
custody of securities belonging to the co-operative;
(p) the
way in which debentures are to be transferred;
(q) the
date on which the financial year of the co-operative ends;
(r) the
auditing of the financial reports of the co-operative, and the appointing of
the auditor;
(s) the
way in which a loss that results from the transactions of the co-operative is
to be dealt with;
(t) the
procedure for calling general and special meetings, the requisite notices of
meetings, and the quorum for meetings, of the co-operative;
(u) the
procedure at meetings of the co-operative, including the rights of members in
voting at meetings, the manner of voting, and the majority necessary for
carrying resolutions;
(v)
the method of conducting postal ballots, including
special postal ballots, and the sending and lodgment of information and votes
by facsimile or electronic means;
(w) the
way of altering the rules;
(x)
the way in which the co-operative may be wound-up;
(y) a
matter prescribed by the regulations for the purposes of this clause;
(z) a
matter that the co-operative considers needs to be provided for in the rules.
2 . Additional matters — co-operatives
with share capital
In addition to the
matters specified in clause 1, the rules of a co-operative with a share
capital must set out or make provision for each of the following —
(a) the
nominal value of each share in the co-operative;
(b) the
amount of the contingent liability, if any, attaching to shares;
(c) the
terms on which shares, not including bonus shares but including shares, if
any, with a contingent liability attached to them, are to be issued;
(d) the
periodic subscriptions by which or the way in which shares are to be paid for;
(e) in
the case of a distributing co-operative, the manner in which a surplus may be
distributed;
(f) the
allocation of a deficiency on the winding-up of a co-operative;
(g) the
forfeiture of shares on expulsion or on failure to pay a subscription or call,
the extent to which members whose shares have been forfeited are to remain
liable for an amount still unpaid for them, and the sale or cancellation of
forfeited shares;
(h) the
way in which shares are to be transferred;
(i)
a matter prescribed by the regulations.
3 . Additional matters —
non-distributing co-operatives
(1) In addition to the
matters specified in clauses 1 and 2, the rules of a
non-distributing co-operative must provide —
(a) that
there must be no return or distribution on surplus or share capital to members
other than the nominal value of shares, if any, at winding-up; and
(b) for
the way of distribution of the surplus property at winding-up.
(2) In addition to the
matters specified in clauses 1 and 2, the rules of a
non-distributing co-operative that has operated as a mutual may provide
that —
(a)
surplus funds are payable only to members who have paid contributions to the
co-operative and have a credit balance in their member’s ledger; and
(b) the
payment of surplus funds is limited to the return of the contributions paid by
the member to the co-operative and the nominal paid up value of the shares, if
any.
Schedule 2 -- Relevant interests, associates, related bodies
[s. 4(1)]
Division 1 — Relevant interests
1 . Terminology used in this Schedule
(1) This clause
applies for the purposes of this Division.
(2) Power to vote in
relation to a right to vote is power to exercise, or to control the exercise
of, the right to vote.
(3) A reference to
power to dispose of a share includes a reference to power to exercise control
over the disposal of the share.
(4) A reference to
power or control includes a reference to power or control that is direct or
indirect or is, or can be, exercised as a result of, by means of, in breach
of, or by revocation of, trusts, agreements and practices, or any of them,
whether or not they are enforceable.
(5) Power to vote in
relation to a right to vote, or power to dispose of a share, that is
exercisable by 2 or more persons jointly is taken to be exercisable by either
or any of those persons.
(6) A reference to a
controlling interest includes a reference to an interest that gives control.
2 . Basic rules — relevant interests
(1) A person who has
power to vote in relation to a right to vote has a relevant interest in the
right to vote.
(2) A person who has
power to dispose of a share has a relevant interest in the share.
3 . Control of corporation having power in
relation to a share
If a corporation has,
or is by this Division taken to have —
(a)
power to vote in relation to a right to vote; or
(b)
power to dispose of a share,
a person is taken for
the purposes of this Division to have in relation to the right to vote or the
share the same power as the corporation has, or is taken to have,
if —
(c) the
corporation is, or its directors are, accustomed or under an obligation,
whether formal or informal, to act in accordance with the directions,
instructions or wishes of the person in relation to the exercise of the power
referred to in paragraph (a) or (b); or
(d) the
person has a controlling interest in the corporation.
4 . Control of 20% of voting power in corporation
having power in relation to a share
If a corporation or an
associate of a corporation has, or is by this Division (other than this
clause) taken to have —
(a)
power to vote in respect of a right to vote; or
(b)
power to dispose of a share,
a person is taken for
the purposes of this Division to have in relation to the right to vote or the
share the same power as the corporation or associate has, or is taken to have,
if —
(c) the
person has; or
(d) an
associate of the person has; or
(e)
associates of the person together have; or
(f) the
person and an associate or associates of the person together have,
power to vote in
relation to the right to vote attached to not less than 20% of the voting
shares in the corporation.
5 . Deemed relevant interest in advance of
performance of agreement that will give rise to a relevant interest
If a
person —
(a) has
entered into an agreement with another person in relation to an issued share
or right to vote in which the other person has a relevant interest; or
(b) has
a right enforceable against another person in relation to an issued share or
right to vote in which the other person has a relevant interest, whether the
right is enforceable presently or in the future and whether or not on the
fulfilment of a condition; or
(c) has
an option granted by another person, or has granted to another person an
option, with respect to an issued share or right to vote in which the other
person has a relevant interest,
and, on performance of
the agreement, enforcement of the right, or exercise of the option, the
first-mentioned person would have a relevant interest in the share or right to
vote, the first-mentioned person is taken for the purposes of this Division to
have that relevant interest in the share or right to vote.
6 . Control of corporation having a relevant
interest by virtue of clause 5
If a corporation is by
clause 5 taken to have a relevant interest in a share in, or right to
vote at meetings of, a co-operative, a person is taken for the purposes of
this Division to have a relevant interest in the share or right to vote
if —
(a) the
corporation is, or its directors are, accustomed or under an obligation,
whether formal or informal, to act in accordance with the directions,
instructions or wishes of the person in relation to the exercise of power to
vote in relation to that right to vote or power to dispose of those shares; or
(b) the
person has a controlling interest in the corporation; or
(c) the
person has power to vote in relation to the right to vote attached to not less
than 20% of the voting shares in the corporation.
7 . Matters not affecting application of Division
(1) It is immaterial
for the purposes of this Division whether or not power to vote in relation to
a right to vote, or power to dispose of a share —
(a) is
express or implied or formal or informal; or
(b) is
exercisable by a person alone or jointly with any other person or persons; or
(c)
cannot be related to a particular share; or
(d) is,
or can be made, subject to restraint or restriction.
(2) A relevant
interest in a share or right to vote is not to be disregarded merely because
of —
(a) its
remoteness; or
(b) how
it arose.
8 . Corporation may have a relevant interest in
its own shares
A corporation may, by
virtue of this Division, be considered to have a relevant interest in a share
in, or right to vote arising from membership of, the corporation itself.
9 . Exclusions — money lenders
A relevant interest of
a person in a share or right to vote is to be disregarded if the
person’s ordinary business includes lending money and the person has
authority to exercise powers as the holder of the relevant interest only
because of a security given for the purposes of a transaction entered into in
the ordinary course of business in connection with lending money, other than a
transaction entered into with an associate of the person.
10 . Exclusions — certain trustees
A relevant interest of
a person in a share or right to vote is to be disregarded if —
(a) the
share or right is subject to a trust; and
(b) the
person has the relevant interest as a trustee of the trust; and
(c)
either —
(i)
a beneficiary under the trust is by clause 5 taken
to have a relevant interest in the share or right because the beneficiary has
a presently enforceable and unconditional right referred to in
clause 5(b); or
(ii)
the person is a bare trustee.
11 . Exclusions — instructions to
securities dealer to dispose of share
A relevant interest of
a person in a share or right to vote is to be disregarded if —
(a) the
person’s ordinary business includes dealing in securities; and
(b) the
person has authority to exercise powers as the holder of the relevant interest
only because of instructions given to the person, by or on behalf of another
person, to dispose of the share on the other person’s behalf in the
ordinary course of that business.
12 . Exclusions — honorary proxies
A relevant interest of
a person in a share or right to vote is to be disregarded if the person has it
only because of having been appointed, otherwise than for valuable
consideration given by the person or an associate of the person, to vote as a
proxy or representative at a meeting of members, or of a class of members, of
a corporation.
13 . Exclusions — holders of prescribed
offices
A relevant interest of
a person in a share or right to vote is to be disregarded if the person has it
because of holding an office prescribed by the regulations.
The regulations may
provide that a relevant interest in a share is, in specified circumstances and
subject to specified conditions, if any, to be disregarded for the purposes of
a provision of this Act.
(1) Nothing in this
Schedule limits the generality of anything else in it.
(2) A person does not
have a relevant interest in a share of a co-operative or right to vote in
respect of a co-operative except as provided in this Schedule.
16 . Relevant interest — corporation
other than co-operative
A reference in this
Act to a relevant interest in a share of a corporation other than a
co-operative or a right to vote in relation to a corporation other than a
co-operative is to be construed in accordance with the Corporations Act.
A person is not an
associate of another person except as provided by this Division.
18 . Associates of a corporation
The associates of a
corporation include the following —
(a) a
director or secretary of the body;
(b) a
related corporation;
(c) a
director or secretary of a related corporation.
19 . Matters relating to voting rights
(1) If a reference to
an associate of a person relates to —
(a) the
extent of power to exercise, or to control the exercise of, the voting power
attached to voting shares in or arising from membership of a corporation; or
(b) the
person’s entitlement to shares in a corporation; or
(c) an
offer to purchase shares to which Part 11 Division 2 applies,
the reference includes
a reference to another person with whom the person has, or proposes to enter
into, an agreement referred to in subclause (2).
(2) Subclause (1)
applies to an agreement —
(a)
because of which one of the persons referred to in subclause (1) has or
will have power, even if it is in any way qualified —
(i)
to exercise; or
(ii)
to control, directly or indirectly, the exercise of; or
(iii)
to influence substantially the exercise of,
any voting power
attached to shares in the corporation; or
(b) for
the purpose of controlling or influencing —
(i)
the composition of the corporation’s board; or
(ii)
the conduct of affairs of the corporation;
or
(c)
under which one of those persons —
(i)
will or may acquire; or
(ii)
may be required by the other to acquire,
shares in the
corporation in which the other has a relevant interest; or
(d)
under which one of those persons may be required to dispose of shares in the
corporation in accordance with the other’s directions.
(3) Subclause (1)
applies despite any other effect the agreement may have.
(4) In relation to a
matter relating to shares in a corporation, a person may be an associate of
the corporation and the corporation may be an associate of a person.
(1) A reference to an
associate of a person includes a reference to —
(a)
another person in concert with whom the person is acting or proposes to act;
or
(b)
another person who, under the regulations, is, for the purposes of the
provision in which the reference occurs, an associate of the person; or
(c)
another person with whom the person is or proposes to become associated,
whether formally or informally, in any other way,
in relation to the
matter to which the reference relates.
(2) If a person has
entered, or proposes to enter, into a transaction, or has done, or proposes to
do, any act or thing, in order to become associated with another person as
mentioned in an applicable provision of this Division, a reference to an
associate of the person includes a reference to that other person.
A person is not an
associate of another person by virtue of clause 19 or 20(1), or by
virtue of clause 20(2) as it applies in relation to clause 19
or 20(1), merely because —
(a) one
gives advice to the other, or acts on the other’s behalf, in the proper
performance of the functions attaching to a professional capacity or a
business relationship; or
(b) one,
a client, gives specific instructions to the other, whose ordinary business
includes dealing in securities, to acquire shares on the client’s behalf
in the ordinary course of that business; or
(c) one
has made, or proposes to make, to the other an offer to which Part 11
Division 2 applies, in relation to shares held by the other; or
(d) one
has appointed the other, otherwise than for valuable consideration given by
the other or by an associate of the other, to vote as a proxy or
representative at a meeting of members, or of a class of members, of a
corporation.
Division 3 — Related corporations
For the purposes of
this Act, a corporation is to be taken to be related to —
(a)
another corporation that is its subsidiary; and
(b)
another corporation of which it is a subsidiary; and
(c)
another corporation if both it and that other corporation are subsidiaries of
the same corporation.
