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This is a Bill, not an Act. For current law, see the Acts databases.
COOPERATIVES BILL 2002
2002
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Cooperatives
Bill 2002
Contents
Page
Part 1.1 Associates 284
Part 1.2 Relevant interests 287
Part 3.1 Preliminary 298
Part 3.2 Registration 300
Division 3.2.1 Charges 300
Division 3.2.2 Notice of
charge 304
Division 1.1.3 Registration 308
Division 1.1.4 Certain charges void against
liquidator or administrator 313
Division 1.1.5 Certain charges
void 318
Division 1.1.6 Assignment, variation and satisfaction
of charges 321
Division 1.1.7 General 323
Part 1.3 Order of priority 328
Division 1.3.1 General 328
Division 1.3.2 Priority
rules 330
2002
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
A Bill for
An Act to make provision in relation to cooperatives, and for other
purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
Division
1.1 Introductory
This Act is the Cooperatives Act 2002.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act 2001, s 75).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation
Act 2001, s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act 2001, s 79).
The objects of this Act are to—
(a) enable the formation, registration and operation of cooperatives;
and
(b) promote cooperative philosophy, principles, practices and objectives;
and
(c) protect the interests of cooperatives, their members and the public in
the operations and activities of cooperatives; and
(d) ensure that the directors of cooperatives are accountable for their
actions and decisions to the members of cooperatives; and
(e) encourage and facilitate self-management by cooperatives at all
levels; and
(f) encourage the development, integration and strengthening of
cooperatives at local, regional, national and international levels by supporting
and fostering Territory, State and national peak organisations and cooperative
instrumentalities.
Division
1.2 Interpretation
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain
words and expressions used in this Act, and includes references
(signpost definitions) to other words and expressions defined
elsewhere in this Act or in other legislation.
For example, the signpost definition
‘company—see the Corporations Act, section 9.’
means that the word ‘company’ is defined in that section and the
definition applies to this Act.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act 2001, s 155 and 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act 2001, s 127 (1), (4) and (5) for the
legal status of notes.
(1) A provision of this Act that provides to the effect that a person has
qualified privilege in relation to something means that the person, in relation
to the thing—
(a) has qualified privilege in a proceeding for defamation; or
(b) is not, in the absence of malice on the person’s part, liable to
an action for defamation.
(2) In subsection (1):
malice includes—
(a) ill will towards the person concerned; and
(b) any other improper motive.
(3) Nothing in this section or in a provision of a kind mentioned in
subsection (1) limits or affects any right, privilege or immunity that a person
has, apart from this section or such a provision, as defendant in an action, or
other proceeding, for defamation.
7 Interpretation
to promote cooperative principles
In the interpretation of a provision of this Act, a construction that would
promote the cooperative principles is to be preferred to a construction that
would not promote the cooperative principles.
Division
1.3 Cooperative
principles
The cooperative principles are the following principles:
1 Voluntary and open membership
Cooperatives are voluntary organisations, open to all people able to use
their services and willing to accept the responsibilities of membership, without
gender, social, racial, political or religious discrimination.
2 Democratic member control
Cooperatives are democratic organisations controlled by their members, who
actively participate in setting their policies and making decisions. Men and
women serving as elected representatives are accountable to the membership. In
primary cooperatives, members have equal voting rights (1 member, 1 vote) and
cooperatives at other levels are organised in a democratic manner.
3 Member economic participation
Members contribute equitably to, and democratically control, the capital of
their cooperative. At least part of that capital is usually the common property
of the cooperative. They usually receive limited compensation (if any) on
capital subscribed as a condition of membership. Members allocate surpluses for
any or all of the following purposes:
(a) developing the cooperative, possibly by setting up reserves, part of
which at least would be indivisible;
(b) benefiting members in proportion to their transactions with the
cooperative;
(c) supporting other activities approved by the membership.
4 Autonomy and independence
Cooperatives are autonomous, self-help organisations controlled by their
members. If they enter into agreements with other organisations (including
governments) or raise capital from external sources, they do so on terms that
ensure democratic control by their members and maintain their cooperative
autonomy.
5 Education, training and information
Cooperatives provide education and training for their members, elected
representatives, managers and employees so they can contribute effectively to
the development of their cooperatives. They inform the general public,
particularly young people and opinion leaders, about the nature and benefits of
cooperation.
6 Cooperation among cooperatives
Cooperatives serve their members most effectively and strengthen the
cooperative movement by working together through local, national, regional and
international structures.
7 Concern for the community
While focusing on members’ needs, cooperatives work for the
sustainable development of their communities through policies accepted by their
members.
Division
1.4 Application of Corporations Act
generally
9 Regulations
may apply certain provisions of Corporations Act
The regulations may apply, with any prescribed changes, a provision of the
Corporations Act to cooperatives if the provision does not apply to cooperatives
of its own force or by operation of this Act.
10 Corporations
Act provisions applied by this Act
(1) A provision of the Corporations Act applied by this Act in relation to
cooperatives is taken to be part of this Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act 2001, s 104).
(2) If—
(a) a provision of this Act (the application provision)
applies provisions of the Corporations Act (the applied
provisions) to cooperatives; and
(b) some parts of the applied provisions apply to cooperatives of their
own force; and
(c) other parts of the applied provisions do not apply to cooperatives of
their own force;
the application provision applies only the parts mentioned in paragraph
(c).
(3) If a provision of the Corporations Act is applied by any provision of
this Act, neither the applied provision nor the applying provision gives power
to the Australian Securities and Investments Commission to administer the
applied provision for this Act.
11 Interpretation
of applied provisions of Corporations Act
(1) A provision of the Corporations Act applied by this Act is taken to
apply with—
(a) any changes provided by this Act; and
(b) any other changes that may be necessary or desirable for the effective
application of the Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act 2001, s 104).
(2) In particular—
(a) a reference to—
(i) articles or memorandum of association; or
(ii) constitution; or
(iii) replaceable rules;
is a reference to rules; and
(b) a reference to a company is a reference to a cooperative;
and
(c) a reference to ASIC is a reference to the registrar; and
(d) a cross-reference to another provision of the Corporations Act is, if
the cross-reference is not appropriate (because, for example, the provision
cross-referred to is not among the provisions applied)—
(i) if there is a corresponding provision of this Act—a
cross-reference to that provision; or
(ii) in any other case—to be disregarded; and
(e) a reference to notification (however described) in the Gazette is a
reference to notification under the Legislation Act 2001; and
(f) a reference to the Commonwealth is a reference to the Territory;
and
(g) any provision of the Corporations Act applied by this Act that is not
relevant to cooperatives, or that cannot be applied to cooperatives, is to be
ignored.
(3) In applying subsection (2) (e) to an instrument, the instrument is
taken to be a notifiable instrument.
Note A notifiable instrument must be notified under the
Legislation Act 2001.
(4) The regulations may make changes that are necessary or desirable for
the effective operation of the applied provisions of the Corporations Act, and
the changes take effect accordingly (except to the extent of any inconsistency
with this Act).
(5) The definitions of words and expressions and other interpretative
provisions contained in the Corporations Act apply in relation to provisions of
the Corporations Act applied by this Act.
(6) This section has effect subject to any specific requirements of
provisions of this Act that apply provisions of the Corporations Act.
12 Implied
application of regulations and other provisions of Corporations
Act
(1) If a provision of this Act applies a provision (the applied
provision) of the Corporations Act to cooperatives, the following
provisions are also applied by force of this section and are taken to be part of
this Act:
(a) the provisions of any regulation (an applied regulation)
from time to time in force under the applied provision;
(b) any provision of the Corporations Act that creates an offence in
relation to a contravention of the applied provision;
(c) the provisions of the Corporations Act, part 9.4B (Civil consequences
of contravening civil penalty provisions) for a provision of the Corporations
Act applied by this Act that is a civil penalty provision within the meaning of
that part.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act 2001, s 104).
(2) The regulations may prescribe changes to any of the provisions applied
by subsection (1) for their application under this section, and the provisions
apply subject to the prescribed changes.
(3) If a provision of the Corporations Act or the regulations under that
Act applied by this Act (including under this section) creates an offence and
the penalty for that offence is provided in another provision (the penalty
provision) of the Corporations Act or those regulations, the penalty
provision is taken to be part of this Act for the purpose of deciding the
maximum penalty applying to the offence.
13 Effect
of amendments to applied provisions of Corporations Act
(1) A provision of the Corporations Act applied by this Act applies as in
force from time to time.
(2) If a group of provisions of the Corporations Act is applied by this
Act (whether by the application of a chapter, part, division or otherwise), and
the Corporations Act is amended to insert a new provision into the group of
provisions, the new provision forms part of the group of provisions applied by
this Act.
(3) Subsection (2) is subject to any changes prescribed under the
regulations.
14 Effect
of applied provisions of Corporations Act
For this Act, a provision of the Corporations Act applied by a provision of
this Act (the application provision) is taken to be adopted by the
application provision.
Division
1.5 Application of Corporations
Act—excluded matter
(1) A cooperative is declared to be an excluded matter for the purposes of
the Corporations Act, section 5F in relation to the whole of the Corporations
legislation to which the Corporations Act, part 1.1A (Interaction between
Corporations Legislation and State and Territory laws) applies, other than to
the extent specified in subsections (3) to (5).
Note This section ensures that neither the Corporations Act nor the
ASIC Act, pt 3 will apply in relation to a cooperative, other than to the extent
specified in this section. The Corporations Act, s 5F provides that, if a State
or Territory law declares a matter to be an excluded matter in relation to all
or part of the Corporations legislation to which the Corporations Act, pt 1.1A
applies (see s 5D), that legislation does not apply, except to the extent
specified, in relation to that matter in the State or Territory. However, other
provisions of this Act apply certain provisions of the Corporations Act to
cooperatives as ACT laws.
(2) Without limiting subsection (1) and to remove any doubt, an act or
omission by an entity in relation to a cooperative is declared to be an excluded
matter for the purposes of the Corporations Act, section 5F in relation to the
whole of the Corporations legislation to which the Corporations Act, part 1.1A
applies, other than to the extent specified in subsections (3) to (5).
(3) Subsections (1) and (2) do not exclude the application of the
following provisions of the Corporations legislation to cooperatives to the
extent that those provisions would otherwise apply to them:
(a) provisions that relate to anything that the regulations provide is not
to be excluded from the operation of the Corporations legislation;
(b) provisions that relate to the role of a cooperative in the formation
of a company;
(c) provisions that relate to substantial shareholdings, by or involving a
cooperative, in a company;
(d) provisions that give functions to a cooperative as a member, or former
member, of a corporation;
(e) provisions relating to dealings by a cooperative in securities of a
body corporate, other than securities of the cooperative itself;
(f) provisions that give functions to a cooperative in its dealings with a
corporation, other than dealings in securities of the cooperative;
(g) provisions that relate to securities of a cooperative, other than
shares in, debentures of or deposits with a cooperative;
(h) provisions relating to derivatives;
(i) provisions relating to—
(i) financial services licensees (within the meaning of the Corporations
Act, section 761A) whose licence covers dealing in, or providing advice about,
securities; or
(ii) regulated principals (within the meaning of the Corporations Act,
section 1430) when dealing in, or providing advice about, securities as
authorised by that Act, part 10.2 (Transitional provisions relating to the
Financial Services Reform Act 2001), division 1, subdivision D;
(j) provisions relating to the carrying on of a financial services
business (within the meaning of the Corporations Act, section 761A)
relating to securities;
(k) provisions relating to financial statements and audits of financial
statements, of—
(i) financial services licensees (within the meaning of the Corporations
Act, section 761A) whose licence covers dealing in, or providing advice about,
securities; or
(ii) regulated principals (within the meaning of the Corporations Act,
section 1430) when dealing in, or providing advice about, securities as
authorised by that Act, part 10.2 (Transitional provisions relating to the
Financial Services Reform Act 2001), division 1, subdivision D;
(l) provisions relating to money and scrip of clients of—
(i) financial services licensees (within the meaning of the Corporations
Act, section 761A) whose licence covers dealing in, or providing advice about,
securities; or
(ii) regulated principals (within the meaning of the Corporations Act,
section 1430) when dealing in, or providing advice about, securities as
authorised by that Act, part 10.2 (Transitional provisions relating to the
Financial Services Reform Act 2001), division 1, subdivision D;
(m) provisions relating to registers of interests in securities.
(4) To remove any doubt, subsections (1) and (2) do not exclude the
operation of the following provisions of the Corporations Act, except in
relation to shares in, debentures of or deposits with a cooperative:
(a) part 1.2A (Disclosing entities);
(b) chapter 2L (Debentures);
(c) chapter 6D (Fundraising);
(d) part 7.10 (Market misconduct and other prohibited conduct relating to
financial products and financial services).
(5) If a cooperative is directed by an order of the Supreme Court under
section 88 (i) (Orders that Supreme Court may make) to become registered as a
company under the Corporations Act, subsections (1) and (2) do not exclude the
application of that Act to the cooperative to the extent necessary for the
cooperative to be registered as a company under that Act, chapter 5B (Bodies
corporate registered as companies, and registrable bodies).
Division
2.1 Types of
cooperatives
(1) A body may be registered under this Act as a cooperative.
(2) A cooperative may be—
(a) a trading cooperative; or
(b) a non-trading cooperative.
(1) A trading cooperative must have a share capital.
(2) A trading cooperative is a cooperative with rules that allow it to
give returns or distributions on surplus or share capital.
(3) A trading cooperative must have a membership of—
(a) for an association—2 or more cooperatives; and
(b) for a federation—2 or more associations; and
(c) for any other trading cooperative—
(i) if a number of active members less than 5 is prescribed under the
regulations for this paragraph—at least that number of active members;
or
(ii) in any other case—5 or more active members.
18 Non-trading
cooperatives
(1) A non-trading cooperative is a cooperative with rules that prohibit it
from giving returns or distributions on surplus or share capital to members,
other than the nominal value of shares (if any) at winding-up.
(2) A non-trading cooperative may have a share capital.
(3) A non-trading cooperative must have a membership of—
(a) for an association—2 or more cooperatives; and
(b) for a federation—2 or more associations; and
(c) for any other non-trading cooperative—
(i) if a number of active members less than 5 is prescribed under the
regulations for this paragraph—at least that number of active members;
or
(ii) in any other case—5 or more active members.
Division
2.2 Formation
meeting
(1) Before a proposed cooperative (other than an existing corporation) can
be registered, a formation meeting must be held in accordance with this
section.
(2) At the formation meeting—
(a) subject to section 20 (8), a disclosure statement approved under
section 20 must be presented to the meeting; and
(b) the proposed rules of the cooperative approved under section 21
in relation to the proposed cooperative, and including active membership
provisions in accordance with part 6, must be passed by
2/3 of the proposed
members of the proposed cooperative attending the meeting; and
(c) the proposed members of the proposed cooperative must sign the
application for membership; and
(d) the proposed members must elect the first directors of the proposed
cooperative in accordance with the proposed rules; and
(e) the proposed members must authorise a person—
(i) to apply to the registrar for registration of the proposed
cooperative; and
(ii) to do anything necessary to have the proposed cooperative
registered.
Note If a form is approved under s 468 (Approved forms) for an
application for membership, the form must be used.
(3) The formation meeting must be held—
(a) for an association—by not fewer than 2 suitably qualified
cooperatives; and
(b) for a federation—by not fewer than 2 suitably qualified
associations; and
(c) for any other organisation—by not fewer than 5 people (or, if a
lesser number is prescribed under the regulations, not fewer than that number of
people), each of whom is suitably qualified to be a member of the proposed
cooperative.
(4) For subsection (3), a person is suitably qualified to be
a member if—
(a) there are reasonable grounds to believe the person will be an active
member of the proposed cooperative; and
(b) for an individual—the person is at least 18 years old;
and
(c) the person satisfies the requirements for membership under the
proposed rules.
(5) Each cooperative forming a proposed association and each association
forming a proposed federation may be represented at the formation meeting by a
single person.
Division
2.3 Approval of disclosure statement
and rules
20 Approval
of disclosure statement
(1) A draft disclosure statement of a proposed cooperative (the
draft statement) must be submitted to the registrar at least 28 days
(or, if the registrar allows a shorter period, that period) before the formation
meeting of the proposed cooperative is proposed to be held.
(2) For a proposed trading cooperative, the draft statement must contain
the information necessary to ensure that prospective members are adequately
informed of the nature and extent of a person’s financial involvement or
liability as a member of the cooperative, including, so far as
applicable—
(a) the estimated costs of formation; and
(b) the nature of the proposed membership of the cooperative;
and
(c) the rights and liabilities attaching to shares in the proposed
cooperative (including the capital required for the cooperative); and
(d) the projected income and expenditure of the cooperative for its first
year of operation; and
(e) information about any contracts required to be entered into by the
cooperative; and
(f) any other information that the registrar, by notice,
requires.
(3) For a proposed trading cooperative, the draft statement must not
include a statement purporting to be made by an expert or to be based on a
statement made by an expert unless—
(a) the expert has given, and has not withdrawn, the expert’s
written consent to the submission of the draft statement with the statement
included in the form and context in which it is included; and
(b) there appears in the draft statement a statement that, at the time of
preparation of the statement, the expert has given, and has not withdrawn, the
expert’s consent.
(4) For a proposed non-trading cooperative, the draft statement must
contain the information that the registrar, by written notice,
requires.
Note If a form is approved under s 468 (Approved forms) for a draft
statement, the form must be used.
(5) The registrar may, by notice—
(a) approve the draft statement as submitted; or
(b) amend the draft statement, or require a stated amendment of the draft
statement and then approve the amended draft statement; or
(c) approve a statement different from the draft statement as submitted;
or
(d) refuse to approve the draft statement; or
(e) require the person submitting the draft statement to give the
registrar any additional information that the registrar reasonably requires and
then act under paragraph (a), (b), (c) or (d).
(6) Approval under subsection (5) (a), (b) or (c) may be
given—
(a) at any time before the formation meeting is held; and
(b) subject to the conditions (if any) the registrar states in the notice
of approval.
(7) The registrar is taken to have approved the draft statement as
submitted to the registrar unless, at least 5 days before the formation meeting
is proposed to be held, the registrar gives—
(a) a notice under subsection (5); or
(b) notice that the registrar is still considering the matter.
(8) For a particular proposed non-trading cooperative, the registrar may,
by notice, and subject to the conditions (if any) that the registrar states in
the notice, dispense with the requirement to present a disclosure statement to
the formation meeting.
(9) Notice by the registrar under this section must be given to the person
who submitted the draft statement (the applicant), or to someone
else nominated in writing to the registrar by the applicant for the purpose of
receiving the notice.
(1) A draft of the rules proposed for the cooperative (including active
membership provisions in accordance with part 6) must be submitted to the
registrar at least 28 days (or, if the registrar allows a shorter period, that
period) before the formation meeting is proposed to be held.
(2) The proposed rules must—
(a) comply with sections 102 (Content of rules—generally) and
section 103 (Other requirements about contents of rules etc); and
(b) if the rules contain any alterations of the model rules—be
accompanied by a statement setting out the alterations and the reasons for the
alterations.
Note 1 If a form is approved under s 468 (Approved forms) for
proposed rules, the form must be used.
Note 2 If the rules do not provide for a matter included in the
model rules, the provision of the model rules is taken to be included in the
rules (see s 106 (3))
(3) The registrar may—
(a) approve the rules as submitted; or
(b) approve rules different from the rules as submitted; or
(c) refuse to approve the rules.
(4) The registrar approves the rules by giving notice of the approval of
the rules to the person who submitted them to the registrar.
(5) The registrar must give notice of the refusal to approve the rules to
the person who submitted the rules to the registrar.
Division
2.4 Registration of proposed
cooperative
22 Application
for registration of proposed cooperative
(1) An application for registration of a proposed cooperative (other than
an existing corporation) must—
(a) be signed by—
(i) for an association or federation—at least 2 directors;
and
(ii) for any other organisation—at least 5 suitably qualified
members (including 2 directors elected at the formation meeting); and
(b) be accompanied by—
(i) 2 copies of the proposed rules signed and certified by the people who
acted as chairperson and secretary at the formation meeting; and
(ii) for a proposed trading cooperative—a copy of the disclosure
statement presented to the formation meeting signed and certified by the people
who acted as chairperson and secretary at the formation meeting; and
(iii) a statement listing the name, address, occupation and place and date
of birth of each director; and
(iv) any other particulars that the registrar may require in a particular
case.
Note 1 A fee may be determined under s 467 (Determination of fees)
for this subsection.
Note 2 If a form is approved under s 468 (Approved forms) for an
application, the form must be used.
(2) The application must be filed with the registrar
within—
(a) 2 months after closure of the formation meeting for the proposed
cooperative; or
(b) if the registrar, in writing, allows a longer period—that longer
period.
23 Registration
of proposed cooperative and its rules
(1) The registrar must register a proposed cooperative as a cooperative,
and register its rules, if—
(a) an application is made under this division for registration of the
proposed cooperative; and
(b) the registrar is satisfied it meets the requirements for registration
mentioned in subsection (2).
(2) The requirements for registration of the proposed cooperative under
this division are as follows:
(a) the proposed rules of the proposed cooperative must be the rules
approved by the registrar under section 21;
(b) the requirements of this Act must have been complied with in relation
to the proposed cooperative and compliance must be likely to continue;
(c) the proposed cooperative must be designed to function in accordance
with the cooperative principles or, if it is not designed to function entirely
in accordance with the cooperative principles, the registrar must be satisfied
that there are special reasons why the cooperative should be registered under
this Act;
(d) there must be no reasonable cause for refusing registration of the
proposed cooperative.
(3) If the registrar is not satisfied that the requirements for
registration of the proposed cooperative as a cooperative have been met, the
registrar must—
(a) refuse to register the proposed cooperative and its rules;
and
(b) give to the applicant notice setting out the reasons for the
refusal.
24 Incorporation
of proposed cooperative and certificate of registration
(1) The incorporation of the cooperative takes effect on the registration
of the cooperative.
(2) On the registration of the cooperative, the registrar must issue a
certificate of registration.
Division
2.5 Registration of existing
corporation
25 Existing
corporation can be registered
A corporation (other than a cooperative taken to be registered under this
Act) may apply to the registrar to be registered as a cooperative under this Act
if the corporation is—
(a) incorporated or registered, or taken to be registered, under the
Corporations Act; or
(b) incorporated or registered under any other law relating to the
incorporation or registration of corporations.
26 Formation
meeting for corporation
(1) Before applying for registration as a cooperative, the corporation
must pass a special resolution in accordance with its articles of association or
rules approving of—
(a) the proposed registration; and
(b) any alterations of its existing memorandum and articles of association
or rules necessary to allow the corporation to comply with this Act.
(2) At the meeting to pass the special resolution—
(a) the proposed rules of the proposed cooperative approved under section
21, and including active membership provisions in accordance with part 6, must
also be passed by special resolution; and
(b) for a proposed trading cooperative—a disclosure statement
approved under section 20 must be presented to the meeting.
27 Application
for registration by corporation
An application for registration must be accompanied by—
(a) a written declaration signed by the directors or the committee of
management of the corporation stating that at a meeting of the directors or
committee they formed the opinion that the corporation will be able to pay its
debts as they fall due; and
(b) a report about the affairs of the corporation that shows its assets
and liabilities, made up to the latest practicable date before the application;
and
(c) a copy of the memorandum and articles of association or rules of the
corporation in force at the date of the application; and
(d) 2 copies of the proposed rules of the cooperative, as provided for by
the special resolution; and
(e) for a proposed trading cooperative—a copy of the disclosure
statement presented to the formation meeting held under section 26, signed and
certified by the directors or committee of management of the corporation;
and
(f) a list containing the name, address, occupation and place and date of
birth of each director; and
(g) evidence to the satisfaction of the registrar of the incorporation of
the corporation; and
(h) any other particulars that the registrar may require in a particular
case.
Note 1 A fee may be determined under s 467 (Determination of fees)
for this subsection.
Note 2 If a form is approved under s 468 (Approved forms) for an
application or report, the form must be used.
28 Requirements
for registration of corporation
(1) The registrar must register a corporation as a cooperative, and
register its rules, if—
(a) an application is made under this division for registration of the
cooperative; and
(b) the registrar is satisfied it meets the requirements for registration
mentioned in subsection (2).
(2) The requirements for registration of a cooperative under this division
are as follows:
(a) the proposed rules of the proposed cooperative must be the rules
approved by the registrar under section 21;
(b) the requirements of this Act must have been complied with in relation
to the proposed cooperative and compliance must be likely to continue;
(c) there must be no reasonable cause for refusing registration of the
proposed cooperative.
(3) If the registrar is not satisfied that the requirements for
registration of the cooperative have been met, the registrar must refuse to
register the cooperative and its rules.
(4) If the registrar has decided under this section to register a
corporation under this Act, the corporation must tell the authority responsible
for registering the corporation under the law under which it was previously
registered of that decision.
(5) Despite anything to the contrary in this division, the registration of
a corporation as a cooperative does not take effect until the corporation ceases
to be registered under the law under which it was previously registered as a
corporation.
(6) The corporation must notify the registrar in writing within 7 days
after the day it ceases to be registered under the other law.
29 Certificate
of registration etc on registration of corporation
(1) On the registration of the corporation as a cooperative the registrar
must—
(a) issue a certificate of registration; and
(b) prepare a written notice about the issue of the certificate.
(2) A notice is a notifiable instrument.
Note A notifiable instrument must be notified under the
Legislation Act 2001.
30 Name
of corporation registered as cooperative
The corporate name of a corporation registered as a cooperative is the name
stated in the certificate of registration issued by the registrar.
31 Effect
of registration of corporation
(1) The corporation is taken to be incorporated under this Act on its
registration as a cooperative.
(2) Except as expressly provided in this Act, the registration and
incorporation of the corporation as a cooperative does not prejudice any right
of a member in relation to any shares held at the time of registration and
incorporation.
(3) The change of registration and incorporation does not affect the
identity of the corporation (and, in particular, the corporation is taken to be
the same body after registration as it was before).
Division
2.6 Conversion of
cooperative
32 Procedure
for conversion
(1) A cooperative may, by alteration of its rules, convert
from—
(a) a cooperative with share capital to a cooperative without share
capital or vice versa; or
(b) a trading cooperative to a non-trading cooperative or vice
versa.
(2) An alteration of the rules for the conversion of a cooperative must be
approved by special resolution passed by a special postal ballot.
33 Stamp
duty exemption for certain cooperatives
(1) This section applies to a cooperative that—
(a) has as its primary activity the providing of any community service or
benefit; and
(b) was, before it was incorporated under this Act, an unincorporated
club, association or body operating to provide sporting or recreational
facilities for its members and not carried on for the financial profit of its
members.
(2) An instrument transferring to a cooperative to which this section
applies any property that was, immediately before the cooperative was
incorporated, held by or on behalf of the unincorporated club, association or
body is not chargeable with stamp duty.
34 Acceptance
of money by proposed cooperative
(1) A proposed cooperative or anyone on its behalf or otherwise that
accepts any money for the proposed cooperative before the proposed cooperative
is registered must hold the money on trust until the cooperative is
registered.
Maximum penalty: 50 penalty units.
(2) If a cooperative is not registered within 3 months after the
acceptance of any money under subsection (1), the proposed cooperative or the
person who accepted the money on its behalf must refund the money to the person
who paid it.
Maximum penalty: 50 penalty units.
35 Issue
of duplicate certificate of registration
If the registrar is satisfied that the original certificate of registration
issued under section 24 (Incorporation of proposed cooperative and certificate
of registration) or section 29 (Certificate of registration etc on registration
of corporation), or a duplicate certificate issued under this section, for a
cooperative is lost, stolen or destroyed, the registrar must issue a duplicate
certificate.
Note A fee may be determined under s 467 (Determination of fees) for
this section.
Part
3 Legal capacity and
powers
Division
3.1 General
powers
36 Effect
of incorporation
A cooperative—
(a) is a corporation; and
(b) has perpetual succession; and
(c) has a common seal; and
(d) may sue and be sued in its corporate name; and
(e) may take, buy, lease, hold, sell and dispose of real and personal
property.
37 Power
to form companies and enter into joint ventures etc
Without limiting any other provision of this Act, a cooperative has
power—
(a) to form or take part in the formation of a corporation or unit trust;
and
(b) to acquire interests in and sell or otherwise dispose of interests in
corporations, unit trusts and joint ventures; and
(c) to form or enter into a partnership, joint venture or other
association with other entities.
Division
3.2 Non-application of doctrine of
ultra vires
38 Definitions
for div 3.2
In this division:
doing, an act by a cooperative, includes the
following:
(a) the making of an agreement by the cooperative;
(b) a transfer of property to or by the cooperative.
legal capacity includes powers.
The objects of this division are—
(a) to provide that the doctrine of ultra vires does not apply to
cooperatives; and
(b) without affecting the validity of a cooperative’s dealings with
others, to ensure that the cooperative’s officers and members give effect
to the provisions of the cooperative’s rules relating to the primary
activities or powers of the cooperative.
40 Legal
capacity of cooperative
(1) A cooperative has, both within and outside the ACT and Australia, the
legal capacity of an individual.
(2) Without limiting subsection (1), a cooperative has, both within and
outside the ACT and Australia, power—
(a) to issue and allot fully or partly paid shares in the cooperative;
and
(b) to issue debentures of the cooperative; and
(c) to distribute any of the property of the cooperative among the
members, in kind or otherwise; and
(d) to give security by charging uncalled capital; and
(e) to grant a charge on property of the cooperative; and
(f) to procure the cooperative to be registered or recognised as a
corporation in any place outside the ACT and Australia; and
(g) to do any other act that it is authorised to do by any other law
(including a law of a place outside the ACT or Australia).
(3) Subsections (1) and (2) apply in relation to a
cooperative—
(a) subject to this Act, but despite section 41 (2); and
(b) if the cooperative’s rules contain an express or implied
restriction on, or an express or implied prohibition of, the exercise by the
cooperative of any of its powers—despite that restriction or prohibition;
and
(c) if the rules of the cooperative contain a provision stating the
objects of the cooperative—despite that fact.
(4) The fact that the doing of an act by a cooperative would not be, or is
not, in its best interests does not affect its legal capacity to do the
act.
41 Restrictions
on cooperatives by its rules
(1) A cooperative’s rules may contain an express restriction on, or
an express prohibition of, the exercise by the cooperative of a power of the
cooperative.
(2) A cooperative contravenes this section if—
(a) it exercises a power contrary to an express restriction in the
cooperative’s rules on, or an express prohibition in the
cooperative’s rules of, the exercise of the power; or
(b) the rules of the cooperative contain a provision stating the objects
of the cooperative and the cooperative does an act otherwise than in pursuance
of the objects.
(3) An officer of a cooperative who is involved in a contravention by the
cooperative of this section also contravenes this section.
(4) Contravention of this section is not an offence.
42 Results
of contravention of restriction in rules
(1) The exercise of a power or the doing of an act in contravention of
section 41 is not invalid only because of the contravention.
(2) An act of an officer of a cooperative is not invalid only because, by
doing the act, the officer contravenes section 41.
(3) The fact that the exercise of a power or the doing of an act
contravenes or would contravene section 41 may be asserted or relied on only
in—
(a) a prosecution of a person for an offence against this Act;
or
(b) an application for an order under division 4.5 (Oppressive conduct of
affairs); or
(c) an application for an injunction under section 456 to restrain the
cooperative from entering into an agreement; or
(d) a proceeding (other than an application for an injunction) by the
cooperative, or by a member of the cooperative, against the present or former
officers of the cooperative; or
(e) an application by the registrar or by a member of the cooperative for
the winding-up of the cooperative.
(4) If, apart from subsection (3), the Supreme Court would have power
under section 456 to grant, on the application of a person, an injunction
restraining a cooperative or an officer of a cooperative from engaging in
particular conduct in contravention of section 41, the court may, on the
application of the person, order the cooperative or the officer to pay damages
to the person or anyone else.
Division
3.3 Dealings with
cooperatives
43 When
assumptions may be made
(1) Subject to section 45, a person is entitled to make the assumptions
mentioned in section 44 in relation to—
(a) dealings with a cooperative; and
(b) dealings with a person who has, or purports to have, directly or
indirectly acquired title to property from a cooperative.
(2) If a person is entitled to assume a matter, the cooperative or anyone
mentioned in subsection (1) (b) is not entitled to assert in a proceeding
in relation to the dealings that the matter is incorrect.
(1) The assumptions that a person may make are as follows:
(a) that the cooperative’s rules have been complied with;
(b) that anyone who appears, from information provided by the cooperative
that is available to the public from the registrar, to be a director or officer
of the cooperative—
(i) has been properly appointed; and
(ii) has authority to exercise the functions customarily exercised by a
director or officer of a similar cooperative;
(c) that anyone who is held out by the cooperative to be an officer or
agent of the cooperative—
(i) has been properly appointed; and
(ii) has authority to exercise the functions customarily exercised by that
kind of officer or agent of a similar cooperative;
(d) that anyone who is, or may be assumed to be, an officer or agent of
the cooperative who has authority to issue a document or a certified copy of a
document on its behalf also has authority to warrant that the document is
genuine or is a true copy;
(e) that a document has been properly executed by the cooperative if it is
signed by 2 people, 1 of whom is, or may be assumed to be, a director of the
cooperative, and the other a director or officer of the cooperative;
(f) that a document has been properly sealed by the cooperative if it
bears what appears to be an impression of the cooperative’s seal and the
sealing of the document appears to be witnessed by 2 people, 1 of whom is, or
may be assumed to be, a director of the cooperative, and the other a director or
officer of the cooperative;
(g) that the officers and agents of the cooperative properly exercise
their duties to the cooperative.
45 Person
who knows or ought to know is not entitled to make
assumptions
A person is not entitled under section 43 to make an assumption if, at the
material time—
(a) the person has actual knowledge that the assumption is not correct;
or
(b) the person’s connection or relationship with the cooperative is
such that the person ought to know that the assumption is not correct.
46 Filing
of documents not to constitute constructive knowledge
(1) A person is not taken to have knowledge of a cooperative’s
rules, any of the contents of a cooperative’s rules, a document, the
contents of a document, or any particulars, only because of either or both of
the following:
(a) the rules, the document or the particulars have been filed with the
registrar;
(b) the rules, the document or the particulars are mentioned in any other
document that has been filed with the registrar.
(2) Subsection (1) does not apply in relation to a document, or in
relation to the contents of a document, that has been filed under schedule 3 to
the extent that the document relates to a charge that is registrable under that
schedule.
(3) Despite subsection (1), a member of a cooperative is taken to have
knowledge of the rules of the cooperative.
(4) A reference in this section to rules, a document or particulars filed
with the registrar is taken to include rules, a document or particulars filed or
lodged with a person under a provision of the Co-operative Societies Act
1939 corresponding to a provision of this Act.
(5) Subsection (4) and this subsection expire 2 years after the
commencement of this section.
(1) A person’s entitlement under this division to make an assumption
is not affected only by the fact that anyone—
(a) has acted or is acting fraudulently in relation to the dealing or
acquisition or purported acquisition of title to property to which the
assumption relates; or
(b) has forged a document to which the assumption relates that appears to
have been sealed on behalf of a cooperative.
(2) A person is not entitled to make the assumption if the person has
actual knowledge of such fraudulent action or forgery.
Division
3.4 Authentication and execution of
documents and confirmation of contracts
A document or proceeding requiring authentication by a cooperative may be
authenticated under the common seal of the cooperative.
(1) A cooperative may, if authorised by its rules, have, for use outside
the ACT in place of its common seal, 1 or more official seals, each of which is
a facsimile of the common seal of the cooperative with the addition on its face
of the name of every place where it is to be used.
(2) The person attaching an official seal must, by writing signed by the
person, certify on the instrument to which it is attached the date when and the
place where it is attached.
(3) A document sealed with an official seal is taken to be sealed with the
common seal of the cooperative.
50 Authentication
need not be under seal
A document or proceeding requiring authentication by a cooperative may be
authenticated, whether or not under the seal of the cooperative, by the
signature of 2 people—
(a) both of whom are directors of the cooperative; or
(b) 1 of whom is a director, and the other of whom is an officer, of the
cooperative.
51 Cooperative
may authorise person to execute deed
(1) A cooperative may, by writing under its common seal, authorise a
person, either generally or in relation to a particular matter, as its agent or
attorney to execute deeds on its behalf.
(2) A deed signed by the agent or attorney on behalf of the cooperative
and under the seal of the agent or attorney, or under the appropriate official
seal of the cooperative, binds the cooperative and has effect as if it were
under the common seal of the cooperative.
(3) The authority of the agent or attorney, as between the cooperative and
a person dealing with the agent or attorney, continues during—
(a) if the instrument giving the authority specifies the period during
which the authority continues—that period; or
(b) in any other case—until notice of the revocation or termination
of the authority of the agent or attorney has been given to the person dealing
with the agent or attorney.
A contract or other document executed, or purporting to have been executed,
under the seal of a cooperative is not invalid only because a person attesting
the attaching of the seal was in any way, whether directly or indirectly,
interested in that contract or other document or in the matter to which the
contract or other document relates.
53 Contractual
formalities
(1) So far as concerns the formalities of making, varying or discharging a
contract, a person acting under the express or implied authority of a
cooperative may make, vary or discharge a contract in the name of, or on behalf
of, the cooperative as if that contract were made, varied or discharged by an
individual.
(2) The making, varying or discharging of a contract in accordance with
subsection (1) is effective in law and binds the cooperative and other parties
to the contract.
(3) This section does not prevent a cooperative from making, varying or
discharging a contract under its seal.
54 Other
requirements about consent or sanction not affected
This division does not affect the operation of a law that requires some
consent or sanction to be obtained, or some procedure to be complied with, in
relation to the making, varying or discharging of a contract.
55 Application
of div 3.4 to pre-commencement matters
(1) This division does not apply in relation to the making, varying or
discharging of a contract before the commencement of this section, but applies
otherwise in relation to a cooperative whether it gives its authority before, on
or after that commencement.
(2) This section expires 2 years after it commences.
Division
3.5 Pre-registration
contracts
56 Contracts
before registration
(1) If a person enters into, or purports to enter into, a contract
(the pre-registration contract) on behalf of, or for the benefit
of, a proposed cooperative, the cooperative becomes bound by the contract and
entitled to its benefit if the cooperative, or a cooperative reasonably
identifiable with it, is registered and ratifies the contract—
(a) within a reasonable period after the contract is entered into;
or
(b) within any period agreed to by the parties to the contract.
(2) The person is released from any liability under the pre-registration
contract if the cooperative enters into another contract in substitution for
it—
(a) within a reasonable period after the pre-registration contract is
entered into; or
(b) within any period agreed to by the parties to the pre-registration
contract.
(3) Subject to section 57 (3), the person who entered into, or
purported to enter into, the pre-registration contract is liable to pay damages
to each other party to the contract if a cooperative is not registered, or a
cooperative is registered but does not ratify the contract or enter into a
substitute for it—
(a) within a reasonable period after the contract is entered into;
or
(b) if a period agreed to by the parties to the contract—within that
period.
(4) The maximum amount of damages the person is liable to pay to a party
is the amount the cooperative would be liable to pay to the party if the
cooperative had been registered and had ratified the contract and then
completely failed to perform it.
(5) If a proceeding is brought to recover damages under subsection (3)
because the cooperative is registered but does not ratify the pre-registration
contract or enter into a substitute for it, the court may do anything that it
considers just in the circumstances, including ordering the
cooperative—
(a) to pay all or part of the damages that the person is liable to pay;
and
(b) to transfer property that the cooperative received because of the
contract to a party to the contract; and
(c) to pay an amount to a party to the contract.
(6) If the cooperative ratifies the pre-registration contract but fails to
perform all or part of it, the court may order the person to pay all or part of
the damages that the cooperative is ordered to pay.
57 Person
may be released from liability but is not entitled to
indemnity
(1) Any of the parties to the pre-registration contract may release the
person who entered into, or purported to enter into, the contract from any
liability in relation to that contract.
(2) The release must be in writing.
(3) The party giving the release is not entitled to recover damages under
section 56 from the person.
(4) Despite any rule of law or equity, the person does not have any right
of indemnity against the cooperative in relation to the person’s liability
under this division.
(5) Subsection (4) applies even if the person was acting, or purporting to
act, as trustee for the cooperative.
58 Div
3.5 replaces other rights and liabilities
This division replaces any rights or liabilities anyone would otherwise
have in relation to the pre-registration contract.
(1) On the registration of a cooperative, the people who signed the
application for registration become members of the cooperative.
(2) Other people may be admitted as members of the cooperative as provided
by its rules.
(3) A person under 18 years old may be admitted as a member of the
cooperative unless the rules of the cooperative otherwise provide.
(4) A corporation is not disqualified, because of being a corporation,
from being a member of a cooperative unless the cooperative’s rules
otherwise provide.
(5) If 2 or more cooperatives merge, the members of the merged cooperative
are—
(a) the members of the merging cooperatives; and
(b) other people admitted as members of the merged cooperative in
accordance with its rules.
60 Members
of associations
(1) The members of an association are—
(a) the component cooperatives by which the association is formed;
and
(b) any other cooperative admitted to membership in accordance with the
rules of the association; and
(c) any other corporation or other body admitted to membership under
subsection (2).
(2) A corporation or other body (other than a cooperative) may be admitted
to membership of the association as a component cooperative if—
(a) it is incorporated or registered under any other law, whether or not a
Territory law; and
(b) in the opinion of the board of the association, it is designed to
function in accordance with cooperative principles; and
(c) it is eligible to be admitted to membership in accordance with the
rules of the association.
61 Members
of federations
(1) The members of a federation of associations are—
(a) the associations by which the federation is formed; and
(b) any other associations admitted to membership in accordance with the
rules of the federation; and
(c) any corporations admitted to membership under subsection
(2).
(2) If the registrar certifies that there is no association to which a
particular corporation could conveniently or appropriately be admitted to
membership, the corporation may be admitted to membership of a
federation.
62 Qualification
for membership
(1) A person is qualified to be admitted to membership of a cooperative
only if—
(a) there are reasonable grounds for believing that the person will be an
active member of the cooperative; and
(b) the person is eligible under the rules of the cooperative.
(2) The rules of a cooperative must contain provisions
that—
(a) impose a duty on everyone who becomes a member to be an active member;
and
(b) explain the consequences of failing to be or ceasing to be an active
member.
63 Membership
may be joint
Membership of a cooperative may be individual or, unless the rules of the
cooperative provide otherwise, may be joint.
64 Members
under 18 years old
(1) A member of a cooperative is not entitled to avoid any obligation or
liability as a member under any contract, deed or other document entered into as
a member on any ground relating to minority.
(2) A person under 18 years old may not hold an office in a
cooperative.
(3) A member of a cooperative who is under 18 years old may not
vote.
(4) This section applies only to individuals.
65 Representatives
of corporations
(1) If a corporation is a member of a cooperative, it may by notice served
on the cooperative appoint a person to represent it in relation to its
membership.
(2) The power to appoint a representative is subject to any restriction
imposed by the rules of the cooperative about the entitlement of a person to
represent a corporation.
(3) If the corporation is a company that is not a listed corporation, a
person is not qualified to be appointed the representative of the company unless
the person is an officer (within the meaning of the Corporations Act), member or
employee of the company.
66 Notification
of shareholders and shareholdings
On the request of the board of a cooperative, a corporation that is a
member of the cooperative must make available for inspection by the
board—
(a) a list of the names of all the shareholders of the corporation and the
number of shares held by each shareholder; or
(b) for a corporation without share capital—a list of the members of
the corporation.
Maximum penalty: 20 penalty units.
67 Circumstances
in which membership ceases—all cooperatives
(1) A person ceases to be a member of a cooperative in each of the
following circumstances:
(a) the person’s membership is cancelled under part 6 (Active
membership);
(b) the person is expelled or resigns in accordance with the rules of the
cooperative;
(c) the person becomes bankrupt, or the person’s property becomes
subject to control under the law relating to bankruptcy, unless the rules of the
cooperative otherwise provide;
(d) the person dies;
(e) the contract of membership is rescinded on the ground of
misrepresentation or mistake;
(f) for a corporation—the corporation is deregistered.
(2) On the death of a member, the member’s estate remains liable as
the member until the member’s personal representative or someone else is
registered in the member’s place.
68 Additional
circumstances in which membership ceases—cooperatives with share
capital
If a cooperative has a share capital, a person also ceases to be a member
in each of the following circumstances:
(a) the person’s share is transferred to someone else in accordance
with the rules of the cooperative, and the transferee is registered as holder in
the person’s place;
(b) the person’s share is forfeited under this Act or the rules of
the cooperative;
(c) the person’s share is sold by the cooperative under a power
given by the rules of the cooperative, and the purchaser is registered as holder
in the person’s place;
(d) the person’s share is purchased by the cooperative under this
Act;
(e) the amount paid up on the person’s shares is repaid to the
person in accordance with the rules of the cooperative.
69 Carrying
on business with too few members
(1) If a cooperative continues to carry on business for more than 28 days
after the day the number of members is reduced below the minimum number of
members allowed, every person who is a director of the cooperative while it so
continues to carry on business, and who knows it is carrying on business with
fewer than the minimum number of members allowed, commits an offence.
Maximum penalty: 20 penalty units.
(2) Each person who commits an offence against subsection (1) is also
liable to satisfy all obligations of the cooperative incurred after the 28 days
mentioned in that subsection, and may be sued without any other member being
joined in the action.
(3) The minimum number of members allowed is—
(a) for an association or federation—2; or
(b) for any other cooperative—5 or, if a lesser number is prescribed
under the regulations, that number.
(4) The registrar may, by notice, extend and further extend in a
particular case the period of 28 days mentioned in subsection (1).
(5) An application for an extension must be made before the period to be
extended ends.
Note If a form is approved under s 468 (Approved forms) for an
application, the form must be used.
Division
4.2 Rights and liabilities of
members
70 Rights
of membership not exercisable until registered
A member of a cooperative is not entitled to exercise any rights of
membership until—
(a) the member’s name appears in the register of members; and
(b) the member has made any payment to the cooperative in relation to
membership or acquired any share or interest provided under the rules of the
cooperative.
71 Board
to ensure name of member entered in register of members
The board of a cooperative must ensure that the name of a person admitted
to membership is recorded in the register of members within 28 days after the
day the person is admitted to membership.
Maximum penalty: 20 penalty units.
72 Liability
of members to cooperative
(1) A member of a cooperative is not, as a member, under any personal
liability to the cooperative, except as provided by this section.
(2) A member of a cooperative with a share capital is liable to the
cooperative for the amount (if any) unpaid on the shares held by the member
together with any charges payable by the member to the cooperative as required
by the rules of the cooperative.
(3) A member of a cooperative without a share capital is liable to the
cooperative for any charges payable by the member to the cooperative as required
by the rules of the cooperative.
73 Cooperative
to provide information to person intending to become a
member
(1) The board of a cooperative must provide each person intending to
become a member of the cooperative with—
(a) a consolidated copy of the rules of the cooperative; and
(b) a copy of all special resolutions passed by the members of the
cooperative that will apply to the person as a member, except special
resolutions providing for an alteration of the rules of the cooperative;
and
(c) a copy of the last annual report (if any) of the
cooperative.
(2) The board of a cooperative may comply with subsection (1)
by—
(a) giving the person intending to become a member notice that the
documents mentioned in that subsection may be inspected by the person
at—
(i) the registered office of the cooperative; and
(ii) at any other office of the cooperative (whether the office is in the
ACT, elsewhere in Australia or outside Australia); and
(b) making those documents available for inspection at the registered
office and any offices to which paragraph (a) (ii) applies.
74 Entry
fees and regular subscriptions
(1) The rules of a cooperative may—
(a) require the payment by members of entry fees and regular
subscriptions; and
(b) authorise the amount of entry fees and regular subscriptions, based on
the business done by shareholders with the cooperative; and
(c) provide for the repayment of the fees and subscriptions on a person
ceasing to be a member.
(2) The amount of a particular member’s regular subscription may be
worked out by reference to the amount of business the member does with the
cooperative.
(3) A cooperative must give to anyone intending to become a member notice
of any entry fees or regular subscriptions payable by a member to the
cooperative.
(4) A person who becomes a member of the cooperative is not liable to pay
any entry fees or regular subscriptions except—
(a) fees or subscriptions of which the person was given notice before
becoming a member; and
(b) any regular subscriptions that may be imposed by any subsequent
alteration of the rules and of which the member has been given notice.
75 Fines
payable by members
(1) A cooperative may impose a fine on a member for any infringement of
the rules of the cooperative if the rules of the cooperative so
provide.
(2) A fine imposed under subsection (1) must not exceed the maximum fine
(if any) specified by the cooperative’s rules.
(3) A fine may be imposed only if—
(a) notice of intention to impose a fine and the reason for it has been
given to the member; and
(b) the member has been given a reasonable opportunity to appear before
the board in person (with or without witnesses), or to send to the board a
written statement, for the purpose of showing cause why the fine should not be
imposed.
(4) The cooperative may set off the fine against any amount owing to the
member in relation to any produce delivered by the member to the cooperative,
but the fine must not be set off against any advance owing to the member from
the cooperative in accordance with the rules against produce so
delivered.
76 Charge
and set-off of cooperative
(1) A cooperative has, in relation to any debt owing by a member or former
member to the cooperative, a charge on each of the following:
(a) the share or interest in the capital and the credit balance and
deposits of the member or former member;
(b) any rebate, bonus, dividend or interest payable to the member or
former member;
(c) any entry fees and regular subscriptions required to be repaid to a
member when the member ceases to be a member.
