TRANSPORT ADMINISTRATION ACT 1988 - SCHEDULE 4
TRANSPORT ADMINISTRATION ACT 1988 - SCHEDULE 4
SCHEDULE 4 – Transfer of assets, rights and liabilities
1 Definitions
In this Schedule--
"assets" means any legal or equitable estate or interest (whether present or
future and whether vested or contingent and whether personal or assignable) in
real or personal property of any description (including money), and includes
securities, choses in action and documents.
"instrument" means an instrument (other than this Act) that 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 or
process of a court.
"liabilities" means any liabilities, debts or obligations (whether present or
future and whether vested or contingent and whether personal or assignable).
"rights" means any rights, powers, privileges or immunities (whether present
or future and whether vested or contingent and whether personal or
assignable).
"transport authority" has the same meaning as it has in section 94.
2 Application and interpretation
(1) This Schedule applies to the following orders under this Act--(a) an order under section 94 transferring assets, rights or liabilities of a transport authority, or any subsidiary of a transport authority, to another transport authority or a subsidiary of a transport authority, a State owned corporation, the Crown or a person or body acting on behalf of the Crown,(b) an order under section 88I transferring assets, rights or liabilities to a person or body specified or referred to in the order,(c) an order under section 105A transferring assets, rights or liabilities of TfNSW to the National Heavy Vehicle Regulator,(d) an order under clause 70 of Schedule 7 transferring assets, rights or liabilities of the RSA or any RSA subsidiary corporation to Rail Services Australia,(d1) an order under section 106D transferring assets, rights or liabilities of the State Transit Authority, or a subsidiary of the Authority, to Sydney Ferries or the Crown,(e) an order under clause 71 of Schedule 7 transferring assets, rights or liabilities of RSA or any RSA subsidiary corporation to the Ministerial Holding Corporation or to any person on behalf of the State,(f) any other order under Schedule 7 transferring assets, rights or liabilities to a body specified or referred to in the order.
(1A) This Schedule also applies to the transfer of the assets, rights and liabilities of the Independent Transport Safety Regulator to the Crown by Schedule 7. This Schedule applies as if that transfer were an order to which this Schedule applies that took effect on the date of commencement of this subclause.
(2) In this Schedule, the body or person from whom any assets, rights or liabilities are so transferred is called the
"transferor" and the body or person to whom they are being so transferred is called the
"transferee" .
3 Vesting of undertaking in transferee
When any assets, rights or liabilities are transferred by an order to which this Schedule applies, the following provisions have effect (subject to the order)--
(a) those assets of the transferor vest in the transferee by virtue of this Schedule and without the need for any conveyance, transfer, assignment or assurance,
(b) those rights and liabilities of the transferor become by virtue of this Schedule the rights and liabilities of the transferee,
(c) all proceedings relating to those assets, rights or liabilities commenced before the transfer by or against the transferor or a predecessor of the transferor and pending immediately before the transfer are taken to be proceedings pending by or against the transferee,
(d) any act, matter or thing done or omitted to be done in relation to those assets, rights or liabilities before the transfer by, to or in respect of the transferor is (to the extent that that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the transferee,
(d1) the transferee has all the entitlements and obligations of the transferor in relation to those assets, rights and liabilities that the transferor would have had but for the order, whether or not those entitlements and obligations were actual or potential at the time the order took effect,
(e) a reference in any Act, in any instrument made under any Act or in any document of any kind to the transferor or a predecessor of the transferor is (to the extent that it relates to those assets, rights or liabilities but subject to regulations or other provisions under Schedule 7), to be read as, or as including, a reference to the transferee.
4 Operation of Schedule--contractual and other obligations
(1) This clause applies to the following--(a) the operation of this Schedule (including the making of any order under this Schedule and anything done or omitted to be done under or for the purposes of this Schedule),(b) the transfer of assets, rights or liabilities under this Schedule,(c) a disclosure of information by, on behalf of or with the consent of a public sector agency for the purposes of the operation of this Schedule or any such transfer (including any such disclosure made in anticipation of or in preparation for the making of an order or a transfer, whether or not the order is made or the transfer occurs).
(2) None of the matters or things to which this clause applies are to be regarded as--(a) a breach of contract or confidence or otherwise as a civil wrong, or(b) a breach of any instrument (including, without limitation, any provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities) or as requiring any act to be done under an instrument, or(c) giving rise to any right or remedy by a party to a contract or other instrument, or as causing or permitting the termination of, or exercise of rights under, any contract or other instrument, or(d) an event of default under any contract or other instrument, or(e) giving rise to a breach of or an offence against a provision of an Act that prohibits or restricts the disclosure of information, or(f) releasing a surety or other obligee wholly or in part from an obligation.