Schedule 3 -- Registration etc. of charges
[s. 267]
In this
Division —
co-operative includes a foreign co-operative
registered under Part 14;
document of title means a document —
(a) used
in the ordinary course of business as proof of possession or control, or of
the right to possession or control, of property other than land; or
(b)
authorising or purporting to authorise, whether by endorsement or delivery,
the possessor of the document to transfer or receive property other than land,
and
includes —
(c) a
bill of lading; and
(d) a
warrant or order for the delivery of goods; and
(e) a
document that is, or evidences title to, a marketable security;
marketable security has the meaning given to that
term in the Corporations Act;
present liability , in relation to a charge, means
a liability that has arisen, being a liability the extent or amount of which
is fixed or capable of being ascertained, whether or not the liability is
immediately due to be met;
property , in relation to a co-operative, means
property within this State held by the co-operative, whether or not as
trustee;
prospective liability , in relation to a charge,
means any liability that may arise in the future, or any other liability, but
does not include a present liability;
Register of Co-operative Charges means the
register referred to in clause 18;
registrable charge means a charge in relation to
which, by virtue of clause 4, the provisions of this Schedule mentioned
in clause 4(1) apply.
2 . Application to charges referred to in
clause 17
(1) A charge referred
to in clause 17 is, until the charge is registered, to be treated for the
purposes of this Schedule as if it were not a registrable charge but, when the
charge is registered, it has the priority accorded to a registered charge as
from the time of registration.
(2) The registration
of a charge referred to in clause 17 does not prejudice any priority that
would have been accorded to the charge under any other law, whether or not a
law of a place in Australia, if the charge had not been registered.
For the purposes of
this Schedule, a notice or other document is taken to be lodged when it is
received at the office of the Registrar by an officer authorised to receive
it.
4 . Charges to which the Schedule applies
(1) Subject to this
Division, the provisions of this Schedule relating to the giving of notice in
relation to the registration of, and the priorities of, charges —
(a)
apply in relation to the charges referred to in subclause (2) (whether
legal or equitable) on property of a co-operative; and
(b) do
not apply in relation to other charges.
(2) Subclause (1)
applies to the following charges —
(a) a
floating charge on the whole or a part of the property, business or
undertaking of the co-operative;
(b) a
charge on uncalled share capital or uncalled share premiums;
(c) a
charge on a call, whether in respect of share capital or share premiums, made
but not paid;
(d) a
charge on a personal chattel, including a personal chattel that is
unascertained or is to be acquired in the future, but not including a ship
registered in an official register kept under a law of a place in Australia
relating to title to ships;
(e) a
charge on goodwill, on a patent or licence under a patent, on a trade mark or
service mark or a licence to use a trade mark or service mark, on a copyright
or a licence under a copyright or on a registered design or a licence to use a
registered design;
(f) a
charge on a book debt;
(g) a
charge on a marketable security, not being —
(i)
a charge created in whole or in part by the deposit of a
document of title to the marketable security; or
(ii)
a mortgage under which the marketable security is
registered in the name of the chargee or a person nominated by the chargee;
(h) a
lien or charge on a crop, a lien or charge on wool or a stock mortgage;
(i)
a charge on a negotiable instrument other than a
marketable security.
The provisions of this
Schedule mentioned in clause 4(1) do not apply in relation
to —
(a) a
charge, or a lien over property, arising by operation of law; or
(b) a
pledge of a personal chattel or of a marketable security; or
(c) a
charge created in relation to a negotiable instrument or a document of title
to goods, being a charge by way of pledge, deposit, letter of hypothecation or
trust receipt; or
(d) a
transfer of goods in the ordinary course of the practice of any profession or
the carrying on of any trade or business; or
(e) a
dealing, in the ordinary course of the practice of any profession or the
carrying on of any trade or business, in relation to goods outside Australia.
The reference in
clause 4(2)(d) to a charge on a personal chattel is a reference to a
charge on any article capable of complete transfer by delivery, whether at the
time of the creation of the charge or at some later time, and includes a
reference to a charge on a fixture or a growing crop that is charged
separately from the land to which it is affixed or on which it is growing, but
does not include a reference to a charge on —
(a) a
document evidencing title to land; or
(b) a
chattel interest in land; or
(c) a
marketable security; or
(d) a
document evidencing a thing in action; or
(e)
stock or produce on a farm or land that because of a covenant or agreement
ought not to be removed from the farm or land where the stock or produce is at
the time of the creation of the charge.
The reference in
clause 4(2)(f) to a charge on a book debt —
(a) is a
reference to a charge on a debt payable or to become payable to the
co-operative at some future time on account of or in connection with a
profession, trade or business carried on by the co-operative, whether entered
in a book or not; and
(b)
includes a reference to a charge on a future debt of the same nature although
not incurred or owing at the time of the creation of the charge,
but does not include a
reference to a charge on a marketable security, on a negotiable instrument or
on a debt owing in relation to a mortgage, charge or lease of land.
The reference in
clause 4(2)(h) to a lien or charge on a crop, a lien or charge on wool or
a stock mortgage includes a reference to a security, however described, that
is registrable under a law, prescribed by the regulations, of a State or
Territory.
9 . Deposit of documents of title
For the purposes of
this Division, a co-operative is taken to have deposited a document of title
to property with another person (the chargee ) in a case where the document of
title is not in the possession of the co-operative if —
(a) the
person who holds the document of title acknowledges in writing that the person
holds the document of title on behalf of the chargee; or
(b) a
government, an authority or a corporation that proposes to issue a document of
title in relation to the property agrees, in writing, to deliver the document
of title, when issued, to the chargee.
10 . Charges on land or fixtures on land
(1) The provisions of
this Schedule mentioned in clause 4(1) do not apply in relation to a
charge on land.
(2) The provisions of
this Schedule mentioned in clause 4(1) do not apply in relation to a
charge on fixtures given by a charge on the land to which they are affixed.
11 . Where other property is also charged
For the purposes of
this Division, a charge is taken to be a charge on property of a kind to which
a particular paragraph of clause 4(2) applies even though the instrument
of charge also charges other property of the co-operative, including other
property that is of a kind to which none of the paragraphs of that subclause
applies.
12 . Effect of failure to lodge or give notice or
document
A charge on property
of a co-operative is not invalid merely because of the failure to lodge with
the Registrar, or give to the co-operative or another person, a notice or
other document that is required by this Division to be so lodged or given.
Subdivision 2 — Notice of charge
13 . Lodgment of notice of charge and copy of
instrument, and transitional provision
(1) If a co-operative
creates a charge, the co-operative must ensure that there is lodged with the
Registrar within 45 days after the creation of the charge, a notice in
the form approved by the Registrar setting out the following
particulars —
(a) the
name of the co-operative and the date of the creation of the charge;
(b)
whether the charge is a fixed charge, a floating charge or both a fixed and
floating charge;
(c) if
the charge is a floating charge, whether there is any provision in the
resolution or instrument creating or evidencing the charge that prohibits or
restricts the creation of subsequent charges;
(d) a
short description of the liability, whether present or prospective secured by
the charge;
(e) a
short description of the property charged;
(f)
whether the charge is created or evidenced by a resolution, by an instrument
or by a deposit or other conduct;
(g) if
the charge is constituted by the issue of a debenture or debentures, the name
of the trustee, if any, for debenture holders;
(h) if
the charge is not constituted by the issue of a debenture or debentures or
there is no trustee for debenture holders, the name of the chargee;
(i)
any other information that is prescribed by the
regulations.
(2) On becoming
registered under this Act, a transferred co-operative that owns property over
which a registrable charge exists must, in relation to each such charge,
immediately, and at the same time for each charge, lodge with the Registrar a
notice under subclause (1).
(3) If, under a
resolution or resolutions passed by the co-operative, the co-operative issues
a series of debentures constituting a charge to the benefit of which all the
holders of debentures in the series are entitled in equal priority, and the
charge is evidenced only by the resolution or resolutions and the debentures,
the notice under subclause (1) must be accompanied by —
(a) a
copy of the resolution or of each of the resolutions verified by a statement
in writing to be a true copy; and
(b) a
copy of the first debenture issued in the series and a statement in writing
verifying the execution of that first debenture.
(4) If, in a case to
which subclause (3) does not apply, the charge created by the
co-operative was created or evidenced by an instrument or instruments, the
notice under subclause (1) must be accompanied by —
(a) the
instrument or each of the instruments; or
(b) a
copy of the instrument or of each of the instruments verified by a statement
in writing to be a true copy, and a statement in writing verifying the
execution of the instrument or of each of the instruments.
In a case to which
clause 13(3) applies —
(a) the
charge is, for the purposes of clause 13, taken to be created when the
first debenture in the series of debentures is issued; and
(b) if,
after the issue of the first debenture in the series, the co-operative passes
a further resolution authorising the issue of debentures in the series, the
co-operative must ensure that a copy of that resolution, verified by a
statement in writing to be a true copy of that resolution, is lodged within
45 days after the passing of that resolution.
15 . Operation of priority provisions in respect
of issue of debentures
If a notice relating
to an instrument creating a charge has been lodged under clause 13(1),
being a charge in relation to an issue of several debentures the holders of
which are entitled under the instrument in equal priority to the benefit of
the charge, clauses 46 to 49 have effect as if any charges
constituted by the debentures were registered at the time when the charge to
which the notice relates was registered.
(1) If a payment or
discount has been made or allowed, either directly or indirectly, by a
co-operative to a person in consideration of the person —
(a)
subscribing or agreeing to subscribe, whether absolutely or conditionally, for
debentures; or
(b)
procuring or agreeing to procure subscriptions, whether absolute or
conditional, for debentures,
the notice required to
be lodged under clause 13(1) must include particulars as to the amount or
rate per cent of the payment or discount.
(2) If a co-operative
issues debentures as security for a debt of the co-operative, the co-operative
is not taken, for the purposes of subclause (1), to have allowed a
discount in respect of the debentures.
17 . Acquisition of property subject to charge
(1) If a co-operative
acquires property that is subject to a charge, being a charge that would have
been registrable when it was created if it had been created by a co-operative,
the co-operative must, within 45 days after the acquisition of the
property —
(a)
ensure that there is lodged with the Registrar a notice in the form approved
by the Registrar in relation to the charge, setting out —
(i)
the name of the co-operative; and
(ii)
the date on which the property was so acquired; and
(iii)
any other particulars required by clause 13(1);
and
(b) give
to the chargee notice that it has acquired the property and the date on which
it was so acquired.
(2) If the charge
referred to in subclause (1) was created or evidenced as referred to in
clause 13(3), the notice under subclause (1)(a) must be accompanied
by —
(a) a
copy of the resolution or of each of the resolutions referred to in
clause 13(3) verified by a statement in writing to be a true copy; and
(b) a
copy of the first debenture issued in the series referred to in
clause 13(3) verified by a statement in writing to be a true copy.
(3) If the charge
referred to in subclause (1) was created or evidenced by an instrument or
instruments (otherwise than as mentioned in clause 13(3)), the notice
under subclause (1)(a) must be accompanied by —
(a) the
instrument or each of the instruments; or
(b) a
copy of the instrument or of each of the instruments verified by a statement
in writing to be a true copy.
18 . Register of Co-operative Charges
The Registrar must
keep a register to be known as the Register of Co-operative Charges.
19 . Registration of documents relating to charge
(1) If a notice is
lodged with the Registrar in accordance with Division 2, the Registrar
must as soon as practicable cause to be entered in the Register of
Co-operative Charges the time and date when the notice was lodged and the
following particulars in relation to the charge —
(a) if
the charge is a charge created by the co-operative, the date of its creation;
(b) if
the charge was a charge existing on property acquired by the co-operative, the
date on which the property was so acquired;
(c) a
short description of the liability, whether present or future, secured by the
charge;
(d) a
short description of the property charged;
(e) the
name of the trustee for debenture holders or, if there is no such trustee, the
name of the chargee.
(2) Subclause (1)
only applies if the notice contains the required particulars and is
accompanied by the required documents.
(3) Subclause (1)
applies whether the notice is lodged during or after the period within which
the notice is required to be lodged.
(4) Subject to this
Division, if particulars in respect of a charge are entered in the Register of
Co-operative Charges in accordance with subclause (1), the charge is
taken to be registered, and to have been registered from and including the
time and date entered in the register under that subclause.
(5) The Registrar may
enter in the Register of Co-operative Charges, in addition to the particulars
expressly required by this Division to be entered, other particulars in
relation to a charge that the Registrar considers appropriate.