(2) The cooperative may set off any amount paid on account of the share or
other thing, or any amount credited or payable to the member or former member,
in or towards payment of the debt.
(3) The charge created by this section may be enforced by the
appropriation by the cooperative of the share or other thing subject to the
charge, but only after at least 7 days notice has been given to the member or
former member.
(4) Any share in relation to which capital has been appropriated must be
cancelled.
77 Repayment
of shares on expulsion
(1) If a member is expelled from a cooperative in accordance with its
rules, the cooperative must, within 1 year after the day of the
expulsion—
(a) repay to the former member an amount (the repayable
amount) equal to the amount paid up on the shares held by the former
member at the expulsion, less any amount owed by the former member to the
cooperative at the expulsion under the rules of the cooperative or any contract
or otherwise; or
(b) apply, in accordance with subsection (2), the repayable amount
if—
(i) the board is of the opinion that repayment would adversely affect the
financial position of the cooperative; or
(ii) the board and the former member agree.
(2) The repayable amount may be applied in 1 of the following
ways:
(a) the cooperative may appropriate the amount owing as a donation to the
cooperative, but only if the former member agrees in writing to the
donation;
(b) if the cooperative is a deposit-taking cooperative—the
cooperative may apply the amount as a deposit by the former member with the
cooperative;
(c) the cooperative may allot or issue debentures of the cooperative to
the former member in satisfaction of the amount.
(3) However, the deposit or debenture must be repaid at the time required
under section 135 (2).
(4) Payment of any amount payable under this section must be made at the
time decided by the board of the cooperative, but not later than 1 year after
the day of the expulsion.
(5) Shares in relation to which capital has been repaid must be
cancelled.
Division
4.3 Death of
member
78 Meaning
of interest in div 4.3
In this division:
interest, in relation to a dead member of a cooperative,
includes—
(a) the member’s membership; and
(b) any credit balance owing to the member; and
(c) any loan from or to the member, or deposit by the member with the
cooperative; and
(d) any surplus arising on the sale by the cooperative as mortgagee of any
property mortgaged by the member to the cooperative.
79 Transfer
of share or interest on death of member
Subject to section 170 (Transfer on death of member), on the death of a
member, the board must transfer the member’s share or interest in the
cooperative to—
(a) the personal representative of the member; or
(b) to the person that the member’s personal representative
specifies in an application made to the cooperative within 3 months after the
death of the member.
80 Transfer
of small shareholdings and interests on death
(1) If the total value of a dead member’s shares or interest in a
cooperative is less than $10 000 (or, if another amount is prescribed under
the regulations, that amount), the board may, on the basis of the evidence it
considers sufficient, transfer the shares or interest to—
(a) if the member died leaving a valid will—the person who appears
to the board to be entitled to the shares or interest under the will of the
member; or
(b) if the member died without leaving a valid will—anyone who
appears to the board to be entitled to obtain a grant of administration of the
estate of the member.
(2) A person to whom shares or an interest of a dead member is transferred
under subsection (1) (b) holds the shares or interest on the trusts that the
person would have held the shares or interest on if the person had obtained a
grant of administration of the estate of the member.
(3) A transfer must not be made under this section after evidence has been
produced to the cooperative of the grant of letters of administration of the
estate, or probate of the will, of the dead member.
(4) In this section:
transfer, of an interest, includes the payment of
money.
81 Value
of shares and interests
The value of the shares or interest of a dead member must be decided for
this division in accordance with the rules of the cooperative.
Any transfer of property made by the board of a cooperative to a person in
accordance with this division is effective against any demand made on the
cooperative by anyone else.
Division
4.4 Disputes involving
members
(1) The rules of a cooperative must set out a grievance procedure for
dealing with any dispute under the rules between—
(a) a member and another member; or
(b) a member and the cooperative.
(2) A member may appoint anyone to act on behalf of the member in the
grievance procedure.
(3) The grievance procedure must require natural justice to be
applied.
(4) In this section:
member includes anyone who was a member at any time during
the 6 months that ended on the day when the dispute happened.
84 Application
to Supreme Court
(1) The Supreme Court may, on the application of a cooperative or a member
of a cooperative, make an order declaring and enforcing—
(a) the rights or liabilities of members of the cooperative between
themselves; or
(b) the rights or liabilities of the cooperative and any member between
themselves.
(2) An order may be made under this section whether or not a right of a
proprietary nature is involved and whether or not the applicant has an interest
in the property of the cooperative.
(3) The Supreme Court may refuse to make an order on the application or
may make an order for costs against a party, whether successful or not, if it is
of the opinion that—
(a) the issue raised in the application is trivial; or
(b) having regard to the importance of the issue, the nature of the
cooperative, any other available way of resolving the issue, the costs involved,
lapse of time, acquiescence or any other relevant circumstance, it was
unreasonable to make the application; or
(c) the unreasonable or improper conduct of a party—
(i) has been responsible for the making of the application; or
(ii) has added to the cost of the proceeding.
(4) In this section:
member includes anyone who was a member at any time during
the 6 months that ended on the day when the dispute happened.
Division
4.5 Oppressive conduct of
affairs
85 Meaning
of member in div 4.5
In this division:
member, of a cooperative that has a share capital, includes a
person to whom a share in the cooperative has been transmitted by will or by
operation of law.
86 Application
of div 4.5
This division does not apply in relation to anything done under part 6
(Active membership).
87 Who
may apply for court order
The following people may apply to the Supreme Court for an order under this
division:
(a) the registrar;
(b) a member who believes that the affairs of the cooperative are being
conducted in a way that is—
(i) oppressive or unfairly prejudicial to, or unfairly discriminatory
against, a member; or
(ii) contrary to the interests of the members as a whole;
(c) a member who believes that an act or omission, or a proposed act or
omission, by or on behalf of the cooperative, or a resolution, or a proposed
resolution, of a class of members, was or would be—
(i) oppressive or unfairly prejudicial to, or unfairly discriminatory
against, a member; or
(ii) contrary to the interests of the members as a whole.
88 Orders
that Supreme Court may make
(1) On application under this division, the Supreme Court may make any
order it considers appropriate.
(2) The orders that may be made include (but are not limited to) the
following:
(a) an order that the registrar appoint an administrator of the
cooperative;
(b) an order that the cooperative be wound up;
(c) an order for regulating the conduct of affairs of the cooperative in
the future;
(d) an order for the repayment under this Act of the member’s
shares;
(e) an order for the purchase of the shares of any member by the
cooperative and for the reduction accordingly of the cooperative’s
capital;
(f) an order directing the cooperative to bring, continue, defend or
discontinue a proceeding, or authorising a member of the cooperative to bring,
continue, defend or discontinue a proceeding in the name and on behalf of the
cooperative;
(g) an order appointing a receiver or a receiver and manager of property
of the cooperative;
(h) an order restraining a person from engaging in conduct or doing
anything;
(i) an order directing a cooperative to take steps necessary for it to
become registered as a company under the Corporations Act;
(j) an order requiring a person to do anything;
(k) an order about costs.
89 Basis
on which Supreme Court makes orders
The Supreme Court may make an order under this division if it is of the
opinion—
(a) that the affairs of a cooperative are being conducted in a way that
is—
(i) oppressive or unfairly prejudicial to, or unfairly discriminatory
against, a member, whether or not in the capacity of a member; or
(ii) contrary to the interests of the members as a whole; or
(b) that an act or omission, or a proposed act or omission, by or on
behalf of a cooperative, or a resolution, or a proposed resolution, of a class
of members of a cooperative, was or would be—
(i) oppressive or unfairly prejudicial to, or unfairly discriminatory
against, a member, whether or not in the capacity of a member; or
(ii) contrary to the interests of the members as a whole.
90 Winding-up
need not be ordered if oppressed member would be prejudiced
(1) The Supreme Court need not make an order under this division for the
winding-up of a cooperative if it is of the opinion that the winding-up of the
cooperative would unfairly prejudice an oppressed member.
(2) In this section:
oppressed member means a member mentioned in section 89 (a)
(i) or (b) (i).
91 Application
of winding-up provisions
If an order that a cooperative be wound up is made under this division, the
provisions of this Act relating to the winding-up of cooperatives apply, with
any necessary changes, as if the order had been made on an application filed in
the Supreme Court by the cooperative.
If an order under this division makes any alteration to the rules of a
cooperative—
(a) the alteration has effect as if it had been made by special resolution
of the cooperative; and
(b) the cooperative must not (despite any other provisions of this Act)
without the leave of the Supreme Court make any further alteration to the rules
inconsistent with the provisions of the order.
93 Copy
of order to be filed with registrar
An applicant for an order under this division must file an office copy of
the order with the registrar within 14 days after the day it is made.
Maximum penalty: 10 penalty units.
Division
4.6 Proceedings on behalf of
cooperatives
94 Bringing,
or intervening in, proceedings on behalf of cooperative
(1) A person may bring a proceeding on behalf of a cooperative, or
intervene in a proceeding to which a cooperative is a party for the purpose of
taking responsibility on behalf of the cooperative for the proceeding or a step
in the proceeding (for example, compromising or settling them),
if—
(a) the person is—
(i) a member, former member, or person entitled to be registered as a
member, of the cooperative or of a related corporation; or
(ii) an officer or former officer of the cooperative; or
(iii) the registrar; and
(b) the person is acting with leave granted under section 95.
(2) A proceeding brought on behalf of a cooperative may be brought in the
cooperative’s name.
95 Applying
for and granting leave to bring proceedings etc
(1) For section 94 (1), a person mentioned in section 94 (1) (a)
may apply to the Supreme Court for leave to bring, or to intervene in, a
proceeding.
(2) The Supreme Court may grant the leave if satisfied
that—
(a) the cooperative is unlikely to bring the proceeding, or properly take
responsibility for the proceeding or the step in the proceeding; and
(b) the applicant is acting honestly; and
(c) it is in the best interests of the cooperative that the applicant be
granted leave; and
(d) if the applicant is applying for leave to bring the
proceeding—there is a serious question to be tried; and
(e) either—
(i) at least 14 days before making the application, the applicant gave
notice to the cooperative of the applicant’s intention to apply for leave
and of the reasons for applying; or
(ii) it is otherwise appropriate to grant leave.
96 Substitution
of someone else for person granted leave
(1) Any of the following people may apply to the Supreme Court for an
order that they be substituted for a person to whom leave has been granted under
section 95:
(a) a member, former member, or person entitled to be registered as a
member, of the cooperative or a related corporation;
(b) an officer, or former officer, of the cooperative;
(c) the registrar.
(2) The application may be made whether or not the other person has
already brought the proceeding or made the intervention.
(3) The Supreme Court may make the order if it is satisfied
that—
(a) the applicant is acting honestly; and
(b) it is appropriate to make the order.
(4) An order substituting a person for someone else has the effect
that—
(a) the grant of leave is taken to have been made in favour of the
substituted person; and
(b) if the other person has already brought the proceeding or
intervened—the substituted person is taken to have brought the proceeding
or to have made the intervention.
97 Effect
of ratification by members
(1) A ratification or approval of conduct by members of a
cooperative—
(a) does not prevent a person from bringing or intervening in a proceeding
with leave under section 95 or from applying for leave under that section;
and
(b) does not have the effect that a proceeding brought or intervened in
with leave under section 95 must be decided in favour of the defendant or that
an application for leave under that section must be refused.
(2) The Supreme Court may take into account a ratification or an approval
of the conduct by members of a cooperative in deciding what order or judgment
(including about damages) to make in a proceeding brought or intervened in with
leave under section 95 or in relation to an application for leave under that
section.
(3) In taking a ratification or approval into account under subsection
(2), the Supreme Court may have regard to—
(a) how well informed about the conduct the members were when deciding
whether to ratify or approve the conduct; and
(b) whether the members who ratified or approved the conduct were acting
for proper purposes.
98 Leave
to discontinue proceedings brought with leave etc
A proceeding brought, or intervened in, with leave under section 95 may be
discontinued, compromised or settled only with the leave of the Supreme
Court.
99 General
powers of Supreme Court about proceedings brought etc with
leave
(1) The Supreme Court may make any orders, and give any directions, it
considers just in relation to a proceeding brought or intervened in with leave
under section 95, or in relation to an application under this division for
leave, including—
(a) interim orders; and
(b) directions about the conduct of the proceeding (including requiring
mediation); and
(c) an order directing the cooperative, or an officer of the cooperative,
to do or not to do anything; and
(d) an order appointing an independent person to investigate, and report
to the Supreme Court, on—
(i) the financial affairs of the cooperative; or
(ii) the facts or circumstances that gave rise to the cause of action the
subject of the proceeding; or
(iii) the costs incurred in the proceeding and the person granted
leave.
(2) A person appointed by the Supreme Court under subsection (1) (d)
is entitled, on giving reasonable notice (whether oral or in writing) to the
cooperative, to inspect and make copies of any books of the cooperative for any
purpose related to their appointment.
100 Power
of Supreme Court to make costs order for proceedings brought etc with
leave
The Supreme Court may, in relation to a proceeding brought or intervened in
with leave under section 95 or an application for leave under that section, make
any orders it considers just about the costs of the person who applied for or
was granted leave, of the cooperative or of any other party to the proceeding or
application (including an order requiring indemnification for
costs).
(1) The rules of a cooperative have the effect of a contract under
seal—
(a) between the cooperative and each member; and
(b) between the cooperative and each director, the principal executive
officer and the secretary of the cooperative; and
(c) between a member and each other member.
(2) Under the contract, each of those people agrees to observe and perform
the provisions of the rules as in force from time to time so far as the
provisions apply to the person.
102 Content
of rules—generally
The rules of the cooperative must comply with the requirements mentioned in
schedule 2, and prescribed under the regulations, that apply to that
cooperative.
103 Other
requirements about contents of rules etc
(1) The rules must be divided into paragraphs numbered
consecutively.
(2) The rules may state the objects of the cooperative.
(3) The rules may incorporate any provision of the model rules approved
under section 106.
(4) The rules may provide for the imposition of a fine on a member for any
infringement of the rules.
(5) If the rules provide for the imposition of a fine, the rules must
specify the maximum fine that may be imposed on a member.
(6) The maximum fine provided under the rules must not exceed any amount
prescribed under the regulations as the maximum fine.
(7) The rules may contain other provisions not inconsistent with this Act
or another Territory law.
104 Obtaining
copy of rules
(1) A member is entitled to obtain from a cooperative a copy of its rules
on payment of the amount required by the rules of the cooperative or, if the
rules do not require an amount, on payment of $5 (plus any GST payable in
relation to the supply).
(2) The amount required by the rules must not exceed the fee (if any)
determined under section 467 (Determination of fees) for obtaining a copy of the
rules from the registrar.
(3) A person is entitled to obtain a copy of the rules of a cooperative
from the registrar.
Note A fee may be determined under s 467 (Determination of fees) for
this subsection.
105 False
copies of rules
(1) A person who gives to a member of a cooperative, or to a person
intending or applying to become a member of a cooperative, a copy of any rules
or alterations of rules, other than rules or alterations that have been properly
registered, must not represent that they are binding on the members of the
cooperative.
Maximum penalty: 10 penalty units.
(2) A person who alters any of the rules of a cooperative after they have
been registered, and circulates them representing that they have been properly
registered if they have not been, commits an offence.
Maximum penalty: 10 penalty units.
(1) The registrar may, in writing, approve model rules for
cooperatives.
Note Power given under an Act to make an instrument (including model
rules) includes power to amend or repeal the instrument (see Legislation Act
2001, s 46 (1)).
(2) The model rules may make provision for anything for which the rules of
a cooperative may make provision.
(3) If the model rules provide for a matter and the rules of a cooperative
to which the model rules apply do not provide for the matter, the provision of
the model rules relating to the matter is taken to be included in the rules of
the cooperative.
(4) Model rules approved under this section are a notifiable
instrument.
Note 1 A notifiable instrument must be notified under the
Legislation Act 2001.
Note 2 An amendment or repeal of the model rules is also a
notifiable instrument (see Legislation Act 2001, s 46 (2)).
107 Rules
may only be altered in accordance with Act
The rules of a cooperative may only be altered in accordance with this
Act.
108 Proposed
alteration must be approved by registrar
A resolution altering the rules may be passed by a cooperative or the board
of a cooperative only if the proposed alteration of the rules has been approved
in writing by the registrar.
109 Approval
of proposed alteration by registrar
(1) A draft of the proposed alteration of the rules of a cooperative must
be given to the registrar at least 28 days (or, if the registrar allows a
shorter period, that period) before the day—
(a) notice of the proposed special resolution altering the rules is given
to the members by the cooperative; or
(b) the resolution is passed by the board of the cooperative.
(2) The proposed alteration must—
(a) comply with section 102 (Content of rules—generally) and section
103 (Other requirements about contents of rules etc); and
(b) be accompanied by a statement setting out the reasons for the
alteration.
Note If a form is approved under s 468 (Approved forms) for a
proposed alteration, the form must be used.
(3) The registrar may—
(a) approve the proposed alteration as submitted; or
(b) approve a different alteration to the proposed alteration as
submitted; or
(c) refuse to approve the proposed alteration.
(4) If the registrar approves the proposed alteration, the registrar must
give notice of the approval to the person who submitted the alteration to the
registrar.
(5) If the registrar refuses to approve the proposed alteration, the
registrar must give notice of the refusal to the person who submitted the
alteration to the registrar.
110 Alteration
by special resolution
An alteration of rules of a cooperative must be made by special resolution
unless otherwise provided by this Act.
111 Alteration
by resolution of board
(1) The rules of a cooperative may be altered by a resolution passed by
the board if the alteration does no more than give effect to a requirement,
restriction or prohibition made under this Act.
(2) If the rules of a cooperative are altered under this section, the
cooperative must tell its members in writing about the
alteration—
(a) as soon as practicable after the alteration takes effect;
and
(b) not later than the day when notice is given to the members of the next
annual general meeting of the cooperative after the alteration takes
effect.
112 Registration
of alteration
(1) An application for registration of an alteration must—
(a) be made within 28 days after the day the alteration is made or, if
another period is prescribed under the regulations, that period; and
(b) be accompanied by a consolidated copy of the rules of the cooperative
(including the alteration).
Note If a form is approved under s 468 (Approved forms) for an
application, the form must be used.
(2) The registrar must register the alteration unless the registrar
refuses to register it under subsection (3).
(3) The registrar must refuse to register the alteration
if—
(a) the registrar is satisfied that the alteration is contrary to this
Act; or
(b) the registrar has other reasonable cause to refuse to register the
alteration.
(4) The registrar must give notice of the decision to the person who
applied for registration of the alteration.
(5) A certificate of registration of any alteration of the rules of a
cooperative given by the registrar is, in favour of anyone advancing money to
the cooperative on the faith of the certificate or in favour of any guarantor of
that advance, conclusive evidence that the alteration was properly
made.
113 Alteration
takes effect only if registered
An alteration of the rules of a cooperative takes effect only if it is
registered by the registrar.
Division
6.1 Interpretation
114 Meaning
of primary activity
A primary activity of a cooperative is an activity that the
rules of the cooperative provide is a primary activity of the
cooperative.
115 Who
is an active member
For this Act, a member of a cooperative is an active member
of the cooperative if the member—
(a) uses or supports an activity of, or maintains a relationship or an
arrangement with, the cooperative, in relation to the carrying on of a primary
activity of the cooperative, in the way and to the extent that the rules of the
cooperative provide is sufficient to establish active membership; or
(b) maintains any other relationship or arrangement with the cooperative
in relation to the carrying on of a primary activity of the cooperative that the
regulations provide is sufficient to establish active membership.
116 What
are active membership provisions and resolutions
(1) The active membership provisions of the rules of a
cooperative are the provisions of the rules that specify—
(a) the activities of the cooperative that are its primary activities; and
(b) how, and to what extent, a member of the cooperative is required to
use or support an activity of, or maintain a relationship or an arrangement
with, the cooperative, in relation to the carrying on of a primary activity of
the cooperative, to establish active membership of the cooperative.
(2) An active membership resolution is a resolution that
would, if given effect to, make or amend active membership provisions in the
rules of a cooperative.
Division
6.2 Rules to contain active membership
provisions
117 Number
of primary activities required
A cooperative must have at least 1 primary activity.
118 Rules
to contain active membership provisions
The board of a cooperative must ensure that the rules of the cooperative
contain active membership provisions in accordance with this part.
119 Factors
and considerations for deciding primary activities etc
(1) The board of a cooperative must ensure that the relevant factors and
considerations are taken into account in deciding—
(a) which of the activities of a cooperative are its primary activities;
and
(b) how, and to what extent, a member is required to use or support an
activity of, or maintain a relationship or an arrangement with, a cooperative,
in relation to the carrying on of a primary activity of the cooperative, to
establish active membership of the cooperative.
(2) The relevant factors and considerations are—
(a) the primary activity (or, if there are 2 or more primary activities,
the primary activities taken together) must constitute the basic purpose for
which the cooperative exists and make a significant contribution to the business
of the cooperative; and
(b) the requirements decided under subsection (1) (b) must be reasonable,
when considered in relation to the activities of the cooperative as a whole;
and
(c) any other factors and considerations prescribed under the
regulations.
(3) The regulations may—
(a) provide for the matters to be taken into account in deciding whether
an activity makes (or activities make) a significant contribution to the
business of the cooperative; and
(b) specify minimum percentages of turnover, minimum amounts of income or
minimum amounts of business necessary to constitute that significant
contribution.
(4) This section does not limit the right of active members, other than
the board of the cooperative, to propose an active membership
resolution.
120 Active
membership provisions—trading cooperatives
The only active membership provisions that may be contained in the rules of
a trading cooperative are—
(a) provisions specifying activities associated with the
cooperative’s primary activities that are available for members of the
cooperative to use or support if they wish to establish active membership;
and
(b) any other active membership provisions that the registrar may
approve.
121 Regular
subscription—active membership of non-trading
cooperative
(1) Active membership provisions for a non-trading cooperative may include
provision that the payment of a regular subscription by a member of the
cooperative, to be applied in relation to a primary activity of the cooperative,
is sufficient to establish active membership of the cooperative.
(2) A member of a cooperative who would, on payment of such a
subscription, be an active member of a cooperative is taken to be an active
member until the subscription is owing.
Division
6.3 Active membership
resolutions
(1) At least 21 days notice must be given to members of a cooperative of a
meeting at which an active membership resolution is to be proposed.
(2) The notice must, in addition to the other matters required to be
specified—
(a) state whether the member is eligible to vote on the resolution; and
(b) state the full text of the proposed resolution; and
(c) contain a copy of section 126 (Cancellation of membership of inactive
members).
(3) If the notice to a member states that the member is not eligible to
vote on a resolution, the member may, after trying to settle the matter with the
cooperative, apply to the registrar for a decision about the member’s
eligibility.
(4) The registrar may decide the matter, on the information available to
the registrar, by written direction to the cooperative and the member.
(5) The registrar’s decision about eligibility has effect but only
if given before the meeting is proposed to be held.
123 Eligibility
to vote on active membership resolution
The only members of a cooperative who are eligible to vote on an active
membership resolution if the rules do not contain active membership provisions
are the members who would be active members if the resolution had already taken
effect.
124 Eligibility
of directors to vote on proposal at board meeting
If the board is meeting to consider a proposal to submit an active
membership resolution to a meeting of the cooperative—
(a) subject to paragraph (b), a director is only eligible to vote on that
proposal if the director would be eligible to vote on the resolution at the
meeting of the cooperative; or
(b) if fewer than 2 directors (whether or not they are present at the
meeting of the board) would be eligible to vote on the resolution at the meeting
of the cooperative—all the directors are eligible to vote on that proposal
at the meeting of the board.
125 Other
rights etc of members not affected by div 6.3
A provision of this division that renders a member of a cooperative
ineligible to vote on a resolution does not affect any other right, entitlement,
liability or duty of the member as a member.
Division
6.4 Cancellation of membership of
inactive members
126 Cancellation
of membership of inactive members
(1) The board of a cooperative must declare the membership of a member
cancelled if—
(a) the whereabouts of the member are not known to the cooperative and
have not been known to the cooperative for at least the required period;
or
(b) the member is not an active member of the cooperative and has not been
an active member of the cooperative at any time during the required
period.
(2) This section applies to a member only if the member was a member of
the cooperative throughout the required period.
(3) The question whether a member was an active member at a particular
time in the past must be decided as if the active membership provisions
concerned had been in force at that time.
(4) The board’s declaration under this section in relation to a
member has the effect of cancelling the membership of the member.
(5) A person may apply to the Supreme Court for an order under
section 132 against the cancellation of the person’s membership under
this section.
(6) In this section:
required period, for a cooperative, means—
(a) the last 3 years; or
(b) if a shorter period is provided in the rules of the
cooperative—that shorter period.
127 Share
to be forfeited if membership cancelled
(1) If a cooperative has a share capital, the board of the cooperative
must declare the shares of a member to be forfeited at the same time as the
member’s membership is cancelled under section 126.
(2) The board’s declaration has the effect of forfeiting the
shares.
(3) This section does not affect the operation of section 133 (Repayment
of amounts owing in relation to cancelled membership).
128 Failure
to cancel membership—offence by director
If the board of a cooperative fails to cancel the membership of a member as
required by this part, a director of the cooperative who did not use all due
diligence to prevent that failure commits an offence.
Maximum penalty: 20 penalty units.
129 Deferral
of forfeiture by board
(1) The board of a cooperative may, by resolution, defer cancellation of a
member’s membership for up to 1 year—
(a) if the board has reasonable grounds to believe that a member has
ceased to be an active member because of unusual circumstances that prevent the
member fulfilling the member’s active membership obligations; or
(b) if—
(i) the board considers that during that period an active membership
resolution may be put to the members of the cooperative; and
(ii) the effect of the resolution would be relevant to the question
whether the member is an active member.
(2) The board of the cooperative must review the resolution to defer
before the end of the deferral period to decide if a further resolution should
be made under subsection (1).
130 Cancellation
of membership prohibited in certain circumstances
Unless the regulations otherwise provide, the board of a cooperative must
not declare the membership of a member to be cancelled under this
part—
(a) if the cooperative is insolvent; or
(b) if the cooperative is under administration under the Corporations Act,
part 5.3A (Administration of a company’s affairs with a view to executing
a deed of company arrangement) as applied by this Act; or
(c) if a compromise or an arrangement is being administered in relation to
the cooperative; or
(d) if the cooperative is in the course of being wound up; or
(e) if an appointment of a receiver (whether or not a receiver and
manager) of any property of the cooperative is in force; or
(f) if the cooperative has, for the purposes of being registered as a
company under the Corporations Act, filed with the registrar a copy of the entry
made in the minute book of the cooperative under section 199 (Postal
ballots); or
(g) in any other circumstances prescribed under the regulations.
131 Notice
of intention to cancel membership
(1) The board of a cooperative must ensure that a member is given not less
than 28 days notice of its intention to declare the membership of the member
cancelled.
(2) Notice is not required to be given under this section
if—
(a) the member’s whereabouts are unknown to the cooperative;
and
(b) the amount required to be repaid to the member in relation to the
cancelled membership (whether because of the cancellation of shares or
otherwise) does not exceed $50.
132 Supreme
Court order against cancellation of membership
(1) If the Supreme Court is satisfied that the cancellation of a
member’s membership under section 126 was or would be unreasonable, the
court may order that the membership should not have been cancelled or should not
be cancelled.
(2) While an order is in force under this section—
(a) if the membership was cancelled—the person whose membership was
cancelled must be reinstated as a member of the cooperative with all the rights
and entitlements (including any shareholding) attaching to or arising from the
former membership; and
(b) if the membership is proposed to be cancelled—the membership
must not be cancelled and any shareholding of the member must not be
forfeited.
(3) Subsection (2) applies subject to any directions of the Supreme
Court.
133 Repayment
of amounts owing in relation to cancelled membership
(1) If the membership of a member of a cooperative is cancelled under this
part, the cooperative must, within 1 year after the day of the
cancellation—
(a) repay to the former member the amount owing to the member in relation
to the cancellation; or
(b) apply the amount in accordance with subsection (2) if—
(i) the board is of the opinion that repayment would adversely affect the
financial position of the cooperative; or
(ii) the board and the former member so agree.
(2) The amount owing may be applied as follows:
(a) if the cooperative is a deposit-taking cooperative—the
cooperative may apply the amount as a deposit by the former member with the
cooperative (subject to the requirements of section 134 about interest on the
deposit);
(b) the cooperative may allot or issue debentures of the cooperative to
the former member in satisfaction of the amount;
(c) the cooperative may appropriate the amount owing as a donation to the
cooperative, but only if the former member agrees in writing to the
donation.
(3) The amount owing to a former member in relation to the cancellation of
membership includes any amount paid up in relation to shares forfeited because
of the cancellation of membership.
(4) If the former member is subsequently readmitted to membership, any
amount held by the cooperative under this section must, if the member asks, be
applied towards the cost of admission to membership (including any subscription
for share capital).
134 Interest
on deposits and debentures
(1) This section applies if the amount owing to a former member under
section 77 (Repayment of shares on expulsion) or section 133 is applied as a
deposit with the cooperative or the cooperative allots or issues debentures to
the former member in satisfaction of the amount.
(2) The deposit or debenture bears interest during any
period—
(a) for a cooperative with share capital—
(i) at the rate (or, if there is more than 1 rate, at the higher or
highest rate) of dividend payable in relation to that period on the share
capital of the cooperative; or
(ii) if the rate of dividend payable in relation to that period has not
been decided—at the rate (or the higher or highest rate) payable in
relation to the last period for which a rate has been decided; or
(iii) if a rate of dividend has never been decided in relation to the
share capital of the cooperative—at the rate that the board of the
cooperative considers reasonable; or
(b) for a cooperative without share capital—at the rate that the
board of the cooperative considers reasonable; or
(c) if the rules provide for a rate to be payable that is higher than the
rate applying under paragraph (a) or (b)—at the higher rate.
(3) A former member may agree to the rate of interest being less than that
which would otherwise be payable under this section and may agree to no interest
being paid.
(4) The following provision of the Corporations Act (as applied by section
264 (Application of Corporations Act—issue of debentures)) do not apply to
an allotment or issue of debentures under this section:
• chapter 2L (Debentures)
• chapter 6D (Fundraising).
135 Repayment
of deposits and debentures
(1) If an amount is owing to a former member under this division or
section 77 (Repayment of shares on expulsion) in relation to a deposit or
debenture, the amount must be repaid to the former member as soon as repayment
would not, in the opinion of the board, adversely affect the financial position
of the cooperative.
(2) The deposit or debenture must, in any case, be repaid within 10 years
(or, if the cooperative’s rules require a shorter period, that period)
after cancellation of the member’s membership.
136 Register
of cancelled memberships
(1) A cooperative must keep a register of people whose membership has been
cancelled under this division.
(2) The register must contain the particulars prescribed under the
regulations.
Division
6.5 Entitlements of former members of
trading cooperatives
137 Application
of div 6.5
This division applies only to trading cooperatives.
138 Former
shareholders taken to be shareholders for certain purposes
(1) Even though a person’s shares in a cooperative have been
forfeited under this part, the person is taken to be the holder of shares in the
cooperative (the same in all respects as the shares that were forfeited) for the
following purposes:
(a) the entitlements of a shareholder in relation to the purchase of
shares in the cooperative in accordance with an offer mentioned in section
290 (1) (a), (b) or (c) or the purchase of all the shares in the
cooperative, if the offer or purchase happens within 5 years after the day the
person’s shares were forfeited;
(b) the entitlement of a shareholder when the cooperative becomes
registered as a company if the relevant special resolution under section 308 is
passed within 5 years after the day the person’s shares were
forfeited;
(c) the entitlement of a shareholder to a distribution of surplus in a
winding-up of the cooperative that begins within 5 years after the day the
person’s shares were forfeited.
(2) Subsection (1) (a) does not apply in relation to—
(a) an offer mentioned in section 290 (1) (a) or (c) that is
made by another cooperative; or
(b) the purchase of all the shares in the cooperative by another
cooperative.
(3) Subsection (1) (c) does not apply if the winding-up is for a
merger under division 12.1.
(4) To remove any doubt, the entitlement under
subsection (1) (a) of a person whose shares have been forfeited does
not include an entitlement to vote on anything.
(5) This section does not apply to a forfeited shareholding in a
cooperative if the forfeited shareholding is taken under section 139 to be a
forfeited shareholding in another cooperative.
139 Entitlements
of former shareholders on mergers etc
(1) This section applies if a person’s shares in a cooperative (the
original cooperative) are forfeited under this part and within 5
years after the day of the forfeiture—
(a) the original cooperative becomes a subsidiary of another cooperative
(the new cooperative); or
(b) another cooperative (the new cooperative) is created
because of a merger under division 12.1 involving the original cooperative; or
(c) the engagements of the original cooperative are transferred to another
cooperative (the new cooperative) under division 12.1.
(2) The person is, for the operation of section 138 (and the further
operation of this section), taken to have held shares in the new cooperative and
as having had the shares in the new cooperative forfeited under this part when
the person’s shares in the original cooperative were forfeited.
(3) The extent of the forfeited shareholding in the new cooperative must
be decided as follows:
(a) if the entitlement of active members of the original cooperative is
solely an entitlement to be allotted shares in the new cooperative—the
forfeited shareholding in the new cooperative is the shareholding to which the
person would have been entitled had the person’s shares in the original
cooperative not been forfeited;
(b) in any other case—the forfeited shareholding in the new
cooperative is the shareholding that is the same in all respects as the
forfeited shareholding in the original cooperative.
(4) A decision under subsection (3) (a) about the person’s
shareholding in the new cooperative must be made—
(a) solely on the basis of the person’s shareholding in the original
cooperative when the shares were forfeited or (in a further operation of this
section in relation to the person) when the person was first taken to have a
forfeited shareholding in the original cooperative; and
(b) without regard to any additional shareholding in the original
cooperative to which the person would have become entitled had the shares not
been forfeited (whether because of any bonus share issue or
otherwise).
140 Set
off of amounts repaid etc on forfeited shares
(1) If a person has an entitlement because of section 139, the
entitlement operates to extinguish any liability of the
cooperative—
(a) to repay to the person under section 133 (Repayment of amounts
owing in relation to cancelled membership) any amount in relation to the
person’s forfeited shares in the cooperative; or
(b) in relation to a deposit held by the cooperative, or debentures
allotted or issued to the person, under section 133 in relation to the
person’s forfeited shares in the cooperative (except a liability to pay
any interest owing).
(2) If an amount has been repaid to a person under
section 133 or 135 (Repayment of deposits and debentures), the
amount repaid must be set off against any entitlement of the person under
section 138 in relation to the forfeited shares.
(3) If the amount repaid cannot be set off against the entitlement because
the entitlement is not, or is only partly, an entitlement to money, the
entitlement is lost unless the person pays to the cooperative the amount repaid
to the person and does so within the period required under subsection
(4).
(4) If the circumstances mentioned in subsection (3) arise, the
cooperative must—
(a) give notice of the matter by prepaid post to the person at the
person’s address last known to the cooperative, stating a period of not
less than 28 days after the notice is given during which any amount repaid must
be paid to the cooperative; and
(b) publish a general notice to that effect in a newspaper circulating
generally in the district where the registered office of the cooperative is
located.
141 Entitlement
to distribution from reserves
A person whose membership of a cooperative has been cancelled under this
part is taken to still be a member for any distribution from reserves of the
cooperative that takes place within 5 years after the day the person’s
membership was cancelled.
142 Registrar
may give exemptions for div 6.5
The registrar may, in writing, exempt a cooperative from this division or a
provision of this division.
Division
7.1 Nature of share in
cooperative
(1) A share or other interest in a cooperative—
(a) is personal property; and
(b) is transferable or transmissible as provided under this Act and the
rules of the cooperative; and
(c) is, subject to the rules of the cooperative, capable of devolution by
will or by operation of law.
(2) Subject to subsection (1)—
(a) the laws applying to ownership of and dealing with personal property
apply to a share or other interest of a member in a cooperative as they apply to
other property; and
(b) equitable interests in relation to a share or other interest of a
member in a cooperative may be created, dealt with and enforced as in the case
of other personal property.
144 Disclosure
to intending shareholders
(1) The board of a trading cooperative must give to a person who intends
to acquire shares in the cooperative and is not already a shareholder in the
cooperative a current disclosure statement that—
(a) has been approved by the registrar under section 20; or
(b) contains the particulars required by subsection (6) and has been filed
by the cooperative with the registrar.
(2) The disclosure statement must be given before the person becomes bound
to acquire the shares.
(3) The disclosure statement is in addition to any information required to
be provided to the person under part 4 (Membership).
(4) A disclosure statement is current until the first happening, after it
is prepared, of 1 of the following:
(a) a change in the rights or liabilities attaching to any class of shares
in the cooperative;
(b) a significant change in the financial position or prospects of the
cooperative;
(c) any of the next financial records, financial statements or
auditor’s reports required to be prepared under section 240 becomes
available.
(5) If a disclosure statement stops being a current disclosure statement
because of the happening of a change mentioned in subsection (4) (a)
or (b), the cooperative must, within 14 days after the day of the
change—
(a) give the registrar written notice that the disclosure statement is no
longer current because of a change mentioned in subsection (4) (a) or (b);
or
(b) file with the registrar a current disclosure statement that complies
with this Act.
(6) For subsection (1) (b), the following particulars are
required:
(a) a statement of the rights and liabilities attaching to shares in the
cooperative;
(b) if there has been a significant change in the financial position or
prospects of the cooperative since the date of the last annual report—any
information about the financial position and prospects of the
cooperative;
(c) any other information that the registrar orders.
145 Last
annual report to be sent with disclosure statement
A disclosure statement given to a person under section 144 (1)
must have with it a copy of the last annual report of the cooperative, unless a
copy of the report—
(a) has already been given to the person under this Act; or
(b) has been made available for inspection by notice to the person given
under section 73 (2) (Cooperative to provide information to person
intending to become a member).
146 Registrar
may give exemptions for div 7.2
(1) The registrar may, in writing, exempt the board of a trading
cooperative from this division or a provision of this division.
(2) The registrar may give the exemption only if the registrar is
satisfied that compliance would be inappropriate in the circumstances or would
impose an unreasonable burden.
Division
7.3 Issue of shares in
cooperative
147 Issue
of shares generally
(1) The share capital of a cooperative varies in amount according to the
nominal value of shares from time to time subscribed.
(2) Shares must be of a fixed amount that is specified in the rules of the
cooperative.
(3) A cooperative may have more than 1 class of shares provided the
shareholding and the rights of shareholders comply with the cooperative
principles.
(4) Subject to this part and part 4 (Membership), shares must not be
issued to a nonmember.
148 Minimum
paid-up amount
(1) A share may be allotted only if at least 10% of the nominal value of
the share has been paid.
(2) Any balance unpaid in relation to shares at the time of allotment must
be paid in a way provided under the cooperative’s rules or this
Act.
(3) This section does not apply to a bonus share issued under
section 153 (Bonus share issues to members) or section 274 (Distribution of
surplus or reserves to members).
149 Shares
not to be issued at discount
A cooperative must not issue shares at a discount.
150 Issue
of shares at premium
(1) A trading cooperative may issue shares at a premium.
(2) A premium may be in the form of cash or other valuable
consideration.
(3) If a trading cooperative issues shares for which it receives a
premium, an amount equal to the aggregate amount or value of the premiums on the
shares must be transferred to a share premium account.
(4) The share premium account is taken to be paid-up share capital of the
trading cooperative and may be applied in any 1 or more of the following
ways:
(a) in paying up unissued shares to be issued to members of the
cooperative as fully-paid bonus shares;
(b) in paying up in whole or part the balance unpaid on shares previously
issued to members of the cooperative;
(c) in the payment of dividends, if those dividends are satisfied by the
issue of shares to members of the cooperative;
(d) in writing off the preliminary expenses of the cooperative;
(e) in providing for the premium payable on redemption of shares or
debentures.
151 Joint
ownership of shares
A share may be held by 2 or more people jointly unless the rules of the
cooperative provide otherwise.
152 Members
may be required to take up additional shares
(1) If authorised by the rules of the cooperative, the board of a trading
cooperative may require a member to take up or subscribe for additional shares
in accordance with a proposal approved by a special resolution of the
cooperative.
(2) The board of a trading cooperative may deduct amounts, in payment for
additional shares from amounts owing to members in relation to dealings with the
cooperative, in accordance with a proposal approved by a special resolution of
the cooperative.
(3) Any proposal to require a member to take up or subscribe for
additional shares must—
(a) be accompanied by a disclosure statement, approved in writing by the
registrar, that explains the purpose for which the funds raised by the issue of
the additional shares are to be used; and
(b) clearly show the total number of additional shares to be issued and
the basis on which the shares are to be apportioned among members; and
(c) be accompanied by a statement telling the member that the member may
tell the board, by notice given to the board on or before the date stated in the
statement, that the member resigns on the passing of the special
resolution.
(4) The date stated in the statement must be a date before the passing of
the special resolution.
(5) Any proposal to deduct amounts in payment for additional shares from
amounts owing to members in relation to their dealings with the trading
cooperative must clearly show—
(a) the basis on which the deductions are to be made; and
(b) the time and way of making the deductions.
(6) A proposal approved under this section is binding on—
(a) every member of the trading cooperative on the date of the passing of
the special resolution, other than a member who has given a notice of
resignation in accordance with subsection (3) (c); and
(b) everyone who becomes a member of the trading cooperative after that
date and before the total number of shares to be issued in accordance with the
proposal has been issued.
(7) Section 20 (except subsections (2), (4) and (9)) applies to the
approval of a disclosure statement under this section with any necessary changes
and, in particular, as if a reference in the section to a formation meeting were
a reference to the special resolution.
(8) In this section:
share does not include a bonus share if it is issued, or
proposed to be issued, under a rule of the cooperative authorised by
section 274 (1) (Distribution of surplus or reserves to members).
153 Bonus
share issues to members
(1) The rules of a trading cooperative may authorise the issue of bonus
shares to members of the cooperative if assets of the
cooperative—
(a) have been sold at a profit; or
(b) have been revalued at a greater value than that disclosed before the
revaluation in the books of the cooperative.
(2) This section does not—
(a) apply if the assets were acquired for resale at a profit; or
(b) affect the operation of section 274 (Distribution of surplus or
reserves to members).
154 Restrictions
on bonus shares
Bonus shares under section 153 may be issued in accordance with the rules
of the cooperative subject to the following restrictions:
(a) each issue must have been approved by a special resolution of the
cooperative;
(b) they are to be issued as fully paid-up shares with no payment required
to be made by a member of the cooperative to whom they are issued;
(c) they are to be issued only in relation to shares of the same class of
shares that are fully paid up as at the date of issue of the bonus
shares;
(d) the total nominal value of bonus shares issued by a cooperative during
any 1 year period must not exceed 20% (or, if another percentage is prescribed
under the regulations, that percentage) of the nominal value of the issued share
capital of the cooperative immediately before the date of issue of the bonus
shares.
155 Notice
of resolution for bonus share issue
Notice of the meeting or postal ballot at which a resolution is to be
proposed as a special resolution for the purpose of approving a bonus share
issue must be accompanied by—
(a) a statement of the value of the assets concerned as disclosed in the
books of the cooperative before the sale or revaluation; and
(b) if the issue arises from, or partly from, a sale of assets—a
statement of the price for which the assets were sold; and
(c) if the issue arises from, or partly from, a revaluation of
assets—a certificate of value of the assets that is provided for a
valuation made not more than 1 year before the date of the notice by a person
prescribed under the regulations; and
(d) particulars of acquisitions of shares in the cooperative made during
the 3 years immediately before the date of the notice by or on behalf of each of
its directors and his or her spouse and the father, mother, children, brothers
and sisters of each director and spouse; and
(e) a certificate signed by 2 directors of the cooperative stating that to
the best of their knowledge and belief the issue of bonus shares would not be
imprudent and that no circumstances are known to them about why the issue should
not take place.
Division
7.4 Beneficial and non-beneficial
interests in shares
156 Notice
of non-beneficial ownership at time of transfer
(1) If it may reasonably be expected (having regard to all relevant
circumstances) that on registration of a transfer of shares the transferee will
hold some or all of the shares non-beneficially, the instrument of transfer must
include a non-beneficial ownership notice.
(2) A non-beneficial ownership notice is a notice
that—
(a) contains a statement to the effect that, on registration of the
transfer, the transferee will hold particular shares non-beneficially;
and
(b) states particulars of the shares; and
(c) is signed by or on behalf of the transferee.
(3) If an instrument of transfer is given, by or on behalf of the
transferee, to the cooperative for registration, the transferee must ensure that
this section is complied with.
Maximum penalty: 10 penalty units.
(4) An offence against this section does not affect the validity of the
registration of a transfer of shares.
157 Notice
of non-beneficial ownership not notified at time of
transfer
(1) If on the registration of an instrument of transfer of shares the
transferee holds non-beneficially any of the shares transferred, notice of that
fact must be given to the cooperative.
(2) The notice must—
(a) set out the name and address of the transferee; and
(b) contain a statement to the effect that, as from registration of the
transfer, the transferee holds the shares non-beneficially; and
(c) set out particulars of the shares; and
(d) be signed by or on behalf of the transferee.
(3) The notice must be given within 14 days after the registration of the
transfer (even if before the end of that 14 days the transferee begins to hold
any of the relevant shares beneficially).
(4) The transferee of the shares must ensure that this section is complied
with.
Maximum penalty: 10 penalty units.
(5) This section does not apply in relation to any shares for which
particulars were set out in a non-beneficial ownership notice under section 156
included in the instrument of transfer.
158 Registration
as beneficial owner of shares notified as non-beneficially
transferred
(1) If an instrument of transfer of shares given to a cooperative includes
a non-beneficial ownership notice under section 156 in relation to particular
shares but on registration of the transfer the transferee holds some or all of
those shares beneficially, notice of that fact must be given to the
cooperative.
(2) The notice must—
(a) state the name and address of the transferee; and
(b) contain a statement to the effect that, as from registration of the
transfer, the transferee holds the relevant shares beneficially; and
(c) state particulars of the shares held beneficially; and
(d) be signed by or on behalf of the transferee.
(3) The notice must be given within 14 days after the day of the
registration of the transfer (even if before the end of that 14 days the
transferee begins to hold any of the relevant shares
non-beneficially).
(4) The transferee of the shares must ensure that this section is complied
with.
Maximum penalty (subsection (4)): 10 penalty units.
159 Notification
of change in nature of shareholding
(1) A person must notify the cooperative in accordance with this section
of the change in the person’s shareholding in the cooperative if the
person—
(a) begins to hold any shares beneficially that the person currently holds
non-beneficially; or
(b) begins to hold any shares non-beneficially that the person currently
holds beneficially.
Maximum penalty: 10 penalty units.
(2) The notice must—
(a) state the name and address of the person; and
(b) contain a statement to the effect that, as from the time of the
change, the person holds the shares beneficially or non-beneficially (as
appropriate); and
(c) state the time of the change and particulars of the shares affected;
and
(d) be signed by or on behalf of the person.
(3) The notice must be given within 14 days after the day the change
happens (even if before the end of that 14 days another such change affecting
any of the shares happens).
160 Presumption
of awareness
(1) For this division, a person is, unless the contrary is established,
presumed to have been aware at a particular time of a circumstance of which an
employee or agent of the person was aware at that time.
(2) Subsection (1) only applies if the employee or agent has duties or
acts in relation to the transfer to, or ownership by, the person of shares in
the cooperative concerned.
161 Presumption
that shares held non-beneficially
(1) A person who holds particular shares is taken to hold the shares
non-beneficially if the person—
(a) holds the shares in a capacity other than that of sole beneficial
owner; or
(b) without limiting paragraph (a), holds the shares as trustee for, as
nominee for, or otherwise on behalf of or on account of, someone else.
(2) A person who holds particular shares is taken to hold the shares
beneficially at a particular time unless the person holds the shares
non-beneficially at that time.
162 Noting
of beneficial and non-beneficial interests in register of
members
(1) The register of members kept by a cooperative must contain a statement
of the shares that each member holds beneficially and of the shares that each
member holds non-beneficially.
(2) In deciding, for an entry in the register, whether a member of a
cooperative holds shares beneficially or non-beneficially, regard is to be had
only to the following information:
(a) information contained in a non-beneficial ownership notice under
section 157 included in an instrument of transfer registered by the
cooperative;
(b) information contained in a notice given to the cooperative under any
other provision of this division.
163 Registration
as trustee etc on death of owner of shares
(1) A trustee, executor or administrator of the estate of a dead person
who was the registered holder of a share in a cooperative may be registered as
the holder of that share as trustee, executor or administrator of the
estate.
(2) A trustee, executor or administrator of the estate of a dead person
who was entitled in equity to a share in a cooperative may, with the agreement
of the cooperative and of the registered holder of the share, be registered as
the holder of the share as trustee, executor or administrator of that
estate.
164 Registration
as administrator of estate on incapacity of shareholder
(1) This section applies to a person (the appointed person)
who is appointed under a guardianship law to administer the estate of someone
(the incapable person).
(2) If the incapable person is the registered holder of a share in a
cooperative, the appointed person may be registered as the holder of that share
as administrator of the estate of the incapable person.
