New South Wales Consolidated Acts

FINANCIAL SECTOR REFORM (NEW SOUTH WALES) ACT 1999 - SECT 47

47 Matters in relation to dissolved or deregistered societies

(1) This section applies if, before the transfer date, a society’s registration has been cancelled under:

(a) the Financial Institutions Code, or

(b) the Friendly Societies Code, or

(c) the Co-operation Act 1923 , or

(d) the Permanent Building Societies Act 1967 or a corresponding previous enactment, or

(e) the Credit Union Act 1969 or a corresponding previous enactment, or

(f) the Friendly Societies Act 1989 or a corresponding previous enactment, or

(g) the provisions of any other law prescribed by the regulations.

(2) If property vested in ASIC under section 36 was held by a society whose registration has been cancelled as mentioned in subsection (1) and was so held on trust, ASIC may:

(a) continue to act as trustee, or

(b) apply to a court for the appointment of a new trustee.

(3) If a society referred to in subsection (2) had property that it did not hold on trust, ASIC may:

(a) dispose of or deal with the property as it sees fit, and

(b) apply any money it so receives:

(i) to defray expenses incurred by ASIC in exercising its powers in relation to the society, and

(ii) to make payments authorised by subsection (4),

and must deal with the rest (if any) under Part 9.7 of the Corporations Act 2001 of the Commonwealth as applying under this section.

(3A) Money received by ASIC on a disposal of, or dealing with property of a society under subsection (3) (a) that is not applied under subsection (3) (b) is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Part 9.7 of the Corporations Act 2001 of the Commonwealth as if the society had been a company.

Note: Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act 2001 and Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions. Section 14 (2) of the Corporations (Ancillary Provisions) Act 2001 ensures that a declaration made for the purposes of Part 3 of that Act only operates to apply a provision of the Corporations legislation to a matter as a law of the State if that provision does not already apply to the matter as a law of the Commonwealth. If a provision referred to in a declaration already applies as a law of the Commonwealth, nothing in the declaration will affect its continued operation as a law of the Commonwealth.

(3B) For the purposes of subsection (3A), Part 3 of the Corporations (Ancillary Provisions) Act 2001 has effect as if that Part did not contain sections 16 (1) (b) and 17.

(4) The property remains subject to all liabilities imposed on the property under a law and does not have the benefit of any exemption that the property might otherwise have because it is vested in ASIC.

(5) ASIC’s obligation under subsection (4) is limited to satisfying the liabilities out of the society’s property to the extent that the property is properly available to satisfy those liabilities.

(6) ASIC must keep:

(a) a record of property that it knows is vested in it under section 36, and

(b) a record of its dealings with that property, and

(c) account of all money received from those dealings, and

(d) all accounts, vouchers, receipts and papers relating to the property and that money.

(7) ASIC may do an act on behalf of the society or the society’s liquidator if ASIC is satisfied the society or liquidator would be bound to do the act if the society still existed.

(8) A person may recover from an insurer of the society an amount that was payable to the society under the insurance contract if:

(a) the society had a liability to the person, and

(b) the insurance contract covered the liability immediately before the cancellation of the registration.

(9) ASIC may establish a society as a company if ASIC is satisfied that the society’s registration should not have been cancelled.

(10) A court may make an order that ASIC establish a society as a company if:

(a) an application for so establishing a society is made to the court:

(i) by a person aggrieved by the cancellation of the society’s registration, or

(ii) by a former liquidator of the society, and

(b) the court is satisfied that it is just that the society be so established.

(11) If the court makes an order under subsection (10), it may:

(a) validate anything done between the cancellation of the society’s registration and its establishment as a company, and

(b) make any other order it considers appropriate.

(12) ASIC must give notice of the establishment of a company in the Commonwealth of Australia Gazette and, if it exercises its power under subsection (9) in response to an application by a person, it must also give notice to the applicant.

(13) If a society is established as a company, the society is taken to have continued in existence until the transfer date and to be a transferring financial institution of this jurisdiction as referred to in Part 2.

(14) A person who was a director of a society immediately before its registration was cancelled becomes a director of the company as which it is established under this section as from the time when ASIC or a court so establishes it.

(15) Any property of the society that is still vested in ASIC revests in the company so established and, if the society held particular property subject to a security or other interest or claim, the society takes the property subject to that interest or claim.

(16) The functions and powers that are necessary for the purposes of this section are conferred on ASIC.

(17) In this section:
"society" means an entity that was:

(a) a society under the Financial Institutions Code or the Friendly Societies Code, or

(b) one of the following:

(i) a permanent building society registered under the Permanent Building Societies Act 1967 or a corresponding previous enactment, or

(ii) a non-terminating building society registered under the Co-operation Act 1923 , or

(iii) a society mentioned in the Second Schedule to the Co-operation Act 1923 , or

(c) a credit union under the Credit Union Act 1969 or a corresponding previous enactment, or

(d) a friendly society under the Friendly Societies Act 1989 or a corresponding previous enactment, or

(e) an entity of a prescribed class or description.