20 . Provisional registration if stamp duty not
paid
(1) If —
(a) a
notice in relation to a charge on property of a co-operative is lodged under
Subdivision 2; and
(b) the
notice is not accompanied by a certificate to the effect that all documents
accompanying the notice have been properly stamped under the
Stamp Act 1921 ,
the Registrar must
cause to be entered in the Register of Co-operative Charges the time and date
when the notice was lodged and the particulars referred to in
clause 19(1)(a) to (e), but must cause the word
“provisional” to be entered in the register next to the entry
specifying that time and date.
(2) Subclause (1)
applies whether the notice was lodged during or after the period within which
the notice was required to be lodged.
(3) The Registrar must
delete the word “provisional” entered in the register under
subclause (1) from an entry relating to a charge if a certificate to the
effect set out in subclause (1)(b) has been produced to the
Registrar —
(a)
within a period of 28 days; or
(b)
within such longer period as is prescribed by the regulations after the notice
was lodged; or
(c)
within such further period as the Registrar, if the Registrar considers it to
be appropriate in a particular case, allows.
(4) The Registrar must
delete from the Register of Co-operative Charges all the particulars that were
entered in relation to a charge if —
(a) the
word “provisional” is entered in the register under
subclause (1) in relation to an entry relating to the charge; and
(b) a
certificate to the effect set out in subclause (1)(b) is not produced
within the period, or the further period, referred to in subclause (3).
21 . Provisional registration if required
particulars not supplied
(1) In this
clause —
defective notice means a document
that —
(a)
purports to be a notice in respect of a charge on property of a co-operative
for the purposes of Subdivision 2; and
(b)
contains the name of the co-operative concerned and the particulars referred
to in clause 13(1)(g) or (h), as the case requires,
but does not contain
some or all of the other particulars that are required to be included in the
notice or is otherwise defective.
(2) If a defective
notice in respect of a charge on property is lodged with the Registrar under
clause 19, the Minister must cause to be entered in the Register of
Co-operative Charges —
(a) the
time and date when the document was lodged; and
(b) the
particulars referred to in clause 19(1)(a) to (e) that are
ascertainable; and
(c) the
word “provisional” next to the entry specifying the time and date.
(3) If a defective
notice in relation to a charge is lodged under clause 19, the Registrar
must, by written notice to the person who lodged the defective notice, direct
the person to lodge, on or before the day specified in the notice, a notice in
relation to the charge that complies with the requirements of
Subdivision 2.
(4)
Subclauses (2) and (3) apply whether the defective notice was lodged
during or after the period within which the notice was required to be lodged.
(5) The giving by the
Registrar of a direction to the person under subclause (3) does not
affect any liability that the co-operative may have incurred or may incur by
reason of a contravention of Subdivision 2.
(6) If the Registrar
gives a direction to a person under subclause (3) in relation to a charge
and the direction is complied with on or before the day specified in the
notice containing the direction, the Registrar must —
(a)
delete from the Register of Co-operative Charges the word
“provisional” that was inserted pursuant to subclause (2);
and
(b)
cause to be entered in the register in relation to the charge any particulars
referred to in clause 19(1) that have not previously been entered.
(7) If the Registrar
gives a direction to a person under subclause (3) in relation to a charge
and the direction is not complied with on or before the day specified in the
notice, the Registrar must delete from the Register of Co-operative Charges
all the particulars that were entered in relation to the charge.
(8) If the Registrar
gives a direction to a person under subclause (3) in relation to a charge
and the direction is complied with after the day specified in the notice, the
Registrar must cause to be entered in the Register of Co-operative Charges in
relation to the charge —
(a) the
time at which and day on which the direction was complied with; and
(b) the
particulars referred to in clause 19(1)(a) to (e).
22 . Effect of provisional registration
(1) Subject to this
clause, if the word “provisional” is entered in the Register of
Co-operative Charges next to an entry specifying a time and day in relation to
a charge, the charge is taken not to have been registered.
(2) If the word
“provisional” is deleted from the Register of Co-operative Charges
pursuant to clause 20 or 21(6), the charge is taken to be registered
and to have been registered from and including the time and day specified in
the register under clause 20 or 21(2).
(3) If the particulars
in relation to the charge are deleted from the Register of Co-operative
Charges pursuant to clause 21(7) and those particulars and a time and day
are subsequently entered in the register in relation to the charge under
clause 21(8) the charge is taken to be registered from and including that
last-mentioned time and day.
23 . If 2 or more charges relate to the same
property
(1) If, under
clause 17, a co-operative lodges notices relating to 2 or more charges on
the same property acquired by the co-operative, being charges that are not
already registered under this Subdivision, the time and day that is to be
entered in the Register of Co-operative Charges in relation to each of those
charges are the time and day when the first notice was lodged.
(2) If, under
subclause (1), the time and day that are entered in the Register of
Co-operative Charges are the same in relation to 2 or more charges on property
acquired by a co-operative, those charges are to have, as between themselves,
the respective priorities that they would have had if they had not been
registered under this Subdivision.
24 . Registration of assignment or variation of
charge
(1) If a notice is
lodged under clause 36, the Registrar must as soon as practicable cause
to be entered in the Register of Co-operative Charges the time and day when
the notice was lodged and the particulars set out in the notice.
(2) Subclause (1)
applies whether the notice was lodged during or after the period within which
the notice was required to be lodged.
25 . Standard time for the purposes of this
Subdivision
(1) The Registrar may,
by order published in the Gazette , declare a specified standard time to be
the standard time for the purposes of this Subdivision.
(2) If an order is in
force under subclause (1), a reference in this Subdivision to entering
the time when a particular event happened is a reference to entering that time
as expressed in terms of the standard time specified in the order.
Subdivision 4 — Certain charges void against liquidator or
administrator
In this
Division —
critical day , in relation to a co-operative,
means —
(a) if
the co-operative is being wound-up, the day when the winding-up began; or
(b) if
the co-operative is under administration, the relevant day in relation to the
administration; or
(c) if
the co-operative has executed a deed of arrangement, the relevant day in
relation to the administration that ended when the deed was executed;
relevant day , in relation to the administration
of a co-operative, means —
(a) if,
when the administration began, a winding-up of the co-operative was in
progress, the day on which the winding-up is taken because of the
Corporations Act Part 5.6 Division 1A as applying under this Act to
have begun; or
(b)
otherwise, the day on which the administration began.
27 . Certain charges void against liquidator or
administrator
(1) Subject to this
Subdivision, if —
(a) an
order is made, or a resolution is passed, for the winding-up of a
co-operative; or
(b) the
Registrar gives a certificate under section 314 for the winding-up of the
co-operative; or
(c) an
administrator of a co-operative is appointed under the Corporations Act
Part 5.3A as applying under this Act; or
(d) a
co-operative executes a deed of arrangement,
a registrable charge
on property of the co-operative is void as a security on that property as
against the liquidator, the administrator of the co-operative, or the
deed’s administrator, as the case may be.
(2) A charge is not
void under subclause (1) if —
(a) a
notice about the charge was lodged under clause 13 or 17, as the
case requires —
(i)
within the relevant period; or
(ii)
at least 6 months before the critical day;
or
(b) the
period within which a notice about the charge, other than a notice under
clause 36, is required to be lodged, being the period specified in the
relevant clause or that period as extended by the Supreme Court under
clause 29, has not ended at the start of the critical day and the notice
is lodged before the end of that period; or
(c) in
the case of a charge to which clause 17 applies, the period of
45 days after the chargee becomes aware that the property charged has
been acquired by a co-operative has not ended at the start of the critical day
and the notice is lodged before the end of that period.
(3) The reference in
subclause (2)(a) to the relevant period is to be read as a reference
to —
(a) in
the case of a charge to which clause 13 applies, the period of
45 days specified in that clause, or that period as extended by the
Supreme Court under clause 29; or
(b) in
the case of a charge to which clause 17 applies, the period of
45 days after the chargee becomes aware that the property has been
acquired by a co-operative.
28 . Certain varied charges void against
liquidator or administrator
(1) Subject to this
Subdivision, if, after there has been a variation in the terms of a
registrable charge on property of a co-operative having the effect of
increasing the amount of the debt or increasing the liabilities, whether
present or prospective, secured by the charge —
(a) an
order is made, or a resolution is passed, for the winding-up of the
co-operative; or
(b) an
administrator of a co-operative is appointed under the Corporations Act
Part 5.3A as applying under this Act; or
(c) a
co-operative executes a deed of arrangement,
the registrable charge
is void as a security on the property to the extent that it secures the amount
of the increase in the debt or liability.
(2) A charge is not
void under subclause (1) if —
(a) a
notice about the variation was lodged under clause 36 —
(i)
within the period of 45 days specified in
clause 36(2) or that period as extended by the Supreme Court under
clause 29; or
(ii)
within 6 months before the critical day;
or
(b) the
period of 45 days specified in clause 36(2), or that period as
extended by the Supreme Court under clause 29, has not ended at the start
of the critical day and the notice is lodged before the end of the period.
29 . Supreme Court may extend required period
If the Supreme Court
is satisfied that —
(a) the
failure to lodge a notice of a charge, or of a variation in the terms of a
charge, as required by a provision of this Schedule —
(i)
was accidental or due to inadvertence or some other
sufficient cause; or
(ii)
is not of a nature to prejudice the position of creditors
or shareholders;
or
(b) on
other grounds it is just and equitable to grant relief,
the Court may, on the
application of the co-operative or a person interested and on such terms and
conditions the Court considers just and expedient, by order, extend the period
for the further period specified in the order.
30 . Certain later charges void
(1) Subject to
subclause (3), if —
(a) a
registrable charge (the later charge ) is created before the end of
45 days after the creation of an unregistered registrable charge (the
earlier charge ); and
(b) the
later charge relates to all or any of the property to which the earlier charge
related; and
(c) the
later charge is given as a security for the same liability as is secured by
the earlier charge or any part of that liability,
the later charge, to
the extent to which it is a security for the same liability or part thereof,
and so far as it relates to the property comprised in the earlier charge, is
void as a security on that property as against a liquidator or administrator
of the co-operative, or an administrator of a deed of arrangement executed by
the co-operative.
(2) Subclause (1)
applies even if a notice of the later charge was lodged under clause 13
within the period mentioned in clause 27(2)(a).
(3) Subclause (1)
does not apply if it is proved to the satisfaction of the Supreme Court that
the later charge was given in good faith for the purpose of correcting some
material error in the earlier charge or under other proper circumstances and
not for the purposes of avoiding or evading the provisions of this
Subdivision.
31 . Effect of provisions on purchaser in good
faith
(1) Nothing in
clause 27(1) or (2) or 28 operates to affect the title of a
person to property purchased for value from a chargee or from a receiver
appointed by a chargee in the exercise of powers conferred by the charge or
implied by law if the person purchased the property in good faith and without
notice of —
(a) the
filing of an application for an order for the winding-up of the co-operative;
or
(b) the
passing of the necessary resolution for the voluntary winding-up of the
co-operative; or
(c) an
administrator of the co-operative being appointed under the Corporations Act
Part 5.3A as applying under this Act; or
(d) the
co-operative executing a deed of arrangement.
(2) The onus of
proving that a person purchased property in good faith and without notice of
any of the matters referred to in subclause (1)(a), (b), (c)
and (d) is on the person asserting that the property was so purchased.
Subdivision 5 — Certain charges in favour of persons void
In this
Division —
chargee , in relation to a charge,
means —
(a) in
any case, the holder, or all or any of the holders, of the charge; or
(b) in
the case of a charge that is an agreement to give or execute a charge in
favour of a person or persons, whether on demand or otherwise, the person, or
all or any of those persons;
officer , of a foreign co-operative, includes a
local agent of the foreign co-operative;
receiver includes a receiver and manager;
relevant person , in relation to a charge created
by a co-operative, means —
(a) a
person who is at the time when the charge is created, or who has been at any
time during the period of 6 months ending at that time, an officer of the
co-operative; or
(b) a
person associated, in relation to the creation of the charge, with a person of
a kind referred to in paragraph (a).