(3) If the incapable person is entitled in equity to a share in a
cooperative, the appointed person may, with the agreement of the cooperative and
of the registered holder of that share, be registered as the holder of the share
as administrator of the estate of the incapable person.
(4) In this section:
guardianship law means a law of a State or Territory relating
to the administration of the estates of people who, through mental or physical
infirmity, cannot manage their affairs.
165 Registration
as official trustee in bankruptcy
(1) This section applies if a share in a cooperative that is the property
of a bankrupt vests under the Bankruptcy Act 1966 (Cwlth) in the Official
Trustee in Bankruptcy (the official trustee).
(2) If the bankrupt is the registered holder of the share, the official
trustee may be registered as the holder of that share as the Official Trustee in
Bankruptcy.
(3) If the bankrupt is entitled in equity to the share, the official
trustee may, with the agreement of the cooperative and of the registered holder
of the share, be registered as the holder of that share as the Official Trustee
in Bankruptcy.
166 Liabilities
of person registered as trustee or administrator
(1) A person registered under section 163, 164 or 165 is, while so
registered, subject to the same liabilities in relation to the share as those to
which the person would have been subject if the share had remained, or had been,
registered in the name of the dead person, the incapable person or the
bankrupt.
(2) The person registered is subject to no other liabilities in relation
to the share.
167 Notice
of trusts in register of members
Shares held by a trustee in relation to a particular trust may, with the
agreement of the cooperative, be marked in the register of members in a way that
identifies the shares as being held in relation to the trust.
168 No
notice of trust except as provided in div 7.4
Except as provided in this division—
(a) no notice of a trust, whether express, implied or constructive, is to
be entered on a register or be receivable by the registrar; and
(b) no liabilities are affected by anything done under this division;
and
(c) nothing done under this division affects a cooperative with notice of
a trust.
Division
7.5 Sale or transfer of
shares
169 Sale
or transfer of shares
(1) A share in a cooperative may be sold or transferred
only—
(a) in accordance with division 4.3 and section 170, on the death of a
member; or
(b) to a person appointed to administer the estate of a shareholder under
a law of a State or Territory relating to the administration of the estates of
people who, through mental or physical infirmity, cannot manage their affairs;
or
(c) with the board’s agreement, to any person if there are
reasonable grounds for believing that the person will be an active member of the
cooperative.
(2) A share in a cooperative may be sold or transferred only in accordance
with the rules of the cooperative.
170 Transfer
on death of member
(1) On the death of a member, the member’s share in the cooperative
may be transferred to a person other than an administrator or executor only with
the agreement of the board of the cooperative.
(2) The board may only give its agreement under subsection (1) if there
are reasonable grounds for believing that the person will be an active member of
the cooperative.
171 Restriction
on total shareholding
The board of a cooperative must not agree under section 169 or 170 to the
sale or transfer of a share if, because of the sale or transfer, the nominal
value of the shares held by the purchaser or transferee would
exceed—
(a) 20% of the nominal value of the share capital of the cooperative;
or
(b) if a lower percentage is provided under the rules of the
cooperative—the lower percentage of the nominal value of the share capital
of the cooperative.
172 Transfer
not effective until registered
A transferor of a share remains the holder of the share until the transfer
is registered and the name of the transferee is entered in the register of
members in relation to the share.
Division
7.6 Repurchase of
shares
173 Purchase
and repayment of shares
(1) The rules of a cooperative may authorise the cooperative
to—
(a) buy any share of a member in the cooperative at the request of the
member; and
(b) repay to a member, with the member’s agreement, all or any part
of the amount paid up on any share held by the member if the amount repaid is
not required for the activities of the cooperative.
(2) The amount paid by a cooperative under this section in buying shares
or repaying any amount paid up on shares, or both, in any financial year of the
cooperative must not exceed the total of—
(a) 5% of the nominal value of the issued share capital of the cooperative
immediately before the beginning of the financial year; and
(b) the amount of any additional share capital of the cooperative
subscribed for during the financial year.
(3) The members of a cooperative may by special resolution exempt a
cooperative from the operation of subsection (2) in relation to a particular
financial year, either unconditionally or subject to conditions.
(4) The amount paid for a share when it is repurchased may be an amount
decided by the board that is less than the nominal value of the share but
only—
(a) if the books of the cooperative disclose that the amount paid is the
net shareholder’s equity per share in the undertaking of the cooperative;
or
(b) in accordance with the rules of the cooperative.
(5) This section does not apply if the member has resigned or has been
expelled from the cooperative or the member’s membership has been
otherwise cancelled.
(6) A cooperative must not repurchase shares, or repay amounts paid up on
shares, if—
(a) the cooperative would be likely to become insolvent because of the
repurchase or repayment; or
(b) the cooperative is insolvent.
174 Deposit
or debentures instead of payment when share repurchased
(1) If a cooperative repurchases a share of a member, the cooperative may
instead of paying the purchase price to the member—
(a) for a deposit-taking cooperative—apply the amount as an
interest-bearing deposit by the member with the cooperative; or
(b) allot or issue debentures of the cooperative to the member in
satisfaction of the amount.
(2) Subsection (1) applies only if—
(a) the board is of the opinion that payment of the repurchase price would
adversely affect the financial position of the cooperative; or
(b) the board and the member agree.
(3) The deposit or debenture bears interest during any
period—
(a) for a cooperative with share capital—
(i) at the rate (or, if there is more than 1 rate, at the higher or
highest rate) of dividend payable in relation to the period on the share capital
of the cooperative; or
(ii) if the rate of dividend payable in relation to the period has not
been decided—at the rate (or the higher or highest rate) payable in
relation to the last period for which a rate has been decided; or
(iii) if a rate of dividend has never been decided in relation to the
share capital of the cooperative—at the rate that the board of the
cooperative considers reasonable; or
(b) for a cooperative without share capital—at the rate that the
board of the cooperative considers reasonable; or
(c) if the rules provide for a rate to be payable that is higher than the
rate applying under paragraph (a) or (b)—at the higher rate.
(4) The deposit or debenture must be repaid to the member as soon as
repayment would not, in the board’s opinion, adversely affect the
financial position of the cooperative.
(5) The deposit or debenture must in any case be repaid within 10 years
(or, if the rules of the cooperative provided for a shorter period, the shorter
period) after the repurchase of the shares.
175 Cancellation
of shares
A cooperative must cancel any share purchased by or forfeited to the
cooperative in accordance with this Act or the rules of the
cooperative.
Part
8 Voting and
meetings
Division
8.1 Voting
entitlements
The provisions of this part apply to voting on all resolutions.
(1) The right to vote attaches to membership and not
shareholding.
(2) Each member of a cooperative has only 1 vote at a meeting of the
cooperative.
(3) However, if its rules so provide, a member of an association or
federation may have the number of votes at a general meeting (up to 5)
provided in the rules.
(4) Also, if the rules so provide, the chairperson has a second vote at a
board meeting or general meeting.
(5) In the case of joint membership—
(a) the joint members have only 1 vote between them; and
(b) that vote may be exercised (subject to the grant of a proxy or power
of attorney) only by the joint member decided in accordance with the
rules.
(6) If shares are held jointly, each member (other than a joint member)
holding the share is entitled to vote at a general meeting.
(1) If the rules so provide, voting may be by proxy at a general
meeting.
(2) The instrument of proxy may state how a proxy must vote in relation to
a particular resolution.
(3) The proxy must vote in the way authorised by an instrument of proxy
mentioned in subsection (2).
(4) A person may act as a proxy only if the person—
(a) is an active member of the cooperative; or
(b) for an association or a federation—is entitled to represent a
component cooperative or association of the association or federation on the
association or federation.
(5) A person must not act as proxy for more than 10 people (or, if the
rules of the cooperative provide for a lesser number, that number of people) on
any single occasion.
(6) Subsection (5) does not apply if the proxy acts under an instrument of
proxy mentioned in subsection (2).
179 Restriction
on voting entitlement under power of attorney
A person is not entitled to exercise, under a power of attorney, the power
of a member of the cooperative to vote if the person has the power in relation
to another member of the cooperative under another power of attorney.
180 Restriction
on voting by representatives of corporations
A person is not entitled to exercise, as the representative of a
corporation, the power of a corporation member of the cooperative to vote if the
person has the power as the representative of another corporation member of the
cooperative.
181 Inactive
members not entitled to vote
A member is not entitled to vote if the member is not an active member of
the cooperative.
182 Control
of right to vote
(1) A person must not directly or indirectly control the exercise of the
right to vote of a member.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) If a person controls the exercise of the right to vote of a member at
a meeting of a cooperative the following votes are invalid:
(a) the vote of the member;
(b) the vote of the person, if the person is a member.
(3) This section does not prevent the exercise of a vote by proxy or power
of attorney.
183 Effect
of disposal of shares on voting rights
A member of a cooperative cannot vote if the member has sold or
transferred, or disposed of the beneficial interest in, the member’s
shares, or has agreed to do so.
184 Effect
of relevant share and voting interests on voting rights
(1) A member of a cooperative is not entitled to vote if someone else
(whether or not a member of the cooperative) has a relevant interest in any
share held by the member or in the right to vote of the member.
(2) A member who is not entitled to vote because of this section may apply
to the registrar to review the matter.
(3) The registrar may order that the member is entitled to vote if the
registrar is satisfied in the circumstances of the case that loss of the right
to vote would be unjust or unreasonable.
185 Rights
of representatives to vote
A person appointed as provided by this Act to represent a member of a
cooperative, association or federation—
(a) is entitled to receive notice of all meetings in the same way as the
member represented; and
(b) is entitled to exercise the same rights to vote as the member
represented; and
(c) is eligible to be elected to the board if the member represented holds
the qualifications required for holding office as a director (other than any
relating to age).
186 Other
rights etc of members not affected by ineligibility to vote
A provision of this Act that disentitles a member of a cooperative to vote
(either generally or in relation to a particular matter) does not affect any
other right, entitlement, obligation or duty of the member as a
member.
187 Vote
of disentitled member to be disregarded
Any vote cast by or on behalf of a member of a cooperative who is not
entitled to vote must be disregarded.
188 Decisions
generally to be by ordinary resolution
Except as otherwise provided under this Act or the rules of the
cooperative, every question for decision by a cooperative must be decided by
ordinary resolution.
An ordinary resolution is a resolution of a cooperative passed by a simple
majority at a general meeting of the cooperative or in a postal ballot of
members.
(1) A special resolution is a resolution of a cooperative
passed—
(a) by a 2/3
majority at a general meeting of members; or
(b) by a 2/3
majority in a postal ballot (other than a special postal ballot) of members;
or
(c) by a 3/4
majority in a special postal ballot of members.
(2) A special resolution may be passed by a postal ballot only
if—
(a) the rules of the cooperative allow the resolution to be passed by a
postal ballot; or
(b) this Act requires the resolution to be passed by postal ballot
(including a special postal ballot).
(3) A resolution is passed as a special resolution only if not less than
21 days notice has been given to the members of the cooperative
stating—
(a) the intention to propose the special resolution; and
(b) the reasons for the making of the special resolution; and
(c) the effect of the special resolution being passed.
(4) A cooperative must give at least 28 days notice to the registrar of a
proposed special resolution before giving notice to the members of the proposed
special resolution.
Maximum penalty: 20 penalty units.
(5) A failure to give notice to the registrar under subsection (4) does
not affect the validity of the resolution.
(1) A resolution is passed by a particular majority at a meeting if that
majority of the members of the cooperative who are entitled to vote at the
meeting vote in favour of the resolution (in person or, if proxies are allowed,
by proxy).
(2) A resolution is passed by a particular majority in a postal ballot if
that majority of the members of the cooperative who are entitled to vote in the
postal ballot cast formal votes in favour of the resolution.
192 Disallowance
by registrar
The registrar may, by notice to the cooperative, disallow a proposed
special resolution before it is passed if the registrar is of the opinion that
the effect of the special resolution if passed would be in contravention of this
Act or any other law.
193 Declaration
of passing of special resolution
(1) At a meeting of a cooperative, a declaration by the chairperson of the
meeting that a resolution has been passed as a special resolution is conclusive
evidence of the fact.
(2) A declaration by the returning officer for a postal ballot for a
special resolution that the resolution has been passed as a special resolution
is conclusive evidence of that fact.
(3) Subsection (1) does not apply if a poll is taken at the meeting of the
cooperative.
194 Effect
of special resolution
(1) A special resolution takes effect on the day it is passed.
(2) However, a special resolution does not take effect until it is
registered if it relates to any of the following matters:
(a) the removal of an auditor;
(b) the expulsion of a member;
(c) anything for which a special resolution is required to be passed by
special postal ballot.
195 Filing
of special resolution
(1) A cooperative must apply to the registrar for registration of each
special resolution passed by the cooperative.
Note A fee may be determined under s 467 (Determination of fees) for
this section.
(2) The application is made by filing 2 copies of the special resolution
with the registrar in accordance with this section.
(3) The copies must—
(a) be filed within 28 days after the day the special resolution is passed
or, if the registrar allows a further period, the further period; and
(b) be signed by a director and the secretary of the
cooperative.
(4) A cooperative that, and any officer of the cooperative who, knowingly
fails to file the required copies in accordance with this section commit an
offence.
Maximum penalty: 20 penalty units.
(5) This section and section 196 do not apply to a special resolution
altering the rules of a cooperative.
196 Decision
of registrar on application to register special resolution
(1) If the registrar is satisfied that the cooperative has complied with
this Act in relation to a resolution, and that the resolution is not contrary to
this Act, the registrar must register the resolution.
(2) If the registrar is of the opinion that the effect of a special
resolution filed for registration would be in contravention of this Act or any
other law, the registrar may—
(a) refuse to register the special resolution; and
(b) give notice to the cooperative that the special
resolution—
(i) for a special resolution mentioned in section 194 (2) (a),
(b) or (c)—has no effect; and
(ii) for any other special resolution—has no effect as from the day
it was passed.
(3) A certificate of registration of a special resolution given by the
registrar is, in favour of any person advancing money to the cooperative on the
faith of the certificate or in favour of any guarantor of that advance,
conclusive evidence that the resolution was properly passed.
Division
8.3 Resolution by circulated
document
197 Application
of div 8.3
(1) This division applies to a resolution of a cooperative (including a
resolution appointing an officer or auditor or approving, or agreeing to,
anything) if—
(a) the cooperative has fewer than 50 members; and
(b) the resolution is required or permitted under this Act or the rules of
the cooperative to be passed at a general meeting of the cooperative.
(2) However, this division does not apply to a resolution
if—
(a) more than 14 days notice of the resolution is required under this Act
to be given; or
(b) the resolution is required to be passed by a majority other than a
simple majority.
198 Resolution
by circulation of document
(1) If all the members of a cooperative have signed a document that sets
out the terms of the resolution and contains a statement that they are in favour
of the resolution, the resolution is taken to have been passed at a general
meeting of the cooperative.
(2) The document need not exist as a single document, but may exist in the
form of 2 or more documents in identical terms.
(3) The document is taken to constitute a minute of the general
meeting.
(4) Anything attached to the document and signed by the members signing
the document is taken to have been presented to the cooperative at the general
meeting.
(5) The document is taken to have been signed by all the members when the
last member signs the document.
(6) The meeting mentioned in subsection (1) is taken to have been held on
the day, and at the time, when the last member to sign the document does
so.
(7) This section does not affect any rule of law about the effectiveness
of the assent of members of a cooperative given to a document, or to anything
else, otherwise than at a general meeting of a cooperative.
Division
8.4 Postal
ballots
(1) A postal ballot may be held as provided by the rules of a cooperative
and must be conducted in accordance with the regulations.
(2) On the declaration by the returning officer of the result of the
ballot, the secretary of the cooperative must make an entry in the minute book
of the cooperative showing—
(a) the number of formal votes cast in favour of the proposal;
and
(b) the number of formal votes cast against the proposal; and
(c) the number of informal votes cast.
200 Special
postal ballots
(1) A special postal ballot is a postal ballot conducted as required by
this section.
(2) The ballot must be held not earlier than 21 days after notice of the
ballot is given to members.
(3) The cooperative must send to each member (along with any other
material required to be sent in relation to the postal ballot) a disclosure
statement that is approved in writing by the registrar and contains information
about—
(a) the financial position of the cooperative; and
(b) the interests of the directors of the cooperative in the proposal with
which the ballot is concerned (including any interests of the directors in
another organisation concerned in the proposal); and
(c) any compensation or consideration to be paid to officers or members of
the cooperative in relation to the proposal; and
(d) anything else the registrar directs.
(4) If the registrar requires, the statement must be accompanied by a
report made by an independent person approved in writing by the registrar about
anything that the registrar directs.
(5) Section 20 (except subsections (2), (4) and (9)) applies to the
approval of a disclosure statement under this section with any necessary changes
and, in particular, as if any reference in the section to a formation meeting
were a reference to the notice of the special postal ballot.
201 When
special postal ballot required
In addition to any requirement of this Act, the rules of a cooperative must
require a special postal ballot to be conducted for the purpose of passing a
special resolution in relation to any of the following matters relating to a
cooperative:
(a) conversion of—
(i) a share capital cooperative to a non-share capital cooperative or vice
versa; or
(ii) a trading cooperative to a non-trading cooperative or vice
versa;
(b) transfer of incorporation;
(c) an acquisition or disposal of assets mentioned in section
276;
(d) the maximum permissible level of share interest in the
cooperative;
(e) takeover;
(f) merger;
(g) transfer of engagements;
(h) members’ voluntary winding-up.
202 Holding
of postal ballot on requisition
(1) The board of a cooperative must conduct a postal ballot (including a
special postal ballot) for a special resolution on the written requisition of
the number of members who together can cast at least 20% (or, if a lesser
percentage is provided under the rules of the cooperative, the lesser
percentage) of the total number of votes that can be cast at a meeting of the
cooperative.
(2) A member is entitled to be a requisitioning member only if the member
is an active member.
(3) A requisition for a postal ballot must—
(a) state—
(i) the proposed special resolution to be voted on; and
(ii) the reasons for the making of the special resolution; and
(iii) the effect of the special resolution being passed; and
(b) be signed by the requisitioning members (and may consist of several
documents in like form each signed by 1 or more of the requisitioning members);
and
(c) be served on the cooperative by being lodged at the registered office
of the cooperative.
(4) The postal ballot must be conducted as soon as practicable and in any
case must be conducted within 2 months after the requisition is
served.
(5) If the special resolution for which the requisitioned postal ballot is
conducted is not passed, the cooperative may recover the expenses of the postal
ballot from the members who requisitioned the postal ballot as a debt owing to
the cooperative.
203 Expenses
involved in postal ballots on requisition
(1) For section 202, the expenses of the postal ballot are all reasonable
expenses incurred by a cooperative in relation to preparing for and holding a
special postal ballot.
(2) The expenses include (but are not limited to) the following
expenses:
(a) the cost of obtaining expert advice (including legal and financial
advice) and of commissioning expert reports;
(b) costs attributable to the use of staff of the cooperative in relation
to preparing for and holding the ballot;
(c) the cost of producing, printing and posting the ballot papers and
other material associated with the ballot.
204 Annual
general meetings
(1) A cooperative must hold an annual general meeting
within—
(a) 5 months after the end of each financial year of the cooperative;
or
(b) if further time is allowed by the registrar or prescribed under the
regulations—that further time.
(2) However, the first annual general meeting of a cooperative must be
held within—
(a) 18 months after the cooperative’s incorporation; or
(b) if a longer time applies under subsection (1)—that longer
time.
205 Special
general meetings
A special general meeting of a cooperative may be called at any time by the
board.
The board must give each member at least 14 days notice of each general
meeting.
(1) The quorum for a meeting of a cooperative must be specified in the
rules.
(2) An item of business may be transacted at a meeting of a cooperative
only if a quorum of members entitled to vote is present during the transaction
of that item.
208 Decisions
at meetings
(1) A question for decision at a general meeting must be decided by a
majority of members present in person at the meeting and voting, but this is
subject to any other provision of this Act and the rules of the
cooperative.
(2) A poll must be held if required by at least 5 members.
(3) Unless a poll is held, a question for decision at a general meeting
must be decided by a show of hands.
(4) If the votes are equal, whether on a show of hands or on a poll, the
chairperson of the meeting may exercise a second or casting vote if the rules so
provide.
209 Calling
of general meeting on requisition
(1) The board of a cooperative must call a general meeting of the
cooperative on the written requisition of the number of members who together can
cast at least 20% (or, if a lesser percentage is provided under the rules of the
cooperative, the lesser percentage) of the total number of votes that can be
cast at a meeting of the cooperative.
(2) A member is entitled to be a requisitioning member only if the member
is an active member.
(3) A requisition for a general meeting must—
(a) state the objects of the meeting; and
(b) be signed by the requisitioning members (and may consist of several
documents in like form each signed by 1 or more of the requisitioning members);
and
(c) be served on the cooperative by being lodged at the registered office
of the cooperative.
(4) The meeting must be called and held as soon as practicable and in any
case must be held within 2 months after the day the requisition is
served.
(5) If the board does not call the meeting within 21 days after the
requisition is served, the following provisions apply:
(a) the requisitioning members (or any of them representing at least half
their aggregate voting rights) may call the meeting in the same way as nearly as
possible as meetings are called by the board;
(b) for that purpose they may ask the cooperative to supply a written
statement setting out the names and addresses of the people entitled when the
requisition was served to receive notice of general meetings of the
cooperative;
(c) the board must send the requested statement to the requisitioning
members within 7 days after the day the request for the statement is
received;
(d) the meeting called by the requisitioning members must be held not
later than 3 months after the requisition is served;
(e) any reasonable expenses incurred by the requisitioning members because
of the board’s failure to call the meeting must be paid by the
cooperative;
(f) any amount required to be paid by the cooperative under paragraph (e)
must be deducted by the cooperative from any amount owing by the cooperative, by
way of fees or other remuneration, to the directors who were in
default.
(1) Minutes of each general meeting, board meeting and subcommittee
meeting must be—
(a) entered in the appropriate records within 28 days after the meeting or
before the next meeting, whichever is sooner; and
(b) confirmed at the next meeting; and
(c) signed by the chairperson of that meeting.
(2) The minutes of each general meeting must be available for inspection
by members.
(3) The rules may provide that the minutes of board meetings and
subcommittee meetings be available for inspection by members.
(4) The minutes must be written in English.
Part
9 Management and administration of
cooperatives
(1) Subject to this Act and the rules of the cooperative, the business of
a cooperative must be managed by a board of directors.
(2) The board of directors may exercise all the functions of the
cooperative that are not, by this Act or the rules of the cooperative, required
to be exercised by the cooperative in general meeting.
(3) The acts of a director are valid despite any defect that may
afterwards be discovered in the director’s appointment or
qualification.
212 Election
of directors
(1) Except as provided in subsections (2), (3) and (4), the directors of a
cooperative are to be elected in the way provided under the rules of the
cooperative.
(2) The first directors of—
(a) a cooperative formed under this Act are to be elected at its formation
meeting; and
(b) a cooperative that was a corporation incorporated under another law
are to be the directors in office on the day of registration under this
Act.
(3) If so authorised by the rules of the cooperative, a board of directors
may appoint a person to fill a casual vacancy in the office of a director until
the next annual general meeting.
(4) A motion approving or nominating 2 or more people for election as
directors may be made by a single resolution at a meeting of a cooperative only
if a resolution that it be made by a single resolution has first been agreed to
by the meeting without any vote being made against it.
(5) If a resolution is passed following a motion in contravention of
subsection (4)—
(a) the resolution is void; and
(b) there is no provision for the automatic re-election of retiring
directors in default of another election.
(6) Subsections (4) and (5) do not apply to a resolution altering the
rules to prevent the election of 2 or more directors by ballot.
(7) A nomination for election or appointment to the office of a director
must provide details of the qualifications and experience of the person
nominated.
(8) Except as provided under this Act or the rules of a cooperative, a
director is eligible for re-election at the end of the director’s term of
office.
213 Qualification
of directors etc
(1) A person is qualified to be a director of a cooperative only if the
person is—
(a) a member of the cooperative or a representative of a corporation that
is a member of the cooperative (a member director); or
(b) an employee of the cooperative or a person qualified as provided under
the rules.
(2) The majority of directors must be member directors.
(3) The rules may require a greater number of directors than a majority
to be member directors.
(4) A cooperative must have at least 3 directors.
(5) At least 2 of the directors must be Australian residents.
(1) A person must not act as a director of a cooperative, or directly or
indirectly take part in or be concerned with the management of a cooperative, if
the person is the auditor of the cooperative or a partner, employee or employer
of the auditor.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) A person must not, except with the Supreme Court’s leave, act as
a director of a cooperative, or indirectly take part in or be concerned with the
management of a cooperative, within 5 years after the day of the person’s
conviction for a disqualifying offence or, if the person was sentenced to
imprisonment for the offence, after the day of the person’s release from
prison.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) For subsection (2), a disqualifying offence is any of
the following offences, whether committed before or after the commencement of
this Act, and whether in or outside the ACT or Australia:
(a) an offence, of which the person has been convicted on indictment, in
relation to the promotion, formation or management of a corporation;
(b) an offence involving fraud or dishonesty punishable by imprisonment
for at least 3 months;
(c) an offence against any of the following sections of the Corporations
Act:
• section 184 (Good faith, use of position and use of
information—criminal offences)
• section 344 (Contravention of part 2M.2 or 2M.3)
• section 590 (Offences by officers of certain companies)
• section 592 (Incurring of certain debts; fraudulent
conduct)
• section 670A (Misstatements in, or omissions from, takeover and
compulsory acquisition and buy-out documents)
• section 728 (Misstatement in, or omission from, disclosure
document);
(d) an offence against a provision of a previous law of the Commonwealth
or a State that corresponds to a section mentioned in paragraph (c).
(4) A person must not act as a director of a cooperative, or directly or
indirectly take part in or be concerned with the management of a cooperative, if
the person—
(a) has been convicted of an offence against this Act within the last 5
years, except with the Supreme Court’s leave; or
(b) is disqualified from managing corporations under the Corporations Act,
part 2D.6 (Disqualification from managing corporations); or
(c) is an insolvent under administration (within the meaning of the
Corporations Act).
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(5) In a proceeding for an offence against subsection (2), a certificate
by an entity prescribed under the regulations stating that a person was released
from prison on a stated date is, in the absence of evidence to the contrary,
proof that the person was released from prison on that date.
(6) A person who intends to apply for leave of the Supreme Court under
this section must give the registrar at least 21 days notice of the
person’s intention.
(7) The Supreme Court may grant leave subject to any condition or
limitation it considers appropriate.
(8) A person must comply with any condition or limitation subject to which
leave is granted.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(9) On the application of the registrar, the Supreme Court may revoke its
leave.
215 Meetings
of board of directors
(1) Meetings of the board of directors are to be held at least once every
3 months and may be held as often as may be necessary.
(2) A meeting of the board may be called by a director giving notice
individually to every other director.
(3) A meeting of the board may be called or held using any technology
consented to by the board.
(4) The consent may be a standing consent.
(5) A quorum of a meeting of the board is 50% of the number of directors
or, if a higher number is provided under the rules of the cooperative, the
higher number.
(6) However, for a quorum the member directors must be greater than the
other directors by at least 1 or, if a higher number is specified by the rules
of the cooperative, the higher number.
(7) The chairperson of the board may be elected either by the board or at
a general meeting of the cooperative, and must be elected, hold office, and
retire, and may be removed from office, as provided by the rules of the
cooperative.
216 Transaction
of business outside meetings
(1) The board of a cooperative may transact any of its business by the
circulation of papers among all of the directors of the board.
(2) A resolution in writing approved in writing by a majority of the
directors of the board is taken to be a decision of the board.
(3) Separate copies of a resolution may be distributed for signing by the
directors if the wording of the resolution and approval is identical in each
copy.
(4) For the purpose of the approval of a resolution under this section,
the chairperson of the board and each director of the board have the same voting
rights as they have at an ordinary meeting of the board.
(5) The resolution is approved when the last director required for the
majority signs.
(6) A resolution approved under this section must be recorded in the
minutes of the meetings of the board within 28 days after the day the resolution
is approved.
(7) Papers may be circulated among directors of the board for this section
by fax or other transmission of the information in the papers.
(1) The rules of a cooperative may authorise the board of the cooperative
to appoint deputies of directors.
(2) The deputy of a director may attend, and speak and vote at, any
meeting of the board from which the director is absent.
(3) The rules of the cooperative may also include provisions regulating,
or authorising the board to regulate, the term of office, vacation of or removal
from office, and remuneration, of a deputy.
If the rules of a cooperative so provide, the board may by resolution
delegate its functions to—
(a) a director; or
(b) a committee of 2 or more directors; or
(c) a committee of members of the cooperative; or
(d) a committee of members of the cooperative and other people if members
are the majority of the committee members.
Note For the making of delegations and the exercise of delegated
functions, see Legislation Act 2001, pt 19.4.
219 Removal
etc of directors
(1) The directors hold office and must retire, and may be removed from
office, as provided by the rules of the cooperative.
(2) A director vacates office in the circumstances (if any) provided under
the rules of the cooperative and in any of the following cases:
(a) if the director is disqualified under section 214 from being a
director;
(b) if the director is absent from 3 consecutive ordinary meetings of the
board without its leave;
(c) if the director resigns the office of director by notice given by the
director to the cooperative;
(d) if the director is removed from office by ordinary resolution of the
cooperative;
(e) if the person ceases to hold the qualification because of which the
person was qualified to be a director;
(f) if an administrator of the cooperative’s affairs is appointed
under division 12.5.
220 Cooperative
to have secretary
(1) A cooperative must have a secretary.
(2) The board of the cooperative must appoint the secretary.
Note For the making of appointments (including acting appointments),
see Legislation Act 2001, div 19.3.
(3) A secretary (including an acting secretary) must be an individual at
least 18 years old and resident in Australia.
Division
9.3 Duties and liabilities of
directors, officers and employees
221 Meaning
of officer in div 9.3
In this division:
officer, of a cooperative, means—
(a) a director or secretary of the cooperative; or
(b) a person who is concerned, or takes part, in the management of the
cooperative, whether or not as a director; or
(c) a receiver, or receiver and manager, of property of the cooperative,
or any other authorised person who enters into possession or assumes control of
property of the cooperative for the purpose of enforcing any charge;
or
(d) an administrator of a deed of arrangement executed by the cooperative;
or
(e) a liquidator or provisional liquidator appointed in a voluntary
winding-up of the cooperative; or
(a) an administrator of the cooperative appointed under the Corporations
Act, part 5.3A (Administration of a company’s affairs with a view to
executing a deed of company arrangement) as applied by this Act; or
(f) a trustee or anyone else administering a compromise or arrangement
made between the cooperative and someone else.
222 Officers
to act honestly
(1) An officer of a cooperative must at all times act honestly, in the ACT
and elsewhere (whether in or outside Australia), in the exercise of the
officer’s functions.
(2) A person who intentionally or recklessly contravenes subsection (1)
commits an offence.
Maximum penalty: 50 penalty units.
(3) A person who contravenes subsection (1) with intent to deceive or
defraud the cooperative, members or creditors of the cooperative or creditors of
anyone else or for any other fraudulent purpose commits an offence.
Maximum penalty: 200 penalty units, imprisonment for 2 years or
both.
223 Standard
of care and diligence required
(1) An officer of a cooperative must, in the exercise of the
officer’s functions, exercise the degree of care and diligence that a
reasonable person in a like position in a cooperative would exercise in the
cooperative’s circumstances.
(2) A person who intentionally or recklessly contravenes subsection (1)
commits an offence.
Maximum penalty: 20 penalty units.
(3) An officer is not liable to be convicted of a contravention of
subsection (1) if the cooperative has resolved by ordinary resolution to excuse
the contravention.
224 Improper
use of information or position
(1) An officer or employee, or former officer or employee, of a
cooperative, or a member of a committee mentioned in section 218, must not
make improper use of information acquired because of his or her position as such
an officer or employee or member to gain, directly or indirectly, an advantage
for himself or herself or for anyone else or to cause detriment to the
cooperative.
Maximum penalty:
(a) if the contravention was committed with intent to deceive or defraud
the cooperative, members or creditors of the cooperative or creditors of anyone
else or for any other fraudulent purpose—200 penalty units, imprisonment
for 2 years or both; and
(b) in any other case—50 penalty units.
(2) An officer or employee of a cooperative, or a member of a committee
mentioned in section 218, must not make improper use of his or her position as
an officer or employee or member, to gain, directly or indirectly, an advantage
for himself or herself or for anyone else or to cause detriment to the
cooperative.
Maximum penalty:
(a) if the contravention was committed with intent to deceive or defraud
the cooperative, members or creditors of the cooperative or creditors of anyone
else or for any other fraudulent purpose—200 penalty units, imprisonment
for 2 years or both; and
(b) in any other case—50 penalty units.
225 Court
may order payment of compensation
(1) If the court that convicts a person for a contravention of a provision
of this division is satisfied that a cooperative has suffered loss or damage
because of the contravention, the court may (in addition to imposing a penalty)
order the convicted person to pay compensation to the cooperative.
(2) An order under subsection (1) takes effect, and may be enforced, as a
judgment of the court.
226 Recovery
of damages by cooperative
(1) If a person contravenes a provision of this division in relation to a
cooperative, the cooperative may, whether or not the person has been convicted
of an offence in relation to the contravention, recover an amount from the
person as a debt owing to the cooperative.
(2) The amount that the cooperative is entitled to recover from the person
is—
(a) if the person or anyone else made a profit because of the
contravention—an amount equal to the profit; and
(b) if the cooperative has suffered loss or damage because of the
contravention—an amount equal to the loss or damage.
227 Other
duties and liabilities not affected
This division is additional to any rule of law relating to the duty or
liability of a person because of the person’s office or employment in
relation to a cooperative and does not prevent the bringing of a civil
proceeding in relation to a breach of the duty or in relation to the
liability.
228 Indemnification
of officers and auditors
(1) A provision exempting an officer or auditor of a cooperative from, or
indemnifying the officer or auditor against, any liability that by law would
otherwise attach to the person in relation to any negligence, default, breach of
duty or breach of trust of which the person may be guilty in relation to the
cooperative is void.
Note For the meaning of provision, see s
(6).
(2) However, a cooperative may, under its rules or otherwise, indemnify an
officer or auditor of the cooperative against any liability incurred by the
person in defending any proceeding, whether civil or criminal—
(a) in which judgment is given in the person’s favour or the person
is acquitted; or
(b) in relation to a liability for which relief is granted under this
section to the person.
(3) A court may relieve an officer or auditor of a cooperative, either
completely or partly, from a relevant liability in relation to a matter relating
to the cooperative, if—
(a) the matter is before the court; and
(b) the court is satisfied that the person—
(i) acted honestly and reasonably; and
(ii) having regard to all the circumstances of the case (including
circumstances in relation to the person’s appointment), the person ought
fairly to be relieved in relation to the relevant liability
Note For the meaning of relevant liability, see s
(6).
(4) The court may make an order under subsection (3) on any conditions
(including conditions about costs) the court considers appropriate.
(5) The Supreme Court may exercise the powers mentioned in subsections (3)
and (4) in relation to an officer or auditor of a cooperative who applies to the
court for relief because—
(a) a claim in a matter relating to the cooperative has been made against
the person; or
(b) the person has reason to believe that a claim of that kind will be
made against the person.
(6) In this section:
officer, of a cooperative, includes an employee of the
cooperative and anyone else authorised under the rules of the cooperative to
give directions in relation to the business of the cooperative.
provision, in relation to cooperative, includes a provision
of the rules of the cooperative, a contract with the cooperative or any other
instrument to which the cooperative is a party (other than a contract of
insurance).
relevant liability means liability for negligence, default or
breach of duty.
229 Application
of Corporations Act—officers of cooperatives
(1) The following provisions of the Corporations Act apply in relation to
a cooperative and its officers:
• part 5.8 (Offences)
• part 5.9 (Miscellaneous), division 1 (Examining a person about a
corporation) and division 2 (Orders against a person in relation to a
corporation)
• section 1307 (Falsification of books).
(2) The provisions apply subject to the change mentioned in subsection
(3).
(3) The Corporations Act, section 592 (1) (a) (Incurring of certain debts;
fraudulent conduct) is taken to be amended by omitting the words ‘before
23 June 1993’.
Division
9.4 Employee
entitlements
230 Application
of Corporations Act—entitlements of cooperative
employees
The Corporations Act, part 5.8A (Employee entitlements) applies to a
cooperative and its employees.
Division
9.5 Restrictions on directors and
officers
231 Directors
remuneration and financial accommodation to officers
(1) A director of a cooperative must not be paid any remuneration for the
director’s services as a director other than fees, concessions and other
benefits approved at a general meeting of the cooperative.
(2) An officer of a cooperative who is not a director of the cooperative
must not obtain financial accommodation from the cooperative other
than—
(a) with the approval of a majority of the directors; or
(b) under a scheme about providing financial accommodation to officers
that has been approved by a majority of the directors.
Maximum penalty: 200 penalty units, imprisonment for 2 years or
both.
(3) For subsection (2), financial accommodation is taken to be obtained by
an officer of a cooperative if it is obtained by—
(a) a proprietary company in which the officer is a shareholder or
director; or
(b) a trust of which the officer is a trustee or beneficiary; or
(c) a trust of which a corporation is trustee if the officer is a director
or other officer of the corporation.
(4) A cooperative must not give financial accommodation to an officer of
the cooperative if—
(a) by giving the financial accommodation, the officer would contravene
subsection (2); and
(b) the cooperative knows or should reasonably know of the
contravention.
Maximum penalty: 500 penalty units.
232 Financial
accommodation to directors and associates
(1) In this section:
associate, of a director, means a person, other than a
director, who is—
(a) the spouse of the director; or
(b) acting in the capacity of a trustee of a trust under
which—
(i) the director or the spouse of the director has a beneficial interest;
or
(ii) a corporation mentioned in paragraph (c) has a beneficial interest;
or
(c) a corporation if—
(i) the director or the spouse of the director has a material interest in
shares in the corporation; and
(ii) the nominal value of the shares is not less than 10% of the nominal
value of the issued share capital of the corporation.
(2) For the definition of associate in subsection (1), a
person has a material interest in a share in a corporation
if—
(a) the person has power to withdraw the share capital subscribed for the
share or to exercise control over the withdrawal of the share capital;
or
(b) the person has power to dispose of or to exercise control over the
disposal of the share; or
(c) the person has power to exercise or to control the exercise of any
right to vote given to the holder of the share.
(3) A cooperative must not provide financial accommodation to a director,
or to a person the cooperative knows or should reasonably know is an associate
of a director, unless—
(a) the accommodation is—
(i) approved under subsection (4); or
(ii) given under a scheme approved under subsection (4); or
(iii) provided on conditions no more favourable to the director or the
associate of a director than the conditions on which it is reasonable to expect
the cooperative would give if dealing with the director or associate at
arm’s length in the same circumstances; and
(b) the directors have approved the accommodation, at a meeting of the
board at which a quorum was present, by a majority of at least
2/3 of the directors
present and voting on the matter.
Maximum penalty: 500 penalty units.
(4) For subsection (3) (a) (i) and (ii), financial accommodation
or a scheme is approved if—
(a) it is approved by a resolution passed at a general meeting;
and
(b) the full details of the accommodation or scheme were made available to
members at least 21 days before the day of the meeting.
(5) A director, or an associate of a director, must not obtain financial
accommodation given in contravention of subsection (3).
Maximum penalty: 200 penalty units, imprisonment for 2 years or
both.
(6) For this section, a concessional rate of interest for a borrower from
a cooperative is a normal condition only if the borrower is entitled to the
concession by being a member of a class of borrowers from the cooperative
specified in its rules as being entitled to the concession.
(7) If a director, or an associate of a director, of a cooperative
accepts, in payment of a debt owed by a member of the cooperative to the
director or associate, any proceeds of financial accommodation provided to the
member by the cooperative, this section has effect as if the financial
accommodation has been provided to the director or associate.
(8) In this section—
(a) a reference to providing financial accommodation to, or the obtaining
of financial accommodation by, a director or an associate of a director includes
a reference to providing financial accommodation to, or the obtaining of
financial accommodation by, the director or associate jointly with someone else;
or
(b) a reference to a debt owed to a director or an associate of a director
includes a reference to a debt owed to the director or associate jointly with
someone else.
233 Restriction
on directors of certain cooperatives selling land to
cooperative
A director of a cooperative the primary activity of which is or includes
the acquisition of land to settle or keep people on the land, and of providing
any community service or benefit, must not sell land to the cooperative except
in accordance with a special resolution of the cooperative.
(1) In this section:
management contract means a contract or other arrangement
under which—
(a) a person who is not an officer of the cooperative agrees to exercise
all, or a substantial part, of the functions of the cooperative, whether or not
under the control of the cooperative; or
(b) a cooperative agrees to exercise all, or a substantial part, of its
functions—
(i) in a particular way; or
(ii) in accordance with the directions of anyone; or
(iii) subject to restrictions or conditions.
(2) A cooperative may enter into a management contract only if the
contract has first been approved by special resolution.
(3) A management contract entered into in contravention of
subsection (2) is void.
Division
9.6 Declaration of
interests
235 Declaration
of interest
(1) A director of a cooperative who is or becomes in any way (whether
directly or indirectly) interested in a contract, or proposed contract, with the
cooperative must declare the nature and extent of the interest to the board
under this section.
Maximum penalty: 200 penalty units, imprisonment for 2 years or
both.
(2) For a proposed contract, the declaration must be made—
(a) at the meeting of the board when the question of entering into the
contract is first considered; or
(b) if the director was not at that time interested in the proposed
contract—at the next meeting of the board held after the director becomes
interested in the proposed contract.
(3) If a director becomes interested in a contract with the cooperative
after it is made, the declaration must be made at the next meeting of the board
held after the director becomes interested in the contract.
(4) For this section, a general notice given to the board by a director is
a sufficient declaration if it is to the effect that the
director—
(a) is a member of an entity stated in the notice; and
(b) is taken to be interested in any contract that may be made with the
entity after the giving of the notice.
(5) A director of a cooperative who holds an office or has an interest in
property under which, whether directly or indirectly, duties or interests might
be created that could conflict with the director’s duties or interests as
director must, in accordance with subsection (6), declare at a meeting of
the board the fact and the nature, character and extent of the
conflict.
Maximum penalty: 200 penalty units, imprisonment for 2 years or
both.
(6) A declaration required by subsection (5) in relation to holding an
office, or having an interest, must be made by a person—
(a) if the person holds the office or has the interest when the person
becomes a director—at the first meeting of the board held after the later
of the following happens:
(i) the person becomes a director;
(ii) the relevant facts about holding the office or having the interest
come to the person’s knowledge; and
(b) if the person begins to hold the office or acquires the interest after
the person becomes a director—at the first meeting of the board held after
the relevant facts about holding the office or having the interest come to the
person’s knowledge.
(7) If a director has made a declaration under this section, then, unless
the board otherwise decides, the director must not—
(a) be present during any deliberation of the board in relation to the
matter; or
(b) take part in any decision of the board in relation to the
matter.
(8) For the making of a decision of the board under subsection (7) in
relation to a director who has made a declaration under this section, the
director must not—
(a) be present during any deliberation of the board for the purpose of
making the decision; or
(b) take part in the making by the board of the decision.
236 Declarations
must be recorded in minutes
Every declaration under this division must be recorded in the minutes of
the meeting at which it was made.
237 Div
9.6 does not affect other laws or rules of cooperative
This division is additional to any rule of law or any provision of the
rules of the cooperative restricting a director from having any interest in
contracts with the cooperative or from holding offices or having properties
involving duties or interests in conflict with the director’s duties or
interests as director.
238 Certain
interests need not be declared
(1) A director of a cooperative is not required to declare, under this
division or the rules of the cooperative, an interest in—
(a) a contract or proposed contract for a purchase of goods and services
by the director from the cooperative; or
(b) a lease of land to the director by the cooperative; or
(c) a contract or proposed contract for the sale of agricultural products
or livestock by the director to the cooperative; or
(d) a contract or proposed contract that, under the rules of the
cooperative, may be made between the cooperative and a member; or
(e) a contract or proposed contract of a class of contracts prescribed
under the regulations.
(2) This section applies only if the contract is made honestly, in the
ordinary course of the business of the cooperative, and on the conditions that
are usual and proper in similar dealings between the cooperative and its
members.
Division
9.7 Financial statements, reports and
audit
239 Meaning
of control and entity for div 9.7
(1) In this division:
control has the same meaning in relation to a cooperative as
it has under the Corporations Act in relation to a corporation.
Note Control is defined in the Corporations Act, s
50AA.
entity has the same meaning in relation to a cooperative as
it has under the Corporations Act in relation to a corporation.
Note Entity is defined in the Corporations Act , s
9.
240 Requirements
for financial records, statements and reports
(1) The following provisions of the Corporations Act apply in relation to
a cooperative:
• part 2F.3 (Inspection of books)
• section 249K (Auditor entitled to notice and other
communications)
• section 249V (Auditor’s right to be heard at general
meetings)
• chapter 2M (Financial reports and audit).
(2) The provisions apply subject to the following changes:
(a) a reference in the provisions to a company or public company is taken
to be a reference to a cooperative;
(b) a reference in the provisions to the Court is taken to be a reference
to the Supreme Court;
(c) a reference in the provisions to ‘prescribed’ is taken to
be a reference to ‘approved by the registrar’;
(d) a reference in the provisions to securities is taken to be a reference
to debentures;
(e) any offence created in relation to the provisions is taken to be the
offence set out in subsection (3);
(f) any penalty for an offence mentioned in paragraph (e) is taken to be
the penalty set out in subsection (3);
(g) the provisions apply as if the following provisions were
omitted:
• section 293 (Small proprietary company—shareholder
direction)
• section 294 (Small proprietary company—ASIC
direction)
• section 300 (8) and (9) (Annual directors’
report—specific information)
• section 301 (2) (Audit of annual financial report)
• section 340 (ASIC’s power to make specific exemption
orders)
• section 341 (ASIC’s power to make class orders)
• section 342 (Criteria for specific exemption orders and class
orders).
(3) A cooperative must—
(a) keep financial records and prepare financial statements and financial
reports as required by this Act (including the Corporations Act as applied by
this Act); and
(b) ensure that the financial statements and financial reports are audited
in accordance with this Act (including the Corporations Act as applied by this
Act).
Maximum penalty: 20 penalty units.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act 2001, s 104)
(4) The regulations may make provision in relation to the
following:
(a) requiring the submission of financial statements and financial reports
to the Australian Accounting Standards Board;
(b) requiring the adoption by a cooperative of the same financial year for
each entity that the cooperative controls.
241 Registrar
may give exemptions for pt 9
(1) The registrar may, in writing, exempt a cooperative, a person or firm
proposed to be appointed as an auditor of a cooperative, or a director or
auditor of a cooperative, from this part or a provision of this part.
Note 1 A reference to a provision of an Act includes a reference to
the statutory instruments made or in force under the provision, including
regulations (see Legislation Act 2001, s 104).
Note 2 Power given under an Act to make a statutory instrument
(including an exemption) includes power to amend or revoke the instrument (see
Legislation Act 2001, s 46 (1)).
(2) An exemption may be—
(a) unconditional or subject to conditions; and
(b) limited in time.
(3) An exemption may be suspended by the registrar.
(4) An exemption under this section that applies in relation to a class of
cooperatives is a notifiable instrument.
Note 1 A notifiable instrument must be notified under the
Legislation Act 2001.
Note 2 The Legislation Act 2001, s 73 deals with the
commencement of notifiable instruments.
(5) An exemption under this section that applies only in relation to a
particular cooperative takes effect when a copy of the order is served on the
cooperative.
242 Disclosure
by directors
(1) The directors of a cooperative must make the disclosures in relation
to the affairs of the cooperative, and of any entity that the cooperative
controls, that are prescribed under the regulations.
(2) If this section is not complied with, each director of the cooperative
commits an offence.
Maximum penalty (subsection (2)): 20 penalty units.
243 Protection
of auditors etc
(1) An auditor of a cooperative has qualified privilege in relation
to—
(a) any statement that the auditor makes, orally or in writing, in the
course of the auditor’s duties as auditor; or
(b) the giving of any notice, or the sending of any copy of financial
statements, financial reports or another report, to the registrar under this
Act.
(2) A person has qualified privilege—
(a) in relation to the publishing of any document prepared by an auditor
in the course of the auditor’s duties and required by this Act to be filed
with the registrar, whether or not the document has been filed; or
(b) in relation to the publishing of any statement made by an auditor as
mentioned in subsection (1).
(3) This section does not limit or affect any right, privilege or immunity
that an auditor or anyone else has, apart from this section, as defendant in a
proceeding for defamation.
244 Financial
year of cooperative
(1) The financial year of a cooperative ends on the day in each calendar
year provided under the rules of the cooperative.
(2) The first financial year of a cooperative may extend from the date of
its registration to a date not later than 18 months after the date of
registration.
(3) If the rules of a cooperative are altered to change its financial
year, the alteration may provide either—
(a) that the financial year current when the alteration takes effect is
extended for not longer than 6 months; or
(b) that the next financial year is to be a period longer than 1 year but
not longer than 18 months.
