South Australian Consolidated Acts South Australian Consolidated ActsSchedule 3—Transfer of assets, liabilities and staff between electricity
corporations
Part A—Preliminary
In this Schedule—
asset means property including property held in a fiduciary capacity;
document includes any disc, tape or other medium in which information is
stored;
guarantee includes indemnity;
instrument includes a legislative instrument and a judgment, order or process
of a court;
land includes an estate or interest in land;
legal proceedings includes an arbitration and an administrative proceeding;
liability means a present, future or contingent liability (arising either at
law or in equity) and includes a duty or non-pecuniary obligation;
property means real or personal property and includes—
(a) a
chose in action; and
(b) a
present, future or contingent right, privilege, interest or power;
security means—
(a) a
mortgage, charge, lien, or pledge; or
(b) a
guarantee; or
(c) any
other security for, or instrument relating to, the payment of money or the
discharge of any other liability;
transferee , in relation to a transferred asset or liability, means the body
to which the asset or liability has been transferred;
transferor , in relation to a transferred asset or liability, means the body
from which the asset or liability has been transferred;
transferred asset means an asset transferred under this Schedule;
transferred liability means a liability transferred under this Schedule.
2—Ministerial directions relating to transfers
The Minister may give directions to an electricity corporation requiring it to
carry out work directed towards the transfer of assets and liabilities between
the corporation and another electricity corporation or proposed electricity
corporation.
3—Territorial application of Schedule
(1) This Schedule
applies both within and outside the State.
(2) This Schedule
applies outside the State to the full extent of the extra-territorial
legislative power of the State.
Part B—Transfer of assets and liabilities
4—Transfer of assets and liabilities to electricity corporation
(1) The Minister may,
by order in writing, transfer assets or liabilities (or both) between
electricity corporations.
(2) An order under
this clause may be varied or revoked by the Minister by further order in
writing made before the order takes effect.
(3) An order may not
be made under this clause transferring assets or liabilities (or both) to or
from an electricity generation corporation or an electricity transmission
corporation established under Part 3 or 4 more than 12 months after the
establishment of the corporation (other than an order effecting a transfer
between such a corporation and a subsidiary of the corporation).
(4) A transfer of an
asset or liability under this clause operates by force of this Schedule and
despite the provisions of any other law or instrument.
(5) A transfer of a
liability under this clause operates to discharge the transferor from the
liability.
(1) The Minister may,
by order in writing, fix the conditions on which assets or liabilities are
transferred to an electricity corporation under this Schedule.
(2) An order under
this clause may be varied or revoked by the Minister by further order in
writing.
(3) The conditions of
transfer may, for example, do one or more of the following:
(a)
assign a value to particular transferred assets, or transferred assets of a
particular class;
(b)
assign a value to particular transferred liabilities, or transferred
liabilities of a particular class;
(c)
assign a net value to particular transferred assets and liabilities, or
transferred assets and liabilities of particular classes;
(d)
impose on the transferee of assets, or assets and liabilities, a liability (in
terms set out in the order) to the transferor reflecting the value or net
value assigned by the Minister to the assets, or the assets and liabilities.
6—Indemnity if transfer and discharge of liability not recognised under
other law
If—
(a) the
transfer of a liability under this Schedule and the consequent discharge from
the liability is not recognised under the law of a place outside South
Australia; and
(b) the
transferor is required under the law of that place to make a payment in
satisfaction of the liability,
the transferor is entitled to be indemnified by the transferee for the
payment.
The following transitional provisions apply in relation to transferred assets
and liabilities:
(a) if
an instrument or other document, or oral agreement, understanding or
undertaking, is applicable to a transferred asset or liability, then for the
purpose of construing the instrument or other document or oral agreement,
understanding or undertaking (so far as it applies to the transferred asset or
liability)—
(i)
a reference to the transferor is to be construed as a
reference to the transferee; and
(ii)
a reference to an officer of the transferor is to be
construed as a reference to the corresponding officer of the transferee or an
officer designated by the chief executive officer of the transferee as the
corresponding officer; and
(b) an
instruction, order, authority or notice given to the transferor before the
transfer takes effect is, so far as it is referable to a transferred asset or
liability, taken to have been given to the transferee; and
(c) if a
security held by the transferor is referable to a transferred asset or
liability, then, so far as it is referable to the transferred asset or
liability—
(i)
the security is available to the transferee as security
for the discharge of the liabilities to which it relates including, where the
security extends to future liabilities, any such liabilities incurred after
the transfer; and
(ii)
the transferee is entitled to the same rights and
priorities and subject to the same liabilities in relation to the security as
those to which the transferor would have been entitled or subject if there had
been no transfer; and
(d) the
transferee is entitled to possession of all documents to which the transferor
was entitled immediately before the transfer took effect that are entirely
referable to a transferred asset or liability and is entitled to access to,
and copies of, all documents that are referable to both a transferred asset or
liability and any other asset or liability that is not transferred; and
(e) a
negotiable instrument or order for payment drawn by or on, or accepted or
endorsed by the transferor, is (if the transferor's liability under the
instrument or order is a transferred liability) payable by the transferee in
the same way as if it had been drawn by or on, or accepted or endorsed (as the
case may be) by the transferee; and
(f) if a
transferred asset consists of rights to the possession or use of property
under a lease or other agreement, the transferee may exercise those rights
without giving rise to any liability on the part of the transferor for parting
with possession of the property, or permitting the possession or use of the
property by another person, contrary to the terms of the lease or agreement;
and
(g) the
transferee has the same right to ratify a contract or agreement relating to an
asset or liability transferred to it from the transferor as the transferor
would have had if there had been no transfer; and
(h)
legal proceedings in respect of a transferred asset or liability commenced by
or against the transferor must (subject to discontinuance) be continued and
completed by or against the transferee; and
(i)
in legal proceedings relevant to a transferred asset or
liability—
(i)
the transferee will have the same rights and privileges
as the transferor would have had if there had been no transfer; and
(ii)
a document that could have been given in evidence by or
against the transferor if there had been no transfer may be given in evidence
by or against the transferee; and
(j) the
transferee may execute an instrument discharging, surrendering, transferring
or otherwise dealing with a transferred asset or liability either in its own
name or in the transferor's name.