33 . Charges in favour of certain persons void in
certain cases
(1) If —
(a) a
co-operative creates a charge on property of the co-operative in favour of a
person who is, or in favour of persons at least one of whom is, a relevant
person in relation to the charge; and
(b)
within 6 months after the creation of the charge, the chargee purports to
take a step in the enforcement of the charge without the Supreme Court having,
under clause 34, given leave for the charge to be enforced,
the charge, and any
powers purported to be conferred by an instrument creating or evidencing the
charge, are, and are taken always to have been, void.
(2) Without limiting
the generality of subclause (1), a person who —
(a)
appoints a receiver of property of a co-operative under powers conferred by an
instrument creating or evidencing a charge created by the co-operative; or
(b)
whether directly or by an agent, enters into possession or assumes control of
property of a co-operative for the purposes of enforcing a charge created by
the co-operative,
is to be taken, for
the purposes of subclause (1), to take a step in the enforcement of the
charge.
34 . Supreme Court may give leave for enforcement
of charge
On application by the
chargee under a charge, the Supreme Court may give leave for the charge to be
enforced, if the Court is satisfied that —
(a)
immediately after the creation of the charge, the co-operative that created
the charge was solvent; and
(b) in
all the circumstances of the case, it is just and equitable for the Court to
do so.
35 . Certain transactions excluded
(1) Nothing in
clause 33 affects a debt, liability or obligation of a co-operative that
would, if that clause had not been enacted, have been secured by a charge
created by the co-operative.
(2) Nothing in
clause 33 operates to affect the title of a person to property, other
than the charge concerned or an interest in the charge concerned, purchased
for value from a chargee under a charge, from an agent of a chargee under a
charge, or from a receiver appointed by a chargee under a charge in the
exercise of powers conferred by the charge or implied by law, if that person
purchased the property in good faith and without notice that the charge was
created in favour of a person who is, or in favour of persons at least one of
whom is, as the case may be, a relevant person in relation to the charge.
(3) The onus of
proving that a person purchased property in good faith and without notice that
a charge was created as referred to in subclause (2) is on the person
asserting that the property was so purchased.
Subdivision 6 — Assignment, variation or satisfaction of
charges
36 . Assignment and variation of charges
(1) If, after a
registrable charge on property of a co-operative has been created, a person
other than the original chargee becomes the holder of the charge, the person
who becomes the holder of the charge must, within 45 days after becoming
the holder of the charge —
(a)
lodge a notice with the Registrar stating that the person has become the
holder of the charge; and
(b) give
the co-operative a copy of the notice.
(2) If, after a
registrable charge on property of a co-operative has been created, there is a
variation in the terms of the charge having the effect of —
(a)
increasing the amount of the debt or increasing the liabilities, whether
present or prospective, secured by the charge; or
(b)
prohibiting or restricting the creation of subsequent charges on the property,
the co-operative must,
within 45 days after the variation occurs, ensure that there is lodged
with the Registrar a notice setting out particulars of the variation and
accompanied by the instrument, if any, effecting the variation or a certified
copy of that instrument.
(3) If a charge
created by a co-operative secures a debt of an unspecified amount or secures a
debt of a specified amount and further advances, a payment or advance made by
the chargee to the co-operative in accordance with the terms of the charge is
not to be taken, for the purposes of subclause (2), to be a variation in
the terms of the charge having the effect of increasing the amount of the
charge or the liabilities, whether present or prospective, secured by the
charge.
(4) A reference in
this clause to the chargee in relation to a charge is, if the charge is
constituted by a debenture or debentures and there is a trustee for debenture
holders, to be construed as a reference to the trustee for debenture holders.
(5) Nothing in
clause 13 requires the lodgment of a notice under that clause in relation
to a charge merely because of the fact that the terms of the charge are varied
only in a manner mentioned in this clause.
37 . Satisfaction of, and release of property
from, charges
(1) If, in relation to
a charge registered under this Division —
(a) the
debt or other liability, the payment or discharge of which was secured by the
charge, has been paid or discharged in whole or in part; or
(b) the
property charged or part of the property is released from the charge,
the person who was the
holder of the charge at the time when the debt or other liability was so paid
or discharged or the property or part of the property was released must,
within 14 days after receipt of a request in writing made by the
co-operative on whose property the charge exists, give to the co-operative a
memorandum in the form approved by the Registrar acknowledging that the debt
or other liability has been paid or discharged in whole or in part or that the
property or part of it is no longer subject to the charge, as the case may be.
(2) The co-operative
may lodge the memorandum with the Registrar and, on the memorandum being
lodged, the Registrar must enter in the Register of Co-operative Charges
particulars of the matters stated in the memorandum.
(3) The reference in
subclause (1) to the person who was the holder of a charge at the time
when the debt or other liability was so paid or discharged or the property or
part of the property was released is, if the charge was constituted by a
debenture or debentures and there was a trustee for debenture holders, to be
construed as a reference to the person who was, at that time, the trustee of
debenture holders.
(1) If a notice about
a charge on property of a co-operative is required to be lodged under
clause 13, 17 or 36(2), the notice may be lodged by the
co-operative or by an interested person.
(2) If a document
required by this Division other than clause 36(1) to be lodged with the
Registrar is lodged by a person other than the co-operative concerned, that
person —
(a)
must, within 7 days after the lodgment of the document, give to the
co-operative a copy of the document; and
(b) is
entitled to recover from the co-operative the amount of any fees properly paid
by the person on lodgment of the document.
(1) If
clause 13, 17 or 36(2) is contravened in relation to a
registrable charge on property of a co-operative, the co-operative and an
officer of the co-operative who is knowingly concerned in or a party to the
contravention commits an offence.
Penalty: a fine of $1 000.
(2) If a person who
becomes the holder of a registrable charge fails to comply with
clause 36(1), the person and, if the person is a corporation, an officer
of the corporation who is in default, each contravene this subclause.
Penalty: a fine of $1 000.
40 . Co-operative to keep documents relating to
charges
A co-operative must,
at the place where the co-operative register of charges referred to in
clause 41 is kept, keep a copy of —
(a)
every document relating to a charge on property of the co-operative that is
lodged with the Registrar under this Division; and
(b)
every document given to the co-operative under this Division.
Penalty: a fine of $1 000.
41 . Co-operative to keep register, and
transitional provision
(1) A co-operative
must keep a co-operative register of charges.
(2) On the creation of
a charge, whether registrable or not, on property of the co-operative, or on
the acquisition of property subject to a charge, whether registrable or not,
the co-operative must as soon as practicable enter in the co-operative
register of charges particulars of the charge, giving in relation to each
charge —
(a) if
the charge is a charge created by the co-operative, the date of its creation
or, if the charge was a charge existing on property acquired by the
co-operative, the date on which the property was so acquired; and
(b) a
short description of the liability, whether present or prospective, secured by
the charge; and
(c) a
short description of the property charged; and
(d) the
name of the trustee for debenture holders or, if there is no such trustee, the
name of the chargee; and
(e) the
name of the person whom the co-operative believes to be the holder of the
charge.
(3) In the case of a
transferred co-operative previously registered under the
Companies (Co-operative) Act 1943 , the register kept by the co-operative
under section 96 of that Act is to be considered to be part of the
register kept by the co-operative under subclause (2).
(4) A co-operative
register of charges kept by a co-operative pursuant to subclause (1) must
be open for inspection —
(a) by a
creditor or member of the co-operative, without payment; and
(b) by
another person, on payment for each inspection of the amount, not exceeding
the amount prescribed by the regulations, the co-operative requires or, if the
co-operative does not require the payment of an amount, without charge.
(5) A person may
request a co-operative to furnish the person with a copy of the co-operative
register of charges or any part of the register.
(6) If a person makes
a request under subclause (5), the co-operative must send the copy to
that person —
(a) if
the co-operative requires payment of an amount not more than the amount
prescribed by the regulations, within 21 days after payment of the amount
is received by the co-operative or within a longer period approved by the
Registrar; or
(b) in a
case to which paragraph (a) does not apply, within 21 days after the
request is made or within such longer period as the Registrar approves.
(7) If default is made
in complying with any provision of this clause, the co-operative commits an
offence.
Penalty: a fine of $1 000.
(1) If particulars of
a charge are entered in the Register of Co-operative Charges in accordance
with this Division, the Registrar must, on request by any person, issue to
that person a certificate —
(a)
setting out those particulars; and
(b)
stating the time and day when a notice in respect of the charge containing
those particulars was lodged with the Registrar; and
(c) if
the word “provisional” appears in the Register of Co-operative
Charges next to the reference to the time and day, stating that fact.
(2) A certificate
issued under subclause (1) is evidence of the matters stated in the
certificate.
(3) If particulars of
a charge are entered in the register of charges in accordance with this
Division, and the word “provisional” does not appear in the
register next to the reference to the time and day when a notice about the
charge was lodged, the Registrar must, on request by any person, issue to that
person a certificate stating that particulars of the charge are entered in the
register in accordance with this Division.
(4) A certificate
issued under subclause (3) is evidence that the requirements of this
Division as to registration, other than the requirements relating to the
period after the creation of the charge within which notice in respect of the
charge is required to be lodged, have been complied with.
43 . Power of Supreme Court to rectify register of
charges
If the Supreme Court
is satisfied —
(a) that
a particular with respect to a registrable charge on property of a
co-operative has been omitted from, or misstated in, the register of charges
or a memorandum referred to in clause 37; and
(b) that
the omission or misstatement —
(i)
was accidental or due to inadvertence or to some other
sufficient cause; or
(ii)
is not of a nature to prejudice the position of creditors
or shareholders; or
(iii)
on other grounds it is just and equitable to grant
relief,
the Court may, on the
application of the co-operative or a person interested and on terms and
conditions that the Court considers just and expedient, order that the
omission or misstatement be rectified.
44 . Registrar may exempt from compliance with
certain requirements of Division
(1) The Registrar may,
by order published in the Gazette , exempt a person from compliance with the
requirements of clause 13, 17 or 36 relating to —
(a) the
particulars to be contained in a notice under the relevant clause; or
(b) the
documents, other than the notice, to be lodged under the relevant clause; or
(c) the
verification of a document required to be lodged under the relevant clause.
(2) A person who is
exempted under this clause from compliance with a requirement of
clause 13, 17 or 36 must not contravene the condition.
(3) If a person has
contravened a condition to which an exemption under this clause is subject,
the Supreme Court may, on the application of the Registrar, order the person
to comply with the condition.
Division 3 — Order of priority
(1) In this
Division —
prior registered charge , in relation to another
registered charge, means a charge the priority time of which is earlier than
the priority time of the other charge;
priority time , in relation to a registered
charge, means —
(a)
except as provided by paragraph (b) or (c), the time and date
appearing in the Register of Co-operative Charges in relation to the charge,
being a time and day entered in the register pursuant to Division 2
Subdivision 3; or
(b) if a
notice has been lodged under clause 17 in relation to a charge on
property, being a charge that, at the time when the notice was lodged, was
already registered under Division 2, the earlier or earliest time and day
appearing in the Register of Co-operative Charges in relation to the charge,
being a time and day entered in the register pursuant to clause 17; or
(c) to
the extent that the charge has effect as varied by a variation, notice of
which was required to be lodged under clause 36(2), the time and day
entered in the Register of Co-operative Charges in relation to the charge
pursuant to clause 24;
registered charge means a charge that is
registered under Division 2;
subsequent registered charge , in relation to
another registered charge, means a charge the priority time of which is later
than the priority time of the other registered charge;
unregistered charge means a charge that is not
registered under Division 2 but does not include a charge that is not a
registrable charge.
(2) A reference in
this Division to a person having notice of a charge includes a reference to a
person having constructive notice of the charge.
(3) If, by virtue of
the definition of priority time in subclause (1), a registered charge has
2 or more priority times each of which relates to a particular liability
secured by the charge, each of the liabilities is, for the purposes of this
Division, taken to be secured by a separate registered charge, the priority
time of which is the priority time of the first-mentioned registered charge
that relates to the liability concerned.
(1) Subject to this
clause, Subdivision 2 has effect on the priorities, in relation to each
other, of registrable charges on the property of a co-operative.
(2) The application,
in relation to particular registrable charges, of the order of priorities of
charges set out in Subdivision 2, is subject to —
(a) any
consent (express or implied) that varies the priorities in relation to each
other of the charges, being a consent given by the holder of one of those
charges and being a charge that would otherwise be entitled to priority over
the other charge; and
(b) any
agreement between the chargees that affects the priorities in relation to each
other of the charges in relation to which those persons are the chargees.