Division
9.8 Registers, records and
returns
245 Registers
to be kept by cooperatives
(1) A cooperative must keep the following registers in accordance with
this section:
(a) a register of members, directors and shares (if any);
(b) a register of any loans to, securities given by, debentures issued by
and deposits received by the cooperative;
(c) a register of names of people who have given loans or deposits to or
hold securities or debentures given or issued by the cooperative;
(d) a register of any loans made by or guaranteed by the cooperative and
of any securities taken by the cooperative;
(e) a register of memberships cancelled under part 6 (Active
membership);
(f) a register of notifiable interests under section 285;
(g) any other registers that the regulations require.
Maximum penalty: 20 penalty units.
(2) The registers must be kept in the way, and contain the particulars,
required under this Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act 2001, s 104).
246 Location
of registers
(1) A register kept under this division must be kept, in accordance with
subsection (2), at—
(a) the cooperative’s registered office; or
(b) an office at the cooperative’s principal place of business;
or
(c) an office (whether of the cooperative or of someone else) where the
work involved in maintaining the register is done; or
(d) another office approved in writing by the registrar.
(2) The office where the register is kept must be in the ACT.
(3) The cooperative must file with the registrar a notice of the address
where the register is kept within 28 days after the day the register
is—
(a) established at an office that is not the cooperative’s
registered office; or
(b) moved from an office to another office.
(4) For this section, a document kept on a computer is taken to be kept at
an office if—
(a) the document can be accessed using a computer kept at the office;
and
(b) a hard copy of the document can be printed out at the
office.
247 Inspection
of registers etc
(1) A cooperative must have the following documents available for
inspection during all reasonable hours by any member free of charge at the
office where the registers are kept:
(a) a copy of this Act and the regulations;
(b) a copy of the rules of the cooperative;
(c) a copy of the minutes of each general meeting of the
cooperative;
(d) a copy of the last annual report (if any) of the cooperative filed
under section 250;
(e) the register of directors, members and shares;
(f) the register of names of people who have given loans or deposits to or
hold securities or debentures given or issued by the cooperative;
(g) any other register that the regulations provide must be open for
inspection under this section.
(2) If a register is not kept on a computer, the person may inspect the
register itself.
(3) If the register is kept on a computer, the person may inspect a hard
copy of the information on the register unless the person and the cooperative
agree that the person may access the information by computer.
(4) A member is entitled to make a copy of entries in a register mentioned
in subsection (1), and to do so free of charge, unless the rules of the
cooperative require a fee to be paid, in which case on payment of the required
fee.
(5) The fee required by the rules must not exceed the amount (if any)
prescribed under the regulations.
(6) A cooperative must—
(a) allow a member to inspect a document or make a copy of a document that
the member is entitled to inspect or make under this section; and
(b) give the member reasonable assistance to inspect the document or make
the copy.
Maximum penalty: 20 penalty units.
(7) A cooperative must have the documents prescribed under the regulations
available for inspection by anyone, at the office where its registers are kept,
during all reasonable hours.
Maximum penalty: 20 penalty units.
248 Use
of information on registers
(1) A person must not—
(a) use information about a person obtained from a register kept under
this division to contact or send material to the person; or
(b) disclose information of that kind knowing that the information is
likely to be used to contact or send material to the person.
(2) However, subsection (1) does not apply to the use or disclosure of
information—
(a) relevant to the holding of the directorship, membership, shares,
loans, securities, debentures or deposits concerned or the exercise of the
rights attaching to them; or
(b) approved by the board; or
(c) necessary to comply with a requirement of this Act.
(3) A person who contravenes this section is liable to compensate anyone
who suffers loss or damage because of the contravention.
(4) A person who makes a profit from a contravention of this section owes
a debt to the cooperative equal to the amount of the profit.
249 Notice
of appointment etc of directors and officers
(1) A cooperative must give notice to the registrar in accordance with
this section of the appointment of a person as a director, principal executive
officer or secretary of the cooperative or any subsidiary of the cooperative,
and of the cessation of the appointment.
Maximum penalty: 20 penalty units.
(2) The notice must—
(a) be given within 28 days after the day of the appointment or cessation
of appointment; and
(b) state the particulars prescribed under the regulations of the
appointment or cessation of appointment.
Note If a form is approved under s 468 (Approved forms) for a
notice, the form must be used.
250 Annual
report to be filed with registrar
(1) A cooperative must file with the registrar within the required period
in each year an annual report containing each of the following:
(a) a list stating the secretary, directors and the principal executive
officers of the cooperative and each of its subsidiaries, as at the date the
annual report is filed with the registrar;
(b) if the cooperative is required under the provisions of the
Corporations Act applied by section 240 (the applied
provisions) to prepare financial statements for its most recently
ended financial year—a copy of the financial statements;
(c) a copy of the financial statements of each subsidiary of the
cooperative for the most recently ended financial year;
(d) a copy of any report by the auditor of the cooperative or
subsidiary—
(i) prepared under the applied provisions in relation to the cooperative
or subsidiary; or
(ii) on any financial statements mentioned in paragraph (b) or
(c);
(e) any particulars prescribed under the regulations.
Maximum penalty: 20 penalty units.
Note If a form is approved under s 468 (Approved forms) for a list,
the form must be used.
(2) In subsection (1):
required period, for a year, means—
(a) if the annual general meeting of the cooperative is not held within 5
months after the relevant financial year of the cooperative—28 days after
the end of that period; or
(b) in any other case—28 days after the day of the annual general
meeting of the cooperative.
251 List
of members to be provided at request of registrar
A cooperative must, at the written request of the registrar, send to the
registrar, within the time and in the way that the registrar requires, a full
list of the members of the cooperative and of each subsidiary of the
cooperative, together with the particulars in relation to those members that the
registrar requires.
Maximum penalty: 20 penalty units.
252 Special
return to be provided at request of registrar
(1) The registrar may, in writing, require a cooperative to provide to the
registrar a special return in the form, within the time, and relating to the
subject matter, stated by the registrar.
(2) The cooperative must comply with a requirement under
subsection (1).
Maximum penalty: 20 penalty units.
Division
9.9 Name and registered
office
253 Name
to include certain matter
(1) The name of a cooperative may consist of words, numbers or a
combination of both.
(2) The name of the cooperative must include the word
‘Cooperative’ or ‘Co-operative’ or the abbreviation
‘Co-op’ or ‘Co-op.’.
(3) The word ‘Limited’ or the abbreviation ‘Ltd’
must be the last word of the name.
(4) A corporation formed or incorporated under a law other than this Act
must not register under the other law by any name that includes the word
‘Cooperative’ or ‘Co-operative’ or the abbreviation
‘Co-op’ or ‘Co-op.’.
Maximum penalty: 20 penalty units.
(5) Subsection (4) does not apply to a credit union.
(6) Subsection (4) also does not apply to a body corporate, corporation,
society or other entity that was, immediately before the repeal of the
Co-operative Societies Act 1939, an exempt body within the meaning of
that Act, section 32.
(7) Subsection (6) and this subsection expire 2 years after the
commencement of this section.
A description of a cooperative is not inadequate or incorrect only because
it uses 1 or more of the following:
(a) the abbreviation ‘Co-op’ or ‘Co-op.’ instead
of the word ‘Cooperative’ or ‘Co-operative’ in the
cooperative’s name;
(b) the abbreviation ‘Ltd’ instead of the word
‘Limited’ in the cooperative’s name;
(c) an ampersand (the symbol ‘&’) instead of the word
‘and’ in the cooperative’s name;
(d) any of those words instead of the corresponding abbreviation or symbol
in the cooperative’s name;
(e) any abbreviation or elaboration of the name of the cooperative
approved, in writing, by the registrar in a particular case or for a particular
purpose.
255 Name
to appear on business documents etc
(1) A cooperative must ensure that the name of the cooperative appears in
legible characters—
(a) on its seal; and
(b) in all notices, advertisements and other official publications of the
cooperative; and
(c) in all its business documents.
Maximum penalty: 20 penalty units.
(2) An officer of a cooperative, or a person acting on its behalf, must
not—
(a) use a seal of the cooperative; or
(b) issue, or authorise the issue of, any notice, advertisement or other
official publication of the cooperative; or
(c) sign, or authorise to be signed, on behalf of the cooperative any
business document of the cooperative;
in or on which the cooperative’s name does not appear in legible
characters.
Maximum penalty: 20 penalty units.
(3) A director of a cooperative must not knowingly authorise or permit a
contravention of subsection (1) or (2).
Maximum penalty: 20 penalty units.
(4) In this section:
business document, of a cooperative, means a document issued,
signed or endorsed by or on behalf of the cooperative that is—
(a) a business letter, statement of account, invoice or order for goods or
services; or
(b) a bill of exchange, promissory note, cheque or other negotiable
instrument; or
(c) a receipt or letter of credit issued by the cooperative; or
(d) a document prescribed under the regulations.
256 Change
of name of cooperative
(1) A cooperative may by special resolution change its name to a name
approved in writing by the registrar.
(2) A change of name must be advertised in the way prescribed under the
regulations.
(3) A change of name does not take effect until—
(a) the registrar has noted the change on the certificate of registration
of the cooperative; or
(b) the certificate of registration is surrendered to the registrar and a
replacement certificate of registration is issued in the new name.
(4) A change of name by a cooperative does not affect—
(a) the identity of the cooperative; or
(b) the exercise of any rights, or the enforcement of any obligations, by
or against the cooperative or anyone else; or
(c) the continuation of a legal proceeding by or against the
cooperative.
(5) A legal proceeding that might have been continued or begun by or
against the cooperative in its former name may be continued or begun by or
against the cooperative in its new name.
(6) The registrar must refuse to approve a change of name if the registrar
considers that the new name contravenes this Act or is undesirable.
(7) The registrar may order a cooperative to change its name if the
registrar is of the opinion that the name is likely to be confused with the name
of a corporation or a registered business name.
257 Registered
office of cooperative
(1) A cooperative must have a registered office.
Maximum penalty: 20 penalty units.
(2) A cooperative must, at the premises of its registered office, publicly
and conspicuously display a notice stating the name of the cooperative and
identifying the premises as its registered office.
Maximum penalty: 20 penalty units.
(3) A cooperative must give the registrar notice of its registered office
not later than 28 days after the day it is registered.
Maximum penalty: 20 penalty units.
(4) If the address of a cooperative’s registered office changes, the
cooperative must give the registrar notice of the new address not later than 28
days after the day the change happens.
Maximum penalty: 20 penalty units.
Part
10 Funds and
property
Division
10.1 Power to raise
money
258 Meaning
of obtaining financial accommodation in div 10.1
In this division:
obtaining, in relation to financial accommodation, includes
obtaining credit and borrowing or raising money by any means.
259 Fundraising
to be in accordance with regulations
The regulations may impose requirements and restrictions on the obtaining
of financial accommodation and the giving of security in relation to the
obtaining of financial accommodation by a cooperative.
260 Limits
on deposit taking
(1) A cooperative may accept money on deposit only as permitted by
subsection (2).
(2) A cooperative may accept money on deposit if—
(a) the cooperative—
(i) was authorised by its rules immediately before the commencement of
this Act to accept money on deposit; and
(ii) remains so authorised; or
(b) the cooperative was a deposit-taking corporation immediately before it
became a cooperative and it is authorised by its rules to accept money on
deposit; or
(c) for a merged cooperative—1 or more of the cooperatives involved
in the merger was a deposit-taking cooperative immediately before the
registration of the merged cooperative and the merged cooperative is authorised
by its rules to accept money on deposit.
261 Members
etc not required to see to application of financial
accommodation
A member or anyone else from whom a cooperative obtains financial
accommodation is not required to see how it is applied and is not affected if
the cooperative applies it in a way that contravenes this Act or the rules of
the cooperative.
262 Registrar’s
directions about fundraising
(1) The registrar may, by notice served on a cooperative, give a direction
to the cooperative about how it must exercise its functions in relation to the
activities of the cooperative in obtaining financial accommodation.
(2) A direction under subsection (1) may make provision for any 1 or more
of the following matters:
(a) requiring the cooperative to cease obtaining financial accommodation
or to cease obtaining financial accommodation in a particular way;
(b) requiring the cooperative to repay in accordance with the direction
all or part of financial accommodation obtained;
(c) requiring the cooperative to refinance in a stated way financial
accommodation repaid in accordance with the registrar’s
direction;
(d) how the cooperative is permitted to invest or use the proceeds of
financial accommodation it obtains.
(1) A cooperative may incur subordinated debt.
(2) A subordinated debt is a debt incurred under an
agreement under which, in the event of the winding-up of the cooperative, any
claim of the creditor against the cooperative in relation to the debt is to rank
in priority—
(a) equally with the claim of any other creditor who is a party to a
similar agreement; and
(b) except as provided under paragraph (a), after the claims of any other
creditor of the cooperative and before the claims of members to repayment of any
share capital in the cooperative.
(3) An agreement mentioned in subsection (2) has effect despite the
provisions of the Corporations Act, part 5.6 (Winding up generally), division 6
(Proof and ranking of claims) that are applied by division 12.3 (Winding-up and
deregistration).
264 Application
of Corporations Act—issue of debentures
(1) The following provisions of the Corporations Act apply to debentures
of a cooperative:
• part 1.2A (Disclosing entities)
• chapter 2L (Debentures)
• chapter 6D (Fundraising)
• part 7.10 (Market misconduct and other prohibited conduct relating
to financial products and financial services).
(2) The provisions of the Corporations Act applied by this section do not
apply to a loan to which section 268 (Compulsory loan by member to cooperative)
applies.
(3) The provisions of the Corporations Act applied by this section do not
apply to an issue of debentures of a cooperative made—
(a) solely to members; or
(b) solely to members and employees of the cooperative; or
(c) to a person who has had the person’s share capital converted to
debt on becoming an inactive member of the cooperative.
(4) The registrar may, in writing, exempt a cooperative from the
provisions of the Corporations Act applied by this section or any of
them.
265 Disclosure
statement for debentures issue
(1) This section applies to the issue of debentures of a cooperative where
the issue is made—
(a) solely to members; or
(b) solely to members and employees of the cooperative.
(2) Before issuing to the person debentures to which this section applies,
a cooperative must provide a person with a disclosure statement, approved in
writing by the registrar, and containing the information that is reasonably
necessary to allow a person to make an informed assessment of the financial
prospects of the cooperative, including—
(a) the purpose for which the money raised by the cooperative by the issue
of debentures is to be used; and
(b) the rights and liabilities attaching to the debentures; and
(c) the financial position of the cooperative; and
(d) the interests of the directors of the cooperative in the issue of the
debentures; and
(e) any compensation or consideration to be paid to officers or members of
the cooperative in relation to the issue of debentures; and
(f) anything else that the registrar directs.
(3) Section 20 (except subsections (2), (4) and (9)) applies to the
approval of a disclosure statement under this section with any necessary changes
and, in particular, as if any reference in the section to a formation meeting
were a reference to the issue of debentures.
266 Approval
of board for transfer of debentures
A debenture of a cooperative may be sold or transferred only with the
approval of the board and in accordance with the rules of the
cooperative.
267 Application
of Corporations Act—reissue of redeemed debentures
The Corporations Act, section 124 (1) (b) (Legal capacity and powers of a
company) and section 563AAA (Redemption of debentures) apply to debentures
issued by a cooperative to any of its members or employees.
268 Compulsory
loan by member to cooperative
(1) A cooperative may, if authorised by its rules, require its members to
lend, with or without security, to the cooperative in accordance with a proposal
approved by special resolution of the cooperative.
(2) The proposal must not require a loan to be for longer than 7 years or,
if another term is prescribed under the regulations, that term.
(3) The proposal must—
(a) be accompanied by a disclosure statement, approved in writing by the
registrar, that explains the purpose for which the loan raised by the
cooperative in accordance with the proposal is to be used and includes any other
information that the registrar directs; and
(b) clearly show the total amount of the loan to be raised by the
cooperative and the basis on which the amount required to be lent by each member
is to be worked out; and
(c) be accompanied by a statement telling the member that the member may
tell the board, by notice given to the board on or before the date stated in the
statement, that the member resigns on the passing of the special
resolution.
(4) The date stated in the statement must be a date before the passing of
the special resolution.
(5) If the proposal allows, the board of the cooperative may, in
accordance with the terms of the proposal, deduct the amount required to be lent
by a member to the cooperative from any amount owing by the cooperative to the
member in relation to the member’s dealings with the
cooperative.
(6) A proposal to deduct an amount mentioned in subsection (5) must, in
addition, clearly show—
(a) the basis on which the amount is to be deducted; and
(b) when and how the deduction is to be made.
(7) If the proposal is approved, it is binding on—
(a) all members of the cooperative on the day of the passing of the
special resolution, other than a member who has given a notice of resignation in
accordance with subsection (3) (c); and
(b) everyone who becomes a member of the cooperative after that day and
before the total amount of the loan to be raised in accordance with the proposal
has been raised.
(8) Section 20 (except subsections (2), (4) and (9)) applies to the
approval of a disclosure statement under this section with any necessary changes
and, in particular, as if any reference in the section to a formation meeting
were a reference to the special resolution.
269 Interest
payable on compulsory loan
(1) The rate of interest payable by a cooperative in relation to a loan
under section 268 during any period is—
(a) for a cooperative with share capital—
(i) the rate (or, if there is more than 1 rate, the higher or highest
rate) of dividend payable in relation to the period on the share capital of the
cooperative; or
(ii) if the rate of dividend payable in relation to the period has not
been decided—the rate (or the higher or highest rate) payable in relation
to the last period for which a rate has been decided; or
(iii) if a rate of dividend has never been decided in relation to the
share capital of the cooperative—the rate that the board of the
cooperative considers reasonable; or
(b) for a cooperative without share capital—the rate that the board
of the cooperative considers reasonable; or
(c) if the rules provide for a rate to be payable that is higher than the
rate applying under paragraph (a) or (b)—the higher rate.
(2) A member may agree to a lesser rate of interest than the rate that
would otherwise be payable under this section and may agree to no interest being
paid.
270 Registration
of charges
(1) Schedule 3 has effect.
(2) However, schedule 3 does not apply to—
(a) a mortgage, charge or encumbrance that is over particular land and is
registered under a Territory law; or
(b) a memorandum of such a mortgage, charge or encumbrance that is
registered under a Territory law; or
(c) a mortgage, charge or encumbrance over a particular licence under laws
about mining.
Division
10.3 Receivers and other controllers
of property of cooperatives
271 Receivers
and other controllers of property of cooperatives
Schedule 4 has effect.
Division
10.4 Disposal of surplus from
activities
272 Keeping
of surplus for benefit of cooperative
The board of a cooperative may resolve to keep all or any part of the
surplus arising in any year from the business of the cooperative to be applied
for the benefit of the cooperative.
273 Application
for charitable purposes or members purposes
(1) The rules of a cooperative may authorise the cooperative to apply a
part of the surplus arising in any year from the business of the cooperative for
any charitable purpose.
(2) The rules of a trading cooperative may authorise the cooperative to
apply a part of the surplus arising in any year from the business of the
cooperative for supporting any activity approved by the cooperative.
(3) The rules must limit the amount that may be applied under subsection
(1) or (2) to a specified proportion of the surplus.
(4) A cooperative may apply part of the surplus for a purpose and to the
extent authorised by rules mentioned in subsection (1) or (2).
274 Distribution
of surplus or reserves to members
(1) The rules of a trading cooperative may authorise the cooperative to
apply a part of the surplus arising in any year from the business of the
cooperative or a part of the reserves of the cooperative by—
(a) distribution to members as a rebate on the basis of business done with
the cooperative; or
(b) the issue of bonus shares to members on the basis of business done
with the cooperative or on the basis of shares held by members; or
(c) the issue to members of a limited dividend for shares held by the
members.
(2) The amount of any rebate or dividend payable to a member under
subsection (1) may, with the member’s consent, be applied—
(a) in payment for the issue to the member of bonus shares; or
(b) as a loan to the cooperative.
(3) In this section:
limited dividend means a dividend that does not exceed the
amount prescribed under the regulations.
275 Application
of surplus to other people
(1) If authorised by the rules of a trading cooperative, any part of the
surplus arising in any year from the business of the cooperative may be credited
to anyone who is not a member, but is qualified to be a member, by way of rebate
in proportion to the business done by the person with the cooperative,
if—
(a) the person was a member at the time the business was done and the
membership has lapsed; or
(b) the person has applied for membership after the business was
done.
(2) This section does not prevent the payment of a bonus to an employee in
accordance with the conditions of the employee’s employment.
Division
10.5 Acquisition and disposal of
assets
276 Acquisition
and disposal of assets
(1) A cooperative may do any of the following things only if approved by
special resolution of the cooperative passed by a special postal
ballot:
(a) sell or lease, as a going concern—
(i) the undertaking of the cooperative; or
(ii) a part of the undertaking of the cooperative if—
(A) the part relates to the primary activities of the cooperative;
and
(B) the value of the part represents at least 5% of the total value of the
undertaking;
(b) acquire from or dispose of to a director or employee of the
cooperative, or a relative (within the meaning of the Corporations Act) or
spouse of a director or employee of the cooperative, property if the value of
the property represents at least 5% of the total value of all the assets of the
cooperative that relate to its primary activities;
(c) acquire an asset if the value of the asset represents at least 5% of
the total assets of the cooperative and the acquisition would result in the
cooperative beginning to carry on an activity that is not a primary activity of
the cooperative;
(d) dispose of an asset if the disposal would result in—
(i) the cooperative ceasing to carry on a primary activity of the
cooperative; or
(ii) the ability of the cooperative to carry on a primary activity of the
cooperative being substantially impaired either generally or in a particular
locality.
(2) The registrar may, in writing, exempt a cooperative from some or all
of the provisions of—
(a) this section; or
(b) section 200 (Special postal ballots) in relation to anything to which
this section applies.
(3) An exemption may be unconditional or subject to conditions.
(4) If a cooperative contravenes this section, each person who is a member
of the board of the cooperative commits an offence.
Maximum penalty: 50 penalty units.
(5) It is a defence to a prosecution of a person for an offence against
subsection (4) if the person satisfies the court that the person used all due
diligence to prevent the contravention by the cooperative.
Part
11 Restrictions on acquisition of
interests in trading cooperatives
Division
11.1 Restrictions on share and voting
interests
277 Notice
required to be given of voting interest
(1) A person (whether or not a member of the cooperative) must give notice
to a trading cooperative within 5 business days after the day the person becomes
aware that the person has a relevant interest in the right to vote of a member
of the cooperative.
Maximum penalty: 20 penalty units.
(2) A person (whether or not a member of the cooperative) who has ceased
to have a relevant interest in the right to vote of a member of a trading
cooperative must give notice to the cooperative within 5 business days after the
day the person becomes aware of that fact.
Maximum penalty: 20 penalty units.
Note Section 184 deals with the effect of a person having a
relevant interest on the right to vote of a member of a cooperative.
278 Notice
required to be given of substantial share interest
(1) A person must give notice to a trading cooperative within 5 business
days after the day the person becomes aware that the person has a substantial
share interest in the cooperative.
Maximum penalty: 20 penalty units.
(2) A person who has a substantial share interest in a trading cooperative
must give notice to the cooperative within 5 business days after the day the
person becomes aware that a substantial change has happened in that share
interest.
Maximum penalty: 20 penalty units.
(3) A person who has ceased to have a substantial share interest in a
trading cooperative must give notice to the cooperative within 5 business
days after the day the person becomes aware that the person has ceased to have
the interest.
Maximum penalty: 20 penalty units.
(4) A person has a substantial share interest in a trading
cooperative if the nominal value of the shares in the cooperative in which the
person has a relevant interest represents 5% or more of the nominal value of the
issued share capital of the cooperative.
(5) A substantial change takes place in a person’s
share interest in a trading cooperative if there is an increase or decrease in
the number of shares in the cooperative in which the person has a relevant
interest and the increase or decrease represents at least 1% of the nominal
value of the issued share capital of the cooperative.
279 Requirements
for notices under div 11.1
A notice required under this division must state the particulars,
prescribed under the regulations, of the interest or change being
notified.
Note If a form is approved under s 468 (Approved forms) for a
notice, the form must be used.
280 Maximum
permissible level of share interest
(1) A person must not have a relevant interest in shares of a trading
cooperative if the nominal value of the shares is more than 20% of the nominal
value of the issued share capital of the cooperative.
(2) The registrar may, in writing, determine a higher percentage for
subsection (1) in relation to a cooperative.
(3) A determination under subsection (2) is a notifiable
instrument.
Note A notifiable instrument must be notified under the
Legislation Act 2001.
(4) The percentage applying under subsection (1) or (2) in relation to a
cooperative may be increased for a particular person by special resolution of
the cooperative passed by a special postal ballot.
(5) A resolution under subsection (4) for a person has effect only
if—
(a) it is approved in writing by the registrar; or
(b) the person is another cooperative.
(6) The registrar’s approval may be given on conditions.
281 Shares
to be forfeited to remedy contravention
(1) If a person has a relevant interest in a share of a trading
cooperative in contravention of this division, the board of the cooperative must
declare to be forfeited sufficient of the shares in which the person has a
relevant interest to remedy the contravention.
(2) The shares to be forfeited are—
(a) the shares nominated by the person for the purpose; or
(b) in the absence of such a nomination, the shares in which the person
has had a relevant interest for the shortest time.
(3) A declaration of the board that shares are forfeited operates to
forfeit the shares.
(4) Sections 133 to 135 apply to shares forfeited under this section as if
the shares had been forfeited under part 6.
282 Powers
of board in relation to suspected contravention
(1) If the board of a trading cooperative is satisfied on reasonable
grounds that a person has contravened section 277 in relation to the
cooperative, the board may do either or both of the following:
(a) refuse to register any share transfer involving the person;
(b) suspend any specified rights or entitlements that a person has as a
member of the cooperative or attaching to any shares of the cooperative in which
the person has a relevant interest.
(2) The board may ask a person who it suspects has a relevant interest in
any shares of the cooperative to provide information to the board about the
interest.
(3) A failure by a person to comply with a request under subsection (2) is
reasonable grounds for the board being satisfied that the person has contravened
section 277.
283 Powers
of Supreme Court in relation to contravention
(1) If the Supreme Court is satisfied that a person has contravened
section 277 in relation to a trading cooperative, the court may, on the
application of the cooperative or the registrar, make any orders it considers
just.
(2) The orders that may be made under subsection (1)
include—
(a) a remedial order; and
(b) an order directing the cooperative or anyone else to do or not do
anything to secure compliance with any other order under the
subsection.
(3) An order may be made whether or not the contravention
continues.
(4) Proof to the satisfaction of the Supreme Court at the hearing of an
application that—
(a) a person has a relevant interest in a share of a trading cooperative
because an associate of the person has a relevant interest in a share;
and
(b) the associate became entitled to that relevant interest within 6
months before the day the application was filed in the court;
is evidence that the associate was an associate of the person from the time
the person first had the relevant interest until the date of the
hearing.
284 Cooperative
to tell registrar about certain high share holdings
(1) A trading cooperative must tell the registrar in writing within 14
days after the day the board becomes aware that—
(a) a person has a relevant interest in shares of the cooperative and the
nominal value of the shares exceeds the permitted percentage of the nominal
value of the issued share capital of the cooperative; or
(b) there has been a change in the number of shares in which a person
mentioned in paragraph (a) holds a relevant interest.
(2) The trading cooperative must also give the registrar details of the
relevant interest or the change.
(3) In this section:
permitted percentage, in relation to a relevant interest in
shares of a cooperative held by a person, means—
(a) 20%; or
(b) if a higher percentage applies under section 280 (2) or (4)—the
higher percentage.
285 Cooperative
to keep register of notifiable interests
(1) A trading cooperative must keep a register of interests that are
notifiable under this division.
(2) The cooperative must enter in the register, in alphabetical order, the
names of people from whom the cooperative has received a notice under this
division together with the information contained in the notice.
(3) The register must be open for inspection—
(a) by any member of the cooperative free of charge; and
(b) by anyone else on payment of the fee (if any) that the cooperative may
require.
(4) The fee required by the cooperative must not exceed the amount (if
any) prescribed under the regulations.
286 Unlisted
companies to provide list of shareholders etc
(1) This section applies to a company that is not a listed
corporation.
(2) A company to which this section applies that is a member of a trading
cooperative must provide to the cooperative a list showing—
(a) the name of each member of the company as at the end of the financial
year of the company and the number of shares in the company held by each member;
and
(b) the name of each person who has a relevant interest (within the
meaning of the Corporations Act) in any share of the company together with
details of that interest; and
(c) the name of each person who is an associate (within the meaning of the
Corporations Act) of the company.
(3) A list under subsection (2) must be provided within 28 days after the
end of each financial year of the company and within 28 days after the day a
request for the list is made in writing to the company by the
registrar.
(4) The details to be shown on the list are those details as at the end of
the financial year concerned or, if the list is provided at the request of the
registrar, as at the date stated in the request.
(5) The registrar may make a request under subsection (3) at any
time, but only if the registrar is of the opinion that the company is or may be
involved in a suspected contravention of a provision of this division.
287 Excess
share interest not to affect loan liability
(1) This section applies if a trading cooperative has made a loan to a
member and the member had or has a relevant interest in shares of the
cooperative in contravention of this division.
(2) Until the amount lent to the member has been repaid to the cooperative
(with any interest payable), the member is liable to make to the cooperative the
payments that the member would be liable to make if all the shares concerned
were lawfully held by the member.
(3) Any security for the repayment of the loan is not affected by a
contravention of this division.
288 Extent
of operation of div 11.1
This division—
(a) applies to all individuals, whether resident in the ACT or elsewhere
in Australia or not and whether Australian citizens or not, and to all
corporations or unincorporated bodies, whether incorporated or carrying on
business in the ACT or elsewhere in Australia or not; and
(b) extends to acts done or omitted to be done outside the ACT, whether in
Australia or not.
289 Registrar
may give exemptions for div 11.1
(1) The registrar may, in writing, exempt a person from this division or a
provision of this division.
(2) An exemption may be unconditional or subject to conditions.
Division
11.2 Restrictions on certain share
offers
290 Share
offers to which div 11.2 applies
(1) This division applies to the following offers to purchase shares in a
trading cooperative:
(a) an offer made as part of a proposal for, or that is conditional on,
the sale of the undertaking or any part of the undertaking, as a going concern,
of the cooperative;
(b) an offer made as part of a proposal for, or that is conditional on,
the registration of the cooperative as a company under the Corporations
Act;
(c) an offer made as part of a proposal for, or that is conditional on,
the winding-up of the cooperative;
(d) an offer that would result in a contravention of section 280 (Maximum
permissible level of share interest) were the offeror to be registered
(immediately after the offer is made) as the holder of the shares that are the
subject of the offer;
(e) an offer that would lead to the offeror having a substantial share
interest in the cooperative, or to a substantial change taking place in a
substantial share interest that the offeror has in the cooperative, were the
offeror to be registered (immediately after the offer is made) as the holder of
the shares that are the subject of the offer.
(2) In this section:
substantial change—see section 278 (5).
substantial share interest—see section 278
(4).
291 Requirements
to be satisfied before share offer may be made
(1) A person may make an offer to which this division applies only if the
making of the offer has been approved—
(a) by special resolution passed by a special postal ballot; and
(b) by the registrar.
(2) However, an offer mentioned in section 290 (1) (e) that is
made in accordance with the regulations may be made even if it has not been
approved as mentioned in subsection (1) of this section.
292 Some
offers totally prohibited if they discriminate
An offer mentioned in section 290 (1) (a) to (d) must not be made
at all if it operates or would operate to discriminate between members who are
active members and members who are not active members.
293 Offers
to be submitted to board first
(1) Any proposal to make an offer to which this division applies must in
the first instance be submitted to the board of the cooperative.
(2) The board may decline to put a proposed offer to a special postal
ballot unless arrangements satisfactory to the board have been made for payment
to the cooperative of the expenses involved in holding the ballot.
(3) The board may require payment in advance under subsection
(2).
(4) A requisition for a special postal ballot for this division must not
be served until the board has had a reasonable opportunity to consider the
proposed offer.
(5) A period of 28 days is taken to be a reasonable opportunity for
considering a proposed offer but the registrar may extend that period in a
particular case by notice to the cooperative.
294 Announcements
of proposed takeovers affecting proposed company
(1) This section applies to an offer to buy shares in a trading
cooperative made as part of a proposal for, or that is conditional on, the
registration of the cooperative as a company (the proposed
company) under the Corporations Act.
(2) A person must not make a public announcement to the effect that the
person proposes, or that the person and someone else together propose, to make
takeover offers, or to cause a takeover announcement to be made, in relation to
the proposed company if—
(a) the person knows that the announcement is false or is recklessly
indifferent about whether it is true or false; or
(b) the person has no reasonable grounds for believing that the person, or
the person and the other person, will be able to perform obligations arising
under the scheme or announcement under the Corporations Act in relation to the
scheme or announcement if a substantial proportion of the offers or the offers
made under the announcement are accepted.
Maximum penalty: 200 penalty units, imprisonment for 2 years or
both.
(3) If a person makes a public announcement to the effect that the person
proposes, or that the person and someone else together propose, to make a
takeover bid in relation to the proposed company, the person must proceed to
make a takeover bid in relation to shares in the company in accordance with the
public announcement within 2 months after the day the company is
incorporated.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(4) A person is not liable to be convicted of more than 1 offence against
subsection (3) in relation to a single public announcement.
(5) A person who contravenes this section (whether or not the person is
found guilty of an offence for the contravention) is liable to pay compensation
to anyone else who suffered loss because of entering into a transaction in
relation to shares in reliance on the public announcement concerned.
(6) The amount of that compensation is the difference between the price of
the shares at which the transaction was entered into and the price of the shares
at which the transaction would have been likely to have been entered into if the
person had not made the public announcement.
(7) A person does not commit an offence for a contravention of subsection
(3), and is not liable to pay compensation in relation to the contravention, if
it is proved that the person could not reasonably have been expected to make the
takeover bid concerned—
(a) because of circumstances that existed at the time of the making of the
public announcement but of which the person had no knowledge and could not
reasonably have been expected to have knowledge; or
(b) because of a change in circumstances after the making of the
announcement, other than a change in circumstances caused directly or indirectly
by the person.
(8) Words and expressions used in this section have the same meanings as
in the Corporations Law, section 746 as in force on 12 March 2000.
295 Additional
disclosure requirements for offers involving conversion to
company
If an offer to which this division applies is part of a proposal for, or is
conditional on, the registration of the cooperative as a company under the
Corporations Act, the disclosure statement required to be sent to members for
the special postal ballot must contain the following additional
information:
(a) full particulars of any proposal under which any of the directors will
acquire a relevant interest in any share of the company to be formed;
(b) any other information that is—
(i) material to the making of a decision by a member whether or not to
agree to the making of the offer; and
(ii) within the knowledge of the directors and has not previously been
disclosed to the members;
(c) any other information the registrar, by notice, directs.
296 Consequences
of prohibited offer
(1) If a person makes an offer to buy shares in a trading cooperative in
contravention of this division—
(a) the person is not entitled to be registered as the holder of the
shares; and
(b) if the transfer of the shares is registered—the person is not
entitled to vote at any meeting of the cooperative.
(2) Any vote cast by or on behalf of a member who is not entitled to vote
because of this section must be disregarded.
297 Registrar
may give exemptions for div 11.2
(1) The registrar may, in writing, exempt a trading cooperative from some
or all of the provisions of—
(a) this division; or
(b) section 200 (Special postal ballots) in relation to anything to
which this division applies.
(2) An exemption may be unconditional or subject to
conditions.
Part
12 Mergers, transfers of engagements
and winding-up
Division
12.1 Mergers and transfers of
engagements
298 Application
of div 12.1
This division does not apply to a merger or transfer of engagements to
which part 14 (Foreign cooperatives) applies.
299 Mergers
and transfers of engagements of local cooperatives
Any 2 or more cooperatives may consolidate all or any of their assets,
liabilities and undertakings by way of merger or transfer of engagements
approved under this division.
300 Requirements
before making application for merger etc approval
(1) Before cooperatives can apply for approval under this division of a
merger or transfer of engagements, the proposed merger or transfer must have
been approved by each of the cooperatives by—
(a) a special resolution passed by a special postal ballot; or
(b) if permitted by subsection (2)—a resolution of the board of the
cooperative.
(2) The proposed merger or transfer of engagements may be approved by
resolution of the board of a cooperative if the registrar consents to the
procedure applying in the particular case.
301 Disclosure
statement required for div 12.1
(1) A resolution of a cooperative is effective for this division only if
this section has been complied with.
(2) Each cooperative must send to each of its members a disclosure
statement, approved in writing by the registrar, that specifies—
(a) the financial position of each cooperative, as shown in financial
statements that have been prepared at a date not earlier than 6 months before
the date of the statement; and
(b) any interest that any officer of each cooperative has in the proposed
merger or transfer of engagements; and
(c) any compensation or other consideration proposed to be paid, or any
other incentive proposed to be given, to any officer or member of each
cooperative in relation to the proposed merger or transfer of engagements;
and
(d) whether the proposal is a merger or transfer of engagements and the
reason for the merger or transfer of engagements; and
(e) for a transfer of engagements—whether it is a total or partial
transfer of engagements; and
(f) any other information that the registrar directs.
(3) The disclosure statement must be sent to the members of each
cooperative so that it will in the ordinary course of post reach each member who
is entitled to vote on the special resolution not later than 21 days before the
day on or before which the ballot papers must be returned by members voting in
the special postal ballot.
(4) The registrar may, in writing, exempt a cooperative from this section
or any provision of this section.
(5) The registrar may, in writing, approve a disclosure
statement.
(6) An exemption or approval may be unconditional or subject to
conditions.
302 Making
application for merger approval etc
(1) An application for approval of a merger or transfer of engagements
under this division must be made to the registrar.
Note If a form is approved under s 468 (Approved forms) for an
application, the form must be used.
(2) An application for approval of a merger must be accompanied by 2
copies of the proposed rules of the merged cooperative and any other particulars
required by the registrar.
(1) The registrar must approve a merger under this division if satisfied
that—
(a) this division has been complied with in relation to the application
for the merger; and
(b) the proposed rules of the merged cooperative are consistent with this
Act and may reasonably be approved under this Act; and
(c) the certificates of registration of the cooperatives have been
surrendered to the registrar; and
(d) there is no good reason why the merged cooperative and its rules
should not be registered.
(2) On approving an application for merger, the registrar
must—
(a) cancel the registration of the cooperatives involved in the merger;
and
(b) register the merged cooperative and its rules; and
(c) issue to the merged cooperative a certificate of registration under
this Act.
(3) A merger takes effect on the issue of the certificate of registration
for the merged cooperative.
304 Approval
of transfer of engagements
(1) The registrar must approve a transfer of engagements under this
division if satisfied that—
(a) this division has been complied with in relation to the application
for the approval; and
(b) the rules or proposed rules of the transferee cooperative are
adequate; and
(c) for a total transfer of engagements from a cooperative—the
certificate of registration of the cooperative has been surrendered to the
registrar; and
(d) there is no good reason why the transfer of engagements should not
take effect.
(2) A transfer of engagements takes effect on the day stated in the
approval of the registrar.
305 Transfer
of engagements by direction of registrar
(1) The registrar may, by notice, direct a cooperative—
(a) to transfer its engagements to a cooperative approved in writing by
the registrar; and
(b) within the period stated in the direction (or, if the registrar allows
a further period, the further period), to enter into an agreement approved in
writing by the registrar to give effect to the transfer of engagements
directed.
(2) The registrar may give the direction only if—
(a) the necessary grounds exist, under section 338, for giving the
direction; and
(b) the grounds are stated, fully or in summary form, in the
notice.
(3) The transfer of engagements must make provision, in a way approved in
writing by the registrar, for members of the transferor cooperative to become
members of the transferee cooperative if they wish to do so.
(4) If a cooperative fails to comply with a direction under this section,
the registrar may elect to treat the failure as the necessary
grounds—
(a) for the winding-up of the cooperative on a certificate of the
registrar; or
(b) for the appointing of an administrator of the cooperative.
(5) The registrar must give notice to the cooperative of the
registrar’s decision under subsection (4).
(6) The registrar may revoke a direction under this section at any time up
until the cooperative has agreed to transfer its engagements in accordance with
the direction.
(7) The registrar must, in writing, fix the date the transfer of
engagements directed under this section takes effect.
(8) An instrument under subsection (7) is a notifiable
instrument.
Note A notifiable instrument must be notified under the
Legislation Act 2001.
(9) An officer of a cooperative must take all reasonable steps to ensure
that the cooperative complies with a direction given to it under this
section.
Maximum penalty: 20 penalty units.
(10) An officer of a cooperative must not, by wilful act or omission,
cause the cooperative to fail to comply with a direction given to it under this
section.
Maximum penalty: 20 penalty units.
Division
12.2 Transfer of registration or
incorporation
306 Meaning
of new body and transfer in div 12.2
In this division:
new body means a body the registration or incorporation of
which has been transferred.
transfer means the transfer of the registration or
incorporation of a cooperative because of an application under this
division.
307 Application
for transfer of registration etc
(1) A cooperative may apply to become registered or incorporated as 1 of
the following bodies:
(a) a company under the Corporations Act;
(b) an association incorporated, or taken to be incorporated, under the
Associations Incorporation Act 1991;
(c) a building society;
(d) a credit union;
(e) a corporation incorporated, registered or otherwise established under
a law, prescribed under the regulations for this section, of a place outside the
ACT.
(2) An application must be made in accordance with, and is subject to, the
law applying to the relevant kind of body.
(3) An application must be accompanied by—
(a) the amount of any fee payable under that law on application for
registration or incorporation as a body of the relevant kind; and
(b) either—
(i) the certificate of registration of the cooperative under this Act;
or
(ii) if the certificate of registration is not available—an
affidavit by a director or the secretary of the cooperative stating why it is
not available and, if it cannot be found, the searches and inquiries that have
been made for it.
308 Requirements
before making application for transfer of registration etc
(1) Before an application is made under section 307, the cooperative must
by special resolution passed by a special postal ballot—
(a) approve the proposed application; and
(b) decide under what name the cooperative is to apply to be incorporated
or registered; and
(c) adopt any memorandum or articles of association, constitution,
replaceable rules or other rules, as may be necessary or considered
desirable.
(2) The name applied for need not be the same as that of the cooperative
and must not include the word ‘cooperative’ or any other word with a
similar meaning.
(3) The registrar may, in writing, exempt a cooperative from some or all
of the provisions of—
(a) this section; or
(b) section 200 (Special postal ballots) in relation to anything to which
this section applies.
(4) An exemption may be unconditional or subject to conditions.
309 Transfer
of registration not to impose greater liability etc
(1) A memorandum or articles of association, constitution, replaceable
rules or other rules adopted for the transfer must not—
(a) impose on the members of the new body who were members of the
cooperative at the date of transfer any greater or different liability to
contribute to the assets of the new body than the liability to which they were
subject as members of the cooperative; or
(b) deprive any member of the new body of any preferential rights in
relation to dividend or capital to which the member was entitled as a member of
the cooperative at the date of transfer.
(2) The transfer must result in every member of the cooperative at the
date of transfer becoming a member of the new body.
(3) For a transfer of a cooperative that has a share capital to a new body
that has a share capital, the transfer must result in every member of the
cooperative at the date of transfer who held shares in the cooperative becoming
the holder of shares in the capital of the new body equal in number and nominal
value to the shares held by the member as a member of the cooperative.
310 Effect
of new certificate of registration etc
(1) A certificate of registration or incorporation as the new body issued
under the law applying to the new body is conclusive evidence of compliance with
all the requirements of this division in relation to the registration or
incorporation.
(2) If the new body receives a certificate of that kind in relation to its
registration or incorporation, it must immediately file a copy of the
certificate with the registrar.
Maximum penalty: 10 penalty units.
311 New
body ceases to be registered as cooperative
A cooperative that transfers to a new body ceases to be registered as a
cooperative under this Act when the certificate of registration or incorporation
of the new body is issued.
312 New
body is continuation of cooperative
(1) If a cooperative transfers to a new body, the new body is taken to be
the same entity as the cooperative.
(2) Without limiting subsection (1), division 12.6 applies to a transfer
under this division.
313 Stamp
duty on transfer of registration etc
(1) This section applies if—
(a) a cooperative that transfers under this division was before its
registration as a cooperative under this Act a company under the Corporations
Act; and
(b) stamp duty had been paid on its incorporation as a company in relation
to the amount of the nominal capital of the company (or, if the nominal capital
was subsequently increased, on the amount of its nominal capital as
increased).
(2) Any stamp duty paid must be taken into account and included in
assessing the stamp duty payable on its incorporation or registration in
accordance with the transfer.
Division
12.3 Winding-up and
deregistration
314 Methods
of winding-up
(1) A cooperative may be wound up voluntarily or by the Supreme Court or
on a certificate of the registrar.
(2) For a winding-up voluntarily or by the Supreme Court, the cooperative
may be wound up in the same way and in the same circumstances as a company under
the Corporations Act may be so wound up.
315 Winding-up
on registrar’s certificate
(1) A cooperative may be wound up on a certificate of the registrar only
if, under section 338, the necessary grounds exist for taking that
action.
(2) A winding-up on a certificate of the registrar begins when the
certificate is given.
(3) On the giving of a certificate, the registrar may appoint a person to
be the liquidator of the cooperative.
(4) The liquidator need not be a registered liquidator under the
Corporations Act.
(5) The registrar must prepare written notice of the liquidator’s
appointment.
(6) The notice is a notifiable instrument.
Note A notifiable instrument must be notified under the
Legislation Act 2001.
(7) The liquidator must give the security (if any) for the exercise of the
liquidator’s functions that the registrar directs.
(8) The liquidator is entitled to receive the fees decided by the
registrar.
(9) Any vacancy in the office of liquidator must be filled by a person
appointed by the registrar.
316 Method
of deregistration
A cooperative may be deregistered in the same way and in the same
circumstances as a company may be deregistered under the Corporations
Act.
317 Application
of Corporations Act—winding-up and deregistration of
cooperatives
(1) The following provisions of the Corporations Act apply to the
winding-up or deregistration of a cooperative, and a deregistered
cooperative:
• part 5.4 (Winding up in insolvency)
• part 5.4A (Winding up by the Court on other grounds)
• part 5.4B (Winding up in insolvency or by the Court)
• part 5.5 (Voluntary winding up)
• part 5.6 (Winding up generally)
• part 5.7 (Winding up bodies other than companies)
• chapter 5A (Deregistration, and transfer of registration, of
companies).
(2) The provisions apply subject to the following changes:
(a) a reference in the provisions to a special or extraordinary resolution
is taken to be a reference to a special resolution within the meaning of this
Act;
(b) section 513B (Voluntary winding up) is taken to be amended by
inserting the following paragraph after paragraph (d):
(i) if the winding up is on the certificate of the registrar—on the
date the certificate is given; or’;
(c) section 461 (1) (h) (General grounds on which company may be wound up
by Court) is taken to be amended by omitting ‘ASIC has stated in a report
prepared under division 1 of part 3 of the ASIC Act that, in its
opinion:’, and substituting ‘the registrar has, because of an
inquiry conducted under the Cooperatives Act 2002, division 15.2
(Inquiries) or division 15.4 (Miscellaneous powers of registrar), stated
that—’;
(d) section 464 (1) (Application for winding up in connection with
investigation under ASIC Act) is taken to be amended by omitting ‘Where
ASIC is investigating, or has investigated, under division 1 of part 3 of the
ASIC Act:’, and substituting ‘If the registrar is holding or has
held an inquiry under the Cooperatives Act 2002, division 15.2
(Inquiries) or division 15.4 (Miscellaneous powers of
registrar)—’;
(e) section 516 (Company limited by shares) is taken to be amended by
inserting after the words ‘past member’ the words ‘together
with any charges payable by the member to the cooperative in accordance with the
rules’;
(f) a reference in the provisions to a registered liquidator is taken to
include a reference to a person approved by the registrar as a liquidator of a
cooperative;
(g) a reference in the provisions to a part 2F.1 (Oppressive conduct of
affairs) is taken to be a reference to division 4.5 (Oppressive conduct of
affairs) of this Act;
(h) for the application of the provisions to a winding-up on a certificate
of the registrar, the winding-up is taken to be a voluntary winding-up (but the
Corporations Act, section 490 (When company cannot wind up voluntarily) does not
apply);
(i) section 542 (3) (Books of company) is taken to be amended by inserting
the following word and paragraph after paragraph (c):
(i) ‘; and
(ii) for a winding up on a certificate of the registrar under the
Cooperatives Act 2002, section 314 (Methods of winding-up)—with the
registrar’s consent.’;
(j) for the application of the provisions to decide the liability of
members and former members to contribute on a winding-up of a cooperative, the
provisions are taken to be subject to section 72 (Liability of members to
cooperative) and section 323 (Liability of member to contribute in winding-up
where shares forfeited etc).
318 Restrictions
on voluntary winding-up
(1) A cooperative may be wound up voluntarily only—
(a) by a creditors’ voluntary winding-up; or
(b) if a special resolution is passed by a special postal ballot in favour
of voluntary winding-up.
(2) The registrar may, in writing, exempt a cooperative from some or all
of the provisions of—
(a) this section; or
(b) section 200 (Special postal ballots) in relation to anything to which
this section applies.
(3) An exemption may be unconditional or subject to conditions.
(4) If a special postal ballot is held, the members may, by the same
ballot, by simple majority—
(a) appoint 1 or more liquidators for the purpose of winding up the
affairs and distributing the assets of the cooperative; and
(b) fix the remuneration to be paid to the liquidator.
