New South Wales Consolidated Acts New South Wales Consolidated Acts(Section 444)
In this Schedule:
"1923 Act" means the Co-operation Act 1923 , as in force immediately before
the commencement of this clause.
"transferred co-operative" is explained in clause 4.
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:this ActCo-operatives Amendment Act 1995Co-operatives Amendment Act 1997Statute Law (Miscellaneous Provisions) Act (No 2) 1997 (Schedule 1.3 and 1.4 only)Co-operatives Legislation Amendment Act 2001 (to the extent that it amends this Act)Statute Law (Miscellaneous Provisions) Act (No 2) 2010 (to the extent it amends this Act)
(2) A provision referred to in subclause (1) may, if the regulations so provide, take effect as from the date of assent to the Act concerned or a later date.
(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
(1) Except as otherwise provided by this Schedule or by regulations made under clause 2, anything done under a provision of the 1923 Act in respect of a transferred co-operative that had an effect immediately before the commencement of a corresponding provision of this Act is to be considered to have been done under that corresponding provision.
(2) Subclause (1) applies even if when done under the corresponding provision of this Act the thing can be done only by a different person or body and in such a case is to be considered to have been done by that person or body.
A society wound up, dissolved or struck off the register under the 1923 Act (other than a society exempt from clause 4) is taken to have been wound up, dissolved or struck off the register under this Act.
(1) A society registered under the 1923 Act (unless exempted under subclause (4)) is to be considered to be a co-operative registered under this Act and is referred to in this Schedule as a "transferred co-operative".
(2) Each transferred co-operative is the same legal entity as the corresponding society under the 1923 Act and accordingly has the same name, rules and membership as it had under the 1923 Act.
(3) After the commencement of this clause, the Registrar is not to register a new society under the 1923 Act unless the society is exempted under subclause (4).
(4) The following societies under the 1923 Act are exempt from this clause:(a) a co-operative housing society,(b) a Starr-Bowkett Society,(c) a non-terminating building society,(d) a society mentioned in the Second Schedule to that Act.
(1) In this clause:
"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, choses in action and documents.
"former society", in relation to a transferred co-operative, means the society under the 1923 Act which became the transferred co-operative as a result of clause 4.
"instrument" means an instrument (other than this Act) which creates, modifies 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).
(2) On the commencement of this clause, the following provisions have effect:(a) the assets of the former society of a transferred co-operative vest in the transferred co-operative without the need for any conveyance, transfer, assignment or assurance,(b) the rights and liabilities of the former society of a transferred co-operative become the rights and liabilities of the transferred co-operative,(c) all proceedings by or against the former society of a transferred co-operative that are pending immediately before the commencement of this clause are taken to be proceedings pending by or against the transferred co-operative,(d) any act, matter or thing done or omitted to be done by, to or in respect of the former society of a transferred co-operative before the commencement of this clause is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the transferred co-operative,(e) a reference in an instrument or in any document of any kind to the former society of a transferred co-operative is to be read as, or as including, a reference to the transferred co-operative.
(3) The operation of this clause 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.
(1) The 1923 Act and any regulations under that Act cease to apply to transferred co-operatives.
(2) For the purposes of the application of the provisions of the Interpretation Act 1987 in respect of co-operatives under this Act, the 1923 Act is to be considered to have been repealed and replaced by this Act.
Any reference (in the context of active membership provisions) in the rules of a transferred co-operative to a chief primary object or primary object is to be read as a reference to a primary activity of the co-operative.
(1) Any charge registered under the provisions of the Companies (New South Wales) Code applied by section 65 (3) of the 1923 Act is, to the extent that it affects property of a transferred co-operative, to be considered to be registered under the corresponding provisions of this Act and to have been so registered at the time that it became registered under the 1923 Act.
(2) The register kept under the 1923 Act for that purpose is, to the extent that it relates to charges affecting property of a transferred co-operative, to be considered to be part of the register kept under the corresponding provisions of this Act.
(1) A reference in any instrument to a society registered under the 1923 Act is to be read as including a reference to a co-operative registered under this Act.
(2) In this clause:
"instrument" means any Act (other than this Act or the 1923 Act), any instrument made under an Act (other than this Act or the 1923 Act) and any instrument of any other kind.
Section 232 (Restrictions on loans to directors) does not apply to the making of a loan, the giving of a guarantee or the providing of security before the commencement of that section.
(1) If a co-operative society had the benefit of an extension under section 80F of the 1923 Act of the time within which the rules of the society had to contain active membership provisions, that extension continues to operate for the purposes of this Act.
(2) The effect of this is that the rules of the co-operative need not contain active membership provisions until the extension expires.