(3) The holder of a
registered charge, being a floating charge, on property of a co-operative is
taken, for the purposes of subclause (2), to have consented to the charge
being postponed to a subsequent registered charge, being a fixed charge that
is created before the floating charge becomes fixed, on any of the property
unless —
(a) the
creation of the subsequent registered charge contravened a provision of the
instrument or resolution creating or evidencing the floating charge; and
(b) a
notice about the floating charge indicating the existence of the provision
referred to in paragraph (a) was lodged with the Registrar under
clause 13, 17 or 36 before the creation of the subsequent
registered charge.
(4) If a charge
relates to property of a kind to which a particular paragraph of
clause 4(1) applies and also relates to other property,
Subdivision 2 applies so as to affect the priority of the charge only in
so far as it relates to the first-mentioned property and does not affect the
priority of the charge in so far as it relates to the other property.
Subdivision 2 — Priority rules
47 . General priority rules in relation to
registered charges
(1) A registered
charge on property of a co-operative has priority over —
(a) a
subsequent registered charge on the property, unless the subsequent registered
charge was created before the creation of the prior registered charge and the
chargee in relation to the subsequent registered charge proves that the
chargee in relation to the prior registered charge had notice of the
subsequent registered charge at the time when the prior registered charge was
created; and
(b) an
unregistered charge on the property created before the creation of the
registered charge, unless the chargee in relation to the unregistered charge
proves that the chargee in relation to the registered charge had notice of the
unregistered charge at the time when the registered charge was created; and
(c) an
unregistered charge on the property created after the creation of the
registered charge.
(2) A registered
charge on property of a co-operative is postponed to —
(a) a
subsequent registered charge on the property, if the subsequent registered
charge was created before the creation of the prior registered charge and the
chargee in relation to the subsequent registered charge proves that the
chargee in relation to the prior registered charge had notice of the
subsequent registered charge at the time when the prior registered charge was
created; and
(b) an
unregistered charge on the property created before the creation of the
registered charge, where the chargee in relation to the unregistered charge
proves that the chargee in relation to the registered charge had notice of the
unregistered charge at the time when the registered charge was created.
48 . General priority rule in relation to
unregistered charges
An unregistered charge
on property of a co-operative has priority over —
(a) a
registered charge on the property that was created after the creation of the
unregistered charge and does not have priority over the unregistered charge
under clause 47(1); and
(b)
another unregistered charge on the property created after the first-mentioned
unregistered charge.
(1) Except as provided
by this clause, priority given by this Division to a charge over another
charge does not extend to a liability that, at the priority time in relation
to the first-mentioned charge, is not a present liability.
(2) If a registered
charge on property of a co-operative secures —
(a) a
present liability and a prospective liability of an unspecified amount; or
(b) a
prospective liability of an unspecified amount,
priority given by this
Division to the charge over another charge of which the chargee in relation to
the first-mentioned charge does not have actual knowledge extends to the
prospective liability, whether the prospective liability became a present
liability before or after the registration of the first-mentioned charge.
(3) If a registered
charge on property of a co-operative secures —
(a) a
present liability and a prospective liability up to a specified maximum
amount; or
(b) a
prospective liability up to a specified maximum amount,
and the notice lodged
under clause 13 or 17 about the charge sets out the nature of the
prospective liability and the amount specified, then priority given by this
Division to the charge over another charge extends to a prospective liability
secured by the first-mentioned charge to the extent of the maximum amount
specified.
(4) Subclause (3)
applies whether the prospective liability became a present liability before or
after the registration of the first-mentioned charge and despite the fact that
the chargee in relation to the first-mentioned charge had actual knowledge of
the other charge at the time when the prospective liability became a present
liability.
(5) Subclause (6)
applies if —
(a) a
registered charge on property of a co-operative secures —
(i)
a present liability and a prospective liability up to a
specified maximum amount; or
(ii)
a prospective liability up to a specified maximum amount,
but the notice lodged
under clause 13 or 17 about the charge does not set out the nature
of the prospective liability or the maximum amount specified; or
(b) a
registered charge on property of a co-operative secures a prospective
liability of an unspecified amount.
(6) In relation to a
charge referred to in subclause (5) —
(a)
priority given by this Division to the charge over another charge of which the
chargee in relation to the first-mentioned charge has actual knowledge extends
to a prospective liability secured by the first-mentioned charge that had
become a present liability at the time when the chargee in relation to the
first-mentioned charge first obtained actual knowledge of the other charge;
and
(b)
priority given by this Division to the charge over another charge of which the
chargee in relation to the first-mentioned charge has actual knowledge extends
to a prospective liability secured by the first-mentioned charge that became a
present liability, as the result of the making of an advance, after the time
when the chargee in relation to the first-mentioned charge first obtained
actual knowledge of the other charge if, at that time, the terms of the
first-mentioned charge required the chargee in relation to the charge to make
the advance after that time.
(7)
Subclause (6)(b) extends to the prospective liability whether the advance
was made before or after the registration of the first-mentioned charge and
despite the fact that the chargee in relation to the first-mentioned charge
had actual knowledge of the other charge at the time when the advance was
made.
Schedule 4 -- Receivers, and other controllers, of property of co-operatives
[s. 268]
In this
Schedule —
administrator , in relation to a deed of
arrangement, means an administrator of the deed appointed under the
Corporations Act Part 5.3A, as applying under this Act;
control day , in relation to a controller of
property of a co-operative, means —
(a)
unless paragraph (b) applies —
(i)
in the case of a receiver, or receiver and manager, of
the property, the day when the receiver, or receiver and manager, was
appointed; or
(ii)
in the case of another person who is in possession, or
has control, of the property for the purpose of enforcing a charge, the day
when the person entered into possession, or took control, of property of the
co-operative for the purpose of enforcing the charge;
or
(b) if
the controller became a controller of property of the
co-operative —
(i)
to act with an existing controller of the property; or
(ii)
in place of a controller of the property who has died or
ceased to be a controller of the property,
the day that is,
because of any other application or applications of this definition, the
control day in relation to the controller referred to in subparagraph (i)
or (ii);
controller , of property of a co-operative,
means —
(a) a
receiver, or receiver and manager, of the property; or
(b)
anyone else who, whether or not as agent for the co-operative, is in
possession, or has control, of the property for the purpose of enforcing a
charge;
co-operative includes a foreign co-operative
registered under Part 14;
daily newspaper means a newspaper that is
ordinarily published on each day that is a business day in the place where the
newspaper is published, whether or not the newspaper is ordinarily published
on other days;
managing controller , of property of a
co-operative, means —
(a) a
receiver and manager of the property; or
(b)
another controller of the property who has functions or powers in relation to
managing the co-operative;
national newspaper means a daily newspaper that
circulates generally in each State and Territory;
officer , of a foreign co-operative, includes a
local agent of the foreign co-operative;
property , of a co-operative, means
property —
(a) in
the case of a co-operative that is not a foreign co-operative, within or
outside Australia; or
(b) in
the case of a co-operative that is a foreign co-operative, within Australia or
an external Territory;
receiver , of property of a co-operative, includes
a receiver and manager.
Except in so far as
the contrary intention appears, this Schedule applies in relation to a
receiver of property of a co-operative who is appointed after the commencement
of this Schedule, even if the appointment arose out of a transaction entered
into, or an act or thing done, before that commencement.
3 . Persons not to act as receivers
(1) A person is not
qualified to be appointed, and cannot act, as receiver of property of a
co-operative if the person —
(a) is a
mortgagee of property of the co-operative; or
(b) is
an auditor or an officer of the co-operative; or
(c) is
an officer of a corporation that is a mortgagee of property of the
co-operative; or
(d) is
not a registered liquidator under the Corporations Act; or
(e) is
an officer of a corporation related to the co-operative; or
(f) has
at any time within the last 12 months been an officer or promoter of the
co-operative or of a related corporation, unless the Registrar directs in
writing that this paragraph does not apply in relation to the person in
relation to the co-operative.
(2) In
subclause (1) —
officer , in relation to a corporation, does not
include a receiver, appointed under an instrument whether before or after the
commencement of this clause, of property of the body.
(3)
Subclause (1)(d) does not apply in relation to a corporation authorised
by or under a law of the Commonwealth, of a State or of a Territory to act as
receiver of property of the co-operative.
(4) Nothing in this
clause prevents a person from acting as receiver of property of a co-operative
under an appointment validly made before the commencement of this clause.
4 . Supreme Court may declare whether controller
is validly acting
(1) If there is doubt,
on a specific ground, about —
(a)
whether a purported appointment of a person, after the commencement of this
clause, as receiver of property of a co-operative is valid; or
(b)
whether a person who has entered into possession, or assumed control, of
property of a co-operative after the commencement of this clause did so
validly under the terms of a charge on that property,
the person, the
co-operative or any of the co-operative’s creditors may apply to the
Supreme Court for an order under subclause (2).
(2) On an application,
the Supreme Court may make an order declaring whether or not —
(a) the
purported appointment was valid; or
(b) the
person entered into possession, or assumed control, validly under the terms of
the charge,
as the case may be, on
the ground specified in the application or on some other ground.
(1) A receiver, or
another authorised person, who, whether as agent for the co-operative or not,
enters into possession or assumes control of a property of a co-operative for
the purpose of enforcing a charge is, despite an agreement to the contrary,
but without prejudice to the person’s rights against the co-operative or
another person, liable for debts incurred by the person in the course of the
receivership, possession or control for services rendered, goods purchased or
property hired, leased, used or occupied.
(2) Subclause (1)
does not constitute the person entitled to the charge a mortgagee in
possession.
(3) If —
(a) a
person (the controller ) enters into possession or assumes control of property
of a co-operative; and
(b) the
controller purports to have been properly appointed as a receiver of that
property under a power contained in an instrument, but has not been properly
appointed; and
(c)
civil proceedings in a federal court or a court of a State or Territory arise
out of an act alleged to have been done by the controller,
the court may, if it
is satisfied that the controller believed on reasonable grounds that the
controller had been properly appointed, order that —
(d) the
controller be relieved in whole or in part of a liability that the controller
has incurred but would not have incurred if the controller had been properly
appointed; and
(e) a
person who purported to appoint the controller as receiver be liable for an
act, matter or thing in so far as the controller has been relieved under
paragraph (d) of liability for that act, matter or thing.
6 . Liability of controller under pre-existing
agreement about property used by co-operative
(1) This clause
applies if —
(a)
under an agreement made before the control day in relation to a controller of
property of a co-operative, the co-operative continues after that day to use
or occupy, or to be in possession of, property (the third party property ) of
which someone else is the owner or lessor; and
(b) the
controller is controller of the third party property.
(2) Subject to
subclauses (4) and (7), the controller is liable for the portion of
the rent or other amounts payable by the co-operative under the agreement that
is attributable to a period —
(a) that
begins more than 7 days after the control day; and
(b)
throughout which —
(i)
the co-operative continues to use or occupy, or to be in
possession of, the third party property; and
(ii)
the controller is controller of the third party property.
(3) Within 7 days
after the control day, the controller may give to the owner or lessor a notice
that specifies the third party property and states that the controller does
not propose to exercise rights in relation to the property as controller of
the property, whether on behalf of the co-operative or anyone else.
(4) Despite
subclause (2), the controller is not liable for the portion of the rent
or other amounts payable by the co-operative under the agreement as is
attributable to a period during which a notice under subclause (3) is in
force, but the notice does not affect a liability of the co-operative.
(5) A notice under
subclause (3) ceases to have effect if —
(a) the
controller revokes it by writing given to the owner or lessor; or
(b) the
controller exercises, or purports to exercise, a right in relation to the
third party property as controller of the property, whether on behalf of the
co-operative or another person.
(6) For the purposes
of subclause (5), the controller does not exercise, or purport to
exercise, a right referred to in subclause (5)(b) merely because the
controller continues to be in possession, or to have control, of the third
party property, unless the controller —
(a) also
uses the property; or
(b)
asserts a right, as against the owner or lessor, to continue.
(7) Subclause (2)
does not apply to the extent that the Supreme Court, by order, excuses the
controller from liability, but an order does not affect a liability of the
co-operative.
(8) The controller is
not taken because of subclause (2) —
(a) to
have adopted the agreement; or
(b) to
be liable under the agreement otherwise than as mentioned in
subclause (2).