319 Beginning
of members’ voluntary winding-up
A members’ voluntary winding-up of a cooperative begins when the
result of the special postal ballot is noted in the minute book by the secretary
of the cooperative.
320 Distribution
of surplus—non-trading cooperatives
(1) On a winding-up of a non-trading cooperative, the surplus property of
the cooperative must be distributed as required by the rules of the
cooperative.
(2) The rules of a non-trading cooperative must make provision about the
distribution of the surplus property of the cooperative in a
winding-up.
(3) In this section:
surplus property means the property of the cooperative that
remains after satisfaction of the debts and liabilities of the cooperative and
the costs, charges and expenses of the winding-up.
321 Liquidator—vacancy
may be filled by registrar
If a cooperative is being wound up voluntarily and a vacancy happens in the
office of liquidator that in the registrar’s opinion is unlikely to be
filled in the way provided by the Corporations Act, the registrar may appoint a
person to be liquidator.
322 Review
of liquidator’s remuneration
Any member or creditor of a cooperative or the liquidator may, at any time
before the completion of the winding-up of the cooperative, apply to the Supreme
Court to review the amount of the remuneration of the liquidator.
323 Liability
of member to contribute in winding-up where shares forfeited
etc
(1) If a person’s membership of a cooperative is cancelled under
part 6 (Active membership) within 2 years before the beginning of the winding-up
of the cooperative, the person is liable on the winding-up to contribute to the
property of the cooperative the nominal value, immediately before the
cancellation, of any shares forfeited in relation to the cancellation.
(2) If under section 173 (Purchase and repayment of shares) a
cooperative—
(a) buys any share of a member in the cooperative; or
(b) repays to a member all or any part of the amount paid up on any share
held by a member;
within 2 years before the beginning of the winding-up of the cooperative,
the member or former member is liable on the winding-up to contribute to the
property of the cooperative the amount that was paid by the cooperative to the
member or former member in relation to the purchase or repayment together with
any amount unpaid on the shares immediately before the purchase or
repayment.
(3) If a person contributes to the property of a cooperative under a
liability under this section, the amount contributed is, for the winding-up
concerned, to be treated as having been paid up by the person on shares of the
cooperative.
(4) The liability of a member or former member of a cooperative under this
section is in addition to any other liability of the member or former member to
contribute to the property of the cooperative on a winding-up of the
cooperative.
Division
12.4 Administration of
cooperatives
324 Application
of Corporations Act—administration of cooperatives
(1) The Corporations Act, part 5.3A (Administration of a company’s
affairs with a view to executing a deed of company arrangement) and part 5.9
(Miscellaneous), division 3 (Provisions applying to various kinds of external
administration) apply in relation to a cooperative.
(2) The provisions apply subject to the following changes:
(a) the provisions are taken to include the provisions of section 325
(Appointment of administrator) of this Act;
(b) a reference in the provisions to the Corporations Act,
section 128 (Entitlement to make assumptions) and section 129 (Assumptions
that can be made under section 128) is taken to be a reference to the following
provisions of this Act:
• section 43 (When assumptions may be made)
• section 44 (The assumptions)
• section 45 (Person who knows or ought to know is not entitled to
make assumptions)
• section 47 (Effect of fraud);
(c) a reference in the provisions to an administrator appointed under a
provision of the Corporations Act, part 5.3A is taken to include a reference to
an administrator appointed by the registrar under the provisions included by
paragraph (a).
Division
12.5 Appointment of
administrator
325 Appointment
of administrator
(1) The registrar may, by notice, appoint an administrator to conduct the
affairs of a cooperative.
(2) A notice of appointment must state—
(a) the date of the appointment; and
(b) the appointee’s name; and
(c) the appointee’s business address.
(3) If the appointee’s name or business address changes, the
appointee must immediately give notice of the change to the registrar.
(4) The registrar may appoint an administrator only if the necessary
grounds exist, under section 338, for the taking of the action.
326 Effect
of appointment of administrator
(1) On the appointment of an administrator of a
cooperative—
(a) the directors of the cooperative cease to hold office; and
(b) all contracts of employment with the cooperative are terminated;
and
(c) all contracts for the provision of secretarial or administrative
services for the cooperative are terminated; and
(d) the administrator may terminate any contract for providing other
services to the cooperative.
(2) An administrator of a cooperative has the functions of the board of
the cooperative (including the board’s powers of delegation).
(3) A director of a cooperative may be appointed or elected while the
administrator is in office only as provided by this division.
327 Termination
of appointment of administrator
(1) An administrator holds office until—
(a) the administrator—
(i) resigns by notice signed by the administrator and received by the
registrar; or
(ii) dies; or
(b) the administrator’s appointment is revoked under subsection (2)
or (3).
(2) The registrar may, by notice, revoke the appointment of an
administrator.
(3) If a liquidator of a cooperative is appointed, the appointment of any
administrator of the cooperative is automatically revoked.
(4) Immediately on the revocation of an administrator’s appointment,
the administrator must prepare and give a report to the registrar showing how
the administration was carried out and, for that purpose, an administrator has
access to the cooperative’s records and documents.
(5) On providing the report and accounting fully in relation to the
administration of the cooperative to the satisfaction of the registrar, the
administrator is released from any further duty to account in relation to the
administration of the cooperative other than on account of fraud, dishonesty,
negligence or wilful failure to comply with this Act.
(6) Before revoking the appointment of an administrator of a cooperative
(otherwise than by appointing a liquidator), the registrar must—
(a) appoint another administrator of the cooperative; or
(b) ensure that directors of the cooperative have been elected in
accordance with the rules of the cooperative at a meeting called by the
administrator in accordance with the rules; or
(c) appoint directors of the cooperative.
(7) Directors so elected or appointed—
(a) take office on revocation of the administrator’s appointment;
and
(b) for directors appointed under subsection (6)—hold office until
the next annual general meeting of the cooperative after the revocation of that
appointment.
328 Expenses
of administration
(1) The expenses of and incidental to the conduct of a cooperative’s
affairs by an administrator are payable from the cooperative’s
funds.
(2) The expenses of conducting a cooperative’s affairs
include—
(a) if the administrator is not a public servant—remuneration of the
administrator at a rate approved in writing by the registrar; or
(b) if the administrator is a public servant—the amount that the
registrar certifies should be paid to the Territory as repayment of the
administrator’s remuneration.
(3) An amount certified under subsection (2) (b) may be recovered in
a court of competent jurisdiction as a debt to the Territory.
(4) An administrator of a cooperative has, in relation to the expenses
mentioned in this section, the same priority on the winding-up of the
cooperative as a liquidator of the cooperative.
329 Liabilities
arising from administration
(1) If a cooperative incurs any loss because of any fraud, dishonesty,
negligence or wilful failure by an administrator to comply with this Act or the
rules of the cooperative, the administrator is liable for the loss.
(2) An administrator is not liable for any other loss but must account for
the loss in a report given under section 327.
330 Additional
powers of registrar in relation to administration
(1) If the registrar appoints directors of a cooperative under section 327
(Termination of appointment of administrator), the registrar may, by notice
given to the cooperative, specify—
(a) a time during which this section is to apply in relation to the
cooperative; and
(b) the conditions on which all or any of the directors hold office;
and
(c) the rules that are to be the cooperative’s rules.
(2) While this section applies to a cooperative, the registrar may, in
writing—
(a) remove and appoint directors; and
(b) vary, revoke or specify new conditions in place of all or any of the
conditions specified under subsection (1); and
(c) amend all or any of the rules specified under subsection
(1).
(3) The registrar may, by notice given to a cooperative, extend the time
for which this section is to apply to the cooperative.
(4) A rule specified by the registrar under this section as a rule of a
cooperative—
(a) is not to be altered except in the way set out in this section;
and
(b) if it is inconsistent with any other rule of the
cooperative—prevails over the other rule, and the other rule is invalid to
the extent of the inconsistency; and
(c) has the same evidentiary value as the cooperative’s rules (and
copies of them) have under this Act.
331 Stay
of proceedings on appointment of administrator
(1) If the registrar appoints an administrator to conduct a
cooperative’s affairs, a person must not, without the Supreme
Court’s leave, begin or continue any proceeding in a court against the
cooperative until the administrator’s appointment is revoked and, if the
Supreme Court gives leave, in accordance with any conditions that the Supreme
Court imposes.
(2) A person intending to apply for leave of the Supreme Court under
subsection (1) must give the registrar at least 10 days notice of intention to
apply.
(3) On the hearing of an application under subsection (1), the registrar
may be represented and may oppose the granting of the application.
332 Administrator
to report to registrar
If the registrar asks the administrator of the cooperative for a report
about the administration, the administrator must, without delay, prepare and
give the registrar a report about how the administration is being carried
out.
Division
12.6 Effect of merger, transfer of
engagements and transfer of incorporation
333 How
div 12.6 applies to merger
(1) This division applies to a merger of cooperatives under this
part.
(2) In the application of this division to the merger, the following
definitions apply:
new body means the cooperative that results from the
merger.
original body means each cooperative that is a party to the
merger.
relevant day means the day the merged cooperative is
registered under this Act.
334 How
div 12.6 applies to transfer of engagements
(1) This division applies to a transfer of the engagements of a
cooperative to another cooperative under division 12.1.
(2) In the application of this division to the transfer of engagements,
the following definitions apply:
new body means the cooperative to which the engagements are
transferred.
original body means the cooperative that transfers its
engagements.
relevant day means the day the transfer of engagements takes
effect.
335 How
div 12.6 applies to transfer of incorporation
(1) This division applies to a transfer of incorporation under
division 12.2.
(2) In the application of this division to the transfer of incorporation,
the following definitions apply:
new body means the corporation that results from the
transfer.
original body means the cooperative that transfers its
incorporation.
relevant day means the day the transfer takes
effect.
336 Effect
of merger etc on assets, liabilities etc
(1) In this section:
assets includes contingent assets.
instrument means an instrument (other than this Act) that
creates, changes or extinguishes rights or liabilities (or would do so if
lodged, filed or registered in accordance with any Act), and includes any
judgment, order and process of a court.
(2) On and from the relevant day for an event to which this division
applies—
(a) the assets of the original body vest in the new body without the need
for any conveyance, transfer, assignment or assurance; and
(b) the rights and liabilities of the original body become the rights and
liabilities of the new body; and
(c) all proceedings by or against the original body that are pending
immediately before the relevant day are taken to be proceedings pending by or
against the new body; and
(d) anything done or omitted to be done by, to or in relation to the
original body before the relevant day is (to the extent to which it has any
force or effect) taken to have been done or omitted by, to or in relation to the
new body; and
(e) a reference in an instrument or in any document of any kind to the
original body is, or includes, a reference to the new body.
(3) Any act or omission happening because of, or arising from, the
operation of this section is not to be regarded—
(a) as a breach of contract or confidence or otherwise as a civil wrong;
or
(b) as a breach of any contractual provision prohibiting, restricting or
regulating the assignment or transfer of assets, rights or liabilities;
or
(c) as giving rise to any remedy by a party to an instrument, or as
causing or permitting the termination of any instrument, because of a change in
the beneficial or legal ownership of any asset, right or liability.
337 Certain
instruments not liable to stamp duty etc
An instrument executed or registered in relation to a transfer of property
to give effect to section 336 is not liable to stamp duty or to any fee payable
under any law for registration.
Division
12.7 Miscellaneous
338 Grounds
for winding-up, transfer of engagements, appointment of
administrator
(1) This section applies to the following actions:
(a) a direction by the registrar to a cooperative to transfer its
engagements under section 305;
(b) the appointment of an administrator of a cooperative under division
12.5;
(c) the winding-up of a cooperative on a certificate of the registrar
under section 315.
(2) The necessary grounds for the taking of action to which this section
applies exist if the registrar certifies—
(a) that the number of members is reduced to less than the minimum number
of people allowed, as mentioned in section 69; or
(b) that the cooperative has not begun business within 1 year of
registration or has suspended business for longer than 6 months; or
(c) that the registration of the cooperative has been obtained by mistake
or fraud; or
(d) that the cooperative exists for an illegal purpose; or
(e) that the cooperative has wilfully, and after notice from the
registrar, breached a provision of this Act or the rules of the cooperative;
or
(f) that the board of the cooperative has, after notice from the
registrar, failed to ensure that the rules of the cooperative contain active
membership provisions in accordance with part 6; or
(g) that there are, and have been for 1 month immediately before the date
of the registrar’s certificate, insufficient directors of the cooperative
to form a quorum as provided under the rules of the cooperative; or
(h) following an inquiry under the provisions of this Act into the affairs
of a cooperative or the working and financial condition of a cooperative, that
in the interests of members or creditors of the cooperative or the public the
action should be taken.
(3) Alternatively, the necessary grounds for the winding-up of a
cooperative on a certificate of the registrar exist if the registrar
certifies—
(a) that the period (if any) fixed under the cooperative’s rules for
its duration has ended; or
(b) that a winding-up event stated in the certificate has
happened.
(4) The registrar may certify about any matter under this section only if
the matter has been proved to the registrar’s satisfaction.
(5) In this section:
winding-up event means an event on the happening of which the
regulations or the cooperative’s rules provide that the cooperative must
be wound up.
339 Application
of Corporations Act—insolvent cooperatives
The Corporations Act, part 5.7B (Recovering property or compensation for
the benefit of creditors of insolvent company), other than section 588G
(Director’s duty to prevent insolvent trading by company), applies to a
cooperative.
Part
13 Arrangements and
reconstructions
Division
13.1 General
requirements
340 Requirements
for binding compromise or arrangement
(1) A compromise or arrangement is binding only if it is approved by order
of the Supreme Court and it is agreed to—
(a) if the compromise or arrangement is between the cooperative and any of
its creditors—at a court ordered meeting by a majority in number of those
creditors who are present and voting (in person or by proxy) and whose debts or
claims against the cooperative amount to at least 75% of the total of the debts
and claims of all those creditors who are present and voting (in person or by
proxy); or
(b) if the compromise or arrangement is between the cooperative and any of
its members—by those members by special resolution passed by a special
postal ballot.
(2) The court ordered meeting mentioned in subsection (1) (a) is a
meeting called in accordance with an order of the Supreme Court under this
part.
(3) The Supreme Court may approve a compromise or arrangement subject to
any changes or conditions it considers just.
(4) An order of the Supreme Court approving a compromise or arrangement
does not have any effect until an office copy of the order is filed with the
registrar.
(5) On the office copy being filed, the order takes effect from the date
of filing or, if an earlier date is stated in the order, the earlier
date.
341 Supreme
Court ordered meeting of creditors
(1) If a compromise or arrangement is proposed between a cooperative and
any of its creditors, the Supreme Court may on application by an appropriate
person order a meeting or meetings of the creditors concerned.
(2) An appropriate person to apply for an order
is—
(a) the cooperative; or
(b) any member of the cooperative; or
(c) any of the creditors of the cooperative; or
(d) for a cooperative being wound up—the liquidator.
(3) The meeting must be called in the way, and be held in the place or
places (in the ACT or elsewhere), that the Supreme Court directs.
(4) In considering whether to make an order for a meeting to be held
outside the ACT, the Supreme Court may have regard to where creditors
live.
342 Registrar
to be given notice and opportunity to make submissions
(1) The Supreme Court may make an order under this division if the Supreme
Court is satisfied that—
(a) at least 14 days notice of the hearing of the application for the
order, or any shorter period of notice that the Supreme Court or the registrar
permits, has been given to the registrar; and
(b) the registrar has had a reasonable opportunity to examine the terms of
and make submissions to the Supreme Court in relation to the proposed compromise
or arrangement and the draft explanatory statement relating to it.
(2) The draft explanatory must—
(a) explain the effect of the proposed compromise or arrangement and, in
particular, state—
(i) any material interests of the directors of the cooperative, whether as
directors, members or creditors of the cooperative or otherwise; and
(ii) the effect on the interests of the proposed compromise or arrangement
so far as the effect is different from the effect on the like interests of other
people; and
(b) set out—
(i) any information prescribed under the regulations; and
(ii) any other information that is—
(A) material to the making of a decision by a creditor or member of the
cooperative whether or not to agree to the proposed compromise or arrangement;
and
(B) within the knowledge of the directors of the cooperative and has not
previously been disclosed to the creditors or members of the
cooperative.
343 Results
of 2 or more meetings
If the Supreme Court orders 2 or more meetings of creditors to be held in
relation to a proposed compromise or arrangement—
(a) the meetings are taken to form a single meeting; and
(b) the votes in favour of the proposed compromise or arrangement cast at
each of the meetings are to be totalled; and
(c) the votes against the proposed compromise or arrangement cast at each
of the meetings are to be totalled.
344 People
disqualified from administering compromise etc
(1) This section applies to a person (a designated person)
who—
(a) is a mortgagee of any property of a cooperative; or
(b) is an auditor or officer of a cooperative; or
(c) is an officer of a corporation that is a mortgagee of property of a
cooperative; or
(d) is an officer of a corporation related to a cooperative; or
(e) unless the registrar directs in writing that this paragraph does not
apply in relation to the person, has at any time within the last year been an
officer or promoter of a cooperative or a related corporation of a
cooperative.
(2) A designated person may not be appointed to, and must not, administer
a compromise or arrangement (a relevant compromise or
arrangement), approved under this Act, between the cooperative and
any of its creditors or members.
(3) A person also may not be appointed to, and must not, administer a
relevant compromise or arrangement unless—
(a) the person is a registered liquidator; or
(b) the person is authorised to administer the compromise or arrangement
under another Territory law.
(4) However, despite subsection (2) or (3), the Supreme Court may give
leave for a person to be appointed to administer, and administer, a relevant
compromise or arrangement—
(a) on the application of the person; or
(b) with the person’s agreement, on the application of someone
else.
(5) This section does not disqualify a person from administering a
compromise or arrangement under an appointment validly made before the
commencement of this section.
(6) Subsection (5) and this subsection expire 1 year after the
commencement of this section.
345 Application
of sch 4 and Corporations Act—person appointed to administer compromise
etc
(1) Schedule 4, clauses 16, 18 , 19 (2), 23 and 25 apply to a
person appointed to administer a compromise or arrangement as
if—
(a) the appointment were an appointment of the person as a receiver and
manager of property of the cooperative; and
(b) a reference in any of the provisions to a receiver, or to a
controller, were a reference to the person.
(2) The Corporations Act, section 536 (Supervision of liquidators) applies
to a person appointed to administer a compromise or arrangement in relation to a
cooperative.
(3) The section applies subject to the following changes:
(a) the appointment is taken to be an appointment of the person as a
liquidator of the cooperative;
(b) a reference in the section to a liquidator is taken to be a reference
to the person appointed.
346 Copy
of order to be attached to rules
(1) A cooperative must ensure that a copy of an order of the Supreme Court
approving a compromise or arrangement is attached to each copy of the rules of
the cooperative issued after the order is made.
Maximum penalty: 20 penalty units.
(2) The Supreme Court may, by order, exempt a cooperative from complying
with this section or fix the period during which the cooperative must
comply.
347 Directors
to arrange for reports in relation to compromise etc
(1) If a compromise or arrangement in relation to a cooperative has been
proposed (whether or not in relation to a scheme for the reconstruction of the
cooperative or the merger of the cooperative with another cooperative), the
directors of the cooperative must—
(a) if a meeting of the members of the cooperative directs by
resolution—instruct the accountants or solicitors named in the resolution
to report on the proposal and give their report to the directors as soon as
practicable; and
(b) make the report available at the registered office of the cooperative
for inspection by the members and creditors of the cooperative at least 7 days
before the day of the meeting ordered by the Supreme Court or the holding of the
special postal ballot, as appropriate.
(2) If this section is not complied with, each director of the cooperative
commits an offence.
Maximum penalty (subsection (2)): 20 penalty units.
348 Power
of Supreme Court to restrain further proceedings
(1) If a proposed compromise or arrangement is between a cooperative and
any of its creditors and no order has been made or resolution passed for the
winding-up of the cooperative, the Supreme Court may restrain further
proceedings in any action or other civil proceeding against the cooperative
except by leave of the Supreme Court and subject to the conditions that the
Supreme Court imposes.
(2) The Supreme Court’s power under this section is in addition to
any of its other powers and may only be exercised on application by the
cooperative or a creditor or member of the cooperative.
349 Supreme
Court need not approve compromise or arrangement takeovers
(1) The Supreme Court need not approve a compromise or arrangement
unless—
(a) it is satisfied that the compromise or arrangement has not been
proposed to avoid any of the provisions of division 11.2 (Restrictions on
certain share offers); and
(b) there is produced to the Supreme Court a written statement by the
registrar stating that the registrar has no objection to the compromise or
arrangement.
(2) The Supreme Court need not approve a compromise or arrangement only
because a statement by the registrar stating that the registrar has no objection
to the compromise or arrangement has been produced to the Supreme
Court.
Division
13.2 Explanatory
statements
350 Explanatory
statement required to accompany notice of meeting etc
(1) An explanatory statement must accompany every notice—
(a) sent to a creditor of a cooperative calling the court ordered meeting
to obtain agreement to the compromise or arrangement; or
(b) sent to a member of a cooperative for the purpose of the conduct of
the special postal ballot to obtain agreement to the compromise or
arrangement.
(2) In every notice of a meeting mentioned in subsection (1) that is given
by advertisement there must be included either a copy of the explanatory
statement or notification of where and how creditors entitled to attend the
meeting may obtain copies of the explanatory statement.
(3) The explanatory statement must—
(a) explain the effect of the compromise or arrangement and, in
particular, state—
(i) any material interests of the directors of the cooperative, whether as
directors, as members or creditors of the cooperative or otherwise;
and
(ii) the effect on the interests of the compromise or arrangement so far
as the effect is different from the effect on the like interests of other
people; and
(b) set out—
(i) any information prescribed under the regulations; and
(ii) any other information that—
(A) is material to the making of a decision by a creditor or member
whether or not to agree to the compromise or arrangement; and
(B) is within the knowledge of the directors and has not previously been
disclosed to the creditors or members of the cooperative.
(4) Subsection (1) (a) applies to a creditor whose debt is not more
than $200 only if the Supreme Court orders that it applies.
(5) The notice calling the meeting that is sent to a creditor mentioned in
subsection (1) (a) must state where a copy of the explanatory statement can
be obtained on request.
(6) The cooperative must comply with a request under subsection (5) as
soon as practicable.
351 Requirements
for explanatory statement
(1) An explanatory statement must be as approved in writing by the
registrar.
(2) If the compromise or arrangement affects the rights of debenture
holders, the explanatory statement must state—
(a) any material interests of the trustees for the debenture holders,
whether as trustees, members or creditors of the cooperative or otherwise;
and
(b) the effect on the interests of the compromise or arrangement to the
extent that the effect is different from the effect on the like interests of
other people.
(3) If a notice given by advertisement includes a notification that copies
of the explanatory statement can be obtained in a particular way, the
cooperative must provide a copy of the statement free of charge to each creditor
or member entitled to attend the meeting or vote in the ballot who applies for
it in the appropriate way.
(4) Each person who is a director or trustee for debenture holders must
give notice to the cooperative of the matters relating to the person that are
required to be included in the explanatory statement.
352 Contravention
of div 13.2—offence by cooperative etc
(1) If a provision of this division is contravened, the cooperative
concerned and anyone else involved in the contravention commits an
offence.
Maximum penalty: 20 penalty units.
(2) It is a defence to a prosecution for an offence against subsection (1)
if the defendant satisfies the court that the contravention was caused by the
failure of someone else who is a director of the cooperative, or a trustee for
debenture holders of the cooperative, to supply particulars of the
person’s interests for the explanatory statement.
353 Provisions
for facilitating reconstructions and mergers
(1) In this section:
cooperative includes a foreign cooperative registered, formed
or incorporated under a law of a State or another Territory.
(2) This section applies if an application is made to the Supreme Court
under this part for the approval of a compromise or arrangement and it is shown
to the court that—
(a) the compromise or arrangement has been proposed in relation to a
scheme for the reconstruction of a cooperative or the merger of a cooperative
with another cooperative or with another corporation; and
(b) under the scheme all or any part of the undertaking or of the property
of a cooperative concerned in the scheme (the transferor) is to be
transferred to another corporation (the transferee) except a
company.
(3) If this section applies, the Supreme Court may, either by the order
approving the compromise or arrangement or by a later order, provide for any 1
or more of the following:
(a) the transfer to the transferee of all or part of the undertaking and
of the property or liabilities of the transferor;
(b) the allotting or appropriation by the transferee of shares,
debentures, policies or other interests in the transferee that, under the
compromise or arrangement, are to be allotted or appropriated by the transferee
to or for anyone else;
(c) the bringing by or against the transferee of any legal proceeding
pending by or against the transferor;
(d) the deregistration, without winding-up, of the transferor;
(e) the provision to be made for anyone dissenting from the compromise or
arrangement in the way and within the time directed by the court;
(f) the transfer or allotment of any interest in property to anyone
concerned in the compromise or arrangement;
(g) any incidental, consequential or supplemental matters necessary to
ensure that the reconstruction or merger is fully and effectively carried
out.
(4) If an order under this section provides for the transfer of property,
the property is transferred to and vests in the transferee because of the order
and, if the order so directs, the property is transferred and vests free from
any charge that is to cease to have effect because of the compromise or
arrangement.
(5) If an order under this section provides for the transfer of
liabilities, the liabilities are transferred to and become liabilities of the
transferee because of the order.
(6) If an order is made under this section, each body to which the order
relates must file an office copy of the order with the registrar within 14 days
after the day the order is made.
(7) In this section:
liabilities includes duties of any description (including
duties that are of a personal character or cannot, under the general law, be
assigned or performed vicariously).
property includes rights and powers of any description
(including rights and powers that are of a personal character or cannot, under
the general law, be assigned or performed vicariously).
Division
13.3 Acquisition of shares of
dissenting shareholders
354 Definitions
for div 13.3
In this division:
dissenting shareholder, in relation to a scheme or contract,
means a shareholder who has not agreed to the scheme or contract or who has
failed to transfer shares in accordance with the scheme or contract.
excluded shares, in relation to a scheme or contract
involving a transfer to a person of shares in a class of shares in a
cooperative, means shares in that class that, when the offer relating to the
scheme or contract is made, are held by—
(a) in any case—the person or a nominee of the person; or
(b) if the person is a corporation—a subsidiary of the
corporation.
355 Schemes
and contracts to which div 13.3 applies
(1) This division applies to a scheme or contract involving a transfer of
shares in a cooperative (the transferor) to a person (the
transferee) that has, within 4 months after the making of the
offer relating to the scheme or contract by the transferee, been approved by the
holders of at least 90% of the nominal value of all the shares concerned (other
than excluded shares).
(2) This division does not apply to a scheme or contract arising out of
the making of an offer to which division 11.2 applies.
356 Acquisition
of shares under notice to dissenting shareholder
(1) The transferee under the scheme or contract may, within 2 months after
the day the offer is approved, give written notice (a compulsory
acquisition notice) to a dissenting shareholder that the transferee
wishes to acquire the shares held by the shareholder.
Note If a form is approved under s 468 (Approved forms) for a
compulsory acquisition notice, the form must be used.
(2) If a compulsory acquisition notice is given, the dissenting
shareholder may, by notice given to the transferee within 1 month after the day
the compulsory acquisition notice was received, ask for a written statement of
the names and addresses of all other dissenting shareholders as shown in the
register of members.
(3) The transferee must give the requested statement to the dissenting
shareholder.
(4) Having given the compulsory acquisition notice, the transferee is,
unless the Supreme Court otherwise orders, entitled and bound to acquire the
dissenting shareholder’s shares on the conditions on which, under the
scheme or contract, the shares of the approving shareholders are to be
transferred to the transferee.
(5) The Supreme Court may make an order to the contrary only on the
application of the dissenting shareholder made within 28 days after the day the
compulsory acquisition notice was received or within 14 days after the day any
statement asked for under subsection (2) was received, whichever is the
later.
(6) If alternative conditions are offered to the approving
shareholders—
(a) the dissenting shareholder is entitled to elect which of the
conditions are preferred, but must make the election within the time allowed for
making an application to the Supreme Court under subsection (5);and
(b) if the dissenting shareholder does not make the election within that
time—the transferee may, unless the Supreme Court otherwise orders, decide
which of the conditions is to apply to the acquisition of the shares of the
dissenting shareholder.
357 Restrictions
when excluded shares exceed 10%
If the nominal value of excluded shares exceeds 10% of the aggregate
nominal value of all the shares (including excluded shares) to be transferred
under the scheme or contract, section 356 applies only if—
(a) the transferee offers the same conditions to all holders of the shares
(other than excluded shares) to be transferred under the scheme or contract;
and
(b) the holders who approve the scheme or contract together hold at least
90% of the nominal value of the shares (other than excluded shares) to be
transferred under the scheme or contract and are also at least 75% in number of
the holders of those shares (with joint owners of shares being counted as a
single person).
358 Remaining
shareholders may require acquisition
(1) If, under a scheme or contract to which this division applies, the
transferee becomes beneficially entitled to shares in the transferor that,
together with any other shares in the transferor to which the transferee or a
corporation related to the transferee is beneficially entitled, consist of or
include 90% of the nominal value of the shares—
(a) the transferee must, within 28 days after the day the transferee
becomes beneficially entitled to the shares, give notice of the fact as
prescribed under the regulations to the holders of the remaining shares who,
when the notice was given, had not agreed to the scheme or contract or been
given a compulsory acquisition notice by the transferee under this division;
and
(b) a holder of shares who is given notice by the transferee may, within 3
months after the day the holder is given the notice, by notice to the transferee
require the transferee to acquire the holder’s shares and, if alternative
conditions were offered to the approving shareholders, elect which of the
conditions the holder will accept.
(2) If a shareholder gives notice under this section in relation to the
shareholder’s shares, the transferee is entitled and bound to acquire the
shares—
(a) on the conditions on which, under the scheme or contract, the shares
of the approving shareholders were transferred to the transferee and, if
alternative conditions were offered to the shareholders, on the conditions for
which the shareholder has elected or, if no election is made, for whichever of
the conditions the transferee decides; or
(b) on the other conditions that are agreed or the Supreme Court orders on
the application of the transferee or shareholder.
359 Transfer
of shares in accordance with compulsory acquisition
(1) A transferee who has given a compulsory acquisition notice
must—
(a) send a copy of the notice to the transferor together with an
instrument of transfer of the shares that the transferee is entitled to acquire
under this division and that is executed, on the shareholder’s behalf, by
a person appointed by the transferee and, on the transferee’s own behalf,
by the transferee; and
(b) pay, allot or transfer to the transferor the consideration for the
shares.
(2) The transferee must comply with subsection (1) within 14 days after
whichever of the following happens last:
(a) the period of 28 days after the day the compulsory acquisition notice
was given ends;
(b) the period of 14 days after a statement of the names and addresses of
dissenting shareholders is given under this division ends;
(c) if an application has been made to the Supreme Court by a dissenting
shareholder—the application is disposed of.
(3) When the transferee has complied with this section, the transferor
must register the transferee as the holder of the shares.
(4) This section does not apply if the Supreme Court on the application of
the dissenting shareholder otherwise orders.
360 Disposal
of consideration for shares compulsorily acquired
(1) All amounts received by the transferor under this division must be
paid into a separate bank account and the amounts, and any other consideration
received under this division, are to be held by the transferor in trust for the
people entitled to the shares in relation to which they were respectively
received.
(2) If an amount or other consideration received by the transferor under
this division has been held in trust by the transferor for a person for at least
2 years, the transferor must pay the amount or transfer the consideration to the
registrar, together with any accretions to it and any property that has become
substituted for it or part of it.
(3) The Corporations Act, part 9.7 (Unclaimed property) applies to
anything paid or transferred to the registrar under subsection (2).
(4) The part applies subject to the change mentioned in
subsection (5).
(5) A reference in the part to unclaimed property is taken
to be a reference to the thing paid or transferred to the registrar under
subsection (2).
(6) The transferor must comply with subsection (2) before the end of 10
years after the day the amount was paid, or the consideration was allotted or
transferred, to the transferor.
Division
13.4 Miscellaneous
361 Notice
of appointment of scheme manager
If a person is appointed to administer a compromise or arrangement approved
under this part, the person must file a notice of the appointment with the
registrar within 14 days after the appointment is made.
Maximum penalty: 10 penalty units.
362 Power
of Supreme Court to require reports in relation to proposed compromise
etc
If an application is made to the Supreme Court under this part in relation
to a proposed compromise or arrangement, the Supreme Court may—
(a) before making any order on the application, require the registrar or
anyone else to give to the court a report about—
(i) the conditions of the compromise or arrangement or of the scheme for
or in relation to which the compromise or arrangement has been proposed;
and
(ii) the conduct of the officers of the entities concerned; and
(iii) anything else that, in the opinion of the registrar or the person,
ought to be brought to the attention of the court; and
(b) in deciding the application, have regard to anything contained in the
report; and
(c) make orders about the payment of the costs of preparing and giving the
report.
363 Effect
of out-of-jurisdiction compromise or arrangement
(1) A compromise or arrangement that is binding on any creditors of a
foreign cooperative because of a provision of the law of a State or another
Territory that corresponds to this part is also binding on the creditors of the
foreign cooperative whose debts are recoverable by proceeding in an ACT
court.
(2) If a court of a State or another Territory makes an order under a
provision of the law of the State or other Territory that is prescribed under
the regulations as corresponding to a provision of this part, the order is taken
to have been made by the Supreme Court of the ACT under the corresponding
provision of this Act and has effect and may be enforced accordingly.
364 Jurisdiction
to be exercised in harmony with Corporations Act
jurisdiction
The jurisdiction of the Supreme Court under this part is intended to
complement the Supreme Court’s jurisdiction under the Corporations Act and
to be exercisable in harmony with that jurisdiction.
365 Registrar
may appear in pt 13 proceedings
In a proceeding in the Supreme Court under this part, the registrar is
entitled to appear and be heard, either in person or by a lawyer or
representative.
Part
14 Foreign
cooperatives
Division
14.1 Introductory
366 Definitions
for pt 14
In this part:
cooperatives law means a law declared under section 367 to be
a cooperatives law for this part.
nonparticipating cooperative means a foreign cooperative
other than a participating cooperative.
participating cooperative means a foreign cooperative
registered, incorporated or formed under, or subject to, a cooperatives
law.
participating State means a State in which a cooperatives law
is in force.
State includes another Territory.
367 Declaration
of cooperatives laws
(1) The Minister may, in writing, declare that a law of a State is a
cooperatives law for this part.
(2) However, a declaration may be made under subsection (1) in relation to
a law of a State only if the Minister is satisfied that the law—
(a) substantially corresponds to the provisions of this Act; and
(b) contains provisions that are mentioned in this part as provisions of a
cooperatives law that correspond to stated provisions of this Act.
(3) A declaration under this section is a notifiable instrument.
Note A notifiable instrument must be notified under the
Legislation Act 2001.
Division
14.2 Registration of foreign
cooperatives
368 Operation
of foreign cooperatives in ACT
A foreign cooperative must not carry on business in the ACT unless it is
registered under section 374 as a foreign cooperative.
Maximum penalty: 200 penalty units.
369 What
constitutes carrying on business in ACT
(1) A foreign cooperative carries on business in the ACT if
it—
(a) solicits for members in the ACT; or
(b) seeks share capital in the ACT; or
(c) provides any goods or services within the ACT.
(2) A foreign cooperative is not to be regarded as carrying on business in
the ACT only because in the ACT it—
(a) is or becomes a party to a proceeding or arbitration, settles a
proceeding or settles a claim or dispute; or
(b) holds meetings of its directors or members or carries on other
activities concerning its internal affairs; or
(c) maintains any bank account; or
(d) effects any sale through an independent contractor; or
(e) solicits or procures any offer that becomes a binding contract only if
the offer is accepted outside the ACT; or
(f) creates evidence of any debt or creates a charge on real and personal
property; or
(g) secures or collects any of its debts or enforces its rights in
relation to any securities relating to the debts; or
(h) conducts an isolated transaction that is completed within
31 days, other than a transaction that is one of a number of similar
transactions repeated from time to time.
370 Application
for registration of participating cooperative
(1) A participating cooperative that proposes to carry on business as a
cooperative in the ACT may apply to the registrar to be registered as a foreign
cooperative.
Note 1 A fee may be determined under s 467 (Determination of fees)
for this section.
Note 2 If a form is approved under s 468 (Approved forms) for an
application under this section, the form must be used.
(2) An application by a participating cooperative must be accompanied
by—
(a) a certificate, not more than 2 months old, from the registrar of the
participating State, where the participating cooperative is registered,
incorporated or formed, stating that the cooperative is complying with the
provisions of the cooperatives law of that State prescribed under the
regulations for the provision of that law that corresponds with section 379;
and
(b) the documents prescribed under the regulations for the provision of
the cooperatives law of that State that corresponds with section 379;
and
(c) a copy of the current rules of the cooperative; and
(d) a statement, verified as prescribed, setting out—
(i) the full name and address of each person who will act as agent of the
cooperative in the ACT; and
(ii) the address of the proposed registered office of the cooperative in
the ACT; and
(iii) a copy of an instrument appointing a person resident in the ACT
(other than a corporation incorporated outside the ACT) as a person on whom all
notices and legal process may be served on behalf of the cooperative;
and
(e) any other documents or information prescribed under the
regulations.
371 Application
for registration of nonparticipating cooperative
(1) A nonparticipating cooperative that proposes to carry on business as a
cooperative in the ACT may apply to the registrar to be registered as a foreign
cooperative.
Note 1 A fee may be determined under s 467 (Determination of fees)
for this section.
Note 2 If a form is approved under s 468 (Approved forms) for an
application under this section, the form must be used.
(2) An application by a nonparticipating cooperative must be accompanied
by—
(a) a copy of the current rules of the cooperative; and
(b) a statement, verified as prescribed under the regulations, setting
out—
(i) the full name and address of each person who will act as agent of the
cooperative in the ACT; and
(ii) the address of the proposed registered office of the cooperative in
the ACT; and
(iii) a copy of an instrument appointing a person resident in the ACT
(other than a corporation incorporated outside the ACT) as a person on whom all
notices and legal process may be served on behalf of the cooperative;
and
(c) any other documents or information prescribed under the
regulations.
372 Registrar
to approve rules of nonparticipating cooperative
A nonparticipating cooperative is eligible for registration only if the
registrar is satisfied that the rules of the cooperative—
(a) comply with cooperative principles; and
(b) include acceptable active membership provisions; and
(c) provide procedures acceptable to the registrar for disclosure of
information; and
(d) provide that a member has 1 vote only; and
(e) make adequate provision for the duties of directors; and
(f) provide for acceptable accounting standards for the
cooperative.
373 Name
of foreign cooperative
(1) A foreign cooperative is eligible for registration under section 374
if the name under which it proposes to carry on business in the ACT is not
likely to be confused with the name of a corporation or a registered business
name.
(2) If the registrar tells the foreign cooperative that the name under
which it proposes to carry on business in the ACT is likely to be confused with
the name of a corporation or registered business name, the cooperative may amend
its application by substituting another name.
374 Registration
of foreign cooperative
(1) If, on application under this division, the registrar is satisfied
that a foreign cooperative is eligible for registration, the registrar must
register the foreign cooperative as a foreign cooperative and issue a
certificate of registration in accordance with the requirements (if any) of the
regulations.
(2) If—
(a) a nonparticipating cooperative (the relevant
cooperative) is registered as a foreign cooperative; and
(b) the law under which the relevant cooperative is registered,
incorporated or formed, or to which the relevant cooperative is subject,
subsequently becomes a cooperatives law;
the relevant cooperative becomes a participating cooperative.
(3) The relevant cooperative does not, only because it has become a
participating cooperative, cease to be registered under this section as a
foreign cooperative.
375 Application
of Act to foreign cooperatives
The regulations may prescribe provisions of this Act that apply, with all
necessary changes and any changes prescribed under the regulations, to a foreign
cooperative registered under section 374 as if the foreign cooperative were a
cooperative.
376 Registrar
to be told of certain changes in relation to foreign
cooperatives
(1) Within 28 days after day a notifiable change happens in relation to a
foreign cooperative registered under section 374, the foreign cooperative must
file with the registrar particulars of the change accompanied by any documents
prescribed under the regulations.
(2) In this section:
notifiable change, in relation to the foreign cooperative,
means a change in—
(a) the rules or constitution of the foreign cooperative; or
(b) the directors of the foreign cooperative; or
(c) the agents of the foreign cooperative (or their addresses);
or
(d) the person appointed as the person on whom notices and legal process
may be served on behalf of the foreign cooperative; or
(e) the address of the registered office in the ACT or elsewhere of the
foreign cooperative; or
(f) the name under which the foreign cooperative carries on
business.
377 Balance
sheets of foreign cooperatives
(1) A foreign cooperative registered under section 374 must, within
6 months (or any longer period that the registrar allows) after the end of
each of its financial years, file with the registrar—
(a) for a participating cooperative—a copy of the balance sheet
relating to its financial affairs as at the end of the financial year, in the
form, and with any accompanying documents, required by the cooperatives law of
the relevant participating State; and
(b) for a nonparticipating cooperative—a copy of the balance sheet
relating to its financial affairs as at the end of the financial year and any
accompanying documents required by the registrar.
Maximum penalty: 20 penalty units.
Note If a form is approved under s 468 (Approved forms) for a
balance sheet mentioned in par (b), the form must be used.
(2) If the registrar is of the opinion that a balance sheet filed with the
registrar under this section does not sufficiently disclose the financial
affairs of the foreign cooperative, the registrar may, by notice, require the
foreign cooperative to give the registrar further information or
documents.
(3) A foreign cooperative must comply with a notice given to it under
subsection (2) within the period stated in the notice.
Maximum penalty (subsection (3)): 50 penalty units.
378 Cessation
of business by foreign cooperatives
(1) A foreign cooperative registered under section 374 must, within
7 days after the day it ceases to carry on business as a cooperative in the
ACT, give the registrar written notice of that fact.
Maximum penalty: 50 penalty units.
(2) After giving the notice, the foreign cooperative is no longer obliged
to comply with this part.
(3) Unless the registrar has been told in writing that the foreign
cooperative has resumed carrying on business as a cooperative in the ACT, the
registrar must, 1 year after the day the registrar receives the notice under
subsection (1), cancel the foreign cooperative’s registration.
379 Cooperative
proposing to register as foreign cooperative
(1) A cooperative that proposes to apply to be registered as a foreign
cooperative in another participating State may apply to the registrar for a
certificate that it is complying with all provisions of this Act prescribed
under the regulations, including, if the registrar has varied a requirement in
relation to that cooperative, the provision as varied.
(2) The registrar must issue the certificate to the cooperative unless the
registrar is of the opinion that the cooperative is not complying with the
provisions prescribed under the regulations.
(3) If the registrar issues the certificate, the registrar must also give
to the cooperative the documents prescribed under the regulations.
Division
14.3 Mergers and transfers of
engagements
380 Definitions
for div 14.3
In this division:
appropriate registrar, in relation to a
proposed merger or transfer of engagements, means—
(i) the Territory registrar, if the merger is to result in a Territory
cooperative or the transfer is to a Territory cooperative; or
(ii) the registrar for the relevant participating State, if the merger is
to result in a cooperative under the cooperatives law of a participating State
or the transfer is to such a cooperative.
Territory cooperative means a cooperative registered under
part 2 (Formation).
Territory registrar means the registrar under this
Act.
381 Authority
for merger or transfer of engagements
(1) A Territory cooperative and a participating cooperative may
consolidate all or any of their assets, liabilities and undertakings by way of
merger or transfer of engagements approved under this division.
(2) A Territory cooperative and a nonparticipating cooperative may
consolidate all or any of their assets, liabilities and undertakings by way of
merger or transfer of engagements approved under this division
if—
(a) the merger is to result in a Territory cooperative; or
(b) the transfer is to a Territory cooperative.
382 Requirements
before application may be made
(1) A Territory cooperative and a participating cooperative may apply for
approval under this division of a merger or transfer of engagements only if the
proposed merger or transfer has been approved by each of the
cooperatives—
(a) by a special resolution passed by a special postal ballot;
or
(b) if the criteria mentioned in subsection (2) apply—by a special
resolution of the cooperative or a resolution of the board of the
cooperative.
(2) The criteria for subsection (1) (b) are—
(a) that the Territory registrar consents in writing to the procedure
applying in the particular case; and
(b) that the registrar for the relevant participating State also consents
to the procedure applying in the particular case.
(3) A Territory cooperative and a nonparticipating cooperative may apply
for approval under this division of a merger or transfer of engagements only if
the proposed merger or transfer of engagements has been
approved—
(a) for the nonparticipating cooperative—
(i) by a special resolution of cooperative; or
(ii) if the Territory registrar consents in writing to the procedure
applying in the particular case—by a resolution of the board of the
cooperative; and
(b) for the Territory cooperative—
(i) by a special resolution passed by a special postal ballot;
or
(ii) if the Territory registrar consents in writing to the procedure
applying in the particular case—by a special resolution of the cooperative
or a resolution of the board of the cooperative.
(4) The consent of the Territory registrar under this section may be given
on conditions.
383 Disclosure
statement required for certain mergers etc
(1) A special resolution of the Territory cooperative or foreign
cooperative is effective for this division only if this section has been
complied with.
(2) Each cooperative must send to each of its members a disclosure
statement approved in writing by the appropriate registrar
specifying—
(a) the financial position of the Territory cooperative and the foreign
cooperative as shown in financial statements that have been prepared as at a
date not earlier than 6 months before the date of the statement; and
(b) any interest that any officer of the Territory cooperative or the
foreign cooperative has in the proposed merger or transfer of engagements;
and
(c) any compensation or other consideration proposed to be paid, or any
other incentive proposed to be given, to any officer or member of the Territory
cooperative or foreign cooperative in relation to the proposed merger or
transfer of engagements; and
(d) whether the proposal is a merger or transfer of engagements and the
reason for the merger or transfer or engagements; and
(e) for a transfer of engagements—whether it is a total or partial
transfer of engagement; and
(f) for a merger—whether the merged cooperative will result in a
Territory cooperative or a cooperative under the cooperatives law of the
relevant participating State; and
(g) any other information that the appropriate registrar
directs.
(3) The disclosure statement must be sent to the members of the Territory
cooperative or foreign cooperative so that it will in the ordinary course of
post reach each member who is entitled to vote on the special resolution not
later than—
(a) if the resolution is to be decided at a meeting—21 days before
the date of the meeting; or
(b) if the resolution is to be decided by a postal ballot—21 days
before the day on or before which the ballot papers must be returned by members
voting in the ballot.
(4) The appropriate registrar may, in writing, exempt the Territory
cooperative or foreign cooperative from this section or a provision of this
section.
(5) The appropriate registrar may give an exemption, or approve a
disclosure statement, subject to conditions.
384 Making
application for approval of merger etc
(1) An application for approval of a merger or transfer of engagements
under this division must be made to the Territory registrar and, if the merger
or transfer affects a participating cooperative, to the registrar for the
relevant participating State in the way and form required by that
registrar.
(2) An application for approval of a merger must be accompanied
by—
(a) 2 copies of the proposed rules of the merged cooperative;
and
(b) for a nonparticipating cooperative—details of voting on the
special resolution (if any) of the cooperative; and
(c) any other information required by the registrar to whom the
application is made.
(1) If the Territory registrar is the appropriate registrar, the Territory
registrar must approve a merger under this division if satisfied
that—
(a) this division has been complied with in relation to the application
for the merger; and
(b) the proposed rules of the merged cooperative are adequate;
and
(c) the certificate of registration of the Territory cooperative has been
surrendered to the Territory registrar; and
(d) for a merger with a participating cooperative—the certificate of
registration of the participating cooperative has been surrendered to the
registrar for the relevant participating State; and
(e) for a merger with a nonparticipating cooperative—the merged
cooperative will comply with this Act; and
(f) there is no good reason why the merged cooperative and its rules
should not be registered.
(2) If the Territory registrar is not the appropriate registrar, the
Territory registrar must approve a merger under this division if satisfied that
the merger has been approved under the provision of the cooperatives law of the
participating State that corresponds with subsection (1).
(3) On approving a merger, the Territory registrar must—
(a) cancel the registration of the Territory cooperative involved in the
merger; and
(b) if the merger is to result in a Territory cooperative—register
the merged cooperative and its rules and issue to it a certificate of
registration under this Act.
(4) A merger takes effect on the issue of the certificate of registration
for the merged cooperative (whether under this Act or under the cooperatives law
of the relevant participating State).
386 Approval
of transfer of engagements
(1) If the Territory registrar is the appropriate registrar, the Territory
registrar must approve a transfer of engagements under this division if
satisfied that—
(a) this division has been complied with in relation to the application
for the transfer; and
(b) the rules or proposed rules of the transferee cooperative are
adequate; and
(c) for a total transfer of engagements from a participating
cooperative—the certificate of registration of the participating
cooperative has been surrendered to the registrar for the relevant participating
State; and
(d) for a total transfer of engagements from a nonparticipating
cooperative—the certificate of registration of the nonparticipating
cooperative has been surrendered to the Territory registrar; and
(e) for a transfer of engagements by a nonparticipating
cooperative—the transferee cooperative will comply with this Act;
and
(f) there is no good reason why the transfer of engagements should not
take effect.
