Western Australian Current Acts Western Australian Current Acts[s. 267]
In this Division
—
co-operative includes a foreign co-operative
authorised to carry on business in this State under Part 14 before the
commencement of the Co-operatives Amendment Act 2016 section 130;
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.
[Clause 1 amended: No. 7 of 2016 s. 185.]
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.
Division 2A — Schedule ceases to have effect except as otherwise
provided
[Heading inserted: No. 42 of 2011 s. 44.]
In this Division
—
migration time has the meaning given in the
Personal Property Securities Act 2009 (Commonwealth) section 306(1);
pre-PPS transition period means the period —
(a)
commencing at the migration time or such earlier time as may be prescribed by
the regulations; and
(b)
ending at the registration commencement time;
registrable charge means a charge created before
the registration commencement time that was a registrable charge as defined in
clause 1 when it was created;
registration commencement time has the meaning
given in the Personal Property Securities Act 2009 (Commonwealth)
section 306(2);
registration function means any function conferred
or imposed on the Registrar under this Schedule.
[Clause 4A inserted: No. 42 of 2011 s. 44.]
4B . Effect of Schedule at and after registration
commencement time
(1) Subject to
subclause (2) and clause 4D, this Schedule has no effect at and after the
registration commencement time.
(2) If a registrable
charge is void immediately before the registration commencement time or
becomes void at or after that time, the Supreme Court may declare the charge
not to be, and never to have been void if —
(a) an
application has been made to the Supreme Court under clause 29 before the
registration commencement time or is made at or after that time in accordance
with clause 29; and
(b) the
Supreme Court is satisfied as to the matters referred to in clause 29(a) or
(b).
[Clause 4B inserted: No. 42 of 2011 s. 44.]
4C . Refusal to exercise registration functions
(1) The Registrar may
refuse to exercise a registration function during the pre-PPS transitional
period.
(2) Without limiting
subclause (1), the Registrar may refuse to exercise a registration function
during the pre-PPS transitional period in relation to a matter that was not
finally determined or concluded immediately before the commencement of that
period.
(3) After the end of
the pre-PPS transitional period the Commissioner is not to exercise a
registration function.
[Clause 4C inserted: No. 42 of 2011 s. 44.]
4D . Priority between registrable charges
Subject to the
Personal Property Securities Act 2009 (Commonwealth) Chapter 9, at and after
the registration commencement time, registrable charges have the priority
between themselves that they would have had under this Act as in effect
immediately before the registration commencement time.
[Clause 4D inserted: No. 42 of 2011 s. 44.]
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 authorised to
carry on business in this State under Part 14 before the commencement of the
Co-operatives Amendment Act 2016 section 130, 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).
[Clause 32 amended: No. 7 of 2016 s. 186.]
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 for this
subclause: 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 for this
subclause: a fine of $1 000.
[Clause 39 amended: No. 7 of 2016 s. 187.]
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 for this subclause: a fine of $1 000.
[Clause 41 amended: No. 7 of 2016 s. 188.]
(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.