(1) Subject to this
clause, a receiver of property of a co-operative has power to do, in Australia
and elsewhere, all things necessary or convenient to be done for or in
relation to, or as incidental to, the attainment of the objectives for which
the receiver was appointed.
(2) Without limiting
subclause (1), but subject to any provision of the court order by which,
or the instrument under which, the receiver was appointed, being a provision
that limits the receiver’s powers in any way, a receiver of property of
a co-operative has, in addition to any powers conferred by the order or
instrument, as the case may be, or by any other law, power, for the purpose of
attaining the objectives for which the receiver was appointed —
(a) to
enter into possession and take control of property of the co-operative in
accordance with the terms of the order or instrument; and
(b) to
lease, let on hire or dispose of property of the co-operative; and
(c) to
grant options over property of the co-operative on conditions that the
receiver considers appropriate; and
(d) to
borrow money on the security of property of the co-operative; and
(e) to
insure property of the co-operative; and
(f) to
repair, renew or enlarge property of the co-operative; and
(g) to
convert property of the co-operative into money; and
(h) to
carry on a business of the co-operative; and
(i)
to take on lease or on hire, or to acquire, property
necessary or convenient in connection with the carrying on of a business of
the co-operative; and
(j) to
execute a document, bring or defend proceedings or do any other act or thing
in the name of and on behalf of the co-operative; and
(k) to
draw, accept, make and endorse a bill of exchange or promissory note; and
(l) to
use a seal of the co-operative; and
(m) to
engage or discharge employees on behalf of the co-operative; and
(n) to
appoint a legal practitioner, accountant or other professionally qualified
person to assist the receiver; and
(o) to
appoint an agent to do any business that the receiver is unable to do, or that
it is unreasonable to expect the receiver to do, in person; and
(p) if a
debt or liability is owed to the co-operative, to prove the debt or liability
in a bankruptcy, insolvency or winding-up and, in that connection, to receive
dividends and to assent to a proposal for a composition or a scheme of
arrangement; and
(q) if
the receiver was appointed under an instrument that created a charge on
uncalled capital or uncalled premiums of the co-operative —
(i)
in the name of the co-operative, to make a call for money
unpaid on shares in the co-operative, whether on account of the nominal value
of the shares or by way of premium; or
(ii)
on the giving of an adequate indemnity to a liquidator of
the co-operative, in the name of the liquidator, to make a call for money
unpaid on account of the nominal value of shares in the co-operative;
and
(r) to
enforce payment of a call that is due and unpaid, whether the calls were made
by the receiver or otherwise; and
(s) to
make or defend an application for the winding-up of the co-operative; and
(t) to
refer to arbitration a question affecting the co-operative.
(3) The conferring by
this clause on a receiver of powers in relation to property of a co-operative
does not affect the rights in relation to that property of any other person
other than the co-operative.
(4) In this clause, a
reference, in relation to a receiver, to property of a co-operative is, unless
the contrary intention appears, a reference to the property of the
co-operative in relation to which the receiver was appointed.
8 . Controller’s duty of care in exercising
power of sale
(1) In exercising a
power of sale in respect of property of a co-operative, a controller must take
all reasonable care to sell the property for —
(a) if,
when it is sold, it has a market value, not less than the market value; or
(b)
otherwise, the best price that is reasonably obtainable, having regard to the
circumstances existing when the property is sold.
(2) Nothing in
subclause (1) limits anything in Part 9 Division 3.
9 . Supreme Court may authorise managing
controller to dispose of property despite prior charge
(1) On the application
of a managing controller of property of a co-operative, the Supreme Court may
by order authorise the controller to sell, or to dispose of in some other
specified way, specified property of the co-operative, even though it is
subject to a charge (the prior charge ) that has priority over a charge (the
controller’s charge ) on the property that the controller is enforcing.
(2) The Supreme Court
may make an order if satisfied that —
(a)
apart from the existence of the prior charge, the controller would have power
to sell, or to dispose of, the property; and
(b) the
controller has taken all reasonable steps to obtain the consent of the holder
of the prior charge to the sale or disposal, but has not obtained the consent;
and
(c) sale
or disposal of the property under the order is in the best interests of the
co-operative’s creditors and of the co-operative; and
(d) sale
or disposal of the property under the order will not unreasonably prejudice
the rights or interests of the holder of the prior charge.
(3) The Supreme Court
may have regard to the need to protect adequately the rights and interests of
the holder of the prior charge.
(4) If the property
would be sold or disposed of together with other property that is subject to
the controller’s charge, the Supreme Court may have regard
to —
(a) the
amount, if any, by which it is reasonable to expect that the net proceeds of
selling or disposing of the other property otherwise than together with the
first-mentioned property would be less than so much of the net proceeds of
selling or disposing of all the property together as would be attributable to
that other property; and
(b) the
amount, if any, by which it is reasonable to expect that the net proceeds of
selling or disposing of the first-mentioned property otherwise than together
with the other property would be greater than so much of the net proceeds of
selling or disposing of all the property together as would be attributable to
the first-mentioned property.
(5) Nothing in
subclause (3) or (4) limits the matters to which the Supreme Court
may have regard for the purposes of subclause (2).
(6) An order may be
made subject to conditions.
10 . Receiver’s power to carry on
co-operative’s business during winding-up
(1) A receiver of
property of a co-operative that is being wound-up may —
(a) with
the written approval of the co-operative’s liquidator or with the
approval of the Supreme Court, carry on the co-operative’s business
either generally or as otherwise specified in the approval; and
(b) do
whatever is necessarily incidental to carrying on the business under
paragraph (a).
(2) Subclause (1)
does not —
(a)
affect a power that the receiver has otherwise than under that subclause; or
(b)
empower the receiver to do an act that the receiver would not have power to do
if the co-operative were not being wound-up.
(3) A receiver of
property of a co-operative who carries on the co-operative’s business
under subclause (1) does so —
(a) as
agent for the co-operative; and
(b) in
his or her capacity as receiver of property of the co-operative.
(4) The consequences
of subclause (3) include, but are not limited to, the
following —
(a) for
the purposes of clause 5(1), a debt that the receiver incurs in carrying
on the business as mentioned in subclause (3) of this clause is incurred
in the course of the receivership;
(b) a
debt or liability that the receiver incurs in so carrying on the business is
not a cost, charge or expense of the winding-up.
11 . Controller’s duties in relation to
financial institution accounts and financial records
(1) A controller of
property of a co-operative must —
(a) open
and maintain an account with a financial institution, bearing —
(i)
the controller’s name; and
(ii)
in the case of a receiver of the property, the title
“receiver”; and
(iii)
otherwise, the title “controller”; and
(iv)
the co-operative’s name;
and
(b)
within 3 business days after money of the co-operative comes under the control
of the controller, pay the money into an account referred to in
paragraph (a); and
(c)
ensure that no account that the controller maintains contains money other than
money of the co-operative that comes under the control of the controller; and
(d) keep
the financial records that correctly record and explain all transactions that
the controller enters into as the controller.
(2) A director,
creditor or member of a co-operative may, unless the Supreme Court otherwise
orders, personally or by an agent, inspect records kept by a controller of
property of the co-operative for the purposes of subclause (1)(d).
12 . Managing controller to report within
2 months about co-operative’s affairs
(1) A managing
controller of property of a co-operative must prepare a report about the
co-operative’s affairs that is in the form approved by the Registrar and
is made up to a day not later than 28 days before the day when it is
prepared.
(2) The managing
controller must prepare the report and lodge it with the Registrar within
2 months after the control day.
(3) As soon as
practicable, and in any event within 14 days, after lodging the report
with the Registrar, the managing controller must cause to be published in a
national newspaper, or in each State and Territory in a daily newspaper that
circulates generally in that State or Territory, a notice stating —
(a) that
the report has been prepared; and
(b) that
a person can, on paying the fee prescribed by the regulations, inspect the
report at specified offices of the Registrar.
(4) If, in the
managing controller’s opinion, it would seriously prejudice —
(a) the
co-operative’s interests; or
(b) the
achievement of the objectives for which the controller was appointed, or
entered into possession or assumed control of property of the co-operative, as
the case requires,
if particular
information that the controller would otherwise include in the report were
made available to the public, the controller need not include the information
in the report.
(5) If the managing
controller omits information from the report as permitted by
subclause (4), the controller must include instead a notice —
(a)
stating that certain information has been omitted from the report; and
(b)
summarising what the information is about, but without disclosing the
information itself.
(1) If it appears to
the receiver of property of a co-operative that —
(a) a
past or present officer, or a member, of the co-operative may have been guilty
of an offence under a law of the Commonwealth or of a State or Territory in
relation to the co-operative; or
(b) a
person who has taken part in the formation, promotion, administration,
management or winding-up of the co-operative —
(i)
may have misapplied or retained, or may have become
liable or accountable for, money or property, whether the property is within
or outside Australia, of the co-operative; or
(ii)
may have been guilty of negligence, default, breach of
duty or breach of trust in relation to the co-operative,
the receiver
must —
(c)
lodge with the Registrar as soon as practicable a report about the matter; and
(d) give
to the Registrar the information, and access to and facilities for inspecting
and taking copies of any documents, as the Registrar requires.
(2) The receiver may
also lodge further reports specifying any other matter that, in the
receiver’s opinion, it is desirable to bring to the notice of the
Registrar.
(3) If it appears to
the Supreme Court —
(a) that
a past or present officer, or a member, of a co-operative in relation to
property of which a receiver has been appointed has been guilty of an offence
under a law referred to in subclause (1)(a) in relation to the
co-operative; or
(b) that
a person who has taken part in the formation, promotion, administration,
management or winding-up of a co-operative in relation to property of which a
receiver has been appointed has engaged in conduct referred to in
subclause (1)(b) in relation to the co-operative,
and that the receiver
has not lodged a report with the Registrar about the matter, the Court may, on
the application of a person interested in the appointment of the receiver or
of its initiative, direct the receiver to lodge the report.
14 . Supervision of controller
(1) If —
(a) it
appears to the Supreme Court or to the Registrar that a controller of property
of a co-operative has not faithfully performed, or is not faithfully
performing, the controller’s functions or has not observed, or is not
observing, a requirement of —
(i)
in the case of a receiver, the order by which, or the
instrument under which, the receiver was appointed; or
(ii)
otherwise, an instrument under which the controller
entered into possession, or took control, of the property; or
(iii)
in any case, the Supreme Court; or
(iv)
in any case, this Act or the rules of court;
or
(b) a
person complains to the Supreme Court or to the Registrar about an act or
omission of a controller of property of a co-operative in connection with
performing or exercising any of the controller’s functions and powers,
the Supreme Court or
the Registrar, as the case may be, may inquire into the matter and, if the
Court or the Registrar inquires under this subclause, the Supreme Court may
take the action that it considers appropriate.
(2) The Registrar may
report to the Supreme Court any matter that in the Registrar’s opinion
is a misfeasance, neglect or omission on the part of a controller of property
of a co-operative and the Court may —
(a)
order the controller to make good any loss that the estate of the co-operative
has sustained because of the misfeasance, neglect or omission; and
(b) make
any other order that it considers appropriate.
(3) The Supreme Court
may at any time —
(a)
require a controller of property of a co-operative to answer questions about
the performance or exercise of any of the controller’s functions and
powers as controller; or
(b)
examine a person about the performance or exercise by the controller of any of
the controller’s functions and powers as controller; or
(c)
direct an investigation to be made of the controller’s books.
15 . Controller may apply to Supreme Court
(1) A controller of
property of a co-operative may apply to the Supreme Court for directions in
relation to any matter arising in relation to the performance or exercise of
any of the controller’s functions and powers as controller.
(2) In the case of a
receiver of property of a co-operative, subclause (1) applies only if the
receiver was appointed under a power contained in an instrument.
16 . Power of Supreme Court to fix
receiver’s remuneration
(1) The Supreme Court
may by order fix the amount to be paid by way of remuneration to a person who,
under a power contained in an instrument, has been appointed as receiver of
property of a co-operative.
(2) The power of the
Supreme Court to make an order under this clause —
(a)
extends to fixing the remuneration for a period before the making of the order
or the application for the order; and
(b) is
exercisable even if the receiver has died, or ceased to act, before the making
of the order or the application for the order; and
(c) if
the receiver has been paid or has retained for the receiver’s
remuneration for any period before the making of the order any amount in
excess of that fixed for the period, extends to requiring the receiver or the
receiver’s personal representatives to account for the excess or the
part of the excess that is specified in the order.