(2) If the Territory registrar is not the appropriate registrar, the
Territory registrar must approve a transfer of engagements under this division
if satisfied that the transfer has been approved under the provision of the
cooperatives Act of the participating State that corresponds with subsection
(1).
(3) A transfer of engagements takes effect on the day stated in the
approval of the Territory registrar.
387 Effect
of merger or transfer of engagements
(1) In this section:
assets means any legal or equitable estate or interest
(whether present or future and whether vested or contingent) in real or personal
property of any description (including money), and includes securities, things
in action and documents.
instrument means an instrument (other than this Act) that
creates, changes or extinguishes rights or liabilities (or would do so if
lodged, filed or registered in accordance with any law) and includes any
judgment, order and process of a court.
liabilities means liabilities, debts and obligations (whether
present or future and whether vested or contingent).
original cooperative means—
(a) for a transfer of engagements—the transferor cooperative;
or
(b) for a merger—each of the cooperatives that are
merging.
successor cooperative means—
(a) for a transfer of engagements—the transferee cooperative;
or
(b) for a merger—the cooperative formed by the merger.
transfer day means the day a merger or transfer of
engagements takes effect under this division.
(2) On and from the transfer day, the following provisions apply to the
extent necessary to give effect to the merger or transfer:
(a) the members of the original cooperative immediately before the
transfer day are members of the successor cooperative in accordance with its
rules;
(b) the assets of the original cooperative vest in the successor
cooperative without the need for any conveyance, transfer, assignment or
assurance;
(c) the rights and liabilities of the original cooperative become the
rights and liabilities of the successor cooperative;
(d) all proceedings by or against the original cooperative that are
pending immediately before the transfer day are taken to be proceedings pending
by or against the successor cooperative;
(e) anything done or omitted to be done by, to or in relation to the
original cooperative before the transfer day is taken (to the extent to which it
has any force or effect) to have been done or omitted by, to or in relation to
the successor cooperative;
(f) a reference in an instrument to the original body is, or includes, a
reference to the new body.
(3) An act or omission happening because of, or arising from, this section
is not to be regarded as—
(a) a breach of contract or confidence or otherwise as a civil wrong;
or
(b) a breach of any contractual provision prohibiting, restricting or
regulating the assignment or transfer of assets, rights or liabilities;
or
(c) giving rise to any remedy by a party to an instrument, or as causing
or permitting the termination of any instrument, because of a change in the
beneficial or legal ownership of any asset, right or liability.
(4) A document or an instrument executed or registered in relation to a
transfer of any property to give effect to this section in relation to a
transfer of engagements is not liable to stamp duty or to any fee payable under
any law for registration.
(5) A document or an instrument executed or registered in relation to a
transfer of any property to give effect to this section in relation to a merger
is not liable to stamp duty or to any fee payable under any law for registration
if the cooperative formed by the merger is a non-trading cooperative.
388 Div
14.3 applies instead of certain other provisions of Act
(1) This division applies, instead of division 12.1 (Mergers and transfers
of engagements), in relation to the merger of a Territory cooperative with a
foreign cooperative.
(2) This division applies, instead of division 12.1, in relation to a
transfer of engagements between a Territory cooperative and a foreign
cooperative.
Part
15 Supervision and protection of
cooperatives
Division
15.1 Supervision and
inspection
389 Definitions
for div 15.1
In this division:
cooperative venture means—
(a) any corporation or unit trust formed by a cooperative or in the
formation of which a cooperative participated; or
(b) any partnership, joint venture or association of entities formed or
entered into by a cooperative.
premises includes any structure, building, aircraft, vehicle,
vessel and place (whether built on or not), and any part of the structure,
building, aircraft, vehicle, vessel or place.
relevant documents means records or other documents that
relate to the promotion, formation, membership, control, transactions, dealings,
business or property of a cooperative.
390 Cooperative
includes subsidiaries, foreign cooperatives and cooperative
ventures
In this part:
cooperative includes the following:
(a) a foreign cooperative;
(b) a subsidiary of a cooperative or foreign cooperative;
(c) a cooperative venture;
(d) a cooperative or foreign cooperative, or a subsidiary of either, or a
cooperative venture, that is in the course of being wound up or has been
deregistered.
391 Appointment
of inspectors
The Minister may appoint a person to be an inspector for this
Act.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act 2001, div 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act 2001, s 7 (3)) and an appointment
may be made by naming a person or nominating the occupant of a position (see
s 207).
Note 3 Certain Ministerial appointments require consultation with an
Assembly committee and are disallowable (see Legislation Act 2001,
div 19.3.3).
392 Registrar
and investigators have functions of inspectors
The registrar, and any investigator, may exercise all the functions of an
inspector and for that purpose is taken to be an inspector.
393 Inspector’s
identity card
(1) The registrar must provide each inspector with an identity
card.
(2) An inspector must produce the inspector’s identity card on
request on applying for entry to any premises.
(3) If a person ceases to be an inspector, the person must return the
person’s identity card to the registrar within 7 days after the day the
person ceases to be an inspector.
Maximum penalty (subsection (3)): 1 penalty unit.
394 Inspectors
may require certain people to appear, answer questions and produce
documents
(1) An inspector may, by notice—
(a) require a cooperative to produce to the inspector, at a time and place
stated in the notice, stated relevant documents relating to the cooperative;
or
(b) require anyone who is involved in the activities of a cooperative to
produce to the inspector, at a time and place stated in the notice, stated
relevant documents relating to the cooperative; or
(c) require any person who appears to the inspector to be involved in the
activities of a cooperative—
(i) to attend before the inspector at a time and place stated in the
notice; and
(ii) to answer any questions put to the person by the inspector relating
to the promotion, formation, membership, control, transactions, dealings,
business or property of the cooperative.
(2) A person is taken to be involved in the activities of a
cooperative if the person—
(a) is or has been an officer or employee of, or an agent, banker,
solicitor, auditor or other person acting in any capacity for or on behalf of,
the cooperative; or
(b) has any relevant documents relating to the cooperative in the
person’s possession or control; or
(c) was a party to the creation of any relevant documents relating to the
cooperative.
(3) A person is not subject to any civil or criminal liability because of
complying honestly with a requirement made or purportedly made under this
section.
395 Inspector’s
powers of entry
(1) An inspector has power to enter any of the following
premises:
(a) any premises where the affairs or activities of a cooperative are
managed or conducted;
(b) any premises where the inspector believes, on reasonable grounds,
there is evidence of the commission of an offence against this Act;
(c) any premises where the inspector believes, on reasonable grounds,
there are relevant documents.
(2) However, the consent of the occupier or the authority of a search
warrant is required to enter—
(a) any part of premises not used for the management or conduct of the
affairs or activities of a cooperative; or
(b) any part of premises used for residential purposes (whether or not the
part is also used for the management or conduct of the affairs or activities of
a cooperative).
396 Powers
of inspectors on premises entered
An inspector has the following powers on premises that the inspector is
authorised to enter:
(a) power to search for evidence of any contravention of this
Act;
(b) power to search for relevant documents and to require anyone on the
premises to produce to the inspector any relevant documents in the
person’s custody or under the person’s control;
(c) power to require anyone on the premises who is apparently involved in
the management or conduct of the affairs or activities of a cooperative to
answer questions or provide information;
(d) power to exercise the functions of an inspector under section 397 in
relation to any relevant documents found on the premises or produced to the
inspector.
397 Functions
of inspectors in relation to relevant documents
(1) An inspector has the following powers in relation to a relevant
document found by the inspector on premises entered by the inspector or produced
to the inspector in accordance with a requirement made under this
division:
(a) power to take possession of the document or secure it against
interference;
(b) power to make copies of, or take extracts from, the
document;
(c) power to require anyone who was party to the creation of the document
to make a statement providing any explanation that the person can provide about
anything relating to the creation of the document or about anything to which the
document relates;
(d) power to keep possession of the document for the period necessary to
allow it to be inspected, and copies of, or extracts from, the document to be
made or taken.
(2) While an inspector keeps possession of a document, the inspector must
allow a person who would be entitled to inspect the document if it were not in
the possession of the inspector to inspect the document at any reasonable time
and make a copy of, or take extracts from, the document.
(3) If an inspector takes possession of or secures against interference
any relevant document and a person has a lien on the document, the
inspector’s actions do not prejudice the lien.
398 Offence—failing
to comply with requirements of inspector etc
(1) A person must not, without reasonable excuse, contravene a requirement
made by an inspector under this part.
Maximum penalty: 50 penalty units.
(2) A person must not, in purported compliance with a requirement under
this division, give information or make a statement that is false or misleading
in a material particular.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) A person must not, without reasonable excuse, obstruct or hinder an
inspector exercising functions under this Act.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(4) The occupier or person in charge of any premises must provide a person
who enters the premises under the authority of this part or under a search
warrant mentioned in section 400 with all reasonable facilities and assistance
for the effective exercise of the person’s powers under this part or under
the warrant.
Maximum penalty: 50 penalty units.
(5) It is a defence to a prosecution of a person for an offence against
subsection (2) if the person satisfies the court that the person believed, on
reasonable grounds, that the statement was true and not misleading.
399 Selfincrimination
in relation to requirements under div 15.1
(1) A person is not excused from answering a question, making a statement,
providing information or producing a document under this division on the ground
that to do so may tend to incriminate the person.
(2) However—
(a) the answering of the question, the making of the statement, the
providing of the information or the producing of the document (the
required act); or
(b) any other information, document or thing obtained as a direct or
indirect consequence of the required act;
is not admissible in evidence against the person in a criminal
proceeding.
(3) Subsection (2) does not apply to a proceeding for an offence against
this Act, or any other law, in relation to the falsity or misleading nature of
an answer or statement, information or a document.
Note The Legislation Act 2001, s 171 deals with the
application of client legal privilege.
(1) An inspector may apply to a magistrate for the issue of a search
warrant in relation to premises if the inspector suspects on reasonable
grounds—
(a) that the affairs or activities of a cooperative are being managed or
conducted on the premises; or
(b) that there is evidence on the premises of the commission of an offence
against this Act; or
(c) that there are relevant documents on the premises.
(2) If a magistrate is satisfied by evidence on oath, whether oral or by
affidavit, that there are reasonable grounds for doing so, the magistrate may
issue a search warrant authorising an inspector named in the warrant and any
assistants the inspector considers necessary to enter the premises and exercise
all or stated functions of an inspector on the premises.
(3) In addition to any other requirement, a search warrant issued under
this section must state—
(a) the grounds for the issue of the warrant; and
(b) the premises to be searched; and
(c) any conditions to which the warrant is subject; and
(d) whether entry is authorised to be made at any time or during stated
hours; and
(e) a day, not later than 7 days after the day of issue of the warrant,
when the warrant ceases to have effect.
(4) A police officer may accompany an inspector executing a search warrant
issued under this section and may take all reasonable steps to assist in the
exercise of the functions of the inspector under this Act.
401 Copies
or extracts of records to be admitted in evidence
(1) In any legal proceeding (whether a proceeding under this Act or
otherwise), a copy of or extract from a record relating to affairs of a
cooperative is admissible in evidence as if it were the original record or the
relevant part of the original record.
(2) However, a copy of or extract from a record is admissible in evidence
under subsection (1) only if it is proved that the copy or extract is a true
copy of the record or the relevant part of the record.
(3) For subsection (2), evidence that a copy of or extract from a record
is a true copy of the record or of a part of the record may be given either
orally or by an affidavit or statutory declaration by a person who has compared
the copy or extract with the record or the relevant part of the
record.
402 Legal
professional privilege in relation to requirements under
div 15.1
(1) A lawyer is entitled to refuse to comply with a requirement under
section 394 or 397 relating to a document if—
(a) the document contains a privileged communication made by, on behalf of
or to the lawyer in his or her capacity as a lawyer; or
(b) the lawyer cannot comply with the requirement without disclosing a
privileged communication made by, on behalf of or to the lawyer in his or her
capacity as a lawyer.
(2) The lawyer is not entitled to refuse to comply with the requirement to
the extent that the lawyer can comply with it without disclosing the privileged
communication.
(3) The lawyer is also not entitled to refuse to comply with the
requirement if the person by or on behalf of whom the communication was made
(or, if the person is an entity under administration under the Corporations Act,
part 5.3A (Administration of a company’s affairs with a view to executing
a deed of company arrangement) as applied by this Act, or in the course of being
wound up, the administrator or liquidator of the entity) agrees to the lawyer
complying with the requirement.
(4) If the lawyer fails to comply with the requirement, the lawyer must
immediately provide in writing to the registrar—
(a) the name and address of the person to whom, by or on behalf of whom
the privileged communication was made (if known to the lawyer); and
(b) sufficient particulars to identify the document containing the
privileged communication (if the communication was made in writing).
Maximum penalty (subsection (4)): 50 penalty units.
403 Police
aid for inspectors
(1) An inspector may call a police officer to the inspector’s aid if
the inspector is obstructed, or believes on reasonable grounds that the
inspector will be obstructed, in the exercise of the inspector’s
functions.
(2) A police officer has, while acting in aid of an inspector, all the
functions of an inspector.
404 Definitions
for div 15.2
In this division:
affairs, of a cooperative, includes—
(a) the promotion, formation, membership, control, transactions, dealings,
business and property of the cooperative; and
(b) loans made to the cooperative; and
(c) matters that are concerned with identifying people who are, or have
been, financially interested in the success or failure, or apparent success or
failure, of the cooperative or who are, or have been, able to control or
influence materially the policies of the cooperative; and
(d) the circumstances in which a person placed, withdrew or disposed of
funds with, or loans to, the cooperative.
costs, in relation to an inquiry under this division,
includes—
(a) the expenses of, and incidental to, the inquiry; and
(b) the expenses payable by the registrar in any proceeding brought by the
registrar under this division in the name of the cooperative the subject of the
inquiry; and
(c) so much of the remuneration of an officer or employee of the Territory
as is decided by the Minister to be attributable to matters connected with the
inquiry.
involved person, in relation to an inquiry into the affairs
of a cooperative, means—
(a) an officer of the cooperative; or
(b) a person who acts, or has at any time acted, as banker, solicitor,
auditor or actuary, or in any other capacity, for the cooperative; or
(c) a person who has, or at any time had, in the person’s possession
any property of the cooperative; or
(d) a person who is indebted to the cooperative; or
(e) a person who can give information relating to the affairs of the
cooperative; or
(f) a person whom an investigator believes, on reasonable grounds, to be a
person mentioned in paragraphs (a) to (e).
405 Appointment
of investigators
(1) The Minister may appoint a person (an investigator) to
hold an inquiry into the affairs of a cooperative if the Minister considers that
it is desirable to hold the inquiry for the protection or otherwise in the
interests of the public or of the members or creditors of the
cooperative.
(2) The Minister may amend the conditions of appointment of an
investigator if the investigator agrees to the amendment.
(3) In the course of an inquiry into the affairs of a cooperative, an
investigator may inquire into the affairs of a subsidiary of the cooperative
that, if the subsidiary were the cooperative, would be affairs of the
cooperative.
(4) An inquiry into the affairs of a subsidiary of a cooperative may be
conducted as if the subsidiary were the cooperative.
406 Powers
of investigators
(1) An investigator inquiring into the affairs of a cooperative may, by
giving an involved person a notice, require the person—
(a) to produce any document of which the person has custody or control and
that relates to those affairs; or
(b) to give the investigator all reasonable assistance in relation to the
inquiry; or
(c) to appear before the investigator for examination on oath or
affirmation.
Note If a form is approved under s 468 (Approved forms) for a
notice, the form must be used.
(2) An investigator may administer an oath or affirmation to an involved
person given a notice under subsection (1).
(3) An investigator may take possession of a document produced by an
involved person under subsection (1) and may keep it for the period that the
investigator decides is necessary for the inquiry.
(4) While an investigator keeps possession of a document, the investigator
must allow a person who would be entitled to inspect the document were it not in
the possession of the investigator to inspect the document at any reasonable
time and make a copy of, or take extracts from, the document.
407 Examination
of involved person
(1) A lawyer acting for an involved person—
(a) may attend an examination of the involved person by an investigator;
and
(b) may, to the extent that the investigator permits, address the
investigator and examine the involved person.
(2) A person is not excused from answering a question or producing a
document when required to do so under this division on the ground that to do so
may tend to incriminate the person.
(3) However—
(a) the answering of the question or the producing of the document (the
required act); or
(b) any other information or document btained as a direct or indirect
consequence of the required act;
is not admissible in evidence against the person in a criminal
proceeding.
(4) Subsection (3) does not apply to a proceeding for an offence against
this Act, or any other law, in relation to the falsity or misleading nature of
an answer or document.
Note The Legislation Act 2001, s 171 deals with the
application of client legal privilege.
(5) An involved person who attends for examination by an investigator is
entitled to be paid the allowances and expenses prescribed under the
regulations.
408 Legal
professional privilege of involved person who is a lawyer
(1) An involved person who is a lawyer is entitled to refuse to produce a
document to an investigator if the document contains a privileged communication
made by, on behalf of or to the lawyer in his or her capacity as a
lawyer.
(2) The lawyer is not entitled to refuse to produce the document if the
person by or on behalf of whom the communication was made (or, if the person is
an entity under administration under the Corporations Act, part 5.3A
(Administration of a company’s affairs with a view to executing a deed of
company arrangement) as applied by this Act, or in the course of being wound up,
the administrator or the liquidator of the entity) agrees to the lawyer
producing the document.
(3) If the lawyer fails to comply with the requirement to produce a
document, the lawyer must immediately provide in writing to the
investigator—
(a) the name and address of the person to whom, by or on behalf of whom
the communication was made (if known to the lawyer); and
(b) sufficient particulars to identify the document.
Maximum penalty (subsection (3)): 50 penalty units.
409 Offences
by involved person
(1) An involved person must not fail to comply with a lawful requirement
of an investigator without showing reasonable cause for the failure.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) An involved person must not—
(a) give an investigator information knowing the information to be false
or misleading in a material particular; or
(b) when appearing before an investigator—
(i) make a statement knowing the statement to be false or misleading in a
material particular; or
(ii) fail, without reasonable excuse, to be sworn or to make an
affirmation.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) If an investigator considers that a failure by a person to comply with
a requirement of the investigator is an offence against subsection (1), the
investigator may certify the failure to the Supreme Court.
(4) If the investigator certifies the failure to the Supreme Court, the
court may—
(a) order the involved person to comply with the requirement of the
investigator within a stated period; or
(b) instead of, or in addition to, making that order, punish the involved
person as for a contempt of the court if satisfied that there was no lawful
excuse for the failure to comply with the requirement of the
investigator.
410 Offences
relating to documents
(1) If an inquiry into the affairs of a cooperative is being held under
this division, a person must not—
(a) conceal, destroy, mutilate or alter a document relating to the
cooperative; or
(b) send out of the ACT a document or other property that belongs to, or
is under the control of, the cooperative.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) It is a defence to a prosecution for an offence against subsection (1)
if the person satisfies the court that the person did not intend to defeat,
delay or obstruct the inquiry.
411 Record
of examination
(1) Except as provided by section 407, a record of an examination may be
used in a proceeding against the person examined, but this subsection does not
prevent the admission of other written or oral evidence.
(2) A person examined is, on written application made to the investigator,
entitled to a free copy of the record of examination.
(3) The registrar may provide a lawyer with a copy of a record of
examination made by an investigator if the registrar is satisfied that the
lawyer is conducting, or is honestly contemplating, a legal proceeding in
relation to affairs of the cooperative to which the record relates.
(4) A lawyer must not—
(a) use a copy of a record of examination otherwise than in relation to
preparing for, bringing or conducting a legal proceeding; or
(b) publish or communicate the record or any part of it for any other
purpose.
Maximum penalty (subsection (4)): 50 penalty units.
412 Report
of investigator
(1) An investigator may make interim reports to the registrar on any
inquiry being held by the investigator.
(2) An investigator must make an interim report to the registrar on any
inquiry being held by the investigator if the registrar directs the registrar to
make an interim report.
(3) As soon as practicable after the end of an inquiry, the investigator
must report to the registrar—
(a) the opinion of the investigator in relation to the affairs of the
cooperative the subject of the inquiry; and
(b) the findings on which the opinion is based.
(4) An investigator’s report may include a recommendation whether or
not an application should be made under section 415 (3), (4) or
(5).
(5) A report by an investigator may be accompanied by any document of
which the investigator has taken possession after being produced under this
division.
(6) The registrar—
(a) may keep the document for the period that the registrar considers
necessary to decide whether a legal proceeding should be brought because of the
inquiry; and
(b) may keep the document for any further period that the registrar
considers necessary for a legal proceeding; and
(c) may allow the use of the document for a legal proceeding brought
because of the inquiry; and
(d) must allow inspection of the document by a person who would be
entitled to inspect it if it were returned to its former custody; and
(e) may allow inspection of the document by anyone else while it is in the
possession of the registrar but only if the registrar considers that the person
has an interest in the inquiry and, because of that interest, refusal of the
inspection would be unjust.
413 Proceedings
following inquiry
(1) If a legal proceeding is to be, or has been, brought by the registrar
because of an inquiry under this division, the registrar may, by notice, require
a person who was an involved person in relation to the inquiry to give all
assistance in relation to the proceeding that the person can reasonably
give.
(2) The Supreme Court may, on the application of the registrar, order the
person to comply with a requirement under subsection (1) if it appears to the
court that—
(a) the person has unreasonably failed to comply with the requirement;
and
(b) it is just and proper to order the person to comply with the
requirement.
(3) The registrar may bring a proceeding in the name of a cooperative if,
the registrar considers that, because of an inquiry under this division, it is
in the public interest that the proceeding should be brought for the recovery
of—
(a) damages for fraud or other misconduct in relation to the affairs of
the cooperative; or
(b) property of the cooperative.
414 Admission
of investigator’s report as evidence
(1) A document certified by the registrar as being a copy of a report of
an inquiry under this division is admissible as evidence of any findings made by
the investigator.
(2) Subsection (1) does not authorise the admission of evidence that is
inadmissible under section 407.
(1) The costs of an inquiry under this division are to be paid out of
money appropriated by the Legislative Assembly.
(2) At the direction of the Minister, the registrar must apply under 1 or
more of subsections (3), (4) and (5).
(3) The Supreme Court may, on the application of the registrar on notice
served on a cooperative, order the cooperative to pay to the Territory all or
part of the costs of an inquiry under this division into the affairs of the
cooperative.
(4) If a proceeding is brought by the registrar under section 413 in the
name of a cooperative, the court may, in the course of the proceeding and on the
application of the registrar, order that all or part of the costs of the inquiry
that led to the proceeding be paid to the Territory by a party to the
proceeding.
(5) If a person is convicted of an offence in a proceeding certified by
the registrar to have been brought because of an inquiry into the affairs of a
cooperative, the court may, on the application of the registrar made at the time
of the finding or not more than 14 days later, order the person to pay to the
Territory all or part of the costs of the inquiry.
(6) An order under this section must state—
(a) the amount to be paid; and
(b) the time or times for payment; and
(c) how the amount must be paid.
Division
15.3 Prevention of fraud and certain
other conduct
416 Falsification
of records
A person must not make, order or allow to be made, any entry or erasure in,
or any omission from—
(a) any financial records or financial statements of a cooperative or of a
subsidiary of a cooperative; or
(b) any return, document or other record required to be sent, kept or
delivered for this Act;
with intent to falsify them or it, or to evade any of the provisions of
this Act.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
417 Fraud
or misappropriation
(1) A person must not—
(a) by false representation or imposition, obtain possession of any
property of a cooperative; or
(b) having any property of a cooperative in the person’s possession,
withhold or misapply it or wilfully apply any part of it to purposes other than
purposes authorised under this Act or the rules of the cooperative.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) A person who is convicted of an offence against subsection (1) must,
if ordered to do so by the court, deliver up all such property and repay all
money improperly applied.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
418 Offering
or paying commission
A person must not offer or pay any commission, fee or reward, whether
financial or otherwise, to an officer of a cooperative in relation to a
transaction or proposed transaction between the person and the
cooperative.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(1) An officer of a cooperative must not accept any commission, fee or
reward, whether financial or otherwise, from anyone in relation to a transaction
or proposed transaction between the person and the cooperative.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) If the court that convicts an officer of a cooperative of an offence
against subsection (1) is satisfied that the cooperative has suffered loss
or damage because of the acceptance of the commission, fee or reward, the court
may (in addition to imposing a penalty for the offence) order the officer to pay
compensation to the cooperative.
(3) An order under subsection (2) takes effect, and may be enforced, as a
judgment of the court.
420 False
statements in loan application etc
(1) A person must not in or in relation to an application, request or
demand for money made to or of a cooperative—
(a) give information or make a statement to the cooperative, or an
officer, employee or agent of the cooperative, knowing or believing it to be
false or misleading in a material particular; or
(b) give to the cooperative, or an officer, employee or agent of the
cooperative, information or a statement provided by someone else knowing or
believing it to be false or misleading in a material particular.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) If a person is convicted of an offence against subsection (1), a
cooperative from which money has been obtained by the person in relation to the
commission of the offence may exercise any rights under a mortgage or other
security given to it by the person to secure the repayment of money that it
could exercise if there were a breach of a covenant or of a term of any contract
by which the security was given.
(3) The cooperative may exercise any of the rights whether the mortgage or
other security was executed by the person alone or by the person and someone
else.
Division
15.4 Miscellaneous powers of
registrar
421 Application
for special meeting or inquiry
(1) The registrar must, on the application of a majority of the members of
the board or of not less than
1/3 of the members of a
cooperative—
(a) call a special meeting of the cooperative; or
(b) hold, or appoint an inspector to hold, an inquiry into the affairs of
the cooperative or of a subsidiary of the cooperative.
(2) An application must be supported by the evidence the registrar directs
for the purpose of showing that the applicants have good reason for requiring
the meeting or inquiry and that the application is made without malicious
motive.
(3) Notice of the application must be given to the cooperative as the
registrar directs.
(4) The applicants must give any security for the expenses of the meeting
or inquiry that the registrar, by notice, directs.
422 Holding
of special meeting
(1) The registrar may direct the time when and place where the special
meeting must be held and the matters that are to be discussed and decided at the
meeting.
(2) The registrar must give the notice to members of the holding of the
special meeting that the registrar considers appropriate (despite any provision
in the cooperative’s rules about the giving of notice).
(3) The special meeting has all the powers of a meeting called in
accordance with the rules of the cooperative and has power to appoint its own
chairperson (despite any rule of the cooperative to the contrary).
(4) The registrar or anyone nominated by the registrar may attend and
address the meeting.
423 Expenses
of special meeting or inquiry
The expenses of and incidental to any meeting called, or any inquiry held,
under this division must be paid, in the proportions that the registrar
directs—
(a) by the applicants (if any); or
(b) out of the funds of the cooperative to which the meeting or inquiry
related or whose subsidiary was the subject of the inquiry; or
(c) by any officer, member, former officer or former member of the
cooperative.
424 Power
to hold special inquiry into cooperative
The registrar may without any application hold, or appoint an inspector to
hold, an inquiry into the working and financial condition of a cooperative or a
subsidiary of a cooperative.
425 Special
meeting following inquiry
(1) On completion of any inquiry under this division, the registrar may
call a special meeting of the cooperative.
(2) Section 422 applies to the meeting.
426 Information
and evidence
(1) On any application for registration of a cooperative or registration
or approval of any rule or document under this Act, the registrar may require
from the applicant the information and evidence that is reasonable to show that
the application should be granted.
(2) The registrar may, by notice, require from a cooperative the
information and evidence that is reasonable to show that the cooperative is
genuinely carrying on business in accordance with the provisions of this
Act.
(3) The registrar may, by notice, require from a cooperative the evidence
that the registrar considers appropriate of anything required to be done under
this Act or of an entry in a document required to be provided to the registrar
under this Act.
427 Extension
or shortening of time
(1) The registrar may, by notice, extent or shorten the time for doing
anything required to be done by a cooperative under this Act, or the rules of
the cooperative, on the conditions (if any) that the registrar
decides.
(2) The registrar may grant an extension of time even if the time for
doing the thing has ended.
428 Power
of registrar to intervene in proceedings
(1) The registrar may intervene in any proceeding relating to a matter
arising under this Act.
(2) If the registrar intervenes in a proceeding, the registrar is taken to
be a party to the proceeding and, subject to this Act, has all the rights,
duties and liabilities of a party to the proceeding.
(3) The registrar may appear and be represented in a proceeding in which
the registrar wishes to intervene under this section—
(a) by a delegate in relation to a matter to which the proceeding relates;
or
(b) by a public servant engaged in the administration of this Act;
or
(c) by a lawyer.
Part
16 Administration of
Act
429 Appointment
of registrar
The chief executive must appoint a public servant as Registrar of
Cooperatives.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act 2001, div 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act 2001, s 7 (3)) and an appointment
may be made by naming a person or nominating the occupant of a position (see
s 207).
430 Registrar’s
functions
(1) Subject to this Act, the registrar is responsible for the general
administration of this Act.
(2) The registrar has the functions given to the registrar under this Act
and any other Territory law.
(3) The registrar must have a seal of office.
(4) The registrar may enter into any arrangements or agreements with any
entity to act as the agent of the registrar in the carrying out of the
registrar’s functions.
431 Deputy
registrar and other staff
(1) The Minister may appoint a deputy registrar and assistant
registrars.
(2) Subject to any direction of the registrar, the deputy registrar or an
assistant registrar may exercise any of the functions given to the registrar by
this Act or any other Territory law.
432 Delegation
by registrar
(1) The registrar may delegate to a public servant any of the
registrar’s functions including this power of delegation.
Note For the making of delegations and the exercise of delegated
functions, see Legislation Act 2001, pt 19.4.
(2) A delegate may subdelegate to another public servant any function
delegated to the delegate under this section if the delegate is authorised by
the delegation to do so.
433 Register
of cooperatives
(1) The registrar must keep a register of cooperatives.
(2) The registrar must record in the register the documents relating to
cooperatives and proposed cooperatives filed with the registrar that the
Minister directs.
434 Keeping
of registers etc
(1) The registrar must keep the cooperatives register and the other
registers that the registrar considers necessary or desirable for this
Act.
(2) Subject to section 433, the cooperatives register must be kept in the
form and contain the particulars that the registrar considers
appropriate.
(3) Subject to section 435, any document filed with, provided to or
registered by the registrar under this Act must be kept in the office of the
registrar.
435 Disposal
of records by registrar
The registrar may, if in the opinion of the registrar it is no longer
necessary or desirable to keep them, destroy or dispose of any of the
following:
(a) any annual return or balance sheet filed longer than 7 years
ago;
(b) any document creating or evidencing a charge, or the complete or
partial satisfaction of a charge, if a memorandum of satisfaction of the charge
was registered longer than 7 years ago;
(c) any other document (except the rules or any document affecting the
rules of a cooperative) that was filed, provided or registered longer than 15
years ago;
(d) any document filed, provided or registered in relation to a
cooperative that was deregistered or ceased to be registered longer than 15
years ago;
(e) any document a transparency or electronic image of which has been
incorporated with a register kept by the registrar or is otherwise kept in the
office of the registrar.
436 Inspection
of cooperatives register etc
(1) A person may—
(a) inspect the cooperatives register; and
(b) inspect documents kept by the registrar that are prescribed under the
regulations; and
(c) obtain a copy, or a certified copy, of a document that the person may
inspect under paragraph (b).
Note A fee may be determined under s 467 (Determination of fees) for
this subsection.
(2) If a reproduction or transparency of a document, or an extract of
information contained in a document, recorded in the cooperatives register is
produced for inspection, a person is not entitled under subsection (1) to
require the production of the original of the document.
437 Approvals
by registrar
(1) This section applies to any provision of this Act that imposes a
requirement for the registrar’s approval of anything.
(2) The registrar may indicate in writing to an applicant for an approval
that the approval is taken to have been given at the end of a stated period
unless the registrar tells the applicant in writing within the period that the
approval has not been given or is still being considered.
A document is taken to have been filed under this Act only if all
information required to be provided in or with the document is
provided.
Note A fee may be determined under s 467 (Determination of fees) for
this section.
(1) Subject to section 438, it is sufficient compliance with a requirement
under this Act that a document be filed with the registrar if the registrar
receives a copy of the document by fax or electronic transmission.
(2) If the registrar receives from a person a copy of a document under
subsection (1), the registrar may require the person to produce and file the
original within the time stated by the registrar.
(3) If the person does not comply with a requirement of the registrar
within the stated time, the person is taken not to have filed the
document.
440 Power
of registrar to refuse to register or reject documents
(1) The registrar must refuse to register or may reject a document given
to the registrar if the registrar considers that the document—
(a) contains matter contrary to Act; or
(b) contains matter that, in a material particular, is false or misleading
in the form or context in which it is included; or
(c) because of an omission or misdescription, has not been properly
completed; or
(d) does not comply with the requirements of this Act; or
(e) contains any error, alteration or erasure of such a nature that the
document should not be registered or should be rejected.
(2) If the registrar refuses to register or rejects a document under
subsection (1), the registrar may require—
(a) that the document be appropriately amended; or
(b) that a fresh document be submitted in its place; or
(c) if the document has not been properly completed—that a
supplementary document be submitted.
Note If a form is approved under s 468 (Approved forms) for a
supplementary document, the form must be used.
441 Certificate
of registration
(1) A certificate of registration of a cooperative issued under this Act
is conclusive evidence that the cooperative is incorporated under this Act and
that all the requirements of this Act in relation to registration have been
complied with.
(2) This section does not affect any provisions of this Act for the
winding-up or deregistration of the cooperative or the cancellation of its
registration.
(1) If a function under this Act is given to the registrar because of
something being done or omitted to be done within a particular period, the
registrar may certify that the thing had or had not been done within the period
or by a stated date.
(2) The registrar may issue a certificate stating that a requirement of
this Act stated in the certificate—
(a) had, or had not, been complied with at a date or within a period
stated in the certificate; or
(b) had been complied with at a date stated in the certificate but not
before that date.
(3) The registrar may issue a certificate stating that on a date stated in
the certificate a body stated in the certificate was not or had ceased to be
registered as a cooperative under this Act.
(4) A certificate given by the registrar under this section is evidence of
the matters stated in the certificate.
443 Records
kept by cooperatives
(1) A record kept by a cooperative under a requirement of this Act is
admissible in evidence in any proceeding and is evidence of anything stated or
recorded in the record.
(2) A document purporting to be a record kept by a cooperative is taken to
be a record kept by the cooperative under a requirement of this Act, unless the
contrary is proved.
(3) A copy of any entry in a record regularly kept by a cooperative in the
course of its business is, if verified by statutory declaration of the secretary
to be a true copy of the entry, to be received in evidence in any case where and
to the same extent as the original entry itself is admissible.
(1) An entry in the minutes purporting to be a minute of the business
transacted at a meeting of a cooperative or of the board, and purporting to have
been signed by the chairperson at a subsequent meeting, is evidence that the
business recorded in the minute was transacted at the meeting and that the
meeting was properly called and held.
(2) An entry in the minutes of a meeting of a cooperative to the effect
that a resolution was carried or carried unanimously, or was lost, is evidence
of the fact without proof of the number or proportion of votes recorded for or
against the resolution.
445 Official
certificates
(1) A certificate of registration given by the registrar must be received
in evidence as if it were the original certificate.
(2) A certificate of registration or other official document relating to a
cooperative signed by or bearing the seal of the registrar must be received in
evidence without further proof.
(3) A copy of rules certified by the registrar to be a true copy of the
rules of a cooperative is evidence of the registered rules of the
cooperative.
446 Proof
of appointment of registrar
In any proceeding, proof is not required of the appointment of the
registrar until evidence is given to the contrary.
A printed copy of the rules of a cooperative verified by statutory
declaration of the secretary of the cooperative to be a true copy of its
registered rules is in any proceeding evidence of the rules.
448 Evidence
of particulars in certain registers
The register of directors, members and shares of a cooperative is evidence
of the particulars required or authorised by this Act to be inserted in the
register.
Part
17 Offences and
proceedings
449 Offences
by officers of cooperatives
(1) If a cooperative contravenes a provision of this Act—
(a) anyone who is a director of the cooperative or concerned in its
management is taken to have contravened the provision if the person knowingly
authorised or permitted the contravention; and
(b) any other officer of the cooperative who by a wilful act or omission
is the cause of the contravention is taken to have contravened the
provision.
(2) A person may be proceeded against and convicted of an offence against
subsection (1) whether or not the cooperative has been proceeded against or
convicted of an offence against the subsection.
(3) This section does not affect any liability imposed on a cooperative
for an offence committed by the cooperative against this Act.
450 Notice
to be given of finding of guilt for offence
If a cooperative or an officer of a cooperative is found guilty of an
offence against this Act, the cooperative must, not later than 28 days after the
day the finding is recorded, give to each member of the cooperative notice
of—
(a) the finding; and
(b) any penalty imposed in relation to the offence to which the finding
relates; and
(c) the nature of the offence to which the finding relates.
(1) A person who is, or at any time was, engaged in the administration of
this Act must not record, make use of, or communicate, divulge or make
available, in any way, information obtained in the course of the
administration.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) Subsection (1) does not apply to—
(a) the recording, making use of or divulging of information in the course
of the administration of this Act; or
(b) the recording or making use of information for the purpose of
divulging it as permitted by subsection (3) or (4); or
(c) the divulging of information as permitted by subsection (3) or
(4).
(3) Information may be divulged—
(a) for a criminal proceeding; or
(b) for a proceeding under this Act or an inquiry authorised by a
Territory law; or
(c) with the agreement of the person to whom the information relates;
or
(d) in accordance with a requirement under the Ombudsman Act 1989;
or
(e) in accordance with a reciprocal arrangement under section
465.
(4) Information may be divulged to—
(a) the Minister; or
(b) the Treasurer; or
(c) the commissioner for revenue; or
(d) the auditor-general; or
(e) the ombudsman; or
(f) the Commissioner of Taxation, a Second Commissioner of Taxation or a
Deputy Commissioner of Taxation holding office under a Commonwealth Act;
or
(g) the Australian Securities and Investments Commission; or
(h) the person who, under a law of a State or another Territory,
administers a law of the State or other Territory that relates to taxation or
the imposition of a duty; or
(i) a person seeking information under a reciprocal arrangement under
section 465; or
(j) a police officer exercising functions as a police officer;
or
(k) a person nominated by a person mentioned in paragraphs (a) to (h);
or
(l) anyone to whom, in the registrar’s opinion, it is in the public
interest that the information be divulged.
(5) For this section, a person is, or was, engaged in the administration
of this Act if the person exercises, or at any time exercised, a function
as—
(a) the registrar; or
(b) an inspector; or
(c) an investigator; or
(d) a person appointed or employed for this Act.
(6) A person who at any time exercised a function as—
(a) the registrar of co-operative societies under the Co-operative
Societies Act 1939 (the former Act); or
(b) an inspector appointed under the former Act; or
(c) a person appointed or employed for the former Act;
must not record, make use of, or communicate, divulge or make available, in
any way, information obtained in the course of exercising that
function.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(7) Subsection (6) does not apply to—
(a) the recording, making use of or divulging of information in the course
of the administration of the former Act; or
(b) the recording or making use of information for the purpose of
divulging it as permitted by subsection (3) or (4); or
(c) the divulging of information as permitted by subsection (3) or
(4).
(8) Subsections (6) and (7) and this subsection expire 2 years after the
commencement of this section.
452 False
or misleading statements
(1) A person who, in a document required for this Act or filed with the
registrar makes, or authorises the making of, a statement knowing or believing
it to be false or misleading in a material particular commits an
offence.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) A person who, from a document required for this Act or filed with the
registrar omits, or authorises the omission of, anything knowing or believing
that the omission makes the document misleading in a material particular commits
an offence.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) A person who, in a document required for this Act or filed with the
registrar makes, or authorises the making of, a statement that is false or
misleading in a material particular commits an offence.
Maximum penalty: 50 penalty units.
(4) If an omission makes a document required for this Act or filed with
the registrar false or misleading in a material particular, a person who made or
authorised the omission commits an offence.
Maximum penalty: 50 penalty units.
(5) It is a defence to a prosecution of a person for an offence against
subsection (3) if the person satisfies the court that the person had taken
reasonable precautions to avoid the making or authorising of false or misleading
statements in a document of the relevant kind.
(6) It is a defence to a prosecution of a person for an offence against
subsection (4) if the person satisfies the court that the person had taken
reasonable precautions to avoid the making or authorising of omissions that
would make a document of the relevant kind false or misleading.
453 Use
of word cooperative etc
(1) In this section:
exempt body means—
(a) a cooperative, including a foreign cooperative registered under
section 374 (Registration of foreign cooperative); or
(b) a building society; or
(c) a credit union; or
(d) an entity prescribed under the regulations; or
(e) a company or society in relation to which an exemption under
subsection (6) is in force; or
(f) a society (within the meaning of the Co-operative Societies
Act 1939) that was registered as a company in accordance with that Act,
section 38A (3) and that remains registered as a company.
(2) A person, other than an exempt body, must not—
(a) trade or carry on business under any name or title
including—
(i) the word ‘cooperative’ or ‘co-operative’;
or
(ii) any other word having a similar meaning; or
(iii) the abbreviation ‘co-op’ or ‘co-op.’;
or
(b) hold out in any way that its trade or business is cooperative in
nature.
Maximum penalty: 50 penalty units.
(3) For subsection (2), it is immaterial whether letters in a word or
abbreviation are capital letters or non-capital letters.
(4) A company or society formed or incorporated elsewhere than in the ACT
may apply in writing to the registrar to become an exempt body.
Note A fee may be determined under s 467 (Determination of fees) for
this section.
(5) On application under subsection (4), the registrar may issue a
certificate of exemption to the applicant if the registrar is satisfied that the
applicant trades or carries on business for the purpose of promoting the
economic interests of its members in accordance with cooperative
principles.
(6) The registrar may issue a certificate of exemption for the period, and
subject to the conditions, that the registrar considers appropriate.
(7) A person must not, without reasonable excuse, contravene a condition
of a certificate of exemption issued under subsection (5).
Maximum penalty: 50 penalty units.
(8) Subsection (1) (f) and this subsection expire 2 years after the
commencement of this section.
454 Further
offence for continuing failure to do required act
(1) If a provision of this Act requires an act to be done and it has not
been done, the obligation to do the act continues until the act is
done—
(a) even if a person has been convicted of an offence in relation to the
failure to do the act; and
(b) even if the provision required the act to be done within a particular
period or before a particular time and that period has ended or that time has
passed.
(2) If a person is convicted of an offence against this Act for the
failure to do the act (whether it is the first, or a second or subsequent,
offence by the person in relation to the failure) and the failure of the person
continues after the day of the conviction, the person commits a further offence
in relation to each day during the period—
(a) that begins on the day after the conviction; and
(b) that ends at the end of the day—
(i) a proceeding for the further offence is begun; or
(ii) the act is done;
whichever happens first.
Maximum penalty: 0.5 penalty unit.
(3) For subsection (2) (b) (i), a proceeding for the further offence is
taken to have begun on the day the information for the further offence is laid
or on an earlier day stated in the information for that purpose.
(1) If a cooperative in making, guaranteeing or raising a loan or
receiving a deposit contravenes a provision of this Act or the rules of the
cooperative, the civil rights and liabilities of the cooperative or anyone else
in relation to the recovery of the loan or deposit are not affected by the
contravention but the amount becomes payable immediately.
(2) The same remedies are available for the recovery of the loan or
deposit, and for the enforcement of any security for it, as if there had not
been a contravention of this Act or the rules of the cooperative.
(1) This section applies if a person (the relevant person)
has engaged, is engaging or is proposing to engage in conduct that was, is or
would be—
(a) a contravention of this Act; or
(b) attempting to contravene this Act; or
(c) aiding, abetting, counselling or procuring a person to contravene this
Act; or
(d) inducing or attempting to induce, whether by threats, promises or
otherwise, a person to contravene this Act; or
(e) being in any way, directly or indirectly, knowingly concerned in, or
party to, the contravention by a person of this Act; or
(f) conspiring with others to contravene this Act.
(2) The registrar or a person whose interests have been, are or would be,
affected by the conduct may apply to the Supreme Court for an
injunction.
(3) On application under subsection (2), the Supreme Court may grant an
injunction—
(a) restraining the relevant person from engaging in the conduct;
and
(b) if, in the court’s opinion it is desirable to do so, requiring
the relevant person to do anything.
(4) The Supreme court may grant an interim injunction pending
determination of the application.
(5) The Supreme Court may discharge or vary an injunction granted under
this section.
(6) The Supreme Court to grant an injunction restraining a person from
engaging in conduct of a particular kind—
(a) if satisfied that the person has engaged in conduct of that kind,
whether or not it appears to the court that the person intends to engage again,
or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely the person will engage in conduct of that kind, whether or not the
person has previously engaged in conduct of that kind and whether or not there
is an imminent danger of substantial damage to someone else if the person
engages in conduct of that kind.
(7) The Supreme Court may grant an injunction requiring a person to do
something—
(a) if satisfied that the person has failed to do the thing, whether or
not it appears to the court that the person intends to fail again, or to
continue to fail, to do the thing; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely the person will fail to do the thing, whether or not the person has
previously failed to do the thing and whether or not there is an imminent danger
of substantial damage to someone else if the person fails to do the
thing.
(8) If the Supreme Court has power under this section to grant an
injunction restraining a person from engaging in particular conduct, or
requiring a person to do a particular thing, the court may, either in addition
to or in substitution for the grant of the injunction, order that person to pay
damages to anyone else.
457 Proceedings
for recovery of fines etc under cooperative rules
A proceeding for the recovery of a fine or penalty imposed under the rules
of a cooperative may be taken by the cooperative and not by anyone
else.
Part
18 Review of registrar’s
decisions
458 Definitions
for pt 18
(1) In this part:
alteration, of the rules of a cooperative, includes a
proposed alteration of the rules.
reviewable decision means a decision of the
registrar—
(a) under section 20 (5) (b) (Approval of disclosure statement), to amend
a draft disclosure statement, or require a stated amendment of a draft
disclosure statement; or
(b) under section 20 (5) (c), to approve a draft disclosure statement
different from the draft disclosure statement as submitted to the registrar;
or
(c) under section 20 (5) (d), to refuse to approve a draft disclosure
statement; or
(d) under section 21 (3) (b) (Approval of rules), to approve different
draft rules for a proposed cooperative to those submitted to the registrar;
or
(e) under section 21 (3) (c), to refuse to approve draft rules for a
proposed cooperative; or
(f) under section 23 (3) (a) (Registration of proposed cooperative and its
rules), to refuse to register a proposed cooperative and its rules; or
(g) under section 28 (3) (Requirements for registration of corporation),
to refuse to register an existing corporation and its rules; or
(h) under section 109 (3) (b) (Approval of proposed alteration by
registrar), to approve a different proposed alteration of the rules of a
cooperative to that submitted to the registrar; or
(i) under section 109 (3) (c), to refuse to approve a proposed alteration
of the rules of a cooperative; or
(j) under section 112 (3) (Registration of alteration), to refuse to
register an alteration of the rules of a cooperative.
459 Registrar
must give notice of reviewable decisions to affected people
(1) If the registrar makes a reviewable decision, the registrar must take
reasonable steps to give written notice of the decision to each person whose
interests are affected by the decision.
(2) A notice of a reviewable decision must be in accordance with the
requirements of the code of practice in force under the Administrative
Appeals Tribunal Act 1989, section 25B (1) and, in particular, the
notice must tell the person—
(a) that, if the person is dissatisfied with the decision, the person has
the right to apply to the AAT for review of the decision; and
(b) how to make the application; and
(c) about the options available under other ACT laws to have a decision
reviewed by a court or the ombudsman.
460 AAT
review of reviewable decisions
A person whose interests are affected by a reviewable decision may apply
to the AAT for review of the decision.
461 Exemption
from stamp duty for certain instruments
(1) Stamp duty is not payable in relation to any of the following
instruments:
(a) the certificate of registration of a cooperative;
(b) a share certificate or any other instrument issued or executed in
relation to the capital of a cooperative, other than a transfer of
shares.
(2) This section, and any other provision of this Act about stamp duty,
prevails over any inconsistent provision of another Act (including, in
particular, any inconsistent provision of the Duties Act 1999).
462 Cooperative
ceasing to exist
(1) As soon as practicable after a cooperative has ceased to exist, other
than on deregistration under division 12.3, the registrar must deregister the
cooperative by registering the cessation and cancelling the registration of the
cooperative.
(2) The registrar may remove from any register kept by the registrar the
name of any cooperative that has been deregistered or otherwise ceased to
exist.
(3) For this section, a cooperative that has transferred its engagements
to another cooperative is taken to have ceased to exist.
463 Service
of documents on foreign cooperative
A document may be served on a foreign cooperative by sending it by prepaid
post, addressed to the cooperative (or an officer of the cooperative), at the
registered office of the cooperative in its place of registration, incorporation
or formation.
Note For other ways of serving documents on cooperatives (including
foreign cooperatives), see Legislation Act 2001, pt 19.5.
464 Service
on member of cooperative
(1) This section applies to a document that is authorised or required
under this Act to be served on a member of a cooperative (whether the word
‘serve’, ‘give’, ‘notify’,
‘send’, ‘tell’ or any other word is used).
(2) The document may be served by publishing it in a newspaper circulating
generally in the ACT or in the area served by the cooperative,
if—
(a) the cooperative is a non-trading cooperative; or
(b) the member’s whereabouts are unknown to the cooperative;
or
(c) the registrar permits notice to be given to members of the cooperative
in that way.
