Financial Sector (Transfer and Restructure) Act 1999

PART 3 - VOLUNTARY TRANSFERS  

Division 3 - Process by which voluntary transfers take effect  

SECTION 22   TIME AND EFFECT OF VOLUNTARY TRANSFER  

22(1)    
When the certificate of transfer comes into force, the receiving body becomes the successor in law of the transferring body, to the extent of the transfer. In particular:

(a) if the transfer is a total transfer - all the assets and liabilities of the transferring body, wherever those assets and liabilities are located, become (respectively) assets and liabilities of the receiving body without any transfer, conveyance or assignment; and

(b) if the transfer is a partial transfer - all the assets and liabilities of the transferring body that are included in the list of assets and liabilities specified in the statement of detail, wherever those assets and liabilities are located, become (respectively) assets and liabilities of the receiving body without any transfer conveyance or assignment; and

(c) to the extent of the transfer, the duties, obligations, immunities, rights and privileges applying to the transferring body apply to the receiving body.

22(2)    
If there is an approved section 20 statement in relation to the transfer, then:

(a) if the statement specifies that particular things are to happen or are taken to be the case - those things are, by force of this section, taken to happen, or to be the case, in accordance with the statement; and

(b) if the statement specifies a mechanism for determining things that are to happen or are taken to be the case - things determined in accordance with that mechanism are, by force of this section, taken to happen, or to be the case, as determined in accordance with that mechanism.

22(3)    
Subject to subsection (2), if:

(a) the transfer is a total transfer; and

(b) immediately before the certificate comes into force, proceedings (including arbitration proceedings) to which the transferring body was a party were pending or existing in any court or tribunal;

the receiving body is, on and after the day when the certificate comes into force, substituted for the transferring body as a party to the proceedings and has the same rights in the proceedings as the transferring body had.

Note:

An alternative way of dealing with substitution of parties (which is available for total or partial transfers) is to deal with the matter in an approved section 20 statement (see subsection (2)).

22(4)    
Subject to subsection (2), if:

(a) the transfer is a total transfer; and

(b) on the day when the certificate comes into force, documentary or other evidence would (disregarding the transfer) have been admissible for or against the interests of the transferring body;

that evidence is admissible, on or at any time after that day, for or against the interests of the receiving body.

Note:

An alternative way of dealing with admissibility of evidence (which is available for total or partial transfers) is to deal with the matter in an approved section 20 statement (see subsection (2)).

22(5)    
Subject to subsection (2), if the transfer is a total transfer, on and after the day when the certificate comes into force, each translated instrument continues to have effect, according to its tenor, as if a reference in the instrument to the transferring body were a reference to the receiving body. For this purpose:

translated instrument
means an instrument (including an Act or other legislative instrument) subsisting immediately before the day when the certificate comes into force:

(a) to which the transferring body is a party; or

(b) that was given to, by or in favour of, the transferring body; or

(c) that refers to the transferring body; or

(d) under which money is, or may become, payable, or other property is, or may become, liable to be transferred, to or by the transferring body.

Note:

An alternative way of dealing with references in instruments (which is available for total or partial transfers) is to deal with the matter in an approved section 20 statement (see subsection (2)).

22(6)    
Subject to subsection (2), on and after the day when the certificate comes into force, a place that, immediately before that day, was a place of business for the transferring body in relation to business that was transferred to the receiving body is taken to be a place of business for the receiving body.

Note:

An alternative way of dealing with places of business is to deal with the matter in an approved section 20 statement (see subsection (2)).