(3) The power
conferred by subclause (2)(c) cannot be exercised in relation to a period
before the making of the application for the order unless, in the opinion of
the Supreme Court, there are special circumstances that make it appropriate
for the power to be exercised.
(4) The Supreme Court
may from time to time vary or amend an order under this clause.
(5) An order under
this clause may be made, varied or amended on the application of —
(a) a
liquidator of the co-operative; or
(b) an
administrator of the co-operative; or
(c) an
administrator of a deed of arrangement executed by the co-operative; or
(d) the
Registrar.
(6) An order under
this clause may be varied or amended on the application of the receiver
concerned.
(7) An order under
this clause may be made, varied or amended only as provided in
subclauses (5) and (6).
17 . Controller has qualified privilege in certain
cases
A controller of
property of a co-operative has qualified privilege in relation to —
(a) a
matter contained in a report that the controller lodges under clause 12
or 13; or
(b) a
comment that the controller makes under clause 20(2)(c).
18 . Notification of matters relating to
controller
(1) A person who
obtains an order for the appointment of a receiver of property of a
co-operative, or who appoints such a receiver under a power contained in an
instrument, must —
(a)
within 7 days after obtaining the order or making the appointment, lodge
notice that the order has been obtained, or that the appointment has been
made, as the case requires; and
(b)
within 21 days after obtaining the order or making the appointment, cause
notice that the order has been obtained, or that the appointment has been
made, as the case requires, to be published in the Gazette .
(2) A person who
appoints another person to enter into possession, or take control, of property
of a co-operative, whether or not as agent for the co-operative, for the
purpose of enforcing a charge otherwise than as receiver of that property
must —
(a)
within 7 days after making the appointment, lodge notice of the
appointment with the Registrar; and
(b)
within 21 days after making the appointment, cause notice of the
appointment to be published in the Gazette .
(3) A person who
enters into possession, or takes control, as mentioned in subclause (2)
must —
(a)
within 7 days after entering into possession or taking control, lodge
notice with the Registrar that the person has done so; and
(b)
within 21 days after entering into possession or taking control, cause to
be published in the Gazette notice that the person has done so,
unless another
person —
(c)
appointed the first-mentioned person to enter into possession or take control;
and
(d)
complies with subclause (2) in relation to the appointment.
(4) Within
14 days after becoming a controller of property of a co-operative, a
person must lodge with the Registrar notice, in the form approved by the
Registrar, of the address of the person’s office.
(5) A controller of
property of a co-operative must, within 14 days after a change in the
situation of the controller’s office, lodge with the Registrar notice,
in the form approved by the Registrar, of the change.
(6) A person who
ceases to be a controller of property of a co-operative must —
(a)
within 7 days after ceasing to be a controller, lodge with the Registrar
notice that the person has ceased; and
(b)
within 21 days after ceasing to be a controller, cause notice that the
person has ceased to be published in the Gazette .
19 . Statement that receiver appointed or other
controller acting
(1) If a receiver of
property, whether within or outside this State or within or outside Australia,
of a co-operative has been appointed, the co-operative must set out, in every
public document, and in every eligible negotiable instrument, of the
co-operative, after the name of the co-operative where it first appears, a
statement that a receiver, or a receiver and manager, as the case requires,
has been appointed.
(2) If a controller,
other than a receiver, controls the property, whether within or outside
Australia, of a co-operative, the co-operative must set out, in every public
document, and in every negotiable instrument, of the co-operative, after the
co-operative’s name where it first appears, a statement that a
controller is acting.
20 . Officers to report to controller about
co-operative’s affairs
(1) In this
clause —
reporting officer , in relation to a co-operative
and in relation to property of which a person is controller, means a person
who was on the control day —
(a) in
the case of a co-operative other than a foreign co-operative, a director or
secretary of the co-operative; or
(b) in
the case of a foreign co-operative, a local agent of the foreign co-operative.
(2) If a person
becomes a controller of property of a co-operative —
(a) the
person must serve on the co-operative, as soon as practicable, notice that the
person is a controller of property of the co-operative; and
(b)
within 14 days after the co-operative receives the notice, the reporting
officers must make out and submit to the person a report, in the form approved
by the Registrar, about the affairs of the co-operative as at the control day;
and
(c) the
person must, within 28 days after receipt of the report —
(i)
lodge with the Registrar a copy of the report and a
notice setting out any comments the person considers appropriate to make
relating to the report or, if the person does not consider it appropriate to
comment, a notice stating that the person does not consider it appropriate to
comment; and
(ii)
send to the co-operative a copy of the notice lodged in
accordance with subparagraph (i);
and
(d) the
person must, within 28 days after receipt of the report, if the person
became a controller of the property —
(i)
because of an appointment as receiver of the property
that was made by or on behalf of the holder of debentures of the co-operative;
or
(ii)
by entering into possession, or taking control, of the
property for the purpose of enforcing a charge securing such debentures,
and there are trustees
for the holders of the debentures, send to those trustees a copy of the report
and a copy of the notice lodged under paragraph (c)(i).
(3) If notice has been
served on a co-operative under subclause (2)(a), the reporting officers
may apply to the controller or to the Supreme Court to extend the period
within which the report is to be submitted and —
(a) if
application is made to the controller, if the controller believes that there
are special reasons for so doing, the controller may, by written notice given
to the reporting officers, extend that period until a specified day; and
(b) if
application is made to the Supreme Court, if the Court believes that there are
special reasons for so doing, the Court may, by order, extend that period
until a specified day.
(4) As soon as
practicable after granting an extension under subclause (3)(a), the
controller must lodge a copy of the notice with the Registrar.
(5) As soon as
practicable after the Supreme Court grants an extension under
subclause (3)(b), the reporting officers must lodge a copy of the order
with the Registrar.
(6)
Subclauses (2), (3) and (4) do not apply in a case where a
person becomes a controller of property of a co-operative —
(a) to
act with an existing controller of property of the co-operative; or
(b) in
place of a controller of the property who has died or ceased to be a
controller of the property.
(7) However, if
subclause (2) applies in a case where a controller of property of a
co-operative dies, or ceases to be a controller of property of the
co-operative, before subclause (2) is fully complied with,
then —
(a) the
references in subclauses (2)(b), (c) and (d) to the person; and
(b) the
references in subclauses (3) and (4) to the controller,
include references to
the controller’s successor and to any continuing controller.
(8) If a co-operative
is being wound-up, this clause and clause 21 apply even if the controller
and the liquidator are the same person, but with the necessary modifications
arising from that fact.
21 . Controller may require reports
(1) A controller of
property of a co-operative may, by notice given to the person or persons,
require one or more persons included in one or more of the following classes
of persons to make out as required by the notice, verify by a written
statement in the approved form, and submit to the controller, a report,
containing such information as is specified in the notice as to the affairs of
the co-operative or as to such of those affairs as are specified in the
notice, as at a date specified in the notice —
(a)
persons who are or have been officers of the co-operative;
(b) if
the co-operative was incorporated within 12 months before the control
day, persons who have taken part in the formation of the co-operative;
(c)
persons who are employed by the co-operative or have been so employed within
12 months before the control day and are, in the opinion of the
controller, capable of giving the information required;
(d)
persons who are, or have been within 12 months before the control day,
officers of, or employed by, a co-operative that is, or within that year was,
an officer of the co-operative.
(2) Without limiting
subclause (1), a notice under that subclause may specify the information
that the controller requires as to affairs of the co-operative by reference to
information that this Act requires to be included in another report, statement
or notice under this Act.
(3) A person making a
report and verifying it as required by subclause (1) must, subject to the
regulations, be allowed, and must be paid by the receiver (or the
controller’s successor) out of the controller’s receipts, any
costs and expenses incurred in and about the preparation and making of the
report and the verification of the report that the controller (or the
controller’s successor) considers reasonable.
(4) A person must
comply with a requirement made under subclause (1).
(5) A reference in
this clause to the controller’s successor includes a reference to a
continuing controller.
22 . Controller may inspect records
A controller of
property of a co-operative is entitled to inspect at any reasonable time any
records of the co-operative that relate to the property and a person must not
fail to allow the controller to inspect those books at such a time.
23 . Lodging controller’s accounts
(1) A controller of
property of a co-operative must lodge with the Registrar an
account —
(a)
within 28 days after the end of —
(i)
6 months, or a shorter period the controller
determines, after the day when the controller became a controller of property
of the co-operative; and
(ii)
each subsequent period of 6 months throughout which
the controller is a controller of property of the co-operative;
and
(b)
within 28 days after the controller ceases to be a controller of property
of the co-operative.
(2) An account must be
in the form approved by the Registrar and show —
(a) the
controller’s receipts and payments during —
(i)
in the case of an account under subclause (1)(a),
the 6 months or shorter period, as the case requires; or
(ii)
in the case of an account under subclause (1)(b),
the period beginning at the end of the period to which the last account
related, or on the control day, as the case requires and ending on the day
when the controller ceased to be the controller;
and
(b)
except in the case of an account lodged under subclause (1)(a)(i), the
respective aggregates of the controller’s receipts and payments since
the control day.
(3) In the case
of —
(a) a
receiver appointed under a power contained in an instrument; or
(b)
anyone else who is in possession, or has control, of property of the
co-operative for the purpose of enforcing a charge,
the accounts must also
show the following —
(c) the
amount, if any, owing under that instrument or charge —
(i)
in the case of an account lodged under
subclause (1)(a)(i), at the end of the control day and at the end of the
period to which the account relates; or
(ii)
otherwise, at the end of the period to which the account
relates;
(d) the
controller’s estimate of the total value, at the end of the period to
which the account relates, of the property of the co-operative that is subject
to the instrument or charge.
(4) The Registrar may,
of the Registrar’s own initiative or on the application of the
co-operative or a creditor of the co-operative, cause the accounts lodged in
accordance with subclause (1) to be audited by a registered company
auditor appointed by the Registrar.
(5) For the purpose of
the audit, the controller must give the auditor any records and information
that the auditor requires.
(6) If the Registrar
causes the accounts to be audited on the request of the co-operative or a
creditor, the Registrar may require the co-operative or creditor, as the case
may be, to give security for the payment of the cost of the audit.
(7) The costs of an
audit under subclause (3) are to be fixed by the Registrar.
(8) The Registrar may
if the Registrar considers it appropriate make an order declaring that, for
the purposes of clause 5(1), the costs of the audit are taken to be a
debt incurred by the controller as referred to in clause 5(1) and, if
such an order is made, the controller is liable accordingly.
(9) A person must
comply with a requirement made under this clause.
24 . Payment of certain debts, out of property
subject to floating charge, in priority to claims under charge
(1) This clause
applies if —
(a) a
receiver is appointed on behalf of the holders of debentures of a co-operative
that are secured by a floating charge, or possession is taken or control is
assumed, by or on behalf of the holders of any debentures of a co-operative,
of property subject to a floating charge; and
(b) at
the date of the appointment or of the taking of possession or assumption of
control (the relevant date ) —
(i)
the co-operative has not commenced to be wound-up
voluntarily; and
(ii)
the co-operative has not been ordered to be wound-up by
the Supreme Court.
(2) The receiver or
other person taking possession or assuming control of property of the
co-operative must pay, out of the property coming into the receiver’s
possession or control, the following debts or amounts in priority to a claim
for principal or interest in relation to the debentures —
(a)
first, an amount that in a winding-up is payable in priority to unsecured
debts under the Corporations Act section 556, as applying under this Act;
(b)
next, if an auditor of the co-operative applied to the Registrar for consent
to resign as auditor and the Registrar refused that consent before the
relevant date, the reasonable fees and expenses of the auditor incurred during
the period beginning on the day of the refusal and ending on the relevant
date;
(c)
subject to subclauses (4) and (5), next, a debt or amount that in a
winding-up is payable in priority to other unsecured debts under the
Corporations Act section 556(1)(e), (g) or (h) or 560, as applying under
this Act.
(3) The receiver or
other person taking possession or assuming control of property must pay debts
and amounts payable under subclause (2)(c) in the same order of priority
as is prescribed by the Corporations Act Part 5.6 Division 6, as
applying under this Act, for those debts and amounts.