Note For other ways of serving documents on members of cooperatives,
see Legislation Act 2001, pt 19.5.
465 Reciprocal
arrangements
(1) If a reciprocal arrangement with a State is in force, the
registrar—
(a) may, at the request of the appropriate official of the State, provide
the official with information or documents relating to a cooperative;
or
(b) may request the appropriate official of the State to provide the
registrar with documents or information relating to an entity that, under the
arrangement, is an entity corresponding to a cooperative.
(2) A reciprocal arrangement with a State is an arrangement
made between the Minister and a representative of the government of the State
under which it is agreed—
(a) that the registrar will comply with a request mentioned in subsection
(1) (a); and
(b) that a request made by the registrar to an official designated in the
arrangement as the appropriate official for subsection (1) (b) will be
complied with.
466 Translations
of documents
A requirement under this Act to provide, file or lodge a document or make a
document available for inspection is, for a document that is not in English,
taken to include a requirement that a translation of the document be provided,
filed, lodged or made available for inspection at the same time.
467 Determination
of fees
(1) The Minister may, in writing, determine fees for this Act.
Note The Legislation Act 2001 contains provisions
about the making of determinations and regulations relating to fees (see pt
6.3).
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and
presented to the Legislative Assembly, under the Legislation Act
2001.
(1) The registrar may, in writing, approve forms for this Act.
(2) If the registrar approves a form for a particular purpose, the
approved form must be used for that purpose.
Note For other provisions about forms, see Legislation Act
2001, s 255.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the
Legislation Act 2001.
469 Guidelines
about exercise of registrar’s functions
(1) The Minister may, in writing, make guidelines about the exercise of
the registrar’s functions under this Act.
(2) In exercising a function under this Act, the registrar must comply
with any guidelines applying to the exercise of the function.
(3) A guideline is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act 2001.
470 References
to Co-operatives Societies Act etc
In an Act (other than this Act), statutory instrument or
document—
(a) a reference to the Co-operatives Societies Act 1939 is, in
relation to anything to which this Act applies, a reference to this Act;
and
(b) a reference to a society or cooperative society registered under the
Co-operatives Societies Act 1939 is a reference to a cooperative
registered under this Act.
471 Regulation-making
power
(1) The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the
Legislative Assembly, under the Legislation Act 2001.
(2) The regulations may make provision in relation to—
(a) the making of applications for the exercise of a function by the
registrar; and
(b) the filing of documents with the registrar (including electronic
filing and filing by fax).
(3) The regulations may modify this Act—
(a) by providing that a provision of the Corporations Act applied by this
Act for any purpose or in any respect—
(i) does not apply for that purpose or in that respect; or
(ii) applies for that purpose or in that respect in the circumstances, or
subject to the conditions or limitations, that the regulations prescribe;
or
(b) by providing that a provision of the Corporations Act applied by this
Act applies to cooperatives for the purposes, in the respects or circumstances,
or subject to the conditions or limitations, that the regulations prescribe;
or
(c) by changing a reference to a provision of the Corporations Act if the
change is necessary because of an amendment of the Corporations Act.
(4) The regulations may also prescribe offences for contraventions of the
regulations and prescribe maximum penalties of not more than 10 penalty units
for offences against the regulations.
Part
20 Transitional
provisions
472 Transitional
provisions
Schedule 5 has effect.
473 Regulations
may provide for transitional matters
(1) The regulations may prescribe transitional matters necessary or
convenient to be prescribed because of the enactment of this Act.
(2) Regulations made for this section must not be taken to be inconsistent
with this Act so far as they can operate concurrently with this Act.
474 Modification
of pt 20 and sch 5
The regulations may modify this part or schedule 5 to make provision in
relation to anything that is not, or is not in the Executive’s opinion
adequately, dealt with in the part or schedule.
The following provisions expire 1 year after the commencement of this
section:
(a) sections 473 and 474 and this section;
(b) schedule 5, clauses 1 to 5, 7, 9, 10 and 12 to 14.
The remaining provisions of this part and schedule 5 expire 2 years after
the commencement of this section.
Part
21 Repeals and consequential
provisions
(1) The Co-operative Societies Act 1939 No 9 is repealed.
(2) The Co-operative Societies Regulations 1945 SL 1945 No 2 are
repealed.
478 Amendment
of other Acts and regulations
Schedule 6 amends the Acts and regulations mentioned in it.
Schedule
1 Associates and relevant interests
(see dict, def of associate, def of
relevant interest)
(1) Nothing in this part limits anything else in it.
(2) A person is an associate of someone else only as provided by this
part.
2 Associates
of a corporation
The associates of a corporation include the
following:
(a) a director or secretary of the corporation;
(b) a related corporation;
(c) a director or secretary of a related corporation.
3 Matters
relating to voting rights
(1) If a reference to an associate of a person relates to—
(a) the extent of power to exercise, or to control the exercise of, the
voting power attached to voting shares in or arising from membership of a
corporation; or
(b) the person’s entitlement to shares in a corporation;
or
(c) an offer to buy shares to which division 11.2 applies;
the reference includes a reference to someone else with whom the person
has, or proposes to enter into, an agreement mentioned in subclause
(2).
(2) Subclause (1) applies to an agreement—
(a) because of which a person mentioned in subclause (1) has or will have
power (even if it is in any way qualified)—
(i) to exercise; or
(ii) to control, directly or indirectly, the exercise of; or
(iii) to influence substantially the exercise of;
any voting power attached to shares in the corporation; or
(b) for the purpose of controlling or influencing—
(i) the composition of the corporation’s board; or
(ii) the conduct of affairs of the corporation; or
(c) under which a person mentioned in subclause (1)—
(i) will or may acquire; or
(ii) may be required by the other to acquire;
shares in the corporation in which the other person has a relevant
interest; or
(d) under which a person mentioned in subclause (1) may be required to
dispose of shares in the corporation in accordance with the other person’s
directions.
(3) Subclause (1) applies despite any other effect the agreement may
have.
(4) In relation to a matter relating to shares in a corporation, a person
may be an associate of the corporation and the corporation may be an associate
of a person.
4 Meaning
of associate of a person
(1) A reference to an associate of a person includes a
reference to—
(a) anyone in concert with whom the person is acting or proposes to act;
or
(b) anyone who, under the regulations, is, for the provision in which the
reference occurs, an associate of the person; or
(c) anyone with whom the person is or proposes to become associated,
whether formally or informally, in any other way;
in relation to the matter to which the reference relates.
(2) If a person has entered, or proposes to enter, into a transaction, or
has done, or proposes to do, anything, to become associated with someone else as
mentioned in an applicable provision of this part, a reference to an
associate of the person includes a reference to the other
person.
A person is not an associate of someone else because of clause 3 or
4 (1), or because of clause 4 (2) as it applies in relation to clause
3 or 4 (1), only because of 1 or more of the following:
(a) the person gives advice to the other person, or acts on the other
person’s behalf, in the proper exercise of the functions attaching to a
professional capacity or a business relationship;
(b) the person, a client, gives specific instructions to the other person,
whose ordinary business includes dealing in securities, to acquire shares on the
client’s behalf in the ordinary course of that business;
(c) the person has made, or proposes to make, to the other person an offer
to which division 11.2 applies, in relation to shares held by the other
person;
(d) the person has appointed the other person, otherwise than for valuable
consideration given by the other person or by an associate of the other person,
to vote as a proxy or representative at a meeting of members, or of a class of
members, of a corporation.
Part
1.2 Relevant
interests
6 Interpretation
of pt 1.2
(1) This clause applies for this part.
(2) Power to vote in relation to a right to vote is power to exercise, or
to control the exercise of, the right to vote.
(3) A reference to power to dispose of a share includes a
reference to power to exercise control over the disposal of the share.
(4) A reference to power or control includes a
reference to power or control that is direct or indirect or is, or can be,
exercised because of, by means of, in breach of, or by revocation of, trusts,
agreements and practices, or any of them, whether or not they are
enforceable.
(5) Power to vote in relation to a right to vote, or power to dispose of a
share, that is exercisable by 2 or more people jointly is taken to be
exercisable by either or any of them.
(6) A reference to a controlling interest includes a
reference to an interest that gives control.
(1) Nothing in this part limits anything else in it.
(2) A person does not have a relevant interest in a share of a cooperative
or right to vote in relation to a cooperative except as provided in this
part.
8 Basic
rules—relevant interests
(1) A person who has power to vote in relation to a right to vote has a
relevant interest in the right to vote.
(2) A person who has power to dispose of a share has a relevant interest
in the share.
9 Control
of corporation having power in relation to a share etc
(1) This clause applies if a corporation has, or is by this part taken to
have—
(a) power to vote in relation to a right to vote; or
(b) power to dispose of a share.
(2) A person is taken for this part to have in relation to the right to
vote or share the same power as the corporation has, or is taken to have,
if—
(a) the corporation is, or its directors are, accustomed or under an
obligation, whether formal or informal, to act in accordance with the
directions, instructions or wishes of the person in relation to the exercise of
the power mentioned in subclause (1) (a) or (b); or
(b) the person has a controlling interest in the corporation.
10 Control
of 20% of voting power in corporation having power in relation to a share
etc
(1) This clause applies if a corporation or an associate of a corporation
has, or is by this part (other than this clause) taken to have—
(a) power to vote in relation to a right to vote; or
(b) power to dispose of a share.
(2) A person is taken for this part to have in relation to the right to
vote or share the same power as the corporation or associate has, or is taken to
have, if—
(a) the person has; or
(b) an associate of the person has; or
(c) associates of the person together have; or
(d) the person and an associate or associates of the person together
have;
power to vote in relation to the right to vote attached to not less than
20% of the voting shares in the corporation.
11 Deemed
relevant interest in advance of performance of agreement that will give rise to
a relevant interest
(1) This clause applies if—
(a) a person—
(i) has entered into an agreement with someone else in relation to an
issued share or right to vote in which the other person has a relevant interest;
or
(ii) has a right enforceable against someone else in relation to an issued
share or right to vote in which the other person has a relevant interest,
whether the right is enforceable presently or in the future and whether or not
on the fulfilment of a condition; or
(iii) has an option granted by someone else, or has granted to someone
else an option, in relation to an issued share or right to vote in which the
other person has a relevant interest; and
(b) on performance of the agreement, enforcement of the right, or exercise
of the option, the person would have a relevant interest in the share or right
to vote.
(2) If this clause applies, the person is taken for this part to have that
relevant interest in the share or right to vote.
12 Control
of corporation having a relevant interest because of cl 11
If a corporation is by clause 11 taken to have a relevant interest in a
share in or right to vote at meetings of a cooperative, a person is taken for
this part to have a relevant interest in the share or right to vote
if—
(a) the corporation is, or its directors are, accustomed or under an
obligation, whether formal or informal, to act in accordance with the
directions, instructions or wishes of the person in relation to the exercise of
power to vote in relation to the right to vote or power to dispose of the
shares; or
(b) the person has a controlling interest in the corporation; or
(c) the person has power to vote in relation to the right to vote attached
to not less than 20% of the voting shares in the corporation.
13 Matters
not affecting application of pt 1.2
(1) It is immaterial for this part whether or not power to vote in
relation to a right to vote, or power to dispose of a share—
(a) is express or implied or formal or informal; or
(b) is exercisable by a person alone or jointly with another person;
or
(c) cannot be related to a particular share; or
(d) is, or can be made, subject to restraint or restriction.
(2) A relevant interest in a share or right to vote is not to be
disregarded only because of either or both of the following:
(a) its remoteness;
(b) how it arose.
14 Corporation
may have a relevant interest in its own shares
A corporation may, because of this part, be taken to have a relevant
interest in a share in or right to vote arising from membership of the
corporation itself.
15 Exclusions—moneylenders
A relevant interest of a person in a share or right to vote must be
disregarded if the person’s ordinary business includes lending money and
the person has authority to exercise powers as the holder of the relevant
interest only because of a security given for a transaction entered into in the
ordinary course of business in relation to lending money, other than a
transaction entered into with an associate of the person.
16 Exclusions—certain
trustees
A relevant interest of a person in a share or right to vote must be
disregarded if—
(a) the share or right is subject to a trust; and
(b) the person has the relevant interest as a trustee of the trust;
and
(c) either—
(i) a beneficiary under the trust is by clause 11 taken to have a relevant
interest in the share or right because the beneficiary has a presently
enforceable and unconditional right mentioned in clause 11 (1) (a) (ii);
or
(ii) the person is a bare trustee.
17 Exclusions—instructions
to securities dealer to dispose of share
A relevant interest of a person in a share or right to vote must be
disregarded if—
(a) the person’s ordinary business includes dealing in securities;
and
(b) the person has authority to exercise powers as the holder of the
relevant interest only because of instructions given to the person, by or on
behalf of someone else, to dispose of the share on the other person’s
behalf in the ordinary course of the business.
18 Exclusions—honorary
proxies
A relevant interest of a person in a share or right to vote must be
disregarded if the person has it only because of having been appointed,
otherwise than for valuable consideration given by the person or an associate of
the person, to vote as a proxy or representative at a meeting of members, or of
a class of members, of a corporation.
19 Exclusions—holders
of prescribed offices
A relevant interest of a person in a share or right to vote must be
disregarded if the person has it because of holding an office prescribed under
the regulations.
The regulations may provide for relevant interests in shares to be
disregarded for a provision of this Act in prescribed circumstances and subject
to any prescribed conditions.
21 Relevant
interest etc—corporation other than cooperative
A reference in this Act (including in this schedule) to a relevant interest
in a share of a corporation other than a cooperative or a right to vote in
relation to a corporation other than a cooperative must be interpreted in
accordance with the Corporations Act.
Schedule
2 Matters for which rules must make
provision
(see s 102)
1 Requirements
for all cooperatives
The rules of all cooperatives must set out or make provision for each of
the following matters:
(a) the name of the cooperative;
(b) active membership provisions;
(c) the mode and conditions of admission to membership, and the payment to
be made or the share or interest to be acquired before rights of membership are
exercised;
(d) the rights and liabilities of members, and of the estates of dead
members, and the rights and liabilities of representatives of members under
bankruptcy or mental incapacity;
(e) the circumstances in which members may be expelled or suspended, and
the rights and liabilities of expelled and suspended members;
(f) the circumstances in which membership ceases;
(g) any charges or subscriptions that are to be payable by a member to the
cooperative;
(h) the circumstances in which fines and forfeitures may be imposed on
members of the cooperative, and the amount of the fines, not exceeding the
maximum amount prescribed under the regulations;
(i) the grievance procedures under the rules of the cooperative (as
required by section 83) for settling disputes between the cooperative and any of
its members, or between a member and another member;
(j) the restrictions (if any) on the powers of the cooperative and the
board;
(k) the number of directors, the qualifications of directors, how
directors are to be elected, remunerating and removing directors, the filling of
director vacancies, the period for which directors are to hold office, whether
directors are to retire by rotation or otherwise, and the holding of annual
elections for directors;
(l) the quorum for meetings, and the procedure at meetings, of the
board;
(m) the device, custody and use of the seal of the cooperative;
(n) how the funds of the cooperative are to be managed, and in particular
the drawing and signing of cheques, drafts, bills of exchange, promissory notes,
and other negotiable instruments for the cooperative;
(o) provision for the custody of securities belonging to the cooperative;
(p) how debentures may be transferred;
(q) the financial year of the cooperative;
(r) provision for the financial statements of the cooperative to be
audited annually or more frequently and how the auditor is to be
appointed;
(s) how any loss that may result from the transactions of the cooperative
is to be provided for;
(t) how general and special meetings are to be called, the notice required
for meetings, and the quorum for meetings;
(u) the procedure at meetings of the cooperative (including the rights of
members in voting at meetings, the way of voting, and the majority necessary for
carrying resolutions);
(v) the conduct of postal ballots and special postal ballots (including
the sending and filing of information and votes by fax or electronic
means);
(w) how the rules are to be altered;
(x) how the cooperative may be wound up;
(y) anything prescribed under the regulations, whether in addition to or
in substitution for anything mentioned in this clause.
2 Additional
matters—cooperatives with share capital
In addition to the matters mentioned in clause 1, the rules of a
cooperative with a share capital must set out or make provision for each of the
following matters:
(a) the nominal value of each share in the cooperative;
(b) the amount of the contingent liability (if any) attaching to
shares;
(c) the terms on which shares, other than bonus shares, but including
shares (if any) with a contingent liability attached to them are to be issued;
(d) the periodic subscriptions by which or how shares are to be paid
for;
(e) for a trading cooperative—how any surplus may be
distributed;
(f) the allocation of a deficiency on the winding-up of a
cooperative;
(g) provision for the forfeiture of shares on expulsion or on failure to
pay any subscription or call, the extent to which members whose shares have been
forfeited are to remain liable for any amount still unpaid in relation to them,
and the sale or cancellation of forfeited shares;
(h) how shares may be transferred;
(i) anything prescribed under the regulations, whether in addition to or
in substitution for anything mentioned in this clause.
3 Additional
matters—non-trading cooperatives
In addition to the matters mentioned in clauses 1 and 2, the rules of a
non-trading cooperative must provide—
(a) that there must be no return or distribution on surplus or share
capital to members other than the nominal value of shares (if any) at
winding-up; and
(b) how the surplus property at winding-up is to be distributed.
(see s 270)
In this schedule:
charges register means the register of cooperative charges
mentioned in clause 18.
cooperative includes a foreign cooperative registered under
part 14.
document of title means a document—
(a) used in the ordinary course of business as proof of possession or
control, or of the right to possession or control, of property other than land;
and
(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 warehouse keeper’s certificate; and
(e) a wharfinger’s certificate; and
(f) a warrant or order for the delivery of goods; and
(g) a document that is, or evidences title to, a marketable
security.
present liability, in relation to a charge, means a liability
that has arisen if the extent or amount of the liability is fixed or can be
worked out, whether or not the liability is immediately owing.
property, of a cooperative, means property within the ACT
held by the cooperative, 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.
registrable charge means a charge in relation to which,
because of clause 4, the provisions of this schedule mentioned in clause
4 (1) apply.
2 Application
to charges mentioned in cl 17
(1) A charge mentioned in clause 17 (Acquisition of property subject to
charge) is, until the charge is registered, to be treated for this schedule as
if it were not a registrable charge but, when the charge is so registered, it
has the priority accorded to a registered charge as from the time of
registration.
(2) The registration of a charge mentioned 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 this schedule, a notice or other document is taken to be filed when it
is received at the office of the registrar by an officer authorised to receive
it.
4 Charges
to which sch 3 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 mentioned in subclause
(2) (whether legal or equitable) on property of a cooperative;
and
(b) do not apply in relation to any other charges.
(2) Subclause (1) applies to the following charges:
(a) a floating charge on all or a part of the property, business or
undertaking of the cooperative;
(b) a charge on uncalled share capital or uncalled share
premiums;
(c) a charge on a call, whether in relation to 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), other than a ship registered
in an official register kept under a law of the Commonwealth or a State 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, other than—
(i) a charge created in whole or 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, if the charge is 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
attached 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 owing to the cooperative, or to
become owing to the cooperative at some future time, on account of or in
relation to a profession, trade or business carried on by the cooperative,
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 of a State or Territory prescribed under the
regulations.
9 Deposit
of documents of title
For this division, a cooperative is taken to have deposited a document of
title to property with someone else (the chargee)
if—
(a) the document of title is not in the possession of the cooperative;
and
(b) either—
(i) 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
(ii) 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 attached.
11 Charges
if other property is also charged
For this division, a charge is taken to be a charge on property to which a
particular paragraph of clause 4 (2) applies even though the instrument of
charge also charges other property of the cooperative (including property to
which none of the paragraphs of the subclause applies).
12 Effect
of failure to file or give notice or document
A charge on property of a cooperative is not invalid only because of the
failure to file with the registrar, or give to the cooperative or someone else,
a notice or other document required to be filed or given under this
part.
Division
3.2.2 Notice of
charge
13 Filing
of notice of charge and copy of instrument
(1) If a cooperative creates a charge, the cooperative must ensure that
there is filed with the registrar, within 45 days after the day the charge is
created, a notice setting out the following particulars:
(a) the name of the cooperative 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 prescribed under the regulations for this
clause.
Note If a form is approved under s 468 (Approved forms) for a
notice, the form must be used.
(2) If, in accordance with resolutions passed by the cooperative, the
cooperative 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 resolutions and the
debentures, the notice under subclause (1) must be accompanied
by—
(a) a copy of each of the resolutions verified by a written statement to
be a true copy; and
(b) a copy of the first debenture issued in the series and a written
statement verifying the execution of the first debenture.
(3) If, in a case to which subclause (2) does not apply, the charge
created by the cooperative was created or evidenced by an instrument, the notice
under subclause (1) must be accompanied by—
(a) the instrument; or
(b) a copy of the instrument verified by a written statement to be a true
copy, and a written statement verifying the execution of the
instrument.
In a case to which clause 13 (2) applies—
(a) the charge is, for 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
cooperative passes a further resolution authorising the issue of debentures in
the series, the cooperative must ensure that a copy of that resolution, verified
by a written statement to be a true copy of that resolution, is filed within 45
days after the day the resolution is passed.
15 Operation
of priority provisions in relation to issue of debentures
If a notice in relation to an instrument creating a charge has been filed
under clause 13 (1), and the charge is in relation to an issue of several
debentures whose holders have under the instrument the benefit of the charge in
equal priority, clauses 48 to 51 apply as if any charges constituted by the
debentures were registered when the charge to which the notice relates was
registered.
(1) This clause applies if a cooperative has allowed (directly or
indirectly) a payment or discount to a person in return for the
person—
(a) subscribing, or agreeing to subscribe (with or without conditions),
for debentures; or
(b) obtaining, or agreeing to obtain (with or without conditions),
subscriptions for debentures.
(2) A notice required under clause 13 (1) must include particulars
about the amount or percentage rate of the payment or discount.
(3) The issue by a cooperative of debentures as security for a debt of the
cooperative is not taken, for this clause, to be a discount.
17 Acquisition
of property subject to charge
(1) If a cooperative acquires property that is subject to a charge, and
the charge would have been registrable when it was created if it had been
created by a cooperative, the cooperative must, within 45 days after the day the
property is acquired—
(a) file with the registrar a notice in relation to the charge that sets
out—
(i) the name of the cooperative; and
(ii) the date the property was 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 it was acquired.
Note If a form is approved under s 468 (Approved forms) for a
notice, the form must be used.
(2) If the charge mentioned in subclause (1) was created and evidenced as
mentioned in clause 13 (2), the notice under subclause (1) (a) must be
accompanied by—
(a) a copy of each of the resolutions mentioned in clause 13 (2)
verified by a written statement to be a true copy; and
(b) a copy of the first debenture issued in the series mentioned in clause
13 (2) verified by a written statement to be a true copy.
(3) If the charge mentioned in subclause (1) was created or evidenced by
an instrument (otherwise than as mentioned in clause 13 (2)), the notice
under subclause (1) (a) must be accompanied by—
(a) the instrument; or
(b) a copy of the instrument verified by a written statement to be a true
copy.
Division
3.2.3 Registration
18 Register
of cooperative charges
The registrar must keep a register to be known as the register of
cooperative charges.
19 Registration
of documents relating to charge
(1) If a notice is filed with the registrar in accordance with
division 3.2.2, the registrar must, as soon as practicable, enter in the
charges register the time and date the notice was filed and the following
particulars in relation to the charge:
(a) for a charge created by the cooperative—the date it was
created;
(b) for a charge existing on property acquired by the
cooperative—the date the property was acquired;
(c) a short description of the liability (whether present or prospective)
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
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 filed during or after the
period within which the notice is required to be filed.
(4) Subject to this division, if particulars in relation to a charge are
entered in the charges register 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 charges register under that subclause.
(5) The registrar may enter in the charges register in relation to a
charge, in addition to the particulars expressly required by this division to be
entered, any other particulars 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 cooperative is filed
under division 3.2.2; and
(b) the notice is not accompanied by a certificate to the effect that all
documents accompanying the notice have been properly stamped as required by any
applicable law relating to stamp duty;
the registrar must enter in the charges register the time and date the
notice was filed and the particulars mentioned in
clause 19 (1) (a) to (e), and must also enter the word
‘provisional’ in the charges register next to the entry.
(2) Subclause (1) applies whether the notice was filed during or after the
period within which the notice was required to be filed.
(3) The registrar must delete the word ‘provisional’ entered
in the charges register under subclause (1) in relation to the entry if a
certificate to the effect mentioned in subclause (1) (b) is produced to the
registrar within—
(a) 28 days after the day the entry is made; or
(b) if a longer period is prescribed under the regulations—that
period; or
(c) if the registrar allows a further period to the period applying under
paragraph (a) or (b)—the further period.
(4) The registrar must delete from the charges register an entry in
relation to a charge if—
(a) the word ‘provisional’ is entered in the charges register
under subclause (1) in relation to the entry; and
(b) a certificate to the effect mentioned in subclause (1) (b) is not
produced in relation to the entry within the period applying under subclause
(3).
21 Provisional
registration if required particulars not supplied
(1) If a defective notice in relation to a charge on property is filed
with the registrar under clause 19, the registrar must enter in the charges
register—
(a) the time and date the document was filed; and
(b) any of the particulars mentioned in clause 19 (1) that are
ascertainable; and
(c) the word ‘provisional’ next to the entry.
(2) If a defective notice in relation to a charge is filed under clause
19, the registrar must, by notice to the person who filed the defective notice,
direct the person to ensure that there is filed, on or before the date stated in
the notice, a notice in relation to the charge that complies with the
requirements of division 3.2.2.
(3) Subclauses (1) and (2) apply whether the defective notice was filed
during or after the period within which the notice was required to be
filed.
(4) The giving by the registrar of a direction to the person under
subclause (2) does not affect any liability that the cooperative may have
incurred or may incur because of a contravention of
division 3.2.2.
(5) If the registrar gives a direction to a person under subclause (2) in
relation to a charge and the direction is complied with on or before the date
stated in the notice containing the direction, the registrar
must—
(a) delete from the charges register the word ‘provisional’
that was entered under subclause (1); and
(b) enter in the charges register in relation to the charge any
particulars mentioned in clause 19 (1) that have not previously been
entered.
(6) If the registrar gives a direction to a person under subclause (2) in
relation to a charge and the direction is not complied with on or before the
date stated in the notice, the registrar must delete from the charges register
all the particulars that were entered in relation to the charge.
(7) If the registrar gives a direction to a person under subclause (2) in
relation to a charge and the direction is complied with after the date stated in
the notice, the registrar must enter in the charges register in relation to the
charge—
(a) the time and date the direction was complied with; and
(b) the particulars mentioned in clause 19 (1).
(8) In this clause:
defective notice, in relation to a cooperative, means a
document that—
(a) purports to be a notice in relation to a charge on property of the
cooperative for division 3.2.2; and
(b) contains the name of the cooperative and the particulars mentioned in
clause 13 (1) (g) or (h);
but does not contain some or all of the other particulars required to be
included in the notice or is otherwise defective.
22 Effect
of provisional registration
(1) If the word ‘provisional’ is entered in the charges
register next to an entry stating a time and date in relation to a charge, the
charge is taken not to have been registered.
(2) However, if the word ‘provisional’ is deleted from the
charges register under clause 20 or 21 (5), the charge is taken to be
registered and to have been registered from the time and date stated in the
charges register.
(3) Also, if the particulars in relation to the charge are deleted from
the charges register under clause 21 (6) and the particulars and a time and
date are subsequently entered in the charges register in relation to the charge
under clause 21 (7), the charge is taken to be registered from that time
and date.
23 Two
or more charges relating to same property
(1) If, under clause 17, a cooperative files notices relating to 2 or more
charges that are not already registered under this division on the same property
acquired by the cooperative, the time and date to be entered in the charges
register in relation to each of the charges is the time and date when the first
notice was filed.
(2) If, in accordance with subclause (1), the time and date entered in the
charges register are the same in relation to 2 or more charges on property
acquired by a cooperative, the charges have, as between themselves, the
respective priorities that they would have had if they had not been registered
under this division.
24 Registration
of assignment or variation of charge
(1) If a notice is filed under clause 36, the registrar must as soon as
practicable enter in the charges register the time and date the notice was filed
and the particulars set out in the notice.
(2) This clause applies whether the notice was filed during or after the
period within which the notice was required to be filed.
25 Standard
time for div 3.2.3
(1) The registrar may, in writing, declare a standard time to be the
standard time for this division.
(2) A declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the
Legislation Act 2001.
(3) If a declaration is in force under subclause (1), a reference in this
division to entering the time when a particular event happened is a reference to
entering that time as expressed in terms of the standard time stated in the
declaration.
Division
3.2.4 Certain charges void against
liquidator or administrator
26 Definitions
for div 3.2.4
In this division:
critical day, in relation to a cooperative,
means—
(a) if the cooperative is being wound up—the day the winding-up
began; or
(b) if the cooperative is under administration—the relevant day in
relation to the administration; or
(c) if the cooperative 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
cooperative, means—
(a) if, when the administration began, a winding-up of the cooperative was
in progress—the day the winding-up is taken to have begun because of the
Corporations Act, part 5.6 (Winding up generally), division 1A (When winding up
taken to begin) as applied by this Act; or
(b) in any other case—the day the administration began.
27 Certain
charges void against liquidator or administrator
(1) Subject to this division, if—
(a) an order is made, or a resolution is passed, for the winding-up of a
cooperative; or
(b) the registrar gives a certificate under section 315 for the winding-up
of the cooperative; or
(c) an administrator of the cooperative is appointed under the
Corporations Act, part 5.3A (Administration of a company’s affairs with a
view to executing a deed of company arrangement) as applied by this Act;
or
(d) the cooperative executes a deed of arrangement;
a registrable charge on property of the cooperative is void as a security
on the property as against the liquidator, the administrator of the cooperative,
or the administrator of the deed.
(2) However, the charge is not void under subclause (1)
if—
(a) a notice in relation to the charge was filed 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 required period in relation to the charge has not ended before the
critical day and a notice in relation to the charge is filed under a clause of
this part (other than clause 36) before the end of the required period;
or
(c) for a charge to which clause 17 applies—the period of 45 days
after the day the chargee becomes aware that the property charged has been
acquired by a cooperative has not ended before the critical day and the notice
is filed before the end of the 45 day period.
(3) In this clause:
relevant period, for a notice in relation to a charge
mentioned in subclause (2) (a) means—
(a) for a charge to which clause 13 applies—the period of 45 days
mentioned in that clause or, if the period is extended by the Supreme Court
under clause 29, the extended period; or
(b) for a charge to which clause 17 applies—45 days after the day
the chargee becomes aware that the property has been acquired by a
cooperative.
required period, for a notice in relation to a charge
mentioned in subclause (2) (b), means the period mentioned in the clause under
which the notice is filed or, if the period is extended by the Supreme Court
under clause 29, the extended period.
28 Certain
varied charges void against liquidator or administrator
(1) Subject to this division, if, after there has been a variation in the
terms of a registrable charge on property of a cooperative 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
cooperative; or
(b) an administrator of the cooperative is appointed under Corporations
Act, part 5.3A (Administration of a company’s affairs with a view to
executing a deed of company arrangement) as applied by this Act; or
(c) the cooperative 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) However, the charge is not void under subclause (1)
if—
(a) a notice in relation to the variation was filed under clause
36—
(i) within the period of 45 days mentioned in clause 36 (2) or,
if the period is extended by the Supreme Court under clause 29, the extended
period; or
(ii) not later than 6 months before the critical day; or
(b) the period of 45 days mentioned in clause 36 (2) (or, if the
period is extended by the Supreme Court under clause 29, the extended period)
has not ended at the start of the critical day, and the notice is filed before
the end of the period.
29 Supreme
Court may extend required period for notice of charge
If the Supreme Court is satisfied that—
(a) the failure to file a notice in relation to a charge, or in relation
to a variation in the terms of a charge, as required by any provision of this
schedule—
(i) was accidental or caused by inadvertence or some other sufficient
cause; and
(ii) is not of a nature to prejudice the position of creditors or
shareholders; or
(b) that on other grounds it is just and equitable to grant
relief;
the court may, on the application of the cooperative or anyone interested
and on any conditions the court considers just, extend the period.
30 Certain
later charges void
(1) 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 liability secured by
the earlier charge or any part of the liability;
the later charge, to the extent to which it is a security for the liability
or part of the liability, and so far as it relates to property to which the
earlier charge related, is void as a security on the property as against a
liquidator or administrator of the cooperative, or an administrator of a deed of
arrangement executed by the cooperative.
(2) Subclause (1) applies even if a notice in relation to the later charge
was filed 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 honestly for the purpose of
correcting some material error in the earlier charge or under other proper
circumstances and not to avoid or evade the provisions of this
division.
31 Effect
of provisions on honest purchaser
(1) Clauses 27 and 28 do not 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 given by the charge or implied by law if that person
purchased the property honestly and without notice of—
(a) the filing of an application for an order for the winding-up of the
cooperative; or
(b) the passing of the necessary resolution for the voluntary winding-up
of the cooperative; or
(c) an administrator of the cooperative being appointed under the
Corporations Act, part 5.3A (Administration of a company’s affairs with a
view to executing a deed of company arrangement) as applied by this Act;
or
(d) the cooperative executing a deed of arrangement.
(2) The burden of proving that a person purchased property honestly and
without notice of any of the matters mentioned in subclause (1) (a),
(b), (c) and (d) is on the person asserting that the property was so
purchased.
Division
3.2.5 Certain charges
void
32 Definitions
for div 3.2.5
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; and
(b) for a charge that is an agreement to give or execute a charge in
favour of a person or 2 or more people, whether on demand or
otherwise—that person, or all or any of those people.
officer, of a foreign cooperative, includes a local agent of
the foreign cooperative.
receiver includes a receiver and manager.
relevant person, in relation to a charge created by a
cooperative, means—
(a) a person who is when the charge is created, or who was at any time
during the 6 months before the charge was created, an officer of the
cooperative; or
(b) a person associated, in relation to the creation of the charge, with a
person mentioned in paragraph (a).
33 Charges
in favour of certain people void in certain cases
(1) If—
(a) a cooperative creates a charge on property of the cooperative in
favour of a person who is, or in favour of 2 or more people at least 1 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 given by an instrument creating
or evidencing the charge, are, and are to be considered always to have been,
void.
(2) Without limiting subclause (1), if a person—
(a) appoints a receiver of property of a cooperative under powers given by
an instrument creating or evidencing a charge created by the cooperative;
or
(b) whether directly or by an agent, enters into possession, or assumes
control, of any property of a cooperative for enforcing a charge created by the
cooperative;
the person is taken, for 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 cooperative 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) Clause 33 does not affect a debt or liability of a cooperative that
would, if that clause had not been enacted, have been secured by a charge
created by the cooperative.
(2) Clause 33 does not affect the title of a person to property (other
than the charge concerned or an interest in the charge) purchased for value
from—
(a) a chargee under a charge; or
(b) an agent of a chargee under a charge; or
(c) a receiver appointed by a chargee under a charge in the exercise of
powers conferred by the charge or implied law;
if the person purchased the property honestly and without notice that the
charge was created in favour of a person who is, or in favour of 2 or more
people at least 1 of whom is, a relevant person in relation to the
charge.
(3) The burden of proving that a person purchased property honestly and
without notice that a charge was created as mentioned in subclause (2) is on the
person asserting that the property was so purchased.
Division
3.2.6 Assignment, variation and
satisfaction of charges
36 Assignment
and variation of charges
(1) If, after a registrable charge on property of a cooperative 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 the day the person becomes the holder of the charge—
(a) file a notice with the registrar stating that the person has become
the holder of the charge; and
(b) give the cooperative a copy of the notice.
(2) If, after a registrable charge on property of a cooperative 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 cooperative must, within 45 days after the day the variation happens,
ensure that there is filed 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 the instrument.
(3) If a charge created by a cooperative 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 cooperative in accordance with the terms
of the charge is taken, for subclause (2), not 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) If a charge is constituted by a debenture or debentures and there is a
trustee for debenture holders, a reference in this clause to the
chargee in relation to the charge is a reference to the trustee
for debenture holders.
(5) Clause 13 does not require the filing of a notice under the clause in
relation to a charge if the terms of the charge are varied only in a way
mentioned in this clause.
37 Satisfaction
of, and release of property from, charges
(1) This clause applies if, in relation to a charge registered under this
part—
(a) the debt or other liability secured by the charge over property of a
cooperative has been paid or discharged completely or in part; or
(b) the property of a cooperative charged, or part of the property
charged, is released from the charge.
(2) The cooperative may, by notice, require the person who held the charge
at the time of the payment, discharge or release to give the cooperative a
memorandum acknowledging that the debt or other liability was paid or discharged
or the property or part of the property was released.
Note If a form is approved under s 468 (Approved forms) for a
memorandum, the form must be used.
(3) If the cooperative gives the person a notice under subsection (2), the
person must, within 14 days after the day the person receives the notice, give
the memorandum to the cooperative.
Maximum penalty: 10 penalty units.
(4) The cooperative may file the memorandum with the registrar and, on the
memorandum being filed, the registrar must enter in the charges register the
particulars stated in the memorandum.
(5) If the charge is constituted by a debenture or debentures and there is
a trustee for debenture holders, the reference in subclause (2) to the person
who held the charge at the time of the payment, discharge or release is a
reference to the trustee for debenture holders.
38 Filing
of notices under pt 3.2
(1) If a notice in relation to a charge on property of a cooperative is
required to be filed under clause 13, 17 or 36 (2), the notice may be filed
by the cooperative or by any interested person.
(2) If a document required by this part other than clause 36 (1) to
be filed with the registrar is filed by a person other than the cooperative
concerned, the person—
(a) must, within 7 days after the day the document is filed, give to the
cooperative a copy of the document; and
(b) may recover from the cooperative the amount of any fees properly paid
by the person on filing of the document.
(1) If clause 13, 17 or 36 (2) is contravened in relation to a
registrable charge on property of a cooperative, the cooperative and any officer
of the cooperative who is knowingly concerned in or a party to the contravention
commits an offence.
Maximum penalty: 10 penalty units.
(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,
any officer of the corporation who is in default, each commit an
offence.
Maximum penalty: 10 penalty units.
40 Cooperative
to keep documents relating to charges
A cooperative must, at the place where the register mentioned in clause 41
is kept, keep a copy of—
(a) every document relating to a charge on property of the cooperative
that is filed with the registrar under this part; and
(b) every document given to the cooperative under this part.
Maximum penalty: 10 penalty units.
41 Cooperative
to keep register of charges
(1) A cooperative must keep a register of charges.
(2) On the creation of a charge (whether registrable or not) on property
of the cooperative, or on the acquisition of property subject to a charge
(whether registrable or not), the cooperative must as soon as practicable enter
in the register, the following particulars of the charge:
(a) if the charge is a charge created by the cooperative—the date of
its creation;
(b) if the charge was a charge existing on property acquired by the
cooperative—the date the property was acquired;
(c) a short description of the liability (whether present or prospective)
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 not a
trustee for debenture holders, the name of the chargee;
(f) the name of the person whom the cooperative believes to be the holder
of the charge.
(3) A register kept by a cooperative under subclause (1) must be open for
inspection during the cooperative’s normal business hours—
(a) by a creditor or member of the cooperative, without charge;
and
(b) by anyone else, on payment for each inspection of the amount (not
exceeding any amount prescribed under the regulations) the cooperative requires
or, if the cooperative does not require payment, without charge.
(4) A person may ask a cooperative to provide the person with a copy of
the register or any part of the register.
(5) If a person makes a request under subclause (4), the cooperative must
give the copy to the person—
(a) if the cooperative requires payment of an amount not exceeding any
amount prescribed under the regulations—within 21 days after the day
payment of the amount is received by the cooperative or, if the registrar allows
a longer period, the longer period; or
(b) in any other case—within 21 days after the day the request is
made or, if the registrar allows a longer period, the longer period.
(6) A cooperative must not, without reasonable excuse, contravene a
provision of this clause.
Maximum penalty (subclause (6)): 10 penalty units.
42 Certificates
about charges
(1) If particulars of a charge are entered in the charges register in
accordance with this part, the registrar must, on request by any person, issue
to that person a certificate—
(a) setting out the particulars; and
(b) stating the time and date when a notice in relation to the charge
containing the particulars was filed with the registrar; and
(c) if the word ‘provisional’ appears in the charges register
next to the reference to the time and date—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 charges register in
accordance with this part, and the word ‘provisional’ does not
appear in the charges register next to the reference to the time and date when a
notice in relation to the charge was filed, the registrar must, on request by
anyone, issue a certificate to the person that states that particulars of the
charge are entered in the charges register in accordance with this
part.
(4) A certificate issued under subclause (3) is conclusive evidence that
the requirements of this part about registration (other than the requirements
relating to the period after the creation of the charge within which notice in
relation to the charge is required to be filed) have been complied
with.
43 Power
of Supreme Court to rectify charges register
If the Supreme Court is satisfied—
(a) that—
(i) a particular in relation to a registrable charge on property of a
cooperative has been omitted from, or is misstated in, the charges register or a
memorandum mentioned in clause 37; and
(ii) the omission or misstatement—
(A) was accidental or caused by inadvertence or some other sufficient
cause; and
(B) is not of a nature to prejudice the position of creditors or
shareholders; or
(b) that on other grounds it is just and equitable to grant
relief;
the court may, on the application of the cooperative or anyone interested
and on any conditions that the court considers just, order that the omission or
misstatement be rectified.
44 Registrar
may give exemptions for certain requirements of pt 3.2
(1) The registrar may, in writing, exempt a person from any requirement of
clause 13, 17 or 36 relating to—
(a) the particulars to be contained in a notice under the clause;
or
(b) the documents (other than the notice) to be filed under the clause;
or
(c) the verification of any document required to be filed under the
clause.
(2) An exemption may be unconditional or subject to conditions.
(3) If a person is exempted by the registrar, subject to a condition, from
a requirement of clause 13, 17 or 36, the person must not, without reasonable
excuse, contravene the condition.
Maximum penalty: 10 penalty units.
(4) If a person contravenes 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 (whether or not the person has
been prosecuted for an offence against subclause (3) for the
contravention).
Part
3.3 Order of
priority
45 Definitions
for pt 3.3
In this part:
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 charges register in relation to the charge that was entered in
the register under division 3.2.3; or
(b) if a notice has been filed under clause 17 in relation to a charge on
property that, when the notice was filed, was already registered under part
3.2—the earlier or earliest time and date appearing in the charges
register in relation to the charge that was entered in the charges register
under clause 17; or
(c) to the extent that the charge has effect as varied by a variation
notice of which was required to be filed under clause 36 (2), the time and
date entered in the charges register in relation to the charge under clause
24.
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.
registered charge means a charge that is registered under
part 3.2.
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 part 3.2, but does not include a charge that is not a registrable
charge.
46 Constructive
notice of charge
A reference in this part to a person having notice of a
charge includes a reference to a person having constructive notice of the
charge.
47 Registered
charge with 2 or more priority times
If, because of the definition of priority time in clause 45,
a registered charge has 2 or more priority times and each of the priority times
relates to a particular liability secured by the charge, each of the liabilities
is taken, for this part, to be secured by a separate registered charge with the
same priority time as the first registered charge that relates to the
liability.
(1) Subject to this clause, division 3.3.2 has effect in relation to the
priorities, in relation to each other, of registrable charges on the property of
a cooperative.
(2) The application, in relation to particular registrable charges, of the
order of priorities of charges set out in division 3.3.2 is subject
to—
(a) any reduction in the priority of a charge in relation to all or any of
the other charges, if the holder of the charge agrees (expressly or by
implication) to the reduction; and
(b) any agreement between the chargees that affects the priorities in
relation to each other of the charges in relation to which they are the
chargees.
(3) The holder of a registered floating charge on property of a
cooperative is taken, for subclause (2), to have agreed to the charge being
postponed to a subsequent registered charge that is a fixed charge created
before the floating charge becomes fixed 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 in relation to the floating charge indicating the existence
of the provision mentioned in paragraph (a) was filed with the registrar under
clause 13, 17 or 36 before the creation of the subsequent registered
charge.
(4) If a charge relates to property mentioned in clause 4 (2) and also to
other property, division 3.3.2 only affects the priority of the charge so far as
it relates to the property mentioned in clause 4 (2) and does not affect the
priority of the charge so far as it relates to the other property.
Division
3.3.2 Priority
rules
49 General
priority rules in relation to registered charges
(1) A registered charge on property of a cooperative has priority
over—
(a) a subsequent registered charge on the property,
unless—
(i) the subsequent registered charge was created before the creation of
the prior registered charge; and
(ii) 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 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 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 cooperative is postponed
to—
(a) a subsequent registered charge on the property, if—
(i) the subsequent registered charge was created before the creation of
the prior registered charge; and
(ii) 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 when the prior registered charge was created;
and
(b) an unregistered charge on the property created before the creation of
the registered charge, if the chargee in relation to the unregistered charge
proves that the chargee in relation to the registered charge had notice of the
unregistered charge when the registered charge was created.
50 General
priority rule in relation to unregistered charges
An unregistered charge on property of a cooperative (the
first charge) has priority over—
(a) a registered charge on the property that—
(i) was created after the first charge; and
(ii) does not have priority over the first charge under clause
49 (1); and
(b) another unregistered charge on the property created after the first
charge.
51 Special
priority rules
(1) Except as provided by this clause, any priority given under this part
to a charge (the first charge) over another charge does not extend
to any liability that is not a present liability at the priority time in
relation to the first charge.
(2) If a registered charge on property of a cooperative (the first
charge) secures—
(a) a present liability and a prospective liability of an unspecified
amount; or
(b) a prospective liability of an unspecified amount;
any priority given under this part to the first charge over another charge
extends to the prospective liability, whether the prospective liability became a
present liability before or after the registration of the first
charge.
(3) However, subclause (2) applies only if, when the first charge was
created, the chargee in relation to the charge did not have actual knowledge of
the prospective liability.
(4) If—
(a) a registered charge on property of a cooperative (the first
charge) 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;
and
(b) the notice filed under clause 13 or 17 in relation to the charge sets
out the nature of the prospective liability and the maximum amount
specified;
any priority given under this part to the first charge over another charge
extends to any prospective liability secured by the first charge to the extent
of the maximum amount specified.
(5) Subclause (4) applies whether the prospective liability became a
present liability before or after the registration of the first charge and
despite the fact that the chargee in relation to the first charge had actual
knowledge of the other charge when the prospective liability became a present
liability.
(6) Subclause (7) applies to a registered charge on property of a
cooperative—
(a) if—
(i) the charge 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
(ii) the notice filed under clause 13 or 17 in relation to the charge does
not set out the nature of the prospective liability or the maximum amount so
specified; or
(b) if the charge secures a prospective liability of an unspecified
amount.
(7) Any priority given under this part to a registered charge to which
this subclause applies because of subclause (6) (the priority
charge) over another charge of which the chargee in relation to the
priority charge has actual knowledge extends to any prospective liability
secured by the priority charge that—
(a) had become a present liability when the chargee in relation to the
priority charge first obtained actual knowledge of the other charge;
or
(b) became a present liability, because of the making of an advance, after
the time when the chargee in relation to the priority charge first obtained
actual knowledge of the other charge if, at that time, the terms of the priority
charge required the chargee in relation to that charge to make the advance after
that time.
(8) Subclause (7) (b) extends to the prospective liability whether
the advance was made before or after the registration of the priority charge and
despite the fact that the chargee in relation to the priority charge had actual
knowledge of the other charge when the advance was made.
Schedule
4 Receivers, and other controllers, of
property of cooperatives
(see s 271 and s 345)
In this schedule:
administrator, of a deed of arrangement, means the
administrator of the deed appointed under the Corporations Act, part 5.3A
(Administration of a company’s affairs with a view to executing a deed of
company arrangement) as applied by this Act.
control day, in relation to a controller of property of a
cooperative, means—
(a) unless paragraph (b) applies—
(i) for a receiver, or receiver and manager, of the property—the day
the receiver, or receiver and manager, was appointed; or
(ii) for anyone else who is in possession, or has control, of the property
for the purpose of enforcing a charge—the day the person entered into
possession, or took control, of any property of the cooperative for that
purpose; or
(b) if the controller became a controller of property of the
cooperative—
(i) to act with an existing controller of the property; or
(ii) in place of a controller of the property who died or ceased to be a
controller of the property;
the day that is, because of any other application of this definition, the
control day in relation to the controller mentioned in subparagraph (i) or
(ii).
controller, of property of a cooperative,
means—
(a) a receiver, or receiver and manager, of the property; or
(b) anyone else who (whether or not as agent for the cooperative) is in
possession, or has control, of the property for the purpose of enforcing a
charge.
cooperative includes a foreign cooperative registered under
part 14.
daily newspaper means a newspaper ordinarily published on
each day that is a business day where it is published, whether or not the
newspaper is ordinarily published on other days.
managing controller, of property of a cooperative,
means—
(a) a receiver and manager of the property; or
(b) any other controller of the property who has functions in relation to
managing the cooperative.
national newspaper means a daily newspaper that circulates
generally in the ACT and each State.
officer, of a foreign cooperative, includes a local agent of
the foreign cooperative.
property, of a cooperative, means property—
(a) for a cooperative that is not a foreign cooperative—in or
outside Australia; or
(b) for a cooperative that is a foreign cooperative—in Australia or
an external Territory.
receiver, of property of a cooperative, includes a receiver
and manager.