(3) In this clause--
"instrument" means an instrument (other than an instrument made under this Act) or any other document that 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, process or other instrument issued by a court or tribunal.
"public sector agency" means any of the following--(a) the State (including the Crown in right of the State),(b) a Minister,(c) the Ministerial Holding Corporation constituted by the State Owned Corporations Act 1989 ,(d) a State owned corporation,(e) a public authority of the State,(f) any other person acting on behalf of the State (or the Crown in right of the State),(g) a wholly owned subsidiary of a public sector agency.
5 Date of vesting
An order to which this Schedule applies takes effect on the date specified in the order.
6 Consideration for vesting
(1) An order to which this Schedule applies may specify the consideration on which the order is made and the value or values at which the assets, rights or liabilities are transferred.
(2) The consideration and value or values cannot exceed the optimised deprival of those assets, rights or liabilities.
(3) In this clause, optimised deprival value means a value determined by the application of the Guidelines on Accounting Policy for Valuation of Government Trading Enterprises prepared by the Steering Committee on National Performance Monitoring of Government Trading Enterprises, agreed on by the Commonwealth and States and published in October 1994.
7 Duties
Duty under the Duties Act 1997 is not chargeable in respect of--
(a) the transfer of assets, rights and liabilities to a person by an order to which this Schedule applies, or
(b) anything certified by the Minister as having been done in consequence of such a transfer (for example, the transfer or registration of an interest in land).
8 Transfer of interest in land
(1) An order to which this Schedule applies may transfer an interest in respect of land vested in the transferor without transferring the whole of the interests of the transferor in that land.
(2) If the interest transferred is not a separate interest, the order operates to create the interest transferred in such terms as are specified in the order.
(3) This clause does not limit any other provision of this Schedule.
9 Determinations of Minister for purposes of orders
For the purposes of any order to which this Schedule applies, a determination by the Minister as to which entity to which any assets, rights or liabilities relate is conclusive.
10 Confirmation of vesting
(1) The Minister may, by notice in writing, confirm a transfer of particular assets, rights and liabilities by operation of this Schedule.
(2) Such a notice is conclusive evidence of that transfer.
11 Transfer of licences and other authorisations
(1) This clause applies to an authorisation granted to a transferor under an Act or statutory rule and in force immediately before a transfer by an order to which this Schedule applies.Note : Acts under which authorisations are granted to public transport agencies include the Environmental Planning and Assessment Act 1979 , Home Building Act 1989 , National Parks and Wildlife Act 1974 , Place Management NSW Act 1998 , Protection of the Environment Operations Act 1997 and Sydney Water Act 1994 .
(2) An authorisation is, to the extent that it relates to assets, rights or liabilities of a transferor, taken to be held by the transferee on the same terms and conditions as the transferor held the authorisation immediately before the transfer.
(3) The regulations may exempt an authorisation from the operation of this clause.
(4) This clause does not prevent an authorisation from being varied, cancelled or replaced.
(5) In this clause--
"authorisation" includes a licence, permit, approval, consent or exemption.
12 Existing development applications and certain determinations and assessments
(1) This clause applies to--(a) a development application made under the Environmental Planning and Assessment Act 1979 , and(b) a determination or assessment under Part 5 of that Act,that relates to assets, rights or liabilities of a transferor that are transferred by an order to which this Schedule applies.
(2) Subject to the regulations--(a) a development application referred to in subclause (1)(a) that has not been finally determined is taken to have been made by the transferee, and(b) a determination or assessment referred to in subclause (1)(b) made or carried out before the transfer by the transferor is taken to have been made or carried out by the transferee.
13 Severance of fixtures
(1) The Minister may, by notice in writing, for the purposes of a transfer under an order to which this Schedule applies direct that specified assets to which the order applies are (if they are fixtures) severed from the land on, under or above which they are situated.
(2) The effect of such a notice is that the assets concerned are deemed to be severed from the land concerned and may be dealt with as personal property separate from the land for the purposes of a transfer.
(3) This clause applies to assets designated by the Minister, by notice in writing, to be assets to which this clause applies. Assets may be designated as assets to which this clause applies only if they are owned by a public transport agency.
(4) The severance of an asset from land under this clause does not affect the right of the asset to be situated on, under or above that land and does not affect any right to drain water or sewage from the asset across and through the land or to use any means of drainage of water or sewage from the asset across and through the land.
(5) This clause does not apply to any transfer to or from TAHE.
14 Certain transfers do not constitute closures or disposals of railway lines
(1) This clause applies to the following transfers under an order to which this Schedule applies--(a) a transfer to TfNSW, TAHE or RTC,(b) a transfer from TfNSW or TAHE to a public transport agency.
(2) For the avoidance of doubt, a transfer under an order to which this clause applies does not constitute a closure of a railway line (within the meaning of section 99A).