South Australian Consolidated Acts South Australian Consolidated Acts (1) If a registered
housing co-operative fails to comply with the terms of an agreement secured by
a charge, the charge may be enforced as follows:
(a) SAHT
must, by notice in writing, inform the co-operative of the breach and give the
co-operative at least one month to remedy the breach; and
(b) if
the co-operative does not remedy the breach within the time allowed in a
notice under paragraph (a), SAHT must appoint an independent investigator
or investigators to carry out an investigation and report to SAHT on the
matter; and
(c) the
investigator or investigators must give the co-operative a reasonable
opportunity to make submissions in relation to the matter; and
(d)
where, on the report of the investigator or investigators, it appears
reasonable to enforce the charge, SAHT may apply to the Minister for an order
under subsection (2) in relation to the property subject to the charge.
(2) The Minister may,
on application under subsection (1), in relation to the property that is
subject to the charge—
(a)
order that steps be taken to transfer the property—
(i)
to SAHT;
(ii)
to one or more members of the co-operative;
(iii)
to another registered housing co-operative; or
(b)
order that steps be taken to sell the property on the open market.
(3) The co-operative
must comply with the terms of the order within a reasonable time.
Maximum penalty: $10 000.
(4) If the property is
transferred pursuant to an order under subsection (2)(a), the value of
the property will be taken to be its current market value.
(5) If the property is
transferred to SAHT, SAHT must, as soon as is reasonably practicable, divest
itself of the property.
(6) If the property is
sold pursuant to an order under subsection (2)(b), the money received in
respect of the sale must be applied as follows:
(a)
firstly—in paying the costs of the sale and any other costs of a
prescribed kind;
(b)
secondly—in discharging any liabilities secured by instrument registered
before the charge was created, or that is taken to have such effect by virtue
of section 65;
(c)
thirdly—in discharging the amount or amounts secured by the charge over
that property;
(d)
fourthly—in discharging any other liabilities secured by registered
instruments;
(e)
fifthly—in discharging any other liabilities that exist in relation to
that property of which SAHT has notice;
(f)
sixthly—in payment to SAHT.
(7) The title obtained
on the sale of the property will be free of—
(a) any
charge under this Part; and
(b) all
other liabilities discharged under subsection (6); and
(c) any
other liability that may exist on account of any mortgage, charge or
encumbrance.
(8) If the
co-operative does not comply with the terms of an order under
subsection (2) within a reasonable time, the Minister may take such steps
as are necessary to give effect to the order.
(9) The power of the
Minister to act under subsection (8) includes the power to rescind any
contract and to deal with or dispose of the property to which the order
relates, and the power to make, execute, sign and give such contracts,
instruments and documents as the Minister thinks necessary.
(10) If the Minister
acts under subsection (8), a conveyance executed by the Minister will, on
registration or enrolment, operate to vest title to the property in the person
or body named in the conveyance as transferee.
(11) The
Registrar-General must, on production of a conveyance executed under
subsection (10), register the conveyance and, notwithstanding the
Real Property Act 1886 , production of the duplicate certificate of title
will not be required (but, if the duplicate certificate of title is not
produced, the Registrar-General will cancel the existing certificate of title
and issue a new certificate in the name of the transferee).
(12) If an order is
made under this section for the transfer or sale of property, SAHT must take
such steps as are reasonably practicable—
(a) to
protect the interests of any creditor of the co-operative; and
(b) to
assist any tenant whose tenancy is affected or who is otherwise inconvenienced
by virtue of the order.