Corporations Act 2001

SCHEDULE 4 - TRANSFER OF FINANCIAL INSTITUTIONS AND FRIENDLY SOCIETIES  

Note: See section 1465A .

PART 2 - FINANCIAL INSTITUTIONS THAT BECAME COMPANIES  

Division 1 - Registration and its consequences  

CLAUSE 3   - BACKGROUND (REGISTRATION OF TRANSFERRING FINANCIAL INSTITUTION AS COMPANY)  

3(1)    
On the transfer date, each transferring financial institution of a State or Territory was taken to be registered as a company under the Corporations Law of the State or Territory under the name under which the institution was registered under the previous governing Code immediately before the transfer date.

3(2)    
Subclause 3(2) of the transfer provisions governed the kind of company the transferring financial institution was registered as.

3(3)    
Under clause 7 of the transfer provisions, ASIC:


(a) gave the company an ACN; and


(b) kept a record of the company ' s registration; and


(c) issued a certificate to the company that stated:


(i) the company ' s name; and

(ii) the company ' s ACN; and

(iii) the company ' s type; and

(iv) that the company is registered as a company under the Corporations Law of the State or Territory.

CLAUSE 4   - RULES APPLIED TO TRANSFERRING INSTITUTION THAT WAS REGISTERED AS A COMPANY UNDER THE TRANSFER PROVISIONS  
Application of section 1274 to registration documents

4(1)    
Subsections 1274(2) and (5) apply to the record of the company ' s registration referred to in paragraph 3(3)(b) of this Schedule as if it were a document lodged with ASIC.

ASIC may keep documents relating to company lodged while it was a registered body

4(2)    
ASIC may keep any of the documents relating to the company that were lodged because the company used to be a registered body.


4(3)   Application of replaceable rules.  

The replaceable rules (as described in section 135) do not apply to the company, despite section 135, unless the company:


(a) repealed its constitution after the transfer date and before the commencement of this Act; or


(b) repeals its constitution on or after the commencement of this Act.

CLAUSE 11   - TRANSFERRING FINANCIAL INSTITUTION UNDER EXTERNAL ADMINISTRATION  

11(1)   Background.  

Clause 11 of the transfer provisions provided that if, immediately before the transfer date, provisions of Chapter 5 of the Corporations Law of a State or Territory applied to:


(a) a compromise or arrangement between a transferring financial institution of the State or Territory and its creditors; or


(b) a reconstruction of a transferring financial institution of the State or Territory; or


(c) a receiver or other controller of property of a transferring financial institution of the State or Territory; or


(d) the winding-up or dissolution of a transferring financial institution of the State or Territory;

because of Part 9 of the Financial Institutions Code, or Part 9 of the Friendly Societies Code, of the State or Territory, those provisions of Chapter 5 continued to apply to that matter after the transfer date.

Note: Clause 11 of the transfer provisions also provided that:

  • (a) a matter referred to in paragraph (1)(a), (b) or (d) included an application or other step preliminary to the matter; and
  • (b) any act done before the transfer date under or for the purposes of the provisions of Chapter 5 as applied by the Code were to have effect as if it had been done under or for the purposes of Chapter 5 as it applied after the transfer date.
  • 11(2)    
    Clause 11 of the transfer provisions also provided that if, before the transfer date, a liquidator of a transferring financial institution of a State or Territory had been appointed under:


    (a) section 341 of the Financial Institutions Code of the State or Territory; or


    (b) section 402 of the Friendly Societies Code of the State or Territory;

    the institution could be wound up in accordance with the provisions of Chapter 5 of the Corporations Law of the State or Territory.


    11(3)   Continuing external administration under Chapter 5 of the Corporations Act 2001.  

    If, immediately before the commencement of this Act, provisions of Chapter 5 of the Corporations Law of a State or Territory applied to:


    (a) a compromise or arrangement between a transferring financial institution of the State or Territory and its creditors; or


    (b) a reconstruction of a transferring financial institution of the State or Territory; or


    (c) a receiver or other controller of property of a transferring financial institution of the State or Territory; or


    (d) the winding-up or dissolution of a transferring financial institution of the State or Territory;

    because of clause 11 of the transfer provisions, the corresponding provisions of Chapter 5 of this Act apply (as a law of the Commonwealth) to that matter after the commencement of this Act.

    11(4)    
    Subclause (3) does not limit the regulations that may be made under clause 28.

    11(5)    
    Any act done:


    (a) before the transfer date under or for the purposes of the provisions of Chapter 5 of the Corporations Law of the State or Territory as applied by the Code; or


    (b) on or after the transfer date and before the commencement of this Act for the purposes of the provisions of Chapter 5 of the Corporations Law of the State or Territory as applied by clause 11 of the transfer provisions;

    has effect as if it had been done under or for the purposes of Chapter 5 of this Act as it applies after the commencement of this Act.