(3) Sections 181 (Inactive members not entitled to vote) and 64 (Qualification for membership-likelihood of being active member) do not apply to the co-operative until the extension expires.
The Advisory Council established under the 1923 Act is dissolved.
(1) This clause applies to a co-operative in respect of which an approval of the Advisory Council or an order of the Minister under section 84 (7) of the 1923 Act was in force immediately before the commencement of this clause.
(2) If the composition of the board of a co-operative does not comply with section 206 (3) as a consequence of the approval or order, that subsection does not apply in respect of the co-operative.
(3) While this clause operates in respect of a co-operative:(a) a majority of its directors must be active members of the co-operative, and(b) a meeting of the board of the co-operative is not competent to transact any business of the board unless a majority of the directors present at the meeting are active members of the co-operative.
(4) The Minister may, by notice in writing to a co-operative, revoke the application of this clause to the co-operative, in which case this clause ceases to apply to the co-operative.
(5) Section 206 (4) and (5) apply for the purposes of this clause as well as for the purposes of section 206.
The amendment to section 202 made by the Co-operatives Amendment Act 1995 does not apply in respect of a requisition for a general meeting served on a co-operative before the commencement of that amendment.
The amendment to section 218 made by the Co-operatives Amendment Act 1995 does not apply in respect of a notice in writing of a director’s intention to resign office given by the director to the board of the co-operative before the commencement of that amendment.
The amendment to section 229 made by the Co-operatives Amendment Act 1995 is taken to have commenced immediately before the commencement of Part 5.7B of the Corporations Law .
(1) Section 332 of this Act (as in force immediately before its replacement by the Co-operatives Amendment Act 1995 ) continues to apply to and in respect of the official management of a co-operative under Part 5.3 of the Corporations Law that commenced before the replacement of that section.
(2) A reference in this Act to an administrator, or to administration, under Part 5.3A of the Corporations Law includes a reference to an official manager or deputy official manager, or to official management, under Part 5.3 of that Law.
A foreign co-operative registered under Division 3 of Part 2 before the commencement of this clause is taken to be registered as a foreign co-operative under Division 2 of Part 13A.
An exemption granted to a foreign co-operative by the Registrar pursuant to clause 7 (2) (a) of the Co-operatives (General) Regulation 1993 and in force immediately before the commencement of this clause is taken to be valid for a period of 2 years after that commencement.
(1) Part 2 as in force immediately before the commencement of this clause continues to apply to an application for registration of a co-operative received by the Registrar before that commencement.
(2) On registration of a co-operative to which this clause applies, the co-operative is taken to be a co-operative registered under Part 2.
(1) Division 1 of Part 12 as in force immediately before the commencement of this clause continues to apply to an application for amalgamation made by 2 or more co-operatives before the commencement of this clause.
(2) On registration of an amalgamated co-operative under this clause, the co-operative is taken to be a merged co-operative registered under Division 1 of Part 12.
(1) Division 2 of Part 12 as in force immediately before the commencement of this clause continues to apply to:(a) a transfer of engagements being made by one co-operative to another co-operative, or(b) a direction given by the Registrar to a co-operative to transfer its engagements to another co-operative,before the commencement of this clause.
(2) On completion, any such transfer of engagements is taken to have been made under Division 1 of Part 12.
(1) A co-operative that was registered under this Act immediately before the commencement of this clause must bring its rules into conformity with this Act and the regulations:(a) within 4 years after the commencement of this clause, or(b) within such further period as may be approved by the Registrar in respect of a particular co-operative or co-operatives of a particular class.
(2) The rules of a co-operative to which this clause applies are taken to be valid until:(a) the co-operative complies with subclause (1), or(b) the expiry of the relevant period under subclause (1).
(2A) The rules of a co-operative to which this clause applies are taken to have been valid from the expiry of the relevant period under subclause (1), as it was originally enacted, until:(a) the co-operative complies with subclause (1), or(b) the expiry of the relevant period in subclause (1) as amended by the Co-operatives Legislation Amendment Act 2001 ,whichever occurs first.
(3) If there is any inconsistency between a provision of this Act or the regulations and the rules of the co-operative as to the procedure for alteration of the rules of the co-operative, the provisions of this Act and the regulations prevail.
(1) This clause applies if, in the opinion of the Registrar, the rules of a co-operative registered under this Act immediately before the commencement of this clause should be altered to achieve conformity with any requirement of this Act or the regulations.
(2) The Registrar may, by instrument served on a co-operative to which this clause applies, require it within a period specified in the instrument to alter its rules:(a) in a manner specified in the instrument, or(b) in a manner approved by the Registrar.