(4) If an auditor of
the co-operative applied to the Registrar for consent to resign as auditor and
the Registrar, before the relevant date, refused consent, a receiver must,
when property comes into the receiver’s possession or control, before
paying a debt or amount referred to in subclause (2)(c), make provision
out of the property for the reasonable fees and expenses of the auditor
incurred after the relevant date but before the date on which the property
comes into the receiver’s possession or control, being fees and expenses
for which provision has not already been made under this subclause.
(5) If an auditor of
the co-operative applies to the Registrar for consent to resign as auditor
and, after the relevant date, the Registrar refuses consent, the receiver
must, in relation to property that comes into the receiver’s possession
or control after the refusal, before paying any debt or amount referred to in
subclause (2)(c), make provision out of the property for the reasonable
fees and expenses of the auditor incurred after the refusal and before the
date on which the property comes into the receiver’s possession or
control, being fees and expenses for which provision has not already been made
under this subclause.
(6) A receiver must
make provision for reasonable fees and expenses of an auditor for a particular
period as required by subclause (4) or (5) whether or not the
auditor has made a claim for fees and expenses for the period, but if the
auditor has not made a claim, the receiver may estimate the reasonable fees
and expenses of the auditor for the period and make provision in accordance
with the estimate.
(7) For the purposes
of this clause, the references in the Corporations Act Part 5.6
Division 6, as applying under this Act, to the relevant date are to be
read as references to the date of the appointment of the receiver, or of
possession being taken or control being assumed, as the case may be.
25 . Enforcement of controller’s duty to
make returns
(1) If a receiver of
property of a co-operative —
(a) who
has defaulted in making or lodging a return, account or other document or in
giving notice required by law fails to make good the default within
14 days after the service on the controller, by a member or creditor of
the co-operative or trustee for debenture holders, of a notice requiring the
controller to make good the default; or
(b) who
has become a controller of property of the co-operative otherwise than by
being appointed a receiver of the property by a court and who has, after being
required at any time by the liquidator of the co-operative so to do, failed to
render proper accounts of, and to vouch, the controller’s receipts and
payments and to pay over to the liquidator the amount properly payable to the
liquidator,
the Supreme Court may
make an order directing the controller to make good the default within the
time specified in the order.
(2) An application for
an order under subclause (1) may be made —
(a) if
subclause (1)(a) applies, by a member or creditor of the co-operative or
by a trustee for debenture holders; and
(b) if
subclause (1)(b) applies, by the liquidator of the co-operative.
26 . Supreme Court may remove controller for
misconduct
If, on the application
of a co-operative, the Supreme Court is satisfied that a controller of
property of the co-operative has been guilty of misconduct in connection with
performing or exercising the controller’s functions and powers, the
Court may order that, on and after a specified day, the controller cease to
act as receiver or give up possession or control, as the case requires, of
property of the co-operative.
27 . Supreme Court may remove redundant controller
(1) The Supreme Court
may order that, on and after a specified day, a controller of property of a
co-operative —
(a)
cease to act as receiver, or give up possession or control, as the case
requires, of property of the co-operative; or
(b) act
as receiver, or continue in possession or control, as the case requires, only
of specified property of the co-operative.
(2) The Supreme Court
may make an order under subclause (1) if it is satisfied that the
objectives for which the controller was appointed, or entered into possession
or took control of property of the co-operative, as the case requires, have
been achieved, so far as is reasonably practicable, except in relation to
property specified in the order under subclause (1)(b).
(3) For the purposes
of subclause (2), the Supreme Court may have regard to —
(a) the
co-operative’s interests; and
(b) the
interests of the holder of the charge that the controller is enforcing; and
(c) the
interests of the co-operative’s other creditors; and
(d) any
other relevant matter.
(4) The Supreme Court
may make an order under subclause (1) on the application of a liquidator
appointed for the purposes of winding-up the co-operative in insolvency.
(5) An order under
subclause (1) may also prohibit the holder of the charge from doing any
or all of the following, except with the leave of the Supreme
Court —
(a)
appointing a person as receiver of property of the co-operative under a power
contained in an instrument relating to the charge;
(b)
entering into possession, or taking control, of the property for the purpose
of enforcing the charge;
(c)
appointing a person to enter into possession or take control of the property
for the purpose of enforcing the charge, whether as agent for the chargee or
for the co-operative.
28 . Effect of clauses 26 and 27
(1) Except as
expressly provided in clause 26 or 27, an order under that clause
does not affect a charge on property of a co-operative.
(2) Nothing in
clause 26 or 27 limits any other power of the Supreme Court to
remove, or otherwise deal with, a controller of property of a co-operative.
Schedule 5 -- Applied co-operatives provisions
[s. 379]
1 . Provisions applicable to participating
co-operatives
The following
provisions apply to participating co-operatives —
(a)
Part 1 Division 4, other than section 9;
(b)
section 238;
(c)
section 248;
(d)
section 448;
(e)
section 449;
(f)
Part 17;
(g)
section 483;
(h)
section 485.
2 . Provisions applicable to non-participating
co-operatives
(a)
Part 1 Division 3 and 4, other than section 9;
(b)
section 12(2);
(c)
section 13
(d)
section 14;
(e)
Part 3;
(f)
section 75;
(g)
section 76;
(h)
Part 4 Division 5;
(i)
section 97;
(j)
section 99;
(k)
section 100;
(l)
section 236;
(m)
section 237;
(n)
section 238;
(o)
Part 10 Division 1;
(p)
Part 13;
(q)
section 448;
(r)
section 449;
(s)
Part 17;
(t)
section 484;
(u)
section 485.
Schedule 6 -- Modifications to Corporations Act
[s. 387]
1 . Modifications to winding-up provisions
The Corporations Act
Parts 5.4B and 5.6 apply with the following modifications —
(a) a
reference in those Parts to ASIC is to be read as a reference to the
Registrar;
(b) a
reference in those Parts to an application to wind-up a company under
section 464 or Part 5.4A is to be read as a reference to an
application by the Registrar under Part 14 Division 4;
(c) a
reference in those Parts to a winding-up ordered by the Court under a
provision of Part 5.4A is a reference to a winding-up ordered by the
Court under Part 1 Division 4;
(d) a
reference in those Parts to an order under a provision of Part 5.4A is a
reference to an order under section 386;
(e) for
the purposes of an application by the Registrar to wind-up a foreign
co-operative, those Parts apply, with such modifications as the circumstances
require, as if a winding-up application had been made by the co-operative;
(f)
those Parts apply as if a ground specified in section 386 were a ground
for winding-up by the Court specified in the Corporations Act
section 461;
(g) a
reference in those Parts to an official liquidator is to be read as a
reference to a person approved by the Registrar as a liquidator of a
co-operative;
(h)
sections 467(4) and (5), 480(d), 481(5)(b), 513B, 517, 518, 523 and 524
do not apply;
(i)
a reference in section 485(2) to persons entitled to
any surplus is a reference to a person entitled to the surplus under
section 388 of this Act;
(j)
section 516 is to be read as if “together with any charges payable
by the member to the co-operative in accordance with the rules” were
inserted after “past member”;
(k)
Part 5.6 Division 6 Subdivision C does not apply;
(l) a
reference in those Parts to section 233 is to be read as a reference to
Part 4 Division 5 of this Act;
(m)
those Parts are to be read subject to sections 76 and 331 of this Act for
the purposes of determining the liability of members and past members to
contribute on a winding-up of a co-operative;
(n) any
other modifications, within the meaning of Part 3 of the
Corporations (Ancillary Provisions) Act 2001 , that are prescribed by the
regulations.
Defined Terms
[This is a list of terms defined and the provisions where they
are defined. The list is not part of the law.]
Defined Term Provision(s)
active member
4(1)
active membership provision
4(1)
active membership resolution 110
administrator Sch. 4, cl. 1
affairs
426
agreement 4(1)
alter
4(1)
applied provisions 11(1)
appointed person 153(1)
appropriate person
339(1)
appropriate Registrar
389
assets 335(1), 396(1)
associate
4(1), 217(1)
authorisation notice
365
authorised attorney 49(1)
board
4(1)
CCU 257(1)
chargee
Sch. 3, cl. 9, 32
chief executive officer
4(1)
chief executive officer (DOCEP)
398
company 8
compulsory acquisition notice
355(1)
constitution 4(1)
control 224
control day
Sch. 4, cl. 1
controller Sch. 4, cl. 1,
5(3)
controller’s charge Sch. 4, cl. 9(1)
co-operative 4(1), 352(1), Sch. 3, cl. 1, Sch. 4,
cl. 1
co-operative capital unit 4(1)
co-operative
company 492
co-operative group
4(1)
co-operative venture 398
co-operatives law 365
corporation
4(1)
Corporations Act 4(1)
Corporations legislation 8
costs
426
critical day Sch. 3, cl. 26
daily newspaper Sch. 4, cl. 1
debenture
4(1)
declaratory provision
11(1)
deed of arrangement 4(1)
defective notice
Sch. 3, cl. 21(1)
deferral period
123(1)
department 452(1)
departmental officer 452(1)
deposit taking
co-operative 4(1)
designation
452(1)
dissenting shareholder 353
distributing co-operative 4(1)
divulge
476(1)
document of title Sch.
3, cl. 1
earlier charge Sch. 3, cl. 30(1)
eligible
member 4(1)
employed
452(1)
entity 224
excluded Corporations
legislation provision 8
excluded shares
353
expenses of the postal ballot
189(1)
financial records 4(1)
financial
report 4(1)
financial services business
4(1)
financial services licensee
4(1)
financial statements 4(1)
foreign
co-operative 4(1)
former Act
492
further offence period 478(3)
incapable
person 153(1)
independent director
201(1)
inspector 4(1)
instrument
335(1), 396(1)
interest
74
investigator 426
involved person
426
later charge Sch. 3, cl.
30(1)
liabilities 335(1), 352(1), 396(1)
limited
dividend 271(1)
main office
405(2)
malice 5(2)
management contract
219(1)
managing controller
Sch. 4, cl. 1
marketable security Sch. 3,
cl. 1
material interest 217(2)
member
79(4), 309(2)
member director
199(1), 201(1)
model rules 4(1)
mortgage
4(1)
national newspaper Sch.
4, cl. 1
new body 307, 332(2), 333(2), 334(2)
new
co-operative 133(1)
non-distributing co-operative
4(1)
non-participating co-operative
365
obstruct 423(1)
officer
4(1), 207, Sch. 3, cl. 32, Sch. 4, cl. 1, 3(2)
oppressed
member 85
original body
332(2), 333(2), 334(2)
original co-operative
133(1), 396(1)
participating co-operative
365
participating registrar 365
participating
State 365
place 398
present liability Sch. 3, cl. 1
primary activity
4(1)
primary conviction
478(2)
prior charge Sch. 4, cl. 9(1)
prior
registered charge Sch. 3, cl. 45(1)
priority time
Sch. 3, cl. 45(1), (3)
property
352(1), Sch. 3, cl. 1, Sch. 4, cl. 1
proposed company
293(1)
prospective liability
Sch. 3, cl. 1
public service officer 452(1)
receiver Sch. 3, cl. 32, Sch. 4, cl. 1
records
4(1)
Register of Co-operative Charges
Sch. 3, cl. 1
registered charge
Sch. 3, cl. 45(1)
registered society 492
registrable charge Sch. 3, cl. 1
Registrar
4(1)
related corporation 4(1)
relevant date Sch. 4, cl. 24(1)
relevant day
332(2), 333(2), 334(2), Sch. 3, cl. 26
relevant
documents 398
relevant interest
4(1)
relevant person Sch. 3, cl. 32
relevant shares 151(1)
repayable amount
73(1), 127(1)
repealed Act
476(1)
reporting officer Sch. 4, cl. 20(1)
required period 120(1)
rules 4(1)
seal 4(1)
secondary office 405(3)
share
4(1)
show cause notice 377(1)
specified
494(4)
State 365
State
co-operative 389
State Registrar
389
subordinated debt 249(1)
subsequent registered charge Sch. 3, cl. 45(1)
subsidiary 4(1)
substantial change
276(5)
substantial share interest
276(4)
successor co-operative 396(1)
surplus
4(1)
surplus property
319(1)
third party property Sch. 4, cl. 6(1)
transfer 74, 307
transfer day
4(1)
transferee 352(2), 354(1), 500(1)
transferor 352(2), 354(1), 500(1)
transferred
co-operative 4(1)
transition day
396(2)
transition period 492
undertaking 273(1)
unregistered charge
Sch. 3, cl. 45(1)
warrant form
413(5)