    Division 2 - Membership  

    CLAUSE 12   - INSTITUTION THAT BECAME A COMPANY LIMITED BY SHARES  

    12(1)   Background.  

    Clause 12 of the transfer provisions applied to a transferring financial institution of a State or Territory if the institution was taken to be registered as a company limited by shares under clause 3 of the transfer provisions.

    12(2)    
    Clause 12 of the transfer provisions provided that:


    (a) any shares in the institution on issue immediately before the transfer date (other than withdrawable shares) became shares of the company; and


    (b) any withdrawable shares of the institution on issue immediately before the transfer date became redeemable preference shares of the company; and


    (c) in the case of a building society - each person who was a member of the society immediately before the transfer date, other than by virtue of only holding shares in the society, was taken to have been issued with a membership share on the transfer date; and


    (d) in any case other than that of a building society - any person:


    (i) who was a member of the institution immediately before the transfer date; and

    (ii) who did not hold any shares in the institution;
    was taken to have been issued with a membership share on the transfer date.

    12(3)   Joint members of institution that became a company limited by shares.  

    If a person who was taken to have been issued with a membership share was a joint member, they hold the membership share jointly with the other member or members of the joint membership. This is so, even if the other member, or another member, held shares in the institution immediately before the transfer date. However, the joint membership does not have any more votes because of the membership share or shares than it had immediately before the transfer date.

    12(4)   Cancellation shares.  

    A membership share can be cancelled at the option of the holder or the company in the circumstances (if any):


    (a) set out in the company ' s constitution; or


    (b) in which the member who holds the share could have had their membership of the institution cancelled immediately before the transfer date.

    Part 2J.1 does not apply to the cancellation of a membership share.

    CLAUSE 13   - INSTITUTION THAT BECAME A COMPANY LIMITED BY GUARANTEE  

    13(1)   Background.  

    Clause 13 of the transfer provisions applied to a transferring financial institution of a State or Territory if the institution was taken to be registered as a company limited by guarantee under clause 3 of the transfer provisions.

    13(2)    
    Clause 13 of the transfer provisions provided that each person who was a member of the institution immediately before the transfer date was taken to have given a guarantee (but only for the purpose of determining whether the person is a member of the company).

    13(3)   Guarantees.  

    Each person who becomes a member of the company after the commencement of this Act and before the amount of the relevant guarantee is determined is taken to have given a guarantee (but only for the purpose of determining whether the person is a member of the company).

    Note: Someone who became a member after the transfer date and this Act commences was taken to have given a guarantee by clause 13 of the transfer provisions. This guarantee is preserved by sections 1373 and 1399.

    13(4)    
    If a person who is taken to have given a guarantee by subclause (2) is a joint member, they are taken to have given the guarantee jointly with the other member or members of the joint membership. However, the joint membership does not have any more votes because of giving the guarantee or guarantees than it had immediately before the transfer date.

    CLAUSE 14   - INSTITUTION BECOMING A COMPANY LIMITED BY SHARES AND GUARANTEE  

    14(1)   Background.  

    Clause 14 of the transfer provisions applied to a transferring financial institution of a State or Territory if the institution was taken to be registered as a company limited by shares and guarantee under clause 3 of the transfer provisions.

    14(2)    
    Clause 14 of the transfer provisions provided that each person who was a member of the institution immediately before the transfer date was taken to have given a guarantee (but only for the purpose of determining whether the person is a member of the company).

    14(3)   Guarantees.  

    Each person who becomes a member of the company after this Act commences and before the amount of the relevant guarantee is determined is taken to have given a guarantee (but only for the purpose of determining whether the person is a member of the company).

    Note: Someone who became a member after the transfer date and this Act commences was taken to have given a guarantee by clause 13 of the transfer provisions. This guarantee is preserved by sections 1373 and 1399.

    14(4)    
    If a person who is taken to have given a guarantee by subclause (2) is a joint member, they are taken to have given the guarantee jointly with the other member or members of the joint membership. However, the joint membership does not have any more votes because of giving the guarantee or guarantees than it had immediately before the transfer date.

    CLAUSE 15   - REDEEMABLE PREFERENCE SHARES THAT WERE WITHDRAWABLE SHARES  

    15(1)    
    This Act applies to a redeemable preference share that was a withdrawable share of a transferring financial institution of a State or Territory immediately before the transfer date, except that:


    (a) the share is redeemable on the same terms that the withdrawable share was withdrawable under the Financial Institutions Code of the State or Territory and the institution ' s rules or constitution; and


    (b) the holder of the share continues to have the same rights and obligations that they had by holding the withdrawable share.