(3) If, within the period specified in the instrument, the co-operative fails to alter its rules as required by the instrument, the Registrar may, by notation on the registered copy of the rules, alter the rules.
(4) The Registrar must give written notice to a co-operative 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 is as valid and effectual as an alteration made and registered under Part 5.
(1) Sections 113 and 192 as in force immediately before the commencement of this clause continue to apply in respect of a special resolution passed by a co-operative under Division 2 of Part 8 before that commencement.
(2) Any such resolution is taken to be a resolution registered under Division 2 of Part 8.
A member of a non-trading co-operative who, immediately before the commencement of this clause, held shares issued at a premium in the co-operative retains all rights to a return of premium in relation to the shares that the member held immediately before that commencement.
An exemption granted to a co-operative under section 260 (3) (e) that is in force immediately before the repeal of that provision by the Co-operatives Amendment Act 1997 is taken to be an exemption granted under section 255 (5) (g).
The authentication of a document or proceeding in accordance with section 47 as in force immediately before the commencement of this clause is taken to be a valid authentication for the purposes of this Act after that commencement.
Division 4 of Part 4 as in force immediately before the commencement of this clause continues to apply in respect of the resolution of a dispute referred to arbitration or to the Registrar in accordance with that Division before that commencement.
(1) Section 153 (1) and (2) as in force immediately before the commencement of this clause continues to apply to an application to the Minister for approval of the rate of a dividend made before that commencement.
(2) An order made by the Minister in respect of an application to which this clause refers has effect despite any provision of this Act.
(1) The Court may, on the application of an interested person, make such order as the Court thinks appropriate and necessary to give effect to this Act to remove a difficulty arising in applying a provision of this Act to a particular case because of the amendment of that or another provision of this Act by the Co-operatives Amendment Act 1997 .
(2) An order under this clause has effect despite anything in a provision of this Act or in a provision of this Act as in force immediately before the commencement of the Co-operatives Amendment Act 1997 .
A loan made by a member to a co-operative before the commencement of section 268A, and any other loan made in accordance with a proposal referred to in section 268 that was approved before that commencement, continues to be payable at the same rate of interest as that in relation to which it was made as if section 268A had not been enacted.
(1) If, on the commencement of this clause, regulations have not been made for or with respect to any matter that by this Act as amended by the Co-operatives Amendment Act 1997 is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act as so amended, regulations may be made under clause 2 to provide that such of the regulations made under the Co-operatives Act 1996 of Victoria as are identified in the regulations apply to co-operatives to which this Act applies with such modifications as are necessary and with such modifications (if any) as may be prescribed by the regulations.
(2) Any regulation to which this clause applies expires 6 months after the date on which the regulation commences.
(1) If anything done or commenced under this Act before the commencement of this clause and still having effect or not completed immediately before that commencement could have been done or commenced under this Act as amended by the Co-operatives Amendment Act 1997 if this Act as so amended had been in force when the thing was done or commenced:(a) the thing continues to have effect, or(b) the thing commenced may be completed,as if it had been done or commenced under this Act as so amended.
(2) This clause is subject to any express provision of this Act on the matter.
The amendments made to section 17 by the Co-operatives Legislation Amendment Act 2001 extend to a disclosure statement submitted before the commencement of the amendments.
The repeal of section 43 does not affect the validity of anything done, or of any refusal to do any act or thing, before the date of commencement of Schedule 1 [4] to the Co-operatives Legislation Amendment Act 2001 .
The amendment made to section 81 by the Co-operatives Legislation Amendment Act 2001 does not apply in respect of any person expelled from a co-operative before the amendment took effect.
The amendment made to section 198 by the Co-operatives Legislation Amendment Act 2001 does not apply to a co-operative incorporated between 18 months and 19 months before the commencement of the amendment.
(1) The amendment made to section 203 by the Co-operatives Legislation Amendment Act 2001 does not apply in respect of any meeting of a co-operative held before the amendment took effect.
(2) The amendment made to section 210 by the Co-operatives Legislation Amendment Act 2001 does not apply in respect of a resolution approved before the amendment took effect.
The amendment made to section 206 by the Co-operatives Legislation Amendment Act 2001 extends to those persons holding office as directors of co-operatives before the amendment took effect.
(1) An exemption granted by an order under section 206A (Exemptions concerning composition of board) and in force immediately before the repeal of that section by the Co-operatives Legislation Amendment Act 2001 continues in force for 5 years after the date of repeal of the section.
(2) The exemption has the effect of exempting the co-operative from the operation of section 206 (3). However, the exemption has no effect on and after the date of registration of any rules of the co-operative that are consistent with the provisions of section 206 (3).
