South Australian Consolidated Acts South Australian Consolidated Acts (1) If—
(a) the
transfer of a liability under this Act, 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.
(2) Subject to any
contrary provision in a transfer order, sale/lease agreement or special order,
the following provisions apply in relation to transferred assets and
liabilities:
(a) 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 relates to future liabilities, liabilities incurred after the
transfer; and
(ii)
the transferee is entitled to the same rights and
priorities and is subject to the same liabilities under the security as those
to which the transferor would have been entitled or subject if there had been
no transfer;
(b) if a
transferred asset consists of a right to the possession or use of property
under a lease or other instrument, the transferor incurs no liability (nor
does the right to possession become liable to forfeiture) because the
transferor has parted with possession of the property, or permitted the
possession or use of the property by another person, contrary to the terms of
the lease or instrument;
(c) 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;
(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;
(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;
(f) 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;
(g) in
legal proceedings about a transferred asset or liability, evidence that would
have been admissible by or against the transferor if there had been no
transfer may be given in evidence by or against the transferee;
(h)
legal proceedings in respect of a transferred asset or liability that had
commenced before the transfer may be continued and completed by or against the
transferee.
(3) Subject to any
contrary provision in a transfer order or sale/lease agreement, the following
provisions apply in relation to leased assets:
(a) if a
security held by the lessor is referable to a leased asset, then, so far as it
is referable to the leased asset—
(i)
the security is available to the lessee as security for
the discharge of the liabilities to which it relates including, where the
security relates to future liabilities, liabilities incurred after the grant
of the lease; and
(ii)
the lessee is entitled to the same rights and priorities
and is subject to the same liabilities under the security as those to which
the lessor would have been entitled or subject if there had been no lease;
(b) if
the lease is derivative of another lease (the "head lease ), the lessor incurs
no liability (nor does the head lease become liable to forfeiture) because the
lessor has granted the derivative lease, or has parted with possession of
property, or permitted the possession or use of property by another person,
contrary to the terms of the head lease;
(c) an
instruction, order, authority or notice given to the lessor before the
granting of the lease is, so far as it is referable to a leased asset, taken
to have been given to the lessee;
(d) the
lessee is entitled to possession of all documents to which the lessor was
entitled immediately before the granting of the lease that are entirely
referable to a leased asset and is entitled to access to, and copies of, all
documents that are referable to both a leased asset and any other asset or
liability;
(e) the
lessee has the same right to ratify a contract or agreement relating to a
leased asset as the lessor would have had if there had been no lease;
(f) in
legal proceedings about a leased asset, evidence that would have been
admissible by or against the lessor if there had been no lease may be given in
evidence by or against the lessee;
(g)
legal proceedings in respect of a leased asset that had commenced before the
granting of the lease may be continued and completed by or against the lessee.