Commonwealth Consolidated Acts

CHEQUES ACT 1986 - SECT 97

  (1)   Subject to sections   59 and 70B, where the holder of a cheque lodges the cheque with an FCA institution for collection for the holder, the FCA institution shall ensure that the cheque is duly presented for payment on its behalf as soon as is reasonably practicable and, if the FCA institution fails to do so, it is liable to the holder for any loss that the holder thereby suffers.

  (2)   Where the drawee institution makes a request under subsection   62(5) in relation to the cheque, the cheque shall, for the purposes of subsection   ( 1), be deemed not to have been duly presented for payment unless, and until, the request is complied with.

  (3)   In determining, for the purposes of subsection   ( 1), whether the FCA institution failed to ensure that the cheque was duly presented for payment on its behalf as soon as was reasonably practicable, regard shall be had to:

  (a)   the fact that the instrument is a cheque and that it is reasonable to expect a cheque to be presented for payment promptly;

  (b)   the means that were available to it for having the cheque duly presented on its behalf;

  (c)   the relative speed, reliability and cost of those means;

  (d)   the usage of financial institutions and FCA institutions in relation to the presentment of cheques;

  (e)   in a case where a request under subsection   62(5) was made in relation to the cheque--the following matters, namely:

  (i)   the making of the request;

  (ii)   the nature of the request;

  (iii)   whether or not the financial institution to which the request was made had actual possession of the cheque;

  (iv)   whether or not the request was complied with;

  (v)   if the request was complied with--the time within which the request was complied with and the means by which the request was complied with;

  (vi)   the means that were available for complying with the request;

  (vii)   the relative speed, reliability and cost of those means;

  (viii)   the usage of financial institutions and FCA institutions in relation to requests under subsection   62(5); and

  (f)   any other facts of the particular case, including:

  (i)   the nature of the cheque and, in particular, but without limiting the generality of the foregoing, the date of the cheque (if any) and the sum ordered to be paid by the cheque; and

  (ii)   whether any delay in presenting the cheque was:

  (A)   caused by circumstances beyond the control of the FCA institution; and

  (B)   not imputable to default, misconduct or negligence on the part of the FCA institution.