Western Australian Current Acts Western Australian Current Acts[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 participating
co-operative;
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 participating co-operative,
includes a local agent of the participating co-operative;
property , of a co-operative, means —
(a) in
the case of a co-operative to which section 372 applies — property
within Australia or an external Territory; or
(b)
otherwise — property within or outside Australia;
receiver , of property of a co-operative, includes
a receiver and manager.
[Clause 1 amended: No. 7 of 2016 s. 189.]
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 — a director or secretary of the
co-operative; or
(b) in
the case of a participating co-operative — a local agent of the
participating 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.
[Clause 20 amended: No. 7 of 2016 s. 190.]
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 books
A controller of
property of a co-operative is entitled to inspect at any reasonable time any
books 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.
[Clause 22 amended: No. 7 of 2016 s. 191.]
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 books 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.
[Clause 23 amended: No. 7 of 2016 s. 192.]
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 deleted: No. 7 of 2016 s. 193.]