The amendment made to section 252 by the Co-operatives Legislation Amendment Act 2001 extends to the first annual report required to be prepared after the commencement of the amendments.
The acceptance by a co-operative of any money on deposit between 1 December 1997 (the date of commencement of section 263A) and the date of commencement of the amendment to that section made by the Co-operatives Legislation Amendment Act 2001 is validated, to the extent that the co-operative would have been authorised, if the amendment had been in force when the money was accepted, to accept money on deposit (within the meaning of the section as amended).
(1) In this Part:
"amending Act" means the Statute Law (Miscellaneous Provisions) Act (No 2) 2010 .
"Charges Register" means the Register of Co-operative Charges referred to in clause 18 of Schedule 3 (as in force before its repeal by the amending Act), and includes the information in the Register that is required to be kept during the transitional period under clause 48 of this Schedule.
"commencement time" means the time when Schedule 3 to this Act is repealed by the amending Act.
"creditor", in relation to a charge, means the person who is the holder of the charge and, in the case of a charge constituted by the issue of a debenture or debentures, includes the trustee (if any) for the debenture holders.
"debtor", in relation to a charge, means the person who has the debt or other liability that is secured by the charge.
"existing charge" means a charge created before the commencement time that was a registrable charge within the meaning of clause 1 of Schedule 3 (as in force before that time) when it was created.
"existing charges registration provisions" means the provisions of section 278 and Schedule 3 (as in force immediately before the commencement time).
"matter" includes act, omission, body, person and thing.
"PPS Act" means the Personal Property Securities Act 2009 of the Commonwealth.
"PPS Register" means the Personal Property Securities Register established under the PPS Act.
"PPS Registrar" means the Registrar of Personal Property Securities under the PPS Act.
"pre-transitional period" means the period:(a) commencing at the migration time (within the meaning of the PPS Act) or such earlier time as may be prescribed by the regulations, and(b) ending at the commencement time."transitional period" means the period of 7 years commencing at the commencement time.
(2) Clause 22A (References to charges and fixed and floating charges) of Schedule 1 to the Personal Property Securities (Commonwealth Powers) Act 2009 does not apply in relation to a reference in this Part or in a provision of the existing charges registration provisions continued in effect by this Part.
(1) The existing charges registration provisions cease to have effect at the commencement time, except as otherwise provided by this Part.
(2) If a provision of the existing charges registration provisions (the "primary provision") is continued in effect by this Part:(a) any other provision of the existing charges registration provisions (a "related provision") that is referred to in the primary provision is also continued in effect to the extent necessary for the purposes of the continued application of the primary provision, and(b) any power to make regulations in respect of a matter that is conferred by the primary provision or a related provision is taken to include a power for the matter to be prescribed by regulations made under this Act after the commencement time.
(3) The regulations under this Act as in force immediately before the commencement time continue to apply for the purposes of a primary provision or related provision that confers a regulation-making power for a matter under the existing charges registration provisions until regulations provide otherwise.
(1) The Registrar is specifically authorised to provide the Commonwealth, the PPS Registrar or any other officer of the Commonwealth with such information recorded in, or concerning the use of, the Charges Register as the Registrar considers appropriate in order to assist the Commonwealth in establishing the PPS Register.
(2) Without limiting subclause (1), the Registrar is also specifically authorised to provide any of the following persons with such information recorded in the Charges Register as the Registrar considers appropriate in order to assist in verifying the accuracy of information recorded in the Charges Register for the purposes of data migration to the PPS Register:(a) any person who is (or was) recorded in the Charges Register as a debtor or creditor,(b) any person acting on behalf of such a debtor or creditor (or former debtor or creditor),(c) any other person engaged by the Registrar to assist, or who is otherwise involved in assisting, in the migration of data from the Charges Register to the PPS Register.
(3) The Registrar may provide the information that the Registrar is authorised to provide under this clause in whatever form (including by means of electronic data or in a form approved for the purposes of the PPS Act) as the Registrar considers appropriate.
(4) Subject to subclause (5), the provisions of this clause prevail to the extent of any inconsistency with the provisions of this or any other Act or statutory rule.
(5) The provisions of this clause are in addition to, and do not derogate from, the provisions of section 9A of the Fair Trading Act 1987 .
(1) The Registrar may refuse to exercise a provisional registration function during the pre-transitional period.
(2) In this clause:
"provisional registration function" means any function conferred or imposed on the Registrar by or under clause 20 or 21 of Schedule 3 (as in force before the commencement time).
Clause 13 (2) and (3) of Schedule 3 cease to apply during the pre-transitional period in respect of charges created during that period.