(1) This schedule applies in relation to a receiver of property of a
cooperative who is appointed after the commencement of this schedule, even if
the appointment arose out of a transaction entered into, or anything done,
before that commencement.
(2) This clause expires 2 years after it commences.
3 People
not to act as receivers
(1) A person is not qualified to be appointed, and must not act, as
receiver of property of a cooperative if the person—
(a) is a mortgagee of property of the cooperative; or
(b) is an auditor or an officer of the cooperative; or
(c) is an officer of a corporation that is a mortgagee of property of the
cooperative; or
(d) is not a registered liquidator under the Corporations Act;
or
(e) is an officer of a corporation related to the cooperative;
or
(f) unless the registrar directs in writing that this paragraph does not
apply in relation to the person in relation to the cooperative, has at any time
within the last 12 months been an officer or promoter of the cooperative or of a
related corporation.
(2) In subclause (1):
officer, of a corporation, does not include a receiver,
appointed under an instrument, of property of the corporation.
(3) Subclause (1) (d) does not apply in relation to a corporation
authorised under a Commonwealth, State or Territory law to act as receiver of
property of the cooperative concerned.
(4) This clause does not prevent a person from acting as receiver of
property of a cooperative under an appointment validly made before the
commencement of this clause.
(5) Subclause (4) and this subclause expire 2 years after the commencement
of this clause.
4 Supreme
Court may declare whether controller validly acting
(1) If there is doubt, on a specific ground, about—
(a) whether a purported appointment of a person as receiver of property of
a cooperative is valid; or
(b) whether a person who has entered into possession, or assumed control,
of any property of a cooperative did so validly under the terms of a charge on
the property;
the person, the cooperative or any of the cooperative’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;
on the ground stated in the application or on some other ground.
5 Liability
of controller
(1) Subclause (2) applies to a receiver or another authorised person who
(whether as agent for the cooperative concerned or not) enters into possession,
or assumes control, of any property of a cooperative for the purpose of
enforcing any charge.
(2) The receiver or other authorised person is 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.
(3) For subclause (2), the following provisions apply:
(a) the subclause applies despite any agreement to the contrary;
(b) the subclause does not prejudice the rights of the receiver or other
authorised person against the cooperative or anyone else;
(c) the receiver or other authorised person is not, under the subclause,
constituted a mortgagee in possession.
(4) Subclause (5) applies if—
(a) a person (the relevant person) enters into possession,
or assumes control, of any property of a cooperative; and
(b) the relevant person purports to have been properly appointed as a
receiver in relation to the property under a power contained in an instrument,
but has not been properly so appointed; and
(c) a civil proceeding in a federal court or a court of a State or
Territory arise out of an act claimed to have been done by the relevant
person.
(5) If this subclause applies, the court may, if it is satisfied that the
relevant person believed on reasonable grounds that the relevant person had been
properly appointed, order that—
(a) the relevant person be relieved completely or in part of a liability
that the person has incurred but would not have incurred if the person had been
properly appointed; and
(b) a person who purported to appoint the relevant person as receiver be
liable in relation to anything so far as the relevant person has been relieved
under paragraph (a) of liability in relation to the thing.
6 Liability
of controller under pre-existing agreement about property used by
cooperative
(1) This clause applies if—
(a) under an agreement made before the control day in relation to a
controller of property of a cooperative, the cooperative 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 so
much of the rent or other amounts payable by the cooperative under the agreement
as is attributable to a period—
(a) that begins more than 7 days after the control day; and
(b) throughout which—
(i) the cooperative 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 cooperative or anyone
else.
(4) Despite subclause (2), the controller is not liable for so much of the
rent or other amounts payable by the cooperative under the agreement as is
attributable to a period during which a notice under subclause (3) is in force,
but such a notice does not affect a liability of the cooperative.
(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 cooperative or anyone else.
(6) For subclause (5), the controller does not exercise, or purport to
exercise, a right mentioned in subclause (5) (b) only 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, so to
continue.
(7) Subclause (2) does not apply so far as the Supreme Court, by order,
excuses the controller from liability, but an order does not affect a liability
of the cooperative.
(8) The controller is not taken because of subclause (2)—
(a) to have applied the agreement mentioned in the subclause; or
(b) to be liable under the agreement otherwise than as mentioned in the
subclause.
(1) A receiver of property of a cooperative has power to do, anywhere in
Australia or 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), a receiver of property of a
cooperative has 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
cooperative in accordance with the terms of the order or instrument of the
receiver’s appointment; and
(b) to lease, let on hire or dispose of property of the cooperative;
and
(c) to grant options over property of the cooperative on the conditions
the receiver considers appropriate; and
(d) to borrow money on the security of property of the cooperative;
and
(e) to insure property of the cooperative; and
(f) to repair, renew or enlarge property of the cooperative; and
(g) to convert property of the cooperative into money; and
(h) to carry on any business of the cooperative; and
(i) to take on lease or on hire, or to acquire, any property necessary or
convenient in relation to the carrying on of a business of the cooperative;
and
(j) to execute any document, bring or defend any proceeding or do anything
else in the name of and on behalf of the cooperative; and
(k) to draw, accept, make and endorse a bill of exchange or promissory
note; and
(l) to use the seal of the cooperative; and
(m) to engage or discharge employees on behalf of the cooperative;
and
(n) to appoint a solicitor, accountant or other professionally qualified
person to assist the receiver; and
(o) to appoint an agent to do any business that the receiver cannot do
personally, or that it would be unreasonable to expect the receiver to do
personally; and
(p) if a debt or liability is owed to the cooperative—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
cooperative—
(i) to make a call, in the name of the cooperative, in relation to money
unpaid on shares in the cooperative (whether on account of the nominal value of
the shares or by way of premium); or
(ii) on the giving of a proper indemnity to a liquidator of the
cooperative in the name of the liquidator, to make a call in relation to money
unpaid on account of the nominal value of shares in the cooperative;
and
(r) to enforce payment of any call that is payable, whether the calls were
made by the receiver or otherwise; and
(s) to make or defend an application for the winding-up of the
cooperative; and
(t) to refer to arbitration any question affecting the
cooperative.
(3) The powers given by subclause (2) are additional to any powers given
by the court order by which, or the instrument under which, the receiver was
appointed, or by any other law, but the subclause applies subject to any
provision of the relevant court order or instrument that limits the
receiver’s powers in any way.
(4) The giving by this clause to a receiver of powers in relation to
property of a cooperative does not affect the rights of anyone else (other than
the cooperative) in relation to the property.
(5) In this clause, a reference, in relation to a receiver, to
property of a cooperative is a reference to the
property of the cooperative 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 relation to property of a
cooperative, 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 that
market value; or
(b) in any other case—the best price reasonably obtainable, having
regard to the circumstances existing when the property is sold.
(2) This clause does not limit division 9.3 (Duties and liabilities of
directors, officers and employees).
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
cooperative, the Supreme Court may, by order, authorise the controller to sell,
or to dispose of in another way, particular property of the cooperative, even
though it is subject to a charge (the prior charge) that has
priority over a charge (the controller’s charge) on that
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 so 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
that consent; and
(c) sale or disposal of the property under the order is in the best
interests of the cooperative’s creditors and of the cooperative;
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 (the relevant property) would be sold or
disposed of together with other property 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 relevant 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
the 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 relevant 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 relevant property.
(5) Subclauses (3) and (4) do not limit the matters to which the Supreme
Court may have regard for subclause (2).
(6) An order may be made subject to conditions, including, for
example—
(a) a condition that—
(i) the net proceeds of the sale or disposal; and
(ii) the net proceeds of the sale or disposal of other property (if any)
that is stated in the condition and is subject to the controller’s
charge;
or a stated part of the net proceeds, be applied in payment of stated
amounts secured by the prior charge; or
(b) a condition that the controller apply a stated amount in payment of
stated amounts secured by the prior charge.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act 2001, s 126 and s 132).
10 Receiver’s
power to carry on cooperative’s business during
winding-up
(1) A receiver of property of a cooperative that is being wound up
may—
(a) with the written approval of the cooperative’s liquidator or
with the approval of the Supreme Court, carry on the cooperative’s
business either generally or as otherwise stated in the approval; and
(b) do whatever is necessarily incidental to carrying on that business
under paragraph (a).
(2) Subclause (1) does not—
(a) affect a power that the receiver has otherwise than under that
subclause; or
(b) authorise the receiver to do anything that the receiver would not have
power to do if the cooperative were not being wound up.
(3) A receiver of property of a cooperative who carries on the
cooperative’s business under subclause (1) does so—
(a) as agent for the cooperative; and
(b) in his or her capacity as receiver of property of the
cooperative.
(4) The consequences of subclause (3) include, for example, the
following:
(a) for clause 5 (Liability of controller), 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.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act 2001, s 126 and s 132).
11 Controller’s
duties in relation to bank accounts and financial records
(1) A controller of property of a cooperative must—
(a) open and maintain at least 1 account, with an Australian bank,
bearing—
(i) the controller’s own name; and
(ii) for a receiver of the property—the title
‘receiver’; and
(iii) for any other controller—the title ‘controller’;
and
(iv) the cooperative’s name; and
(b) within 3 business days after the day an amount of the cooperative
comes under the control of the controller, pay the amount into such an account
that the controller maintains; and
(c) ensure that no such account that the controller maintains contains an
amount other than an amount of the cooperative that comes under the control of
the controller; and
(d) keep the financial records necessary to correctly record and explain
all transactions that the controller enters into as controller.
(2) Any director, creditor or member of a cooperative may at any
reasonable time, unless the Supreme Court otherwise orders, personally or by an
agent, inspect financial records kept by a controller of property of the
cooperative for subclause (1) (d).
12 Managing
controller to report within 2 months about cooperative’s
affairs
(1) A managing controller of property of a cooperative must prepare a
report about the cooperative’s affairs that is made up to a day not later
than 28 days before the day it is prepared.
Note If a form is approved under s 468 (Approved forms) for a
report, the form must be used.
(2) The managing controller must prepare the report and file it with the
registrar within 2 months after the control day.
(3) As soon as practicable, and in any event within 14 days, after filing
the report with the registrar, the managing controller must publish in a
national newspaper, or in the ACT and each State in a daily newspaper that
circulates generally in the ACT or State, a notice stating—
(a) that the report has been prepared; and
(b) that a person can inspect the report at the office of the
registrar.
(4) If, in the managing controller’s opinion, it would seriously
prejudice—
(a) the cooperative’s interests; or
(b) the achievement of the objectives for which the controller was
appointed, or entered into possession, or assumed control, of any property of
the cooperative;
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
allowed 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) Subclause (2) applies if it appears to the receiver of property of a
cooperative that—
(a) a past or present officer, or a member, of the cooperative may have
been guilty of an offence against a Commonwealth, State or Territory law in
relation to the cooperative; or
(b) a person who has taken part in the formation, promotion,
administration, management or winding-up of the cooperative—
(i) may have misapplied or kept, or may have become liable or accountable
for, any money or property of the cooperative (whether the money or property is
in or outside Australia); or
(ii) may have been guilty of negligence, default, breach of duty or breach
of trust in relation to the cooperative.
(2) If this subclause applies, the receiver must—
(a) file with the registrar as soon as practicable a report about the
matter; and
(b) give to the registrar the information, and access to and facilities
for inspecting and taking copies of any documents, that the registrar
requires.
(3) The receiver may also file further reports specifying anything else
that, in the receiver’s opinion, it is desirable to bring to the notice of
the registrar.
(4) If it appears to the Supreme Court—
(a) that—
(i) a past or present officer, or a member, of a cooperative in relation
to property of which a receiver has been appointed has been guilty of an offence
against a law mentioned in subclause (1) (a) in relation to the
cooperative; or
(ii) a person who has taken part in the formation, promotion,
administration, management or winding-up of a cooperative in relation to
property of which a receiver has been appointed has engaged in conduct mentioned
in subclause (1) (b) in relation to the cooperative; and
(b) that the receiver has not filed 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 on its own initiative, direct the receiver to file a report
about the matter with the registrar.
14 Supervision
of controller
(1) If—
(a) it appears to the Supreme Court or to the registrar that a controller
of property of a cooperative has not faithfully exercised, or is not faithfully
exercising, the controller’s functions or has not observed, or is not
observing, a requirement of—
(i) for a receiver—the order by which, or the instrument under
which, the receiver was appointed; or
(ii) in any other case—an instrument under which the controller
entered into possession, or took control, of the property; or
(iii) in any case—the Supreme Court or this Act; 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 cooperative in relation to the
exercise of any of the controller’s functions;
the court or the registrar may inquire into the matter and, after inquiry,
may take the action the court or registrar considers appropriate.
(2) The registrar may report to the Supreme Court anything that in the
registrar’s opinion is a misfeasance, neglect or omission by a controller
of property of a cooperative, and the court may—
(a) order the controller to make good any loss that the estate of the
cooperative has sustained by it; and
(b) make any other orders it considers appropriate.
(3) The Supreme Court may at any time—
(a) require a controller of property of a cooperative to answer questions
about the exercise of any of the controller’s functions as controller;
or
(b) examine a person about the exercise by the controller of any of the
controller’s functions 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 cooperative may apply to the Supreme
Court for directions in relation to anything arising in relation to the exercise
of any of the controller’s functions as controller.
(2) For a receiver of property of a cooperative, subclause (1) applies
only if the receiver was appointed under a power contained in an
instrument.
16 Supreme
Court may fix receiver’s remuneration
(1) The Supreme Court may, by order, fix the amount to be paid by way of
remuneration to anyone who, under a power contained in an instrument, has been
appointed as receiver of property of a cooperative.
(2) The power of the Supreme Court to make an order under this
clause—
(a) extends to fixing the remuneration for any 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 kept for the receiver’s
remuneration for any period any amount in excess of the amount fixed for the
period—extends to requiring the receiver or the receiver’s personal
representatives to account for the excess or part of it.
(3) The power given by subclause (2) (c) may be exercised in relation
to a period before the making of the application for the order only if, in the
Supreme Court’s opinion, there are special circumstances making it proper
to exercise the power.
(4) The Supreme Court may from time to time amend an order under this
clause.
(5) An order under this clause may be made or amended on the application
of—
(a) a liquidator of the cooperative; or
(b) an administrator of the cooperative; or
(c) an administrator of a deed of arrangement executed by the cooperative;
or
(d) the registrar.
(6) An order under this clause may also be amended on the application of
the receiver.
(7) An order under this clause may be made or amended only on application
as provided under subclauses (5) and (6).
17 Controller
has qualified privilege in certain cases
A controller of property of a cooperative has qualified privilege in
relation to—
(a) a matter contained in a report that the controller files with the
registrar under clause 12 or 13; or
(b) a comment that the controller makes under
clause 20 (4) (a).
18 Notification
of appointment of controller etc
(1) This clause applies if any of the following (the relevant
action) happens:
(a) a person obtains an order for the appointment of a receiver of
property of a cooperative;
(b) a person appoints a receiver of property of a cooperative under a
power in an instrument;
(c) a person appoints someone else to enter into possession, or take
control, of any property of a cooperative (whether or not as agent for the
cooperative) to enforce a charge otherwise than as receiver of the
property;
(d) a person enters into possession, or takes control, of any property of
a cooperative (whether or not as agent of the cooperative) under an appointment
made by someone else to enforce a charge otherwise than as receiver of the
property;
(e) a person ceases to be a controller of property of a
cooperative.
(2) If this clause applies, the person must prepare a notice of the
relevant action.
Note If a form is approved under s 468 (Approved forms) for a notice
under this clause the form must be used.
(3) However, subclause (2) does not apply if the person is a person
mentioned in subclause (1) (d) and the person that appointed the person complies
with this section.
(4) The notice is a notifiable instrument.
Note A notifiable instrument must be notified under the
Legislation Act 2001.
(5) The notice must be notified under the Legislation Act 2001
within 21 days after the day the relevant action happens.
(6) The person must also file a copy of the notice with the registrar
within 7 days after the day the relevant action happens.
(7) Also, within 14 days after the day a person becomes a controller of
property of a cooperative, the person must file with the registrar notice of the
address of the person’s office.
(8) If the address of the person’s office changes, the person must
file with the registrar notice of the new address within 14 days after the day
the change happens.
19 Statement
that receiver appointed or other controller acting
(1) If a receiver of property (whether in or outside the ACT or Australia)
of a cooperative has been appointed, the cooperative must set out, in every
public document, and in every eligible negotiable instrument, of the
cooperative, after the name of the cooperative where it first appears, a
statement that a receiver, or a receiver and manager, (as the case requires) has
been appointed.
(2) If there is a controller (other than a receiver) of property (whether
in or outside Australia) of a cooperative, the cooperative must set out, in
every public document, and in every eligible negotiable instrument, of the
cooperative, after the cooperative’s name where it first appears, a
statement that a controller is acting.
20 Officers
to report to controller about cooperative’s affairs
(1) In this clause:
reporting officer, of a cooperative means a person who was,
on the control day—
(a) for a cooperative other than a foreign cooperative—a director or
secretary of the cooperative; or
(b) for a foreign cooperative—a local agent of the foreign
cooperative.
(2) As soon as practicable after a person becomes the controller of
property of a cooperative, the person must give the cooperative notice that the
person has become the controller of the property.
(3) Within 14 days after the day the cooperative receives the notice (or,
if the period is extended under subclause (7) or (8), the extended period), the
reporting officers of the cooperative must give the controller a report about
the affairs of the cooperative as at the control day.
Note If a form is approved under s 468 (Approved forms) for a
report, the form must be used.
(4) Within 28 days after the day the controller receives the report, the
controller must—
(a) file with the registrar a copy of the report and a notice setting out
any comments the controller considers appropriate to make on the report or, if
the controller does not wish to comment on the report, a notice stating that the
controller does not wish to comment on the report; and
(b) send to the cooperative a copy of the notice filed in accordance with
paragraph (a); and
(c) if there are trustees for the holders of debentures of the
cooperative—send to the trustees a copy of the report and
notice.
(5) For subclause (4) (c), there are trustees for debenture holders
if—
(a) the controller became controller of the property—
(i) because of an appointment of receiver of the property that was made by
or on behalf of the holders of debentures of the cooperative; or
(ii) by entering into possession, or taking control, of the property for
the purpose of enforcing a charge secured by debentures of the cooperative;
and
(b) there are trustees for the holders of the debentures.
(6) If notice has been given to a cooperative under subclause (2),
the reporting officers, or any of them, may apply to the controller or to the
Supreme Court to extend the period within which the report must be given to the
controller.
(7) If application is made to the controller under subclause (6), the
controller may, by notice given to the reporting officers, extend the period
until a stated day if the controller believes there are special reasons for
extending the period.
(8) If application is made to the Supreme Court under subclause (6), the
court may, by order, extend the period until a stated day if the court believes
that there are special reasons for extending the period.
(9) As soon as practicable after granting an extension under
subclause (7), the controller must file a copy of the notice of extension
with the registrar.
(10) As soon as practicable after the Supreme Court gives an extension
under subclause (8), the reporting officers must file a copy of the order with
the registrar.
(11) This clause does not apply if a person becomes a controller of
property of a cooperative—
(a) to act with an existing controller of property of the cooperative;
or
(b) in place of a controller of the property who has died or ceased to be
a controller of the property.
(12) However, the clause does apply if a controller of property of a
cooperative dies, or ceases to be a controller of property of the cooperative,
before this clause has been fully complied with.
(13) If this clause applies because of subclause (12), a reference in this
clause to the controller includes a reference to the
controller’s successor and to any continuing controller.
(14) If a cooperative is being wound up, this clause (including, if
relevant, subclauses (12) and (13)) and clause 21 apply even if the controller
and the liquidator are the same person, but apply with any necessary
changes.
21 Controller
may require reports
(1) A controller of property of a cooperative may, by notice, require a
relevant person to give the controller, within the period stated in the notice,
a written statement (verified as required by the notice and signed by the person
giving the statement) about—
(a) the affairs generally of the cooperative at a stated date or during a
stated period; or
(b) stated affairs of the cooperative at a stated date or during a stated
period.
Note If a form is approved under s 468 (Approved forms) for a
statement, the form must be used.
(2) Without limiting subclause (1), a notice under the subclause may state
the information that the controller requires about the affairs of the
cooperative 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 relation to 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 not, without reasonable excuse, fail to comply with a
notice under subclause (1).
Maximum penalty: 10 penalty units.
(5) In this clause:
relevant person, in relation to a cooperative,
means—
(a) a person who is, or has at an time been, an officer of the
cooperative; or
(b) a person who is, or was at any time not earlier than 1 year before the
control day, an employee of the cooperative if the controller is of the opinion
that the person can give the information required; or
(c) if the cooperative was incorporated within 1 year before the control
day—a person who took part in the formation of the cooperative.
successor, of a controller, includes a continuing
controller.
(6) For the definition of relevant person in subclause
(5)—
(a) if the cooperative was an existing corporation that has become
registered as the cooperative—the reference in paragraph (a) of the
definition to the cooperative includes a reference
to the existing corporation; and
(b) if the cooperative was an existing corporation that has, not earlier
than 1 year before the control day, become registered as the
cooperative—the reference in paragraph (b) of the definition to
the cooperative includes a reference to the existing
corporation.
22 Controller
may inspect books
(1) A controller of property of a cooperative is entitled to inspect at
any reasonable time any books of the cooperative that relate to the
property.
(2) A person must not fail to allow the controller to inspect the books at
any reasonable time.
Maximum penalty: 10 penalty units.
23 Filing
controller’s financial statements
(1) A controller of property of a cooperative must file with the registrar
a financial statement—
(a) within 28 days after the end of—
(i) 6 months, or any shorter period the controller decides, after the day
the controller became a controller of property of the cooperative; and
(ii) each subsequent 6 months throughout which the controller is a
controller of property of the cooperative; and
(b) within 28 days after the day the controller ceases to be a controller
of property of the cooperative.
(2) A financial statement must show—
(a) the controller’s receipts and payments during—
(i) for a financial statement under subclause (1) (a)—the 6
months or shorter period, as the case requires; or
(ii) for a financial statement under subclause (1) (b)—the
period beginning at the end of the period to which the last financial statement
related, or on the control day, (as the case requires) and ending on the day the
controller ceased to be a controller; and
(b) except for a financial statement filed under
subclause (1) (a) (i)—the respective totals of the
controller’s receipts and payments since the control day.
Note If a form is approved under s 468 (Approved forms) for
an account, the form must be used.
(3) Subclause (4) applies to the controller if the controller
is—
(a) a receiver appointed under a power contained in an instrument;
or
(b) anyone else who is in possession, or has control, of any property of
the cooperative for the purpose of enforcing a charge.
(4) If the controller is a controller to whom this subclause applies, the
financial statements must also show—
(a) the amount (if any) owing under the instrument or
charge—
(i) for a financial statement filed under
subclause (1) (a) (i)—at the end of the control day and at
the end of the period to which the financial statement relates; or
(ii) in any other case—at the end of the period to which the
financial statement relates; and
(b) the controller’s estimate of the total value, at the end of the
period to which the account relates, of the property of the cooperative subject
to the instrument or charge.
(5) The registrar may, on the registrar’s own initiative or on the
application of the cooperative or a creditor of the cooperative, arrange for the
financial statements filed under subclause (1) to be audited by a registered
company auditor appointed by the registrar.
(6) For the audit, the controller must provide the auditor with any books
and information that the auditor requires.
(7) If the registrar arranges for the financial statements to be audited
on the application of the cooperative or a creditor, the registrar may require
the cooperative or creditor to give security for the payment of the cost of the
audit.
(8) The costs of an audit mentioned in subclause (5) are to be decided by
the registrar.
(9) The registrar may direct that the costs of the audit are taken, for
clause 5, to be a debt incurred in the course of the receivership by the
controller.
(10) A person must not fail, without reasonable excuse, to comply with a
requirement made under this clause.
Maximum penalty (subsection (10)): 10 penalty units.
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 any debentures of
a cooperative 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
cooperative, of any property comprised in or 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 cooperative has not begun to be wound up voluntarily;
and
(ii) the cooperative 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 cooperative must pay, out of the property coming the hands of
the receiver or other person, the following debts or amounts in priority to any
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 and claims under the Corporations Act, section 556 (Priority
payments) as applied by this Act;
(b) next, if an auditor of the cooperative had applied to the registrar
for consent to the auditor’s resignation and the registrar had refused the
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, any debt or amount that in a
winding-up is payable in priority to other unsecured debts and claims under the
Corporations Act, section 556 (1) (e), (g) or (h) or section 560 (Advances for
company to make priority payments in relation to employees) as applied by 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 provided by the Corporations Act, part 5.6 (Winding up
generally), division 6 (Proof and ranking of claims) as applied by this
Act.
(4) If—
(a) an auditor of the cooperative applied to the registrar for consent to
resign; and
(b) the registrar had refused the consent before the relevant day;
the receiver must, when property comes to the receiver’s hands make
provision out of the property for the reasonable fees and expenses of the
auditor incurred after the relevant date but before the day the property comes
into the receiver’s hands, if provision has not already been made for the
fees and expenses under this subclause.
(5) If—
(a) an auditor of the cooperative applies to the registrar for consent to
resign; and
(b) the registrar refuses the consent after the relevant date;
the receiver must, in relation to property that comes into the
receiver’s hands after the refusal, make provision out of the property for
the reasonable fees and expenses of the auditor incurred after the refusal but
before the day the property comes into the receiver’s hands, if provision
has not already been made for the fees and expenses under this
subclause.
(6) The receiver must comply with subclause (4) or (5) before paying any
debt or amount mentioned in subclause (2) (c).
(7) The receiver must make provision in relation to reasonable fees and
expenses of an auditor in relation to a 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.
(8) For this clause, the Corporations Act, part 5.6, division 6 applies
subject to the change mentioned in subclause (9).
(9) A reference in the division to the relevant date is a
reference 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 etc
(1) This subclause applies if a receiver of property of a
cooperative—
(a) fails to make or file a return, financial statement or other document
or to give a notice required by law; and
(b) fails to comply with the requirement within 14 days after the day of
service on the receiver of a notice, by any member or creditor of the
cooperative or a trustee for debenture holders, requiring the receiver to comply
with the requirement.
(2) If subclause (1) applies, the Supreme Court may, on application by a
member or creditor of the cooperative or a trustee for debenture holders, make
an order directing the receiver to comply with the requirement within a stated
time.
(3) This subclause applies if—
(a) a receiver of property of a cooperative has become a controller of
property of the cooperative otherwise than by being appointed a receiver of the
property by a court; and
(b) after being required at any time by the liquidator of the cooperative
to do so, fails to render proper financial statements of, and to vouch, the
controller’s receipts and payments and to pay over to the liquidator the
amount properly payable to the liquidator.
(4) If subclause (3) applies, the Supreme Court may, on application by the
liquidator, make an order directing the controller to comply with the
requirement within a stated time.
26 Supreme
Court may remove controller for misconduct
If, on the application of a cooperative, the Supreme Court is satisfied
that a controller of property of the cooperative has been guilty of misconduct
in relation to the exercise of any of the controller’s functions, the
court may order that, on and after a stated day, the controller cease to act as
receiver or give up possession or control of property of the
cooperative.
27 Supreme
Court may remove redundant controller
(1) The Supreme Court may order that, on and after a stated day, a
controller of property of a cooperative—
(a) cease to act as receiver, or give up possession or control of
property, of the cooperative; or
(b) act as receiver, or continue in possession or control only of stated
property, of the cooperative.
(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 cooperative have been
achieved, so far as is reasonably practicable, except in relation to any
property stated in the order under subclause (1) (b).
(3) For subclause (2), the Supreme Court may have regard
to—
(a) the cooperative’s interests; and
(b) the interests of the holder of the charge that the controller is
enforcing; and
(c) the interests of the cooperative’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 winding up the cooperative in
insolvency.
(5) An order under subclause (1) may also prohibit the holder of the
charge from doing, except with the Supreme Court’s leave, any or all of
the following:
(a) appointing a person as receiver of property of the cooperative 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 so to enter into possession or take control
(whether as agent for the chargee or for the cooperative).
28 Effect
of cl 26 and cl 27
(1) Except as expressly provided in clause 26 or 27, an order under the
clause does not affect a charge on property of a cooperative.
(2) Clauses 26 and 27 do not limit any other power of the Supreme Court to
remove, or otherwise deal with, a controller of property of a cooperative (for
example, the Supreme Court’s powers under clause 14).
(see s 472)
In this schedule:
former Act means the Co-operative Societies Act
1939.
transferred cooperative means a corporation taken under
clause 3, 4 or 5 to be a cooperative, association, federation or foreign
cooperative registered under this Act.
All people, things and circumstances appointed or created by the former
Act, or existing or continuing under the former Act, immediately before the
commencement of this clause continue, under and subject to this Act, to have the
same status, operation and effect as they respectively would have had if this
Act had not been enacted.
3 Saving
of existing cooperatives
(1) On the commencement of this clause, any existing corporation that was
a society within the meaning of the former Act immediately before that
commencement—
(a) ceases to be registered under the former Act; and
(b) is taken to be a cooperative registered under this Act.
(2) Each transferred cooperative under this clause is taken to be the same
legal entity as it was before the commencement of this clause with the same
name, rules, directors and membership as it had immediately before that
commencement.
4 Society
or cooperative started to be formed before commencement of
clause
(1) If, before the commencement of this clause, a meeting to form a
corporation as a society had been held under the former Act, section 16 but
the corporation had not been registered as a society under the former
Act—
(a) the former Act, sections 6, 15, 16, 17, 20 (2), 21 (1) and
(3) and 32 continue to apply to the formation of the corporation as a society;
and
(b) on the registration of the corporation as a society under the former
Act, section 16 the society is taken to be a cooperative registered under this
Act.
(2) Each transferred cooperative under this clause is taken to be the same
legal entity as it was before its registration under this Act with the same
name, rules, directors and membership as it had immediately before that
registration.
(3) A certificate issued by the registrar of co-operative societies under
the former Act, section 16 (7) as continuing in force for this clause is
taken to be a certificate issued under this Act, section 24.
(1) The former Act, sections 18, 19 and 21 (2) continue to apply to
an application made by 2 or more societies and to a direction to merge made
before the commencement of this clause.
(2) On the registration of the merged society under former Act, the
society is taken to be a cooperative registered under this Act.
(3) Each transferred cooperative under this clause is taken to be the same
legal entity as it was before its registration under this Act with the same
name, rules, directors and membership as it had immediately before that
registration.
(4) A certificate issued by the registrar of co-operative societies under
the former Act, section 18 (3) as continuing in force for this clause is
taken to be a certificate issued under this Act, section 303.
6 Rules
to comply with Act
(1) A transferred cooperative must bring its rules into agreement with
this Act—
(a) within 2 years after the commencement of this clause; or
(b) within any further period approved in writing by the registrar in
relation to the cooperative.
(2) The rules of the transferred cooperative are taken to be valid
until—
(a) the cooperative complies with subclause (1); or
(b) the end of the relevant period under subclause (1).
(3) If there is any inconsistency between a provision of this Act and the
rules of the cooperative about the procedure for alteration of the rules of the
cooperative, the provision of this Act prevails.
(4) This clause does not affect the operation of division 3.2
(Non-application of doctrine of ultra vires) in relation to the rules of a
transferred cooperative.
7 Alteration
of certain rules
(1) This clause applies if in the opinion of the registrar the rules of a
transferred cooperative should be altered to comply with any requirement of this
Act.
(2) The registrar may, by notice served on the transferred cooperative,
require it, within the period stated in the notice, to alter its
rules—
(a) in a way stated in the notice; or
(b) in a way approved in writing by the registrar.
(3) If within the period stated in the notice the cooperative fails to
alter its rules as required by the notice, the registrar may, by notation on the
registered copy of the rules, alter the rules.
(4) The registrar must give notice to a cooperative of any alteration of
its rules made by the registrar under this clause.
(5) Any alteration made by the registrar to the rules under this clause
takes effect as an alteration made and registered under part 5.
8 Rules
to contain active membership provisions
The board of directors of a transferred cooperative must comply with
division 6.2—
(a) within 2 years after the commencement of this clause; or
(b) within any further period approved in writing by the registrar in
relation to the cooperative.
9 Special
resolutions and majority resolutions
A special resolution passed by a transferred cooperative under the former
Act, and not registered under that Act before the commencement of this clause,
may be registered by the registrar under this Act.
A certificate or other document, relating to a transferred cooperative,
issued or registered by, filed or lodged with or given to the registrar of
co-operative societies under the former Act has effect as if it were a
certificate or other document issued or registered by or filed with or given to
the registrar under this Act.
11 Existing
accounts provisions to apply to transferred cooperatives
(1) This clause applies to a cooperative (a continuing
cooperative) that, under clause 3, is taken to be a transferred
cooperative.
(2) The former Act, sections 42 to 44, 56 and 57 apply to the continuing
cooperative until the end of the financial year (the current
financial year) that is the current financial year for the
cooperative when this clause commences.
(2) Division 9.7 (Financial statements, reports and audit) does not apply
to the continuing cooperative in relation to the current financial
year.
(3) Division 9.6 (Declaration of interests) and division 9.8 (Registers,
records and returns) do not apply to the continuing cooperative in relation to
the current financial year.
(1) If, before the commencement of this clause, a transferred cooperative
had begun to be wound up under part 6 of the former Act, that part continues to
apply to that winding-up.
(2) A cooperative mentioned in subclause (1) whose registration has been
cancelled is taken to be a deregistered cooperative.
13 Special
meeting and inquiry
If, before the commencement of this clause, a special meeting had been
called or an inquiry into the affairs had begun in relation to a transferred
cooperative under the former Act, section 7, that section continues to apply in
relation to the special meeting or inquiry.
(1) Anything of a continuing nature done or begun before the commencement
of this clause by or on behalf of or in relation to the registrar of
co-operative societies under the former Act is not affected and is, under and
subject to this Act, to continue to have the same status, operation and effect
as it would have had if the former Act had not been repealed.
(2) If any provision of the former Act is continued in operation by this
schedule, any reference in the provision to the registrar is taken for the
continued operation to be a reference to the registrar under this Act.
Schedule
6 Amendments of other Acts and
regulations
(see s 478)
[6.1] Agents
Act 1968, section 5 (1), definition of cooperative
society
substitute
cooperative society means a body registered under the
Cooperatives Act 2002.
[6.2] Consumer
Credit (Administration) Act 1996, section 3, definition of financial
institution, paragraphs (c) and (d)
substitute
(c) a body registered under the Cooperatives Act 2002; or
(d) a body registered or incorporated under a law of a State or another
Territory corresponding to the Cooperatives Act 2002.
[6.3] Credit
Regulations 1985, regulation 13A (1) (f)
omit
[6.4] Credit
Regulations 1985, regulation 13A (1)
renumber paragraphs when regulations next republished under Legislation
Act 2001
[6.5] Credit
Regulations 1985, regulation 25 (f)
omit
contract;
substitute
contract.
[6.6] Credit
Regulations 1985, regulation 25 (g)
omit
[6.7] Government
Contractual Debts (Interest) Act 1994, section 3, definition of Territory
authority, paragraph (a) (i)
substitute
(i) a body registered under the Cooperatives Act 2002; or
[6.8] Unclaimed
Moneys Act 1950, section 2, definition of company, paragraph
(b)
substitute
(b) a body registered under the Cooperatives Act 2002; or
(see s 4)
Note 1 The Legislation Act 2001 contains definitions and
other provisions relevant to this Act.
Note 2 In particular, the Legislation Act 2001, dict, pt 1,
defines the following terms:
• appoint
• ACT
• body
• contravene
• Corporations Act
• exercise
• function
active member, of a cooperative—see section
115.
active membership provisions—see section 116
(1).
active membership resolution—see section 116
(2).
administrator, for schedule 4 (Receivers, and other
controllers, of property of cooperatives)—see schedule 4, clause 1
(Definitions for sch 4).
affairs, for division 15.2 (Inquiries)—see section 404
(Definitions for div 15.2).
agreement means an agreement, arrangement or
understanding—
(a) whether formal or informal or partly formal and partly informal;
and
(b) whether written or oral or partly written and partly oral;
and
(c) whether or not having legal or equitable force and whether or not
based on legal or equitable rights.
alter, in relation to the rules of a cooperative, includes
add to, substitute and rescind.
alteration, for part 18 (Review of registrar’s
decisions)—see section 458 (Definitions for pt 18).
appropriate registrar, for division 14.3 (Mergers and
transfers of engagements)—see section 380 (Definitions for div
14.3).
associate—see schedule 1 (Associates and relevant
interests), part 1.1 (Associates).
association means an association registered under this
Act.
board means the board of directors of a cooperative, and
includes a committee of management of a cooperative.
chargee, for schedule 3 (Charges), division 3.2.5 (Certain
charges void)—see schedule 3, clause 32 (Definitions for
div 3.2.5)
charges register, for schedule 3 (Charges)—see
schedule 3, clause 1 (Definitions for sch 3).
company—see the Corporations Act, section 9.
component cooperative means a member of an
association.
compulsory acquisition notice, for division 13.3 (Acquisition
of shares of dissenting shareholders)—see section 356 (1).
control—
(a) for division 9.7 (Financial statements, reports and audit)—see
section 239; and
(b) for schedule 1 (Associates and relevant interests), part 1.2 (Relevant
interests)—see schedule 1, clause 6 (Interpretation of pt 1.2).
control day, for schedule 4 (Receivers, and other
controllers, of property of cooperatives)—see schedule 4, clause 1
(Definitions for sch 4).
controller, for schedule 4 (Receivers, and other controllers,
of property of cooperatives)—see schedule 4, clause 1 (Definitions for sch
4).
controlling interest, for schedule 1 (Associates and relevant
interests), part 1.2 (Relevant interests)—see schedule 1, clause 6
(Interpretation of pt 1.2).
convicted, of an offence, includes found guilty of the
offence.
conviction includes a finding of guilty.
cooperative—
(a) means a body registered under this Act as a cooperative, and includes
an association or federation; and
(b) for schedule 3 (Charges)—see schedule 3, clause 1 (Definitions
for sch 3); and
(c) for schedule 4 (Receivers, and other controllers, of property of
cooperatives)—see schedule 4, clause 1 (Definitions for sch 4).
cooperative principles means the principles set out in
section 8.
cooperatives law, for part 14 (Foreign
cooperatives)—see section 366 (Definitions for pt 14).
cooperatives register means the register of cooperatives kept
by the registrar under section 433.
cooperative venture, for division 15.1 (Supervision and
inspection)—see section 389 (Definitions for div 15.1).
Corporations legislation—see the Corporations Act,
section 9.
costs, for division 15.2 (Inquiries)—see section 404
(Definitions for div 15.2).
critical day, for schedule 3 (Charges), division 3.2.4
(Certain charges void against liquidator or administrator)—see schedule 3,
clause 26 (Definitions for div 3.2.4).
daily newspaper, for schedule 4 (Receivers, and other
controllers, of property of cooperatives)—see schedule 4, clause 1
(Definitions for sch 4).
debenture means a document issued by a cooperative that
evidences or acknowledges indebtedness of the cooperative in relation to money
that is or may be deposited with or lent to the cooperative, whether
constituting a charge on property of the cooperative or not, and includes a unit
of a debenture, but does not include—
(a) a cheque, order for the payment of money or bill of exchange;
or
(b) a promissory note having a face value of not less than $50 000;
or
(c) any other document prescribed under the regulations as exempt from
this definition.
deed of arrangement means a deed of arrangement executed
under the Corporations Act, part 5.3A (Administration of a company’s
affairs with a view to executing a deed of company arrangement) as applied by
this Act or such a deed as varied and in force from time to time.
deposit-taking cooperative means a cooperative that is
permitted under section 260 (2) to accept money on deposit.
deregistration means deregistration under this Act.
director, of a cooperative, includes—
(a) a person who occupies or acts in the position of a director or member
of the board of a cooperative, whether or not the person is called a director
and whether or not the person is validly appointed or properly authorised to act
in the position; and
(b) a person in accordance with whose directions or instructions the
directors or members of the board of directors of the cooperative are accustomed
to act.
dissenting shareholder, for division 13.3 (Acquisition of
shares of dissenting shareholders)—see section 354 (Definitions for div
13.3).
document of title, for schedule 3 (Charges)—see
schedule 3, clause 1 (Definitions for sch 3).
doing, of an act and for division 3.2 (Non-application of
doctrine of ultra vires)—see section 38.
entity, for division 9.7 (Financial statements, reports and
audit)—see section 239.
excluded shares, for division 13.3 (Acquisition of shares of
dissenting shareholders)—see section 354 (Definitions for div
13.3).
failure, of the registrar to do an act, means failure to do
the act within a reasonable time.
federation means a federation registered under this
Act.
financial records—see the Corporations Act, section
9.
financial report—see the Corporations Act, section
9.
financial statement—see the Corporations Act, section
9.
foreign cooperative means a corporation registered,
incorporated or formed under, or subject to, a law in force outside the ACT
(including outside Australia) that regulates cooperatives or entities having
attributes the same as or similar to cooperatives, but does not
include—
(a) an entity registered under the Corporations Act; or
(b) an authorised deposit-taking institution or a foreign ADI within the
meaning of the Banking Act 1959 (Cwlth).
inspector means a person appointed as an inspector under
section 391.
interest, for division 4.3 (Death of member)—see
section 78 (Meaning of interest in div 4.3).
investigator means a person appointed as an investigator
under section 405.
involved person, for division 15.2 (Inquiries)—see
section 404 (Definitions for div 15.2).
legal capacity, for division 3.2 (Non-application of doctrine
of ultra vires)—see section 38.
listed corporation—see the Corporations Act, section
9.
managing controller, for schedule 4 (Receivers, and other
controllers, of property of cooperatives)—see schedule 4, clause 1
(Definitions for sch 4).
marketable securities—see Corporations Act, section
9.
member, for division 4.5 (Oppressive conduct of
affairs)—see section 85.
model rules means the model rules approved by the registrar
under section 106.
mortgage includes a lien, charge or other security over
property.
national newspaper, for schedule 4 (Receivers, and other
controllers, of property of cooperatives)—see schedule 4, clause 1
(Definitions for sch 4).
new body—
(a) for division 12.2 (Transfer of registration or
incorporation)—see section 306 ; and
(b) for division 12.6 (Effect of merger, transfer of engagements and
transfer of incorporation)—see section 333 (2) (How div 12.6 applies
to merger), section 334 (2) (How div 12.6 applies to transfer of engagements)
and section 335 (2) (How div 12.6 applies to transfer of
incorporation).
nonparticipating cooperative, for part 14 (Foreign
cooperatives)—see section 366 (Definitions for pt 14).
non-trading cooperative means a cooperative that complies
with section 18.
notice—
(a) means written notice; and
(b) for schedule 3 (Charges), part 3.3 (Order of priority)—see
schedule 3, clause 46 (Constructive notice of charge).
obtaining financial accommodation, for division 10.1 (Power
to raise money)—see section 258.
officer—
(a) of a cooperative, means—
(i) a director, secretary or employee of the cooperative; or
(ii) a person who is concerned, or takes part, in the management of the
cooperative, whether or not as a director; or
(iii) a receiver and manager of property of the cooperative who is
appointed under a power in an instrument; or
(iv) an administrator of a deed of arrangement executed by the
cooperative; or
(v) a liquidator or provisional liquidator appointed in a voluntary
winding-up of the cooperative; or
(vi) an administrator of the cooperative appointed under—
(A) the Corporations Act, part 5.3A (Administration of a company’s
affairs with a view to executing a deed of company arrangement) as applied by
this Act; or
(B) division 12.5 (Appointment of administrator) of this Act; or
(vii) a trustee or other person administering a compromise or arrangement
made between the cooperative and someone else; and
(b) of a foreign cooperative for schedule 3 (Charges), division 3.2.5
(Certain charges void)—see schedule 3, clause 32 (Definitions for div
3.2.5); and
(c) of a foreign cooperative for schedule 4 (Receivers, and other
controllers, of property of cooperatives)—see schedule 4, clause 1
(Definitions for sch 4).
order, of the registrar, means a written order of the
registrar.
original body, for division 12.6 (Effect of merger, transfer
of engagements and transfer of incorporation)—see section 333 (2) (How div
12.6 applies to merger), section 334 (2) (How div 12.6 applies to transfer of
engagements) and section 335 (2) (How div 12.6 applies to transfer of
incorporation).
participating cooperative, for part 14 (Foreign
cooperatives)—see section 366 (Definitions for pt 14).
participating State, for part 14 (Foreign
cooperatives)—see section 366 (Definitions for pt 14).
power, for schedule 1 (Associates and relevant interests),
part 1.2 (Relevant interests)—see schedule 1, clause 6 (Interpretation of
pt 1.2).
premises, for division 15.1 (Supervision and
inspection)—see section 389 (Definitions for div 15.1).
pre-registration contract—see section 56
(Contracts before registration).
present liability, for schedule 3 (Charges)—see
schedule 3, clause 1 (Definitions for sch 3).
primary activity—see section 114.
principal executive officer, of a cooperative or a subsidiary
of a cooperative, means the principal executive officer of the cooperative or
subsidiary, by whatever name called, and whether or not the officer is a
director or the secretary.
priority time, for schedule 3 (Charges), part 3.3 (Order of
priority)—see schedule 3, clause 45 (Definitions for pt 3.3).
prior registered charge, for schedule 3
(Charges)—see schedule 3, clause 45 (Definitions for pt 3.3).
property—
(a) of a cooperative for schedule 3 (Charges)—see schedule 3, clause
1 (Definitions for sch 3); and
(b) of a cooperative for schedule 4 (Receivers, and other controllers, of
property of cooperatives)—see schedule 4, clause 1 (Definitions for sch
4).
prospective liability, for schedule 3 (Charges)—see
schedule 3, clause 1 (Definitions for sch 3).
receiver—
(a) for schedule 3 (Charges), division 3.2.5 (Certain charges
void)—see schedule 3, clause 32 (Definitions for div 3.2.5);
and
(b) for schedule 4 (Receivers, and other controllers, of property of
cooperatives)—see schedule 4, clause 1 (Definitions for sch 4).
records includes books, financial records, financial
statements, minutes, registers, deeds, writings, documents and other sources of
information compiled, recorded or stored in written form or on microfilm, or by
electronic process, or in any other way or by any other means.
registered charge, for schedule 3 (Charges), part 3.3 (Order
of priority)—see schedule 3, clause 45 (Definitions for pt 3.3).
registered office, of a cooperative, means the office of the
cooperative at the address notified to the registrar from time to time under
section 257.
registrable charge, for schedule 3 (Charges)—see
schedule 3, clause 1 (Definitions for sch 3).
registrar means the Registrar of Cooperatives appointed under
section 429.
related—a corporation is related to
another corporation if—
(a) one of the corporations is a subsidiary of the other corporation;
or
(b) both corporations are subsidiaries of a third corporation.
relevant day—
(a) for division 12.6 (Effect of merger, transfer of engagements and
transfer of incorporation)—see section 333 (2) (How div 12.6 applies
to merger), section 334 (2) (How div 12.6 applies to transfer of engagements)
and section 335 (2) (How div 12.6 applies to transfer of incorporation);
and
(b) for schedule 3 (Charges), division 3.2.4 (Certain charges void against
liquidator or administrator)—see schedule 3, clause 26 (Definitions
for div 3.2.4).
relevant documents, for division 15.1 (Supervision and
inspection)—see section 389 (Definitions for div 15.1).
relevant interest—see schedule 1 (Associates and
relevant interests), part 1.2 (Relevant interests).
relevant person, for schedule 3 (Charges), division 3.2.5
(Certain charges void)—see schedule 3, clause 32 (Definitions for div
3.2.5).
reviewable decision, for part 18 (Review of registrar’s
decisions)—see section 458 (Definitions for pt 18).
rules, of a cooperative, means the registered rules of the
cooperative as in force from time to time.
seal, of a cooperative, means the common seal or an official
seal of the cooperative.
secretary, of a cooperative, means the secretary of the
cooperative appointed under section 220.
share means a share in the share capital of a
cooperative.
spouse includes de facto spouse.
stamp duty includes a duty charged, or that would apart from
this Act be charged, under the Duties Act 1999.
State, for part 14 (Foreign cooperatives)—see section
366 (Definitions for pt 14).
subordinated debt—see section 263 (2).
subsequent registered charge, for schedule 3 (Charges), part
3.3 (Order of priority)—see schedule 3, clause 45 (Definitions for
pt 3.3).
subsidiary—see the Corporations Act, section
9.
surplus, in relation to a cooperative, means the excess of
income over expenditure after making proper allowance for taxation expense,
depreciation in value of the property of the cooperative and future
contingencies.
Territory cooperative, for division 14.3 (Mergers and
transfers of engagements)—see section 380 (Definitions for div
14.3).
Territory registrar, for division 14.3 (Mergers and transfers
of engagements)—see section 380 (Definitions for div 14.3).
trading cooperative means a cooperative that complies with
section 17.
transfer, for division 12.2 (Transfer of registration or
incorporation)—see section 306.
unregistered charge, for schedule 3 (Charges), part 3.3
(Order of priority)—see schedule 3, clause 45 (Definitions for pt
3.3).
Endnote
Penalty units
The Legislation Act 2001, s 133 deals with the meaning of
offence penalties that are expressed in penalty units.
© Australian Capital Territory
2002
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