8—Registering authorities to note transfer
(1) The
Registrar-General or any other authority required or authorised under a law of
the State to register or record transactions affecting assets or liabilities,
or documents relating to such transactions—
(a)
must, on the application of the transferee, register or record in the
appropriate manner the transfer of any transferred asset or liability; and
(b) must
register an instrument in registrable form, executed by the transferee,
relating to property that is a transferred asset even though the transferee is
not registered as the proprietor of the property.
(2) If property is
registered in the name of an electricity corporation, the Registrar-General or
other registering authority may register a dealing with the property by the
corporation or another electricity corporation without being concerned to
enquire whether the property is or is not a transferred asset.
9—Exclusion of obligation to enquire
(1) A person dealing
with an electricity corporation is not obliged to enquire whether property to
which the transaction relates is or is not a transferred asset.
(2) If an electricity
corporation purports to deal with property as if entitled to it, the
transaction is valid even though the corporation purporting to deal with the
property is not entitled to do so because the property is, or is not, a
transferred asset.
(3) However, this
clause does not validate a transaction if the party dealing with the
electricity corporation has actual notice of the deficiency of title, or acts
fraudulently.
10—Stamp and other duties or taxes
(1) No stamp duty or
other duty or tax is payable under a law of the State in respect of—
(a) any
transfer effected by order of the Minister under this Act; or
(b) any
other transfer or assignment of assets or liabilities between electricity
corporations; or
(c) an
application or entry made, or receipt given or anything else done for a
purpose connected with, or arising out of, such a transfer or assignment.
(2) No person has an
obligation under the Stamp Duties Act 1923 or any other Act—
(a) to
lodge a statement or return relating to a matter referred to in
subclause (1); or
(b) to
include in a statement or return a record or information relating to such a
matter.
(1) A certificate
issued by the Minister certifying as to the transfer or non-transfer of an
asset or liability under this Schedule is to be accepted in any legal
proceedings as conclusive evidence of the matter so certified.
(2) An apparently
genuine document purporting to be a certificate of the Minister under
subclause (1) is to be accepted in any legal proceedings as such a
certificate in the absence of proof to the contrary.
Part C—Transfer of staff
(1) The Minister may,
by order in writing, transfer an employee from a position in the employment of
one electricity corporation to a position in the employment of another.
(2) An order under
this clause may be varied or revoked by the Minister by further order in
writing made before the order takes effect.
(3) A transfer under
this clause does not—
(a)
affect the employee's remuneration; or
(b)
interrupt continuity of service; or
(c)
constitute a retrenchment or redundancy.
(4) Except with the
employee's consent, a transfer under this clause must not involve—
(a) any
reduction in the employee's status; or
(b) any
change in the employee's duties that would be unreasonable having regard to
the employee's skills, ability and experience; or
(c) any
change in the employee's place of employment unless the new place of
employment is within reasonable commuting distance from the employee's former
place of employment.
(5) For the purposes
of subclause (4), responsibility for the same or similar business
operations that are smaller in scope as a result of a reduction of the
business operations, or responsibility for a lesser number of staff, does not,
of itself, constitute a reduction in status.
(6) A person who is
transferred from one electricity corporation to another under this clause is
taken to have accrued as an employee of the corporation to which the person is
transferred an entitlement to annual leave, sick leave and long service leave
that is equivalent to the entitlements that the person had accrued,
immediately before the transfer took effect, as an employee of the corporation
from which he or she was transferred.
(7) A transfer under
this clause does not give rise to a right to any remedy or entitlement arising
from cessation or change of employment.
(8) For the purposes
of construing a contract applicable to a transferred employee, a reference to
the electricity corporation from which the person is transferred is to be
construed as a reference to the corporation to which the person is
transferred.
Part D—General
13—Schedule overrides other laws
This Schedule has effect despite the provisions of the Real Property
Act 1886 or any other law.
14—Effect of things done or allowed under Schedule
Nothing done or allowed under this Schedule—
(a)
constitutes a breach of, or default under, an Act or other law; or
(b)
constitutes a breach of, or default under, a contract, agreement,
understanding or undertaking; or
(c)
constitutes a breach of a duty of confidence (whether arising by contract, in
equity, by custom, or in any other way); or
(d)
constitutes a civil or criminal wrong; or
(e)
terminates an agreement or obligation, or fulfils any condition that allows a
person to terminate an agreement or obligation, or gives rise to any other
right or remedy; or
(f)
releases a surety or other obligee wholly or in part from an obligation.