(1) During the transitional period, the Registrar is to continue to keep, in the form of the Charges Register, the information contained in the Register immediately before the commencement time.
(2) The Registrar may, whether before or during the transitional period, seek information from a person who is (or was) recorded in the Charges Register as a debtor or creditor in relation to a charge as to whether the debt or other liability the payment or discharge of which was secured by the charge has been paid or discharged in whole or in part or the property charged or part of that property has been released from the charge.
(3) The Registrar may require the information sought under subclause (2) to be provided on or before a date specified by the Registrar.
(4) The Registrar may treat a debt or other liability secured by a charge that is recorded in the Charges Register as having been paid or discharged if:(a) the creditor does not provide information sought under subclause (2) on or before the date specified by the Registrar for the provision of the information, and(b) the Registrar has given written notice to both the debtor and creditor of his or her intention to treat the debt or other liability as having been paid or discharged within 7 days of the notice being served.
(5) The Registrar may amend the Charges Register:(a) on the basis of information provided under this clause, and(b) to omit information concerning a charge on the basis of subclause (4).
(6) Clause 43 of Schedule 3 continues to apply during the transitional period in relation to an existing charge.
(1) Clause 42 of Schedule 3 continues to apply during the transitional period in relation to:(a) a certificate issued under that clause before the commencement time, and(b) an existing charge the particulars of which were entered in the Charges Register before the commencement time.
(2) The regulations may make provision for or with respect to fees payable in relation to:(a) certificates (or copies of certificates) issued under clause 42 of Schedule 3 (as continued in force by subclause (1)), and(b) the provision of copies of documents during the transitional period relating to charges recorded in the Charges Register.
Section 40 (2) continues to apply in relation to a document lodged under Division 3 (Charges) of Part 10 before the commencement time.
A person’s rights under section 413A (1) (b) and (c) in relation to documents kept by the Registrar relating to existing charges continue to be exercisable during the transitional period subject to the payment of any fees prescribed for the purposes of those paragraphs.
(1) Subject to this clause, if an existing charge is void under clause 27 or 28 of Schedule 3 immediately before the commencement time, Division 4 of Part 2 of Schedule 3 (other than clause 29) is taken to continue to apply in relation to the charge.
(2) The Supreme Court may, on such terms and conditions as seem to the Court just and expedient, by order, declare an existing charge not to be, and never to have been, void under clause 27 or 28 of that Schedule, if:(a) before the commencement time, the charge is void under clause 27 or 28, and(b) an application:(i) is, immediately before the commencement time, pending under clause 29 of Schedule 3 for an extension of the required period, and as at the commencement time, the Court had not made a decision in relation to the application, or(ii) is made to the Court on or after the commencement time for an order under this clause, and(c) the Court is satisfied of the matters set out in clause 29 of Schedule 3 as in force immediately before the commencement time.
(1) Subject to Chapter 9 (Transitional provisions) of the PPS Act and subclause (2), existing charges continue on and from the commencement time to have the same priority as between each other as they would have had under this Act as in force immediately before the commencement time.
(2) If an existing charge recorded in the Charges Register becomes a migrated security interest (within the meaning of the PPS Act), the date (if any) recorded in the PPS Register as the date on which the charge was originally registered is taken to be the date on which the charge was originally registered under this Act in the absence of evidence to the contrary.
(1) Compensation is not payable by or on behalf of:(a) the State or an authority of the State, or(b) an officer, employee or agent of the State,for an act or omission that is a charges transitional matter or that arises (directly or indirectly) from a charges transitional matter.
(2) Subclause (1):(a) applies only in respect of acts done or omitted to be done in good faith, and(b) does not apply to acts or omissions that cause personal injury to a person or the death of a person.
(3) In this clause:
"charges transitional matter" means any of the following:(a) the provision of information to the Commonwealth, the PPS Registrar, any other officer of the Commonwealth or any other person for the purpose of assisting the Commonwealth in establishing the PPS Register or of verifying the accuracy of information recorded in the Charges Register,(b) the administration of this Part or the exercise of functions under this Part."compensation" includes damages and any other form of monetary compensation.
The power conferred by clause 2 (1) to make regulations of a savings or transitional nature consequent on the enactment of the amending Act extends to the making of regulations of a savings or transitional nature consequent on the enactment of any of the following Commonwealth Acts to the extent that the enactment of the Commonwealth Act affects the operation of this Act:
(a) the Personal Property Securities Act 2009 ,
(b) the Personal Property Securities (Corporations and Other Amendments) Act 2010 ,
(c) any other Commonwealth Act that amends the Personal Property Securities Act 2009 or the Corporations Act 2001 .