    15(2)    
    The provisions of this Act that apply to redeemable preference shares apply:


    (a) subject to subclause (1), to redeemable preference shares of a company registered under clause 3 of the transfer provisions; and


    (b) to redeemable preference shares of a company (other than a company referred to in paragraph (a)) that is permitted to use the expression building society , credit union or credit society under section 66 of the Banking Act 1959 ;

    even if the shares are the only class of shares issued by the company.


    CLAUSE 16   - LIABILITY OF MEMBERS ON WINDING UP  

    16(1)    
    If a transferring financial institution of a State or Territory that was registered under clause 3 of the transfer provisions is wound up, each person:


    (a) who was a past member of the institution at the time it became registered; and


    (b) who did not again become a member; and


    (c) who had not held shares in the institution;

    is not liable under Division 2 of Part 5.6 on the winding up.

    Note: A person who was a past member at the time of registration and who held shares in the institution may be liable as a past member under Division 2 of Part 5.6.


    16(2)    
    If a company that is registered under clause 3 of the transfer provisions is wound up, a person who is taken to have given a guarantee by subclause 13(1) or 14(1) of the transfer provisions, or clause 13 or 14 of this Schedule, is not liable under:


    (a) section 515 merely because the person is or was a member who is taken to have given a guarantee; or


    (b) section 517 or paragraph 518(b) merely because the person is taken to have given a guarantee.

    Division 3 - Share capital  

    CLAUSE 17   - SHARE CAPITAL  

    17(1)   Background (transfer of certain amounts to share capital).  

    On registration of a transferring financial institution of a State or Territory as a company under clause 3 of the transfer provisions:


    (a) any amount of withdrawable share capital (within the meaning of the Financial Institutions Code of the State or Territory); and


    (b) any amount standing to the credit of its share premium account; and


    (c) any amount standing to the credit of its capital redemption reserve;

    immediately before the transfer date became part of the company ' s share capital under clause 17 of the transfer provisions.

    17(2)   Use of amount standing to credit of share premium account.  

    The company may use the amount standing to the credit of its share premium account immediately before the transfer date (if any) to:


    (a) provide for the premium payable on redemption of debentures or redeemable preference shares issued before the transfer date; or


    (b) write off:


    (i) the preliminary expenses of the institution incurred before the transfer date; or

    (ii) expenses incurred, payments made, or discounts allowed before the transfer date, in respect of any issue of shares in, or debentures of, the institution.

    CLAUSE 18   - APPLICATION OF NO PAR VALUE RULE  

    18(1)    
    Section 254C applies to shares issued by a transferring financial institution of a State or Territory before the transfer date as well as shares issued on and after that.

    18(2)    
    In relation to a share issued by the institution before the transfer date:


    (a) the amount paid on the share is the sum of all amounts paid to the institution at any time for the share (but not including any premium); and


    (b) the amount unpaid on the share is the difference between the issue price of the share (but not including any premium) and the amount paid on the share (see paragraph (a)).

    CLAUSE 19  

    19   - CALLS ON PARTLY-PAID SHARES  
    The liability of a shareholder for calls in respect of money unpaid on shares issued before the transfer date by a transferring financial institution of a State or Territory (whether on account of the par value of the shares or by way of premium) is not affected by the share ceasing to have a par value.

    CLAUSE 20   - REFERENCES IN CONTRACTS AND OTHER DOCUMENTS TO PAR VALUE  

    20(1)    
    This clause applies for the purpose of interpreting and applying the following after the commencement of this Act:


    (a) a contract entered into by a transferring financial institution of a State or Territory before the transfer date (including the institution ' s constitution);


    (b) a trust deed or other document executed by or in relation to the institution before the transfer date.

    Note: The interpretation and application of contracts and deeds before this Act commences was governed by clause 20 of the transfer provisions.


    20(2)    
    A reference to the par value of a share issued by a transferring financial institution of a State or Territory is taken to be a reference to:


    (a) if the share is issued before the transfer date - the par value of the share immediately before then; or


    (b) if the share is issued on or after the transfer date but shares of the same class were on issue immediately before then - the par value that the share would have had if it had been issued then; or


    (c) if the share is issued on or after the transfer date and shares of the same class were not on issue immediately before then - the par value determined by the directors.

    A reference to share premium is taken to be a reference to any residual share capital in relation to the share.


    20(3)    
    A reference to a right to a return of capital on a share issued by the institution is taken to be a reference to a right to a return of capital of a value equal to the amount paid in respect of the share ' s par value.

    20(4)    
    A reference to the aggregate par value of the institution ' s issued share capital is taken to be a reference to thataggregate as it existed immediately before the transfer date and:


    (a) increased to take account of the par value of any shares issued after then; and


    (b) reduced to take account of the par value of any shares cancelled after then.